Mann v The Medicine Group Pty Limited

[1993] HCATrans 6

•

.

~

•

IN THE HIGH COURT OF AUSTRALIA

Registry No C24 of 1992

B e t w e e n -

ARNOLD MANN

Applicant

and

THE MEDICINE GROUP PTY LIMITED

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 FEBRUARY 1993, AT 12.13 PM

Copyright in the High Court of Australia

Mann 1 4/2/93

MR R.E. WILLIAMS, QC: If it please the Court, I appear for

the applicant. (instructed by Minter Ellison

Morris Fletcher)

MR B.R. McCLINTOCK:  May it please the Court, I appear for

the respondent.	(instructed by Abbott Tout Russell
Kennedy)

MR WILLIAMS: 

Your Honours, I take it that it is appropriate

in an application for special leave to hand up to
the Court a short outline of submissions?

BRENNAN J: It does no harm at all, Mr Williams.

MR WILLIAMS: Well, I do so, Your Honour. I previously

provided my learned friend with a copy.

Your Honour, there are four points. Points 1

and 2 are directed to establishing that the

approach reflected in the judgments from which

leave to appeal is sought is wrong, or at least at

odds with the English decisions in relation to

proving publication of an individual in group

libel. So it follows that if Your Honours accept

that argument, there being no authoritative

statement from this Court on those issues, it is a matter of importance that there be some definitive statement.

The speeches in Knupffer and Morgan suggest,

indeed urge, that an uncomplicated test be

maintained in relation to identification. That is,

that there be no gloss and no elaboration on first

principles. Thus, it is unnecessary to first

determine whether the class of persons subject to

the libel be determinate or indeterminate, or

whether it be a mass libel - whatever that may

mean - and, particularly in the circumstances of

the present case, there is no basis for a test

requiring a plaintiff to establish that the words

complained of were aimed at him or her as an

individual or point particularly to him and her.

Indeed, such a test was specifically rejected in

Morgan's case, though it is the test which

ultimately Mr Justice Wilcox failed the applicant

on in the present case.

My submission is this, that Mr Justice Miles approached the case correctly below. Having regard

to all of the facts, and not being unduly confined
to the words, His Honour held that the reasonable
reader, or the ordinary sensible reader in this

instance, was a reader with special knowledge, and

could reasonably conclude that the letter referred

to the plaintiff. That was all, we say, is

required by the English authorities.

Mann 2 4/2/93

The introduction of the concept of intention

is both an error and misleading. I appreciate it

is trite to submit that it is not necessary to

prove that a publisher intends to refer to a
plaintiff, but it does not·matter whether the
publisher knows of the facts which might cause

persons with special knowledge to connect the plaintiff with the words complained; indeed,

foreseeability is not even necessary. When

Mr Justice Wilcox says at page 38 of the

application book that there was nothing to suggest

the author of the letter had Mann particularly in

mind, His Honour, though not perhaps directly doing

so, is introducing in an indirect way the concept

of intent. We say it is an error. That is all I

wish to say about points 1 and 2, Your Honours, by

way of development.

BRENNAN J:  The real problem is that here you have got a

publication in general circulation, known to be in

general circulation, which speaks about a matter of

public debate. The real question, I suppose, to

put it another way, is whether this on its face was

defamatory of any individual.

MR WILLIAMS:  Yes, on the face of it the language is

intemperate and far reaching. I take Your Honour's

point, and there was much debate apparently below

about this issue, but what is said on the

applicant's behalf is this, that in this particular

case, suing in respect of publication in the ACT -

and I know that that does not take the sting out of

the argument that it was a very general publication

potentially capable of referring to a great many

people - the fact is that if one looks at the

special circumstances of the case, this publication

was read largely by general practitioners.

Within the ACT, the present applicant was a

person of some notoriety in relation to the

question of bulk billing. On those special facts

with the reader's special knowledge,
notwithstanding the fact that at first blush it
does not look like a defamatory statement - it is

one of those "all lawyers are thieves" type

examples at first blush - the fact is that when one

looks at the special knowledge of the reader in the

ACT and one applies the tests which

Mr Justice Miles applied in the Federal Court,

which we submit is the correct approach, the simple

test, one can conclude that a reader with special

knowledge would regard the plaintiff as being the

person referred to.

DEANE J: But is not the problem with Chief Justice Miles'

approach that he in effect applied the test as

if the publication was a publication directed to

Mann 4/2/93

the ACT? Take for example the hackneyed example

you have given: "All lawyers are thieves", if you

sued a defendant on the basis that in a one-horse

and one-lawyer town he had published the statement

that "All lawyers are thieves", it would be one

thing, but if it emerged that he had published that

statement in a national paper, it is quite a

different thing.

MR WILLIAMS:  Yes.

DEANE J: Perhaps I do Chief Justice Miles an injustice,

but, it seems to me, reading his judgment, that he

tends to concentrate on the ACT without paying due
regard to the fact that it was a national

publication.

MR WILLIAMS:  To take Your Honour's example, because it is

something I think one has to face in reading the

material, one accepts as correct that if someone

said of a professional, in a national publication,

"They are all thieves", or, "All doctors are

incompetent" or whatever - there is a difficulty

with the example Mr Justi..ce Miles gives. But if a

person nationally said, "All ear, nose and throat

surgeons practising, by themselves in small towns,

are incompetent", then Mr Justice Miles example

stands up, Your Honour. That is how we would put

it.

Mr Justice Wilcox takes the view, having read

Mr Justice Miles judgment in draft, that whilst the

plaintiff might have a case, I think His Honour

says, were the publication restricted to the ACT
and not directed to Australia-wide, the plaintiff

does not have a case for the very reason I think

Your Honour puts to me, that it is directed to too

many people. It is too intemperate and too wide.

But if one takes the example that I suggest, that

the publication, in its terms, is capable of

producing in the minds of the fair reader with

special knowledge, the plaintiff, then it can none

the less be defamatory, notwithstanding the fact

that at first blush it is too wide and distributed

to too many persons and potentially incapable of

harming anyone.

That is our case, Your Honours. We say that

we do have a hurdle in that an answer to our

complaint that the special reader in the ACT, with

special knowledge, will refer to Dr Mann, is

defeated by the fact that the publication is nation
wide, but we say none the less, if the appropriate

test, the English tests are applied, one does not

introduce any artificial tests about it being a

determinant or an indeterminant group, or having

words particularly pointing to the person, then it

Mann 4 4/2/93

is capable of being a defamation and it just turns

on the facts, and in this particular case the

person - the witnesses called, as I understand

them, were asked, "Who did your mind go to?"; the

usual question, and they said, "The plaintiff".

They were not cross-examined, as one reads the

judgments, about the fact that the article could

potentially have referred to 18,000 other doctors.

In any event, Your Honours, that is how we put it.

BRENNAN J:  The real problem is whether it is a question of

whether or not an article is defamatory of a

plaintiff in a situation of this kind really turns

on its own defence, does it not?

MR WILLIAMS:	Yes, Your Honour.
BRENNAN J:	However one puts the terms of the test, it is

going to be one that turns on its facts in the

circumstances of the case, and here you have got

the view of Justice Wilcox that whatever might be
the situation that is published in the ACT, looking

at this publication Australia-wide, it cannot be

said to have been defamatory of the plaintiff; not

the plaintiff could not have been identified but

not defamatory of him.

MR WILLIAMS: 

But when Mr Justice Wilcox comes, ultimately,

to decide that, at application book 37 and 38,
His Honour says at the foot of page 37, and this is

the special leave point, not the question of which
way the fact finder could have gone, His Honour
says, five lines from the bottom of 37:

In short, the argument that the letter particularly refers to Dr Mann depends

entirely upon the fact that some Australian
Capital Territory readers applied a general,

Australia-wide statement to a prominent local bulk-biller. That they did so is natural but

their action does not arise out of anything in

either the letter or the circumstances of its

publication. There is nothing to suggest that

Dr Mackey had Dr Mann, or even Australian

Capital Territory bulk-billers generally,

particularly in mind when he wrote the letter.

Our complaint, and one of our special leave points

is that His Honour introduces into that concluding

test the words "particularly" - - -

BRENNAN J: And the words "in mind".

MR WILLIAMS:  Yes, and we say that His Honour

Mr Justice Miles sitting in the Federal Court did

not apply that test, came at it from a different

perspective, the perspective which we say is the

Mann 4/2/93

correct approacH;· and produced a separate result.

That is what we say is the first of the special

leave points, and the second, which I shall not

repeat, is the fact that certainly the trial judge

seems to have introduced the question of intention

which seems to arise from a misunderstanding on the

part of the Western Australian judge at first
instance as to what Lord Atkin was saying in his

speech in the House of Lords in Knupffer's case.

We say that is a special point because this

Court having, so far as we can tell, not previously

dealt with a publication for an individual in a

group libel action, would want to correct. But

Mr Justice Wilcox refers to the uncertainty when he

says - I know I cannot rely too much on this but in

the appeal book at page 34, Mr Justice Wilcox says

whatever the High Court might say about it, I think

this is it and we say that - - -

DAWSON J:	You do not really dispute the test which he applies, do you? You say, the ordinary - the
statement refers generally to bulk biller~, but
that is not enough in order for the plaintiff to
succeed. It must, in particular, be understood by
the ordinary reader as referring to him.
MR WILLIAMS:	We do dispute his test in a sense -
DAWSON J:	How do you dispute that?
MR WILLIAMS:	We dispute the fact that His Honour uses the

words "or adopts a test which requires the

plaintiff to prove that the words point

particularly to him".

DAWSON J: But we understand it stood as referring not only

generally to bulk billers, but in particular to

him.

MR WILLIAMS:  We say that is not the correct test,

Your Honour.

DAWSON J: 

What do you say is the correct test?

MR WILLIAMS: 

We say the correct is that, if the reasonable

reader with his or her special knowledge understand
the words to refer to the plaintiff, that is

enough.

DAWSON J:  But, that is exactly the same thing. The

reasonable reader would certainly understand the

words as referring generally to bulk billers, would

he not?

MR WILLIAMS: Yes.

Mann 6 4/2/93

DAWSON J:	And that is not enough?
MR WILLIAMS:	No, certainly not.

DAWSON J: Something more is required and that is that the

reasonable reader, in addition to the general

application of the words, would understand them to

refer in particular to the plaintiff.

MR WILLIAMS:  The difficulty is, they are the words "in

particular", and in Morgan's - - -

DAWSON J:	But the plaintiff is particular.
MR WILLIAMS:	If the reasonable reader would understand that

the plaintiff is a person referred to, that is

enough. There is nothing required - - -

DAWSON J: There is nothing in what Mr Justice Wilcox says

which is to the contrary.

MR WILLIAMS: Perhaps I take the word, Your Honour, or the

concept of the words "in particular" - perhaps I

give them a greater meaning than His Honour is.	In
Morgan's case, in the House of Lords, the Court of

Appeal proposed a test that there must be some key

or pointer in the article that is self-indicating

that it refers to the plaintiff.

DAWSON J:	To a particular person, that is all.
MR WILLIAMS:	Such a test was rejected in the House of

Lords, Your Honour. Lord Reid said that he rejects

the argument that the appellant must fail because the respondent article contains no pointer or peg for his identification.

DAWSON J:  No. But if once you say that the mere fact that

the words have general application is not enough,

you must - or if the plaintiff is to succeed - have

some other test and that is it must refer to the

plaintiff as a particular person, it must be

understood, and that is all Justice Wilcox said,

and you say these words did refer to, and would be

understood as referring to the plaintiff in

particular as a bulk biller.

MR WILLIAMS:	In the special context of the said facts.
DAWSON J: Yes.

MR WILLIAMS: Well, Your Honours, I may be reading into

Mr Justice Wilcox's use of the words "in particular" more than is necessary, but our

submission is that when His Honour uses those

words, he is really seeking to get out of the words

complained of some pointer or some peg in the words

Mann 4/2/93

themselves which associate the plaintiff with the

words and we say that is too high a test; that test

contravenes the test or is contrary to the test

laid down in the House of Lords.

DEANE J: But ultimately, when you read the words of this

statement, it says, in effect, all bulk billing

doctors are unethical and crooks.

MR WILLIAMS:  Yes.

DEANE J: Well now, I understand the forensic effectiveness

of saying the plaintiff is an enthusiastic bulk

biller and believes in it and promotes it, but in

terms of what the statement said, why does it

identify him in a particular way, in that it refers

to every doctor who bulk bills whether

enthusiastically or otherwise?

MR WILLIAMS: According to the evidence of the facts as

found by the trial judge, in the ACT the

publication went largely to general practitioners.

DEANE J:	I tollow that.
MR WILLIAMS:	One could imagine that one general

practitioner would not know whether the next

general practitioner bulk billed or not, but the

evidence established that - - -

DEANE J:  I think that he would have a pretty good idea, I

would think.

MR WILLIAMS: Well, I do not know whether, from one suburb

to another or one practise to another, perhaps they

would, I do not know, Your Honour, but what the

evidence did establish was that Dr Mann was the

only specialist who bulk billed, an important

matter for Dr Mann having regard to the fact that

his work is going to come from general

practitioners, that he was a vocal proponent of the
bulk billing system and that he advertised himself,

which is apparently an unusual step, as a bulk

biller. So it is not surprising, as Mr Justice

Wilcox says, that when the reader in Canberra with

that special knowledge reads the article that their

minds would go to Dr Mann.

We say the test is enough if armed with that special knowledge, the reasonable reader would

refer to Dr Mann as being a person to whom the

article refers, a_nd we say that we never got to

that consideration. At least only one of the

judges who considered this matter below got to that

consideration, because the other approaches were

incorrect on the authorities. Or at least based

upon authorities which seemed to introduce concepts

Mann 8 4/2/93

of tests involving whether groups are determinate or not, and issues about pointers and pegs in the

words themselves, and questions of intention on the

part of the publisher.

DEANE J:  I see the force of what you put. If I might say

so, you put it very well. But, does it not

ultimately come down to this really, though, that

in the context of the circumstances of the
circulation of this national publication, the
reader would think that this intemperate statement

applied to the doctor or the doctors he happened to

know who bulk billed, and the plain fact is that

your client was somebody that more readers would be

likely to put into that category because of his

high profile.

MR WILLIAMS:  I cannot shirk from that, and we say that is

enough.

DEANE J:  I appreciate that, but if that is what it comes to

- well, I appreciate the way you put it, yes.

MR WILLIAMS: Well, Lord Porter in Knupffer's case could

envisage examples where each member of a body, a

very large body, may be defamed if the defamatory words were sufficient to fill the tests that were

laid down about the reasonable reader.

DEANE J: Well take the extreme case where some intemperate

person says, "Every member of the X political party is a dishonest crook", you would have to say, would you not, that all the members of Parliament of that

particular party would have a pretty good cause of

action, and the Prime Minister, if he happened to

be a member of that political party, would be home

and hosed?

MR WILLIAMS:  No, Your Honour, I would not say that, because

the extravagance of the language and the knowledge

of the special reader are always going to be

factors that will limit or shut out a potential
plaintiff.	We would say that in the extreme

examples, the extravagance of the language or the

lack of special knowledge will shut them out. We

say this is not such a case, even though on its

face, at first blush when one reads the first few

pages of the judgment and ascertains that there are

18,000 bulk-billing doctors and this document is

published nation-wide, at first blush one thinks it

is too wide and it is too intemperate and it cannot

be defamatory of anyone, but we say not given the

special facts of this case.

DAWSON J: But you really have to say that the ordinary

reader would take this particular article as not

Mann 9 4/2/93

only saying that bulk billers are crooks but as

saying that Mr Mann is a crook.

MR WILLIAMS:  Yes, and we say that is what the evidence

established.

BRENNAN J: That is ultimately a finding of fact.

MR WILLIAMS:  That is so, yes. The reason why

Mr Justice Miles came to one view and then the

trial judge and Mr Justice Wilcox came to a

different view, we say, is because of the different

approaches in principle to the question of whether
or not the person is defamed in a group libel.

That is our special leave point, but I understand

what Justice Deane is putting to me. His Honour is

putting to me that whilst that might be right, this

might not be the vehicle to ventilate it. Perhaps

His Honour is saying that to me. I simply put that

if one looks at the facts of the case, the special

facts which Mr Justice Miles concentrates on and

does not seek to get the defamation out of the

words, which is the correct approach, the case is

not a weak one - certainly an arguable one. I

cannot assist Your Honours further on points 1

and 2.

Points 3 and 4 simply come down to this. The

reasoning of Mr Justice Wilcox as to the philosophy

underlying the "restrictive approach" to group

libels is clearly at odds with the House of Lords;

the size of the class. Your Honours will recall at
the commencement of Mr Justice Wilcox's judgment he

makes some general comments about the philosophy

behind the court's approach to these actions.

The size of the class, the amount of the

damages bill could never be, we would submit, a

consideration in determining the question of

whether or not a defamation was published of an

individual in a group libel.

We say that observation, coupled with the

other considerations about which I have already

made some submissions, and do not want to repeat

myself, is the special point; a matter of

sufficient interest to warrant the intervention of

this Court. As I think I put before, there are
examples in the House of Lords' decisions whereby

Their Lordships are prepared to concede that there

might be very large group libels, just depending

upon the words and the circumstances.

Point 4, which is really not a separate point but part of the general question of importance of

group libels and the necessity to have the High

Court say something about them, can simply be

Mann 4/2/93

summarized that it is a matter of public importance

to determine the extent to which the individual
member of a defamed group might be permitted to sue
because, potentially, group libels are a very

serious problem, without going into even recent

history. Those are my submissions.

BRENNAN J:	We need not trouble you, Mr McClintock.
MR McCLINTOCK:	Thank you, Your Honour
BRENNAN J:	The Court is of the view that in the

circumstances of this case an appeal would not

enjoy sufficient prospect of ultimate success to

justify a grant of special leave. Accordingly,

special leave will be refused.

MR McCLINTOCK:  I seek an order for costs, Your Honour.

BRENNAN J: It will be refused with costs.

AT 12.44 PM THE MATTER WAS ADJOURNED SINE DIE

Mann 11 4/2/93