Malouf v Prince

[2014] HCATrans 203

[2014] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S43 of 2014

B e t w e e n -

JOHN JOSEPH MALOUF

Applicant

and

STEPHEN THOMAS PRINCE

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2014, AT 10.02 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.T.S. DAWSON, for the applicant.  (instructed by McCormicks Law)

MR D.F. JACKSON, QC:   If the Court please, I appear with my learned friend, MR P.D. HERZFELD, for the respondent.  (instructed by Walters Solicitors)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, after exhaustive examination of the facts concerning a complaint sounding in defamation as to a number of different publications by one surgeon about another, the trial judge concluded by finding on some of those publications liability sounding in substantial damages.  The Court of Appeal has relevantly reversed that finding, although simultaneously adding a rather less substantial sum of general damages on account of other publications by dint of an approach to the ascertainment whether the publication in question was on an occasion of qualified privilege.

FRENCH CJ:   Now, we are looking here simply at the letters to the patients and the question of post‑operative care?

MR WALKER:   Yes.  Well, the letters to the patients with a particular focus on post‑operative care, yes.

FRENCH CJ:   Yes.

MR WALKER:   It is our submission that the approach of the Court of Appeal obviates or fails to carry out what this Court, following the lead given more than a century ago in England and Wales, required by way of a close scrutiny of the facts of the case and its circumstances in order to answer the question about public policy.  Let me emphasise it is at the most general level of social normative judgments that the question of policy is framed, but at the most particular level specific to the case and the parties and their dealings that the question whether policy requires privilege or not is to be answered.

FRENCH CJ:   That embeds this case in particular circumstances?

MR WALKER:   Unquestionably.  Unquestionably, the principle of law does.  It is not possible to say that you can approach this question in any abstracted fashion.  It must be rooted in an appreciation of the particular facts, and that is where we say an error worthy of a grant of special leave and this Court’s attention is justified because of the approach taken to a matter which, as we have put it in our written submissions, might be seen as a bare minimum of decent behaviour before allegations of this kind in this kind of milieu should be voiced, and that is such inquiry as the circumstances of the case permit to be carried out.

BELL J:   There seems to be some issue about the extent to which it may be said there was inquiry, so there is a factual issue as between the two of you, so it would seem.

MR WALKER:   It is recorded in various junctures of the Court of Appeal’s reasons.  I illustrate without needing to take you to it what is said early in the reasons at application book 129, paragraph 26, but one will find similar matters by reference to page 167, paragraph 150 as well.  That is not exhaustive but they, with great respect, make good what Justice Bell has raised with me. 

However, what one does not have as a way of consigning this case to simply a matter involving its own detailed facts raising no matter of principle is, first, that the Court of Appeal does not hold – emphatically does not hold – that this was a case where reasonable inquiry was made.  That would be an easy finding to have recorded.  It would have refuted completely an argument upon which issue was strenuously joined before the Court of Appeal, and is not found in the Court of Appeal.  That puts paid to that first answer.

The second kind of answer would be to say that this was not truly at issue before the Court of Appeal.  Now, I am not going to take your Honours to the references.  You will have seen them in our written submissions in reply in the application book, in reply to what I would characterise as the remarkable volte‑face practised between the Court of Appeal and this Court in relation to the proposition which is at the heart of our application. 

Now, that proposition, as your Honours know, is whether or not it was appropriate to consider the question of inquiry for the anterior and fundamental concept of whether there was an occasion of qualified privilege at all, that is, whether the particular facts were such that an appreciation of the requisite policy required there to be, or not, the privilege accorded.

We know, of course, that that matter is de rigueur to be considered in relation to a posterior issue which is malice, which is not an issue before this Court.  That is why, in our submission, this is an important matter of principle, because in our submission the same matters that factually go to a quite distinct concept – malice – by dint of the relevance they bear to that issue, are also right in the heartland of the anterior question raised by the public policy that there are, according to the best interests of society, occasions when it is better that there be an immunity for that which is damagingly spoken or written, than that there be liability.

FRENCH CJ:   Do you cavil with the proposition - I am extending here slightly, or interpolating or perhaps interpreting the words of the court at 164 in AB 171 with the proposition that “a failure to make inquiries does not” necessarily “preclude a finding that a publication was made on an occasion of qualified privilege”?

MR WALKER:   Your Honour has gone to the very sentence I was about to go to, and by inserting the word “necessarily” to point up a possible reading, that is right at the heart of this application.

FRENCH CJ:   What is your answer to my question?

MR WALKER:   The answer is that when you put that together with paragraph 216 and read together, very plainly in response to arguments before it, the Court of Appeal was declining to consider the lack of reasonable inquiry for the anterior issue of occasion.  Of course it is of the essence of a relevant consideration that, given due weighting according to the close scrutiny of particular circumstances, it would be easy to invent a hypothetical case where a failure to make inquiry – I will do away with the epithet “reasonable” – a failure to make inquiry by dint, for example, of previous dealings, unfruitful dealings between parties or parties and potential sources of information, would make it absurd to posit that that presented a bar to a finding of occasion.  That is not this case at all; to the contrary.  For the very reasons that Justice Bell has pointed out, the facts do not suggest that there was an impossibility of inquiry.

FRENCH CJ:   There was some factual base for a concern about post‑operative care identified, was there not?  That was the conversation with the respondent’s wife.

MR WALKER:   Yes, but that does not go to questions of inquiry.

FRENCH CJ:   No, but I am talking about a base for the concern which is expressed in the letter to the patients, and there had been inquiries from patients I think, had there not?

MR WALKER:   Therefore the bald but telling statement by us that there was no defence of truth is highly significant.  We are here talking about matters of inquiry, what could have been found out, what should have been done, in order to give rise to the reciprocal duty and interest or, on a more conceptual basis, the social purpose and policy to be advanced in immunising a wrong statement, a wrong and damaging statement, from liability.  That was the issue.

BELL J:   You disavowed use of the word “reasonable” a few moments ago.

MR WALKER:   In that last example, yes.

BELL J:   You speak of fairness and decency.  How does that fit with the statements of principle in Papaconstuntinos?

MR WALKER:   Papaconstuntinos does not to any degree – and I may have misunderstood your Honour’s question, I hope not – does not to any degree remove normative elements from the inquiry as to whether this is an occasion of privilege.  Indeed, they are the essence of it, in a sense.  It is certainly the case we do not seek to raise - if this is a concern, we certainly do not seek to raise that after there is an occasion there still may be liability by applying some standard of so‑called reasonableness to the utterance on the occasion.  We are not interested in that at all. 

I emphasise we are talking about the failure by the court to either find factually there had been such efforts in the direction of inquiry as was necessary to render this appropriate as a matter of duty with correlative interest for the utterance to be made, though false and damaging; that is the first thing.  Second, we say because when one looks at paragraph 164, particularly the sentence that the Chief Justice drew to attention – page 171, line 15 – and puts it together with the passage that you will have seen, as I say, at paragraph 216 on page 187, which firmly puts the matter into the quite distinct issue of fraud, that there has been a failure to take into account a matter which was preternaturally relevant; could not be said on the facts of this case to be irrelevant, even though one might imagine or hypothesise cases where it would be rendered a dead letter.

FRENCH CJ:   You might disagree with the court’s response to the particular facts but, just putting into a hypothetical for a moment, if you have a defamatory letter written on the basis of information which has come to somebody which generates a concern that you may say is insufficient or otherwise, a judgment may be made that qualified privilege will apply, notwithstanding the lack of any subsequent inquiry.  In other words, the background information which has come from some external source may be a sufficient launching pad for the privilege, may it not?

MR WALKER:   There is no doubt that, depending upon how the close scrutiny reveals all the relevant facts and circumstances, there is no doubt that there will be cases where the fact of no inquiry – that is where I need to take out the epithet, because that would certainly be where it was not reasonable either to make or persist an inquiry - if the circumstances reveal that, then the fact of no inquiry could not obviously be such as to defeat the finding of an occasion.  We accept that, but that is not this case for the reasons I have already put, it is certainly not this case.  It was not found that it was unreasonable or contrary to the public policy involved in descrying the occasion or not for there to have been inquiry.

Now, we know that it was put at that level of irrelevance by reason of the arguments that we have extracted and quoted from in our amended reply submissions starting at 228 of the application book.  I will not go to all of them.  It will suffice to note what is found on that page at line 35 in the last quote.  It was crystal clear that the issue as presented to the Court of Appeal and, we say, decided properly understood those two passages I have gone to - decided by the Court of Appeal was that the question of what is there called “adequate verification or inquiries” does not go to the existence of the occasion of qualified privilege.

That is what was put, and that was successful in the sense that the facts concerning so‑called verification or inquiries, which was certainly not found favourably to the defendant, notwithstanding those facts, there was no further consideration of them except insofar as our unsuccessful appeal in relation to malice was concerned.  So it is in that way that the issue from what is no doubt a large record of factual issues, most of which are now defunct, that is, no longer live - it is in that fashion that very clearly there is raised a matter which goes to the heart of the social importance of this answer to liability.  In our submission, this decision presently stands for the proposition that you look at it for malice - well, yes, everybody realises that – but you do not look at it for the question of the occasion.

FRENCH CJ:   It does not say you do not look at it.  It says you do not have to look at it in particular…..does it not?

MR WALKER:   Certainly they did not look at it in this case.

FRENCH CJ:   No.

MR WALKER:   The circumstances in this case not amounting to what I will call factual dispensation of a duty of inquiry.  That is nowhere found by their Honours.  They do not find that there was inquiry made of a requisite kind and they do not find that the circumstances in their peculiar specifics dispensed from any such need.  They do not find that, and that is why, putting it all together, we have here a decision which says something which is obviously central to questions of what I will call decent dealing - that is why it is relevant to malice, after all – did not need to be looked at.  In other words, the argument in all its extravagance that one finds recorded at 228, line 35, was successful.

BELL J:   Just in terms of the principle that you wish to have the Court pass on, if one goes to Papaconstuntinos at 554, paragraph 49, where the statement of Justice McHugh in Bashford is endorsed, what is it that you seek to have the Court say?

MR WALKER:   It is not different.  No, your Honour, it would not be different.

BELL J:   So that it is in this instance you say there was a failure to examine the circumstances with sufficient care?

MR WALKER:   Yes, that is why I referred earlier to the more than a century of required close scrutiny of the circumstances.  I cannot say that – we are not trying – we are not offering the need to take some incremental step or to shine a jurisprudential light where presently there is darkness.  We are asking for correction of a misstatement and, we submit, egregious misapplication of principle by the Court of Appeal.  We are certainly not asking for a change. 

Indeed, your Honours will have seen application book page 214, lines 15 and following, that we call in aid a statement which is nearly 100 years old, precisely because we submit that that sets out in robust terms exactly what should have been done, and which this Court has consistently, at least in general terms – has consistently said there is no decision in terms in this Court which has ever addressed the issue as starkly as that raised by the argument, which obviously succeeded against us, put below by the defendant.

Now, there is a reason for that because, in our submission, that was a novel submission.  It was unsupported in principle and, we submit, properly understood, bereft of any support in an authority on that point, because, I repeat, the boldness of that position is very considerable, that it is not relevant to consider the question of inquiry or so‑called verification when considering whether this was an occasion where there was a duty for the person who ex hypothesi had not inquired, to speak, again ex hypothesi, falsely and damagingly. 

FRENCH CJ:   I am sorry, where did the court say that inquiry was irrelevant to ‑ ‑ ‑

MR WALKER:   No, that was an argument of the other side.  The two passages ‑ ‑ ‑

FRENCH CJ:   I am just looking at the first ground in the notice of appeal.

MR WALKER:   It is the combination of the two passages, 164 and 216, which makes that proposition emerge from the decision of this case.  Once one has eliminated any finding that there had been inquiry, once one eliminates the notion that there could not be or need not be, that is, or a dispensation from inquiry, then one is simply left by the combination of 164 and 216 relevant to malice but not precluding a finding of occasion, that it has been left out of account, and there is no other consideration of lack of inquiry on the question of occasion at all.  The height comes in 164, and that is why we say in our grounds that this amounts to treating it as irrelevant – treating it as irrelevant.  May it please your Honours, that is the issue we seek special leave for.

FRENCH CJ:   Thank you, Mr Walker.  We will not need to trouble you, Mr Jackson.

This application for special leave has emerged at the end of a litigious process which has been extended out of all proportion to the matters in issue.  The applicant, a medical specialist, seeks leave to appeal against the decision of the Court of Appeal of New South Wales in relation to its finding that a defence of qualified privilege applied to defamatory letters sent by the respondent, another medical specialist, to patients to be operated on by the applicant.  It is said that the Court of Appeal erred in treating, as irrelevant to the defence of qualified privilege, the respondent’s failure to inquire about the truth of the allegations of the likelihood of inadequate post‑operative care being provided by the applicant.

In our opinion, the questions which the applicant seeks to agitate are embedded in the particular circumstances of this case in such a way as to render it an inappropriate vehicle for the grant of special leave.  Special leave will be refused with costs.

AT 10.21 AM THE MATTER WAS CONCLUDED