Lee v Cha

[2006] HCATrans 132

[2006] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S456 of 2005

B e t w e e n -

YOON SHIN LEE

Applicant

and

BOB CHAE-SANG CHA

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2006, AT 11.22 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR R.W POTTER.  (instructed by Banki Haddock Fiora)

MR C.J. DIBB:   May it please the Court, I appear for the respondent.  (instructed by Strathfield Law)

GLEESON CJ:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, this case concerns a situation which arises very commonly in defamation cases and that is where a defendant, normally a media defendant, repeats a statement or a publication made by a third party.  The issue that has arisen in the case law is whether the absence of adoption or endorsement of that third party’s statement by the defendant is relevant to whether or not the meanings or imputations are conveyed. 

Now, in the intermediate courts of appeal there are three views that have been expressed on that particular issue.  The position formerly taken some time ago was that the issue of adoption or endorsement was irrelevant.  The other view taken, the second view taken, was simply that it was a matter which was relevant to the nature and quality of the, let us assume, newspaper’s publication.  This case articulates a third view, perhaps trying to reconcile those two lines of authority, and the view that is articulated in this case is that there is a general rule, presumably of law, that adoption or endorsement is irrelevant; however, that rule is subject to exceptions.  The Court of Appeal said that this particular case was not one of the exceptions but, as we have pointed out in our submissions, did not say what the exceptions were.

GLEESON CJ:   But however you formulate the principle – that might depend on where you are coming from – it ultimately depends on the circumstances, does it not?  If I say, “The notorious liar, Bill Smith, was sent to prison for perjury”, the perjury consisting in giving evidence that X had broken the law and X sues for defamation, it is relevant to know, is it not, that the proposition that X had broken the law was introduced by all the matter that I added?

MR REYNOLDS:   Quite.  Obviously the question of what meanings are conveyed will always depend upon two things:  one, the circumstances and context of the publication; and second of all, what the matter complained of says.  That is what we are talking about where, when one looks at the matter complained of, there is no endorsement of the third party’s statement.          Now, one hesitates always of course to make a submission that includes the words “never” or “always”, but my submission is that where a defendant in a defamation case repeats a third party’s statement, it is always open to that defendant to point to the lack of endorsement or adoption as a matter which is relevant to whether or not the imputations are conveyed. 

Now, the principal special leave issue, we say, is the question of resolving which of these three lines of authority is correct.  As your Honours will have seen from the submissions, ultimately these three different interpretations stem from an analysis of Sir Samuel Griffith’s judgment in Ronald v Harper, and that was a case where Justice O’Connor agreed, so what the Chief Justice said constituted the majority reasoning.  That is the first general issue, is which of these three views is correct.  On one of them, of course, we lose.  On another of them, we win.  On the third, we may win, depending on what the exceptions are.

GLEESON CJ:   What was the actual publication here?

MR REYNOLDS:   There were three of them and they are in the application book at various points.  They seem to have been photocopied a number of times.  Conveniently though there are translations of them.  For example, at page 25 to 26 is one of the translations, and 28 to 29 is one of the others.

GLEESON CJ:   Thank you.

MR REYNOLDS:   So that is the first general issue, is which of these three views is correct.  Now, there are also some more specific subsidiary questions which arise other than the question of whether this is relevant or irrelevant.

GLEESON CJ:   I just would like to understand exactly how the issue or point arises in relation to this case.  Just take whatever you think is the best publication to make your point and show how this issue arises.

MR REYNOLDS:   Well, take pages 25 to 26.  My client, Mr Lee, is the publisher of the Korean News and pages 25 to 26 appear in Korean in his newspaper and they contain various passages which the plaintiff relies upon.

GLEESON CJ:   Is it convenient to take the contents of the auditor’s report?

MR REYNOLDS:   It is.

GLEESON CJ:   All right.  Well, the newspaper publishes the contents of an auditor’s report which reports that:

[the] auditors, were shocked that Mr Cha did not care about his public responsibility for his abusing the supporting fund for his private expenses. 

So a newspaper publishes that auditors have said that they were shocked about the way in which somebody used funds that did not belong to him.

MR REYNOLDS:   Quite.  So, pausing there, if I am not interrupting your Honour ‑ ‑ ‑

GLEESON CJ:   No.

MR REYNOLDS:   ‑ ‑ ‑ you would be entitled to say to the jury, “Well, what mainly arises from that, you will notice, members of the jury, that there is no statement in here by my client, Mr Lee, the publisher of the newspaper, endorsing that proposition”.  So just as it is ‑ ‑ ‑

GLEESON CJ:   I am not sure what that means.  If a newspaper publishes a report by an auditor that the auditor is shocked by the way in which somebody has used funds that do not belong to him, how would the newspaper go about endorsing that?  What, “We agree with the auditors”?

MR REYNOLDS:   Can I give your Honour the paradigm case where this comes up so it is perhaps clearer.  A newspaper article which says, “Mr Smith says Mr Brown is a thief.  We have spoken to Mr Brown.  He says that Smith is one of his enemies and that that allegation was raised in court and he was found not guilty”.  Now, if the newspaper says, “We endorse the proposition that Mr Smith is a thief”, obviously that is relevant on the question of whether or not an imputation that he is a thief arises.

We are talking about the obverse situation where, for example, there are two views put and you say to the jury – this arises all the time – “Well, members of the jury, what does the newspaper say about this?  It doesn’t adopt either view, and that is a matter which we say is relevant to whether or not the meaning the plaintiff is a thief arises.”

GLEESON CJ:   If counsel said to a jury in relation to what is on page 25, “The newspaper didn’t endorse what the auditors said”, my problem with that submission would be that it was unintelligible.  I would not know what was meant by it.

MR REYNOLDS:   Well, assume hypothetically that your Honour is a juror and I am trying to develop this proposition and your Honour is looking at me quizzically and I think, “Well, I’m going to have to explain to this juror why this is relevant”.  You would say, “Well, take a situation where the newspaper said, ‘We note what the auditors say about Mr Cha not caring about his public responsibility and we agree with that’.  Now, obviously, members of the jury, that would be relevant to whether or not the newspaper has made the imputation that Mr Cha did not care about his public responsibility.”

GLEESON CJ:   Or you could take an example where the newspaper said, “The auditors who made that statement have recently been struck off for improper conduct”.

MR REYNOLDS:   Quite, and that goes back to a paradigm example of where these propositions work.  Now, Justice McHugh discussed this proposition that I am articulating in the Rivkin Case and he pointed out that the lack of adoption is relevant to whether or not the meanings are conveyed.  It is simply the obverse.  You say, if we did adopt, then obviously it is easier to say that we have made that imputation.  If, on the other hand, we stand aloof from it and we do not embrace the proposition which comes out of the mouth of the third party that we are quoting, then that is a matter which you can put into the balance in determining whether or not the imputations are conveyed.  Now, I do not know where I go from there if the juror is still looking at me quizzically, but I respectfully suggest that that makes the point reasonably clear. 

Now, it is not only the question of whether it is relevant or irrelevant or whether it is irrelevant subject to exceptions.  There are a whole lot of associated issues.  One of the main ones is, if there is a general rule subject to exceptions, whether that is a matter of law or just what might be called a rule of thumb.

GLEESON CJ:   Is there anything in this article that casts any doubt upon the skill or the integrity of those auditors?

MR REYNOLDS:   I do not know that I have read these articles closely enough to say that, but I do not believe that there is.  We are talking here in one sense about a negative, that is, simply pointing out that the newspaper does not adopt what is said by these auditors in this particular publication.  One of the difficulties here, as I was saying a moment ago, is whether we are talking here about matters of law or fact.  The way the Court of Appeal have approached it, they have said there is a rule, clearly of law, and then ‑ ‑ ‑

GLEESON CJ:   One of the difficulties about defamation generally is a lot of propositions of fact masquerade as propositions of law.

MR REYNOLDS:   Quite.  With great respect, I would adopt all of that, your Honour.  One of the problems that has arisen is that in many of the cases, particularly during one period, issues of fact have been misdescribed as issues of law.  Now, this difficulty about whether there is a general rule of law subject to exceptions goes back to an analysis of what Sir Samuel Griffith said.  He said that is a very good general rule and then he continued on to say that adoption was relevant, but he also then, two lines later, said it is entirely a matter of fact.

Now, one of the problems, we suggest, with the Court of Appeal’s last two ventures into this area is that they have adopted this general rule as a general rule of law subject to exceptions and that is why they said in this particular case that the judge was entitled to discharge the jury.  So there are these three divergent views and then there are these uncertainties about whether it is a matter of fact or a matter of law and, if it is a matter of general rule subject to exceptions, what those rules are. 

Now, this issue, as I said opening my submissions, arises all the time in defamation cases.  As a matter of common sense your Honours would understand that because it will arise, at least potentially, wherever, for example, a newspaper or other media defendant refers to a statement by a third party which happened very, very frequently.  Ultimately, we go back to an interpretation of Sir Samuel Griffith’s remarks in Ronald v Harper and this has given rise to these various divergent views.

Now, what does the respondent say in response to that argument as we have put in our submissions?  Well, there is no dispute of course that there are these differing views, there is no dispute that Ronald v Harper in its interpretation would form a basis for special leave and the respondent does not seek to defend the difficulties which we have attempted to articulate in the reasoning of the Court of Appeal.  The only matters, as we interpret the submission, which the respondent points to are three issues as to why this case is for some reason an inappropriate vehicle.  The first matter they raise is they say that this question of adoption or endorsement can only be relevant in what we have called a bane and antidote case. 

Now, I said to your Honour the Chief Justice earlier that is probably the paradigm case for this sort of argument, and Justice McHugh did refer to that as an example in the Rivkin Case, but the problem with it as an argument is not only that it is being raised as a sort draft notice of contention – it is not in the Court of Appeal’s reasoning – but my learned friend refers to a couple of cases which we say simply do not justify that proposition and I have told him that we dispute it and I understand he is going to take your Honours to them.  More importantly, this case of Ronald v Harper, from which all this line of jurisprudence stems, was, on any view, not a bane and antidote case.  So my learned friend is going to have very substantial difficulty for that reason alone on that point.

Also, your Honours will have noticed from the application book at page 162 at about line 35 that Justice McColl refers to “exceptions”, plural, which assumes of course there is more than one exception, not just bane and antidote.  So that is my learned friend’s first point on why this is not an appropriate vehicle.  His second argument is that the discharge was, he says, supportable on another basis.  That too is a notice of contention point or draft notice of contention point because it does not appear to have been discussed by the Court of Appeal.

GLEESON CJ:   But a decision to discharge a jury is a question of practice and procedure, is it not – a discretionary decision relating to a matter of practice and procedure?

MR REYNOLDS:   Generally it is, but if I can just hand up to your Honours four copies of some extracts.  There is one very important exception to that principle.  If your Honours go to the back of those extracts to the case called Taylor v Edwards, if your Honours go to the second page of that – this is a judgment of the Court, not just of Justice Jacobs – I have highlighted a passage there where Justice Jacobs makes this point, that where there is discharge as a result of an alleged error of law, then that is not a case where the Court of Appeal has a wide discretion.  In other words, it is just a normal House v The King situation.  The issue is whether there was an error of law, and we say there was no error of law in counsel’s address and there should not have been a discharge on that basis. 

I am starting to run out of time.  Can I deal with these last couple of issues about inappropriate vehicle?  My learned friend points in his draft notice of contention, as it were, to a passage at application book page 79 at line 15 where my predecessor said in his address in relation to a particular exhibit, a particular publication:

It is signed by the auditors who, on the face of this material, plainly have no relationship with the newspaper.

Now, my learned friend says that that statement was unsupported by evidence.  The problem with it is all that my predecessor was doing there was talking about a matter of interpretation of the article, and your Honours will see the words “on the face of this material”.  That is the first point.  Now, we say that what he said was absolutely impeccable.  Secondly, and more easily, if that was a problem, it is very easily dealt with by a direction.

Your Honours, the final matter that my learned friend raises on the question of inappropriate vehicle is that he submits that my predecessor did not address the issue of whether the imputations were conveyed but, rather, some irrelevant issue.  If your Honours go to the first page of my extracts, your Honours will see a whole stream of passages where it is clear that the

whole of counsel’s address was directed to this issue of what imputations were conveyed.  The question is quoted in extract No 1.  Has the plaintiff established that the imputations were conveyed?  He says:

my address this afternoon will be directed to that question and the similar questions in relation to the other publications.

Point 2:

Mr Lee denies that . . . he made the imputations alleged.

Point 3:

My client, Mr Lee, submits to you, that the ordinary reasonable reader would not understand that Mr Lee was conveying the imputations.

Point 4 talks about whether the imputations are carried, where he is concluding his address; and finally, these are all said to be matters going to the issue of whether or not the imputation is conveyed.  With due respect to the respondent, we submit that that submission is just not open on the address made on behalf of my client. 

So, your Honours, a clear divergence of views on an important matter of substantive law and where the only three matters raised against us are issues of inappropriate vehicle, which we respectfully submit we have dealt with without difficulty.  Those are my submissions.

GLEESON CJ:   Thank you, Mr Reynolds.  We do not need to hear you, Mr Dibb.

The Court of Appeal of the Supreme Court of New South Wales dismissed an appeal from a trial judge’s decision to discharge a jury.  The trial judge was exercising a wide discretionary power and the Court of Appeal’s decision not to intervene is not attended by sufficient doubt to warrant a grant of special leave to appeal.  The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 11.44 AM THE MATTER WAS CONCLUDED