John Fairfax Publications Pty Ltd & Anor v Gacic

[2012] HCATrans 168

[2012] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S420 of 2011

B e t w e e n -

JOHN FAIRFAX PUBLICATIONS PTY LTD

First Applicant

MATTHEW EVANS

Second Applicant

and

ALEKSANDRA GACIC

First Respondent

LJILJANA GACIC

Second Respondent

BRANISLAV CIRIC

Third Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2012, AT 1.11 PM

Copyright in the High Court of Australia

__________________

MR T.D. BLACKBURN, SC:   May it please the Court, I appear with my learned friend, MR D.R. SIBTAIN, for the applicants.  (instructed by Banki Haddock Fiora Lawyers)

MR C.A. EVATT:   May it please your Honours, I appear with MR C.J. DIBB for the respondents.  (instructed by McKenzie Leamey Solicitors & Barristers)

CRENNAN J:   Yes, Mr Blackburn.

MR BLACKBURN:   Your Honours, the first special leave point in this case is a point of public importance by reason of the fact that it is an issue of general application notwithstanding that the Defamation Act 1974 (NSW) has been repealed. The question of law raised is this. In a case involving the defence of fair comment, either at common law or one of the statutory defences as here the now repealed Defamation Act 1974 (NSW) or, indeed, the current uniform Acts, in such a case where the imputation formulated by the plaintiff is one which was never intended to be conveyed by the commenter, by the defendant, is not obviously contiguous with the actual comment that the commenter made and arises purely and only inferentially, by inference, from the matter complained of, the issue is, in those circumstances, should the defence of comment be – or should the success or failure of the defence of comment be judged by reference to the actual comment alone, that is, what the commenter actually wrote or said, rather than to this artificial construct, the imputation?

KIEFEL J:   Does this not amount then to a challenge as to the imputation that was allowed?  This is really a pleading question, is it not?

MR BLACKBURN:   We would say not really, your Honour.  Obviously at the pre‑trial stage an argument could have been had and, your Honour, so many of these arguments happen in the defamation list and they just lengthen proceedings and add to costs, but an argument could, one supposes, have been had to the effect that the imputation was absolutely incapable of being conveyed in that form because ‑ ‑ ‑

KIEFEL J:   Is that really what you are saying ‑ ‑ ‑

MR BLACKBURN:   No, I am not, your Honour.  I am not at all. 

KIEFEL J:   You are saying that the imputation by itself does not convey what the words actually conveyed?

MR BLACKBURN:   No.  I think, your Honour, what we are saying is this.  We frankly have to accept that the matter complained of was capable of conveying an – well, perhaps I can go back a step and put it this way.

CRENNAN J:   Are you talking about something which is open to a section 7A jury?

MR BLACKBURN:   Yes, it is open to a section 7A jury.  Could I, to illustrate the point, hand up some copies, just of the imputations, so that your Honours do not have to look inside the application book?  Just to answer your Honour Justice Kiefel’s question, what the Court of Appeal has effectively done is taken each of these imputations and said, well, what they mean is the plaintiff sells unpalatable food at Coco and the plaintiff sells unpalatable food at Roco.  Now, the challenge was not taken, your Honour Justice Kiefel, because, frankly, we considered the point, and it is neither here nor there, to be somewhat captious.

KIEFEL J:   But are you not really saying that the imputations thus framed are ambiguous and not sufficient to found a finding in relation to both restaurants?

MR BLACKBURN:   No, we are not saying that at all, your Honour.  We accept that it could have gone to the 7A jury and we accept that an imputation in those terms was capable of being conveyed.  So we are not contesting that, your Honour.  We are saying something a little bit different.  The difficulty is that the defence of comment – and your Honours have seen the references to what an important defence it is.  It is a fundamental plank in the law of defamation which itself is an attempt at resolving the dispute, the tension between protection of reputation on the one hand and free speech on the other.

CRENNAN J:   It always has to have that foundation of fact.

MR BLACKBURN:   That is right, it does, but it is a fundamental defence.  It is very important and it is something that should be able to be availed of, as Lord Diplock said of the defence of qualified privilege, by all manner and condition of people, the astute, the not so astute, everybody.  Now, the situation, your Honours, that we have got to with the defence of comment, because of the absurd primacy of the imputation, is that the defence can and will be defeated unless the commentator anticipates every unintended and possibly unlikely meaning that might inferentially be conveyed by what the honest commentator has written, and my commentator ‑ ‑ ‑

KIEFEL J:   What is the relevance of intention in this context?

MR BLACKBURN:   It has a kind of moral relevance, your Honour, no more than that, but the problem is that you have a commentator, an honest commenter, as we had in this case – there is no malice in this case, there is no dispute that his comments were honest.  He honestly gives his opinion about the food at Coco.  He says explicitly in the matter complained of, “I went to Coco.  There is a restaurant called Roco, I didn’t go there”.  There is no question of malice of dishonesty in this case.  He gives his opinion honestly.  There was no malice. 

That should be the end of it on any sensible view.  But because the pleader comes up with an imputation that the Court of Appeal has found includes a meaning that the honest commenter never intended to convey, it is not obviously contiguous, we say, with what he wrote.  It arises purely by inference.  In that situation the defence of comment is destroyed and the integrity of the defence of comment and the efficacy of it – what the end is supposed to serve is destroyed because of the wit of the pleader.  That is a very bad situation, your Honours, and that is the ‑ ‑ ‑

CRENNAN J:   That is something that should not be – is that not something that should be dealt with at the section 7A stage?

MR BLACKBURN:   No, your Honour, because we do not contest that an imputation in those terms could have been conveyed.  It does not tip over into unreasonableness.  In other words, we do not say now, well, the imputation should have been struck out because it is unreasonable and that is the test.  So we accept, and we have to accept, that it is just within the boundaries of reasonableness.  But this highlights the problem, your Honour.  You have an honest commenter – and we had a commenter here who was not in the category of not being astute or smart, but it is a defence which should be able to be availed of by everybody.

There are people out there, they might be blogging on the internet or something, they are honest, they make a comment and they should be able to avail themselves of this defence, but the law at the moment, your Honours, is that a clever pleader can formulate an imputation which never occurred to the commenter, which the commenter did not intend to convey and which is not really contiguous with what was written and, in those circumstances, the defence is destroyed.

It is that issue that we would welcome the opportunity to argue on appeal because it is a gap in the law of comment as it applies at the moment.  I have to stress this, your Honour, it makes no difference whether you are talking about the now repealed New South Wales Act or you are talking about the common law, because since this Court’s decision in Manock, in effect, the practice or the way that the issue was determined is exactly the same ‑ ‑ ‑

CRENNAN J:   You are saying there should be an exception in the circumstances you speak of from the principle established in Manock or flowing from section 9 of the Defamation Act 1974?

MR BLACKBURN:   That is what we are saying, your Honour, and, your Honour, this is not just the sour grapes of a party that thought it won and then lost.  This is a serious issue.  It has been an issue that has been recognised for some time.  Mr Rares, QC, as he then was, wrote a legendary article, I think in the ALJ, some years ago called “No Comment:  The Lost Defence” where he raised this very issue and it has never really been decided, that is to say, the issue of a clever pleader taking an imputation which an honest commentator never intended.

Before I leave the point, as time is marching on, may I just add this.  In our written submissions we included the famous quote of Sir Frederick Jordan where the Chief Justice said, “No one need be mealy‑mouthed in denouncing what he regards as twaddle, daub or discord”.  Now, your Honour, the point we make about that, and that is a pungently expressed way of putting it, the point we make about it is that robust enunciation of a subject, which is every commenter’s right, is the very kind of criticism that is likely to give a clever pleader the opportunity of pleading an imputation which is right on the boundaries of reasonableness and it is the robust enunciation which a clever advocate can persuade the jury was conveyed.

One can see that it is not quite right that there are honest people out there who are going to be caught by this kind of problem.  It is this issue that we really seek to agitate on appeal because, as we have put in our written submissions with extensive citations, the law of comment, whether it is statutory or common law, is a fundamental part of the resolution of the tension between protection of reputation and the entitlement to speak freely and it is a legitimate issue that ought to be examined, in our respectful submission, and worthy of being agitated in this Court.  That is the first special ‑ ‑ ‑

KIEFEL J:   If there is this point which has been in the background and waiting to be determined, why is this the appropriate vehicle for it?

MR BLACKBURN:   Well, it is for these reasons, your Honour.  It squarely raises the problem and, really, this morphs a bit into the next point I was going to make.  Your Honour has probably had the opportunity to have a look at the review.  There is no rocket science about it, your Honours.  It is a restaurant review and the one thing that is very clear, in our submission, is that Mr Evans, the second applicant, made it perfectly clear that there were two – there are two restaurants in one and he only ate at Coco.  Now, no reasonable person, we would say, or sensible person, or fair minded person would understand this review as being other than a review of the food and the service at the restaurant Coco and no sensible and fair minded person would understand it as being a kind of inferential review by a side wind of the food or the service at Roco. 

KIEFEL J:   That is to say, on that basis the imputations are wrong.  That is really what you are saying.

MR BLACKBURN:   That is our second point, your Honour.  The Court of Appeal made a bad mistake in coming to the conclusion that they did.  I might say this, your Honour.  On any view, a third imputation, that is, “The plaintiff is incompetent as a restaurant owner because he/she employs a chef at Coco Roco who makes poor quality food”, your Honour, on any view, that imputation should not have been down in the Court of Appeal because the plaintiffs did employ a chef at Coco Roco who makes poor quality food.  I mean, on any view, your Honours, as we have said in our written submissions, we ought to have got up at least on that imputation.  I know that we are straying now into purely visitorial matters, but it is actually a grave injustice on my client.  That itself is a great injustice.

CRENNAN J:   But you are putting this as a visitation case more generally, are you not?

MR BLACKBURN:   The points that I have just made, your Honour, I am putting not as a visitation case.  There is a very important point that deserves to be aired in this Court.

CRENNAN J:   An exception to an established principle.

MR BLACKBURN:   Exception to an established principle, that is right.  The second point, your Honour, is much more visitational.  It has aspects that are not visitational, but it is mostly – it is visitational but it is going to happen again and again.  We would say that the interests of justice require examination of the judgment in issue because it is the kind of problem that could recur and it is really ‑ ‑ ‑

CRENNAN J:   Are there any particular passages in the Court of Appeal’s judgment which you say reveal error?

MR BLACKBURN:   Yes, your Honour, there certainly are.  In the application book, in particular at page 135, and this is, in a sense, the nub of it, at paragraph 72 of the judgment.  There are really two points here.  Firstly at paragraph 72, her Honour Justice McColl says:

The matter complained of was replete with references to Coco Roco which makes it apparent, in my view, that it was open to the s 7A jury to conclude that an ordinary reasonable reader would have read the matter complained of as referring to both restaurants.

CRENNAN J:   Well, what is wrong with that?

MR BLACKBURN:   Your Honour, that is, with great respect to her Honour, a serious error because one could just as easily say that cannot be the test – one can just as easily say it would have been open to the ordinary reasonable reader to read the matter complained of as referring to only one restaurant.

CRENNAN J:   …..have to read, together with paragraph 72, I would apprehend, 73 to 75, and this is really getting back to matters of fact.

MR BLACKBURN:   Yes, but, your Honour, the test that her Honour seems to have applied is there in paragraph 72 and she seems to have decided that the imputation should be read as referring to both restaurants on the basis that it was open to the 7A jury so to find, and that simply cannot obviously be the correct test because it could just as easily be open to the jury to find that it referred only to one restaurant.  The exercise that her Honour should have engaged in, in our submission, is the exercise that is referred to in paragraph 31 of our written submissions at page 170 of the application book, at about line 30:

The task for Harrison J was different, and more akin to a question of law, namely “to determine, at the end of the trial, the form in which the issues which have been litigated are to be put to the jury”.

Not whether it was open to the jury and certainly not, as her Honour said, Justice Harrison’s task was the same as that facing the jury.  It was not at all.  The point we make, your Honours – and I see the time – is this.  The Court of Appeal has treated these imputations – I think Justice Giles in argument used the word “distributively” to mean, as we said, the plaintiff sells unpalatable food at Coco and the plaintiff sells unpalatable food at Roco and so on. 

Your Honour, what is the more probable construction of these imputations?  Given that the ordinary reasonable reader is a fair minded person, he or she sees that only one restaurant has been sampled, what is

more likely in the reader’s mind?  Is it that the reader is going to say, “Well, yes, he went to Coco and did not think much of it, but he did not go to Roco and he is not saying anything about Roco”, or is the reader going to say, “Well, I see that Coco Roco” – the term is used in the review, which was, of course, on the evidence before Justice Harrison, the term that was used by the plaintiffs to describe the restaurant.

It is a choice between what is more likely to occur to the mind of the ordinary reasonable reader and all we can say is that the Court of Appeal’s view that the ordinary reasonable reader would have understood this imputation as referring to both restaurants is close to fanciful.  It wears an air of unreality, in our submission.  It is a serious error, in our respectful submission, and it has done a grave injustice to our client which has legitimately won at first instance.  Your Honours, unless there are other matters that I can assist you with, those are our submissions.  May it please the Court.

CRENNAN J:   Thank you, Mr Blackburn.  Mr Evatt, we do not need to trouble you.

We are not satisfied that there are sufficient prospects of success on what the applicant contends should be an exception to the established principle that the defence of fair comment goes to imputations. We say that given section 9(2) of the Defamation Act 1974 (NSW), findings made by two section 7A juries, and the factual circumstances referred to, particularly in paragraphs 73 to 75 in the reasons of the Court of Appeal in the judgment of Justice McColl. Nor are we satisfied that the interests of justice call for a grant of special leave. Accordingly, special leave is refused with costs.

The Court is adjourned to 10.15 on Tuesday, 7 August next in Canberra.

AT 1.30 PM THE MATTER WAS CONCLUDED