Pervan v The North QUeensland Newspaper Company Ltd

[1992] HCATrans 324

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl of 1992

B e t w e e n -

GEORGE ANTHONY PERVAN

Appellant

and

THE NORTH QUEENSLAND NEWSPAPER

COMPANY LIMITED

First Respondent

HERBERT WILLIAM LAYT

Second Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J

Pervan(2) 1 5/11/92

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 NOVEMBER 1992, AT 11.11 AM

Copyright in the High Court of Australia

MR R.N. CHESTERMAN, QC:  May it please the Court, I appear

with MR A.J.MOON for the appellant.	(instructed by
B.K. Gillan)

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)

MASON CJ:	Mr Chesterman?
MR CHESTERMAN:	May it please Your Honour, may I pass up

copies of our synopsis of argument?

MASON CJ: Yes.

MR CHESTERMAN:  May it please Your Honours. The appellant

obtained a verdict for $4000, together with

interest, after a trial before a judge and jury in

the District Court at Innisfail. The defamatory

matter published is exhibit 1, which Your Honours

can see at page 201 of the record. It consisted of

an advertisement placed in the classified section

of the Innisfail Advocate appearing on Tuesday,

12 August 1986. The Innisfail Advocate is a small

local newspaper. It comes out, I think, three

times a week on the evidence. The defamation is in
the words, "Councillors feathering their own nests?

Funds being misappropriated? This is doing

irrepairable damage to the image of our shire. It

is now more important than ever to attend the ratepayers and residents meeting at the Grand Central Hotel" that night. The Grand Central Hotel, Your Honours, was a hotel in Innisfail.

The respondent pleaded, among other things,

that the publication was made lawful by the
provisions of section 377(8) of the Criminal Code

and by section 377(5) of the Code. The trial judge

ruled that the defamatory matter consisted of

comment which was not fair and he withdrew the

defence from the jury. The trial judge also

withdrew from the jury a defence under

section 377(5). The jury therefore had to consider

only whether the publication was defamatory,

whether it referred to the plaintiff and what

damages should be assessed.

Your Honours, the factual background appears

in the judgment of Mr Justice Thomas who gave the

leading judgment at pages 221 to 224 of the record

and at 235 to 236 of the record. At 221, line 55,
His Honour said:

The factual background to the claim is that the plaintiff was a member of the nine

member Johnstone Shire Council and Chairman of

the Works Committee of that Council. On

Pervan(2) 2 5/11/92

5th August, 1986 one Max Menzel ML.A made a

speech in the Legislative Assembly containing

accusations against the Council of misuse of

flood relief funds, and in particular

attacking the respondent. He alleged that the

respondent had built an industrial complex in

Innisfail, had had Council staff cut down

trees to enable the building to be seen more

clearly, that the Council had filled a reserve

near the complex so that it could build a
roadway to it, and that all this work was paid

for out of disaster relief funds. There were
numerous other allegations including
intimidation of staff, that the appellant had

used taxpayers' money to further his business

interests and that councillors had been

feathering their own nests.

Your Honours, that reference should be to the

respondent using taxpayers' money, I think.

On 7th and 9th August the appellant published

a fair report of the allegations that had been

made in Parliament. It also on 9th August
published replies to those allegations

including the substance of a letter written by

the Council to Mr Menzel in response to the

allegations, and various responses by

councillors. It also published the substance

of a letter written by the respondent's

brother -

I will not read that, Your Honours, but it refuted

the claims made. Then at page 223, line 35:

Without reciting the publicity that

preceded the relevant advertisement in further

detail it is enough to say that up to and

including 11th August there had been

apparently even-handed conduct in reporting by

the appellant newspaper. There had been the

initial report of serious allegations made

against the respondent in Parliament, and

further reports of contrary allegations and

convincing denials on behalf of the respondent

and the Johnstone Shire Council.

Then on 12th August an advertisement

appeared in the Innisfail advocate which is

the subject of the present proceedings. It

appeared in the "Public Notices" section of

the classified advertisements on p 14. The appellant did not compose the advertisement

and placed it at the request of one

Herbert Layt who paid the appropriate fee. It

was not suggested that the appellant placed it

in any special position or prominence.

Pervan(2) 5/11/92

Then His Honour set out the terms of the

advertisement. Can I then go to page 235, may it

please Your Honours, to conclude the recital of

facts. Reading from line 35 at page 235:

In the present case, whether it was

appropriate to do so or not, the plaintiff

called evidence to show that the allegations

were false. There was no issue in relation to

truth and no attempt was made to suggest that

the allegations were objectively true. Nor

was any attempt made by the defendant to prove

any belief that the substance of the earlier

allegations was true. The evidence also

showed that the defendant had no system which

seriously attempted to "vet" or examine the

potential defamatory content of

advertisements. Advertisements were either

telephoned to a clerk or handed to a counter

attendant. Such employees would refer an

advertisement to an editor or a superior

officer if it looked controversial. Counsel

for the defendant described it at its highest

as "a rather primitive system. The girl at

the counter checked the ads and if she thought
there was something untoward it was referred

to the editorial system."

And His Honour says:

Underlying the whole issue of qualified privilege in this case is the fact that the

defendant did not exercise its mind at any

managerial level in relation to the matter.

It was published in a state of ignorance contributed to by its own primitive system.

Your Honours, the respondent appealed from the

verdict to the Full Court of the Supreme Court of

Queensland.	The appeal was limited to whether the
trial judge had correctly withdrawn the two
defences from the jury.	The Full Court held that

the trial judge had correctly withdrawn the defence

which raised section 377(5), but it held that he
was wrong in withdrawing the defence under

section 377(8). This appeal, may it please

Your Honours, is concerned only with that

conclusion.

Your Honours, the matter is dealt with in each

of the judgments, principally, in the judgment of

Mr Justice Thomas, but perhaps we should start at

page 219 where it is dealt with in the judgment of

Mr Justice Demack. His Honour said, at about line 36:

Pervan(2) 5/11/92

So far ass. 377(8) is concerned, the issue that has concerned me most is whether

the common law rule that a comment must be

based on facts truly stated has any place

under s. 377(8). The issue arises very

sharply because I regard the first two

sentences in the advertisement as asserting

has been published, and, in the light of the

facts and the third sentence as a comment.

evidence at the trial, there can be no doubt

that the facts asserted in the first two

sentences have not been proved to be true.

In Rigby v Associated Newspapers Ltd

(1968) 1 NSWR 325, the Court of Appeal

considered s 17(h) of the Defamation Act -

which was, Your Honours, in identical terms to

section 377(8) of the Queensland Code.

Mr Justice Sugerman said:

"It is true that at common law the defence of

fair comment requires that the comment be upon

facts truly stated, or notorious to the writer

and those persons to whom the comment is

published. But in my opinion it would be

contrary to the tenor of s. 17 to impose such

a requirement upon it. In so far ass. 17

concerns itself with the truth of defamatory

matter it does so under its requirement of

good faith. And what is there required is not

that the defamatory matter shall be in fact

true but that it shall not be believed to be

untrue. It appears to me that that is the

proper approach to the matter of fair comment

under s. 17 - not that it must necessarily be

comment upon facts which are true, but that it

must be comment upon facts which at least are

not believed to be untrue and whose statement

as facts is therefore protected, subject to

other requirements of 'good faith'.

And His Honour says:

In my opinion, this is correct, and that

it applies to s. 377(8). It was accepted as

correct by Fox J. in Gorton v Australian

Broadcasting Commission.

Mr Justice Thomas dealt with it at

pages 239 to 242. Starting at line 35, His Honour

said:

I turn to s 377(8).

Pervan(2) 5/11/92

It is not easy to identify the ruling on

this issue, but it appears to incorporate the

last part of the reasons already set out in

relation to the s 377(5) ruling.

Your Honour will find those, may it please you, at

page 228 of the record.	He then concludes,
quoting:

"Perhaps we had better see where

subsection (8) has been left. There does not

appear to be any other area that is really

left for the jury to consider as to whether

there is any public benefit. In that case,

good faith goes. If they go, then good faith

goes as an issue for the jury".

That was said on the afternoon of the fourth

day, following the ruling previously quoted in

respect of s 377 (5). The next day further

argument occurred and in the course of that

His Honour said:-

"At the same time, there has been no evidence

put before me that would, in my view, support

an inference that the publisher had any

opinion as to the truth or falsity of the
contents of the first two sentences or,

indeed, the third at the time of publication."

and

"In other words, it may be coincidental, for

present purposes. I am of the view that on the evidence at this stage the comments are also untrue."

His Honour goes on:

As I understand those passages His Honour

is saying that the comment is not fair because

the previously published articles indicated
that the assertions in the first two sentences
of the advertisement were denied: also there

was no evidence that they were true. I do not

understand how that leads to the conclusion

thats 377(8) could not be left to the jury.

It would seem that the learned trial

judge took the view (inter alia) that to the

extent to which the publication consisted of

comment, the comment was not fair. This seems

to have proceeded on the view that the first

two sentences amounted to comment whilst the

third sentence amounted to a statement of

fact. To the contrary in my view the factual

content is embodied in the first two

Pervan(2) 6 5/11/92

sentences, and the comment is contained in the

third. I confess to perplexity as to the true

basis of this particular ruling, and am once

again driven to analyse the evidence and

endeavour to ascertain whether a conclusion

can properly be reached by this Court on the

question. In undertaking this exercise I am

aided by the circumstance that the evidence

does not appear to be in conflict on material

issues.

The statements capable of comprising

relevant factual allegations are the
rhetorical statements in the first two

sentences, aided by the first two words of the

third sentence - "This is"-. It is the third

sentence, which plainly expresses the opinion

that the reputation of the Shire has been

damaged, which may be regarded as comment.

The requirement that any component of comment

be fair is of course a statutory ingredient of the defence. In Australian Consolidated Press

Ltd v Uren (1965 -1966) 117 CLR 185, 208,

Windeyer J, on the premise that "fair comment" has its common law meaning, concluded that a

defendant who invokes the protection of a

provision equivalent to s 377(8) must first

show that the comment is "fair" in an

objective sense". To the extent to which the

third sentence consists of comment, the
comment is a reasonable and arguably correct

conclusion from the preceding statements of

fact upon which it was premised. To the

extent that it consists of comment the comment

was in my view fair. The circumstance that

the facts are now with the benefit of
hindsight shown to be untrue does not destroy

the defence. It is not a requirement of the

defence that the comments be objectively true

(Rigby v Associated Newspapers (1966) 68 SRNSW

414, 437; Gorton v ABC (1977) 22 FLR 181, 191;

cf Calwell v Ipec Australia Ltd. This does

not mean that whenever some topic of genuine
public interest arises a newspaper may publish

untrue statements with impunity. The limited

protection against untrue defamation comes in

the requirements that the comments be fair and

that the publication be made in good faith.

Now, that is all I wish to read from the record.

Your Honours, in our submission, the first

three sentences of the publication were capable of

being a comment or of being regarded as comment.

The trial judge had expressed a view that the first

two sentences were comment and the third was a

statement of fact. The Full Court took the

Pervan(2) 5/11/92

contrary view but, in our submission, with respect, all of the sentences were capable of being regarded

as comment.

GAUDRON J:  Whose function is that to determine?

MR CHESTERMAN: In our submission, with respect, the jury's.

GAUDRON J:  Was the premise underlying Mr Justice Thomas'

reasoning that it is not the jury's function? It

seems to be.

MR CHESTERMAN:  We had a criticism of the judgment that it

does not address the correct point which was who
does determine whether it is comment or not. It

proceeds on the basis that it is a matter for the court rather than for the jury and we submit that

was an error. But the Full Court did not discuss

that at all, Your Honour. We are critical of it

for not doing so. It is only if the first two

sentences are not capable of being comment that the

Full Court could have expressed that view, but they

do not address that point; they address a different

point, whether it was comment.

GAUDRON J: Are not capable of being comment, yes.

MR CHESTERMAN:  Yes. As we understand the authorities, may

it please Your Honour - - -

DEANE J:  Do we not proceed on the basis most unfavourable

to you?

MR CHESTERMAN:  Your Honour can, of course.

DEANE J: Because you are saying it was rightly taken away

from the jury.

MR CHESTERMAN: Yes, Your Honour, but on a different point;

it was not taken away on that point.	It was taken
away because the trial judge was invited to

determine whether the comment was fair and he said

it was not.

DEANE J:	But in deciding whether it was rightly taken away, do we not proceed on the most unfavourable view, so
far as you are concerned, as to what the jury might
have found?
MR CHESTERMAN:	Normally I would concede that, Your Honour;

in this case the point really was not addressed.

Your Honours, in the synopsis we set out the relevant provision of the Code, section 377(8),

which is, as we understand it, in identical terms

to section 17(h) of the New South Wales Defamation

Act passed in 1958 in which there have been some

Pervan(2) 5/11/92

decisions. The matter of particular interest is

the concluding phrase:

if, so far as the defamatory matter consists

of comment, the comment is fair.

It is our submission, may it please Your Honours,

that that concluding phrase imports the common law

requirement that fair comment be an honest or
genuine opinion expressed with regard to facts that

based are those set out in the first two sentences of the defamatory publication, that is, that the appellant was a councillor feathering his own next

are truly stated or identified. If, as the

and misappropriating funds, those facts were proved

to be untrue. If the whole of the publication

consisted of comment, then no facts were proved as

the basis for the opinion.

Your Honours, we say perhaps unfortunately

that there are two conflicting streams of thought -

I think perhaps we should have said two lines of authority - but can I go to the first of those,

some remarks of Justice Windeyer in Australian

Consolidated Press v Uren, 117 CLR 185, at

page 208.

BRENNAN J:  Mr Chesterman, what is the comment with which we

are here concerned? And I ask the question in the

light of the imputations that were pleaded.

MR CHESTERMAN:  Your Honour, we are not pressing paragraph 5

of the grounds of appeal, which is that the

Full Court should have regard of the matter in

light of the imputations pleaded, because it seems

to us, with respect, that none of the imputations

pleaded, in fact, take the matter any further than

the actual words themselves.

BRENNAN J:  What was the comment?

MR CHESTERMAN: There are two views, may it please

Your Honour. The view of the Full Court was that

the comment was the last sentence - "this is doing

irreparable damage to the image of the Shire." We

submit an alternative view is that all of the three

sentences were capable of being comment.

BRENNAN J:  And is that comment capable of being defamatory

of the plaintiff?

MR CHESTERMAN:  We would submit so. The jury said he found

it was defamatory.

BRENNAN J:  What does it say of the plaintiff?

Pervan(2) 9 5/11/92

MR CHESTERMAN:	What does it say of the plaintiff?
BRENNAN J:	What does that comment say of the plaintiff?

MR CHESTERMAN: That he was enriching himself from public

moneys, in a nutshell; that he was using public

moneys to advance his own business interests.

BRENNAN J: Is that a matter of comment?

MR CHESTERMAN:  The way it was expressed, we would submit

so, Your Honour, with respect. What is said,

really, is - the jury found that the publication

referred to the plaintiff. So that we can make the

submission that what the material said was the

appellant was feathering his own nest from public

moneys and doing irreparable damage to the image of

the shire. That is really a comment or an opinion

or a conclusion not a statement of fact as such.

It is really an inference or a conclusion from

facts and, we would submit, the defamatory meaning

or imputation is that the appellant was improperly

using public moneys to enrich himself or further

his own business interests.

GAUDRON J: Are you conceding it is comment or that it is

capable of being comment?

MR CHESTERMAN:  Our submission is it is capable of being

comment because we submit it is for the jury to say

whether it was.

GAUDRON J: Yes, and your best position is if it is fact, is

it not?

McHUGH J:  No, that is your worst position, is it not?

MR CHESTERMAN:  That is our worst position, yes. I think

His Honour Justice McHugh is correct, Your Honour.

Our worst position is if it is fact because if it

is comment then we have the argument that it had to

be fair. If it is fact, then it is enough if the

respondent did not believe it to be untrue. So if

it is not comment or not capable of being comment I

think we are in trouble.	I think I would have to
concede that.

Your Honours, can I go to the authority at

page 208, the passage where he starts at 207.

His Honour sets out the substance of

paragraph 17(h) of the New South Wales Defamation

Act and then sections 18 and 19, and His Honour says:

section 17(h) has no direct common-law

ancestor, although its several phrases recall

various statements of common-law principle.

Pervan(2) 10 MR CHESTERMAN, QC 5/11/92

It is not a statutory counterpart of the

common-law defence of fair comment. That is

to be found, within the limits prescribed, in

s 15 ands 10. Fair comment in that sense is

lawful as at common law. The statutory

arrangement seems to displace

Sir John Salmond's view that fair comment is

an instance of qualified privilege. But fair

comment does not arise for consideration in

this case, except indirectly in so far as the

concluding words of s 17(h) refer to fair

comment. These concluding words were not in

s 17(8} of the Queensland statute of 1889.

That was the defamation law of Queensland, may it

please Your Honours.

McHUGH J: That is a point not without importance, is it

not, because prior to what Sir Samuel Griffith

called the "verbal alterations", even a comment was

protected by the first limb of - - -?

MR CHESTERMAN:  Indeed so, Your Honour. We submit it is an

important fact, that it was put in the Code for

some apparent purpose, yes.

They are among the "verbal alterations"

introduced by Sir Samuel Griffith into

s 377(8) of the Criminal Code.

Then the next passage is the important one:

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 & Co Ltd in mind, seems to mean that the

defendant who invokes the protection of

s 17(h) for any matter of comment must first

sense before the onus is put upon the	shew that comment to be fair in an objective
plaintiff to establish that it was not made in
good faith: see Salmond on Torts. That is how
the question was dealt with at the trial. It
is perhaps debatable; but it was not debated
before us. I therefore say no more about it.

Your Honours, you can see from the previous page,

section 18 of the Defamation Act is in the same

terms as section 378 of the Criminal Code which

simply says that good faith is presumed - if the

privileged occasions are made out - and the

plaintiff must establish the absence of good faith.

Thomas v Bradbury, Agnew & Co, was a case at

common law to the like effect, establishing that,

where a defendant established that a defamation was

Pervan(2) 11 MR CHESTERMAN, QC 5/11/92

comment and was objectively fair, the plaintiff

could prove that it was not fair by establishing

malice.

In our submission, what His Honour is saying

in that passage is that the provision of

section 377(8) has two separate elements, both of

which must be established if the defendant is to

get the benefit of the statutory protection.

If the defamatory matter is or consists of

comment, then it must be established that the

comment is fair. It is only if it is proved that

the comment is fair that one turns to consider

whether it was published in good faith. We submit

that His Honour had in mind that the test for

determining whether the comment was fair was the

common law test, that is, an honest opinion

expressed on facts that were shown to be true.

Your Honours, in Calwell v Ipec Australia Ltd,

in this Court, 135 CLR 321, at page 334,

Justice Jacobs expressed his agreement with what
Justice Windeyer had said in the passage I have

just read.

The primary point in Calwell's case was the

respective function of judge and jury when a
defence of qualified privilege is raised. At the

foot of page 334, His Honour said, having referred

to section 17(h) of the New South Wales

legislation:

I respectfully agree with the view which was

tentatively expressed by Windeyer Jin

Australian Consolidated Press Ltd v Uren -

which is the passage I read -

in relation to this paragraph.

So we submit that that approach to the problem has

the approval of two Justices of this Court.

Your Honours, the opposing line of authority

starts with Rigby v Associated Newspapers Ltd.	The
reference we have given Your Honours is in the
State Reports, New South Wales, rather than the
unauthorized reports.	The passage appears at 425

in the judgment of Mr Justice Sugerman. It is the

passage set out from a different report in the

judgment of Mr Justice Demack. At 425 in the first

passage to start on that page and four lines into

it, His Honour said:

It is true that at common law the defence of

fair comment requires that the comment be upon

Pervan(2) 12 5/11/92

facts truly stated, or notorious to the writer

and those persons to whom the comment is

published. But in my opinion it would be

contrary to the tenor of s 17 to impose such a

requirement upon it. In so far ass 17

concerns itself with the truth of defamatory

matter it does so under its requirement of

good faith. And what is there required is not

that the defamatory matter shall be in fact

true but that it shall not be believed to be

untrue. It appears to me that that is the

proper approach to the matter of fair comment

under s 17 - not that it must necessarily be

comment upon facts which are true, but that it

must be comment upon facts which at least are

not believed to be untrue and whose statement

as facts is therefore protected, subject to

other requirements of "good faith", by the

section.

Your Honours, as we apprehend it, the nub of the

reasoning is in the sentence that starts, "In so

far ass 17 concerns itself with the truth of

defamatory matter, it does so under its requirement

of good faith." We would criticize that, with

respect, Your Honours, for confusing the statutory

definition of good faith with the statutory

requirement that the comment be fair.

We submit that the subsection has two

cumulative components: fair comment, when the

material consists of comment, and that it be

published in good faith, and that both have to be

complied with separately before the defence is made

out and that it is a mistake on His Honour's part,

we submit with respect, to confuse the ingredients

of good faith set out by definition in the statute

with fair comment, the ingredients of which are not

set out by definition in the statute.

McHUGH J: Is there not a further weakness in that

reasoning? It seems to assume that defamatory

comment, for the purpose of 17(h) or 377(8), is

always on defamatory facts.

MR CHESTERMAN:  Yes, Your Honour.

McHUGH J: It also seems to assume that the defamatory facts

are in the article but, quite commonly, the facts which are the basis of the defamatory comment are not themselves defamatory and may be outside the

article.

MR CHESTERMAN:  We respectfully would accept that. The case

where there were no facts at all stated was dealt
with in a later case in the Court of Appeal, which

we will come to, the second Uren case in the Court

Pervan(2) 13 5/11/92

of Appeal. May we say that with respect to this

case, if our submission were accepted that the

whole of the article were capable of being comment,

then there would be no facts at all in the article

which could justify it. But certainly we submit

that the reasoning is erroneous and that it is a

mistake to confuse the requirement that a fair

comment be established with requirement that good

faith be established. The question of absence of

belief in the untruth of a statement is a relevant

matter only for good faith, not for fair comment.

McHUGH J:  What do you say about what Mr Justice Walsh said

at 437?

MR CHESTERMAN:  437? We say in the synopsis that

Mr Justice Walsh appeared to agree, but on

reflection his agreement, perhaps, is equivocal.

What His Honour says is at 437, just about half-

way down in the short paragraph, he said:

It is unnecessary to decide upon the

submission made on behalf of the respondent

relating to that part of section 17(h) which

refers to comment. However, I agree with

Sugerman J.A. that it is not possible to apply

to a question of fair comment arising under section 17(h) all the concepts and rules of

the common law defence of fair comment.

It is not entirely clear what His Honour had in

mind, but it may fall short of a complete

endorsement of what Mr Justice Sugerman had said.

Your Honours, in this second Uren case, Uren v

Australian Consolidated Press Ltd, 71 SR(NSW) 42,

Mr Justice Sugerman reaffirmed the view.

His Honour said:

the question of fair comment under

section 17(h) should not, in my opinion, be

confused with the defence of fair comment at

common law or under section 15 of the statute.

I have endeavoured to state my views as to one

aspect of fair comment under section 17(h) in what was there said: "In support of the point

which Mr Evatt sought to make as to fair

comment, the effect of his submission was to

assimilate fair comment under section 17 of

the Defamation Act to fair comment at common

law, or, possibly, under section 15 of the

Defamation Act. It is true that at common law

the defence of fair comment requires that the

comment be upon facts truly stated, or

notorious to the writer and those persons to

whom the comment is published. But in my

Pervan(2) 14 5/11/92

opinion it would be contrary to the tenor of

section 17 to impose such a requirement upon

it. In so far as section 17 concerns itself
with the truth of defamatory matter it does so

under its requirement of good faith.

And then he repeats what was said in the earlier

judgment.

Your Honours, while I have this authority, may

I take you to some other passages in it? The point

at issue was an article which contained defamatory

comment, a comment defamatory of the plaintiff but

which contained no facts. That is, the defamatory
material was all comment without fact and the Court
of Appeal held that meant that the defendant could

not make out the defence under section 17(h)

because it said the statute gives it offence, the

defendant, the publisher, must make out the defence

and to make out a defence of fair comment, some

facts must be proved to establish that the comment

was fair. In that case, there being no facts at

all, the defence was not made out.

That is relevant, we submit, because if the

Court accepts the submission that the whole of the

article in question here was capable of being

defamatory, then those remarks of the Court of

Appeal would be apposite. Even if the Full Court's

view were correct that part only of the publication

was comment, still the remarks of the Court of upon the defendant proving some factual basis for the comment.

Can I ask the Court to look at page 32 of the

case in the judgment of Mr Justice Wallace.	It is
opposite letter E. His Honour said:

But no evidence was led by the respondent in

cross examination or otherwise tending to prove that the comment was fair, although section 17(h) of the Defamation Act ..... was

the defence.

Then at letter G:

But on the construction which I give to

section 17(h) the onus is on a defendant who

pleads such a defence to prove that the

defamatory comment was fair. The statutory

scheme evidenced by sections 5, 9 and 17 seems

on ordinary principles of construction

tolerably clear. If a defendant, in a case

where its publication is ex hypothesi

defamatory and therefore by statute unlawful

(section 9), raises and relies upon a

Pervan(2) 15 5/11/92

permitted statutory "excuse" it would seem odd

if it did not have the onus of establishing

its excuse. The relevant wording of

section 17(h) may be summarized thus: "It is

a lawful excuse for the publication of

defamatory matter if, so far as it consists of

comment, the comment is fair", and this

wording I think confirms the view that a

defendant who seeks to avoid the consequences

of an otherwise unlawful and actionable
publication bears the burden of establishing

that he or it is lawfully excused.

And to the same effect is the judgment of

Mr Justice Sugerman at 43, between letters A and B

the passage starts, His Honour said:

I do not agree that the onus of proving

unfairness lay on the plaintiff or that, as

Mr. Larkins put it, there is a presumption of

fairness. It may be taken to have been the

position at common law that the onus was on

the plaintiff ..... But under s. 17(h) of the

Act, as under s. 15, fair comment is matter of

defence to the wrong of publishing defamatory

matter whose publication, if the defence is

not made out, is unlawful. It therefore

appears that on ordinary principles the onus

of establishing all the ingredients of the

defence is on the defendant.

And then His Honour goes on:

It is convenient to notice here certain further matters which were argued as to fair

comment. I do not agree with Mr. McHugh that

s. 17(h) is not available as a defence where

the defendant relies entirely on comment. It is true that the paragraph uses the words "so

far as the defamatory matter consists entirely

of comment". But, as I have said, there must

be a substratum of fact either stated or

sufficiently indicated.

Then at page 51 in the judgment of

Mr Justice Walsh, just above letter E, His Honour

said:

I am of the opinion that the plea by the

defendant in this action, based upon s. 17(h)

of the Act, could not succeed unless some

facts were placed before the jury concerning

the plaintiff's political life, by reference

to which a judgment could be made as to the

fairness of the comments.

Pervan(2) 16 5/11/92

Your Honours, we seek to gain some support from

that statement. They were, of course, made in the

context of a case in which the defamatory article

was all comment and there were no facts, but, we

submit, if it be right in such a case to require

some facts to be established by which the comment

can be determined to be fair or unfair, what must

be established are facts and facts by definition

must be true. Assertions which turn out to be

untrue are not facts and cannot, in our submission,

justify a fair comment or make a comment fair.

And, we submit, that is a telling reason why the

requirement as to fair comment in the Code is the

same as the common law which required the facts to

be truly stated.

BRENNAN J: But 377 is a section dealing with qualified

protection, is it not?

MR CHESTERMAN:	Yes, Your Honour.
BRENNAN J:	And the qualification is the good faith.
MR CHESTERMAN:	And fair comment where the defamatory

material consists of comment, Your Honour.

BRENNAN J: If one looks, one compares 377 with 375, one

finds that fair comment can be protected under 375,

so that the difference between protection and

qualified protection seems to lie in the good faith

requirement.

MR CHESTERMAN:  We submit, no, Your Honour.

BRENNAN J: But why not?

MR CHESTERMAN:  Because in 3775(8), both requirements are

set forth; the defendant must establish both.

With respect, the phrase must mean something. If

all that is required is that the publication be in	good faith, then there would be no scope given to
that part of the subsection. The comment must be
both fair and it must be published in good faith
and any other circumstances required.

BRENNAN J:  I must say as a matter of construction of the

section, perhaps too simplistically, it seems to me

that publication in good faith does qualify both

limbs, an interpretation which is assisted by the

conjunctive "and", and perhaps buttressed little by

a comparison between 375 and 377.

MR CHESTERMAN:  We would submit, with respect, that the

conjunction requires that both separate elements be

made out, that the comment be fair and that it be

in good faith, and that the definition of good

faith cannot determine what is fair comment.

Pervan(2) 17 5/11/92

Your Honour, if that were so, with respect, the

concluding phrase would really have no scope to

operate.

BRENNAN J:	Why is it not necessary to have it there in order to deal with comment that is based on facts
published in good faith?
MR CHESTERMAN:	Because to be fair, the comment must be with

respect to facts that are truly stated, that it

would not be necessary to establish good faith.	It
is a separate superadded requirement, in our submission.

Your Honours, we should take the Court quickly

to the other cases referred to in the synopsis.

The reference in Gorton's case is really quite

brief. It is 22 FLR 181 at 193. His Honour simply

accepts without discussion what had been laid down

in the earlier case. The passage starts at the

bottom of 193. Having referred to fair comment,

His Honour says:

Fairness in this sense has the meaning

customarily given to it in defamation law

(Rigby v Associated Newspapers Ltd;	Uren v
Australian Consolidated Press Ltd) -

which is a reference to the case in the Court of

Appeal.

it is not necessary that it be shown to be

"true" but it must have been an honest

expression of opinion, and such as a

fair-minded person might make.

Your Honours, there is nothing else in that case we

wish to go to.

Can we then refer to the next three cases, two

of them judgments of Mr Justice Asprey sitting in

chambers, and the third a judgment of the Court of

Appeal on reference from such an application.	Each
of them is concerned with an application for
particulars of a defence which pleaded fair

comment. Particulars were sought in each case of

what was fact and what was comment in the defence·

being set up, and in each case Mr Justice Asprey

said that the defence in 17(h) of the Defamation

Act was not a plea of fair comment as understood at

common law.

In Clines v Australian Consolidated Press Ltd

(No 2), (1965) NSWR 1407 at 1412, His Honour said

at line 25, referring to the seventh plea in the

defence:

Pervan(2) 18 5/11/92

This is a plea based on s 17(h) of the

Act. It was sought to found this request upon

the new r 18A of Order XIV inserted in lieu of the then existing r 18A ..... but I am satisfied
that this is not a plea of fair comment but is

a plea of qualified protection and that the
issue thereunder is not whether the facts upon
which the comment is made are true or false
but, be the facts true or false, whether the

matter complained of was published for the

purpose of the discussion of subjects of

public interest, whether the public discussion thereof was for the public benefit and whether

the matter complained of, so far as it

consisted of comment, was comment fairly made

in the circumstances.

There is no other discussion of the point. In

Cohen v Mirror Newspapers Ltd, (1965)

83 WN(Pt l)(NSW) 269 at 373 to 374, the passage is

equally brief. At the bottom of 373, His Honour

said:

The sixth plea reads as follows: "6. And

for a sixth plea the defendant says that the

matter complained of was published in the

course of or for the purposes of the

discussion of a subject of public interest the

public discussion of which was for the public

benefit and that in so far as the matter

complained of consists of comment such comment

was fair." This is a plea based on

section 17(h) of the Act. Particulars have

been asked for on the basis that this is a

plea of fair comment but it is not a plea of

fair comment, in my opinion, but is a plea of

qualified protection. The issue thereunder is

not whether the facts upon which the comment

is made are true or false but, be the facts

true or false, whether the matter complained

of was published for the purpose of the
discussion of a subject of public interest,
whether the public discussion thereof was for

the public benefit and whether the matter

complained of, so far as it consisted of

comment, was comment fairly made in the

circumstances.

And His Honour goes on to say what particulars

should be supplied.

Again, there is no further discussion, and in

the third of the cases, the matter is equally

briefly dealt with in the judgment of

Mr Justice Asprey, page 12 in the case of

Denham v Mirror Newspapers Ltd, (1966) 86 WN Pt 2

Pervan(2) 19 5/11/92

NSW 1, at page 12. His Honour said, just below

half-way down:

The eighth plea is based upon

section 17(h) of the Act. Rule 18A(l) by its

very terms applies only to a plea of fair

comment. I have already expressed the view in Clines v Australian Consolidated Press Ltd and

in Cohen v Mirror Newspapers Ltd that a plea

based on section 17(h) of the Act is not a

plea of fair comment. If I correctly

understand the views expressed by

Justice Windeyer in Australian Consolidated

Press Ltd v Uren his observations would appear

to confirm the views which I have expressed.

And that is that. The other two judges,

Mr Justice Wallace and Mr Justice Walsh, agreed

with Mr Justice Asprey on that point.

And again, the point at issue, really, was one

of construction of New South Wales Rules of Court

and whether particulars could be ordered rather

than any wider question of principle. In our

submission, may it please Your Honours, the

opinion, which we submit was expressed by

Justice Windeyer and agreed in by Justice Jacobs,

should be preferred to the view taken by the

Court of Appeal and Mr Justice Asprey. We submit

that the conclusion should be, with respect, that

the defendant must, as he has at common law, to

show that the comment is fair in the sense that
there are facts that are truly set out are referred

to, which justify the comment in the sense that the

comment is one which could be honestly expressed

with reference to those facts. We submit it is

only if the defendant gets to that stage that the

plaintiff is obliged to show the publication was

not made in good faith.

BRENNAN J:

Mr Chesterman, if their arguments be right, what

is the appropriate defence, if any, when there is a

fair comment on any of the matters referred to in

section 375? In other words, what function do

these words in section 377(8) have?

MR CHESTERMAN:  Your Honour, they had this function, that if

they were not there, section 377(8) would protect

defamatory statements of fact and defamatory

statements of opinion, defamatory comments.

Section 377(8) requires that where it consists of

comment, it must be fair, in the same sense, we

submit, as section 375 requires them to be fair.

Otherwise there would be complete protection for

anyone who published defamatory comment in good

faith in the circumstances defined in the

subsection.

Pervan(2) 20 5/11/92

BRENNAN J: There is an offense if they publish a fair

comment on any of the matters in 375, is there not?

MR CHESTERMAN:	But they are limited, Your Honour.
BRENNAN J:	They are limited, indeed, and if you want an

extension of limitation in 375, you must go to 377

in relation to comment.

MR CHESTERMAN:  As we would see it, with respect, 375 sets

out that it is lawful to publish fair comment in

any one of the eight defined circumstances, but in

no other.

BRENNAN J: 

Each of those, one would think, being the

subject of some public interest, the public
discussion of which is for the public benefit.

MR CHESTERMAN: That may well be so, Your Honour, but one

may publish comment beyond those circumstances,

which would not then attract the protection of

section 375.

BRENNAN J: Well now, if one does publish comment beyond

those circumstances, is not good faith the

qualification?

MR CHESTERMAN:  If the comment is fair in the same sense.

BRENNAN J: But why should one then look for the same sense

in the way in which you are putting it, that is,

look to the actual facts.

MR CHESTERMAN:  I am not sure I am really following what

Your Honour is putting to me.

BRENNAN J:  Your proposition, as I understand it, is that

fair comment at the end of 377(8) must be based

upon facts truly stated.

MR CHESTERMAN:  Yes, Your Honour.

BRENNAN J: Is that rigth?

MR CHESTERMAN:	Yes.
BRENNAN J:	Now that is the requirement in relation to 375.
MR CHESTERMAN:	Yes, Your Honour.

BRENNAN J: Well now, if one looks at 375 as covering all

those cases in which it is legitimate without any

question of good faith to make a fair comment,

provided it is based on facts truly stated, and

377(8) goes to other situations where the

discussion is appropriate, where it is an occasion

of qualified privilege, well then, does one not

Pervan(2) 21 5/11/92

look to good faith as the governing qualification

in 377(8), and looking to it in that way, regard

the comment that is to be made there, as a comment

on that which is published in good faith.

MR CHESTERMAN:  That would not cover the point with respect,

where, what was published was only comment, where

there were no facts.

BRENNAN J:  If it is published where it is comment only and

there are no facts, what defence do you say arises

under 377(8)?

MR CHESTERMAN: If our submission is correct, the comment

must be fair on the basis that facts are proved

which would justify the comment, that is, make it

fair.

BRENNAN J:  And could be made then on any of the occasions

referred to in 377(8)?

MR CHESTERMAN:  I am not quite sure I follow Your Honour's

point in that.

BRENNAN J: Perhaps I am not putting it clearly enough. If

the 377(8) "fair comment" defence can apply when no

facts are stated in the article, then it is in the
same situation in your submission as it is in any

of the cases instanced in 375.

MR CHESTERMAN: Well, to this extent I agree, with respect,

Your Honour, that in both 375 and 377(8), facts

must be proved which objectively justify the

comment. The distinction I would see, with

respect, Your Honour, is that the circumstances in

which "fair comment" is a defence under 375 are

quite special. They are defined, they are eight in

number, eight in category and 377 will cover "fair

comment" made beyond those circumstances if it is

"fair comment" and if it is made in good faith, and

in the other circumstances required.

McHUGH J: 377 does not require a "fair comment" on the

subject of public interest. It may be, but it can
be in the course of, or for the purposes ofa a

discussion- - -

MR CHESTERMAN:  I think I was trying to grope towards that,

yes, that a defamatory comment may be made in

circumstances beyond those categorized in section

375, and it is only if they then comply with, or

come within the defence provided by 377(8) that

they are protected, and that is the best answer I

think I can give.

McHUGH J: But the critical question is what are the indicia

of fairness for the purpose of 377(8)? Common law

Pervan(2) 22 5/11/92

comment was not based on facts proved to be true

could not be regarded as a fair comment. The

question is whether or not, in dealing with 377(8),

you must prove some facts which are the basis of a

comment. Perhaps one view is that when it is all

comment, 377(8) does not apply at all. That view

was rejected in Uren (No 2).

MR CHESTERMAN:  Yes.

McHUGH J: But if you accepted that view, one construction

of 377(8) is that it is a comment on defamatory

facts in the article. The defamatory facts are

protected by the first limb and then the question

is whether the comment is fair on those facts.

MR CHESTERMAN:  Yes. We respectfully agree that if the

common law test is not availed of then there is no

test really by which one can judge fairness,

because, we would submit, with respect,

Your Honours, that one can have an honestly held

opinion in relation to facts; one can even have an

honestly held opinion in relation to what are

believed to be facts, but one cannot have an

honestly held opinion on a set of facts about which

one has no opinion. That is, if there is a fact or

some facts about which you have no opinions as to

whether they are accurate or truthful or not, then

one cannot really have an honest opinion based upon

those facts.

There is a conceptual difficulty, in our submission, in saying that if all that is required

to establish good faith is that you do not believe
the facts to be untrue, then an absence of belief

one way or the other will suffice, then one can

make an honest comment on such facts. The very

foundation of a fair comment is that it is based

upon facts which are facts, and assertions which

are shown to be wrong are not facts.

Your Honours, can we refer to a short passage

in a modern text on this topic, Carter-Ruck on

Libel and Slander, fourth edition. We have not

referred to this in our list but we have copies for

the Court. The passage appears at the top of

page 106, may it please Your Honours:

Comment is statement of opinion: it is

the inference which the writer or speaker

draws from facts. Assertions of facts are not

protected by this defence. Comment must

appear as comment; it must not be so mixed up

with statements of fact that the reader or

listener is unable to distinguish ..... 'Any

matter, therefore, which does not indicate

with reasonable clearness that it purports to

Pervan(2) 23 5/11/92

be comment and not statement of facts cannot

be protected by the plea of fair comment."

And the next sentence is the important one,

Your Honours, in our respectful submission:

The reason is apparent: to state accurately

and clearly what a man has done and then to

express an opinion is comment which cannot do

any harm or work injustice. The reader is

then put in a position to judge for himself

whether the opinion expressed is well-founded

or not. If there is any doubt whether the
words are statements of fact or comment the

question is one to be decided by the jury -

sorry, I should not have read that. The point is

that the rationale of the policy is that to express

facts and an opinion on them cannot work injustice

or unfairness, but to express an opinion that is

defamatory is not justified by the facts, would

violate that policy, we would submit with respect.

But there is a salutary reason why the Court should
require the proof of facts to justify comment in

the statutory defence.

Your Honours, we also would refer briefly to

the fact that section 377(8) was enacted against a

background of the common law which required the

facts to be proved before a defence of fair comment

could be made out. We are not unmindful of what

the Chief Justice said in Sungravure Pty Limited v

Middle East Airlines, 134 CLR 1, at page 22 that

one should not be too ready to have regard to the

common law in construing the statute but, as I

remember the passage, His Honour allowed an

exception where the term being construed was a

technical one or had acquired a special meaning.

His Honour said at page 22, about eight lines from

the top:

Its meaning therefore is to be ascertained in

the first instance from its language and the

natural meaning of that language is not to be

qualified by considerations deriving from the

antecedent law. An appeal to earlier

decisions can only be justified if the
language of the statute is itself doubtful or

if some other special ground is made out, eg

if words used have previously acquired a

technical meaning.

We would submit that fair comment had acquired a special meaning, or a technical meaning, at common

law. It was against that background that

Sir Samuel Griffith drafted the section.

Pervan(2) 24 MR CHESTERMAN, QC 5/11/92

Can we refer also, if we may, briefly,

Your Honours, to what Mr Justice Starke said in The

Telegraph Newspaper Co Limited v Bedford,

50 CLR 633, at 647. At the top of the page, may it

please Your Honours, the third line:

The Queensland Code, according to Griffith CJ,

who is reputed to be its author, is a short

statement of what was also the common law,

though the rule in the Code as to good faith

is, he said, perhaps a little harder on the

publisher of a libel than the common law.

Can I also refer Your Honours to what

Justice Windeyer said in Australian Consolidated

Press v Uren, 117 CLR 185, at 204. At the top of

the page His Honour said:

But it is necessary to remember always that in

New South Wales (as elsewhere in

Australia ..... ) much of the law of defamation

has been codified. The code, although to a

large extent it reproduces the common law, and

in fact can only be interpreted and applied by

having regard to the common law, also makes

some very important departures from it.

We submit that those remarks should be borne in

mind in the construction of the subsection.

Your Honours, we come then to an alternative

submission which we can make briefly. If it be

correct to view the publication as being comment as

to the whole of it or capable of being comment to

the whole of it, then no facts were proved which

would justify it. The case would fall to be

decided as the second Uren v Australian

Consolidated Press. There simply have been no

facts put forward by the defendant; the defence

under the subsection has not been made out.

Even if the view were accepted, as expressed

by Mr Justice Sugerman in Rigby's case, that it is

enough that the defendant prove that the comment

was fair by reference to facts which were not

believed to be untrue, in this case, in our

submission with respect, the defendant did not

establish that onus.

The authority is that the defendant must prove

the matter; the onus is on it to establish that

the comment is fair by reference to facts which it

did not believe to be untrue. There is simply no

evidence one way or the other; there is a complete

absence in the record of material as to the

defendant's belief. It was not proved one way or

the other. The onus being on the defendant, in our

Pervan(2) 25 5/11/92

submission, the defendant therefore failed to prove

that there were facts which it did not believe to

be untrue.

Your Honours, we are critical of the way the Full Court dealt with the matter. It is true that

both counsel at the trial submitted that the trial

judge should determine whether the comment was

fair. We submit that was a course His Honour

should not have accepted, even though both counsel

pressed him to follow it. We probably cannot

complain about that now, but that would mean, in

our respectful submission, that all the Full Court

was asked to do on the appeal was to review His

Honour's conclusion that the comment was fair.

The Full Court was not charged with the task,

and should not have undertaken the task, of itself

deciding whether the defamatory material was

comment or was fact; that is a question for the

jury. The question for the court, or the question

for the judge, is only whether as a matter of law

the material complained of is capable of being

comment or not capable of being comment.

It is curious that two of the judges would have ordered a retrial. Mr Justice Thomas, who

wrote the leading judgment, having decided that the

publication was partly fact and partly comment, the

comment was fair and the publication was on a

privileged occasion in good faith, declined to

order a new trial. The other judges accepted that

proposed order. But in our respectful submission,

the proper order should have been for a retrial,

for the jury to decide whether the publication was

comment, whether it was fair and whether it was

published in good faith.

The matter which was dealt with appears in the

record.	Mr Justice Demack at 219, at about
line 45, having stated what the issue for the court

was, says:

The issue arises very sharply because I regard
the first two sentences in the advertisement

as asserting facts and the third sentence as a

comment.

That is all the discussion there is in His Honour's

judgment. He does not turn to the point whether it

is proper for the court to decide that or whether

it is a matter for the jury.

GAUDRON J: There is some difficulty about this though, is

there not, in the particular context, because it is

for the trial judge to decide whether it is an

occasion of privilege.

Pervan(2) 26 5/11/92

MR CHESTERMAN:  Yes, Your Honour.

GAUDRON J: It rather suggests that the questions of onus

are not involved so much in this consideration,

which in turn comes back to the suggestion put to

you by Justice McHugh earlier, that what it is

really concerned with is comment on the facts which

fall within the criterion that brings it within the

occasion of privilege.

MR CHESTERMAN:  The difficulty then comes in determining

what are facts and what is comment.

GAUDRON J: But for practical purposes, statements, so far

as the defamation matter is concerned, are either

facts or comment; there is not any third category.

MR CHESTERMAN:  No, but views can differ about which they

are and the jury has to decide of a matter of fact

which they are. I mean to say that somebody is

feathering his nest can be both a statement of fact

and an expression of opinion, and depending on

context, I suppose, it is a question of fact which

meaning is intended or what is the proper meaning.

Now that is a function for the jury. So that, in

this case, there was a real issue, in our

submission, as to whether the first two sentences

were comment or were fact. The trial judge thought

they were comment; the Full Court thought they were

fact, which perhaps underlines our point that the

matter should have gone to the jury.

And it perhaps further underscores our point,

with respect, that if comment is to be fair - - -

GAUDRON J:	What question goes to the jury, as such, in the context of this subsection? Is it for them to
decide, as preliminary questions, whether it is
fact or fair comment?
MR CHESTERMAN: If our submission is accepted, His Honour

should have ruled that the advertisement was

capable as being comment as to the whole of it, he

should have charged the jury with the task of

deciding whether it was comment; if it was comment,

whether it was fair, and if it was comment, whether

there were facts which would justify the comment.

And that, apart from His Honour's task of

determining whether the publication was made on a

privileged occasion because, as we would submit the

subsection should be construed, these requirements that the comment be fair are an additional part of requiring that the publication be on a privileged

occasion and in good faith.

So that this requirement, we submit, should

have been one left for the jury to determine;

Pervan(2) 27 5/11/92

His Honour deciding whether the occasion was a

privileged one. And we submit that it was not

proper for the Full Court to decide for itself that

the matter was comment or some parts of it were

fact and some parts comment. All the Full Court

should have done was to say whether a part was

capable of being comment or capable of being fact.

DEANE J:  Mr Chesterman, can I ask you this as a

hypothetical question?

MR CHESTERMAN:	Your Honour.
DEANE J:	What if, at the end of the day, one were to come

to the view that the first two sentences, read with

the words "this is", were plainly fact and that

what followed was equally plainly comment on those

facts. Where, on your argument, would that lead

us? In other words, that the first two sentences,
with "this is" can only properly be understood as
meaning councilors, including your client, are
feathering their own nests and funds have been
misappropriated, and then comes the comment that
councilors feathering their own nests and
misappropriating funds are doing irreparable damage

to the image of our Shire.

MR CHESTERMAN: Is the question, may I ask Your Honour, if

the first two statements are regarded as fact and

the third as comment, where does that leave my

argument?

DEANE J:  The first two statements and the words "this is"

are regarded as fact and then comes the comment

that that is doing irreparable damage to the Shire.

MR CHESTERMAN:  Your Honour, that is the view the Full Court

took of it.

DEANE J:  I follow that, but I am not quite sure precisely

where that leads in your argument, if one takes the

view that that is plainly right.

MR CHESTERMAN: All right. If one takes that view then I

have to persuade the Court that for it to be fair

comment it must be comment made with reference to

facts that are true, the facts were shown to be

untrue.

DEANE J: In other words, if you say somebody is embezzling

the Council's money, and that is unfortunate, even

though the factual statement is protected, the

comment that is unfortunate is not protected unless

you can prove the truth of the factual statement.

I follow.

MR CHESTERMAN:  Yes, yes.

Pervan(2) 28 5/11/92

DEANE J:  I was not intending to imply that that was

necessarily a concluded view of mine, I was just

wondering where it went.

MR CHESTERMAN: Perhaps I can try to recapitulate. If the

view is taken that the first two sentences are fact

and that the third is comment, then on our

submission the Court should construe the subsection

to mean that unless the facts are shown to be true
the comment cannot be fair. The Full Court took
the opposite view, relied upon Rigby, that it is

enough if the facts are not believed to be untrue.

We challenge that. We go further and say that if

the Court is of the view that the whole of the

advertisement was capable of being comment, then

that was a matter that should have been left to the

jury for their determination. And if the jury

determined that the whole was comment, then there

were no facts which could be resorted to to justify
the comment by which it could be said to be fair.

Then, applying what the Court of Appeal said

in the second Uren case, the defence would not have
been made out and the plaintiff would have

succeeded.	The Full Court took it upon itself to
decide what was comment and what was fact.	We
submit it was wrong. Its task was to decide
whether the publication was capable of being
comment and we submit that it was.	The second

sentence perhaps less clearly so than the first,

but to say that someone is" feathering his own

nest" and to ask rhetorical questions to state the

same proposition is really an inference or a

conclusion. Obviously it is not literally meant

that he is "feathering a nest", it is really a

conclusion or an inference, it is a judgmental

statement that he is feathering his nest. He is

doing something at the expense of the public and

that is clearly, we would submit, a comment.

The second sentence: misappropriating public

money or "funds being misappropriated", again in

the form of a rhetorical question, is really a

statement that is happening. That could be either

fact or opinion because it may be a conclusion

drawn from other facts, in which case it would be a

comment. And the third sentence, which clearly is

comment. But unless the first two sentences are

not capable of being regarded as comment then the

jury should have been asked to say whether they

were or not.

Your Honours, that comes from Jones v Skelton

in the Privy Council, (1963) 1 WLR 1362 at 1379.

In the judgment of Lord Morris speaking for the

board, His Lordship said, reading from the middle

Pervan(2) 29 5/11/92

of the quotation from Lord Porter's judgment in

Turner v MGM Pictures:

it is

"for the jury in a proper case to determine

what is comment and what is fact, but a pre-

requisite to their right is that the words are

capable of being a statement of a fact or

facts. It is for the judge alone to decide

whether they are so capable, and whether his

ruling is right or wrong is a matter of law

for the decision of an appellate tribunal."

If, therefore, words are reasonably capable of

being regarded as statements of fact or of
being regarded as expressions of opinion it is

for a jury to decide which they are.

Your Honours, we turn then, if we may, to an

alternative argument which is based fairly and

squarely upon a decision of the Supreme Court of

Canada, Cherneskey v Armadale Publishers Ltd (1979)

1 SCR 1067. This case would support our

submissions. We have to say Your Honours, though,

that the decision has not attracted universal

support.

The facts of the case were that two law

students, in fact, wrote a letter to the editor of

the local newspaper, in which they criticized the

conduct of the local town councillor, and accused

him in effect of being a racists because he opposed

the setting up of an alcohol rehabilitation centre

in a particular neighbourhood. The paper, when

sued, pleaded "fair comment", a matter of public

interest. The letter writers were not joined as

parties and were not called, the trial judge took

the defence from the jury on the basis that on the
evidence before him it was established that the

expression of opinion in the letter published by

the newspaper was not the opinion of the newspaper,

of the publisher, and therefore it could not be

"fair comment" because "fair comment", it was said,

is the honest opinion of the writer or the

publisher.

The Court of Appeal of, I think, Saskatchewan,

by majority, ordered a retrial on the base the

defence should be considered by the jury. The judgment of the trial judge and held that he was

right, it being established as a matter of fact

that the opinion in the letter was not the opinion
of the newspaper, the defence of "fair comment" was

not available.

Pervan(2) 30 5/11/92

Your Honours, that is an unorthodox approach,

it is a new approach, it is one that the

House of Lords has not followed and one which has been criticized by Mr Justice Hunt in the

Supreme Court in New South Wales, but it is a

decision of the Supreme Court of Canada and it
would, if followed here, be of assistance to the
appellant because it was established by the

evidence here that the newspaper did not hold the

opinion expressed in the newspapers. So that is a

comment, an opinion. It was not one held by the respondent and therefore on the reasoning of the Canadian case, "fair comment" would not be

available as a defence.

Your Honours, the first judgment was delivered

by Mr Justice Martland with whom the Chief Justice

and Mr Justice Beetz agreed. His Honour said at
1072, the bottom passage:

Freedom to express an opinion on a matter

of public interest is protected, but such
protection is afforded only when the opinion
represents the honest expression of the view
of the person who expresses it. This

requirement is stated in the passage quoted

above. Gatley on Libel and Slander says:

Comment must be published honestly in

that it is the expression of the defendant's
real opinion.

And then at 1074 in the last passage of the

judgment:

There is no evidence to show that the material

published, which the jury found to be

defamatory, represented the honest opinion of

the writers of the letter, or that of the

officers of the newspaper which published it.

In these circumstances the trial judge was properly entitled to decide not to put the defence of fair comment to the jury.

Then there was a second judgment delivered in the majority by Justice Ritchie with which the

Chief Justice also agreed and Justices Pigeon and

Pratte agreed. At page 1079 in the passage in the

middle of the page he says:

I agree with the trial judge that the words used are capable of being construed as tending

to lower the plaintiff in the estimation of

right-thinking members of society generally, a

prima facie cause of action arises and in my

view a plea of fair comment by way of defence

does not of itself have the effect of saddling

Pervan(2) 31 5/11/92

the plaintiff with the burden of proving that the comment was unfair. This plea constitute

a vital part of the case for the defendants

and in my view the burden of proving each

ingredient of the defence so pleaded should

rest upon the party asserting it. One of

these ingredients is that the person writing

the material complained of must be shown to

have had an honest belief in the opinions

expressed and it will be seen that, in my

view, the same considerations apply to each

publisher of that material.

At 1080, at the very bottom of the page, last four

lines:

As I have indicated, the defence of qualified

privilege is not available to the defendants

and the question of malice could only arise in
the present case if there were some evidence
to indicate that the comment complained of was
otherwise fair and this cannot be said unless

the opinions expressed are honestly held.

Then at page 1089, there is a summary really of

His Honour's position. After reference to Globe and Mail v Boland, His Honour says:

These authorities satisfy me that the

newspaper and its editor cannot sustain a

defence of fair comment when it has been

proved that the words used in the letter are

not an honest expression of their opinion and

there is no evidence as to the honest belief

of the writers. In view of this finding, I do
not consider it necessary to deal with the

other submissions made on behalf of the

appellant.

Then at page 1090, His Honour, dealing with a

judgment in the court below, in the third passage

on that page says:

I cannot accept the proposition

apparently adopted by Hall JA, that where, as

here, the words are capable of a defamatory

meaning they are presumed to give expression

to an opinion honestly held until the contrary

is shown.

Your Honours, as we understand what the majority

have done, it is to say that the defence of fair

comment means that the defendant must establish

that the defamation is the honest opinion of the

writer on facts truly stated. Ignoring that

consideration for the moment, unless the defendant

can show that what was published was his honest

Pervan(2) 32 5/11/92

opinion, the defence is not made out. In that

case, the newspaper in fact either had no opinion or inclined to the view that the alderman was not

racist; therefore the view expressed was not their

view. It was held therefore that they were not

entitled to the defence of fair comment.

That is a departure from the previous law

which, as we understand it, was that if words are

comment or are found to be comment and are

objectively capable of being honest opinions by

reference to facts on which the comment is based,
then there is a presumption that the comment is

fair and the plaintiff then has the onus of proving

that the comment is unfair in the sense that it was

actuated by malice or some improper motive.

There is a two-stage process in the proof.

The defendant first has to prove that it is

comment, that the facts are true, but if

objectively then the comment can be justified by

the facts, then the defence is made out and the plaintiff then, to overcome the defence, has to

show that subjectively the writer or the publisher

was actuated by malice.

Now, the Court of Appeal in the majority has

merged those into one stage which is to put the

onus on the defendant to prove that, in fact, the

opinion expressed by His Honour's opinion on the

facts. Now, if that approach were adopted by this

Court it would have the result in this case, the

appeal would succeed because not only are there no

facts established as true but it was not

established. The newspaper did not have any belief

at all in what was published, it had no opinion.

The opinion published was not its opinion. It

could not be said to be its honest or genuine
opinion because it just did not turn his mind to

the matter at all.

Now, Your Honours, we have, I think, in

fairness to take you to the criticism of the

judgment. In England, in a fairly recent case, not

involving a newspaper, Telnikoff v Matusevitch,

(1991) 1 QB 102, the Court of Appeal had reference to what the supreme court had said and declined to

follow it preferring the judgment of the minority.

We should tell Your Honours that Telnikoff went on

appeal to the House of Lords, (1991) 3 WLR, but I
intend to refer only to the Court of Appeal
judgment because all the House of Lords did was to

say that they agreed with what Lord Justice Lloyd

had said.

The discussion starts, may it please

Your Honours, at page 115. The reference to the

Pervan(2) 33 5/11/92

House of Lords decision is (1991) 3 WLR 952. This

case was concerned with defamation, not involving a

suit against a newspaper. On the orthodox or

traditional stages of proof the plaintiff would

have lost, so he argued that the view put forward
by the Supreme Court of Canada should be followed,

that is, the onus is on the defendant in the first place to prove that the comments were his honestly

held opinions. The Court of Appeal rejected that

submission and reaffirmed the orthodox view. At

page 114C, His Lordship said, and referred to

Cherneskey v Armadale Publishers - he set out the

facts. And then at page 115D, he says:

The importance of Cherneskey's case for present purposes is whether the majority were

right in asserting that honesty of belief is

an essential in the defence of fair comment,

on which the burden rests on the defendant.

His Lordship said that he could find no authority

in support of that view in England, and he reviewed

a number of cases. Then at page 117 just below

letter A, the third line, he said:

Turning to the cases, there are, of

course, numerous references to honesty as
being "the cardinal test", and other similar

expressions. But all these references,

without exception, fall into one or other of

two classes. They are either cases where a

contrast is being drawn between what is fair

for the purposes of fair comment and what is

reasonable. This appears most clearly from

Lord Porter's modification in Turner v

Metro-Goldwyn-Mayer Pictures Ltd, of

Lord Esher's test in Merivale v Carson.

Despite the substitution of "honest" for

"fair", ("would any honest man, however

prejudiced he may be ..... ") -

hold the opinion -

Lord Esher's test remains objective. The

defendant's state of mind (in the absence of

malice) is irrelevant.

Alternatively they are cases where the court is using the term "fair comment" in a comprehensive sense, to include the absence of

malice. Once the plaintiff has pleaded

express malice in reply, then of course the defendant's state of mind becomes critical.

The fact that a defendant does not himself

believe in the truth of his comment is the
strongest possible evidence of malice. It is

sometimes said to be conclusive.

Pervan(2) 34 5/11/92

And then His Lordship expresses his conclusion at

page 119 just below D. He says:

My conclusion is that the law is

correctly stated in Duncan & Neill on

Defamation, 2nd ed:

"(a) the comment must be on a matter of public

interest; (b) the comment must be based on

fact; (c) the comment, though it can consist

of or include inferences of fact, must be

recognisable as comment; (d) the comment must

satisfy the following objective test: could

any fair-minded man honestly express that

opinion on the proved facts? (e) even though
the comment satisfies the objective test the

defence can be defeated if the plaintiff

proves that the defendant was actuated by

express malice."

In the light of the present case I would add a rider, already implicit in

paragraphs (a) to (e), that the absence of

honest belief in the truth of the comment is

relevant to paragraph (e) and not otherwise. Thus the burden of proof in the present case that the letter did not represent the

defendant's genuine views lay on the

plaintiff. It was not incumbent on the

defendant to give evidence as to his state of

mind.

Your Honours, although the Court of Appeal and the

House of Lords have reaffirmed orthodoxy, they were

speaking, of course, of the common law. We submit

that whether or not the Canadian approach should be

adopted as the common law in this country, the
approach does fit well with the statutory framework

of section 377 of the Code in this sense: that as

the Court of Appeal said in the second Uren case,

the defence provided by section 377(8) is a matter

for the defendant to prove. He must establish that

the comment is fair. If "fair comment" means, as

it seems to, with respect, an opinion honestly held

on facts, then the defendant has to prove that it

is his honest opinion, and that is really the

approach the Canadian Supreme Court took. It is a

simple approach and, we submit, one that has much

to recommend it. In this case it would result in a

finding that the defendant did not discharge the

onus because there was no evidence that the opinion

was honestly held by it, or was its genuine

opinion.

If one says that "fair comment" in the rider

to section 377(8) does not import common law

notions, the two stage process of the common law,

Pervan(2) 35 5/11/92

then we would submit that there is no reason - I am

sorry, I am putting that very badly.	I will start
again if I may.

If one is to take the view that "fair comment"

in 377(8) imports the common law notion of a two

stage process of proof, then it ought also, in our

submission, to import the common law notion that

the facts must be truly stated before the defence

is made out. If one rejects the common law notion

that the facts must be truly stated, one can

equally readily reject the common law notion of the
two stage process and move directly to the one
stage adopted by the Supreme Court of Canada and

put the onus on the defendant to prove that the
comment was his honest opinion.

Your Honours, I will give Your Honours the reference to it but I do not intend to read from

what Mr Justice Hunt had to say in Hawke v Tamworth

Newspaper Co Limited, (1983) 1 NSWLR 699. In an

addendum to his judgment, he criticizes Cherneskey

and suggests that it is not the common law in

Australia, at least in New South Wales. Be that as

it may, it is irrelevant in Queensland where the

provision is dealt with by the Code.

Your Honours, that takes us, I think, to the

second-last of our submissions which is that the
Full Court erred in concluding that the defamatory

comment was fair. This submission, really, repeats

much of what we said already and I will not take up

time actually repeating it. The real question, as

Justice McHugh put to me, is what is the test for

determining what is fair or what is unfair.

The only matters that we would refer to, in

addition to those which we have mentioned already,

are that the advertisement or material was placed

by a man called Layt, who initially was the second
defendant in the action.	By the time the action
came to trial he was no longer a party.	He was a

political opponent of the appellants, in the sense

that the appellant was a Labor member of the local

council and Mr Layt was a member of the opposite

party and he placed the advertisement in the paper

after the matter, of course, had been agitated in

the press and in the Parliament by Mr Menzel.

The only other matters we would mention are

what Lord Diplock said in Horrocks v Lowe,

(1975) AC 135, at 150. His Lordship was dealing

with the question of qualified privilege at common

law and what amounted to malice in that context.

The remarks are equally apposite to malice to

defeat a plea of fair comment, in our submission,

with respect.

Pervan(2) 36 MR CHESTERMAN, QC 5/11/92

There is a passage we would read from 150,

just above B. His Lordship says:

Apart from those exceptional cases, what

is required on the part of the defamer to

entitle him to the protection of the privilege

is positive belief in the truth of what he

published or, as it is generally though
tautologously termed, "honest belief". If he

publishes untrue defamatory matter recklessly,

without considering or caring whether it be

true or not, he is in this, as in other

branches of the law, treated as if he knew it

to be false.

We would stress the sentence, may it please

Your Honour.

If he publishes untrue defamatory matter

recklessly -

that is, without considering or caring whether it

be true or not, he is, in this as in other branches
of the law, treated as if he knew it to be false.

In this case, the advertisement was published without the defendant's mind - his editorial or managerial mind - turning at all to the question

whether it was true or false.	It was simply
published willy-nilly.	I do not mean that in any

critical sense of the paper but that is how it came

about and the publication was, of course, the

newspaper's publication and it was published
without considering or caring whether it be true or
not. So we submit that that should have led to the

conclusion that the comment was not fair.

To the same effect, may we refer Your Honours

to a passage in Spencer Bower, The Law of

Actionable Defamation, second edition. Article 38

deals with the question of malice or what is
extrinsic evidence of malice.	The article
commences:

In any action of defamation, extrinsic

evidence of malice is constituted by proof of

any fact, other than the contents of the

defamatory matter itself, which is not

reasonably consistent with the publication of

such defamatory matter having been actuated by

any motive, intention, or state of mind other

than malice.

And then, in (v), as an example or illustration, it

is said:

In any case of comment appearing to be fair on

the face thereof, within the meaning of

Pervan(2) 37 MR CHESTERMAN, QC 5/11/92

Article 32(2) - any circumstances tending to

shew that nevertheless the opinion expressed

in such comment differed from the defendant's

genuine critical opinion, or that he published

the same in the belief that it was unjust, or

that he had no opinion at all on the subject

of the comment -

that is the part we would stress, Your Honour, "no

opinion at all". That, according to Spencer Bower,

was extrinsic evidence of malice and that was the

situation here.

Your Honours, may I take you back for a moment

to what the Supreme Court in Canada said in

Cherneskey's - - -

MASON CJ: If you are going to do that, Mr Chesterman, we

might adjourn at this stage.	We will adjourn until
2.15 pm.	Mr Garnsey, could you hand in your
outline of submissions?	We will have a look at it
over the adjournment.

MR GARNSEY: If Your Honour pleases.

AT 12.55 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Chesterman?

MR CHESTERMAN:  May I refer Your Honours to page 1108 of the

Supreme Court Report, Cherneskey v Armadale

Publishers, to make two submissions if we may.

This is in the judgment of the minority given by

Mr Justice Dickson. In the chapter headed VII

His Honour dealt with what he regarded as the

second stage of the question of the onus of proof

in the defence of "fair comment", that is after the

defendant has established objectively the comment

is fair. The plaintiff has to then discharge an

onus of proving malice, and in this chapter

His Honour deals with that question.

At the top of page 1109 His Honour says:

Further support for the two-test theory, and the view that the subjective test is the

question of malice, is to be found in

Carter-Ruck, Libel and Slander ..... where the

Pervan(2) 38 5/11/92

following passage appears ..... under the

heading "Defences - Malice": -

and he sets it out -

Malice

If, considered objectively, the comment

is fair comment the second, subjective,

question 'Did the defendant honestly hold the

opinion which he has expressed?', then has to

be considered.

And His Honour makes the point that at the trial

that point was not reached because the trial judge

took the question away from the jury.

Your Honours, we would make two points if we could

about that. His Honour obviously sets out the

passage from Carter-Ruck with approval.	The
our position. The question is, "Did the defendant honestly hold the opinion which he has expressed?"	formulation of the test, we submit, would support because on the evidence the defendant had no
opinion. So that if that is a proper test of
malice then here malice was shown so the comment
was not fair.

The second point we would make, may it please

Your Honours, is this, that on the facts of the

case before the Supreme Court of Canada the

application of that test would have led to the same

result although pe~haps it should have been decided

by the jury, because on the evidence in that case

the defendant did not hold the opinion it

expressed. So that even applying the subjective,

or the two-stage process, when one came to consider

the second subjective stage the result should have

been the same because the plaintiff proved the

defendant did not hold the opinion which the paper

expressed.

Your Honours, can I then pass to the last

point in our synopsis which is on a different point

altogether, and that is to submit that, in any

event, there ought to be a new trial on the
question of good faith, because what the Full Court

did was to say that in its opinion the publication

was made in good faith. But that is a question for

the jury if it is capable - if the evidence is
capable of supporting a verdict or an answer by the

jury, the publication was not in good faith.

May I take Your Honours to the definition of

"good faith" in the section. Four things are

required. Your Honours will find it at the end of

section 377 of the Criminal Code:

Pervan(2) 39 5/11/92

For the purposes of this section, a

publication is said to be made in good faith
if the matter published is relevant to the
matters the existence of which may excuse the
publication in good faith of defamatory
matter; if the manner and extent of the
publication does not exceed what is reasonably

sufficient for the occasion; and if the

person by whom it is made is not actuated by

ill-will to the person defamed, or by any

other improper motive, and does not believe

the defamatory matter to be untrue.

Your Honours, the part that is most relevant is

that which requires that the manner and extent of

the publication not exceed what is reasonably

sufficient for the occasion. The particular

occasion identified was the discussion of the

conduct thought to be improper of a shire

councillor and the calling of a public meeting to

form a ratepayers' association to discuss the

conduct of the shire council.

The newspaper in question was published and went beyond the bounds of the relevant shire, the

Johnstone Shire; it went to four neighbouring

shires. There was a question therefore whether the

extent of the publication exceeded what was reasonably sufficient for the occasion, the

occasion, as I say, being what was going on in the

Johnstone Shire.

Two of the judges in the Full Court decided

that question for themselves and they thought that
on balance the publication was not excessive but,
with respect to Their Honours, it was not a test
for them at all. If the evidence was capable of
supporting a view by the jury that the publication

was excessive, the matter should have gone to the

jury.

That is indeed what Mr Justice Mackenzie would have ordered but, in the end, concurred with the
orders proposed by Mr Justice Thomas.	Can I take

the Court to page 244 of the record at about

line 25, may it please Your Honours. His Honour

said:

If "manner and extent" also involves the

circulation -

which it clearly does, with respect -

I do not think it could be held that the

circulation of the Innisfail Advocate, which

reaches into Shires beyond the Johnstone

Shire, exceeded what was reasonably sufficient

Pervan(2) 40 5/11/92

for the occasion. As already observed, it is difficult to see how such matters would be of

less than state-wide interest in the relevant

sense.

That is a view, with respect, but it is not the

only view.	It cannot be said that a jury would be
wrong if it came to a contrary view.	What

His Honour has done is to decide the matter for himself without turning his mind to the question,

which is: could a jury find the opposite? The

matter was considered by Mr Justice Mackenzie at

254. His Honour, at about line 16, having spoken

about the fact that the paper went beyond the

boundaries of the particular shire, he said:

I would not have thought that inevitably led

to the conclusion that the publication
therefore was in excess of what was reasonably

sufficient.

So His Honour correctly identifies a question of

fact for the jury. Then he says at 256 at line 20:

The fourth element, lack of good faith, was a

matter upon which the respondent would bear a
persuasive onus, and there was, in my opinion,

no basis arising from that element for

withdrawing s 377(8) from the jury's

consideration.

In my opinion, s 377(8) should have been

left to the jury.

But then, because Mr Justice Thomas had thought that there ought not to be a new trial, he

concurred.	We would submit that there ought to be
a new trial, at least on that issue.	If the Court

accepts our submissions in relation to fair

comment, we would ask for a fair trial on that

issue as well. Those are our submissions, may it

please Your Honours.

MASON CJ: Thank you, Mr Chesterman. Mr Garnsey.

MR GARNSEY:  May it please the Court. Your Honours, it is

respectfully submitted that the key to the cases

found in the wording of section 377(8), that does

not say that it is - in so far as the matter

referred to consists of comment, the comment must

amount to fair comment in the sense in which that

is otherwise used in the Code or in the sense in

which that phrase, "fair comment", was used as

denoting the requirements of a number of elements

of the defence at common law.

Pervan(2) 41 5/11/92

The case relied on by my learned friend or, at

least, the observations of Mr Justice Windeyer in
Australian Consolidated Press Ltd v Uren,

117 CLR 185, the passage at pages 206 to 208, does

not suggest in any way that it is a requirement of

the equivalent of subsection (8) that the facts on

which any comment is based be true and, indeed,

stated or referred to necessarily expressly in any

way, although what is comment must, of course, be

understood to be comment.

Could I take Your Honours briefly to that

passage my friend has but, with respect, there are

some references by His Honour Mr Justice Windeyer

which explain exactly what His Honour was saying in

that passage. At page 207 His Honour referred to

section 17(h) having:

no direct common-law ancestor, although its

several phrases recall various statements of

common-law principle.

Then His Honour says:

It is not a statutory counterpart of the

common-law defence of fair comment.

Now, with respect, my friend's submissions say that that phrase must be, with a possible qualification,

His Honour Mr Justice McHugh said that perhaps the comment itself need not relate to a matter of

public interest, although in subsection (8) it must
be a comment made in the course of the discussion

of some subject of public interest and, whether

that is any different, it may be a matter for

argument.

But Mr Justice Windeyer made it clear that

section 17(h) or section 377(8) was not the

equivalent of the common law defence. His Honour

then referred to the verbal alterations of

Sir Samuel Griffith. The phrase is referred to in

a letter of 29 October 1897 by Sir Samuel Griffith

to the Attorney-General forwarding the draft Code.

It is extracted at the top of page 5097 of Carter's

Annotated Criminal Code, and I hand to Your Honours

copies of that page. It was not on our list.

The extract from the letter is set out at the top of the page Sir Samuel Griffith says:

I have adopted the defamation law of 1889 in

its entirely with a few verbal alterations,

one of which is designed to cover the case of

defamation in the case of blind persons or

deaf mutes or by signalling by heliograph or

otherwise. Another in section 383(8) -

Pervan(2) 42 5/11/92

which is section 377(8) of the Code as enacted -

removes a possible doubt as to the

construction of the existing statute.

Unfortunately, our researches have been unable to

locate what the possible doubt as to the

construction might be.

McHUGH J:  What was added were the words -

and if so far as the defamatory matter

consists of comment, the comment is fair -

was it not?

MR GARNSEY:  Yes. Now, if Your Honour pleases, if one takes

the subsection without those words, it is still

difficult to extract a relevant doubt as to the

construction of the subsection.

McHUGH J: Well, except if those words were not there,

377(8) would protect any defamatory comment whether

fair or unfair.

MR GARNSEY:  Yes, but unless one establishes what "fair"

means, if Your Honour pleases - - -

McHUGH J: Well, that is the critical question, is it not?

MR GARNSEY:  Yes, that one does not know what the doubt is.

I could not think of any construction of the subsection without those words which would mean

that it would not apply to "comment", or that

somehow or other the requirement of absence of good

faith would not be a satisfactory control, if I

could put it that way.

McHUGH J: Well, it may have arisen in this way: you may

have a discussion - let us say it is a discussion

of, say, a politician or his attitude - and in the

course of that discussion - or it is a discussion

for the purpose of discussing some subject of

public interest - you refer to some facts and you

make a defamatory comment about his typist. Now,

377(8) applies to that sort of situation, even

though her typing may not be a subject of public

interest, as long as it is made in the course of a

discussion of a subject which is.

MR GARNSEY:  It is a requirement that it be made in good

faith, if Your Honour pleases, unless - - -

McHUGH J: Well, that is another question though.

MR GARNSEY:  - - - that it be relevant to matters, the

·existence of which may - - -

Pervan(2) 43 5/11/92

McHUGH J:  I appreciate that, but that is a different issue

altogether. But prima facie 377(8) can protect a

comment which could not be justified as a fair

comment at common law, irrespective of truth or

false -

MR GARNSEY:  But a fair comment is the comment which

satisfies a number of criteria, one of which is it is made on facts truly stated; another of which is

that it be identifiable as comment and that may or

may not require the facts to be expressly stated in

the matter complained of. One area, for instance,

in which the facts are rarely stated is the area of

criticism of works of art or public performances. taken as putting it before the public and the

sufficient statement of what is there is to justify

an opinion of criticism.

If one looks at what Sir Victor Windeyer was

referring to, taking note of first his caveat that

the section did not re-enact the common law defence

of fair comment, His Honour then referred to Thomas

v Bradbury, Agnew & Co, which is not concerned at

all with any requirement that the facts be truly
stated in relation to the defence of fair comment.

The case is concerned with the relevance of malice

to a defence of fair comment and was at a stage

before the law has perhaps been stated as clearly

as it has been since, in which the place of malice

in relation to fair comment is a place clearly as

one of evidentiary significance, where one has

considered whether or not an opinion is in fact

held. That case itself just did not deal with the

question of whether or not it was a requirement

that the facts be truly stated.

If one then looks at the passage from Salmond on Torts to which His Honour refers. I think we

might have put it on the list, if Your Honours

please and Your Honours should have a copy of the
pages from the relevant edition.	The relevant

pages to which His Honour refers simply do not deal

with any requirement that the facts be truly

stated. At page 247, the nature of the defence is

discussed at the time when there was some dispute

as to whether it was an instance of qualified

privilege or a separate defence, and the view

expressed on pages 248 to 249 that the defence is

sui generis. And even if one takes the rest of

249, it is not concerned with the requirement that

true facts be stated in the matter complained of,

or with any such requirement at all.

Now, His Honour Mr Justice Windeyer then continues, after referring to Thomas v Bradbury,

Pervan(2) 44 5/11/92

Agnew & Co, page 208 of Australian Consolidated

Press v Uren, to say that:

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 & Co Ltd in mind, 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 -

and that objective sense, I would submit to

Your Honour, refers to the well-established principle that the comment must be identifiable as

comment, and be a comment that can be said is fair

because it expresses an opinion which is not beyond

the bounds of the traditional phraseology, that is
that it represents a commentators real view of how

incorrect, exaggerated, strong, obstinate or

prejudice the view might be, or whether it is so

unfair as an opinion that no fair-minded man could

have formed or expressed it.

The word "objective" is dealing with the

matter in the abstract, irrespective of whether or not the facts underlying the comment, which may or may not be expressly referred to, are true. It is,

with respect, trying to stretch very much a passage

from the judgment of Sir Victor Windeyer to suggest

that it goes any further than that. A reference to
the underlying material makes it quite clear to

what His Honour was directing His Honour's

attention, and it is, in my respectful submission,

not correct to say that there are two lines of

authority in relation to this matter. There is

overwhelming authority and all one way.

If one looks at Uren v Australian Consolidated

Press, 71 SR(NSW), that is not, with respect, any authority for the proposition that true facts must

be stated in section 17(h) or section 377(8). That

argument was, with respect, rejected by the court.

Could I take Your Honours to a number of

passages, my friend did read two I would seek to take the Court briefly to some other passages in the judgments. The first in the judgment of the President, at page 32B:

As to the first count. It was common ground

that the defamatory material sued upon was

entirely comment. This is probably correct if

one assumes that opinion can sometimes be

couched in the outward form of a statement -

Pervan(2) 45 5/11/92

and then the matter complained of is set out, and

then at E to Fis a passage that my friend read to

Your Honours. Then at page 33 beneath the

letter A, the President continues:

The relevant wording of s 17(h) may be

summarized thus: "It is a lawful excuse for

the publication of defamatory matter if, so

far as it consists of comment, the comment is

fair", and this wording I think confirms the

view that a defendant who seeks to avoid the

consequences of an otherwise unlawful and

actionable publication bears the burden of

establishing that he or it is lawfully

excused. Windeyer J referred to this subject.

Then, beneath letter D:

I do not think that comment can be held

to be fair merely because it relates to a

matter of public interest. I mention this

because of certain submissions made to us

during argument on some aspects of the summing

up -

Then page 34B to C, the President stated:

Although the jury was correctly charged by the

learned trial judge on the onus of proving
fairness of the comment, the fact remains that
there was no evidence upon which they could

decide this question of fair comment - yet it

was left to them to decide. The material sued

upon was comment and the defence based on

section 17(h) should have been withdrawn from

the jury.

With respect, the learned President does not deal

with the point at issue at all in the judgment.

In the judgment of Mr Justice Sugerman, which

commences at page 36, at page 39, a little above

letter F, His Honour said:

These directions are said by the defendant to

be supportable not only by Wason v Walter but

also by the judgment of

Mr Justice Angas Parsons in Cameron v

Consolidated Press Ltd ..... But the statements

relied upon in these judgments were really

statements of the result which may be arrived

at at common law when the right of fair

comment upon a matter of public interest is

taken into consideration. They come from

jurisdictions where the common law obtained

and where it was therefore less necessary than

it now is here to take into account the

Pervan(2) 46 5/11/92

distinction between the question of defamation

and the question of fair comment (or a defence

under section 17(h) of the Defamation Act,

1958); although even in such a common-law

jurisdiction attention has been drawn to the

confusion of these two questions ..... In this

State, where the law of defamation is to be found almost entirely in the Act referred to,

it is necessary to keep these two questions distinct. There are not two definitions of

defamatory matter according to whether the

plaintiff is or is not a public figure -

and then His Honour makes some comments.	Below
letter B:

The defence of qualified protection under

section 17(h) is pleaded here.	The defence is
hedged around with qualifications.	The

publication must have been made "in good

faith", which is defined in the section. It

must have been 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. So far as

the defamatory matter consists of comment the

comment must be fair. The effect of the

directions which I have set out might well be

to distract the jury's mind from the necessity

of attending to these qualifications -

Then, at page 41A to B, His Honour refers to the

three grounds for a submission that there should

have been a verdict directed for the defendant.

The three grounds are:

1         That the words sued upon in the first count are incapable of a defamatory

meaning.

2         That there was no evidence of absence of

good faith, in particular of ill will.

And 3, the relevant one for this purpose:

That there was no evidence that the
comment contained in the words sued upon

was unfair.

Now, the third ground that begins His Honour's

consideration, begins at letter G at the foot of

page 41. His Honour says:

The third ground rests upon the

assumption that the matter complained of

consisted entirely of comment. I have

expressed some doubt as to that during

Pervan(2) 47 5/11/92

argument, but since the case was conducted

both at the trial and before us on the footing

that this was common ground, I feel

constrained to deal with the questions which

arise on that basis.

While some resort to the common law is

necessary in order to give a meaning to the
expressions "comment" and "fair", the question
of fair comment under section 17(h) should

not, in my opinion, be confused with the

defence of fair comment at common law or under

section 15 of the statute.

The equivalent of section 375 of the Code.

I have endeavoured to state my views as to one

aspect of fair comment under section 17(h) in

Rigby v Associated Newspapers Ltd and I repeat what was there said: "In support of the point which Mr Evatt sought to make as to fair

comment, the effect of his submission was to

assimilate fair comment under section 17 of

the Defamation Act to fair comment at common

law, or, possibly, under section 15 of the

Defamation Act. It is true that at common law

the defence of fair comment requires that the

comment be upon facts truly stated, or

notorious to the writer and those persons to

whom the comment is published. But in my

opinion it would be contrary to the tenor of

section 17 to impose such a requirement upon

it. In so far as section 17 concerns itself

with the truth of defamatory matter it does so

under its requirement of good faith. And what

is there required is not that the defamatory

matter shall be in fact true but that it shall

not be believed to be untrue. It appears to

me that that is the proper approach to the

matter of fair comment under section 17 - not

that it must necessarily be comment upon facts

which are true, but that it must be comment

upon facts which at least are not believed to

be untrue and whose statement as facts is

therefore protected, subject to other

requirements of "good faith", by the section."

It is of the essence of comment that it

should be comment upon facts. These may be,

but need not necessarily, be stated in the

matter sued upon; it is sufficient that the

facts upon which the comment is made should be

notorious or sufficiently indicated. But a

substratum of fact there must be. If matter

is to be classified as comment the reader must

be put into a position in which he is enabled

to judge for himself whether the comment is

Pervan(2) 5/11/92

well-founded. It is at this point that the

difficulty arises in the present case.

Then His Honour dealt with the particular

conclusion. My friend has already read to

Your Honours the passage at page 43B to D.

However, under D, His Honour Mr Justice Sugerman

continues:

At this point, in the absence of any

definition or other criterion in the statute,

it is necessary to import the common-law test
of fairness which is stated in Gardiner v John

Fairfax & Sons Pty Ltd -

and I will take Your Honours to that. That is the

test that the comment must be able to be

categorized as an opinion and the opinion of the

writer and not be beyond the bounds of an opinion
which can be held by a fair-minded person.

Mr Justice Walsh dealt with the matter from pages 48D to 52B. His Honour did not, in

His Honour's reasoning, deal with the precise point

whether or not the last words of subsection (8)

required that there be facts truly stated.

In my respectful submission, the statement of

law in this respect by the members of the Full

Court of the Supreme Court of Queensland was

correct and that an examination of the authorities,

it is submitted, does not reveal any distinct lines

of authority to the effect suggested by my friend.

McHUGH J:  How do you go about proving the facts, or do you

say you do not have to prove the facts at all?

MR GARNSEY:  Not for section 377.

McHUGH J: Supposing somebody in Queensland wants to attack

expenditures on art by the National Gallery and in

the course of discussing that subject, they say,

"Take Blue Poles: a more disgraceful illustration of good painting in my opinion couldn't be found",

and let us assume Mr Jackson Pollock was still

alive and wanted to sue in relation to that

comment. How would you go about justifying the

fairness of the comment under 377(8)?

MR GARNSEY:  If Your Honour pleases, you would simply say,

"Blue Poles is in the public arena. The National Gallery is known as a public institution and it's

known that it spends money - those are factual

matters referred to - and that's an opinion."

McHUGH J: But how do you know whether it is fair or unfair?

Surely as a minimum you would have to produce Blue

Poles - you might have to do a lot more, but surely

Pervan(2) 49 5/11/92

to determine whether the comment is fair or not,

you would have to produce the painting, would you

not?

MR GARNSEY:  With respect, Your Honour, one is not showing

that the comment is right; one is showing under

section 377 that you express a comment that you

honestly believe in or you express a comment

without an absence of good faith.

McHUGH J: Let us suppose this was published in a paper in

Innisfail. How is an Innisfail jury to determine

whether that was a fair comment or not?

MR GARNSEY:  Your Honour, the National Gallery is a gallery

for all Australians.

McHUGH J: But it is the comment about the painting that is

being sued upon.

MR GARNSEY:  Your Honour, no one has ever suggested that

when one criticizes a play or a work of art, one

has to set out the script in the article before

one -

McHUGH J:  No, of course one does not, but when one comes to

proof, Mr Garnsey, you have got to prove the text

of the play or whatever the substratum, you have

got to show whatever it was that you are commenting

on. It is just not enough just to make a comment.

MR GARNESY:  No, if Your Honour pleases. What is said - it

is either a statement of fact or a statement of

opinion.

MCHUGH J: Yes.

MR GARNESY:  And in relation to a statement of opinion, this

subsection imposes an additional requirement over a

statement of fact.	And, as Your Honour has said,
that is a question of what is within fair, and I am	attempting to answer Your Honour by saying there is
no intrinsic requirement for the application of the section, a section dealing with the defence of
qualified privilege. One has to show that there
are facts truly stated on which the opinion is
based. So long as the opinion is identifiable as
an opinion, then the control is with the absence of
good faith. That is the policy of the section.
One can say something that is wrong so long as one
honestly believes that it is right.

McHUGH J: Well then what part does the last words play?

The term "fairness" plays no part at all, does it?

MR GARNSEY:  No, with respect, it does, Your Honour. It has

to be fair in the sense of identifiable, first as

Pervan(2) 50 5/11/92

an opinion, and secondly as an opinion which is not
an opinion which no fair-minded man could have

formed or expressed.

MCHUGH J: About what?

MR GARNSEY:  About the facts in respect of which it is an

opinion.

McHUGH J: Like Blue Poles. About Blue Poles.

MR GARNSEY:  Yes, Your Honour. And that is because, with

respect, notwithstanding that width in

subsection (8) over and above the defence of "fair
comment", in section 375 of the Code, the defence
is also narrower because of the requirement that

the statement be made in good faith with the

requirements of the section and, in my respectful

submission, there is no need for any further
control because one has otherwise the availability
of the defence of "fair comment" under section 375.

All one has are the requirement that the statement

be made in good faith.

McHUGH J:  What do you say about the actual decision in

Uren (No 2), (1969) 71 SR(NSW)? Was that wrong,

was it?

MR GARNSEY:  No, Your Honour. It is right on the facts that

the court either accepted without doubt or in the
case of one judgment, accepted with doubt, that is,
that there was a statement that could only consist

of comment and could only be construed as

comprising comment with no evidence of any factual

basis whatsoever.

McHUGH J: It was about a politician.

MR GARNSEY:  Yes.

McHUGH J:  Why does not the politician stand in the same

place as the National Gallery in your answer to me.

MR GARNSEY:  Your Honour, it depends, with respect, what is

said about it and the statement in Uren as is there

and there was no logical connection with running a

raffle in a pub on a Saturday night with anything

at all. That is what I understood the court to be

saying, if one looked at the evidence.

TOOHEY J: But Mr Garnsey, if you put the matter of comment

to one side for a moment in relation to

paragraph (8), and the publication is made in the

course of, or for the purposes of the discussion of

some subject of public interest, assuming it to be

made in good faith, is the Court concerned with the

accuracy or otherwise of the statements.

Pervan(2) 51 5/11/92

MR GARNSEY: 

Yes, assuming it to be made in good faith, the

court is not otherwise concerned with the accuracy
of the statements.

TOOHEY J: 

So the statements could be as wrong as it is

possible to imagine.

MR GARNSEY:	Yes.
TOOHEY J:	Way off the mark, so long as they are made in

good faith?

MR GARNSEY:  Yes, Your Honour, and that is the

well-established doctrine in relation to the

defence of qualified privilege, as discussed in

Horrocks v Lowe and many other cases.

TOOHEY J: But then, once you introduce the notion of

comment, the paragraph requires something more. It
requires that the comment be fair. It requires all

the ingredients that are spelt out up to that point

in paragraph 8 and an additional ingredient that

the comment is fair?

MR GARNSEY: 

Yes, evidently Sir Samuel Griffith saw a need

as a result of some doubt on construction which
remains a mystery, to have that additional
requirement. It is my submission, though, that the

additional requirement is not found in the
requirement that there be true facts indicated or

referred to or available as the basis for the

comment.

The only suggestion to the contrary comes from

those who, in my respectful submission, misread the

passage from Mr Justice Windeyer's judgment in ACF

v Uren, 117 CLR, at pages 208 to 209. If one looks

at the edition of Salmond and the pages His Honour

referred to and the other cases that His Honour

referred to they simply do not deal with any such

requirement at all.

McHUGH J: Before you go on, can I just tax you a little

more about Uren (No 2). You see, in Uren (No 2),

it was accepted that the first limb was satisfied,

that although all the matter was comment,

nevertheless it was comment made in good faith in

the course of or for the purposes of the discussion
of a subject of public interest, namely, the
political activities of Mr Uren and the public

discussion of which was for the public benefit and

it was a comment about Mr Uren. Yet, nevertheless
it was held that the defence should not have gone

to the jury.

MR GARNSEY:  Because the comment, as I understand the case,

is said on the evidence to be made out of the blue,

Pervan(2) 52 5/11/92

just as if it appeared in neon lights in the air

with nothing surrounding it. That is the

reasoning. That is not the case here, in my

respectful submission. If one looks at it from a

matter of statutory construction in the Code, that

is, looking at section 375 and section 377, or if

one attempts to categorize a policy behind those

sections, in my respectful submission, there is no

need for any such requirement in section 377.

McHUGH J: Certainly if you are right, recourse to the

defence of fair comment will be few and far between

and that was the case in New South Wales for years.

I cannot ever recollect a case where a defendant

had to rely on fair comment in New South Wales,

except in O'Shaughnessy's case.

MR GARNSEY:  But if Your Honour pleases that is,

unfortunately, a natural result of tinkering with

the common law - - -

MCHUGH J: That may be.

MR GARNSEY:  - - - which has been a vice or a virtue of

legislation - - -

McHUGH J: If I discuss Australian cricket captains and I

say Xis the worst captain Australia ever had, then

he has got no remedy unless I made the statement in

bad faith, even though the comment is unfair.

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

equating "unfair" with is wrong and, in my

respectful submission - - -

McHUGH J: Well, no basis for it.

MR GARNSEY:	- - - that is not what section 377 or qualified privilege is about. In fact, it is in the public
views subject to all the other requirements of interest that people are allowed to express wrong
subsection (8) and the requirement of "in good
faith II•

Your Honour, in this case the manner of

conduct at the trial did not leave the matter even

on the basis of the advertisement. In response to
those parts of my friend's submissions which
suggest that there could only be one construction,

that is, all three sentences of the relevant

advertisement should be comment, can I refer

Your Honours to these matters without taking

Your Honours to them in the appeal book.

First, the pleading of natural and ordinary

meaning in paragraph 6 of the statement of claim at

pages (vii) to (viii); secondly, the pleading of

Pervan(2) 53 5/11/92

true innuendoes in paragraph 7, that is, the

extrinsic facts, and paragraph 8, the innuendo

meanings of the amended statement of claim at

pages (viii) to (ix). Amongst those extrinsic

facts pleaded were a prior publication or prior

publications. Now, if Your Honour pleases, there

is authority to the effect that that is a wrong

pleading and a matter that cannot be pleaded as an

extrinsic fact, but the trial was conducted on that

basis and that is not in issue here.

But the jury were invited to look at lengthy

newspaper articles found in exhibit 1 as

incorporated into the matter complained of, and

that is found in the summing up at pages 137 line

12 to 138, 140 lines 12 to 30, 151 lines 19 to 154,

and 157 lines 30 to 50. I will not seek to take

Your Honours to the summing up because it is

somewhat discursive and goes back to a topic at various places, but they are the references for

that matter, and Your Honour will see that the jury

were asked to take extensive account of the prior

publications without necessarily any distinction
between natural and ordinary meaning and the true

innuendo meaning in respect of that exercise.

Furthermore, at page 126, lines 48 to 60,

could I ask Your Honours to look at this passage.

My friend referred to this passage to support the

submission that there was an agreement that the

question of fairness in subsection (8) be

determined by His Honour. In fact, if one looks at
the passage, one sees that it was agreed that

His Honour should determine all the elements of

subsection (8), including whether or not the matter

was comment. At line 48 it is reported:

HIS HONOUR:  The question that I think we are

discussing now - and you may wish to reply

to - is whether all of the matters dealt with	in ss 8 are for me or whether all matters are	for me save for the fairness of the comment,
which is a question for the jury. That is
giving virtually no operation to s 379.

I direct Your Honours' attention with respect to

the words "all" as they appear, and then:

MR MOON: It is my submission the question of

fairness is a matter for Your Honour clearly.

MR POPE:  I say that too.

McHUGH J:  Mr Garnsey, did counsel agree on what were

statements of fact in the material?

Pervan(2) 54 5/11/92

MR GARNSEY:  Your Honour, I have read the transcript and I

could not possibly answer Your Honour from that

reading.	I do not think that that is necessarily
an imperfection in my reading.	Your Honour, I

cannot give Your Honour an unequivocal - Mr Pope's

recollection - he conducted the trial for the

defendant - is that he contended the first two

sentences should be fact and the third comment.

His recollection is that -

McHUGH J:	Who alleged these should be fact?
MR GARNSEY:	We did. His recollection is that Mr Moon

contended to the contrary, though after this lapse

in time his recollection is not crystal clear,

Your Honour. The argument is a little hard to

follow from the transcript. I think counsel tired

from the selection of the jury, Your Honour, which

was picked by the trial judge inviting the jurors

to put thumbs up or thumbs down, as one can see

from the transcript.

McHUGH J:  And what about the questions, are the precise

questions anywhere in the record?

MR GARNSEY:  Yes, Your Honour. The nearest I can get is

page 132 and I think it is clear when one reads the

summing up and what was left to the jury that these

questions did go. About line 38:

The only questions are:

(1) was the Public Notice published ..... of and

concerning the plaintiff?

If "Yes" to question 1,

(2) was it defamatory of the plaintiff?

In relation to that, Your Honour, our outline

of submissions was prepared before we were aware that as a separate matter but in relation to the
that my learned friend was not pursuing ground 5.

effect of the Code so far as it refers to

imputations and whether defences should be directed

to imputations, can I just give Your Honours the

reference to Ryan v Ross, 22 CLR 1, at page 11

point 5, which is referred to in paragraph 4.4 of

the outline of submissions in which Sir Samuel

Griffith unequivocally says that under the Code the cause of action includes imputation that all

variations of meaning in the matter complained of,
whether less serious or more serious. I am told

that in Queensland that case is often applied in

relation to the meaning of the matter complained of

and what may be put to the jury.

Pervan(2) 55 5/11/92

It has been applied or referred to in a number

of other cases, the references to which are set out in paragraph 4.4. If Your Honours please, it is in

22 CLR 1, 11 point 5 Sir Samuel Griffith is quite

unequivocal about that matter.

TOOHEY J: But are we to be concerned about this at all?

MR GARNSEY:  Your Honours, possibly only peripherally,

depending on how Your Honours wish to deal with the

submissions as to the defences and whether the

court was correct in dealing with the defence under

subsection (8) as it did.

McHUGH J: There is only one difficulty I have about the

matter. Contrary to the view expressed earlier, I

would have thought myself that the first two

sentences were clearly comment by reason of the
question mark and read against the background and
that the person advertising was raising the
question, in effect saying, "Are councillors

feathering their own nests? Are funds being

misappropriated" and the words "this is" was a

reference to these allegations rather than the

facts. That is not the way the pleader has pleaded

the imputation. He seems to have taken the view

that they are statements of fact in the first two

sentences. It is not a comment, or -

. MR GARNSEY:  But with respect, if one looks at the factual

background which was put before the jury, in

Mr Menzel's speech as reported and in the evidence

of what in fact had happened, which is found - I do

not have those references in detail, but it is

found in the plaintiff's evidence and in some other

person's evidence.	They were put as matters of
fact.	The articles - Mr Menzel said, "This is

what's happening: he is misappropriating funds",

and the plaintiff said, "I was not acting

improperly. This road was built, this building was

there", or whatever, "as a matter of fact" all

along. With the greatest respect, if one looks at

the way the trial proceeded and the evidence, it is

very difficult, in my most respectful submission,

to arrive at any construction other than the one

adopted by His Honour Mr Justice Thomas and the

other members of the Full Court.

McHUGH J:  What about the question marks after each of the - - -

MR GARNSEY: That is a rhetorical question, if Your Honour

pleases.

McHUGH J:	I know it is a rhetorical question, but against the background of allegations being made in the
shire - "This is doing irreparable damage to the

Pervan(2) 56 5/11/92

image of our shire; we're calling a public meeting

about it".

MR GARNSEY:  Your Honour, I really cannot make any answer to

Your Honour other than the one I have already made.

There are four sentences. We can all read them,

with respect. In the context of the trial, in my

most respectful submission, Your Honour's view is

really quite contrary to the evidence and contrary

to what the jury could possibly have decided.

Your Honours, that deals with paragraphs 1.1

to 1.7 of the outline, with possibly this

additional matter. If the matters that have fallen

from Your Honour Mr Justice McHugh are the correct

view of subsection (8) -

McHUGH J:	Which views are they?
MR GARNSEY:	I should have said "arguments", if Your Honour

pleases.

McHUGH J:  I have got no concluded view about it. I have

been thinking about that section or its equivalent

for nearly 30 years. I still have not formed any

clear opinion about it except that it is

incomprehensible.

MR GARNSEY:  If Your Honour pleases. The availability of

subsection (8) to the media in relation to
statements in the newspapers by third parties, for
instance, in letters to the editor or in classified

advertisements, will be severely curtailed. That,

in my respectful submission, is an important matter

and it is not a matter of abstract generality. If,
in fact, the defendant in this case is

unsuccessful, as a practical matter every media

proprietor who accepts classified advertising, or

indeed any other advertising, will have to have a

lawyer sitting there to vet the ads as they come

in.

In the case of significant advertising, of course, that is probably done where large amounts

are expended, but in relation to classified
advertisements which are there as a facility to the

public, this case represents a very serious threat.

It is another reason, in my respectful submission,

why the traditional view of qualified privilege

should apply in relation to subsection (8)

notwithstanding the word "fair", that it only goes

so far as I have submitted.

McHUGH J: But you have got to worry about the Trade

Practices Act as well, do you not, so you have got

to have a lawyer nearby to - - -

Pervan(2) 57 5/11/92

MR GARNSEY:  Yes, Your Honour, but they do not want to have

100 lawyers, or one listening to the 20 or so

telephonists at John Fairfax who take the

classified advertisements over the telephone.

Your Honour, in relation to then the matter

raised in Hawke v Tamworth Newspaper, my friend in
his outline does not really seem to submit that

subsection (8) cannot as a matter of principle

apply to comment where the comment is the comment

of a stranger. But in advancing the view of the

majority in Cherneskey's case, in my respectful

submission, the view of the majority is quite out

of kilter with the law as applied in England and in

Australia, and that was reviewed by

Lord Justice Lloyd in the Court of Appeal in

Telnikoff v Matusevitch at some length and I will

not seek to take Your Honours to that judgment
again, but I do submit, with respect, that

His Lordship's analysis as approved in the House of

Lords is compelling. Furthermore, the judgment of

the minority in Cherneskey's case is, in my

respectful submission, compelling.

Your Honours, can I just refer without taking

Your Honours to the minority judgment in

Cherneskey's case, in particular, section II on

page 1095 right through to section IV on page 1099

and, indeed, section Vas well through to

page 1102. Your Honours, that is in accord with

the analysis of authority by Lord Justice Lloyd in

in the Court of Appeal in Telnikoff's case, and as
well sets out what, in my respectful submission,
are compelling public interest considerations in
reaching that particular result.

My friend did not seek to analyse the decision of the Privy Council in Jones v Skelton to support

his submission. The effect of that case is

considered by Mr Justice Hunt in Hawke v Tamworth

Newspapers Ltd, and can I respectfully submit that

His Honour's analysis is the correct one and the

effect is as stated by His Honour.

It follows then, as submitted, in relation to

ground 4 in paragraph 3 of the outline, that in the
case of comment by a stranger there should not be
required any direct evidence of the defendant's

state of mind. But even if that be a requirement,

in my respectful submission, there was sufficient

evidence for the jury and the judge to decide the

fairness of the comment here. It is set out by

His Honour Mr Justice Thomas's judgment at

pages 245 and 248 of the appeal book, and I shall

not take Your Honours to it but, with respect,

there was sufficient evidence for the jury to be satisfied that there was no malicious belief or,

Pervan(2) 58 5/11/92

indeed, intentional conduct of any kind. And in

the case of comment by a stranger that may well be

sufficient.

In New South Wales, as Mr Justice Hunt has

noted, in the Defamation Act 1974, there is a

statutory recognition of the effect of the law for

which we are contending here in the case of comment

by a stranger, so the result for which we contend

would be in accordance with the statutory provision

adopted by the New South Wales legislature.

TOOHEY J:	Mr Garnsey, if you look at paragraph 3 at the foot of page 2 of your outline - - -
MR GARNSEY:	Yes, Your Honour.
TOOHEY J:	- - - it reads:

The defence under section 377(8) of the

Queensland Criminal Code does not require

evidence of the defendant's state of mind to

be adduced.

Now are we to read that as meaning, "in so far as the defamatory matter consists of comment", or "in

so far as the defamatory matter consists of comment

by a stranger", or are we to read it in the

absolute form in which it is stated there?

MR GARNSEY:  Your Honour, for the purposes of this case, it

would be sufficient if it were qualified in the

case of "comment by a stranger", as Your Honour has

suggested. In fact, we would say the correct view

is that of the minority in Cherneskey's case, of

the House of Lords in Telnikoff v Matusevitch and

of the authorities analysed by Lord Justice Lloyd

in the same case in the Court of Appeal, and that

is that there is no necessary requirement for the

defence to get up in the case for a defendant that	there be evidence of the defendant's state of mind.	In any event, if one analyses the defence of "fair
comment" or "statutory comment" here, in accordance
with the four requirements which are set out or
discussed by Mr Justice Hunt in Hawke's case and
referred to in Duncan and Neill, which was adopted
by the majority in Cherneskey's case and also by
the House of Lords and the Court of Appeal in
Telnikoff v Matusevitch, and if one goes through
those four requirements it is only if the plaintiff says, "Notwithstanding there is something
identifiable as comment, and it is based on facts,
and it is a comment which could be held by a
fair-minded person is not a comment which no fair-minded person would hold, notwithstanding all
of that, you still did not believe what you said."

Pervan(2) 59 5/11/92

Now, in that case, when one gets to that stage, then, as a matter of onus, the defendant has -

TOOHEY J: Well, that makes it an onus question and it

really means reading paragraph (8) quite

differently, does it not? It means reading it as

if the publication is not made in good faith.

MR GARNSEY:  Yes, Your Honour.

TOOHEY J: Well, why should one read it that way?

MR GARNSEY:  I am sorry, I misunderstood Your Honour.

TOOHEY J: Well you suggested that there might come a point,

because of the way in which the plaintiffs sought

to answer the fair comment defence at which it is

necessary to look at the good faith of the

publisher, but the way in which you expressed	it
suggests that you read paragraph (8) as if it	read,
if the publication is not made in good faith.	I
mean - - -

MR GARNSEY:  Yes. Your Honour, can I answer Your Honour

separately in relation to a fair comment as a

separate defence under section 375 or at common law

and in relation to subsection (8)?

TOOHEY J: 

I was only interested at this point in the relevance of good faith and the question of onus in

relation to paragraph (8).

MR GARNSEY: 

In relation to paragraph (8), we submit that

there is no requirement imported by the word "fair"
that the comment be based on facts which are, in
fact, true.

TOOHEY J: 

I understand all of that.

MR GARNSEY: 

If Your Honour pleases, the question is whether

the subsection applies as so construed and in that

case it is a question of whether there is
publication in good faith for the purpose of the
subsection which, in the case of a comment within

subsection (8), in practice means the plaintiff

saying to the defendant, "You didn't believe what

you said. You didn't hold that opinion. That is

you wanted to put a false opinion about me.".

TOOHEY J: Let us test it this way, if there is no evidence

one way or another about the good faith or bad

faith of the person publishing the defamatory

statement, does the plaintiff fail because the

plaintiff has failed to adduce evidence of bad

faith or does the defendant fail because the

defendant has failed to adduce evidence of good

faith?

Pervan(2) 60 5/11/92

MR GARNSEY:  Your Honour, the plaintiff fails because the

onus in that respect for the purpose of section 377

and under 378 is placed on the plaintiff.

TOOHEY J:  I understand the argument, thank you.

MR GARNSEY:  If Your Honour pleases. I have referred to

ground 4, which is only peripherally or may be

peripherally relevant to the defence - I am sorry,
paragraph 4, ground 5, but my friend is no longer

pressing that. Then, the only matter remaining is

in relation to my friend's last submission, that is

there was some evidence of absence of good faith

which should have resulted in a new trial rather

than the order which the Full Court made.

In relation to that, we respectfully submit

that Mr Justice Thomas is correct in his

consideration of the evidence, at pages 243 to 248

of the appeal book.

BRENNAN J:  The question is: was it for him to consider the

evidence?

MR GARNSEY:  Your Honour, His Honour is saying that there

was no evidence on which a jury could reasonably

come to the conclusion that there was an absence of

good faith in the publication and the only matter

pointed to by my friend to impugn that conclusion is the suggestion that the newspaper circulated a

little more widely than should have been the case.

That is dispelled by the fact that the advertisement, if it is defamatory, is defamatory

because it goes back to what Mr Menzel said in

Parliament which was widely reported in the same

newspapers and His Honour said it cannot reasonably

be thought that these matters are of interest to
persons up to the fence of the boundary of one

shire and no further. It is not as if the

publications were in a national paper. They were

not, they were in a local paper which circulated in

a very small number of adjoining shires and, in my

respectful submission, His Honour's conclusion is

quite correct.

When one looks at the basis of the complaint

which started in the State legislature and one

looks at the publication which is much smaller and

when one looks at the nature of allegation and that

is corruption in public office and when one looks

at the adjoining shires, in my respectful

submission, there is simply no evidence on which a

jury could reasonably find an excess of

publication. In my respectful submission,

His Honour was correct.

Pervan(2) 61 5/11/92

If Your Honour pleases, in relation to that,

neither party sought to adduce evidence as to the
extent of readership or the significance of a

publication being in one shire and spilling over

into an adjoining shire. It simply was not an

issue at the trial in terms of evidence and there

is nothing to suggest it could be an issue of any

significance at all, in my respectful submission.

MASON CJ: Thank you, Mr Garnsey.	Yes, Mr Chesterman?
MR CHESTERMAN:	May we say two things, Your Honour?
MASON CJ:	Yes.
MR CHESTERMAN:	Firstly, our learned friend submitted that Justice Windeyer at 208 of Consolidated Press v
Uren was not concerned with the requirement that
facts be truly stated before comment can be fair.
With great respect, that cannot be right. What
His Honour said at 208 is that:

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 & Co Ltd in mind, 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 -

Your Honours, that phrase means that on facts that

are proved, the comment could be that of an honest

man, but a requirement that the comment be shown to

be fair objectively has as a precondition that
facts be proved. That, may it please Your Honours,
appears from, among other places, the judgment of

Lord Justice Lloyd in Telnikoff v Matusevitch, at

119 of the report, where His Lordship quotes with

approval the passage from Duncan and Neill which

sets out the test for fair comment, and says:

(d) the comment must satisfy the following

objective test: could any fair-minded man

honestly express that opinion on the proved

facts?

So His Honour is talking about comment being fair

in the objective sense; he was talking about facts

being proved.

Your Honours, the second point we would wish

to make is in relation to the last matter addressed

by our friend: the extent of publication. The

privileged occasion at issue was the calling of a

meeting of ratepayers of the Johnstone Shire to

Pervan(2) 62 5/11/92

consider allegations of impropriety against their

councillors. That was the privileged occasion. It
was for that occasion that the protection given by
section 377 applied, if at all, and to publish the

allegations and the defamation in a journal went

beyond the boundaries of the shire and was read by

those who were not ratepayers arguably, in our

submission, meant that the extent of publication

was excessive. It was a question for the jury, not

for the judge. Those are our submissions, thank

you, Your Honours.

MASON CJ: Thank you, Mr Chesterman. The Court will

consider its decision in this matter.

AT 3.29 PM THE MATTER WAS ADJOURNED SINE DIE

Pervan(2) 63 5/11/92