Mizikovsky v Queensland Television Limited ACN 009 674 373 and Ors

[2014] HCATrans 21

[2014] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B22 of 2013

B e t w e e n -

LEV MIZIKOVSKY

Applicant

and

QUEENSLAND TELEVISION LIMITED ACN 009 674 373

First Respondent

TCH CHANNEL NINE PTY LTD ACN 001 549 560

Second Respondent

GENERAL TELEVISION CORPORATION PTY LTD ACN 004 330 036

Third Respondent

SWAN TELEVISION AND RADIO BROADCASTER PTY LTD ACN 008 689 745

Fourth Respondent

NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407

Fifth Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 14 FEBRUARY 2014, AT 12.52 PM

Copyright in the High Court of Australia

____________________

MR T.K. TOBIN, QC:   May it please the Court, I appear with my learned friend, MR M.D. MARTIN, QC, for the applicant.  (instructed by Mills Oakley Lawyers)

MR B.R. McCLINTOCK, SC:   May it please the Court, I appear with my learned friend, MR P.J. McCAFFERTY, for the respondents.  (instructed by Thynne & Macartney Lawyers)

CRENNAN J:   Yes, Mr Tobin.

MR TOBIN:   Your Honours, this application raises a question of the interpretation of section 26 of the uniform Defamation Act. It is, as I would apprehend it, one, if not the first, appellate level discussion of the principles of interpretation of section 26 which is the section which makes a complete defence to a libel that of statutory contextual truth. Statutory contextual truth gets around, if I can use that term, the limitation that a partial justification could never be a complete answer to a suite in defamation.

The appeal judgment, beginning at 52, summarises the factual background. This was a trial by jury. The jury answered 16 questions framed by the learned trial judge. As a result of the answers to question 6 which dealt with the section 26 defence, the plaintiff lost. So the plaintiff, the applicant here, contends that the jury was misdirected in two aspects of the section 26 defence. The first aspect of it was that ‑ if I could take your Honours to the text at page 53, lines 10 to 20, the text of section 26 state:

“It is a defence to the publication of defamatory matter if the defendant proves that –

(a)The matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (contextual imputations) that are substantially true; and

(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”

Now that text from the statute gave rise to this dispute.  In the course of the trial, when her Honour was framing the questions to go to the jury, on behalf of the applicant, I requested her Honour to include a specific question to determine whether the jury was of the view that the contextual imputations as pleaded by the defendant were defamatory, defamatory in the sense that the plaintiff’s imputations had been held to be defamatory, and that test is the test in Reader’s Digest v Lamb that Sir Gerard Brennan outlined, whether it would be a publication likely to cause reasonable, I think they say often right minded members of the community in general, to think the less of the plaintiff.

CRENNAN J:   I thought the subject matter of the appeal can be understood by looking at paragraph [45] on application book 24 and that was that your first complaint anyway was that the jury should have been asked:

to decide whether or not the contextual imputations, if conveyed, were defamatory.

MR TOBIN:   Yes, your Honour, yes.  One would think – reading in part the judgments in the Court of Appeal – that the need to have a defamatory contextual imputation was below the surface, not expressed by the Court of Appeal but somehow assumed to have percolated into the deliberation of the jury.

CRENNAN J: Judges have said from time to time that the whole point of section 26 is to have a further defence by reference to defamatory imputations not sued upon.

MR TOBIN:   Yes, your Honour, yes. Your Honour has put to me what would be the classic position that had been adopted from 1974 when the first statutory reform was introduced – this defensive contextual truth in New South Wales. The difficulty seems to us to have arisen by an unwillingness of the court to interpret section 26(a) so that the contextual imputations are understood in that subsection to be defamatory. It says:

(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations . . . that are substantially true –

Now, the Court of Appeal said ‑ ‑ ‑

CRENNAN J:   May I just interpolate, Mr Tobin, and raise a practical issue?  In the applicant’s written submissions at paragraph 33 to be found on page 85 of the application book – and this goes to, well, even if there is no prejudice, there should be special leave granted.

MR TOBIN:   Yes.

CRENNAN J:   The last sentence of the paragraph says:

The jury was able to take into account non‑defamatory contextual imputations –

This is the consequence of your complaint about the question.

MR TOBIN:   Yes, yes.

CRENNAN J:   Then looking, if we may, at page 15 of the application book, at paragraph [6], as I understand it – and correct me if I am wrong – the contextual imputations (b), (d), (e) and (f) were those found to be true.

MR TOBIN:   Yes, your Honour.

CRENNAN J:   Well, the practical question is this.  Is there not a sting in all of those, Mr Tobin?  In other words, is it not a rather abstract proposition in paragraph 33 of the written submissions?

MR TOBIN:   Yes.  Your Honour, the way I would answer it is as follows.  The jury had to decide whether in its opinion, we say, these contextual imputations were defamatory applying the test in Reader’s Digest v Lamb.  Now, the appeal courts are enjoined by, among other things, the judgment of Sir Owen Dixon in Balenzuela, not to trespass on the province of the jury where the determination is in the hands of the jury as to whether, as a matter of fact, these imputations are defamatory.

CRENNAN J:   I do not think you have answered me about where ‑ is there not a sting in all of those.

MR TOBIN:   There is a sting, yes, there is, but they are not necessarily defamatory.  I think one of the appeal judges, if I can just pick this up ‑ ‑ ‑

CRENNAN J:   You see, Chief Justice Spigelman in Blake’s Case makes the point that the drafter of section 26 assumes there is an injury from the contextual imputation.

MR TOBIN:   Of some kind, yes.  Could I take your Honour to [6](d) to answer the question ‑ on page 15, paragraph [6](d)?

CRENNAN J:   Yes, certainly.

MR TOBIN:   This was in dialogue in the Court of Appeal in Brisbane:

the plaintiff was the boss of a building company that offered little care or compassion for the plight of its upset customers –

His Honour, perhaps thinking aloud, asked the question whether there would be understood to be an obligation upon a company to offer care and compassion.  Clearly, it would be an obligation, one would think, that would be a requisite of an individual, perhaps as an individual running the company.  But it is not clear from this, other than that the plaintiff was the boss of such a company.  There is no suggestion in the pleaded imputation that he lacked the compassion.  It was simply that because he was the boss of the company that this was defamatory of him.  That is a very good example in the question from the judge of appeal as to what would be the jury’s task in determining whether this was defamatory of the plaintiff, whether this imputation ‑ ‑ ‑

CRENNAN J:   Did not the jury find a somewhat similar imputation pleaded by the plaintiff, (c) at the top of page 15, was substantially true?

MR TOBIN:   Imputation (c) was not competent.  Was that the one, your Honour?

CRENNAN J:   Yes, I just mean the rubric is the same:

the plaintiff was boss of a building company –

MR TOBIN:   Yes, that is so, your Honour.  But the other formulae, the plaintiff had caused financial loss or the plaintiff had misled customers, they are personal.

CRENNAN J:   Yes, I see that.

MR TOBIN:   Your Honour, what we contended for before her Honour and on appeal was that this is quintessentially a jury function.  I know this is perhaps a bromide, but the courts return to the theme that this is a constitutional function of the jury.  In answer to your Honour’s question, Sir Owen Dixon in Balenzuela, which we have referred to in our written application book, makes the point very clearly that appellate courts must be very careful not to insert that court’s view of the facts as they “should be” for the function of the jury if it is charged with that task.  In the legislation, your Honours will see section 8 of the Act and section 22 deal with the jury function.  It is quite a significant and important – the role of the jury, in subsection (2):

is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised . . . has been established –

Now, that is a particular identifiable function, the publication of the defamatory matter, and we know from cases such as Reader’s Digest v Lamb and the invariable practice of the courts that that is a two stage question defamatory matter, whether the meaning is conveyed and, secondly, whether that meaning as conveyed, or the sting, is such as to cause ordinary decent members of the community to think the less of the plaintiff.  Reader’s Digest v Lamb, and especially the judgment of Sir Gerard Brennan, analyses very closely the task of the jury in ascertaining as a matter of fact a common community standard with regard to any alleged defamatory imputation.

So the task is for the jury to determine what is the common community standard, and in this case what would be the common community standard in the community where the publication occurred in Queensland and where the business of the plaintiff took place.  That function, as Sir Owen Dixon alerts appellate courts to, should not be usurped.

What we have contended, your Honours, is that her Honour excluded from the jury consideration that which it was entitled to consider:  is this defamatory according to the community standards, as we perceive them to be, as a matter of fact – not whether it is defamatory in the eyes of the jurors.  It is not a subjective test of the four jurors or the six jurors to come to a view of whether it would cause them to think the less of the plaintiff, but whether the utterance of the words would cause the ordinary decent member of the community to do so.

The second thing that Sir Owen Dixon warns of in Balenzuela is the tendency to the reluctance to find a substantial wrong or miscarriage.  He points out that a substantial wrong would be the deprivation of the jury of the task that had been allotted to it under the statute.  These cases are not assisted really by the ‑ ‑ ‑

KEANE J:   In a case where the party complaining of the error has suffered a disadvantage.

MR TOBIN:   Yes.

KEANE J:   I understand this is an important statute.  What I am struggling to see is where is the disadvantage that your client has suffered that could produce ‑ ‑ ‑

MR TOBIN: We lost on the section 26 defence. The plaintiff ‑ ‑ ‑

KEANE J:   How was the direction that was given – how was it apt to disadvantage you?

MR TOBIN:   Instead of the jury being invited – as they had been with regard to the publication of the defamatory imputations the plaintiff complained of ‑ instead of being invited to assess that by an objective community standard, her Honour said simply words to the effect that it would have a negative impact.

In other words, what her Honour decided to do, based largely upon Besser’s Case which your Honours would have seen in the application book, what her Honour decided was that she would not, as it were, follow the well‑worn path of looking at the imputations and whether they were defamatory, but would look at it in the way that Chief Justice Spigelman had done in Besser’s Case, the overall facts which establish the truth of the proposition.  To answer your Honour again, where her Honour and the Court of Appeal said that there were matters:

so serious and so negative that, because of them –

and I am reading from [53] on page 27 of her Honour –

because of them, publication of the defamation alleged by the plaintiff did not further harm the plaintiff’s reputation.

So instead of postulating, as we would suggest should have been done for the jury, an objective community standard, her Honour simply said that these were matters so serious and so negative that the publication of the defamatory imputations complained of by the plaintiff did not further injure that person’s reputation. Put simply, this is not a test known to the law of defamation. It is only, we would submit, only permissible – her Honour can only be upheld if her interpretation of section 26 is correct. That is, if she is right that you do not need to have the publication of defamatory contextual imputations, simply contextual imputations that can hurt the plaintiff’s reputation, but not defamatory in the sense that Reader’s Digest v Lamb has established.  If her Honour is right about that, then I would have to answer your Honour Justice Keane’s question differently.  I would have to say, well, on that view of it, perhaps it would not matter.

CRENNAN J:   Are you suggesting that the true contextual imputations which are not defamatory must be taken out of the scales on the defendant’s side of the equation, as it were?

MR TOBIN:   No, your Honour.  No, what we – where we see the mischief is that the preliminary task of the jury in determining what contextual imputations they will put into the pot was vitiated by the fact that the jury was not told how to go about the task because her Honour took the view that they did not have to be defamatory imputations.  Now, this is a very extraordinary step to take in this field of the law.  It may be right, but the rightness of it depends, as your Honours will see from the language of the statute, it depends upon reading the words “1 or more other imputations” as not requiring that they be defamatory, and then reading on page 53, side note 20:

the defamatory imputations do not further harm the reputation of the plaintiff –

That those words do not further harm the reputation of the plaintiff would not import the jurisprudence such as I have explained from Reader’s Digest v Lamb.  Now, that may be the case but this would be a remarkable outcome.

CRENNAN J: What about the point made against you by the respondent at page 90 of the application book, in paragraph 15, where the respondent gives an account, from that point of view, of the design of the section 26 defence? I am directing your attention particularly to the last two sentences:

the jury are free to disregard any contextual imputations they feel are either not defamatory or of a sufficiently low grade when conducting their weighing up exercise.

MR TOBIN:   Your Honour, the difficulty with that submission is that the jury have to be told how to go about the task, and they never were.  Her Honour declined to proceed down that path despite my application that she should in the form of posing a particular question.  So when they say well, the jury could have determined it according to right principle, there is nothing to have guaranteed that result.  It is not incumbent upon us to prove how the jury went about its thinking if the court was satisfied that there was a serious deficiency in the charge to the jury.

CRENNAN J:   It goes to the appropriateness, I dare say, of this application as a vehicle for special leave.  There are no contextually true imputations which lack a sting.

MR TOBIN:   The contextual imputation ‑ ‑ ‑

CRENNAN J:   I understand what you say about the jury function.  I am not being oblivious to that, but I am just directing your mind to the suitability of the application as a vehicle, coupled with the other point, which is that you complain about the inadequacy of the directions so far as taking into account true defamatory imputations are concerned.  The point against you there has been consistently that that was in your favour.

MR TOBIN:   Yes.  I accept that, your Honour.  If we did not have the first step then the second step would not be one that I would put before the Court.  But what it does demonstrate, as summed up in that phrase that the jury could take into account, non‑defamatory imputations of the defendant and the imputations found to be true.

CRENNAN J:   Yes.

MR TOBIN: The point that I make, your Honours, is that this indicates that the section 26 defence on which we lost failed to have been properly considered by the jury and that is a substantial wrong or miscarriage. As your Honour is concerned about the proper vehicle, this case seems, in my respectful submission, to distil precisely, let us call it, the ideological battleground. Since this case was determined Justice Adamson in the New South Wales Supreme Court has expressly rejected the Court of Appeal of Queensland’s view in Mizikovsky on the grounds that it would lead to absurd results, the statutory interpretation would lead to absurd results.

So to answer your Honour – I see the light is on – why we would submit it is a classic vehicle is that it is apt for a direct interpretation of section 26, it is apt to determine whether defamatory imputations is implied for contextual truth and it is apt to determine something which I did put to the jury, and was corrected by her Honour, that the balancing exercise

should not include true imputations of the plaintiff’s that the jury had found against the plaintiff on.

So on those three issues, your Honours, this would seem, in my submission, to be a vehicle that covers a substantial part of this section 26 defence, which is at present getting roiled in the controversy that I referred to. As your Honours please.

CRENNAN J:   Thank you, Mr Tobin.  We will not trouble you, Mr McClintock.

The applicant seeks special leave to appeal from orders made by the Court of Appeal of the Supreme Court of Queensland, unanimously dismissing the applicant’s appeal against orders of the Supreme Court in defamation proceedings. After trial by jury judgment was delivered in favour of the respondents who succeeded in establishing a defence of contextual truth under section 26 of the Defamation Act 2005 (Qld).

The application involves the correct construction of section 26 in relation to directions given by the trial judge in circumstances where the applicant contends that a misdirection in his favour might, nevertheless, have given rise to a miscarriage of justice.

Although the correct interpretation of section 26 may raise questions of general public importance, in the context of a national scheme governing the law of defamation, we are not persuaded that this application constitutes a suitable vehicle for the agitation of such questions. Further, we are not persuaded that there has been any miscarriage of justice in this particular case.

Special leave must be refused with costs.

AT 1.20 PM THE MATTER WAS CONCLUDED