Pervan v The North Queensland Newspaper Company Limited

[1991] HCATrans 368

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B29 of 1991

B e t w e e n -

GEORGE ANTHONY PERVAN

Applicant

and

THE NORTH QUEENSLAND NEWSPAPER

COMPANY LIMITED and HERBERT

WILLIAM LAYT

Respondents

Application for special leave

to appeal

BRENNAN J
DAWSON J

MCHUGH J

Pervan 1 13/12/91

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 DECEMBER 1991, AT 11.27 AM

Copyright in the High Court of Australia

MR K.A. CULLINANE, QC:  May it please Your Honours, I appear

with my learned friend, MR A.J. MOON, for the

applicant. (instructed by Vandeleurs)

MR J.J.J. GARNSEY, QC:  May it please the Court, I appear

with my learned friend, MR M.E. POPE, for the respondent. (instructed by Connolly Suthers)

BRENNAN J: Yes, Mr Cullinane?

MR GARNSEY:  Your Honour, we have certain material from our

learned friends which we have here to hand up to

the Court when appropriate.

BRENNAN J: Would it be convenient now, Mr Cullinane, for

that to be done?

MR CULLINANE: It would, Your Honour.

BRENNAN J:  Mr Garnsey, as you hand it up, perhaps you could

identify, for Mr Cullinane,s purposes, the material

which is being handed up.

MR GARNSEY:  I hand to Your Honour five copies of the

document headed Application Book, Index of

Reference, which contains an affidavit with certain

annexures. I have three copies of extracts from

the Criminal Code and copies of certain cases, if

Your Honours please.

BRENNAN J:  You are familiar with this material,

Mr Cullinane?

MR CULLINANE:  Yes, I am, Your Honour. Your Honours, we

also arranged for a synopsis of our submissions to

be forwarded to the Court yesterday.

BRENNAN J: Yes, we have those, Mr Cullinane.

MR CULLINANE:  The applicant seeks special leave to appeal

on two bases. The first is that the matter gives

rise to a question of general importance concerning

the construction of section 377(8) of the

Queensland Criminal Code, a provision which is now

included in the draft uniform bill. The second is

based upon the administration of justice provision,

section 35A.

Your Honours, section 377(8) provides that it

is an offence to publish defamatory material:

in the course of, or for the purposes of, the

discussion of some subject of public interest,

the public discussion of which is for the

public benefit, and if, so far as the

Pervan 2 13/12/91

defamatory matter consists of comment, the

comment is fair.

The question which we say arises and warrants the

granting of special leave so that it might be

resolved is whether, where the words "fair comment"

appear in that provision, they import the common

law requirement that the facts upon which the

comment is based be true.

McHUGH J:  Can I just ask you some questions, because I must

say I am quite puzzled by a lot about this case.

Having regard to the book that Mr Garnsey has handed up to us, it seems that various imputations

were pleaded. Were they all left to the jury, the

imputations which appear in paragraph 8?

MR CULLINANE: Yes, I understand they were, Your Honour.

McHUGH J: Well, on that basis it is very difficult to see

what the Full Court could have meant by saying that

it was only the third sentence in the material

which gave rise to defamatory material. I would

have thought myself that the first and second

sentences clearly gave rise to defamatory

imputations.

MR CULLINANE: Yes, it was always our case, Your Honour,

that they were assertions. They were rhetorical

questions, if you like, and that the whole of the

publication was defamatory of our client.

McHUGH J: Yes. Well, if that is so, then there was simply

no material at all before the jury which could

justify the fairness of the comment.

MR CULLINANE:  Well, that is our submission. The defendant

called no evidence at all, and sought to place

before the jury no evidence which would justify a

finding in its favour on a matter in respect of

which it carried the onus of proof.

McHUGH J: Among the cases Mr Garnsey handed up, I see no

reference to the second Uren case, Uren v

Consolidated Press, 71 NSWSR.	Have you got a
reference to that case?

MR CULLINANE:  I am not certain that I recall the case,

Your Honour.

McHUGH J: Where the Court of Appeal held that the defendant

must put some material before the jury which would

justify the comment, even accepting the basis that

it is sufficient that the defendant believe the

facts to be untrue.

Pervan 13/12/91

MR CULLINANE:  Yes. Your Honour, I have certainly seen

remarks to that effect, and that was the view that

was advanced before the Full Court. Perhaps I

should say this: rightly or wrongly the parties
before the trial judge took the view that the

question of fair comment was a matter for the trial

judge to resolve, although I do not think that that

matters in principle.

McHUGH J: That has certainly not been the practice in New

South Wales.

MR CULLINANE:	No.
McHUGH J:	New South Wales had the equivalent provision

between 1958 and 1974.

MR CULLINANE:	Yes.
McHUGH J:	The practice in New South Wales was the question of fair comment always went to the jury.

MR CULLINANE:  Yes. As I say, I do not think we can say

much about what happened in view of the fact that

both parties asked that it be dealt with in that

way, but it does not effect, in our submission, the

proposition that it is for the defendant to adduce

some evidence to support the plea of fair comment

in 377(8).

BRENNAN J:  Mr Cullinane, what questions went to the jury?

What answers were given?

MR CULLINANE:	The record, I think, shows that, Your Honour. I will just get that. At page 71 of the record,
Your Honour, this appears, at the bottom of that
page and on the next page. Really the question,
"Was the publication of and concerning the
plaintiff?", and that was answered "Yes".
and that was answered "Yes", and the question of

Was it defamatory of the plaintiff?

damages.

BRENNAN J: And were there directions given which left to

the jury each of the imputations pleaded?

MR CULLINANE:	The transcript, I think, Your Honour, it can be said of the charge to the jury - perhaps it is
necessary for me to go to that, but I think it can
be said that they were put by His honour, if not
seriatim, at least the substance of them were put
as constituting the basis upon which the plaintiff
contended that the publication is defamatory of
him.

Pervan 4 13/12/91

BRENNAN J: Well, none was withdrawn from the jury.

MR CULLINANE: That is right, Your Honour.

BRENNAN J: Well then, was there any argument before the

Full Court that any of the imputations pleaded was not open?

MR CULLINANE:  None was contended for before the Full Court,

Your Honour, no. I think there may have been in

the grounds of appeal some such grounds, but they

were abandoned as I recollect matters, and I think

that appears in the judgment also. Yes that is so,

Your Honour. The grounds were abandoned in the

course of the argument.

BRENNAN J:  Mr Cullinane, we will see if Mr Garnsey wishes

to say anything before calling upon you further.

Mr Garnsey, the conduct of the proceedings seems to

have left a number of issues, as it were, without

debate in the Full Court.

MR GARNSEY:  Your Honour, that is so because although it was

sought to raise - under, I think, grounds 3, 4

and 5; I have not got the notes of appeal to the

Full Court before me, I am speaking from memory -

certain issues, namely, as to whether evidence of

previous publications was properly admitted as to

meaning of the matter complained of rather than as

to identification - - -

McHUGH J: It would not be the publication. It would be the

facts in them, would it not?

MR GARNSEY: Well, it should have been. That was precisely

the point, yes, Your Honour. But, in fact, they

went in on a global basis, if I could put it like

that. The Full Court intimated that it did not

consider those issues as having been fairly raised

by the grounds, and I think it is also fair to say

intimated that they would not have granted me leave

to amend the notice of appeal appropriately, and

that is what was abandoned before the Full Court.

It is fair to say also it was not argued whether or not precise imputations were properly

whether or not the matter complained of was put to the jury or not because the issue was

defamatory - this being Queensland - and the

matters in the pleadings alleged to be imputations

particulars only. Consequently the argument in the

Full Court dealt with the meaning of the matter

complained of so far as it was relevant to the

issues raised by the taking away of the defences

under section 377(5), (6) and (8).

McHUGH J: But you have to answer the imputations.

Pervan	13/12/91
MR GARNSEY:	Not, with respect, in Queensland, Your Honour.

BRENNAN J: Well, I do not know. Why. If the language of

the matter complained of bears the imputation, that

is the matter published.

McHUGH J: It is nearly 20 years since I had anything to do

with the equivalent of 17H, but my clear

recollection was that the New South Wales
authorities were of the view that you had to

justify the imputations, and I thought there was a

passage in a judgment of Mr Justice Sugerman in

Rigby's case which is referred to which says that.

MR GARNSEY:  I do not recollect that passage, if Your Honour

pleases. Whether or not defences were related to

the matter or the imputations was a matter passed

on by the Court of Appeal of New South Wales in

Petritsis v Hellenic Herald in connection with the defence of comment. Petritsis held that the
defence was directed to the matter - even in New South Wales where the imputations have statutory

force - as the cause of action, not to the

imputations. The Privy Council in Lloyd v David

Syme, without reference to Petritsis, expressed a

contrary view and said the defence of comment had

to be addressed to the matter.

McHUGH J: Can I just read to you the passage from Rigby

which I have just picked up from your copy, which

is obviously the Butterworth's reports.

MR GARNSEY: These are my friend's documents I handed to

Your Honour. We were delivering them, if

Your Honour pleases.

McHUGH J: Where Mr Justice Sugerman was dealing with the

equivalent of section 377, he says:

Whats 17 protects is the publication of

"defamatory matter", and defamatory matter,

according to s 5 of the Defamation Act, is an

imputation, having the effect therein referred

to ·

BRENNAN J:	I do not not know whether the Queensland Act corresponds with the New South Wales Act in making
the imputation the matter, but it has never been
thought, as I understood it, that defamatory
matter, being matter which bears an imputation, is
other than the matter which is so construed. If
you have got a defence under 377(8), it must be
linked to the matter being construed in accordance with the imputation that is open and found. Here
we do not know, of course, what imputations were
found.

Pervan 6 13/12/91

MCHUGH J: That means you have to proceed on the basis they

were all found against you.	They were all left to
the jury.

MR GARNSEY:  Yes, Your Honour. That was not a point that

was put against me on the appeal, I think it fair

to say, if Your Honour pleases.

BRENNAN J: But when you come here defending the judgment of

the Court of Appeal in your favour, do you not have
to show that construing the matter published, in
the light of the imputations alleged, you have an

excuse under 377 of the Code for publishing matter

bearing each of those imputations?

MR GARNSEY:  We would, with respect, say not precisely, if

Your Honour pleases. Section 366 of the Code has

the definition of imputation. It says:

Any imputation ..... -

to a certain effect -

is called defamatory, and the matter of the

imputation is called defamatory matter.

McHUGH J: That is exactly the same as the old New South

Wales section 5.

MR GARNSEY:  Yes, Your Honour. The defence is directed to

the publication of defamatory matter.

McHUGH J: So that means you have got to defend the

defamatory imputations. They may be comment or

they may be assertions of fact, but what you have

got to defend is the imputation.

MR GARNSEY: Well, I did not before the Queensland

Full Court, if Your Honour pleases.

BRENNAN J: Well, is that not one of the real proplems in

this, Mr Garnsey, that that is the situation and it

has not been addressed by the Full Court in

Queensland, what are we to do? Are we to grant

special leave so that we can fix it up, as it were?

MR GARNSEY: Well, we would, with respect, submit not,

Your Honour, there being no question of public importance in that and the - - -

BRENNAN J: But there is a great question of the

administration of justice, is there not?

McHUGH J: Here is a plaintiff being deprived of his verdict

on a basis that arguably he should not have been

deprived of his verdict, in the sense that there

has been a procedural miscarriage. Why is that not

Pervan 7 13/12/91

a case for special leave, having regard to the

terms of section 35A of the Judiciary Act?

MR GARNSEY:  Your Honour, the

BRENNAN J: One possible solution to this, Mr Garnsey, is

that the matter could go back to the Full Court so

that the Full Court could address these matters

seriatim or entertain argument as to whether any or

all of the imputations should have been left to the
jury, but to get to that stage it would be
necessary to grant special leave to appeal and

allow an appeal.

MR GARNSEY:  Yes, Your Honour.

BRENNAN J: It seems an unsatisfactory situation to have to

go through the consideration of the construction of
377(8), as it were in a vacuum, without knowing

what the material is to which 377(8) is to apply.

MR GARNSEY:  Yes. Your Honour, it may be a question of

terms on which special leave would be granted. Of

course, it would be our submission and, as evident from the judgments of the Full Court and, although I have not got a transcript of the appeal before

the Full Court, my recollection on this point is

quite clear, that this is a matter which was simply

not raised at any stage during the argument on the

appeal before the Full Court. It is a matter which

had come for the first time since I have come into

the matter, from Your Honours.

BRENNAN J: Well, what was raised before the Full Court?

MR GARNSEY:  Your Honours, the matters raise before the Full

Court was whether the trial judge had rightly ruled

upon subsections 5 and 8 in withdrawing them from

the jury. Now, as to meaning, the meaning was

considered in relation to His Honour's rulings, and

His Honour's rulings - Your Honour will have seen

from the extracts - while they are not quite

clear, certainly were not based in any way on the

pleaded imputations. The learned trial judge was

the source of the concentration upon the nature of

the sentences in the advertisement, because

His Honour's rulings referred to the first, second

and third sentences, and when one looks at the

transcript and the argument before His Honour

ruled, that was the basis upon which both the

rulings were made at the trial and on which the

appeal proceeded.

McHUGH J: Well, one can understand that where an issue of comment is raised, because one has to look at the

imputations to see whether they are capable of

being regarded as comment or assertions of fact

Pervan 13/12/91

but, ultimately, it is the imputations which have

to be justified and at the moment it seems to me

that you have to show that there was no issue for

the jury under 377(8) at all, having regard to the

imputations pleaded.

MR GARNSEY:  Yes, Your Honour.

McHUGH J: And I know the course of authority is in your

favour that it is sufficient that you just simply

believe the facts which are the basis of the

comment to be true and that you do not have to

prove the falsity of it, but it seems to me that is

a serious question, particularly having regard to

the history of 377(8). Those words about comment

were only added by Sir Samuel Griffith at a late

stage. Prior to Sir Samuel Griffith's amendments,

the defence would have covered comment absolutely

and he added those words about comment at a later
stage, and it seems that there is a strong argument
that he meant it to have its common law meaning,

and that was the view that Mr Justice Windeyer took

of that provision in the first Uren case when it

was in this Court.

GAUDRON J: With respect, Your Honour, Mr Justice Asprey in

Denman's case referred back to His Honour's remarks

- that is Mr Justice Asprey's - previous judgments

in Cowan's case and, I think, Clynes, and said that

Mr Justice Windeyer was in his,
Mr Justice Asprey's, favour in Denman's case and

Mr Justice Asprey adopted his remarks in Denman's

case in Rigby's case.

BRENNAN J: Those words are quite meaningless to me,

Mr Garnsey.

MR GARNSEY: Yes, I am sorry. Your Honour, I should have

prefaced them by a submission, with respect, that

it is our submission that the course of authority

is overwhelmingly in favour of the position - - -

McHUGH J: Well, it certainly is, I would agree with that,

but not in this Court. This Court has never

considered the provision, except

Mr Justice Windeyer, who said it has got its common

law meaning. If it has got its common law meaning,

then you have got to prove the.truth of the facts

upon which the comment is based. If your argument

is right, or the accepted view is right, the

defence of fair comment is irrelevant. There is

nothing that could be defended under a fair comment

defence that could not be defended under 377(8).

MR GARNSEY: Section 377(8) is, there must be good faith, if

Your Honour pleases, whereas for comment there must

Pervan 9 13/12/91

merely be a fair comment in the sense of an opinion

genuinely held which - - -

McHUGH J: When you refer to good faith, would you intend to

support what Mr Justice Thomas said about the

elements of good faith?

MR GARNSEY:  Yes, Your Honour. Mr Justice Windeyer at

pages 207 to 208 of Australian Consolidated Press v

Uren, which is the passage that His Honour

Mr Justice McHugh referred to, began at the bottom

of page 207 to make some general remarks about
section 17(h), which corresponds, Your Honours,.

with section 377(8) of the Queensland Criminal

Code, and the relevant phrase relied upon by my

friend, and referred to by His Honour

Mr Justice McHugh, appears over the page at

page 208, and what His Honour says:

If the expression "fair comment" has its

common-law meaning, as presumably it has, then

the effect of s 18, read with the decision of

the Court of Appeal in Thomas v Bradbury,

Agnew ..... seems to mean that the defendant who

invokes the protection of s 17(h) for any

matter of comment must first shew that comment

to be fair in an objective sense before the

onus is put upon the plaintiff to establish

that it was not made in good faith.

Now, with respect, His Honour is not, when

His Honour says:

"fair comment" has its common-law meaning -

says, all the defence of comment or fair comment

under common law is taken over holus-bolus into the

section, including the fact that. comment must be

based on facts truly stated or necessarily referred

to. His Honour is dealing precisely with the words

"fair comment" and that only in section 17(h), and

the concept that if you have comment it must be

fair in the common law sense, namely an opinion

genuinely held and which might honestly be held by

a person no matter how prejudiced, biased or -

McHUGH J: What evidence did you call in this case that the

opinion was honestly held? You did not call any

evidence, did you?

MR GARNSEY:  No, Your Honour, and the reason for it is this:

this is a publication of matter by a third party,

like a letter to the editor in that sense. The

authorities are by no means clear as to what a

newspaper proprietor has to show in such a case to

avail himself of a defence of fair comment and

showing that the comment is fair.

Pervan 10 13/12/91

McHUGH J: Well, it may be he cannot rely on the defence at

all.

MR GARNSEY:  In Hawke v Tamworth Newspapers the authorities

were extensively reviewed with reference to

American authority which puts the matter on the

basis of onus, that is, the newspaper proprietor at

the end of the day is entitled to say, "There it

is. It is on its face an opinion. It is of a

third party, and it is on its face honestly held",

and the onus passes then to the plaintiff to

disprove that state of affairs. That was how

Mr Justice Hunt in Hawke v Tamworth Newspapers

dealt with the authorities, both Australian and the

American case.

McHUGH J: But the Full Court did not look at it on the

basis as to whether the third party held the

opinion. They looked at it on the basis as to

whether the company held the opinion.

MR GARNSEY:  For the purpose of proving absence of good

faith. The other matter was not an issue, that is,

whether the comment was fair.

McHUGH J: Well, it was an issue, but they did not look at

it from the point of view of honesty.

MR GARNSEY:  It was the subject of our written submissions.

It was accepted by the Full Court and there were no

submissions made to the contrary as to the effect

of the authorities.

BRENNAN J:  Mr Garnsey, I can see that if one is looking at

matters of fact, one might look at the first part
of section 377(8) and from there be directed to the

definition of "good faith", and finally then to

"does not believe the defamatory matter to be

untrue". But in order to say that section 377(8)

does not apply in this case, one has to address

each of the imputations that has been charged and

not there was any proof that the defendant did not	assumedly left to the jury, and to say whether or
believe the defamatory matter to be untrue. That
just has not happened in the Full Court,has it?

MR GARNSEY:  If Your Honour pleases, what Your Honour says

is, we respectfully say, one view. It is very hard

for me to argue against that on a special leave

application as being one view. It is a view which

the New South Wales Court of Appeal - in a State

where at the relevant time the status of

imputations was stronger than in the Code States

such as Queensland, that is, under the 1974 New

South Wales Act - did not have any difficulty in

saying was not the case when you applied defences.

Pervan 11 13/12/91

On the other hand, as I said earlier, the Privy

Council - - -

BRENNAN J: What is the case then?

MR GARNSEY:	The case is that you apply the defence to the matter, but again, the terms of the New South Wales
Act are slightly different to sections 366 and 377
of the Criminal Code.

McHUGH J: This is Petritsis v Hellenic Herald?

MR GARNSEY:  Yes, if Your Honour pleases.

McHUGH J: That is a Court of Appeal decision, is it not?

MR GARNSEY:	Yes.
McHUGH J:	Mr Justice Hunt - - -
MR GARNSEY:	No, it -
McHUGH J:	Has not Mr Justice Hunt criticized it?

MR GARNSEY:  Very probably, Your Honour. I am pretty safe

in saying that, but I cannot recall in any specific

place. His Honour often criticizes decisions of

Courts of Appeal but, Your Honour, as I have said

earlier, in Lloyd v David Syme the Privy Council,

without referring and, indeed, without being

referred to Petritsis v Hellenic Herald, said in

New South Wales that the defences are directed to

the imputations, or at least the -Jefence of comment

is directed to the imputations, c ,1d that is

directly contrary to Petritsis v 'fellenic Herald,

but there does not appear to have been any argument

on that point and there are no authorities referred

to by the Privy Council in its advice.

BRENNAN J:  No doubt we will be advantaged at some stage by

considering the distinctions between the New South

Wales and Queensland provisions dealing with

imputations, but if there is something which is to

be the subject-matter of belief as being untrue, it

must be some proposition, and whether one finds the

proposition expressly stated in the words published

or impliedly stated by the words ·published and
expressed in an imputation, it seems to me at the
present stage to be relatively immaterial to the

discussion that we are having.

MR GARNSEY: Yes, if Your Honour pleases, can I make this

submission then, that the Full Court of the

Supreme Court of Queensland, in dealing with the

matter in the way it did, necessarily considered

whether all the imputations pleaded could arise or

could not arise.

Pervan 12 13/12/91

McHUGH J: They could not have; they said that the first two

sentences were innocent - - -

MR GARNSEY:	Yes.
McHUGH J:	- - - then relied on the third sentences, but you could not justify these imputations under the third sentence; they were almost all directed to the
first two sentences.
MR GARNSEY:	Yes, if Your Honour pleases, and by so dealing with the matter the Full Court held that the
imputations that were based on the first two
sentences were incapable of arising.

McHUGH J: Well, Mr Garnsey, could you seriously contend

that the first two sentences were not capable of

defaming the plaintiff if you identified him with

it?

MR GARNSEY: Well, if they are construed as being rhetorical

questions, Your Honour, leading to - - -

McHUGH J:  "Counsel is feathering their own nest; funds

being misappropriated". If you identify the

plaintiff with those, and that was an issue on

which the plaintiff succeeded, it would be perverse

to find that those words were not capable of

defaming him.

MR GARNSEY: But with respect, the first two sentences are

not cut off from what follows, if Your Honour

pleases; it is all part of a very small single

advertisement and the Full Court, with respect,

took the view that the third sentence put the rest

into context essentially, so that - - -

McHUGH J: All the third sentence did was to say that these

allegations are doing irreparable damage.

MR GARNSEY: Yes.

McHUGH J: Well.

BRENNAN J: Now, looking at the whole of the matter that was

published, the first question is, is that matter

capable of bearing the meaning that the councilors

were lining their pockets? Now, was that something
that was left to the jury? Was it something, do
you say, that should not have been left to the

jury? Or putting it more accurately, do you wish

to contend, in this Court, that such a meaning

should not have been left to the jury?

MR GARNSEY:  Your Honour, I think the only contention I can

make to this Court is that the Court of Appeal,

having dealt with the matter it did on the basis on

Pervan 13 13/12/91

which it was argued by both of the parties before

the Full Court, having dealt with the matter as it
did on the basis of the argument presented on

appeal, that this Court should not, with respect,

further interfere with matters at the trial which

simply were not agitated on appeal.

BRENNAN J:  I suppose before we can deal with the 377(8)

question, we have to decide what 377(8) is intended

to apply to, or is pleaded to apply to. Is it your

submission that we should accept the Full Court's

construction of the matter published in determining

whether or not 377(8) applies?

MR GARNSEY: Yes, Your Honour. That is the first submission

I would make in that respect. The second

submission is this, that even if one construes the

matter to permit each of the imputations to be

raised, then the reasoning of the Full Court

applies equally to each of those imputations. So

there is nothing to be gained by the grant of

special leave. If one looks at the reasoning of

the Full Court as to subsection (8) and as to the

elements of subsection (8), the application of

which there is really no dispute, that all equally

applies to each of the imputations relied upon.

That being so, the only other matters are the

question of fair comment and whether that phrase as
included in subsection (8) includes a requirement

that any comment must be based on the facts truly

stated or referred to, and secondly, whether there

was any evidence of absence of good faith.

McHUGH J: But there is a further question involved, is

there not, as well, which you have raised really

during the course of your argument, and that is an

important question as to whether, when a newspaper

publishes an article or a letter by somebody else

or an advertisement, can the newspaper rely on the

defence of fair comment?

MR GARNSEY:  Your Honour, it is a matter raised in argument

before the Full Court, and I must confess I thought

it a fairly interesting matter then. I have not

been at pains to emphasize it before this Court,

but Your Honour has extracted it from me. If

Your Honours say, "Is that an important matter?",

it is certainly a matter that needs decision.

MCHUGH J: It is, is it not?

MR GARNSEY:  I could not speak to the contrary. If

Your Honours please, as to the imputations though,

I have not developed the submission I made to

Your Honour that really the imputations do not

raise any additional matter so far as special leave

Pervan 14 13/12/91

is concerned, or indeed whether or not the Court of

Appeal's - - -

DAWSON J:  Do I understand you to say they were incorporated

in the third matter or they were regarded as being

incorporated, as it were, in the third?

MR GARNSEY:  Whether or not they are incorporated,

Your Honour, if one just looks at each of the

imputations, one sees that the issues as to whether
subsection (8) applies to each of them, as opposed
to the way the Full Court construed the matter, are
the same as were considered on appeal. The only
areas of doubt are really what are raised in the

application for special leave, plus perhaps the

additional matter that Mr Justice McHugh just

pointed to.

Your Honours, in relation to that matter - and

I am not sure that I made myself entirely clear to

Your Honours Mr Justice Brennan and

Mr Justice Dawson earlier - as to the requirements

of the phrase "fair comment" in subsection (8) and

as to whether that includes a requirement that it

be based on facts truly stated or referred to, we

submit first that the authorities are unanimous to

the effect that it does not have that effect.

Mr Justice Windeyer in Uren's case, with

respect, was only referring to the composite phrase

"fair comment" and the common law requirement of

fairness as to the comment, that is whether a

comment is honestly held, genuinely held, and is

not so extravagant so that it could not be said

that no one, no matter how prejudiced, biased

et cetera, could hold such a view in the particular

circumstances of a case. With respect, a fair

reading of that passage cannot lead to any other

conclusion.

In the New South Wales authorities which I

dealt with rather quickly, leaving aside the second

Uren case, 71 SR(NSW), which is the one

Mr Justice McHugh referred to, all the authorities

are unanimous to the effect that that requirement

of facts fairly stated is not imported into the New

South Wales section 17(h).

McHUGH J: But I was not suggesting - what the second Uren

case said is that the defendant must put before the

jury what the facts are - some evidence as to what

the facts are on which the comment is based.

MR GARNSEY: Yes, but that is, with respect, to a defence of

"fair comment".

Pervan 15 13/12/91

McHUGH J: No, no, it was 17(h) defence which is the

equivalent of a 377(8).

MR GARNSEY:  Yes, I have not read the case recently, if

Your Honour pleases, and it has not been relied on

in this case until now.

McHUGH J: Have a look at Mr Justice Walsh - l think it is

about page 51 of the report.

MR GARNSEY: Well, if Your Honour please, it does not

directly touch the point of principle that

Mr Justice Asprey in no fewer than four cases has

been quite definite about, that his brother judges

in those four cases were quite definite about and

that Mr Justice Fox in Gorton v The ABC accepted as

being correct, and in the light of what

Mr Justice Windeyer obviously says, in my

respectful submission, the matter is not attended

by sufficient doubt to warrant examination by this
Court.

And one can look at it - I have no clear recollection of the matter being argued at any

length. I do recollect referring the Full Court to

relevant authorities. Their Honours in their

judgments did not deal with the matter as being

attended with any doubt and, in my respectful

submission, as to that element, there is no reason

why special leave should be granted, and indeed it

is an inappropriate case for the grant of special

leave because there has been discussion of the
matter as a matter in issue or a matter of doubt in

the court below.

BRENNAN J: It occurs to me, Mr Garnsey, we are speaking in

very broad terms here, and it may be that the draft

notice of appeal needs to be drawn with more

precision and particularity than has thus far been

produced in order that you can address the specific

grounds of appeal and identify whether any and

which of them raises any question of general

importance or otherwise.

MR GARNSEY: 

Your Honour, there is only one ground of appeal

which, in my submission, does attempt to raise any
question of general importance, and that is as to
the requirements of the element of "fair comment"

in subsection 377(8), which I have just made

submissions on.

BRENNAN J: Yes, but we cannot really deal with that in a

vacuum. We have to deal with it in reference to

the matter that was published and the meaning which

that matter bears and at the moment it seems to me

we do not have any particularity about what that

may be.

Pervan 16 13/12/91

MR GARNSEY: Bearing in mind, if Your Honours please, that

the draft notice of appeal is not my draft notice

of appeal - - -

BRENNAN J:	I appreciate that, Mr Garnsey.
MR GARNSEY:	Your Honour's words are a trifle ominous for me

on this application, and I would submit that if

Your Honours were minded to grant special leave there would have to be a definition of two

questions, I would submit, would only be proper:

one as to the meaning of "fair comment" in

subsection (8) and as to the requirements attached

to it, and the other as to - I really cannot draft

it now, but raising the question dealing with a publication of the comment of a third party and when it can be relied upon by a proprietor.

BRENNAN J: Yes.

McHUGH J: But there is also a question as to whether or not

you are entitled to rely on 377(8) at all, full

stop.	I mean, the trial judge held that you were
not.	Now the Full Court, for very different

reasons, held that you were. What I am suggesting

to you is that it is arguable that there just was

not any evidence at all upon which 377(8) could be

raised.

MR GARNSEY:  That is if Your Honour takes one view of the

law.

McHUGH J: No, on any view, n the absence of any evidence.

MR GARNSEY: Well, we would submit that there is some

evidence, and relying on what Mr Justice Thomas

said at various stages in his judgment but -

MCHUGH J:  But the only evidence he seemed to look at was "'

the first two sentences.	He said they were
assertions of fact, and therefore you believed them

to be true and therefore they justified the comment

contained in the third sentence.

MR GARNSEY: His Honour referred to earlier publications, to

the early history of the publications on - - -

McHUGH J:  On the issue of good faith, was it not, not on

the issue of comment?

MR GARNSEY: Yes, Your Honour. But there is a legal issue,

in my respectful submission, implicit in what

Your Honour says, and the resolution of the two

questions that I have referred to are bound up with

it because if it is held that the solution of

Mr Justice Hunt in Hawke v Tamworth Newspapers as

to reliance upon the opinion of a third party comes

Pervan 17 13/12/91

down to a question of the passing of the onus, then

we would say we do not have to adduce any evidence

as to fair comment.	I mean, patently, if
Your Honour pleases, it is not our opinion.	One

looks at the publication just as in the publication

of any letter case.

McHUGH J: Yes, it is not your opinion.

BRENNAN J:  Mr Garnsey, it occurs to me that the discussion

we are having has been somewhat diffuse for reasons
which are by no means your fault, and that if we
were to grant special leave to appeal on the notice

of appeal as it is presently drafted, the

discussion would there continue to be diffuse. I

think perhaps it might be desirable if I were to

ask Mr Cullinane if he wishes to redraw his notice

of appeal to identify, in the light of the

discussion we have been having this morning, the

specific questions that could arise, and in the

light of any possible redraft then consider whether

there is a case for granting special leave or not.

If that were practicable, it would be a matter for

Mr Cullinane to redraw it, and we could stand the matter down until we reach the end of the list.

Have you any submissions to make as to that course?

MR GARNSEY:  No, Your Honour. It strikes me with deep

pessimism for reasons entirely unconnected with the

conduct of proceedings.

BRENNAN J: Thank you, Mr Garnsey. Yes, Mr Cullinane.

MR CULLINANE:  Yes, Your Honour. Obviously we would like to

avail ourselves of that opportunity.

BRENNAN J: Well, you will need to identify the imputations,

and you will need to identify the three questions

that have been discussed with Mr Garnsey.

MR CULLINANE: Yes, Your Honour. Just before it is done,

could I just say this, however. The appellant to

the Full Court was my learned friend's client and

he expressly abandoned a ground which was that the

material was not capable of bearing the imputations
pleaded. It was expressly abandoned, and the

construction that was placed upon the defamatory

material by the Full Court was done so for the

purpose of their analysis of the section 377(5) and

377(8) argument, so that we were before the

Full Court with a finding that all and any of the imputations had been accepted by the jury as being

made out and a challenge to that was expressly

abandoned by our learned friends.

BRENNAN J: Well, you might like to take some opportunity to

redraft it. It would be desirable for you to

Pervan 18 13/12/91

reduce that to writing, to fax it to the Registry

of the Court in Canberra and we will inquire when
we get to the end of the list as it presently

stands how you have proceeded in relation to the

redrafting of the notice of appeal. In the

meantime the matter will stand adjourned.

AT 12.21 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 1.43 PM:

BRENNAN J: Yes, Mr Cullinane.

MR CULLINANE:  Your Honours, I trust that the document which

was prepared has reached Your Honours.

BRENNAN J: Yes, it seems as though it has.

MR CULLINANE:  Your Honours, in our haste, one of the

grounds, ground 4, was stated a little narrowly.

We would seek to simply add the words after

"matters of comment", "or concerning the fairness

thereof". We have not, since we spoke to our

learned friend, Mr Garnsey, shortly after the

matter was stood down, been able to contact him

again, so I am not certain whether he has a copy of

the document; we trust that he has too.

BRENNAN J: You have, Mr Garnsey?

MR GARNSEY: Yes, Your Honour. It would seem to raise all

the matters mentioned by the Court on the previous

hearing.

BRENNAN J: Yes, Mr Cullinane. We will see if Mr Garnsey

has anything to say about this. Mr Garnsey.

MR GARNSEY:  If Your Honour pleases, I have nothing to say

about the grounds of appeal as reformulated and any

submissions as to costs would appear to be

appropriately made upon the determination of the

appeal.

BRENNAN J: Yes, very well. Having regard to the terms of

the amended draft notice of appeal, there will be a

grant of special leave in this case.

Adjourn the Court to a date to be fixed.

AT 1.46 PM THE MATTER WAS ADJOURNED SINE DIE

Pervan 19 13/12/91