Palmer-Bruyn and Parker Pty Ltd v Parsons S115/2000

[2000] HCATrans 778

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S115 of 2000

B e t w e e n -

PALMER-BRUYN & PARKER PTY LTD

Applicant

and

KEITH PARSONS

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 2.23 PM

Copyright in the High Court of Australia

MR B.R. McCLINTOCK, SC:   May it please the Court, I appear with my learned friend, MR C.A. EVATT, for the applicant.  (instructed by Hunt & Hunt)

MR T.K. TOBIN, QC:   I appear with MR T. MOLOMBY for the respondent.  (instructed by McDonald Johnson Solicitors)

KIRBY J:   Yes, Mr McClintock.

MR McCLINTOCK:   Thank you, your Honour.  Your Honours, the special leave question in this case is this:  what is the test of causation of loss to be applied in respect of the tort of injurious falsehood?  Specifically, does it differ from the test of causation that would be applied or is applied in respect of other torts such as negligence?

Here, what the Court of Appeal did, your Honours, is to apply a test in fact derived from a different area of law in respect of a quite distinct issue.  The area of law was defamation.  The issue was liability for republication, not, in fact, for causation.  The Court of Appeal, your Honours, failed to ask, in my submission, the correct question and that question was whether, but for the publication of the defendant’s letter, my client would have lost the contract which it had with McDonald’s.  Having not asked that question, the correct question, it is not surprising in my submission, that the court found the issue of causation against my client.

Your Honours, the factual findings made by the learned trial judge and by the Court of Appeal, in my submission, compelled the answer “yes” to the question of causation.  Those findings were these.  They were, first, that the letter written by the defendant or forged by the defendant was false;  second, that it was likely to cause my client loss in its business; third, that it was malicious – published maliciously – that is, of course, that the defendant was conscious when he did it that it was false.

The learned trial judge also - and there was no challenge to this in the Court of Appeal - found that the letter came to the attention or that McDonald’s, with whom my client had contracted, learned of the letter through an article in the Newcastle Herald and, as a result ‑ ‑ ‑

KIRBY J:   You have left out a couple of steps of the ‑ ‑ ‑

MR McCLINTOCK:   No.

KIRBY J:   The steps that would seem, at least, arguably to be relevant are that it was sent in circumstances where, at least arguably, it was likely to become known in the Council or in the corridors of the Council, for that matter.

MR McCLINTOCK:   Your Honour, I am going to come back to that but for present purposes the four findings I want to highlight are those I am talking about now.  There was a finding by the trial judge and, as I said, confirmed by the Court of Appeal, that my client lost a valuable contract with McDonald’s because the responsible executive of McDonald’s learned of the letter through an article in the Newcastle Herald.

Your Honour, there were intervening steps and I will deal with those when I come to the appropriate part of my argument, but for present purposes, your Honour, those four findings, we would say, compel a finding that the original dissemination of the letter by the defendant caused my client to lose the contract.

KIRBY J:   They do not compel it if it is going to be put in a little bottom drawer or in a locked safe but the point of my mentioning the corridors of the Council are that it is of the nature of government, and perhaps it is a good thing, of local up to the federal, that it is going to become a matter of debate, discussion or gossip.

MR McCLINTOCK:   Absolutely.

CALLINAN J:   Particularly when there is a political element in it.  If I might say, everybody would know, a council would leak like a sieve.

MR McCLINTOCK:   Absolutely, your Honour.  There, in my submission, can be no doubt about the correctness of what your Honours have put to me.  The way this was dealt with by his Honour Mr Justice Heydon in the Court of Appeal, with great respect to his Honour, has an air of artificiality and unreality about it.

CALLINAN J:   Why would you not have succeeded on a natural and probable result test anyway?

MR McCLINTOCK:   That was my secondary submission, your Honour.  I would have because, your Honour, if it is a “but for” test there can be only one answer to the “but for” test.  We must have succeeded.  The answer must have been, but for the original dissemination of the letter by the defendant, the loss would not have occurred to my client and it was the natural and probable consequence.  If you give a letter like this involving the rezoning of land to the ALP Caucus and the Greens Caucus it follows, as a natural and probable consequence of that, that it will become publicly known.

CALLINAN J:   Even if not perhaps immediately, but ultimately and inevitably I would have thought it would become known.

MR McCLINTOCK:   Absolutely, your Honour.  Mr Justice Heydon dealt with this by saying that there was a goal, that various people had goals to keep the letter confidential but, of course, his Honour confuses, if I say so, with respect, having a goal and actually achieving the goal.  It was perfectly apparent from what happened that the letter was not kept confidential.  In fact, it did leak.  It did get out somehow and therefore was published in the ‑ ‑ ‑

KIRBY J:   In the age of photocopiers that is not unusual or surprising.

MR McCLINTOCK:   Yes, at all, and I would say, your Honour, it is the natural and probable consequence of the defendant’s original publication.

CALLINAN J:   Was there a holding against you that you could not recover exemplary damages anyway?

MR McCLINTOCK:   There was a holding in relation to punitive damages, your Honour – not exactly but the same thing – which was challenged and the finding – I have to say that the grounds of appeal, if your Honour goes to page 52 of the judgment your Honour will see that his Honour records there, and I understand it to be correct, that the two grounds “in relation to punitive damages” were “abandoned”.

CALLINAN J:   Were abandoned?

MR McCLINTOCK:   Were abandoned.  In view of the finding of malice, I will be frank and say that I find that surprising, but it is done.

KIRBY J:   Anyway now, what is the scope of your damage then?

MR McCLINTOCK:   Your Honour, the scope of the damage would be the value of the contract that we lost, but, of course, it is not ‑ ‑ ‑

KIRBY J:   Did you have an ongoing relationship with McDonald’s or not, or this was a particular contract?

MR McCLINTOCK:   This is a one‑off contract, your Honour, but the damages are not – in injurious falsehood, your Honour, the damages are not limited to the special damage that you prove.  Special damage is an element of the tort that you must necessarily ‑ ‑ ‑

CALLINAN J:   You have to prove actual damage, the cases say, do they not?

MR McCLINTOCK:   They say that you must prove ‑ ‑ ‑

CALLINAN J:   Unlike in defamation where damage is presumed, but you only have to prove to complete your course of action some very minor actual damage.

MR McCLINTOCK:   Yes, your Honour, and then you are entitled to all types of damage.  For example, if you proved a one dollar special damage loss but that it was something that was highly defamatory, even if you were not suing in defamation, you would be entitled to recover damages, general damages, for it is harms to your reputation.

CALLINAN J:   The distinction is only drawn though, is it not, to distinguish the cause of action from defamation? 

MR McCLINTOCK:   Yes.

CALLINAN J:   That is the only reason for it because it is a tort and some damage is the gist of the action.

MR McCLINTOCK:   Yes, your Honour, in contradistinction ‑ ‑ ‑

CALLINAN J:   But you have to call some evidence unlike in the case of defamation where you do not have to call any evidence of damage.

MR McCLINTOCK:   Absolutely, your Honour, because there, as your Honour says, if I say so with respect, perfectly correctly, some damage is presumed in defamation.

CALLINAN J:   And you have called evidence of damage in defamation to increase your damages, not to establish damage.

MR McCLINTOCK:   Yes.  There was a dispute, your Honour, years ago as to whether you were entitled to call that evidence but that was resolved, obviously, in favour of calling it.

KIRBY J:   You have said everything you want to say for the moment, I suppose?

MR McCLINTOCK:   I have, your Honour.  By way of prophylaxis, your Honour, could I just ‑ ‑ ‑

CALLINAN J:   Mr Evatt is being helpful.

MR McCLINTOCK:   I just wish to put the proposition, your Honour, by way of prophylactic submission, that all these points were taken below and that was the finding made by Mr Justice Heydon at page 55 in paragraph 53.  Thank you, your Honours.

KIRBY J:   Yes, Mr Tobin.

MR TOBIN:   Your Honours, this is not a good or a suitable special leave vehicle for this reason:  the Court of Appeal found in a 3:0 judgment that the plaintiff had failed to make out its allegation of actual loss in the running of the trial and I will explain it as follows.  An accountant was called and gave evidence based upon certain assumptions as to what would be the loss attaching to this McDonald’s contract, were it to have continued into the future and not have been terminated.

Following that evidence, one of the employees, Mr McNaughton of the then plaintiff company, was called to give evidence and was not asked to make out one of the assumptions upon which the accountant based his estimate of loss.  Second, throughout the whole of the trial, notwithstanding the calling of at least one director and one employee of the plaintiff company, no effort was made to identify what work was still to be done under the contract and how much was the value of that work.

KIRBY J:   That might be a reason for giving the plaintiff little damages but it scarcely seems a reason for saying they have none.  They have suffered the opprobrium in the public forum, as it would become known, that they have lost the contract because of this action on the part of your client.

MR TOBIN:   Your Honour, with due respect, the choice of injurious falsehood as the vehicle by which the plaintiff sought a remedy from the court meant that it had to prove actual damage.  It had to prove actual loss and it is a source of ‑ ‑ ‑

KIRBY J:   But it proved he had lost the contract.  The contract was terminated.

MR TOBIN:   Yes, but, your Honour, what is the value to attach to that termination of the contract.  There was not one jot of evidence to put a dollar value upon what remained to be done under the contract.

CALLINAN J:   But it is general damages, is it not?

MR TOBIN:   Special, your Honour.

CALLINAN J:   Is not that the distinction though?  You are not limited only to special damages, are you?  Once you have proved some damage, are you limited to special damage?

MR TOBIN:   No, you are required to prove special damage.

CALLINAN J:   Yes.

MR TOBIN:   And then, according to my learned friend, although I do not think this is so, but according to my learned friend, you could attract general damages after that.  I think the proper position is that in cases such as slander or injurious falsehood you are limited to special damage, but that does not matter for our argument, your Honours.  The gravamen of our argument is that if this matter were to go to the Full Court, at the end of the day, it would be impossible for the Full Court to put any value upon the damage alleged by the plaintiff, by the appellant before the Full Court, and that this is a fatal defect in the presentation of the trial whereby an ingredient of the tort, actual loss, has been failed to be proved.

KIRBY J:   Now, the Court of Appeal said that they did not really have to deal with that in view of the conclusion that they had reached.  This is 52.

MR TOBIN:   Your Honour, at the bottom of 54, the last sentence of Mr Justice Heydon’s judgment, your Honours will see that the finding of the court there of the three judges is that:

the correct finding would have been that there was no proved actual loss.

Your Honours, that is dealt with on the special leave papers at page 80 in my learned friend’s submission on special leave.  There, they point to the fact that his Honour would have calculated a loss over a couple of years of the contract at 38,000 and they refer to a paragraph in his Honour’s judgment which is reproduced by the Court of Appeal at page 53, the last paragraph, and this, of course, is the basis of our notice of contention before the Court of Appeal:

However, a truer position in reality could have been derived if the Court had been informed as to what Mrs Richards –

that is the McDonald’s executive –

would have expected to have taken place had the contract not been lost.  It would also have been of interest to know what the company’s plans were and what the plaintiff’s projections were as to what would be involved in pursuing the application with council.  For these reasons there is a certain artificiality –

et cetera.  Now, the Court of Appeal, we say, correctly found that no actual loss was proved and it is, perhaps, a source of bewilderment as to why that was so given that there was no dearth of witnesses available to prove actual loss.  So for that reason, your Honours, we say this is not ‑ ‑ ‑

KIRBY J:   But what was the meaning of the passage at the top of page 55 where hisr Honour says:

That is a misreading of the reasons –

this is presumably the reasons of the primary judge –

All that the passage containing those words meant was that there was no such loss within the class of persons to whom there was “publication…..as distinct from the publication to McDonald’s, for which it could not be held liable.

So that was the premise, you see.

MR TOBIN:   No, that is a second limb, your Honour, with respect.  The first limb is our submission, which was successful:

that there was no proved actual loss.

That is at the very bottom of page 54.

KIRBY J:   Well, I wonder if that is not being stated as on the premise that there could be no recovery in respect of the publication in the Newcastle Herald because his Honour felt that that was causally unconnected, which seems, with every respect to his Honour, a somewhat unreal severance of the realities of causal connection when you publish in a controversial situation and in a public forum a document which is very likely to be photocopied and very likely to become known and very likely to be published in the local newspaper.

MR TOBIN:   Your Honour, if I can deal with the first part of that, no.  In the Court of Appeal it was clearly argued and the finding of the court is clear going to that argument, that with regard to the loss of contract no actual financial loss was proved.  A second element which was put argumentatively by me based on his Honour’s judgment was the use of the phrase by his Honour “there is no identifiable actual loss” applying to a limited number of publishees, that is the ALP Caucus and the other people in the Council.

If I could go to the second part, your Honour, of what your Honour has put to me, and I note from what your Honours have said to my learned friend, a view that is availing about this send‑up letter.  Your Honours see the letter is the first document in the material.  What his Honour found, and this is a finding of fact against the applicant, is that this would not be taken literally by a reasonable reader.

CALLINAN J:   But it does not have to be taken literally.  There seems to be a great misconception, in the media I might say, in particular, that if you say something that is satirical or possibly funny, it is not defamatory.  It can be highly defamatory and it can also be very, very injurious.

MR TOBIN:   Your Honour, I accept that entirely.

CALLINAN J:   It is a complete misconception.  One encounters it all the time in the media. 

MR TOBIN:   Your Honour, I accept that entirely.

CALLINAN J:   The more outrageous it is, it is suggested that the less damaging it is.

MR TOBIN:   Your Honour, there is no question that this letter was designed politically to be read by the Caucus and the damage that it was purposed to effect was the rejection by the political body, the Council, of a development application, that that be rejected and that the issue of malice, of intentional infliction of harm was simply the consequential harm that the plaintiff firm, the plaintiff company, would experience by dint of the fact that its client, McDonald’s, was unsuccessful in a development application and it is only ‑ ‑ ‑

CALLINAN J:   Mr Tobin, it seems to me that there may be very well a special leave question as to the measure of damages for injurious falsehood and what the components of the damage may be for injurious falsehood.  There is a great deal of uncertainty, as I recollect, in the text in relation to that.

MR TOBIN:   Your Honour, I do not disagree that in some injurious falsehood case that might be so, but if this goes to the Full Court it will have to go in the context of the finding by the Court of Appeal that no actual loss has been proved.  What that means, your Honour, is that the special leave point as posited by my learned friend would be that general damages is a sufficient element in the cause of action in injurious falsehood.

Your Honour, even in the Court of Appeal it was not put on behalf of the plaintiff, the appellant in the Court of Appeal, that the tort of injurious falsehood could be made out and a remedy effected without proof of actual loss.  So, your Honour, I accept what your Honour Justice Callinan puts that there may be hidden here in the tort of injurious falsehood an invitation at some stage for the Full Court to consider it but I stress, your Honours, that if you do not have the third leg of the tripod:  malice, falsehood, actual loss, then you do not have the tort of injurious falsehood.  If there is damage done to the plaintiff below, he had a remedy and probably still has a remedy in defamation against the publisher, the Newcastle Herald, a recourse to which he never took.

CALLINAN J:   Mr Tobin, Mr McClintock wants to challenge what the Court of Appeal found in relation to the damage.  It is ground (t) in the proposed notice of appeal.

MR TOBIN:   I know he wants to challenge it, your Honour.

CALLINAN J:   It seems to me that if there are other matters involved that would warrant a grant of special leave, then there would be no reason to restrict him and, indeed, he would submit that the finding in relation to that is tainted by the Court of Appeal’s attitude to natural and probable effect.

MR TOBIN:   Your Honour, that was never put to the Court of Appeal and it is not to be found in the special leave papers.

CALLINAN J:   But nobody knew the way in which the Court of Appeal was going to decide the matter.

MR TOBIN:   It was not put, your Honour, in the special leave papers that there was a tainting in the Court of Appeal’s decision with regard to actual loss by a causation question.

KIRBY J:   But is not there a distinction between actual loss and special damage?  There is actual loss in the sense that they lost the contract.

MR TOBIN:   They proved no damage.

KIRBY J:   And, by inference, they lost the possibility of future similar contracts.  McDonald’s does not want to be associated with somebody, that there is a smell about it and they just do not want it.  They do not need it.  They have other problems.  They have other fish to fry.

CALLINAN J:   It is like slander of title.  Your product, your capacity, your goodwill, your professionalism are all being disparaged.

KIRBY J:   The fact that you cannot or do not prove that that is, in this particular case, sounding in $20,000 loss of this particular contract, does not mean you have not suffered actual loss.

MR TOBIN:   There is not proved any actual dollar term loss, your Honour.

KIRBY J:   They have not proved special damages, but that does not mean they have not proved actual loss.  They lost the contract.

MR TOBIN:   Your Honour, the requirement of this tort is to prove, not just the loss of the contract but a dollar loss where special damage is pleaded.

KIRBY J:   You contend that actual loss requires proof of special damages?

MR TOBIN:   Certainly, your Honour.

KIRBY J:   That is an issue.  That is a question.

CALLINAN J:   Special damages are not always and exclusively calculable by reference to a precise amount.

MR TOBIN:   Yes, your Honour, I accept that.

CALLINAN J:   Courts often have to say this is special damage.  X is contended for.  We are not satisfied that X is made out but we are going to give X minus Y.  It is still special damage even though it involves an estimate by the court.

MR TOBIN:   Your Honours, where this fails, in our submission, failed below, failed in the Court of Appeal, was the pleading was for special damage.  It was not a pleading of general loss of business as your Honour Justice Callinan puts to me.  It was an actual pleading of special damage and they did not prove it.

KIRBY J:   It is curious as you say and I will want to hear what Mr McClintock says about this, that they called witnesses who one would think would be in the position to prove what their actual loss or special damages were, but yet did not seek to adduce that evidence. 

MR TOBIN:   Yes.

KIRBY J:   Now, that is a curious thing.

MR TOBIN:   Very curious.

KIRBY J:   But it does not really touch the legal point which is of potential interest and that is, what is the meaning of actual damage in this context?

MR TOBIN:   Your Honours, could I go back to the question of this republication issue and causation and I will make a literary reference, if it be appropriate, to Gulliver’s Travels.  It occurred to me that when Dean Swift wrote Gulliver’s Travels he certainly did not intend that it was to be taken literally as a travel guide and were it the case that Irish tourists returned to Dublin and wanted to sue him because they said, “We didn’t get to see the talking horses and Dean Swift should pay us the damage we suffered from having embarked upon the journey”, one would think that this was a ridiculous or ludicrous proposition.  Here, it is not the fact, as Justice Callinan put to me, that satiric statements do not have a sting and may not cause damage.

KIRBY J:   Well, they did in this case.  Once published in the general newspapers as was a possibility - at the very least you have to acknowledge that - McDonald’s just did not want to be associated with them.  This is what you have to think of when you are getting humorous or satirical and like to harm people.

MR TOBIN:   Well, it went ‑ ‑ ‑

CALLINAN J:   And that is a dollar’s worth of damage, at least, is it not?

KIRBY J:   And I hardly think this letter is in the Dean Swift class.

MR TOBIN:   Mr Evatt’s client did not utter the word “dollar” about the damage he said he suffered for the loss of a contract.  His accountant, based upon unproven assumptions, figured 38,000.  But if I can return fleetingly to Dean Swift.  The difficulty, your Honours, is this:  the court, naturally perhaps, thinks that if there is damage and if there is conduct of a kind that is described here, there has to be a remedy.  That may be so.  One would think that the remedy probably lay in a suit for libel, not injurious falsehood.

KIRBY J:   Yes, but the newspaper is merely publishing what has happened, what you did.

MR TOBIN:   It did not, your Honour.  You see it did not publish what – what it published ‑ ‑ ‑

KIRBY J:   It did not do it seriatim.

MR TOBIN:   No, what it published ‑ ‑ ‑

CALLINAN J:   But the fact that there might have been and, indeed, there might still be – I do not whether the limitations period has expired – a remedy against the newspaper has nothing to do with the case against your client.

MR TOBIN:   But what the newspaper published was a story about a police investigation into what was described in terms that the reader would understand, as the McDonald’s executive understood – they are very difficult, your Honours.

KIRBY J:   I have always got to have power over chairs at the Bar table.

MR TOBIN:   I think they are starting to relax a little bit, your Honour.  I think he was leaning back in his chair with a sense of relaxation, your Honour.

Your Honours, what was published in the paper does not look like what is published on the facts.  What is asserted as a finding of fact by his Honour below and accepted by the Court of Appeal is that this was an instance of ridicule of a bumbling, heavy‑handed lobbyist working the Labor Caucus on behalf of his client.  That is the description.  What the newspaper published was an allegation, in effect, if one looks at it, that there was a police investigation into an attempted bribery by or on behalf of the plaintiff, in substance, an entirely different assertion.

KIRBY J:   But was referred to the police.  There was a police investigation.

MR TOBIN:   Yes, but not about bribery.  See, your Honour, what the letter said in the facts ‑ ‑ ‑

CALLINAN J:   You have set this sort of hare running, you get all sorts of things:  police inquiries, media exaggerations, enormous damage.

MR TOBIN:   Yes, but your Honours, if you go back to the original facts, what it offers by way of a bribe is:

4 Big Macs and 2 choc sundaes –

for life ‑ ‑ ‑

KIRBY J:   For life?

MR TOBIN:   For life for the Labor Caucus members and you only have to say it to see the ludicrousness of it and an annual “birthday party” at which Mrs McNaughton, the principal’s wife, would “play the accordion”.

KIRBY J:   Well, it is very amusing at your end of the table but it lost the applicant its contract.  It is not so amusing to the applicant.

CALLINAN J:   I do not think it is a bit funny to publish this sort of thing.

MR TOBIN:   It did not lose it, your Honour.  What lost the applicant the contract – I have a red light – was the misstatement in the Newcastle Herald of what had been published by the defendant.

KIRBY J:   Yes.  One more sentence, Mr Tobin.

MR TOBIN:   One more sentence.  Your Honours will find at page 39 of the appeal book, lines 20 to 40, that the plaintiff’s counsel, in opening the case at the trial, accepted:

“the law of republication is the same in defamation as it is for injurious falsehood, and the defendant is always liable for the natural and probable consequences of his original publication –

That is rather different from what my learned friend put to your Honours in his argument about republication and the law of defamation.

KIRBY J:   Yes, Mr McClintock, what do you say about the failure to prove actual damage in the sense of special damage?

MR McCLINTOCK:   We did prove it, your Honour.  The finding is set out by the trial judge at page 17 of the judgment and his Honour deals with it in some considerable detail.

CALLINAN J:   I never fully understood why the Court of Appeal set aside that finding.  It is a finding of fact.  There is no reason as to why.  It was a finding that was open, I would have thought, on the evidence.

MR McCLINTOCK:   Absolutely, your Honour.  May I say there was no objection to the evidence from the accountant.  There was no suggestion he was entitled to say this.  He had gone through the records of the company and he had analysed them and he gave evidence, as his Honour has set out there, as to what the actual loss was and his Honour concluded that passage at line 46 by saying that:

nevertheless the amount does appear as reasonable actual compensation for the loss of a significant contract to the business.

Now, your Honours, the error made by Mr Justice Heydon - and I would say that it is tainted by his Honour’s approach to other matters as your Honour Justice Callinan suggested - really comes down to this:  what his Honour really seems to have thought is that you had to actually prove a specific dollar and cents approach.  Of course you do not have to prove that and, indeed, his Honour’s own finding, when he was dealing with this point, which appears on page 54 is, in fact, a finding of loss.

KIRBY J:   Yes, we have seen that.  But what do you say about the argument that the real cause of your loss was, as Justice Heydon seemed to think, the publication in the Newcastle Herald rather than this, on its face, absurd document that if other people had heard that or seen that document there would have been the mirth about it that there was in the Court when it was read out, whereas ‑ ‑ ‑

CALLINAN J:   Well, that is no answer to telling lies about people, is it, because injurious falsehood is a cause of action?

MR McCLINTOCK:   That letter was not funny.  It was calculated and intended, as the trial judge found, to attack my client and damage the rezoning application.  It was foreseeable and it may have even been, on the findings of the trial judge, intended that that contract be lost.  That is what the purpose was.  Why else would you send a letter like that to the ALP Caucus of Newcastle City Council and the Greens and so on.  It was intended to damage my client.

KIRBY J:   Perhaps to amuse them.  I mean, they are absurd propositions.

MR McCLINTOCK:   Your Honour, ridicule is one of the most powerful and effective weapons to do people damage that there can be.  That was what lay behind the satires of, in fact, Swift.

CALLINAN J:   People say, “Well, it may not be literally true but there’s something there.  There’s impropriety there”, and this is all that the author of the ‑ ‑ ‑

KIRBY J:   I hope your theory of the law would not have prevented us having Gulliver’s Travels?

MR McCLINTOCK:   No, your Honour, but may I say this?  If someone had boiled a baby in Ireland in response to Swift’s modest proposal, one might imagine some liability attaching to him for that.

KIRBY J:   Well, I think it is getting a bit far‑fetched.  Anyway, your time is nearly up.

MR McCLINTOCK:   But in any event, your Honour, could I say this?  There is a factual answer to this, in any event, your Honour, which is this.  After the publication in the Newcastle Herald there was a contact by Mrs Richards to my client, who then explained to her what was, in fact, in the letter.  There is evidence to that effect.  That itself is a natural and probable consequence of the original publication, that my client would be compelled to explain to people who found out about the letter, what was in it.  So Mrs Richards did find out about it.

But in any event, your Honour, the defendant really has to take responsibility for the publication of this letter in whatever form it occurs.  It set it running.  He set it running and, as a consequence, must take responsibility for whatever form it ultimately appeared in.  Unless there is anything else your Honours wish me to assist your Honours with, those are my submissions.

KIRBY J:   Yes, thank you.  Yes, there will be a grant of special leave.

MR McCLINTOCK:   If the Court pleases.

AT 2.58 PM THE MATTER WAS CONCLUDED