John Fairfax Publications Pty Ltd v Zunter

[2007] HCATrans 64

[2007] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S331 of 2006

B e t w e e n -

JOHN FAIRFAX PUBLICATIONS PTY LTD

Applicant

and

JOHN ZUNTER

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 FEBRUARY 2007, AT 11.09 AM

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 applicant.  (instructed by Freehills)

MR C.A. EVATT:   I appear for the respondent with MR C.J. DIBB, your Honours.  (instructed by Russell McLelland Brown)

GUMMOW J:   Yes, Mr Blackburn.

MR BLACKBURN: May it please the Court, section 22 of the old and unlamented Defamation Act 1974 (NSW) is now section 30 of the uniform defamation legislation. It now represents the law of every State and Territory in Australia. In addition to that, the case law on section 22 which is ‑ ‑ ‑

GUMMOW J:   When you say “is now” - - -

MR BLACKBURN:   It has been since 1 January.

GUMMOW J:   I know, but in what precise form?

MR BLACKBURN:   In, your Honour, almost exactly the same form as section 22 was in when it was repealed. There are two matters that the Court may take into account which have been additionally included in section 30, but for the most part it is in exactly the same form as section 22 was when it was repealed. In addition to that matter, if the Court pleases, the case law on section 22, which is almost exclusively that of the Supreme Court of New South Wales, has directed not only the interpretation of section 22 over the years, but has now been applied to the requirement of reasonableness in the Lange defence and the constitutional qualified privilege defence in cases in New South Wales like O’Shane v John Fairfax Publications and in Victoria in the Court of Appeal in Herald & Weekly Times v Popovic.

This Court has never considered in detail the correctness of the various statements of principle contained in the case law on section 22 apart from some observations in Rogers v Nationwide News 216 CLR. If, as we contend, the interpretation of section 22 in the intermediate appellate courts of this State has gone wrong, then, in our respectful submission, now is the time to consider whether that is so because we are all present at the birth, as it were, of the new national scheme and if we are correct in what we say, its development will be stunted and the application of the Lange defence will continue to be frustrated.

GUMMOW J:   The Lange defence is not an expression of State statute law.

MR BLACKBURN:   It is not, your Honour, but the ‑ ‑ ‑

GUMMOW J:   We labour to try and explain this, but the message never seems to get through.

MR BLACKBURN:   I am sorry, your Honour?

GUMMOW J:   The message never seems to get through.

MR BLACKBURN:   But the problem is, your Honour, that the case law on section 22 has begun to be applied to a consideration of reasonable conduct under the Lange defence and it has been so applied in the Court of Appeal in New South Wales and also Victoria. If the Court pleases, the question of public importance in relation to section 22, now section 30, in our proposed appeal is this. We say that the interpretation of section 22 has gone wrong in two respects. First of all, it has been overlaid with rules which find no reflection in the language of a statute and, secondly, we say that what happens in practice, and it happened in this case, is that the courts are considering the wrong question when it comes to considering reasonableness.

The courts are considering whether the error made by the defendant, which is necessarily always a feature of a section 22 case, was unreasonable, and that is a question, in our submission, which in a lawyer’s mind tends to answer itself in the affirmative, rather than asking the question the statute poses which is, given that the defendant has always made a mistake in a section 22 case, was the publication of the matter complained of nevertheless reasonable in all the circumstances? They are two very different questions, in our submission, and it is an error which infects and has for 34 years infected the interpretation of section 22 of the Defamation Act (NSW).

If the Court pleases, may I briefly refer to the salient facts as found by the trial judge in this matter.  What occurred occurred against the backdrop of the terrible bushfires which devastated New South Wales in the early part of 2002.  The defendant’s journalist and photographer were sent to the Shoalhaven region to report on the bushfires in that region.  They attended a series of briefings by the Shoalhaven fire control officer who was found by the trial judge, at application book page 8, line 24, to be in charge of the entire operation, the entire bushfire fighting operation in the region, and we say one could not find a more authoritative source.  He, Mr Parry, the chief fire control officer, gave our reporter and the photographer the information that was published about the plaintiff though they were not told the name of the plaintiff by Mr Parry. 

There is an inference that is available, as the Court of Appeal observed, that the name of the caravan park could have come from Mr Parry, but in any event, the journalist, Ms Peatling, and the photographer tried to get confirmation from the owner of the Rustic Caravan Park that he was the person referred to.  Now, your Honours, they could not get through by car because of the bushfires.  They persuaded a local fisherman to take them by boat to Bendalong.  They waded through the water.  They managed to borrow a car at Bendalong, but they were turned back on the road and could not get to the caravan park.  Ms Peatling wrote a story in substantially the terms published in the paper, but without including the name of the plaintiff because she had not been able to speak to him.  She then went back to Sydney on the Friday night for a funeral.

Now, the photographer, Mr Harris, made a subsequent and successful attempt to get through to the Rustic Caravan Park.  He had not seen the draft story written by Ms Peatling.  He, the photographer, interviewed the plaintiff, but innocently did not put to the plaintiff the substance of the imputations which a jury happened to find two years later.  He then communicated the name of the plaintiff and his comments to a subeditor who could not at the trial be identified or located and no Jones v Dunkel point was taken about that.  The subeditor added the name of the plaintiff and the comments that the plaintiff made to the photographer.  Now, importantly and finally, before leaving the caravan park Mr Harris, the photographer, told the plaintiff that the story would be in the paper the next day, the deadline was approaching, and he said, “It was very important that you tell your side of the story”.

GUMMOW J:   In the Court of Appeal, Justice Handley, was it - - -

MR BLACKBURN:   Yes.

GUMMOW J:   - - - said in paragraph 30 on page 50:

A publisher who publishes serious allegations as fact without having checked with the person concerned is taking the risk that they cannot be justified.  In that event, outside the limits of reasonableness, it is the publisher who bears the risk, not the person defamed.

MR BLACKBURN:   That is a perfect example, your Honour, in our submission, of an encrustation which is simply not found in the ‑ ‑ ‑

GUMMOW J:   No, you quarrel with that?

MR BLACKBURN:   We do.  I should just add, your Honour, to that that there was a contest about whether the photographer had said that to Mr Zunter, but that contest was resolved by the trial judge in my client’s favour.  Now, there is no reason to think on the evidence, in our submission ‑ ‑ ‑

GUMMOW J: What do you say about section 22(2A)?

MR BLACKBURN:   That now substantially forms part of section 30, but the thing about subsection (2A) is that, as Justice Handley said, at ‑ ‑ ‑

GUMMOW J:   Did that apply in this case?

MR BLACKBURN:   No, it did not, your Honour.

GUMMOW J:   Because it postdated the facts.

MR BLACKBURN:   Her Honour the trial judge applied it, but the difficulty with subsection (2A) is this, that, as Justice Handley said at paragraph 23 of his judgment, page 49 of the application book, what is in subsection (2A), and which now finds reflection in section 30, is not inconsistent with the statement of principle that Justice Hunt made in Morgan v John Fairfax, which I am going to take the Court to in a moment.  In other words, although subsection (2A) was relatively new and it is now included in, I think, section 30(3), the Court of Appeal has said that the existing case law and, in particular, the decision of the Court of Appeal in Morgan v John Fairfax, which I will come to in a moment, applies notwithstanding subsection (2A).  Now, the upshot of all that, if the Court pleases, is that the defendant got it wrong.  We made a mistake.  We published a defamatory imputation about the plaintiff which was not true.  We made an error.

GUMMOW J:   What was the imputation?

MR BLACKBURN:   There were two imputations, your Honour. The first one was that the plaintiff lost control of his own backburn and, secondly, that the plaintiff wrecked the main strategy of the Shoalhaven fire control officer. Now, the starting point of any section 22 case and any section 30 case is the defendant made a mistake. It is a given in every section 30/section 22 case. That does not answer the question, ipso facto, of whether the conduct was unreasonable.

GUMMOW J:   Justice Handley said the question of reasonableness had to be tested between your client and the person defamed, not within the organisational arrangement of your client.

MR BLACKBURN:   Your Honour, that is an observation, with profound respect, which finds absolutely no reflection in the prior case law or in the words of section 22 and we say that is a fundamental error for that reason. You can test it this way. If that is the proper test, your Honours, then again, to the mind of a lawyer, the question that that test poses inevitably answers itself. If the question is whether the defendant acted reasonably towards the plaintiff, the answer to that question will almost invariably, in fact must be, no, because it is a given in a section 22 case that the defendant has acted wrongly by defaming the plaintiff unjustifiably in the sense that it is not true.

The observations made by his Honour in paragraph 30 of his judgment do not find reflection in the words of the statute.  They are, in our submission, inconsistent with the statute because, as we say, the question it poses must, almost as a matter of course, be answered in the negative.  The question that the statute poses is this:  was your conduct in publishing the matter reasonable in all the circumstances, and it is a given that you made a mistake?  The question the section poses, if the Court pleases, is not whether your mistake was reasonable.  The task of the court is not to focus on the mistake and say this error made by the defendant, was it reasonable to make it? 

We simply say to the Court that to the mind of the lawyer that question really answers itself.  But that is not the question.  The question is quite different.  The question is:  given that you made a mistake, nevertheless, was your conduct in publishing the matter complained of reasonable in all the circumstances?  That is the correct test.  What his Honour Justice Handley said at paragraph 30, with great respect, is just an encrustation on the statute that finds no reflection in the words of the statute and it focuses attention on the wrong question, namely:  was your mistake reasonable, which is a question that we answered no 99 times out of 100.  May I just very briefly compare and take the Court to two decisions.  The first is Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374.

GUMMOW J:   Do you want to hand those up?

MR BLACKBURN:   Yes. This is a leading Court of Appeal decision on the interpretation of section 22 and it is referred to by this Court in Rogers v Nationwide News and it is a decision which has found favour not only in subsequent Court of Appeal decisions in this State, but also in the Victorian Court of Appeal’s decision in Herald and Weekly Times v Popovic, in particular, at paragraph 209 ‑ ‑ ‑

GUMMOW J:   Is Morgan referred to in this case in the Court of Appeal?

MR BLACKBURN:   It is, your Honour, and referred to extensively beginning at paragraph 22 on page 48 of the application book. 

GUMMOW J:   Your complaint is that Justice Handley misconstrued Morgan or misapplied it?

MR BLACKBURN:   Our complaint is yes, that he misapplied it, your Honour, and very briefly for this reason.  Morgan sets out some considerations of what I think your Honour Justice Gummow called common relevance in Rogers v Nationwide News, but Morgan is not a statutory prescription. It has been treated as such effectively by his Honour Justice Handley and it is treated as a statutory prescription generally in cases on section 22. Now, one only has to look at what Justice Hunt said in Morgan beginning at page 387D and going over the page to page 388, that it imposes a counsel of perfection which is simply not supported by the language of the statute. It is no wonder that section 22 has succeeded in New South Wales I think about three times in 34 years. By way of comparison, may I hand up to the Court a recent decision of the House of Lords in Jameel v Wall Street Journal [2006] 3 WLR 642. Yes, your Honour. Just by way of very brief comparison, can I just take the Court to some very brief passages in the speech, first of all, of Lord Bingham at page 654, the opening sentence of paragraph 32 of his Lordship’s speech:

Qualified privilege as a live issue only arises where a statement is defamatory and untrue . . . Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.

GUMMOW J:   I remember this case.  They are concerned to have explained Reynolds, are they not?

MR BLACKBURN:   They are concerned to explain Reynolds, but it does point up, your Honour ‑ ‑ ‑

GUMMOW J:   Which differs from Lange.

MR BLACKBURN:   Very different from Lange, but the decision points up a rather different approach, in our submission, to the consideration of whether a newspaper has acted responsibly.  Now, this Court may disagree with some of the observations in Jameel, but the point is it is an issue that needs to be ventilated because we are at the birth of this new scheme and the infant is crying out for some, in our submission, guidance.

GUMMOW J:   We tend to wait sometimes until they can walk and talk.

MR BLACKBURN:   I am sorry, your Honour.

GUMMOW J:   We tend to wait sometimes until they can walk and talk around intermediate appellate courts.

MR BLACKBURN:   The thing is, your Honour, that section 22 has been walking around and talking for quite a long time and it needs some guidance from this Court. The other matter is simply section 16. What his Honour Justice Handley did in relation to the contextual truth defence in considering whether by reason of the truth of the defendant’s contextual imputation, which was that the plaintiff carried out an illegal backburn in circumstances of extreme fire danger, in considering whether the plaintiff’s reputation was not further injured by his own imputations because of the truth of the defendant’s imputation, what his Honour did was say, at paragraph 38 of his judgment which is at page 52 of the application book, that the facts that establish the truth of the contextual imputation were in some way part of the context in which the gravity of the plaintiff’s imputations were to be assessed. There is no authority for that proposition. It is wrong in principle because, of course, if you had an imputation that the plaintiff says the plaintiff lost control of his own backburn, the defendant’s imputation was the plaintiff is a murderer, there is absolutely no connection with the facts.

GUMMOW J:   What has happened to section 16(2)(c)?

MR BLACKBURN:   It has been reworked but, although in somewhat different terms, its effect is substantially the same, in our submission. It is now section 26 of the new uniform legislation. Again, we have an encrustation on the statute which is likely to infect the interpretation of the new scheme at its commencement. For those reasons, in our submission, this is an appropriate case for a grant of special leave. Section 22 we have had for 34 years. It has almost never succeeded. It may be because, as we all know, the media can just never get it right, but perhaps it may also be because the bar is too high. May it please the Court.

GUMMOW J:   We will take a short adjournment.

AT 11.31 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.41 AM:

GUMMOW J:   We do not need to call on you, Mr Evatt.

The resolution of the issues concerning the operation of section 22 of the Defamation Act 1974 (NSW) which arose in this matter depended upon the particular facts and circumstances. An appeal to this Court would not provide a convenient vehicle for determining any wider question about the operation of the 2005 uniform legislation of a kind the applicants seek to raise. We are not persuaded that an appeal to this Court would enjoy sufficient prospects of disturbing the actual conclusions reached by the Court of Appeal on the section 22 issue or on the issues concerning the operation of section 16 of the 1974 statute to warrant a grant of leave.

Special leave is refused with costs.

AT 11.42 AM THE MATTER WAS CONCLUDED