Laws & Anor v Robinson

[2002] HCATrans 93

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B31 of 2001

B e t w e e n -

JOHN LAWS

First Applicant

RADIO 2UE SYDNEY PTY LTD

Second Applicant

and

ROBERT RAYMOND LLOYD ROBINSON

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 19 MARCH 2002, AT 1.49 PM

Copyright in the High Court of Australia

MR D.K. BODDICE, SC:  May it please the Court, I appear for the applicant.  (instructed by Biggs & Biggs Lawyers)

MR A.J.H. MORRIS, QC:  May it please the Court, I appear with my learned friend, MS D.C. SPENCE, for the respondent.  (instructed by RFG Finlayson & Associates)

GLEESON CJ:   Yes, Mr Boddice.

MR BODDICE:   Your Honours, there are two special leave questions which arise in this matter and it is my submission that in many respects the two questions are interrelated as all of the justices in the Court of Appeal referred to the second issue when considering the first.  They are also interrelated because the need for a defendant to plead alternate meanings in many respects arises from the proposition that a plaintiff will not necessarily be bound to the meanings which have been pleaded in the case.  If, in fact, the Queensland legislation is to be interpreted akin to the New South Wales legislation, which is that each imputation is itself a separate cause of action, then the plaintiff would be bound by the pleaded imputation.

CALLINAN J:   It is usually pleaded in the alternative in Queensland, is it not?

MR BODDICE:   It is.  That is the normal practice, with respect.

CALLINAN J:   Pleading of imputations and then a general plea that according to its ordinary and natural meaning it is defamatory.  So that you could, on occasions, get a general verdict rather than the verdict in relation to each imputation.

MR BODDICE:   Yes, that has been the practice to date that has been adopted in Queensland because the view was that they are not separate causes of action.  In fact, the cause of action is the publication of defamatory matter with the imputation being, as in other jurisdictions, merely a particular of the meaning which is being put forward by the plaintiff or being advised as part of the case.

CALLINAN J:   Unless an innuendo is being pleaded.

MR BODDICE:   Different matter to innuendo, but that does not apply in the present situation, in my submission.  Special leave should be granted for two reasons.  The first is that both questions raise issues of general importance.  In respect of the first question, the respondent concedes that the question whether such a defence is available under Australian common law is a question of general importance but submits that this case is not an appropriate vehicle for the ventilation and determination of that question. 

The second reason that leave should be granted is that there is uncertainty within the various Australian jurisdictions as to the availability of a Polly Peck plea following the decision of this Court in Chakravarti v Adelaide Newspapers Ltd 193 CLR 519. This uncertainty was, in fact, referred to by his Honour Justice Drummond in Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296. In that case there was a submission that the appellant had been prejudiced by the trial judge in the defamation action in effect reading an imputation as pleaded in a different way to that pleaded. His Honour at page 333 said:

In any event, the appellant ran its case at trial on the basis that the text conveyed nothing more than the imputation that the woman had limited premarital sexual experience before marriage with two men, one of whom she later married, and that imputation was incapable of being defamatory of her:  counsel cross‑examined and addressed on this basis.  The appellant could also, if it wished, have pleaded that the text conveyed only the narrow imputation it relied on at trial and then sought to justify it.

And his Honour cites Woodger’s Case as authority for that proposition, and then says:

In Chakravarti, Brennan CJ and McHugh J held that such a course is not open to a defendant.  But Gaudron and Gummow JJ accepted it as a permissible one.  The other member of the Court, Kirby J, did not consider the point.  In this state of authority, the appellant could, if it wished, have raised by way of defence and persuaded the trial judge to entertain a plea of “Polly Peck” justification.

GLEESON CJ:   Mr Boddice, apart from the consideration that was given to this issue in the Court of Appeal, the pleading was struck out on the basis of issues of form, was it not?

MR BODDICE:   That is so.

GLEESON CJ:   It was prolix.  There were various other criticisms made of it ‑ ‑ ‑

MR BODDICE:   That is right.  The meanings were tendentious as well.

GLEESON CJ:   Yes.  If we were to grant special leave in this case, there would be a good chance that anything we said about the Polly Peck defence would be obiter, would it not?

MR BODDICE:   Except that, your Honour, as the matter presently stands, because of the decision of the Court of Appeal, there is no way that the applicants here could seek, pursuant to the leave to amend that they were given by the Court of Appeal, to set up a Polly Peck defence.

GLEESON CJ:   That may be so, but you are not going to get a binding rule from any decision of this Court if we decide to dismiss the appeal by upholding the view taken about the formal aspects of the pleading.

MR BODDICE:   Except, your Honour, however, if the Court were to find that the Polly Peck defence does, in fact, exist in Queensland, it would serve an important purpose.

GLEESON CJ:   But it would not be a binding decision, would it?

MR BODDICE:   But it would then mean that the applicants, for example, could seek to replead, pursuant to the leave that they have already been given, to include a Polly Peck defence.  They simply ‑ ‑ ‑

GLEESON CJ:   But it would be a kind of advisory opinion.

MR BODDICE:   With respect, it would not be advisory in the sense that as things presently stand the applicant and no other defendant in Queensland can plead a Polly Peck defence.  There is no other vehicle, in my submission, that will come before this Court to determine whether a Polly Peck defence is available in Queensland.

GLEESON CJ:   There might arise a case one day when the outcome of the case will depend on it.

MR BODDICE:   But the difficulty will be, in any future case any defendant who seeks to plead a Polly Peck defence will have it struck out on a summary basis as not disclosing any defence known to law.

GLEESON CJ:   And if the pleading is otherwise formally appropriate, then that might provide an appropriate vehicle to consider the question.

MR BODDICE:   Well, the difficulty in those circumstances would be that the appeal that would then go to the Court of Appeal would have to fail unless the parties could convince the Court of Appeal to reconsider this decision.

CALLINAN J:   But that happens occasionally, Mr Boddice.  The point is effectively reserved and then if there is some other basis for an appeal or – I am sorry, if, in fact, it is a genuinely live issue that could affect the outcome of the case, then special leave can be granted.

MR BODDICE:   I accept that it does happen on occasions.  It has happened on occasions where the Court of Appeal, for example, has been convinced to reconsider an earlier decision.  But the effect here, in my submission, is not to be an advisory opinion because what the Court of Appeal did was not merely strike down this pleading and say that a Polly Peck defence did not apply.  The court has said that a Polly Peck defence does not apply in Queensland.  So this applicant could not take advantage of the leave to replead, which would normally exist when a pleading is struck out on the basis of form, to, in effect, correct the errors that the court had identified in the pleading.  So, to that extent, it is my submission it is an appropriate vehicle for this matter to be ventilated by the Court. 

The second matter that I wish to deal with was the question of the meanings and whether a party is bound by the meanings because, in my submission, that is at the heart of whether, in fact, there is an important question for a defendant in deciding whether to plead alternate meanings.  What has happened in Chakravarti’s Case is that all members of the Court, in my submission, decided that a plaintiff could depart from the pleaded meanings but only in certain circumstances.

Essentially, it was a question of whether there was prejudice to a defendant from allowing that departure.  But in my submission, it is important to consider what was said by Justices Gaudron and Gummow in their joint judgment as to what is the effect of pleading meanings.  Their Honours acknowledge that the consequences of a plaintiff pleading a specific meaning were far from settled – and this is at page 553 – and that the modern practice of pleading some specific meaning or meanings fulfilled the function of giving of particulars specified in the case we made at trial.  Their Honours, at page 545, said:

Words do not mean what the parties choose them to mean and, at least ordinarily, the defamatory material will, itself, sufficiently identify and, thus, confine the meanings on which they may rely.

His Honour Justice Kirby expressed similar sentiments at pages 579 and 580.  His Honour, in doing that, dealt with the matter which is relevant to the second question, and that is the difference between jurisdictions such as New South Wales and other jurisdictions in Australia, and his Honour used the example of New South Wales, where the legislation specifically provides that each imputation is a separate cause of action.

His Honour dealt with this at page 581 saying that there were advantages and disadvantages with such a system, but that one of the disadvantages of the system was, in effect, that the focus of the trial shifted from the words complained of to the imputation said to arise, and his Honour said:

Because readers and viewers are not favoured with pleaded imputations when they receive the matter complained of, there is a risk that the attention at the trial will be deflected from the item actually said to have harmed the plaintiff’s reputation to an evaluation of pleaded imputations and a debate about whether they truly arise.  Without the clear authority of statute, this approach should not be extended to jurisdictions which have not so far embraced it

It is my submission that Queensland jurisdiction does not embrace such a proposition.  The Court of Appeal held that the cause of action in Queensland is, in effect, the imputation, although their Honours varied slightly in terms of how they dealt with that.  Justice Mackenzie expressly held that each imputation constitutes “a separate cause of action” – and that is at paragraph [122] of the judgment, which is at application book page 47.  That is in accord with what the New South Wales legislation expressly provides.  Justice Williams said that “each imputation founds a separate and distinct defamation” – and that is at paragraph [90] of the judgment, application book 40.  His Honour the Chief Justice found that:

the actionable wrong on which the plaintiff sues is publication of the defamatory matter, being essentially, the meaning conveyed by the particular communication.

And that is at paragraph [51], application book 33.  His Honour did not, however, expressly accept that each imputation is a separate cause of action.  Now, the legislation in Queensland may be contrasted with the legislation in New South Wales.  In Queensland, section 4 defines “defamatory matter” as:

Any imputation concerning any person, or any member of the person’s family, whether living or dead, by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person, is called “defamatory”, and the matter of the imputation is called “defamatory matter”.

Then section 7 provides:

The unlawful publication of defamatory matter is an actionable wrong.

In the New South Wales legislation, it is expressly provided in section 9 that:

the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient:

. . . 

(b)  in addition to any cause of action –

that may arise from an imputation also occurring in the same publication.  So the New South Wales legislation makes it clear that each is, in fact, a separate cause of action.  In my submission, that is not the case in Queensland and it does not follow that that is the appropriate reading of the legislation.

Now, the Court of Appeal, in my submission, based, in part, the decision that the Polly Peck defence is not the law of Queensland, on the fact that the imputation is the cause of action.  The Chief Justice specifically referred to what had been said by Justice Kirby in Chakravarti’s Case – and this is at paragraph [50] of the judgment, application book 33.  He said:

But Kirby J added (page 581):  “The position will be otherwise in jurisdictions which, by statute, provide that each imputation is a cause of action upon which the plaintiff may sue.”  That would appear to encompass the situation in Queensland.

And, as I said, the other members of the court expressly said, in the case of Justice Williams, that it was “a separate and distinct defamation” and, in the case of Justice Mackenzie, that it was “a separate cause of action”.  Now, in my respectful submission, that is a matter of general importance in terms of the defamation law in Queensland and is a matter that is an appropriate vehicle for the granting of special leave. 

My learned friends suggest in their outline that this is a matter that has been considered and determined by this Court and cite as authority for that proposition the Court’s decisions in Bellino v Australian Broadcasting Corporation and also Pervan v North Queensland Newspaper Company.  In my respectful submission, this Court has not decided that point.  In Pervan’s Case the majority Judges expressly left open the question whether or not there was a separate cause of action in Queensland in respect of each defamatory imputation.  At page 317 of the judgment of the then Chief Justice, Justice Mason, and Justices Brennan, Deane, Dawson, Toohey and Gaudron the Court said this, near the top of that page:

On the hearing of the appeal, the appellant indicated that he no longer pressed a ground of appeal by which he had sought to argue that the Full Court erred in failing to consider the defence under s 377(8) by reference to each of the pleaded imputations.  It is, accordingly, unnecessary to decide in this case whether or not the Code provides for a separate cause of action in respect of each defamatory imputation.

What was decided in that case in the judgment of Justice McHugh was that “defamatory matter”, where that is used in section 377, refers to the imputation.  One would expect that to be the case, having regard to the definition of “defamatory matter”.  But, with respect, Justice McHugh did not decide or consider whether each imputation gives rise to a separate cause of action, which is the issue that arises from the Court of Appeal judgment in the present case.

In Bellino’s Case what happened was, again, that the Court was considering section 377(8) of the Code and it is in that context that the various members cite the authority of Justice McHugh’s judgment in Pervan’s Case.  It is not in respect of this issue, which is whether each imputation constitutes a separate cause of action.  In my submission, on both bases important questions are raised and special leave should be granted.

GLEESON CJ:   We do not need to hear you, Mr Morris.

MR MORRIS:   May it please your Honours.

GLEESON CJ:   In relation to the matter of the availability of the Polly Peck defence, the Court is of the view that the case is not a suitable vehicle for the resolution of that issue.  As to the other issues sought to be agitated, the Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Appeal.  The application is refused with costs.

AT 2.07 PM THE MATTER WAS CONCLUDED