Queensland Newspapers Pty Ltd v Hall

[2001] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B61 of 2000

B e t w e e n -

QUEENSLAND NEWSPAPERS PTY LTD

Applicant

and

ROBERT DAVID HALL

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE, 2001, AT 9.36 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MS D.C. SPENCE, for the applicant.  (instructed by Thynne & MacArtney)

MR P.A. KEANE, QC:   May it please the Court, I appear with my learned friend, MR K.S. HOWE, for the respondent.  (instructed by Michael Sing & Associates)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honour.  Your Honours, this is a case where it is submitted special leave should be granted for two related reasons.  The first is that after a second trial, the first jury being a hung jury, as it was put, the applicant has been deprived of the benefit of the verdict of a jury on a central question, namely, whether the publication was of and concerning the plaintiff.  The second related aspect is, in so doing, the course taken by the Court of Appeal was to apply a test which excluded the possibility most likely to have been adopted by the jury.  Your Honours, I say immediately we do not suggest that the case itself raises a new question of law.

GLEESON CJ:   I am not sure I understood your second point.

MR JACKSON:   I am sorry, your Honour.  What we were saying, in the approach taken by the Court of Appeal to whether the jury’s verdict should be set aside, what the court did was to apply a test which excluded the possibility most likely to have been, in fact, adopted by the jury.

GLEESON CJ:   I have not quite understood that.  Where do we find them applying a test?

MR JACKSON:   Yes, your Honour.  Your Honours will see there are four relevant passages.  They commence at page 30 at line 10.  It is the paragraph commencing at line 10, going through to the end of that paragraph is the first passage.  Your Honours, may I comment on it in just a moment after going to the other passages.  The second passage is at page 31 and your Honours will see it commencing about line 15 to the end of that paragraph, “So here”.  Could I invite your Honours to note that three possibility are there adverted to.  The third passage is on the same passage, commencing at line 30 and going through to about line 34.  The fourth is on page 32, commencing at line 19 going through to about line 24.

Could I then deal with those passages.  Your Honours, the point which we seek to make was this, that the article in question referred to a person who was a judge described as Judge Clive Hall, QC, who was sitting as a District Court judge at Townsville.

GLEESON CJ:   That is one way he was described.

MR JACKSON:   Then it went on, your Honour, to say Judge Hall on a number of occasions following that ‑ ‑ ‑

GLEESON CJ:   Yes.

MR JACKSON:   Now, your Honours, the point we would seek to make is this, that a view perfectly open to the jury was that reasonable readers would take the article to refer to a person called Judge Clive Hall, QC who was based at Townsville and, the corollary, as not referring to the respondent.  That there was, in fact, no such person who was Judge Clive Hall, QC based at Townsville would not be to the point.  But the approach taken by the Court of Appeal, your Honour, was to exclude altogether that possibility.  If one goes back to the passage to which I first referred on page 31, your Honour will see the three possibilities adverted to, line 15:

many readers among those familiar with the name “Judge Hall” would take it to refer to him; others knowing one or more of the three facts relied on by the respondent would be uncertain whether it referred to the appellant or not; and some (surely the smallest group) would understand that the intention was to refer to Judge Wall.

The point we would seek to make, your Honours, is, as I submitted a moment ago, that that left out of account the possibility that the jurors, seeing an article about a person called Judge Clive Hall, QC at Townsville might well take the view that that referred to that person, even though there was, in fact, no such person, and not to a judge who happened to be called Judge Hall, who was at the other end of the State.

GLEESON CJ:   I thought the central theme of the judgment of the Court of Appeal was that you did not have to ask what all readers would take from it.

MR JACKSON:   That is right, your Honour, in this sense, that what was said by the Court of Appeal was to respond to an answer given to counsel then appearing for our side when he was asked, “It doesn’t have to be every reader would arrive at the inference?”  So he said, “No, of course, it doesn’t have to be every reader.  It has to be some reasonable readers.  Some might not”.  But the point we are seeking to make, your Honour, is that whilst that is a perfectly correct proposition, when it came to the application of that proposition to the case, what was left out of account was, in fact, that one of the views that the jury might well have taken was to say, “Well, certainly there is a reference to a person called Judge Clive Hall, QC, but it is not a reference to the plaintiff”.

GLEESON CJ:   This article is republished ‑ ‑ ‑

MR JACKSON:   Yes, it is in the Court of Appeal reasons at the bottom of page 32, your Honour, and going over through to the next page.

GLEESON CJ:   Where does it say the judge was based in Townsville?

MR JACKSON:   Your Honour, I perhaps overstated it.  It said “at Townsville”.  It is at page 33, line 25.

GLEESON CJ:   The Queensland system may be different from the New South Wales system, but there would be nothing unusual about a District Court judge in New South Wales appearing on circuit anywhere in the State.  He would not have to be based there.

MR JACKSON:   No, your Honour.  That is possible.  The evidence was to the effect that Judge Wall was based in Townsville.  Judges are not necessarily based somewhere other than Brisbane.  He was, in fact, based in Townsville.  Judge Hall I think at an earlier point, quite many years before, had himself been in Townsville.

GLEESON CJ:   But there was no Judge Clive Hall, QC, but there was certainly a Judge Hall, a District Court judge, and there is nothing inconsistent with the circumstances in which Judge Hall operates, is there, for him to be sitting in Townsville?

MR JACKSON:   Your Honour, there is nothing necessarily inconsistent with that.  I accept that.  Your Honour, the point we would seek to make is that this was a question for the jury, that the way in which the trial judge summed up to the jury was, in our submission, to the point, clear and absolutely orthodox and no redirections were sought.  The way in which the Court of Appeal went about it at page 31 in a passage in paragraph [15], some of which I have taken your Honours to but not the lot, your Honours will see that they raised the question of the efficacy of the summing up but then, because no point had been taken, did not deal with it further.

Your Honours, that being so, the issue being put to the jury, with respect to the trial judge, very clearly in a direction which accorded with, for example, this Court’s decision in Lee v Wilson, your Honours, one have a situation where it was perfectly open to the jury to say, “Well, of course, there are, as we know now, two judges, neither of whose name exactly fits the description Judge Clive Hall, QC, but our view is that in the particular

case it is simply not established that reasonable readers would take a reference to Judge Clive Hall, QC sitting in Townsville as a reference to the person who is the plaintiff”.  Your Honours, that was taken away from the jury.  That was taken away from the jury by the Court of Appeal’s verdict.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Keane.

MR KEANE:   Your Honours, the applicant does not propose a test for setting aside the verdict of a jury different from that applied by the court, that is, was the decision one which a reasonable jury could not have made, nor does the applicant propose a test on the substantive issue of identification different from that applied below, which was a test that our learned friends conceded was appropriately applied.  Your Honours will see the concession recorded at page 29 of the record, lines 30 to 32.  At line 30:

the respondent accepts, correctly in my view, that it is enough if some reasonable readers who knew or knew of the appellant would have taken the article to refer to him.

Now, your Honours, our learned friends’ complaint articulated today, perhaps one might say for the first time, is that the decision of the Court of Appeal took away from the jury a conclusion open to them.  Could we say the short answer to that is that whether or not that conclusion was open to them, that is to say that some readers would not have taken it to refer to Judge Hall, that some readers would not have taken the article about Judge Hall of the District Court to refer to Judge Hall of the District Court, is not a view which would answer the appropriate test.  The appropriate test is ‑ ‑ ‑

GLEESON CJ:   That is beside the point that some readers might positively know that it was not your client.

MR KEANE:   Quite, and in that regard we refer your Honours to the discussion of the authorities that commences at page 30 of the record, line 20:

It is necessary to discuss the question whether it is enough that some reasonable readers take a publication to refer to and be defamatory of the plaintiff, although that point is not in issue.

His Honour is saying it “is not in issue” because it has been conceded.  He goes on to make the point that the concession was rightly made and, in particular, in support of our submission that the complaint that is made is beside the point, at paragraph [14] at page 31 in the reasons of the court it is said:

Perhaps most importantly, in Lee v Wilson (1934) 51 CLR 276, Dixon J, as his Honour then was, discussed the situation in which a publication may be capable of denoting two or more people and be “reasonably understood by one group of people to refer to one of them, and by another group to another and so on”. So here: many readers among those familiar with the name “Judge Hall” would take it to refer to him; others knowing one or more of the three facts relied on by the respondent would be uncertain whether it referred to the appellant or not; and some (surely the smallest group) would understand that the intention was to refer to Judge Wall.

GLEESON CJ:   Well, I think there is another possibility that Mr Jackson points to and is entitled to point to:  there would be some who would not understand that the intention was to refer to Judge Wall but would simply understand that the intention was not to refer to your client.  That is enough, is it not?

MR KEANE:   No, your Honour.

GLEESON CJ:   I mean, a member of your client’s staff, for example, who knew that he did not sit on the case in question would know that it could not have been referring to him.

MR KEANE:   No, your Honour.  Two things:  firstly, it is not a question of the intent of the publisher; and, secondly, the question is whether there has been a publication of and concerning in the sense that some readers to whom it is published would take it to refer to him.  The fact that some others, as in Lee v Wilson, would take it to refer to someone else is beside the point.

GLEESON CJ:   Quite, and there might be others again, however, who simply would not know to whom it was referring but would not take it to be referring to him.

MR KEANE:   Once again, your Honour, that is beside the point.  So that what one is left with, in our respectful submission, is an entirely orthodox statement of the substantive test to be applied and a negative answer to that question on the footing that some reasonable readers would have taken an article about Judge Hall of the District Court to refer to Judge Hall of the District Court.  Your Honours, those are our submissions.

GLEESON CJ:   I suppose there would be plenty of people who would know Judge Hall personally or by reputation but would not necessarily know his Christian name.

MR KEANE:   No, your Honour, and that point is quite poignantly made in Justice Pincus’ judgment, that his Honour is one who benefits from being known by a name different from his first name.

GLEESON CJ:   Like Justice Priestley.

MR KEANE:   Quite.

GLEESON CJ:   Yes, thank you, Mr Keane.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say two things.  First of all, I said at the commencement of our submissions that it was not a question of the test that was purported to be applied by the Court of Appeal but, rather, the manner in which it was applied so as to exclude a particular class, which may well have been the view taken by the jury.  The second thing I would seek to say, your Honours, is this, that our learned friend says this is a point raised for the first time.  Well, your Honours, if one goes to page 48 of the submissions in support of the application and looks at paragraph 23 ‑ ‑ ‑

GLEESON CJ:   But where does it get your argument if there was another class of persons in addition to those contemplated by the Court of Appeal, that is, a class of persons who would simply say, “Well, there is no such person as the person specifically named in part of this article and we know it wasn’t Judge Hall because we are members of Judge Hall’s staff and we know that he hasn’t sat in Townsville for the last two years, so we just think the newspaper has made a mistake and we don’t know who they are talking about”?

MR JACKSON:   No, I am sorry, your Honour, perhaps I did not put it very clearly.  What I was seeking to say was this, not limited to particular members of staff or a particularly narrow class of people; what we would seek to say is the class of people that the Court of Appeal’s approach excluded was a class of people and, in our submission, perfectly capable of applying to all the people who read it, that is that they saw the article as referring to a person and a person who was described in the article as Judge Clive Hall, QC sitting at Townsville and simply said, “Well, we are not satisfied that this refers to the plaintiff”.

GLEESON CJ:   Now, that is the point of departure between your argument and the conclusion of the Court of Appeal.  It is in your expression “perfectly capable of applying to all readers”.  That is what they said as a matter of fact was not right.

MR JACKSON:   Your Honour, they excluded the possibility altogether.  They just did not refer to it, but themselves divided up the possible groups

into three classes and because they did it that way, did not consider the view that the jury may well have taken.

GLEESON CJ:   I was not referring to “staff” as members of a discrete class, just as the most obvious members of a group of people who would fit your description.

MR JACKSON:   They would, your Honour, but we would put it rather more largely in the sense of referring to people who did not know at the time of reading the article whether there was or was not a judge by the name as described in the article, but simply looking, on the one hand, at the article and, on the other hand, the evidence of the plaintiff and say, “I am not satisfied this is a reference to you”.  Your Honours, those are our submissions.

GLEESON CJ:   This case turned upon the application by the Court of Appeal of well‑established principles to the facts and circumstances of the particular case.  The view of the facts taken by the Court of Appeal was well open to that court and the case does not raise an issue suitable to the grant of special leave to appeal.  The application is refused with costs.

AT 9.54 AM THE MATTER WAS CONCLUDED