Rogers v Nationwide News Pty Ltd

[2003] HCATrans 680

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S417 of 2002

B e t w e e n -

CHRISTOPHER MICHAEL ROGERS

Appellant

and

NATIONWIDE NEWS PTY LIMITED

Respondent

GLEESON CJ
GUMMOW J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 MAY 2003, AT 10.04 AM

(Continued from 30/4/03)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Thank you, your Honours.  Yesterday I began but did not finish answering a question which came effectively both from Justice Heydon and from the Chief Justice concerning the status of section 24(3) as a provision giving rise to an issue which was actually litigated below.  I had taken your Honours to page 666 without concluding that reference.  On reflection, could I go back further in time to page 602 in volume 3 in paragraph 47 of Judge Tupman’s reasons.

This also directly relates to the question the Chief Justice asked which I have already answered as to the identification of the proceedings and the identification of the extract, summary or abstract and in particular the identification of the putative protected report.  In paragraph 47 on page 602 it is narrated that my client relied upon a defence which by its reference appears to be a direct reference to section 24(2).  That, with great respect, vindicates entirely the way in which your Honour the Chief Justice first asked that question.  There is a reference there to the fact that: 

the published article was a fair report of the proceedings held in public in the Federal Court of Australia on 21 August, 1996 in which Justice Hill delivered judgment –

As I think your Honour Justice Heydon has already observed, and we entirely accept, the pleading simply does not raise a section 24(2) defence in those terms. 

GLEESON CJ:   But it is the opening word of the next paragraph. 

MR WALKER:   Yes, quite.  Page 603, however, puts a very different light on matters.  The word “Specifically” is perhaps an inapt word but at least captures the more focused nature of the defence.  Then, correctly, her Honour notes that it is the provisions of both of the subsections (3) and (4) which were invoked by the pleading to which I have already taken you. 

GLEESON CJ:   I think she probably just meant, Mr Walker, “We are in the territory of protected reports but, to be specific about it, subsections (3) and (4)”. 

MR WALKER:   Yes, however, I am bound to draw your attention – I think, on balance, against ourselves – that in paragraph 47 the identification of the proceedings upon which there was putatively a protected report was undoubtedly the Whitaker v Commissioner of Taxation proceedings. 

GLEESON CJ:   That is the way you put it, too. 

MR WALKER:   Yes, it is.  I say, against myself, because of what I am about to come to and what will fall out in argument about section 24, in paragraph 51 a precursor of the Russian doll metaphor of my friend emerges, that is: 

The Judgment of Hill, J. necessarily contained references to the Rogers v Whitaker litigation by way of background. 

Then at the foot of that paragraph, lines 42 and following: 

The Defendant claims that the published article is a fair report of Justice Hill’s summary of the Rogers v Whitaker litigation –

and then what the word itself refers to is not clear, but that would appear to be the summary –

which itself on its face purported to be a fair report of that litigation and as such the Defendant claims to have made out the defences either in Section 24(3) or Section 24(4) of the Act. 

So that her Honour plainly understood the matter as to the relation between the two limbs of the defence pleaded as involving a fair report of what Justice Hill had said which itself purported to be a fair report of what, for example, Justice Campbell had said – not only Justice Campbell, of course, the Court of Appeal and this Court as well in Rogers v Whitaker.

Now, what that added gives rise to, perhaps, an unanswerable query satisfactorily by me in terms of the forensic course below.  What it added to refer to the fact that there was a summary which purported to be a fair report by Justice Hill is perhaps an open inquiry.  It does, however, give rise to some questions of interpretation and interaction between sections 24(2) and (3) and (4) on the one hand and, in particular, section 25, to which I will be coming as well.

Nothing in the balance of her Honour’s reasons, we think, adds further light to the way in which those matters, however, were teased out, if at all, by counsel.  Could I then go back to the page I had left at which is 666 in the reasons of Justice Stein, paragraph 88, in precisely the same manner as your Honour the Chief Justice has suggested we accept.  Judge Tupman started, as it were, on the general topic of protected report, so his Honour referred to subsection (2), but subsections (3) and (4) on page 667 are the immediate and focused subject of inquiry.  The reasons with which your Honours are then familiar follow, concluding at the foot of page 673.

It is clear beyond any doubt that what his Honour is talking about in paragraph 113 is the end of a process required by principle enunciated in Thom’s Case, for example, of comparing the putative summary with the report being the copy of the delivered reasons for judgment of Justice Hill.  There is no exercise involved of going back, for example, to Justice Campbell’s findings, let alone to the Court of Appeal or the High Court.

It is in that context that one is reminded that the learned President, as I noted yesterday, in any event at page 644 in paragraph 7 had said just as much, namely that the extract, abstract or summary, which was the pleaded proposition was “of, the protected report (ie the judgment of Hill J)”.  Now, against that background one then comes to the way in which it becomes crystal clear that in the Court of Appeal, as their Honours understood the argument, and that is not a matter that involves going behind that at all, it was subsection 24(3) which really was the entire burden of the argument.  That is made clear by the passage which commences at the top of page 674 where it is clear that the issue appreciated in the Court of Appeal was whether there needed to be, among other things, the knowledge or the lack of knowledge which is a proviso both of section 24(3) and (4) but has no part to play in subsection (2).

So that it is clear from the passage introduced by paragraph 114 and continuing thereafter to the top of page 675 that the issue before the Court of Appeal was whether or not there had been a fair summary from a protected report within the meaning of section 24(3).  If there had been then the question of knowledge became relevant.  Their Honours, therefore, turned to that question.

GUMMOW J:   But in the Court of Appeal, for example, there was no point as to “published by any person” in 24(3).

MR WALKER:   None at all, not a trace of it.

GUMMOW J:   There is now, though, but it is a pure question of law ‑ ‑ ‑

MR WALKER:   The analysis requires that and that is why I drew to attention what was recorded at trial because the Russian doll idea recorded at trial positively presupposes, only impliedly, but necessarily involves the proposition that one could posit a judge being a person publishing a protected report.  We raise it to dismiss it and to abandon any such possibility.  That does not mean, however, that there are not reports of previous litigations involved, very often in delivered reasons for judgment, involving very often the derivative repetition by way of paraphrase classically of defamatory statements about previous parties or witnesses.

HAYNE J:   You said there was material led at trial about how the journalist came to have the judgment.  Could you summarise the effect of it and simply list the references?

MR WALKER:   Yes, the references are in volume 1; page 93, lines 54 through to page 94, line 5, and on page 96, line 26 through to line 53.  The effect of the evidence is that the journalist got a copy of the reasons and that the journalist collected a copy of the judgment from his Honour’s associate.

HEYDON J:   I thought yesterday you said the associate could not be a relevant person for the purposes of “published by any person”.  You said it was going to be a functionary in the registry.

MR WALKER:   Yes.  I do not think I was referring to this case, I think I was referring to ordinarily the associate does not hand out copies.  An associate can be a functionary of the court for the purpose of the physical delivery, which is publication of a protected report, but not ever of the copy handed to the associate.

GUMMOW J:   I doubt if this is what happened myself.  It was a leading question, unfortunately.

MR WALKER:   It was, unfortunately.

GUMMOW J:   Whether this journalist knows the difference between a judge’s associate ‑ ‑ ‑

MR WALKER:   An associate and a court officer.

GUMMOW J:   And someone in the registry might be in question.

MR WALKER:   Your Honour Justice Heydon ‑ ‑ ‑

GUMMOW J:   This was not the way these things were done when I was in the Federal Court.

MR WALKER:   No.  At page 47 of the transcript, 2085 is where I gave the answer which your Honour is recalling correctly, with respect, and that answer:

I mean functionaries, I do not mean the associate.  I mean whoever it was, and I will go to the evidence a little later, whoever it was who gave a copy – using the word literally – of the written reasons for judgment to Ms Toy, the reporter for the newspaper.

GUMMOW J:   Where are you reading from, Mr Walker?

MR WALKER:   The transcript of yesterday, your Honour, 2085 on page 47.  The short answer is I was wrong in misremembering the second piece of evidence which I paraphrased in answer to Justice Hayne.  The first piece of evidence at the first of the references I gave does not name the associate.  That is where she just says, “I got a copy of the reasons”.  I am not saying as a matter of law that the associate, when serving the purely clerical task of physically handing out duplicate copies of the reasons for judgment delivered to the associate in order to publish the reasons by the judge – I am not saying that the clerical handing out cannot be publication within the meaning of section 24(3).  If it was the associate, if it was a court officer, if it was a counter clerk, whoever hands out one of those duplicate copies is, in our submission, publishing a protected report.

HEYDON J:   What if Justice Hill had wanted just to clear up some point about the orders and said, “I publish my reasons.  Officer, please give a copy of this judgment to Mr Walker”, and it was handed to Mr Walker, or indeed there was no officer there and Mr Walker’s solicitor came around and took it.  Do you say that makes a crucial difference?

MR WALKER:   It makes no difference whatever to the position of the judge.  In neither case is the judge publishing a protected report, but in either case, whoever it is who delivers the duplicate copy to the solicitor or counsel will have published, according to both the ordinary English and common understanding in the law what it involves to publish a written statement.

HEYDON J:   But if Mr Walker’s solicitor came around and took it from the hand of the judge?  Let us assume the court is very undermanned at that moment.  Do you say there that there is no publication by any person but if the judge said to the court officer, “Hand this to Mr Walker”, that would be a publication by the court officer?

MR WALKER:   Your Honour does raise a hard example, hard only because of the status and function of the judge as a judicial officer, by contrast court officer or associate or clerical staff, in terms of conducting the proceedings.

HAYNE J:   All that seems founded on a very narrow view of proceedings and a very narrow view of the functions of the court.  It divorces administrative functions happening in the registry, from what happens within the courtroom.

MR WALKER:   It does, your Honour, yes.

HAYNE J:   It is angels on pinheads, Mr Walker.

MR WALKER:   No, it is the same line which is drawn for the purposes in many contexts of the law of privilege, so that a court staff officer saying something by way of paraphrase will not attract anything like the immunity which a judicial officer gets during proceedings.  Similarly, a judicial officer will not necessarily have privilege after the proceedings have finished in utterances about what happened in court.

HAYNE J:   The journalist had a right under the rules of court to inspect the file, or portions of it, including the reasons for judgment.  Do you accept that?  See Order 46 rule 6 of the Federal Court Rules.

MR WALKER:   Yes.

HAYNE J:   Subject to what I will describe as inconsequential requirements, the reporter was entitled to obtain a copy.  The rule says “may copy” relevantly the reasons for judgment.  If she had done so by arranging, as is almost invariably the case, for the court staff to photocopy it and hand it to her, do you say there would be a protected report made by some functionary at that point?

MR WALKER:   Yes, I do, and I distinguish that, be it narrowly or casuistically, your Honour.  I distinguish that from that which both the rules, practice, and the nature of the conduct of a judicial officer shows in relation to the delivery of reasons, which is a judicial act intellectual in character, which can be either vocal or written, which involves the physical movement in the case of a written delivery of a document.  That document retains its identity for all time as the reasons for judgment.  All duplicates thereafter are copies of it.  Being copies of it, it happens therefore, if they are an exact copy, they are a perfectly fair protected report of the whole, as it happens.

GLEESON CJ:   Now, the answer you gave to Justice Hayne may be right, it may be wrong, but unless it is right, that is the end of your section 24 case, is not it?

MR WALKER:   Yes, because we did not, as the pleadings and the course to which I have drawn attention show, essay the argument which may well have been available that there was a protected report of part of the proceedings before Justice Hill by the statements in the article.  In other words, 24(2) may have been directly available.  I do not want to spend any time on it except insofar as it is relevant to the understanding of 24.  The fact is, the issue was not run in that form.

That would follow by reason, in particular, of the way in which the law is understood, exemplified by the reasons of Justices Gaudron and Gummow in Chakravarti, paragraph 42, reproducing familiar propositions from, for example, Thom’s Case, namely, that a report does not have to be a report of the whole.

The class of documents referred to in section 24, of course, are by no means exhausted by duplicate copies of delivered written reasons for judgment.  They are either an unavailable example, if my argument today is wrong, or just a minority of the kind of documents that might constitute protected reports.  The classic example, both from the 19^th century experience of daily reporting of court proceedings and also from the nostalgic hankering after such practice that one still sees in later 20^th century references, is the verbatim report of what a witness and counsel said, for example, during examination or cross‑examination in proceedings being recorded daily.

That verbatim report, if it be verbatim, is not the less a report and is, of course, manifestly fair by reason of omitting not a syllable.  In other words, perfection of reproduction of the words in the relevant part of the proceedings being reported does not render the product in question less than a report.  Indeed, it makes it, one would have thought, an ideal report measured against the notions of completeness and accuracy.

The same thing can be said of duplicate reasons for judgment.  They are not deprived of their quality of being a report of the reasons delivered by the judge simply because they are perfect in the sense of being complete and accurate.  When one goes to the other possibility where, but still well and truly possible, of a judge delivering reasons vocally, then the same thing applies to the notes made by the reporter in court verbatim as applies to the transcript of evidence made by a reporter for the newspaper in ‑ ‑ ‑

HAYNE J:   And to the video tape made in those courts which permit recording in that fashion by the media of that oral delivery of judgment?

MR WALKER:   If one is contemplating the publication of that videotape, yes, your Honour.  We do not have to embrace the videotape because - we do not know need to tend to the question of videotape.  One would need to know in particular the arrangements so as to detect whether the display of video is part of the proceedings.  If, however, it is simply given to commercial broadcasters for example, then in our submission ‑ ‑ ‑

HAYNE J:   I have in mind what occurred in the Patrick Case, Mr Walker.

MR WALKER:   Yes.  Then it is clear in that case, in our submission, that there is a report of the proceedings being broadcast by way of extract or summary when the clip is shown on the news.  It means that the video from which that was taken, the whole video from which that was taken, is a protected report.

But the point I am making at the moment is that there will be no difference, or should be no difference in principle, and none can be detected in the text of section 24, between the transcript of the judge’s vocally delivered reasons made by the newspaper journalist on the one hand, verbatim, complete, therefore perfect and nonetheless a report because it is, if you like, a simulacrum of what the judge has done.  There should be no difference between that and what the court supplies, whether for payment or otherwise, and pursuant to arrangements with the associate clerk or the judge’s chambers does not matter, when duplicate copies either of the official court transcript of the vocally delivered reasons or for that matter of the edited reasons for judgment after there has been the vocal delivery of judgment and a corrected copy has been prepared in the judge’s chambers.

In our submission in all those cases, functionally and purposefully for section 24, we are talking about something that comes into existence not for the purposes of conducting and completing or recording the proceedings, but for the purpose simply and solely of letting the world know about them.  That, in our submission, is the critical aspect apart from the one and only original delivery of reasons, that is the critical aspect which renders duplicate copies of reasons for judgment when they are written, as well as when they have been vocalised, protected reports of that part of the proceedings.

If we are correct in that, then the issue was correctly pleaded and restricted in these proceedings to the question of fair extract, abstract or summary.  It was not so much that we presented obstacles to ourselves which we did not need to present.  It was that, as a matter of analysis, that was the right way to plead the case if the reasons for judgment which Miss Toy got, as she says in her evidence, are themselves to be a fair protected report.  There has been no question about the fairness of the simulacrum.

We then go to the question of whether what was published was “a fair extract or fair abstract from, or fair summary”.  The epithet appears three times in subsections (3) and (4).  That fairness is of course a different kind of fairness, although it involves precisely the same Thom’s Case approach.  It is just that the comparison is between different points of departure.  For subsection (2) the comparison is with what the hypothetical observer would have formed as an impression had he or she been there to hear the judge delivering reasons or to hear the witness giving the evidence.  That is the comparison which produces the result or not of fairness in the putative protected report.

When one comes to the question of extract, abstract or summary, precisely the same general test is applied, namely whether there is no substantial difference in the impression formed et cetera, Thom’s Case, but this time the point of departure is the protected report on the one hand and on the other hand the extract, abstract or summary that in turn gives rise to slightly different questions depending whether it is, for example, an extract on the one hand or an abstract or summary on the other hand, because the fairness of an extract may involve questions of what I will call misleading by omitting to note what happened the next day; classically what happened in cross‑examination if all you have extracted are the answers to friendly counsel in evidence‑in‑chief.

But when it comes to abstract or summary, and summary in particular is the one that matters in this case, then fairness involves first of all recognising that the original protected report did not have to report the whole of the proceedings; second, that the summary and its fairness in the Defamation Act calls to be compared, as was discussed in Anderson’s Case and is noted in Chakravarti, in relation to the relevant part and in particular the defamatory part of the matter complained of.

That reference I have made there in Chakravarti is to page 526 paragraphs 2 and 3 in the reasons of Chief Justice Brennan and Justice McHugh.  Your Honours, it is for those reasons that subsection (3) can be said to provide protection for a fair summary of what might be, in a relevant respect, an unfair protected report.  In this case, that did not arise, because the protected report was manifestly fair – fair having nothing to do with the truth of factual statements contained in it, fair having to do with the sufficient or adequate fidelity of impression to be assessed upon the comparison with the event or phenomenon, the delivery of reasons, on the one hand, and the text of the report, on the other.  That meant that the question in this case came down to the matter as to whether it was a fair summary – the newspaper articles references was a fair summary. 

On that issue, as your Honours will recall, there was unanimity in the Court of Appeal.  The so‑called four mistakes identified by her Honour at trial were, by all three judges, found not to be material in the sense required by Thom’s Case comparison.  To use the language, I think, of the President, one could track all the statements in the article to Justice Hill’s reasons.  To pick one that you cannot track, where you actually find a literal disparity ‑ the plural “corneal grafts” compared to the singular “corneal graft” in Justice Hill’s reasons – the short answer, in our submission, is that that does not have any materiality in relation to the sting of the defamation and one cannot find, significantly, apart from her Honour’s reference to that as being an error, any reasoning at trial, let alone in the Court of Appeal, as to why that difference would make any difference. 

GUMMOW J:   Well, there is a difference between “after” and “ultimately”, too, is there not? 

MR WALKER:   Yes.  Finishing off about the plural/singular grafts, of course, an assumption is involved in what my learned friend put there yesterday about that meaning two eyes.  That is an assumption which simply was not explored. 

In relation to what your Honour Justice Gummow has raised, “after” is used in, ironically, the archived reports, to which I will come when I come to the question of reasonableness, in particular, and knowledge.  “After” is used in those reports in a way which quite plainly equates to post hoc propter hoc.  In other words, no mere temporal sequence is being talked of when it is said that a woman lost her sight “after” being operated on “by a prominent eye surgeon”.  The “after” has nothing to do with simple date sequence; it has everything to do with causal connection ‑ and correctly, of course. 

“Ultimately” is, of course, a word which allows the reader to understand that there were intervening causal steps – infection and the travel of infection – but that, of course, in the eyes of the law, did not matter one hoot so far as causation was concerned, whereby it could be said that the having of the operation, itself the result of the negligence in failing to warn, caused Mrs Whitaker to suffer the loss for which she was compensated, the interest component on which led to the taxation decision.  That causation is again, without any doubt – and whether one uses the word “after” or “ultimately” makes no material difference to the proposition truly stated by Justice Hill, truly summarised by the newspaper, that it was after the negligence of the surgeon, it was by reason of the negligence of the surgeon, that the woman became blind. 

Of course, there is the world of difference between the negligence in the way in which one physically performs a procedure in an operating theatre, which may involve matters, for example, of anatomy or dexterity, and the whole ensemble of professional services which the law held, in this Court, plainly included a duty to warn, in the sense that the authority establishes.  There is the world of difference; hence the hurt the plaintiff feels.  However, it makes no difference to the proposition that it was negligence. 

That is why, in our submission, this Court should uphold the unanimous conclusion in the Court of Appeal that there was fair summary by reason of the way the newspaper summarised Justice Hill’s reasons for judgment, the copy of which had been published to Ms Toy.

The two points which we wish to add to the reasoning in our written submissions on this point by way of emphasis is first, that the metaphor of “suffering at the hands of the surgeon”, being the expression used in Justice Hill’s reasons, is one which of course being a metaphor does not necessarily mean it was a slipped finger that caused the harm.  What it does mean, when one is talking about a surgeon, is that one could not possibly seriously dispute that it also involves the proposition that it was the way in which the surgeon “carried out”, those are the words of the imputation, carried out the procedure which caused the loss.

It may not be restricted to that, it plainly is not restricted to that, but it would certainly include that and one may need only posit if the boot was on the other foot with what difficulty a newspaper would say that “at the hands of” did not include by reason of the way in which you actually carried out the procedure in the operating theatre by the manipulation of instruments using your hands.  That is the first point.

The second point concerns the matter that one finds in paragraph 18 of the expanded print of the “Blind Justice” article to which my learned friend took you yesterday.  Paragraph 18, your Honours will recall, is the one where my learned friend says, slicing it up, we say illegitimately, that it comes without “attribution”, the word which is at the heart of this part of the plaintiff’s argument.

True it is that the paragraph commencing “In 1984, Mrs Whitaker lost sight in both eyes after an operation” et cetera, and true it is that that appears to be a statement of fact without in that sentence there being a reference either by footnote, quotation mark or other verbal indicator, that it was an attempt to summarise what Justice Hill had said.

However, it is clear from what follows, paragraphs 19 and 20, and what follows obviously casts light on how reading the article as a whole ordinary reasonable people would understand paragraph 18, but the familiar intellectual course has been taken of setting out the facts, then noting the cause of action asserted and finally coming to the outcome of the case, which is the sequence reflected in paragraphs 18, 19 and 20, bearing in mind that by the time the reader had got onto this page from page 1 it was beyond any doubt clear that there were at least two pieces of litigation understood by the reader, and probably four, namely, the three Rogers v Whitaker pieces of litigation, plus the Whitaker v ATO litigation.  In our submission, it cannot seriously be said that 18 somehow got lost in the Macquarie swamp of an inability to know whether that was a report or not of the litigation.

GLEESON CJ:   I am not entirely sure that you are not attributing to the ordinary reasonable reader the knowledge that a solicitor might have as to the structure of reasons for judgment, rather than the knowledge that a general practitioner might have of the structure of reasons for judgment.  How would a general practitioner reading this know or understand that what appeared in paragraph 18 was likely to have been something taken from what Justice Hill said?

MR WALKER:   Because in paragraph 3, if one goes back to page 1, the event in Mrs Whitaker’s life which paragraph 18 refers to is described as “blinded by a surgeon’s negligence” and because the combination of the references in paragraphs 4, 5 and 6 to Justice Hill’s decision is immediately followed by paragraph 7 which refers to the award of damages – see paragraph 20 – for the loss of her sight, that is, without having any legal knowledge or understanding of the litigious process the reader has been told that the person “blinded by a surgeon’s negligence” had been awarded damages for that and, in our submission, sequence had already been set up in the article, blinded by something which attracts both a lay and legal opprobrious label – negligence – award of damages, that is the subject of the tax dispute.

GLEESON CJ:   But you and I and most lawyers know that it is a moral certainty that Justice Hill’s reasons for judgment would have canvassed the history of the previous litigation.

MR WALKER:   Yes.

GLEESON CJ:   But how would a general practitioner reading this know that what appeared in it about the previous litigation was an account of what Justice Hill said?

MR WALKER:   Paragraph 11, I suppose, is the highlight which would make it crystal clear ‑ ‑ ‑

GUMMOW J:   I am not sure about that.  Paragraph 11 may be the terminus because paragraph 12 switches to what Mrs Whitaker has been saying.

MR WALKER:   Yes, but paragraph 11 uses the quotation marks which are the desideratum of the plaintiff’s argument, attributes it to Justice Hill – and we know that the reader will understand that as the reasons for the decision which is the subject of comment – and starts off by referring to her position as being litigation in what is called a personal accident case, and contrasts that in his reasons with another hypothetical possibility, introduced by the word “if”, the counterfactual was immediately having had the amount paid. 

Now, what that showed the reader, the general practitioner, who might be a source of referrals, is that he or she would have read what the Federal Court judge was talking about in the taxation dispute were the proceeds of a contested piece of litigation for what is called a personal accident case arising from being blinded by negligence and leading to an award of damages.  In our submission, put together, there could not be a more explicit way of the reader being told, without any legal culture at all, that what Justice Hill had talked about was the way in which Mrs Whitaker came to have the money which was the subject of the claim to assess income tax. 

It is for those reasons, in our submission, that paragraph 18, which really stands apart, according to the plaintiff’s argument, is to be seen as an overall fabric in an article which has to be read overall, which this Court will look at overall, in a way which deserves the description I have given it as a clearly ‑ ‑ ‑

GUMMOW J:   Is there any further reference to the Federal Court appearing in the article after the end of paragraph 11?

MR WALKER:   Not after, no.  What one has is ‑ ‑ ‑

HEYDON J:   Well, 29.

GUMMOW J:   That is the question and it is for the ATO.

MR WALKER:   Yes, that is right, but in relation to what I will call reporting the event in the Federal Court, what your Honour Justice Gummow has seen, of course, is paragraph 4 which is the description of the venue and the institution fought in the Federal Court.  Paragraph 9 the description of the judge as a “Federal Court Justice”.  That, of course, then carries over to everything that refers to him, Federal Court.  Paragraph 12, which refers to the litigation determined by Justice Hill.  At paragraph 14, “Outside the court”, which is obviously outside the Federal Court or the venue of the Federal Court’s hearing.

For those reasons, in our submission, the approach taken by all three judges in the Court of Appeal on fairness should be upheld by this Court, that is, fairness of summarising.  It is important to stress that the fact that the statement agreed by our agreeing to the imputation, the fact that the imputation as to Dr Rogers’ conduct, the quality of the conduct which had rendered him liable, was not true, has nothing to do with either of the fairness issues which are raised, first by the question of the fairness of the duplicate copy of written delivered reasons for judgment, and second, by the question of the fairness of the summary from that performed by the journalist and printed by the newspaper.

Before leaving Part 3 Division 5 of the Act, it is impossible not to notice - and we accept that this is important - that section 25 is part of that which falls to be interpreted - in fact there is a yoking together one sees in section 26.  But section 25, we need to draw to attention, differs functionally from section 24 because it is restricted to documents.  In other words, there will be overlap in the case of certain instances with respect to written delivered reasons for judgment but not otherwise, certainly not with verbatim reports made by a journalist of vocalised reasons for judgment and certainly not testimony taken down verbatim.

One finds in clause 3 of Schedule 2 that the relevant hook by which section 25, not an issue in this case, may nonetheless have been considered for deployment, comes from clause 3(3), namely (3)(b)(i).  Clause 3 is limited to:

(a)  a judgment, being a judgment, decree or order in civil proceedings, of a court ‑

One is tempted to think the judgment, decree or order, according to familiar approaches in for example the Constitution, section 73, would not include reasons, but rather the decision. But 3(b)(i), as to the delivered written reasons for judgment, would clearly be a record of the court relating to such a judgment. There is, however, also subclause (4), which picks up a point that your Honour Justice Hayne raised in another context this morning. As well as court rules which enable people to take copies there is the either explicit or implicit permission to inspect, and one finds that notion picked up and dealt with by the New South Wales Parliament by the notion of there being:

a record or document kept by a . . . court . . . being a record or document which is open to inspection by the public.

And in cases where reasons for judgment do enjoy that status, and the rule of court to which your Honour Justice Hayne drew attention this morning would give one example of that, then that would fit as well.

However, it is clear that when one goes to clauses 2 and 3 of the Schedule and in particular when one goes to clause 2(5) of Schedule 2 that there is a deal of overlap, and understandably so, with respect to the operation of sections 24 and 25, a matter recognised in reality by the way in which they are then dealt with indifferently in section 26.  But we stress they are operating in different functions.

There is a broader scope for the nature and progenitor of protected reports in section 24 than there is for the privileged documents or records, if I can call them that, in section 25.  They have to be, in effect, official under section 25; they could be completely private under section 24.  The trade-off is section 24 in its second and third limbs, subsections (3) and (4) require the demonstration of a lack of a certain state of mind whereas there is no such element in section 25.

In both cases your Honours will find that the draftsman has included the interesting notion of a copy in section 24(3) and (4) and in section 25(a) one sees that protection is explicitly given for copies.  In our submission that indicates the concern of Parliament to distinguish between duplicates, however exact in their reproduction, and the original.  There is only one original, in our submission.

Could I then turn to the important issue of knowledge which has a number of different aspects as our friends have argued it?  The first of them concerns the position of Mr Allen.  The evidentiary references upon which we rely are set out in paragraph 60 of our written submissions - I will not take your Honours to them.  It suffices to note that in none of the references that your Honours have been given by our friends is there any evidence of Mr Allen’s state of mind.

Far from being able to seize upon that and complete a gap with Jones v Dunkel, my learned friend needs to demonstrate in the absence of any such evidence why the process of inference assisted by Jones v Dunkel enables one to make a positive finding as to what he did know on the night in question.

CALLINAN J:   But you are assuming that his knowledge is the only knowledge that counts.

MR WALKER:   I am dealing with that one first.  I am not going to assume that, your Honour.  I am going to come to the archives question in a moment.  I am not assuming that for his purposes; I am dealing only with that which has been put as a Jones v Dunkel submission.  It simply says, “We can by Jones v Dunkel find that Mr Allen knew that was false”.  In our submission, there is no evidence permitting that inference at all.  The notion that for a layman, however skilled, being a journalist and senior editor would distinguish between what might be called particulars of negligence, failure to warn on the other hand and, interestingly, the other particulars one finds reported in Justice Campbell’s reasons as being rejected at the trial between Rogers v Whitaker, is really bizarre.

Among those rejected particulars, which do not include, as it happens, the negligent deployment of scalpel or whatever other instrument, that is that no failure of dexterity or knowledge of anatomy, one finds at 154 in volume 1, the way in which Justice Campbell dealt at trial in the right‑hand column, about line 45 or thereabouts, little difficulty in rejecting particulars which are then briefly the subject of conclusions starting at page 193, right‑hand column line 25.  They are:

(a)  Failure to carry out certain tests before operation . . . 

(c)  Recommending and performing an ill-advised operation

Why on earth Mr Allen would be expected to have understood the difference between that particular and another one cannot say.  The other particulars are no more evocative of them having stuck in Mr Allen’s mind:

(d)  Failure to follow up missed appointments after surgery . . . 

(e)  Failure to advise the plaintiff adequately as to . . . medication . . . 

(f)  Failure to enucleate the right eye –

None of that was held against Dr Rogers, none of it has to do with a failure of dexterity or anatomical knowledge as he stood there in the operating theatre manipulating the body of his patient, and none of that could really seriously be considered, as a matter of inference, actual fact within the conscious advertence of Mr Allen when he was maybe involved, probably involved, in the page 1 headline decision.  There are assumptions involved in the way in which – in the…..which an editor, consulted by another editor, would have pored over the detail of what appeared to be a report of what a Federal Court judge had said.  For those reasons Mr Allen does not contribute to the knowledge point which is so important to the section 26 malice and section 22 reasonableness arguments which remain between the parties.

That then comes to the question of the archive.  The archive raises questions of principle which, in our submission, are of considerable importance.  The way in which your Honour Justice Callinan suggested it might be approached yesterday is by the statement of a newspaper that it wrote what it knew and it knew what it wrote. 

The first question of course is to inquire whether there should be any distinction between writings which are, as it were, in‑house by employed journalists and edited and words which are simply printed in the newspaper – classically of course, advertisements and other commercial material.  Probably not if the status which is meant to import them as elements of the corporate knowledge is that they are what was published in the past, always available in a decently‑kept archive.  In our submission, that raises questions of real principle as to how one would posit the human beings whose state of mind at any one time will produce the human characteristic of a state of mind knowledge in the company.

CALLINAN J:   But, Mr Walker, one of the problems about a contrary view is that the bigger the corporation is, the more widespread its activities are, or the poorer its record keeping is or the worse the memories of the employees are, then the better the chance it has of defending itself against a defamation action.  That cannot be right.

MR WALKER:   As a matter of principle, those circumstances are not all the same with respect, for example, to an underlying approach that one should not be able to benefit from one’s own – could not be wrong, if you are having a bad memory one trusts is not wrong, or deficiency.  Keeping bad records may or may not be a wrong in any recognised sense.  Archiving involves, as your Honour well knows, as much the skilled art of culling as of simply piling up.

CALLINAN J:   But a newspaper is not carrying out an ordinary business activity.  It is writing about people and events and it is publishing them ‑ ‑ ‑

MR WALKER:   This is not about newspapers, your Honour.  This is about persons, who may include newspapers and who may include ‑ ‑ ‑

CALLINAN J:   This case is about newspapers.

MR WALKER:   This case is about newspapers and when one comes to questions of reasonableness then all of the circumstances that your Honour bears in mind, about recourse to archives, for example, will play a calibrated role, differentiating it from the private individual who speaks at a social gathering.  But with respect to the interpretation of what knowledge means in section 24, then, in our submission, general principles do not permit saying of a large company, a small company, a young company, or an old company or a company which has bought the business and undertaking of other companies in the past, that there is attributed the human quality of knowledge in the corporation, in the fictitious entity, of everything it has ever uttered – it or its predecessors, presumably.

If one is talking about archives, you need to distinguish between those things which it has published, whatever “it” may be in a continuing historical sequence of takeovers and the like, and what it has in its archives, for example, by way of clippings from associated publications, including journalists’ research, which led to historical articles being printed.  In our submission, one would need to be able to posit a point of distinction between what you know because you have something from The Times of London and what you know by reason of what you have from your own edition published seven years ago, and bearing in mind that the…..is clear and that a human being in the employ of the company had, in the past, at least once read each of those, it is difficult to see the point of distinction.

This would mean of course that any entity, particularly governmental but also big business entity, not necessarily in the business of commercial publishing, will be fixed with knowledge of all the intellectual resources upon which it can in theory call by reference to its archive or library.  In our submission, there is absolutely nothing in principle and nothing in authority to suggest that that is the way in which one approaches the inquiry as to what evidence is available to describe as a matter of fact, not imputation or legal fiction, as a matter of fact the knowledge of this fictitious entity, the corporation.

One of the decisions cited against us is in fact very strongly for us.  Chief Justice Griffith in Hay v Australasian Institute of Marine Engineers (1906) 3 CLR 1002 was dealing with just such an inquiry,. The passage cited by my learned friend is the foot of 1011 and over to 1012 and that follows the passage which is more useful, in our submission, for the present exercise and that is the bulk of page 1011. The facts were that something putatively defamatory was handed out by reason of it being proceedings of this professional association, handed out by the staff of the association at the direction ‑ your Honours will see about one and a half inches down from the top, Sir Samuel referring to:

the defendants, or some person for whom they were responsible, must be taken to have given directions to their officers indiscriminately to deliver –

That being the case, rather than the officer being involved in the preparation and in a discretionary sense in the publication of the words in question, there was no ascribing to the association whatever knowledge those officers at the counter ordered to hand out happened to have.

That is exactly the kind of inquiry that Justice Hunt is talking about in Waterhouse or in Bickel where one asks, “Who are the people involved relevantly in this publication?”  It does not include everybody at any department or at any level in the corporation either at the same time or, worse still, at some relatively remote time in history.

GUMMOW J:   Do you say, Mr Walker, that what you are saying is the general law of it – to put it that way – is reflected in section 84(1) of the Trade Practices Act, which says: 

Where . . . it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of the person’s actual or apparent authority, had that state of mind. 

MR WALKER:   That is an attempt by Parliament to render more predictable the same inquiry of fact, yes, and shows Parliament adopting a principle which would be very odd ‑ ‑ ‑

GUMMOW J:   Which you say goes back to Hay. 

MR WALKER:   Yes, well, Sir Samuel was not purporting to say anything new. 

GUMMOW J:   No, he was not. 

MR WALKER:   Could we simply give, by way of handing up, an English authority which goes to the same point raised by Justice Callinan yesterday, Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 1 WLR 805.

GUMMOW J:   Why is there some bailiwick in defamation law? 

MR WALKER:   There is not. 

GUMMOW J:   Justice Hunt seems to suggest there is. 

CALLINAN J:   Is that the case in which Lord Justice Sellers ‑ ‑ ‑

MR WALKER:   Yes. 

CALLINAN J:   Well, one member of the Court of Appeal in that case expressly declined to decide that matter, and the other one said that it was all too much of a mystery for him and he was not going to go into it. 

MR WALKER:   It is almost impossible ‑ ‑ ‑

CALLINAN J:   So you only have one judge, who cites no authority for it at all, saying it. 

MR WALKER:   That is right, your Honour.  I cite it for its persuasiveness.  Lord Justice Russell, one feels, at this point in an argument, is even more citable ‑ ‑ ‑

GUMMOW J:   You would not want to go back to the Chancery Division, though, where there is more reason involved. 

MR WALKER:   Yes, it is for – there is no authority in this – the force of the observation in particular at 813H: 

It might be said to show inconsistency within the company –

that is, that an advertising department is a separate department from another department, but, his Lordship says –

a company’s mind is not to be assessed on the totality of knowledge of its servants. 

Now that, though your Honour correctly notes, is accompanied by no citation of authority, is in fact wholly in accordance with all inquiries in relation to corporate knowledge, all of which ask about the person or persons who were relevantly involved in what one of the authorities cited by my friends calls “the relevant transaction”. 

That is why one simply does not trawl through State archives in order to impute the State of New South Wales when it is sued in its multiple commercial and personal injury contexts in order to impute knowledge by reason of something that one will find never again adverted to, at the beginning of last century in something now contained only in the State archives.  It will involve questions of degree; it will involve questions of notoriety.  It will certainly involve, always of a fictitious entity, the corporation asking when a human quality is required by the law to be ascribed to it as also to natural persons subject to the same substantive law, as in this case, then one looks, just as one does for the actions of the company, to the actions of its human actors, you look to the state of mind of the human actors in the relevant context.  

GLEESON CJ:   Yes, I thought there was a decision of Lord Justice Diplock in relation to an unrelated area about agency and companies, but it may be, for example, that if you had a question as to the liability or responsibility of a company for the conduct of a very low level employee, like a gatekeeper, then the company might find itself responsible for what the gatekeeper knew, but not for what the managing director, who had nothing whatever to do with the incident in question, knew. 

MR WALKER:   That is right.  If someone very lowly is delegated to do a task which involves acquiring knowledge or not, then it is no answer by the corporation that they are nowhere near important enough for their knowledge to be the knowledge of the corporation. 

GLEESON CJ:   In applying ordinary company law principles, as I would understand it, you would ask whose mind was the mind, the relevant mind or will, of the company for the purpose of the transaction in question.

MR WALKER:   Yes, and it may be more than one.  There are, of course, collaborative exercises involved, yes.

CALLINAN J:   Is not Hay, really, that sort of case that the Chief Justice put to you, a case with a very lowly employee?

MR WALKER:   Yes.  Well, I stress, it does not have to be lowly in a hierarchical sense.  It needs to be ‑ ‑ ‑

GUMMOW J:   I think the case of Freeman v Lockyer where Lord Justice Diplock explained some of these problems in the Court of Appeal.

MR WALKER:   Yes, and I think the hackneyed citation in this area is Tesco v Nattrass and that says exactly the same thing relevantly.

GUMMOW J:   Relevantly to criminal law?

MR WALKER:   Yes.  Now, there are reasons why one might not transfer entirely the approach in crime, bearing in mind the sanctions that follow.  However, in our submission, Hay is a good example in the civil area, it so happens to be the defamation area, which not on a hierarchical basis but in the sense of who was involved in doing the thing in question, involved relevantly, in the sense that they could have said, no, or that their knowledge was relevant to the exercise at hand, and when just handing out a document by direction your knowledge is not involved in other of those senses.

GUMMOW J:   Suppose a company wants to set up a defence of bona fide purchaser, or some proprietary claim ‑ ‑ ‑

MR WALKER:   The fact that one of its clerks in one of its branches happened to be aware from social chit‑chat of an equity raised by the wife of the vendor, in our submission, could not sensibly be ascribed to the corporation, if that clerk had no duty, no involvement in any property acquisition matter.

GLEESON CJ:   I do not know whether Winchcombe Carson is still in business, but you could have a company that had an office in every country town in Australia, and somebody in charge of the company’s office in Northern Queensland might know something and somebody in charge of the company’s office in Perth might not know that.  Deciding what knowledge the company had for the purposes of a particular inquiry in relation to a particular transaction would not necessarily involve aggregating the knowledge of the man in North Queensland and the man in Perth.

MR WALKER:   No.  If the person in the sub‑branch knew of financial difficulties of someone who was seeking to borrow money, for example, from head office, and unless that person’s sub‑branch had something to do with the borrowing, if they were only the greenkeeper or whatever, then, in our submission, it would absurd to impute the knowledge.  On the other hand, if they were an introducing agent or conduit of the application for a loan, then it would be, one would think, entirely different, because there would have been a duty to pass on the information.

GLEESON CJ:   Now, you have a case to seek to make under section 22, I think?

MR WALKER:   Yes.

GLEESON CJ:   I notice that Judge Tupman dealt with that from page 611.

MR WALKER:   Yes.  Your Honours, the way in which we deal with this, so as to try and abbreviate, your Honours will find in paragraphs 54, 55 and 56 of our written submissions, by way of preface, could I remind your Honours of the way in which it fell out in testimony when the journalist was cross‑examined, first, in volume 106, about line 25, when taxed with the question should you not:

have read the High Court judgment before writing your article?

The answer is:

No.  I had no reason to doubt that what Justice Hill had written was inaccurate.

And if that is to be, as it were, regarded as in itself bespeaking  unreasonableness then, in our submission, the good floodgates argument is available for me, albeit, for a commercial publisher, who hopes to stay in business publishing news of court proceedings, that one will not be able to take on faith anything that a judge says, not merely about what some other judge has said in the past, but about anything which was said by a witness in the case.  How would you distinguish on the face of it between those things which need checking and those things which do not need checking?  To put it another way, is not the gold standard of accurate statement as to matters which have been litigated, the reasons of the court?  There is a well‑known existence of an appellate jurisdiction to detect and correct errors of fact.  It says nothing about that with respect to the present context which is about fair report rather than attempting to give true narratives of what has happened in the world.

Page 111 is to the same effect.  Lines 6 or thereabouts, attached with a slightly different question, “Why didn’t you get Dr Rogers’ side of the story?”, the answer was:

I had the judge’s side of the story which I would prefer than a plaintiff or a defendant’s . . . I wouldn’t talk to Mrs Whitaker about that either.  They are not impartial.

GLEESON CJ:   Now, Judge Tupman accepted that it was not unreasonable to seek Dr Rogers’ comments on this.

MR WALKER:   Not to seek, yes.

GLEESON CJ:   Yes, and she also accepted that it was not unreasonable not to check the morgue.

MR WALKER:   Yes.

GLEESON CJ:   But she thought it was unreasonable not to get the article legalled.

MR WALKER:   Yes.

GLEESON CJ:   And she dealt with that in paragraph 78.

MR WALKER:   Yes.

GLEESON CJ:   Because she said any lawyer to whom this article was referred for comment by the journalist would immediately have had the antennae out, because Rogers v Whitaker was such a famous case.

MR WALKER:   In our submission, her Honour has committed the error, not for the first time in courts, of reasoning backwards from a consequentialist chain.  Had that been done, had the lawyer remembered Rogers v Whitaker, then there probably would have been something perhaps observing that Justice Hill appears to have been unfair to Mr Rogers.  But the fact that that chain of consequences can be constructed in retrospect, has nothing to say about the reasonableness of the journalist’s conduct at the time.

GLEESON CJ:   Not perhaps so much that Justice Hill was unfair to Mr Rogers but that what Justice Hill found an adequate ‑ ‑ ‑

MR WALKER:   Summary.

GLEESON CJ:   ‑ ‑ ‑ for his purposes, account of the Rogers v Whitaker litigation was in respect of a matter about which Mr Rogers was likely to be red raw with sensitivity, incorrect.

MR WALKER:   Yes.  But, your Honour, my answer is the same, namely that one approaches the question at the time rather than asking, “If things had been done differently might the outcome have been different?”  That does not of course answer the question, “Should things have been done differently?”  The answer to that question comes from the quality of the dealing by a journalist with reported court reasons with respect to (a) regard for the accuracy of statements in it, (b) regard for and in particular the fairness – not a technical expression here, an ordinary English expression – of the expression, it being appropriately to be ascribed by journalists and other people to judges that there will be temperate, fair reference to facts by necessary paraphrase and summary, this Court having said time and time and commonsense making it clear that a judge cannot give reasons for judgment on factual matters, for example, by simply reproducing every word of testimony and giving, as it were, the winner at the end of it.

GLEESON CJ:   Judge Tupman also seems to have thought, Mr Walker, that the public interest, if it be an interest of the kind comprehended by section 22, in having an account of the tax implications of Justice Hill’s decision did not require that the public be given information let alone misinformation about the details of how the taxpayer came to get the verdict.

MR WALKER:   Your Honour, the best way of answering that is to say that it illustrates the danger in the law of defamation for judges - I stress judges – to, as it were, comment upon the best way in which matters of public interest should be presented and then treating their opinion of the best way as the only reasonable legal way.  The variety of newspaper readers is large enough without giving to one class of them, namely judges who come to sit on defamation cases in Bench trials, a special status namely that their preferred way of discussing a public issue becomes the only reasonable way.

In our submission, though minds may differ politically as to whether it was significant to the tax question that this was interest on damages awarded years after the event of something caused, devastating to Mrs Whitaker, by reason of Mr Rogers’s negligence, minds may differ about whether that has any effect on the tax implications but it is clear from the article that the journalist and the editor decided that this was something which was a relevant point of political concern.  We know from provisions of various tax statutes that in fact special provision can and has been made by Parliaments to distinguish the incidence of certain forms of tax depending upon whether it is, for example, the proceeds of a family law settlement or the proceeds of personal injuries proceedings.

So Parliament itself has put paid to the notion that there is no legitimacy in public policy to asking how did this money arise about which the question of incidence of taxation is now the dispute.  Parliament makes it clear; of course that is significant.

GLEESON CJ:   The judge was not concerned, as I would understand it, with the wisdom of an editorial decision that it was a better story about a tax case to have a picture of a blind woman with a cane being guided by an assistant and a headline that said that the taxpayer found herself in this dispute with the department because she had been blinded by a surgeon.  The judge was concerned with the question whether adding that matter in the interests of a good story meant that the risk of liability for defamation disappeared.

MR WALKER:   Your Honour, it is very difficult, in our submission, to justify her Honour’s reasons unless you adopt what, in our submission, is the impossible extreme position that it was of no relevance to an understanding of either Justice Hill’s reasons for judgment or for the “informed discussion”, a quote from the discussion paper of the Law Reform Commission, using it as its source, again a quote from the same travaux preparatoire, to observe that there was a human side to the imposition of the tax which had been held which was going to affect thousands of others, namely that these were the people who had obtained damages long after the event, together with an interest component to compensate for that delay, with respect to something where pity is evoked by the fact that their misfortune is as great as it is and something more than pity; a sense of compensatory justice is evoked by the fact that that plight was brought about by somebody else’s civil wrong - negligence.

In other words, all components, in our submission, have to be eliminated by her Honour as being legitimate for discussion, proper for discussion, in a matter which, as section 35 of the Act makes clear, could include both comment and also protected material – see section 30(1), protected report.  One cannot adopt that extreme approach, with respect, without making a political judgment that matters of pity, matters of compensatory justice, a matter of the history of how sums of money can come into people’s hands in a different way are not properly subject of distinguishing rhetoric, argument and comment when one is discussing the outcome of an argument in litigation as to the incidence of income tax.

In our submission, that is simply not an appropriate judicial foreclosing of important public debate.  It would be contrary to everything that informs Lange, everything that informed the Parliament of New South Wales according to those people in the discussion paper who urged the adoption of these provisions in these terms, to foreclose debate in that fashion.  For those reasons the section 22 holding by her Honour was, in our submission, one which is characterised by a form, as it were, of judicial blinkering of perfectly proper editorial choice, having nothing to do with sensationalism, having nothing to do with extremism but putting appropriately the facts to be found from Justice Hill’s reasons which Justice Hill obviously regarded as relevant background.

Your Honours will know, though this newspaper article’s readers would not have known, that there was argument decided by Justice Hill which was quite peculiar to the genesis of this money as being the proceeds of litigation in which the costs order would be inadequate to cover the costs of the litigation – hence the apportionment.

HAYNE J:   I am not certain at the end of that, Mr Walker, whether you are challenging the process of reasoning displayed in paragraph 78 of Judge Tupman’s reasons; a chain of reasoning which, as I understand it, appears to be the author and editor understood the seriousness of the allegation.  They should have had it legalled; they did not.  Had they had it legalled, it would not have been published in that form.

MR WALKER:   I do challenge that.

HAYNE J:   At what point or points in that chain do you challenge it?

MR WALKER:   I challenge it as to the purpose of the legalling.  The purpose of the legalling would be the fair report of Justice Hill’s decision and the legalling – for the reasons I have already argued in relation to fair report and fair summary from a fair report of Justice Hill’s reasons for judgment – would not have had the effect that her Honour hoped.

HAYNE J:   So it is causation rather than reasonableness, it is the consequence ‑ ‑ ‑

MR WALKER:   No.  One, it is consequence, and two, as I have already put in answer to the Chief Justice, in any event, conceding causation, it says nothing about why, when a Federal Court judge has said something, there is a call for it to be legalled as to whether what he said is an adequate paraphrase from which summary may be taken of the events about which he was speaking. 

There is nothing to indicate, and there is nothing in the evidence to indicate, that there was something special about Justice Hill’s reference to the events in question, the personal injuries action, which gives rise to the need for that one to be legalled rather than any other utterance of a Federal Court judge in any kind of case to be legalled – legalled, to recall, apparently not just for the fairness of the report of what the judge said, but legalled as to whether there is something behind, beyond the source which it represented which would cast in fact an adverse light on the proprietary or truth of what the judge had said.

It is for those reasons, that is, one must look forward and not back when assessing questions of reasonableness, that, under section 22, the third of her Honour’s reasons in paragraph 78 is, in our submission, simply untenable.

GUMMOW J:   Is there any evidence as to any system established for what has been called “legalling” inside your client’s organisation?

MR WALKER:   Your Honour, could I take that on notice.  There is a reference to what might be called a system – though that may be an over‑grandiose term for it.  There is not what one sometimes sees in such cases, as it were, a blow by blow account of the previously made standing arrangements for legalling.  We do not find that in this case.

GLEESON CJ:   This all treats “legal” as a transitive verb.

MR WALKER:   Yes, it does, as it plainly is, your Honour.  May I hand up ‑ ‑ ‑

HAYNE J:   Too much verbing of nouns happening, Mr Walker.

MR WALKER:   I think your Honour has made another one.  May I hand up, on this point of reasonableness, if only for the neatness of the language of Lord Esher on the point – we urge the appropriateness of the conclusion he reached in Macdougall v Knight (1886) 17 QBD 636. The passage comes from 640, at the end of the paragraph continuing at the head of that page:

Suppose the judgment to be erroneous, still the people who were not in court, but who read the report, are put in the same position as those who were in court and heard the judgment delivered.

A Thom’s Case approach.  Then the sentence upon which we particularly seize:

The responsibility for the accuracy of the judgment rests on the judge who delivers it, not on the person who publishes the report of it.

That, of course, is in a somewhat different context but a context which is, if anything, makes it application to this case a fortiori because, in our submission, if that is the approach when one is considering fair report, then so much the more it should be the approach when one asks “Is it reasonable for a journalist to take at face value the very words in the reasons for judgment of the court whose work they are reporting and about which they are then proceeding to make and print comment?”

There is nothing which the other side has proposed which would distinguish between a case which might be exceptional where you have to, as it were, check on a judge, and a case which surely ought in reasonableness to be the ordinary case where you do not have to check on a judge.

Could I then very quickly deal with a discrete and small topic in relation to the falsity of the apology, so‑called.  I have already drawn your Honours’ attention – what can be found in volume 1 pages 193 and 194 about the nature of the allegations which were in fact those which had been made against the surgeon.  They do not include questions of his competence in terms of dexterity and anatomy, as it were.  In that sense, what was said in the published apology was correct. 

It would appear the inaccuracy or falsity, untruth, levelled against us in that regard is that it is said the actual article itself, Ms Toy’s article, cast doubts on the competence.  But, in our submission, what the apology is talking about is about the history about which that article had made reference and that there was nothing in that history where there had been any suggestion, et cetera, to the contrary of competence.  Read that way, there is no falsity at all. 

The next issue in relation to the apology and, in particular, its attempted use in aggravation emerges, somewhat scratchily, from the cross‑examination of Dr Rogers in relation to the terms of the proposed apology, which your Honours will find in exhibit 1, a copy of which was handed up yesterday, not having been reproduced in the appeal book.  Could I take your Honours to page 60; that is where exhibit 1 was tendered?  That is the one that my learned friend added to the record yesterday.  That then becomes the document about which the witness is cross‑examined.  One sees that reference at page 61 line 26: 

Q.  You were satisfied with the form of apology proffered –

The line is returned to after an interruption, page 68 line 34: 

Q.  If the witness could be shown exhibit 1 –

Line 41: 

Q.  And I suggest that that form of publication was satisfactory to yourself? 

No success by the cross‑examiner there.  Page 69 line 23: 

Q.  I ask what else, apart from that, did you want…

Q.  Apart from the publication in the paper what did you want? 
A.  Money.

Page 70 line 24:

Q.  So am I correct that if they had offered you a sufficient sum of money as well, then you would have been satisfied with this publication and that would have been the matter ended? 
A.  Yes. 

Now, I am bound to draw to attention that the cross‑examiner went back to his hat in the next two pages, with the usual result.  But at that point, in our submission, when one compares exhibit 1 with the published advertisement as to all the sting which is now so eloquently relied upon by my learned friends to aggravate damages with the apology, a lot of the emotion disappears, bearing in mind that is sworn evidence of the plaintiff, justifying Justice Stein in his approach that surely that must have been a small component. 

In relation to damages, the provisions of section 46A of the Act do not lend themselves readily, if at all, to a reading by which the so‑called general damages or non‑economic component in a personal injuries case of being the most exceptional provides, as it were, the ceiling in relation to damages awards.  The comparison, invidious and difficult as it no doubt is, required by section 46A is, in our respectful submission, purposively implemented by the very device which the Court of Appeal adopted in this case, namely, confessing the difficulty of estimating what might be called the operative range and then offering, with the peculiar advantage an appellate tribunal has over a first instance judge, what, as it were, the going rate ought to be seen as. 

In other words, outliers being truly exceptional cases, in this case you have 420,000 in a 2002 decision out of a $16 million award.  Outliers, in our submission, do not mechanistically by reason of 46A show that 420, as it were, becomes the appropriate tariff or range for the purposes of the 46A comparison. 

GLEESON CJ:   Does 46A have the consequence that legislation capping damages in a certain kind of action in tort will have a consequential effect in relation to defamation laws?

MR WALKER:   Probably, because it does not refer to “which but for any legislation would be awarded by the compensatory principle at common law”.  It refers to awards, yes, your Honour.

HEYDON J:   Taking into account both uncapped and capped?

MR WALKER:   Yes.

HEYDON J:   The Court of Appeal incidentally or Justice Stein made a quite wrong statement, did not he, when he said that the top figure was 300,000 for general damages uncapped.  That is completely wrong, is not it?

MR WALKER:   If one says “top” in the sense of the highest ever – and that is a literal meaning of “top” – then, yes.  If one is saying, however, for the purposes of a 46A comparison, what is the appropriate benchmark, then, no, and that is the purpose of my argument about 46A.  In both courts below, rounding or estimation, is the order of the day and properly.

HEYDON J:   He said $300,000 may be closer to the top of the range of general damages for personal injury.

MR WALKER:   Yes.

HEYDON J:   It sounds like the first possibility of the two you just advanced.

MR WALKER:   Maybe closer to the top.  He is not saying it is the top.  He is obviously estimating.  He has already professed difficulty, so did her Honour below, and 500,000 is, with respect, as round as 300,000.  Now, we have a datum point, 420,202 in a $16 million award, and our short point in relation to the jurisdiction in error in this Court is, well, 420 is not 500.  500 is therefore too big.  Whether 300 be too low or not, there was an appropriate gateway to appellate reassessment and that, in our submission, suffices.  Her Honour got it wrong with 500.  That suffices to get through the gate to a reassessment.

HEYDON J:   I question whether 420 is the top?  It is a question of research.

MR WALKER:   May I put it this way:  (a) it is a question of research, (b) there is precious little trace of that having been done in what I will call an individual datum point sense, so that there is a group of data which can then be either expressed statistically or simply look at the maximum.

HEYDON J:   Judge Tupman would have done hundreds of personal injuries cases and she would have had quite a few serious personal injuries cases, and why Justice Stein who has done hundreds of personal injuries cases said that escapes me.

HAYNE J:   If you are asserting specific error, which is what you are ‑ ‑ ‑

MR WALKER:   No.

HAYNE J:   What, are you saying manifest excess?  I thought you were saying specific error, once you said that ‑ ‑ ‑

MR WALKER:   I am saying 500 is not 420, that is all, your Honour.  Now, the judges below ‑ ‑ ‑

HAYNE J:   What is your argument?  Is your argument, the Court of Appeal was entitled to set it aside as manifestly excessive or are you saying that the Court of Appeal was entitled to set it aside for specific error?

MR WALKER:   I am saying both.  As to manifest excess, I say only one thing; the doctor was unnamed with all the consequences familiarly following from that.  As to the specific error, allowing as it were the Court of Appeal appropriately within appellate reticence to assess for itself the error lies in the 500.  That is where things get rocky for me, because the 300 is as much a rounded estimate as the 500.  Indeed, avowedly so, and for reasons put by my learned friend yesterday, and taken up by Justice Heydon just now, 420 is not 300 either, just as much as it is not 500.  In fact, it can be observed 500 is closer to it but, in our submission, 500 is not justified, whereby the yardstick fails whereby the assessment needs to be done again.  Now, that is the modesty of the argument, your Honour.  It does not go further than that.

However – in answer to your Honour Justice Heydon finally – had the Court of Appeal held on the basis of Palmer’s Case that 420 was an appropriate yardstick and nothing higher had been offered and nothing lower had been suggested, could we or the other side have suggested error in taking a single datum point for the purpose of 46A?  No.  If matters had fallen out so that it was the only candidate and there was no, as it were, statistical attempt to show that it was a real outlier, which would defeat the purpose of section 46A, which is surely to bring the ruck of defamation back to the ruck of personal injuries.

Your Honour Justice Gummow’s question about system, there are scattered references that probably only serves to demonstrate what I said earlier that there is not the coherent presentation of evidence of system.  I am in your Honour’s hands.  Would your Honour like a ‑ ‑ ‑

GUMMOW J:   No, that is enough for me to know.  Is there any reasoned discussion of section 46A in any of the authorities?

MR WALKER:   I do not have them at my fingertips, your Honour, but there are references to it which I have seen.

GUMMOW J:   I am sure there are references but ‑ ‑ ‑

MR WALKER:   They are mostly, as it were, slighting or astonished references to the difficulty of the task posed by it.  There has been – I may be wrong ‑ ‑ ‑

GUMMOW J:   “Appropriate and rational relationship”.  What does that mean?

MR WALKER:   I do not know, your Honour.

GUMMOW J:   “The court is to take into consideration the general range of damages for non‑economic loss”.  Take into consideration to what effect?

MR WALKER:   I do not know.

GLEESON CJ:   I think Mr Carson may have something to answer for here.

MR WALKER:   Yes, there is no doubt about that, your Honour, although I am sure he did not draft it.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Tobin.

MR TOBIN:   Your Honours, there was a question raised about the circumstances in which the journalist received the copy of the judgment.  That is at page 96, as Mr Walker has told your Honours.  Could I refer to her evidence at line 45:

Q.  Did he come on the bench and indicate that he had reduced his reasons to writing and then indicated that he wished to publish those reasons?
A.  Publish those reasons and read out his orders.

So what his Honour did is what your Honours did, as it were, in the same manner today.

Q.  And then after, if his Honour went on to another matter or the court adjourned, you then collected from his Honour’s associate a copy of the judgment?
A.  That’s right, yes.

That would suggest that the journalist was present in court when the orders were announced and then of course when the judgment was published or delivered – perhaps “delivered” is the correct word.

There is a point we wish to make about the orders that the journalist says she heard.  These are at 277 of the appeal book.  She says that his Honour read out these words in her presence:

1.  The application is allowed in part.

2.  The objection decision be set aside.

3.  The matter to be remitted to the Commissioner to allow as a deduction a proportion of the legal costs incurred by Ms Whitaker in accordance with these reasons.

4.  By agreement I order the Commissioner to pay Ms Whitaker’s costs of the application.

What is of significance about that, your Honours, is that the newspaper article and considerable aspects of the defence – and I am thinking especially of section 22 – rest upon the proposition that the newspaper was providing information to the public to its readership upon the question of the outcome of Whitaker v Australian Taxation Commissioner.  I cannot find in the judgment any reference to the scrooge taxman or the taxman or the successful respondent Commissioner taking 168,000.  In other words, all his Honour’s orders do is remit the matter for further consideration by the Commissioner in accordance with his reasons.  Of course, why that is of significance is ‑ ‑ ‑

GUMMOW J:   Is there any reference in his Honour’s judgment to dollars and cents in terms of what the Tax Commissioner is going to get?

MR TOBIN:   No, that is what I say.  I have been through it and my learned junior has been through it.  Why I hesitate is because it seems such an extraordinary thing if the case mounted is under section 22 or, for that matter, of protected report, that that figure of 168,000 appears.  His Honour has simply sent it back to calculate what would be allowable deductions.

GUMMOW J:   It may have come from discussions with Mrs Whitaker.

GLEESON CJ:   Or the tax office.

MR TOBIN:   Or the tax office, but it certainly did not come from the judgment.

I want to go to one issue that Justice Gummow raised on the question of fairness or forms of accuracy, the words “during” and “ultimately”.  If your Honours would see from the large photocopy of The Daily Telegraph article, the item that we have numbered 2 in the box on the front page which is “1984:  Blinded during an eye operation”.  I raised this yesterday and its significance for our case will not need to be repeated.

With regard to the position of Mr Allen and the discussion as to corporate knowledge and to the example that your Honour the Chief Justice put to Mr Walker, may I make this observation, that Mr Allen at the time of the publication of the matter complained of was the editor in‑chief of The Daily Telegraph.  He was, as it were, in the position of the managing director whose knowledge might be scrutinised rather than the gatekeeper.  Second, he, as it were, with the gatekeeper, made a decision as to what would go out from Nationwide News on the front page of The Daily Telegraph.  The decision as to the position of the publication and the get‑up of the front page was made in consultation jointly by himself and Reid.

Notwithstanding what your Honour Justice Callinan has put both to me and to my learned friend, that fact about Mr Allen’s position, editor in‑chief, and his actual involvement in publication for our purposes puts a different aspect upon the argument.

CALLINAN J:   You do not need to go as far as ‑ ‑ ‑

MR TOBIN:   Exactly, your Honour, and caution may lead me not to try and cross the river.  Nevertheless, your Honours, this is not a Jones v Dunkel point with regard to section 24.

CALLINAN J:   It would not be a hard swim, I do not think.

MR TOBIN:   I do not know, your Honour.  I can see, as it were, more in front than you can on your left side.

HAYNE J:   There is a riptide somewhere, Mr Tobin.

MR TOBIN:   From out point of view, it is not a Jones v Dunkel point with regard to section 24.  As I said yesterday, the onus rests upon the publisher to get into evidence those people who did the publication, if I can speak in that inelegant way, who were responsible for the story and for them to say what their state of knowledge was or was not.  The failure to call Allen is a failure to discharge the onus that would allow them, all other things being equal, to succeed under section 24(3).

Your Honours, I will not dwell upon the argument advanced by Mr Walker about section 24(3).  I want to record, so that the record is clear, that from the defendant’s outline of submissions before Judge Tupman, a copy of which I have and if needed it can be made available, counsel say this under the heading “Fair Report, Section 24”  “For the purposes of his judgment Justice Hill summarised the Whitaker v Rogers Case before Campbell J.  Such a summary or extract or abstract will be a ‘report of judicial proceedings for the purposes of the Defamation Act 1974” – he does not close the quote – then he says, “Either the judgment of Hill J insofar as it contained a fair report of the Whitaker v Rogers was fair or it ‘purported to be fair’.  If the former, then The Daily Telegraph report of it will attract a defence under section 24(3).  If the latter, a report of it will attract a defence under 24(4).”

That is consistent with the submissions by my learned friends in their response to our written submissions in this Court.  I do not understand from the judgment in the Court of Appeal that the idea - perhaps the metaphor is one of Shakespeare’s plays within a play - that there is within the judgment of a judicial officer a judgment of the court.  A report of judicial proceedings is not only novel, but with due respect to the way it was put, it is silly, your Honours, because one does not need to torture section 24 to fit the argument that Nationwide News wishes to advance before the Court. 

Section 25 covers the publication of documents, which would include a judgement of the court, and fair summaries of such a document which can be taken down by a journalist in handwriting with the judgment before her or him.  So the structure of this Division of the Act reflects what was raised yesterday, the Law Reform Commission’s extension of statutory protection for protected reports, and as we say to torture it in the way that my learned friend does overlooks the fact that it is simply trying to find within the legislation the sort of defence that may have been available under 24(2).  For reasons that we have given we of course challenge that.

I have not put this on the list of authorities, the case of Stiles v Nokes (1806) 7 East.  At page 506 of the volume that records the decisions, Lord Ellenborough as Chief Justice made the statement that:

The Court cannot decompofe this mafs –

If I may be allowed, your Honours, I have not copied it, he said:

the account of the proceedings in court is fo interwoven with the comments that we cannot with certainty feparate them throughout, although we can fee plainly enough that certain parts are an overcharged account of the judicial proceedings.  The Court cannot decompofe this mafs –

and so on.  It is a short judgment but it says, I suppose, your Honours, that in the nearly 200 years between that judgment and this one, court reporting may not have been all that different in some of its manifestations.

Your Honours, with regard to the notice of contention.  The notice of contention, paragraph 2.1 of that document, proceeds of course on the assumption that the respondent has failed on the fair protected report defence.  Your Honours would only need to come to it in the understanding that what was published did not satisfy 24(3) or (4) of the Defamation Act.

Then, with regard to what is appropriate to consider under the section 22(1) defence may I draw your Honours’ attention to this.  Section 22, which is in shorthand terms called a statutory defence of qualified privilege, proceeds in the New South Wales legislation upon the matter and not upon the imputation.  One needs to draw that distinction because the basing of the cause of action upon the defamatory imputation has bedevilled, if I may say respectfully, many areas of the defamation law of that State.  Section 22(1) begins:

Where, in respect of matter published to any person –

and then (a) is the interest section, then (b) says:

the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances –

If the interest as defined in subsection (1)(a) is present, if the matter is published to the recipient in the course of giving information on that subject at (b), then the conduct of the publisher in publishing the matter must be reasonable for the defence to be made out.

What it means in practical terms is this, your Honours.  There has been discussion in the fair protected report dialogue of a fair summary and that this matter complained of was a fair summary of a protected report.  Now, it is an interesting point that one generally expects a summary not to add to, but to detract from, the mass which it is summarising.  If I might be forgiven for repetitiveness, but directing it to this point, the so-called summary added to whatever Mr Justice Hill had done.  The proposition is not to be found in his judgment, namely, Mr Rogers operated on Mrs Whitaker on her two eyes for corneal grafts and during the operation blinded her.  That is what it says.  That is, as it were, the event which it conveys.

That event, whatever else is conveyed by Mr Justice Hill, is not conveyed, and whatever the burden, as it were, of a cause of action based upon an imputation to be defined by lawyers, section 22 looks at the matter and it looks at whether it was reasonable, in our case, to publish, in the course of that matter about the court case, the material about Dr Rogers that no one says ever took place.

We say, your Honours – and the written submissions refer to this – that on the threshold question of section 22(1)(a), namely, that:

the recipient has an interest or apparent interest in having information on some subject.

The mere fact that a matter has been dealt with in court of itself does not sustain that as creating the necessary interest.  The discussion, if I might say with respect to his Honour, is very powerfully set out by Justice Brennan in Stephens v West Australian Newspapers in that area of the judgment where his Honour dealt with the common law defence of qualified privilege.  I will not take your Honours to too much of the detail of his Honour ‑ ‑ ‑

GLEESON CJ:   Perhaps you could just give us the page references and we can look for it ourselves.

MR TOBIN:   Yes, I think so, your Honour, 246 and 247.

GUMMOW J:   182 CLR?

MR TOBIN:   Yes, I beg your pardon, your Honour. It is 182 CLR 211 at 246, 247, 249, 251 and 252. We have used part of his Honour’s judgment in dealing with the question of attribution, but the structure of the judgment is very important from our point of view because his Honour draws attention to the important Court of Appeal decision in Wake v John Fairfax.  His Honour there points to the fact that the Court of Appeal drew a distinction between a defamatory allegation, which is the writer’s own allegation, and a defamatory allegation which he identifies as being another person’s allegation.  It is a reflection upon, I think, Lord Devlin’s comment, there is no hearsay in defamation.

So in reflecting upon it, the Court of Appeal said, both will be defamatory, the allegation coming from the mouth, as it were, of the speaker, or the allegation which the speaker attributes to another person, but they are defamatory in different ways.  They are not defamatory in the same way and they stand to be defended in different ways.  His Honour says with regard to the first, the allegation coming from the mouth of the publisher or from the newspaper in this case, where it is its own allegation in this area of qualified privilege, including we would submit by extension of section 22, it stands to be defended by a defence of truth.

If it is repeating the allegation of someone else, the essential public interest, or the interest of the recipient, and I am applying this to 22(1)(a), the essential element of that interest is that the reader understands that it is another person’s allegation being reported, because that gives, as it were, not simply the provenance of the allegation, but, in some senses, its status or credibility.  Now those things are all expostulated by his Honour in those pages of the judgment and we would submit that on analysis they demonstrate that the sense of section 22(1)(a) and the word “interest” there used, is an interest of a kind that this respondent cannot have recourse to.

GUMMOW J:   Well, was this not dealt with in paragraph 70 of the judgment in the District Court?

MR TOBIN:   Yes, her Honour took ‑ ‑ ‑

GUMMOW J:   Page 611.

MR TOBIN:    Her Honour rejected the idea that what was being reported about Mr Rogers was anything other than adding colour or spice; I do not quote her Honour verbatim, but is that the passage your Honour is referring to?

GUMMOW J:   No, paragraph 70 of the judgment, page 611.

MR TOBIN:   Yes.  Well that is why I draw attention, with respect, your Honour, to the ‑ ‑ ‑

GUMMOW J:  

the general public had an interest or apparent interest in the conduct and activities of the Australian Taxation Office…particularly as that affected Mrs Whitaker.  The Plaintiff does not appear to gainsay this proposition ‑ ‑ ‑

MR TOBIN:   Yes.

GUMMOW J:   But you say no more?

MR TOBIN:   The challenge that Mr Walker puts to that is that somehow a judicial officer can orchestrate oppressively, or in a burdensome way, that which will come under the rubric of the requisite interest, but that of course is what the judicial officer has to do and what we say is that, in the evidence of the defendant’s own witnesses, the irrelevance of Rogers v Whitaker can be understood.  I will simply give your Honours four references, from Ms Toy’s evidence; the appeal book is at 108 line 25 and 110 line 45 and Mr Reid 139 line 30 and 144 line 25.  Both witnesses said that they realise the seriousness of the allegation about Mr Rogers, when they came to publish.  They talked of a reliance upon what the judge had said, but I think I have dealt with that in the sense that it is the problem of filling in the gap of, as it were, inventing an operation which would have the effect that the reporter erroneously understood was visited upon Mrs Whitaker.

Your Honours, there is a question as to the use made by the journalist of the judgment of Justice Hill.  We have taken out a number of references from her evidence and they may be of assistance, if I could ask your Honours to receive that.

GLEESON CJ:   Thank you.  Does that cover what you want to say about the section 22 point?

MR TOBIN:   We make this final point about 22, your Honours.  Her Honour Judge Tupman at paragraphs 71 to 79 – it begins at 611 of the appeal book – made findings of unreasonableness of conduct.  The Court of Appeal in the judgment of Mr Justice Stein at paragraphs 124 to 125, appeal book 677, did not disturb those findings but said that her Honour was entitled to reach the conclusion she did based upon them.

Importantly, your Honours, we say that although my learned friends dismiss her Honour’s comment about having the lawyer look at the material before it was published as being fanciful, what her Honour is really getting to is this.  In the absence of this being in reality a report of the Australian Taxation Office such as would attract statutory protection, when she looks at the publication and looks at the evidence of the people responsible for it who knew the likely damage it could cause to Mr Rogers, she said in effect some inquiry should have been made, some checking should have been made.

To put it the way we have advanced the case, if they wanted to fill in the gaps they should have checked it out.  Her Honour says the obvious device for that was to go to the legal officer at News Limited for that purpose, but the principle lying behind her Honour’s conclusion about unreasonableness was that this not being a protected report, this not being

fair reporting of a court case and this being a circumstance where damage would be done to the plaintiff, there was an obligation to make some further inquiry.

Justice Brennan puts it in terms of an obligation to get the plaintiff’s account of events.  The argument used against that was, “Why would I get the plaintiff’s account?  I can rely on the judge”.  That of course is all premised upon the view that they are not filling in the gaps, that they are not making up for what they think is missing in the story they want to publish, missing, that is to say, in his Honour’s judgment.

GUMMOW J:   Is the ATO press release in evidence?

MR TOBIN:   No, your Honour.

GUMMOW J:   I cannot find it.

MR TOBIN:   I have been unable to find that.  There is cross‑examination on the transcript about it.

GUMMOW J:   Yes, but no document.

MR TOBIN:   But no document.  Apparently the defendant did not keep a copy.  As your Honours please.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn for a few minutes in order to reconstitute.

AT 12.04 PM THE MATTER WAS ADJOURNED