Rogers v Nationwide News Pty Ltd

[2003] HCATrans 677

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 WEDNESDAY, 30 APRIL 2003, AT 12.21 PM

Copyright in the High Court of Australia

MR T.K. TOBIN, QC:   May it please the Court, I appear with MR A.S. MARTIN, SC and MR A.A. HENSKENS, for the appellant.  (instructed by Harrington Maguire & O’Brien)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR R.G. McHUGH, for the respondent.  (instructed by Gallagher De Reszke)

GLEESON CJ:   Yes, Mr Tobin.

MR TOBIN:   Your Honour, there is a motion for leave to amend the notice of appeal.

GLEESON CJ:   Is that opposed, Mr Walker?

MR WALKER:   No, your Honour.

GLEESON CJ:   You have that leave.

MR TOBIN:   If your Honours please.  Your Honours, we can make available the amended notice of appeal through the Registrar.  Your Honours, the first proposition that the appellant advances is this.  The matter complained of which was held by the Court of Appeal to have been a fair protected report could not constitute a report and could not constitute a fair report under section 24 of the Defamation Act.  Your Honours, we have appended a large copy of the matter complained of to the written submissions.  Do your Honours have that?

GLEESON CJ:   Yes, we do.

MR TOBIN:   It is hard to read it in the appeal book.  Could I take your Honours to the newspaper story which your Honours see has numbers for the paragraphs, the headings, the boxes, et cetera.  I will not read it all to your Honours but I wish to identify what, in our contention, could pass as a report and what combined one aspect with the other could not.  The headline says:

Scrooge taxman wins legal battle to take $168,000 from a woman robbed of sight by a surgeon’s negligence

“BLIND JUSTICE” is the main headline, and the introductory sentences numbered 3, 4, 5, 6, 7 and 8, in our contention, are not a report.  No 3 says that:

MAREE Whitaker, blinded by a surgeon’s negligence, walked from a Sydney court yesterday the first victim of a tax department assault on compensation payouts that could reap it billions of dollars.
           The test case, fought in the Federal Court, means the right of the tax office to treat as income interest accrued on compensation payouts has been upheld in law.
           The decision has cost Mrs Whitaker $168,000, and other people awarded compensation for injuries and other trauma face similar moves against their money.
           The litigation leading to the landmark ruling, which could raise billions of dollars for the government coffers from those who have been crippled in car accidents, lost limbs or suffered nervous shock, was immediately attacked as heartless.

Then it quotes Mrs Whitaker.  It says:

Mrs Whitaker, who was awarded more than $1 million, including interest, for her lost sight labelled the tax office’s pursuit of her money as “barbaric”.
           “It’s discrimination at its worst,” Mrs Whitaker said.

Then begins a passage attributed to his Honour Mr Justice Hill in the Federal Court:

Following established legal precedent, Federal Court Justice Donald Hill upheld the ATO ruling that pre‑judgment interest on personal injury compensation payouts is taxable income.

Then there are two paragraphs attributed to his Honour’s judgment, which your Honours see 11 and 12 in quotation, and 12 said:

Mrs Whitaker was the first person to have her interest taxed and appealed to the Federal Court to overturn the decision.
           The decision means the ATO will keep $168,000 she had to pay to income tax on her interest.
           Outside the court, Mrs Whitaker said those who are awarded compensation “only get one bite of the cherry”.
           “I realise that (the ATO) have to bring in revenue but I think they are going the wrong way about it,” Mrs Whitaker said.
           “They are basically giving it to them with one hand and taking it away with the other.
           “It’s like they are waiting outside the courts for compensation people to come out, give them 12 months with the money and at the end of that time say, ‘don’t forget half of that is ours’.”
           In 1984, Mrs Whitaker lost sight in both eyes after an operation involving corneal grafts performed by a prominent eye surgeon.
           She sued for negligence in the NSW Supreme Court, and was awarded $808,564 . . . 
           Mrs Whitaker was later awarded a further $287,671 in interest after the surgeon failed in his appeal to the High Court.
           But the ATO determined the $353,185 in interest was subject to income tax and billed Mrs Whitaker $168,000.

Then it quotes Mr Regan of the ‑ ‑ ‑

GLEESON CJ:   Well, from there on it has nothing to do with stockbrokers.

MR TOBIN:   No.  And the box on the first page is important, your Honours, “THE CASE OF MAREE LYNETTE WHITAKER”.  It identifies:

1984:  Blinded during an eye operation.
1990:  Successfully sues . . . 
1992:  Awarded further $287,671 in interest . . . 
1996:  Federal Court upholds Australian Tax Office decision –

Your Honours, there are two contentions that we make about the availability of a section 24 defence of fair protected report.  That defence has a long history in the field of defamation, often called a fair and accurate report, but for our purposes the first requirement is that the matter complained of be on its face in fact a report of court proceedings.  This article, the matter complained of, fails to satisfy that requirement in that it does not purport to be other than a story about a court case, a story about a decision of the court and the effect that that had upon Mrs Whitaker.

GLEESON CJ:   Mr Tobin, the case seems to have been dealt with in the Court of Appeal on the basis that the relevant statutory provision was section 24(3) of the Defamation Act.

MR TOBIN:   Yes.

GLEESON CJ:   The defences raised, which appear on page 14 of the appeal book, seem however to be defences under section 24(4).

MR TOBIN:   In the alternative I thought, your Honour.  I thought the way it was phrased – 24(3), which is dealt with on page 14, (c), ends with the words:

“did not . . . have knowledge which should have made it aware that the protected report was not fair.

I took that, your Honours, to be section 24(3).  Section 24(4) ends with the words:

is not a protected report or was not fair.

So subsection (3) deals with what turns out to be an unfair but protected report and subsection (4) deals with a publication material which ‑ ‑ ‑

GLEESON CJ:   There is no defence of subsection (2), is there?

MR TOBIN:   No, not on the pleading, that is correct, your Honour.

GLEESON CJ:   The case seems to have been dealt with in the Court of Appeal as though it was a case about subsection (2).

MR TOBIN:   It does, although Justice Mason specifically refers to subsection (3).  Now, the respondent, in written submissions, says that we in fact have been passing like ships in the night in a sense in that we address subsection (2).  They say that that is not relevant, and on the pleadings that is so.  They base their defence of the Court of Appeal decision on subsection (3).  Now, your Honours, I take it that my learned friends would continue in that course.

GLEESON CJ:   That seems to assume that the protected report was the copy of the reasons for judgment and that the person who published it was the Federal Court of Australia.

MR TOBIN:   Yes, or Justice Hill, yes.  Your Honour, we deal with that issue in our submissions in reply at some length, because it is not just a novel point but, as it were, it flies in the face of one’s understanding of what a judgment would be.  We proceeded to attack the case made by the respondent on this basis.  It would seem forensically that it suits the respondent to get around the requirement of a report because the argument that is made by the respondent about section 24(3) is that the words – if I could read, your Honours, from the third line of it in this print:

Where . . . there is a defence for a later publication ‑

this is the newspaper publication –

of the protected report ‑

which would be his Honour’s judgment ‑

or a copy of the protected report, or of a fair extract or fair abstract from, or fair summary of, the protected report, if the second person ‑

the newspaper ‑

does not at the time of the later publication, have knowledge which should make him or her aware that the protected report ‑

the judgment ‑

is not fair.

Then they are able to make out a defence under subsection (3).  That seems, in our submission, your Honours, to raise an extraordinary proposition which is that there is no difference in fact between the judgment as delivered by the court and published through the registry or handed out by the associate, on the one hand, and a report of judgments.  In this case it is said that Justice Hill in his judgment was in part reporting the decision of Rogers v Whitaker.

So the first step is what Mr Justice Hill did is report the Rogers v Whitaker litigation, but not fairly.  That is, that what his Honour did through omission or however they put the argument was not to give a fair report of the Rogers v Whitaker litigation in the Supreme Court of New South Wales.

The second step then is, embracing section 24(3), because it was a summary, that is, because what The Daily Telegraph published was a fair extract, fair abstract or fair summary of Mr Justice Hill’s report of Rogers v Whitaker in his judgment, there was not a requirement for the newspaper article to have the stamp of an attributed report.

Your Honours may recollect from the papers that in the Court of Appeal the judgment of the President, which we support before your Honours, said that the defence failed.  The defence of fair protected report failed because there was not attribution in the article, particularly of the defamatory material about the nature of the operation and its performance by Mr Rogers to Mr Justice Hill’s judgment, so the attribution question became the central issue as to what was the necessary indicia of a report to have the benefit of the section, any subsection in 24.  The necessary indicia we contended, your Honours, was that it must have that degree of self‑description of being a report, which is to say a description or version of another event which is described in the course of reporting upon it.

That is where the debate arose in the Court of Appeal and we lost because Mr Justice Stein and Mr Justice Grove held that the attribution of the kind that the President said was necessary was in fact not necessary, but The Daily Telegraph article was clearly a story or, as his Honour called it, a report on the subject matter of a court case and that the reader would understand that it was about a court case and therefore that that was sufficient attribution.

GLEESON CJ:   The court case being Whitaker v Commissioner of Taxation.

MR TOBIN:   Yes.

GLEESON CJ:   Was the case conducted in the Court of Appeal as though the relevant defence was that provided by section 24(2)?

MR TOBIN:   In effect it was, your Honours, although I think I have referred to Justice Mason’s reference to subsection (3).  In this Court, the respondent says when you get to section 24(3), dealing with “a fair extract or fair abstract from, or fair summary of, the protected report”, attribution is not necessary.  That has a puzzling outcome for this reason, your Honours.  In the case of a similar section in the 1958 Act, which was fairly close to the Code State legislation, in Burchett v Kane the Court of Appeal held that a publication in a periodical which recounted the evidence of a Russian defector called Mr Krotkov could not constitute a report of the proceedings of the Australian Senate because it was not attributed to the proceedings in the Australian Senate.

The factual background of that was this, your Honours, that in the Australian Senate the proceedings before the US Senate subcommittee in which Krotkov gave evidence was, in parliamentary terms, I think, made part of the parliamentary record.  The actual detail as to how that happened I cannot recall, but it became part of the parliamentary record of the Senate.  However, the article itself, which was the matter complained of, failed to say “This evidence of Mr Krotkov, which was given before the US Senate subcommittee, has been incorporated under the Senate standing orders into the record of the Australian Parliament”.  All the judges in the Court of Appeal held that that was not capable, because of the absence of attribution, to constitute a report.

The narrow point then that is being put by the respondents seems to us to be based on a forensic judgment, which is that when one looks at the matter complained of, it does not get even close to being a report of court proceedings and The Daily Telegraph was entitled to present a story to its readers highly critical of the consequences of a judgment that was made by the Federal Court on the application of the Commissioner of Taxation under the Taxation Administration Act.  That was available to the newspaper to do and it did it very strongly.  It quoted various people, including Mrs Whitaker and the Taxpayers Association president, et cetera.  But, your Honours, what we say is, it could not constitute a report.  It is a story about a court case.  That does not answer the description of a report under section 24. 

GUMMOW J:   What is the report; what are we talking about?

MR TOBIN:   In this case?

GUMMOW J:   No, no, in this section.  What does the word “report” mean?

MR TOBIN:    Well, the word “report” would mean this, your Honours, whether it be a parliamentary proceeding or a judicial proceeding, et cetera, it is a version of the event which is described ‑ ‑ ‑

GLEESON CJ:   Is it not an account?

MR TOBIN:   An account of the event described or ‑ ‑ ‑

GLEESON CJ:   This is what happened in court today.  This is what happened in the case of Whitaker v The Tax Office.

MR TOBIN:   Yes, but the essential characteristic of a report is that it is understood to be, in a sense, a hearsay; that is, it is the observer’s account – hearsay is not the correct word – of what that person saw and heard, put on paper, selecting the important things or the unimportant things and publishing it or speaking it to another person, but our ‑ ‑ ‑

GUMMOW J:   But “saw” includes reasons for published judgment.

MR TOBIN:   Leslie v Mirror Newspapers in the High Court ‑ ‑ ‑

GUMMOW J:   All this arrived long before the production of written reasons for judgment, I suspect.

MR TOBIN:   Yes.  Your Honour, in our submission in reply we argue that the publication of a judgment, such as the handing down of Mr Justice Hill’s judgment in the Federal Court, traditionally done by the associate giving it to the parties and maybe a copy or two to the media, would constitute ‑ ‑ ‑

GUMMOW J:   A lot of them go on the Web.

MR TOBIN:   And it is now on the Web, and that would constitute - as we would understand the common law which governs court proceedings in New South Wales – the necessary incident of the act of publication of the judgment as to be protected ‑ ‑ ‑

HAYNE J:   I think you will find there is a Federal Court rule that will permit publication of reasons by publication in writing.  It would surprise me if there were not.

MR TOBIN:   And it would be surprising if it were not absolutely privileged.

HAYNE J:   Do you accept then that the proceedings in a court include the reasons, be they oral or written, that are published whether by speaking them or by publishing them in the form of written reasons?

MR TOBIN:   Yes.

GLEESON CJ:   And that would appear to be contrary to a suggestion that the publication of the reasons is a publication by the judge, or by the court, of a protected report.

MR TOBIN:   Yes.

GLEESON CJ:   One of the reasons I raised this issue with you is that you might like to look at this over the luncheon adjournment, Mr Tobin.  I have a recollection that in a case in the Court of Appeal in which, I think, John Fairfax was a party, concerning proceedings that arose in relation to the Chinese Embassy and the bugging of it, there was a question whether a court was a person.  It was to do with the application of Commonwealth legislation dealing with publication of, I think, intercepted conversations.

MR TOBIN:   Yes.  The reverse, your Honour, I think, holds on the authorities, that when the word “person” appears in legislation it is not to be taken to be a court.

GLEESON CJ:   The argument against you, insofar as it relies on subsections (3) and (4), seems to proceed on the assumption that the publication of Justice Hill’s reasons for judgment was a publication by a person, presumably the Federal Court, or some officer of the Federal Court, of a protected report of the proceedings in Rogers v Whitaker.

MR TOBIN:   Yes.  That would be another basis for rejecting the contention, namely, on our basis, because it is not an attributed report even in summary form.  In fact, your Honours, perhaps that is not the way to approach it.  There would be two approaches; one from what your Honour the Chief Justice has put, that it is not a person – and that may cover the position – the second is that it is a category mistake to imagine that a document which is called the reasons for judgment of a judicial officer can constitute a report to the extent to which those reasons for judgment refer to other judgments.

In a sense, it offends against common sense as to what the purpose of the section is, that is, to protect the reporting of judicial proceedings, and, like a babushka doll, your Honours, there would be within each judgment, perhaps your Honour Justice Gummow’s judgment, there might be said to be five other reports of court proceedings.  That does not seem to us to square with section 25, which assists in, we suggest, disposing of the argument that is put against us.

GUMMOW J:   What do you say is the relation between sections 24(3) and (4)?

MR TOBIN:   In subsection (4) the holding would be as a matter of fact that the first publication was not a protected report.  So it says:

which should make him or her aware that the material is not a protected report or is not fair.

Now, that as it were conflates the two requirements, but I think the crucial distinction between (3) and (4) is that in (3) something which is a protected report turns out not to be fair in circumstances in which the defendant, who has published a copy of it or extract, abstract or summary of it, did not have knowledge which should make him or her aware that it was not fair.  So that is a question that goes to the fairness.

Subsection (4) posits material which is not in fact a protected report, and your Honours will see the - your Honours we set out in our written submissions a passage from the Law Reform Commission Report and I do not think I need to dwell on it.

GLEESON CJ:   The introductory words of subsection (4) indicate the difference, do they not?

MR TOBIN:   Yes, it does.  Your Honours, if I could just pick up those words “purporting to be” a protected report.  I will not read the extract but the Chief Justice, Sir Garfield Barwick, in Leslie v Mirror Newspapers (1971) 125 CLR 332, in holding with the Court that the judge had incorrectly withdrawn from the jury consideration as to whether the newspaper article fell within the category of a fair and accurate report, said at page 337, the last paragraph:

The question for the jury as the matter presently stands would be –

that is, on retrial –

whether the newspaper report as it would be read as a whole by members of the public is a fair report of so much of the proceedings of the magistrate’s court as it purported to report.

The words “purported to report”, of course, reflect in the judgment the fact that that was a question of fact to be resolved ultimately by the jury, but on condition that it was only that which purported to be a report which would go to the jury to decide whether it was fair or not and, in fact, whether it was within the realm of protected reports.

HAYNE J:   Can I just return a moment to publication of reasons.  Could you after lunch tell me what the equivalent rule in the Federal Court is to Order 72 rule 4 of the Rules of this Court which concern the publication of written reasons for judgment?

MR TOBIN:   Yes.  Your Honours, for the purposes of the appeal I was putting that it seems to us that the forensic reason for the newspaper’s reliance on subsection (3) is as follows.  The first step is that what Mr Justice Hill’s reasons for judgment amount to in part are, it is contended, a report of Rogers v Whitaker.  Second, it is not contended that the newspaper article in toto is the protected report or a copy of the protected report but rather a fair extract, abstract from, or summary of, the protected report.  The argument is made that those words “fair extract or fair abstract from, or fair summary of, the protected report” do not import the requirement of attribution to the summary extract or abstract.

So what is argued is that subsection (3), as it were, creates a special area of privilege or protection where the ordinary attribution required in a court report is not present.  The short answer, we would submit, to that, your Honours, is that it can never be a fair summary of a protected report to omit the fact that what you are summarising is, in its own self‑description, an account of, a version of, another event.  That is to say that if you fairly summarise a court report, you cannot omit the fact that the summary is of a court report.

The crucial aspect of it as a matter of principle would seem to us to be this.  The public policy behind this area of the common law and of the statute is to give the public at large access to the activities and the decisions of the courts.  If the public does not even know that what it is reading is from the courts, then the section and the common law in fact fulfil no purpose.  So we argue in response to what my learned friends have put that to be a fair summary of a protected report, you have to say at some point, “What I am summarising is what happened in court proceedings or in Parliament or in the United Nations”.  Again, your Honours, what ‑ ‑ ‑

HAYNE J:   Sorry, could I just interrupt you there, and do so by reference to paragraphs 18 to 20 of the article in question.  Those have evident similarities with what appears in Whitaker v Commissioner of Taxation 63 FCR 1 at particularly 3, and the first three paragraphs there. Do I understand the point you to be making that demonstration of similarity is not enough. What further is required?

MR TOBIN:   That the matter complained of be understood by a reasonable reader to be a report, that is, an account or a version of court proceedings which it is setting out to report in summary form.

HAYNE J:   And that the earlier references, for example in paragraphs 9, 10 and 11 to the existence of a proceeding before Justice Hill, is insufficient for the purpose?

MR TOBIN:   Yes.  There was a phrase used in a very old case that we referred to called Stile’s Case where the Chief Justice said, as to reporting of that kind the court cannot decompose the mass which was another way of saying that, if you took all of the material in this article as an ordinary reader without access to the reports of the courts, you would not know what it was that came from Mr Justice Hill and what it was that came from the newspaper.

The relevance of that seems to us to be of great importance, because, as Mr Justice Mason pointed out in his dissenting judgment in the Court of Appeal, the very purpose of the legislation and the common law is to allow the reader to identify what it is that happened in court, otherwise there is no public policy justification for the privilege.  So if you cannot identify what it was that was said by the judge or by the witness or by the politician in Parliament, if that is not accessible to you as a reader, to that extent, it is not a report.

What your Honour has put to me is that if you go, however, to the judgment, you may find in the judgment material which, as it were, could be traced as the provenance of what appears in the article.  That is a separate challenge we make to the decision of the Court of Appeal on the ground of inaccuracies.  With regard to the first one, your Honours, what finally counts against the interpretation of section 24 by the respondent is that section 25 provides a defence of fair protected report.  As it says in 25, publication of:

(a)a document or record specified in clause 3 of Schedule 2 as a document or record to which this section applies or a copy of such a document or record, and

(b)a fair extract or fair abstract from, or fair summary of, any such document or record.

Now, that identification of the material which is the subject matter of a report mirrors what is in section 24.

So section 24 and 25 cover different aspects of the field.  Your Honours will see in clause 3 of schedule 2 that:

Section 25 applies to the following documents and records:

. . . 

(3)  a document which is a judgment being:

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

(b)  a record of the court relating to:

(i)  such a judgment, or

(ii)  the enforcement or satisfaction of such a judgment ‑

Now, we have argued, your Honours, in the light of an observation by Justice Gibbs in Leslie v The Mirror that it is proper to construe the word “judgment” to embrace reasons for judgment.  We have set that out in the written submissions and I will not return to them.  But if that be correct, it would mean, your Honours, that section 25 provides the protection for the reporting either by publishing a copy of or a fair extract, abstract or summary of any judgment of the court.  So section 25 does the work that my learned friends want to press into service section 24.

GLEESON CJ:   Section 25 explains why Mr Rogers cannot sue Butterworths, or whoever.

MR TOBIN:   Yes, and could not sue a judge of the court as it were with regard to whatever was published in the reasons for judgment about other judgments.

That is obviously protected at common law by absolute privilege but you could not bend section 25 into that sort of service.  Equally, section 25 will cover the publication of New South Wales Law Reports and presumably the extract summary and abstract part would deal with the headnote.  Equally, of course, section 25 might protect an oral communication in the course of ‑ ‑ ‑

GLEESON CJ:   Or it might protect a publication that said notes of recent cases?

MR TOBIN:   Yes.

GLEESON CJ:   Is that a convenient time, Mr Tobin?

MR TOBIN:   Yes, it is, your Honour.

GLEESON CJ:   We will adjourn until 2.00 pm.

AT 12.59 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.59 PM:

MR TOBIN:   Your Honours, may I clarify an answer I gave to your Honour the Chief Justice about the conduct of the Court of Appeal hearing.  If I could go to the judgments at 644, third volume of the appeal books, paragraph 7 is the judgment of the President which was in dissent.  His Honour there deals with section 24 of the Defamation Act:

The article did not publish the judgment or a copy of the judgment.  To qualify for the defence the appellant therefore had to show that the article conveying the defamatory imputation was “a fair extract –

et cetera.

GLEESON CJ:   That proceeds upon the assumption that the protected report was the judgment of Justice Hill.

MR TOBIN:   Yes, which I think is in error, with respect to his Honour.  His Honour is really referring to 25, which I outlined to your Honours earlier.

GLEESON CJ:   The line of country I had in mind this morning is exemplified in the decision of this Court in Hilton v Wells 157 CLR 57 at 87 in the joint judgment of Justices Mason and Deane. It says:

Another question relevant to the interrelation between the various sub‑sections is whether the prohibition (in sub‑s.(4)) against divulging or communicating information to “another person” applies in respect of the disclosure of such information in the course of giving evidence before a court.  In our view it does not for the reason that, as a matter of ordinary language, the words “divulge or communicate to another person” are inappropriate to refer to the giving of evidence before a court “which would hardly be called” another person.

Then there is a reference to two or three decided cases on that.

MR TOBIN:   In the same line of territory, in answer to Justice Hayne’s question, I might come back to the rules, your Honour.  Could I conclude the reference to the conduct of the appeal.  Justice Stein deals with protected reports beginning at paragraph 88, which is page 666.  His Honour sets out section 24(2), the defence of fair protected report, then over the page subsections (3) and (4).  He deals with defeasance under section 26, if it was not in good faith for public information, et cetera.

When considering a defence of a fair protected report a preliminary observation may be made which is particularly apposite in this case.  What the court has to consider is what a fair minded reasonable member of the public, unversed in and unimbued with the legal niceties of the Rogers v Whitaker litigation, would ordinarily and reasonably have understood when reading Hill J’s judgment.

Well, in a sense, with respect to his Honour, that is putting it back to front, because the reader, even hypothetically, does not read the judgment of Justice Hill; the reader reads the report or purported report of Justice Hill.  Then at 92 his Honour says:

The fairness of the report must be ascertained objectively by reference to the accuracy with which it records or summarises the event, which in this case is a judgment – 

Anderson is quoted, and we do not demur from that.  Then, your Honours, he ‑ ‑ ‑

GLEESON CJ:   Pausing there, is he talking about the judgment in Rogers v Whitaker or the judgment in Whitaker v Commissioner of Taxation?

MR TOBIN:   It must be the latter.  I think his Honour is dealing with the latter.  I am told by my learned friends, who were at the appeal, that the argument that is made that Mr Justice Hill is reporting Rogers v Whitaker was not made at the Court of Appeal.  We will check that during the course of the afternoon, but certainly Mr Martin’s recollection is that that was not the way it was argued, but subsection (3) was, as your Honours will see.  If I could just go through to paragraph 104, which is 670 of the appeal book, Justice Stein there summarises a number of propositions from the authorities and, of course, these are propositions to do with fair or fair and accurate reports of court proceedings.  He refers to Justice Asprey – and this is a matter that I think your Honour the Chief Justice put, or something similar:

A fair protected report is a factual recording of an event and is essentially descriptive –

Your Honour said it is an account of an event.  Then over the page at 671:

A fair protected report need not be a verbatim one and can be a fair summary –

That, with respect, would suggest that the President’s view that I quoted in paragraph 7 may not be appropriate, that is, that the subsection (2) protection for a fair protected report encompasses a newspaper report provided it fairly and accurately summarises the content of a judgment.

GLEESON CJ:   But something is not a report of a judgment just because the judgment is the source of the information conveyed.

MR TOBIN:   Yes.  Your Honour, with respect to that, that seems to us to be the error in paragraph 91 which is a methodological error of Justice Stein.  What the court has to consider is what a fair‑minded reasonable member of the public, unversed in legal niceties et cetera of Rogers v Whitaker litigation, would ordinarily and reasonably have understood when reading Justice Hill’s judgment.  What the President, Justice Mason, said was in effect the starting point is the matter complained of.  You look at the matter complained of and you ask the question, “Does the matter complained of or that portion of it containing the sting of the libel answer the description of a report, a description, an account of other proceedings?”

So his Honour’s approach, which we submit is the correct methodology, is to look at the matter complained of to see to what extent it answers the description of a report.  As to that matter, what the Chief Justice, Sir Garfield Barwick, called the purported report, you look at whether that fairly and accurately encapsulates what was in the original judgment. 

Now, they are two very different approaches and they lead, as this case demonstrates, to radically different outcomes because the approach of the majority in the Court of Appeal was, if I could summarise it, I trust fairly, was to say the reader would understand that this was a report about a court case, therefore, the whole of the matter complained of answers the description of a report within the meaning of section 24.  That approach, we submit, leads to error.

If I could conclude, your Honours, at 112, which makes the point that I was retailing, his Honour says:

In my opinion, direct attribution of a judgment is not required for the defence of fair protected report to succeed.  It is sufficient if it is clear on its face that the report is of a decision or judgment given in court.  In this case it is plain that the subject matter of the article is a judgment handed down by Hill J . . . There are numerous references in the article to the Federal Court, the ‘test case’, the ‘landmark ruling’ as well as three references to Hill J, including one verbatim quote.

In my view, the trial judge erred and the article, in so far as it summarises the judgment, is a substantially accurate report of it ‑

They are the two issues, one of attribution and the second of accuracy or fairness that are in contest here.  Then at 114, your Honours, he refers to one of the two limbs of section 24(3), that is the question of whether the second publisher had knowledge of which he should have known that the report was not fair.  I will come to that later if I might, your Honours.

May I answer Justice Hayne.  If I could hand up to your Honours Order 35 rule 2 of the Federal Court which says simply that:

The reasons of the Court for any order may, if in written form, be published by being delivered in open Court to an associate or other proper officer.

Your Honours, in the Federal Court Act, section 4, the interpretation section, says this:

“Court” means the Federal Court of Australia established by this Act.

Section 14(1):

For the purposes of the exercise of the jurisdiction of the Court, the Court may be constituted by a single Judge or as a Full Court.

Thus, at least from the Act and the rules of the court, the judgment is not in a strict sense a judgment of Mr Justice Hill.  In a strict sense it is a judgment of the court.  That may raise the question as to whether the word “judgment” there has the narrower meaning of the ultimate order of the court.  I have not looked at that over lunch, your Honours.  Finally, on that question, the New South Wales Interpretation Act says that a:

person includes an individual, a corporation and a body corporate or politic.

Its silence about court may assist in the interpretation of the word “person”.  Your Honours, if one takes from the matter complained of the meaning that was contended for at trial and conceded by the respondent, it conveyed this imputation:

The plaintiff blinded Mrs Whitaker by negligently and carelessly carrying out an eye operation on her.

That is at the first page of the appeal book after the index.  What we have put, your Honours, to this point is that to the extent to which that imputation was conveyed by a passage in the matter complained of, that passage in the matter complained of must purport to be a report of the judgment of Justice Hill.  We submit that it simply fails to do so.  The passages in particular being the two headlines.  One begins “Scrooge taxman”, the second says “Blind justice”, the third is No 3:

MAREE Whitaker blinded by a surgeon’s negligence, walked from a Sydney court yesterday –

et cetera.  The next is item 2 in the box:

1984:  Blinded during an eye operation.

And over the page at No 18:

In 1984, Mrs Whitaker lost sight in both eyes after an operation involving corneal grafts performed by a prominent eye surgeon.

Your Honour Justice Hayne referred to his Honour Justice Hill’s judgment and if I might go to that to develop the second point, which is that even if it were a report it would not constitute a fair report.  In the second volume of the appeal books his Honour’s judgment begins at 251.  At page 253 there are two passages that relate to the Rogers v Whitaker litigation.  At line 37 his Honour has referred to pre‑judgment interest included in an award of damages for personal injury.  The last paragraph:

In 1984 Ms Whitaker sought the services of Mr Rogers, a prominent eye surgeon, in connection with a proposed corneal graft.

I note, your Honours, that that is in the singular and it was a proposal.

She was operated on by him and ultimately lost her sight in both eyes.

I contrast that, your Honours, with the box No 2 which says:

Blinded during an eye operation.

And with No 18 which says:

In 1984, Mrs Whitaker lost sight in both eyes after an operation involving corneal grafts performed by a prominent eye surgeon.

As a matter of fact, as the judgment of Justice Hill or an examination of it will show, at no stage does he say that there was an operation performed by Mr Rogers upon Mrs Whitaker for corneal grafts of both eyes.  Indeed, a scrutiny of the other judgments, including the evidence given in this matter, indicates that there was an operation involving one eye.  It did not involve corneal grafts – it involved another form of a recision, which is dealt with in Mr Roger’s evidence – and the operation which had been performed on 1 August 1984 resulted in Mrs Whitaker becoming totally blind in about March of 1986. 

However, in a sense, that is a side note to the judgment of Justice Hill, because if one goes through it as to where he deals with the earlier litigation, it will be seen on page 254 at the top.  He records that Mrs Whitaker:

brought proceedings against Mr Rogers in the Supreme Court of New South Wales. In those proceedings she claimed damages against Mr Rogers, either for breach of contract or in negligence. In addition, she claimed in the statement of claim “Interest pursuant to s 94 of the Supreme Court Act”.

Ms Whitaker’s case was ultimately heard by Campbell J of the Supreme Court of New South Wales and the decision at first instance is reported in (1990) Aust. Torts Reports . . . The judgment so entered included an amount of $65,514.38 representing the “interest” entered in the award pursuant to s 94 of the Supreme Court Act.

At line 45, there is a reference to the High Court proceedings:

Subsequently, Ms Whitaker received interest on the verdict, pursuant to s 95 of the Act for the period 13 August 1990 to 19 November 1992, agreed upon as bring $287,671.

Then, as one goes through the rest of the judgment, there will be found, your Honours, a number of references that Mr Justice Stein deals with in his judgment, and I will take you to that shortly, but at 276 there is a further reference to the matter of Rogers v Whitaker at line 20 to 28:

In the present case MsWhitaker claimed two separate amounts in the proceedings she commenced.  The first, which was an affair of capital was damages for a personal injury she had suffered at the hands of Mr Rogers.

Now, what has happened in the reporting of this judgment, your Honours, seems to us to be as follows.  The reporter said that Mrs Whitaker was blinded during an eye operation.  The judgment says that she ultimately lost her sight in both eyes, but it does not specify what period of time elapsed.  The article says:

Mrs Whitaker lost sight in both eyes after an operation involving corneal grafts performed by a prominent eye surgeon.

That is, grafts on both eyes.  Mr Justice Hill said simply that she had:

sought the services of Mr Rogers, a prominent eye surgeon, in connection with a proposed corneal graft.

He does not then say what the nature of the operation was in this sentence:

She was operated on by him and ultimately lost her sight in both eyes.

The matter complained of contains the words “robbed of sight” in the headline and “blinded by a surgeon’s negligence”.  They are not statements of Mr Justice Hill.  There is the statement of Mr Justice Hill, which is not reproduced, about an injury she had suffered at the hands of Mr Rogers.  What has happened seems to us to be as follows, your Honours.  What Mr Justice Hill says in his judgment, analysed accurately, is consistent with the holding of negligence ultimately upheld in the High Court of a failure to warn.  There is nothing in what Mr Justice Hill says which is inconsistent with identification of that form of negligence.

GUMMOW J:   What about the personal injury she had suffered at the hands of Mr Rogers?

MR TOBIN:   That is the best argument by the respondent.  If one looks at the dictionary, “at the hands of” means not by the hand of but at the responsibility of Dr Rogers, that he caused it.  That is one interpolation by the journalist.  The second interpolation is this, your Honours, that she has jumped to the conclusion that because Dr Rogers operated on Mrs Whitaker and because there had been a consultation relating to a corneal graft, that the operation in question involved corneal grafts to both eyes.  That is nowhere to be found in the judgment and is actually an inference or conclusion that she draws which is not rationally available from the judgment, because the judgment speaks of only one proposed corneal graft.

So in the course of writing the article, the journalist has made the following assumptions which are not to be found by reading his Honour’s judgment.  The first is that she was blinded during an operation, and that seems to us to be a very significant inaccuracy, given that his Honour says that she ultimately lost her sight in both eyes.  The second assumption that is made is that the operation involved corneal grafts to both eyes.  Again, that does not logically follow as a deduction from the fact that she consulted Mr Rogers in connection with a proposed corneal graft, not an operation on both eyes.  There is then a reference in 18 to her losing her sight in both eyes after the operation, which seems to be in conflict with the box on the front page that she was blinded during an operation.

Mr Justice Stein sets out at some length at page 657 a number of passages from the judgment itself from line 55.  If I could give your Honours the references in the appeal books without going to the volumes, the first extract beginning “In 1984 Ms Whitaker sought” is at 253 to 254 from the judgment.  The next passage at line 20 on the next page, “At the heart of the submission”, is 262 line 34.  The next reference to “a personal negligence suit” is 266 line 30.  The next reference, “Much the same”, is at 268 line 29.  The next, “So it is said”, comes from 271 line 26.  At the end of the page, “It is a case”, comes from 272 line 53.  At the top of 659 it is at 275 line 30, and the last one is 276 line 24.

Now, your Honours, what we submit is that if one goes to the imputation that the plaintiff blinded Mrs Whitaker by negligently and carelessly carrying out an eye operation on her, and then consults the judgment, first of all – and I will not repeat the point – there is no purported reporting of the passages giving rise to that imputation.  Second, what does give rise to the imputation are erroneous and inaccurate statements, not of what Justice Hill said, but of a deduction which the writer, the author, derived from what Justice Hill said.  That is to say, she filled in the gaps.  Because Mrs Whitaker was blinded ultimately in both eyes, she inferred, read into the judgment, the proposition that she had been operated on on both eyes and that it was for corneal grafts to both eyes – a subject matter of the original advice sought by her – and that she was blinded during the operation.

Then the question arises as to whether those inaccuracies are such that the report is not fair.  We would submit, your Honours, that if the article, by quotation or summary, had restricted itself to what Justice Hill had said without drawing inferences and jumping to conclusions the article would have been able to say that she sought services for a corneal graft, that he operated on her and that she ultimately lost sight in both eyes.  Those matters are in the judgment of Justice Hill.  What we say is ‑ ‑ ‑

HAYNE J:   What would the writer of this different form of article have said about damages for a personal injury suffered at the hands of Mr Rogers?  How could that have been put, do you say?

MR TOBIN:   By quoting it.

HAYNE J:   Yes, other than quotation?  No paraphrase of any sort possible?

MR TOBIN:   No, you could paraphrase it.

HAYNE J:   How?

MR TOBIN:   Doctor Rogers caused the patient ultimately to become blind.  It is an allegation of causation at the hands of.  The difficulty seems, with respect, your Honour, to be this ‑ ‑ ‑

GUMMOW J:   Part of the difficulty is the false description of the earlier litigation in Justice Hill’s judgment.  That is the root of the problem, in a way.

MR TOBIN:   There does not seem to be, with respect, a false ‑ ‑ ‑

GUMMOW J:   It was not an action for damages for personal injury, in the traditional sense.  It was a failure to warn case.  That is why it was so famous.

MR TOBIN:   As your Honour might see from the judgment of Justice Campbell in the Supreme Court of New South Wales, the pleadings from the original trial at first instance do deal, not with the actual operative procedure, but with treatment issues, as well as the failure to warn.

HAYNE J:   What has that to do with anything, Mr Tobin – what happened at the trial of the original action?

MR TOBIN:   Justice Gummow was putting to me, as I understood it, that the judgment being reported was false or inaccurate.

GUMMOW J:   Yes.

MR TOBIN:   Now, I was rebutting that, with respect.

GUMMOW J:   Hardly an accurate description of what the High Court decided.  Any student who said that that is what the High Court decided would fail.

MR TOBIN:   I am sure his Honour would – what Justice Hill has done is simply record an element of the litigation for the purposes of analysing the status of the interest payment, whether it was ‑ ‑ ‑

HAYNE J:   Would you accept, at least, that Justice Hill’s judgment does not make perspicuously clear that the difficulty in Rogers v Whitaker was failure to warn?

MR TOBIN:   He does not deal with it other than to say that there were counts in negligence and contract.  Perhaps the answer I would give to your Honour, Justice Hayne, is this:  in such a case what is the role of the reporter if she fills in the gaps in a way that is defamatory of the plaintiff?  And the answer is, as I think Grech’s Case is an indicator which is in our written submissions, the reporter is not entitled to fill in the gaps.  If the judgment is in any way defective, if a judgment fails to ex expatiate upon the legal foundations in some way, that is not a matter for the legal reporter to cure by filling in the gaps, and in this case the legal reporter filled in the gap in what is, we would submit, quite an astonishing way.

GLEESON CJ:   This may not ultimately be criticism of your argument, but you still seem to be putting the argument as though it is a case under section 24(2).  When you concluded your first point you said the passages in the matter complained of that convey the defamatory imputation do not purport to be a report of the judgment of Justice Hill.

MR TOBIN:   Yes.

GLEESON CJ:   But to meet the case under subsection (3) do you not have to say the passages in the matter complained of that convey the defamatory imputation do not purport to be a report of the judgment of Justice Hill in Whitaker v Federal Commissioner of Taxation, nor do they purport to be an extract or abstract from, or a summary of, a report of Rogers v Whitaker by Justice Hill?

MR TOBIN:   Yes, in terms of subsection (3) ‑ ‑ ‑

GLEESON CJ:   Assuming Justice Hill to be a person within the meaning – or the Federal Court to be a person within the meaning of subsection (3).

MR TOBIN:   Yes.  That, I take it, your Honour, goes back to the requirements under subsection (3) as to what is the nature of the summary of a protected report to be.

GLEESON CJ:   But if you are in the area of subsection (3), then the question is, what is the consequence, if it be the case, of the fact that Justice Hill’s judgment was not a fair report of Rogers v Whitaker?

MR TOBIN:   I would contest that for this reason, your Honour.  For the purposes of this protection, the judgment is not in line with what Justice Gummow put to me.  The judgment is not, as it were, the adequacy as a piece of juridical work of the judgment.  The relevant question is whether the judgment, in effect, conveyed that imputation either in its own terms or as summarised by the reporter.  So I would resist what Justice Gummow put, that this is not a fair report in any sense of Rogers v Whitaker in the judgment of Mr Justice Hill. 

The only relevance is whether what Mr Justice Hill wrote for the purposes of subsection (3) as argued by the respondent conveyed that imputation or not.  The difficulty that the respondent must have is that they have put in a non‑existent operation of two corneal grafts on both eyes, blinding the patient, during surgery.

Now, Mr Justice Hill, in the most punctilious reporting in their terms of Rogers v Whitaker would never have said such a thing, and in his truncated references to Rogers v Whitaker again he did not say such a thing.  What he has left out was, no doubt, a fuller account which could have been obtained from Mr Justice Campbell’s judgment in the Supreme Court.

GLEESON CJ:   If this article, to avoid the word “report”, had commenced by saying, “The following is an account of what Justice Hill had to say about the circumstances in which Mrs Whitaker came to get an award of damages” and then said what he did say, the question would be, would it not, whether what he did say was either a fair report of Whitaker v The Federal Commissioner of Taxation or a fair summary of what Justice Hill said about Rogers v Whitaker?

MR TOBIN:   Yes, what the report has said, yes.  If I could ask rhetorically, is it not the case, your Honours, that what has been put in is a devastating fact with regard to the conduct of a surgeon, which is a prominent eye surgeon blinding a patient during a negligently performed operation of corneal grafts to both eyes.  Now, that event never took place.  The next step is that Mr Justice Hill never said that such an event took place.  It is only in the line of Justice Mason’s comment in Harrison v Mirror Newspapers where the reader, in this case the writer of the article, having recourse to her own prejudices or assumptions, reads something into the article, in this case the judgment, which is not there.

GLEESON CJ:   What would the position be if you said Justice Hill used loose language which left it open to a reader to infer that this is what took place?

MR TOBIN:   The defendant cannot complain and the plaintiff will not proceed if that has happened and the judgment conveys a defamatory imputation against a prospective plaintiff.

HAYNE J:   Thus is it relevant to ask what some suitably hypothetical and objective person would have made of Justice Hill’s judgment in the tax case uninstructed by any knowledge other than what Justice Hill recorded about the earlier litigation?

MR TOBIN:   Your Honour, why I resist that is that it seems, in my submission, methodologically to be the wrong way around.  The starting point is to say, “Is the article a report and is it fair?”  So you look at the article ‑ ‑ ‑

HAYNE J:   Therefore building on the Chief Justice’s example, if, for whatever reason, you were able to conclude that what followed was in truth a report of what Justice Hill had said, whether because of the introductory para that the subeditor did not spike of the kind described, or otherwise, would it then be relevant to ask what someone would make of what Justice Hill had written?

MR TOBIN:   The way I would understand the Court should approach it is to say, one, is the matter complained of a report?  Two, what part of the report conveys the defamatory imputation?  Three, comparing the report or purported report with the judgment, is there a substantial inaccuracy between them such as precludes it from being a fair report?  That is the methodology that the President adopted, and it is the one that we say Mr Justice Stein should have adopted because in that way one focuses on the matter complained of as the purported report of the court proceeding.

Your Honours, there is perhaps embedded in something that Justice Hayne put to me a question that might arise:  could a reasonable reader have taken that message from Justice Hill and was it capable of being understood in that way, or perhaps misunderstood in that way?  The answer that I would give to it is this:  what is taken from Mr Justice Hill’s judgment in the defence of a protected report is a set of propositions of fact or of law recounted by the reporter, by the journalist.  What she has recounted is a story about an eye operation on two eyes for a corneal graft, blinding the patient on the operating table.  That is not what is available from Justice Hill.  We would say that at that stage the defence is, as it were, cut off at the very beginning.

The alternative which was dealt with in the Court of Appeal is to ask:  would the reader understand this is about a court case, that what is being discussed here relates to Whitaker v Commissioner of Taxation and, if that is so, examining the judgment, do we find the provenance in the judgment for what has appeared in the matter complained of?  Ultimately, it is a matter that your Honours must decide, but it would seem, methodologically, that that parts company with a long tradition at common law, certainly, and in the exposition of the legislation itself, that where the journalist adds in material, puts in facts that are incorrect and not in the judgment, then the defendant must answer the allegation of defamation on other grounds.

If I could make a more general point, your Honours, why this methodology seems to us to be so important is because the schedule to the Act contains an enormous number of proceedings and meetings in every court in the world, in all Parliaments in the world ‑ ‑ ‑

GUMMOW J:   That was a great extension, was it not?

MR TOBIN:   An enormous extension.  The question, as it were, at a higher level than just Mr Rogers’ case is if that extension is to be applied, how strictly should the legislation be read and how firmly should the courts adhere to the notion that the report fails in its character as a report to the extent to which it imports extraneous and unfair material not found in the bedrock of that which it purports to report?

That seems to us to put our case at its highest.  That is, if your Honours say, in line with Justice Stein, well, the people know that it is about a court case or a proceeding in the Bosnian Parliament or something in the Trotting Tribunal ‑ ‑ ‑

GUMMOW J:   It could be very significant for the ethnic press reporting in Australia about what is happening in another country, the inhabitants of which are its readers here, for example.

MR TOBIN:   The legislation confers a great privilege on not just the media but on any people reporting.  As a matter of principle, it seems to us that to adopt the approach of the Court of Appeal is to run a very serious risk that the common law understanding that the report stops being a report once you as a journalist venture into the territory of making assumptions of fact that are not to be found in the report – once that happens, then this division, 24, 25 and 26, is given, as it were, much greater scope than it has ever been understood to have.

Your Honours, could I pass to the second issue and relating to section 24(3) the words with regard to the defendant here, the second publisher does not have knowledge which should make him aware that the report is not fair.

GLEESON CJ:   This is the corporate memory argument.

MR TOBIN:   Yes.  Before I embark on the corporate memory argument, your Honour, there is some evidentiary material that is very important for this purpose and it is this.  There were three people involved in the decision to run this story on the front page of the Telegraph.  There was a Mr Reid who was a deputy editor, there was Ms Toy who was the writer, and there was Mr Allen who was the editor of The Daily Telegraph.  All of those were involved in the decision to publish and to publish it on the front page and with the layout that it has. 

If I could give your Honours some references, at 113 of the appeal book line 15 Mr Reid is giving evidence and he said that he was chief of staff of the Telegraph from 1987 to 1989.  The next years, 1989 to 1991, he was New York bureau chief.

GLEESON CJ:   Perhaps it would serve your purposes just to give us the page references and we can look at them.

MR TOBIN:   Yes, 113 deals with Mr Reid’s status and he says in 1996 Mr Allen was the editor.  At 114 lines 10 to 30 he refers to the joint decision by himself and Mr Allen to publish.  On the same page at lines 40 to 50 he gives an account of the impact that the story was to have, which he said that:

the plight of Maree Whitaker in having lost her sight and now having what she certainly regarded as a second injustice inflicted upon her –

At 111 the writer, Ms Toy, says between lines 20 and 34 “I think they”, that is the editor, Mr Allen, and the deputy editor or acting editor, Mr Reid:

they discussed the story with me, yes.  I certainly –

Then, your Honours, at 133 again Mr Reid says – at lines 15 to 20 there was a discussion between Mr Allen and himself, but he could not recollect the specifics.  That goes to the role of Mr Allen in publishing for the purposes of subsection (3).

The second batch of evidence, your Honours, is the availability in the library of News Limited and of this newspaper of the relevant sources of knowledge and that material is to be found at 127 in the evidence of Mr Reid beginning at line 40 in cross‑examination and over the page to line 45.  That is the availability of previously published material in the paper.  At 129 lines 15 to 35 deals with the microfiche records of previous articles, again available. 

CALLINAN J:   But a corporation cannot escape liability for a lack of knowledge simply because it employs a lot of people or the knowledge is in a number of different places, assuming that to be so.  I mean, it is a very simple submission, is it not?  Why should a corporation, simply because it has a lot of employees, have an advantage over a natural person in this regard?

MR TOBIN:   Your Honour, in this case what is of relevance to our argument is that Col Allen was the editor at the time of the publication of the matter complained of and in a piece of evidence that I will take the Court to when Rogers v Whitaker was decided he appears to have had a rank of deputy editor.

CALLINAN J:   What does it matter?  It is a corporation.  It is a corporation sole.  It is the publisher, not the natural person who worked for it.

MR TOBIN:   Your Honour, this is, as it were, a fallback position that I am putting.

CALLINAN J:   You also have Webb v Bloch.  Everybody who is involved is a party to the publication, is a publisher, so the knowledge of one under that can at least arguably be attributed to any other publisher.

MR TOBIN:   For that reason, your Honour, we say that the failure to call Col Allen, who was the then editor who lived in Sydney and who took part in the publication exactly in the line of Webb v Bloch, not just as a nominal editor but actually took part in the decision as to what was published, should have been called if ‑ ‑ ‑

CALLINAN J:   This is your fallback argument though.

MR TOBIN:   Yes, I am sorry.  I beg your pardon, yes, your Honour.  That is section 24(3).

CALLINAN J:   But it is the knowledge of the publisher, not some employee that works for the publisher.

MR TOBIN:   And it happens in this case to be both.  It happens to be the knowledge available to Mr Allen as editor.  The submission we make in that respect is that the pleaded defence under subsection (3) involves:

the second person does not, at the time of the later publication, have knowledge which should make him or her aware that the protected report is not fair. 

The failure to call Mr Allen who took part in the publication means that the defendant cannot make out that he did not have that knowledge.  In other words, there is a negative stipulation in the section for the newspapers to have the benefit of it.  Two of the people involved in the publication were called and the third person was not called.  That, again, we would submit, is fatal to the protected report defence.

GLEESON CJ:   Is there a difference between having knowledge and in the past having had information?  I mean by that Mr Allen would have had to have had a pretty fair memory on him, would he not, to have recollected the detail of the litigation between Mrs Whitaker and Mr Rogers?

MR TOBIN:   The evidence showed, your Honour, that the newspaper kept the clipping files back over the period of Rogers v Whitaker, 1989 to 1991 – there were a number of exhibits which can be found at page 298 to 302 of the appeal book – including the period when Mr Allen appears to have been a senior editor – it would appear deputy editor, although there is some issue, but appears to have had the role of deputy editor in the merged paper The Telegraph Mirror.  Your Honours might recall the afternoon papers going out of business.

CALLINAN J:   But, Mr Tobin, newspapers have a morgue, do they not?  They call it a morgue.  They have enormous libraries and they take great pride in them and these days, of course, they have in addition immediate electronic access.  But the notion that they do not have records of their past publications and that they do not go to them frequently and that they are not readily accessible would be to me incredible.

MR TOBIN:   To take up the point the Chief Justice put, with regard to Mr Allen, because he was an active participant in the publication we say he must show that he did not have the knowledge, that is, for the benefit of subsection (3).  An even stronger point, which is what comes from what Justice Callinan puts to me, is that under subsection (3) the second person, which of course is the corporation Nationwide News – if:

the second person does not, at the time of the later publication, have knowledge which should make him or her aware that the protected report is not fair.

In regard to that part of the subsection, we submit that the knowledge of News Ltd or Nationwide News in its library from its prior publications that the Rogers v Whitaker case was a case of failure to warn – and that is spelt out in exhibits at those pages, 298 to 302 – that knowledge was the knowledge of the publisher.  That knowledge was, as a matter of formality, kept in the newspaper morgue in an accessible form as a source of information.

GLEESON CJ:   Who carried the onus on this issue?

MR TOBIN:   The onus, as I would read subsection (3), rested upon Nationwide News if it wanted the benefit of the section and again, as I would understand it, at trial it called two of the three people in an attempt to make good that point.  They did not have the knowledge.  Now, the failure to call the editor, we submit, carries a consequence that they must fail under that subsection.

GLEESON CJ:   Was there any explanation of the failure to call the editor?

MR TOBIN:   No.  There is one other aspect, which is this, your Honours.  When your Honours look at that exhibit U, from 298 on, those newspaper reports, that was a subject – your Honours see their letter which sets out articles that existed about Rogers v Whitaker “held by the Daily Telegraph (Mirror) and The Australian”, which is the same stable, from the “library at 2 Holt Street Sydney”.

GUMMOW J:   What page are you reading from, Mr Tobin?

MR TOBIN:   Page 298, your Honour.

GUMMOW J:   Thank you.

MR TOBIN:   There is a covering letter which attaches the article from what Justice Callinan said was the morgue of the newspaper, the prior articles published by the defendant at the trial which make it clear that the case against Mr Rogers was a case of failure to warn.  Now, in the light of that material we say that they did not discharge the onus under subsection (3).  We also say, your Honours, that no explanation was offered as to the failure to call him, although he was in Sydney and was still an employee of the defendant company.  Thirdly, a call was made at trial for the production of the original of these newspaper articles and they were never produced.  The answer was “not produced”.  The oddity of that, your Honours, is that if you were to look at 301 and 302 ‑ ‑ ‑

GLEESON CJ:   But all that does is enable you to tender secondary evidence of the articles.

MR TOBIN:   Well, the articles were already tendered.  There was no difficulty of that, but there was a failure to produce the originals, which explains why the indexing at the top of the pages is not complete.  Your Honours, again for the reason that we advance ‑ ‑ ‑

HAYNE J:   Just before you leave that, do I find anywhere in the appeal book as part of that exhibit the last article mentioned at 298, The Australian article of 1 May?  I cannot pick it, and the others all seem to be reports of proceedings at first instance in the Court of Appeal.

MR TOBIN:   I think it is the very last article in one of the appeal books.

HAYNE J:   Do not delay about it.  Later it can be found.

MR TOBIN:   It is either 230 or 231.  It is probably 231, I think, the first page of that.

HAYNE J:   Thank you.

MR TOBIN:   It follows, your Honours, that on the question both of corporate knowledge and of actual knowledge that can be imputed to Mr Allen, the defendants should fail under section 24.  There is a further issue, and that is dealt with by Justice Stein at 673, volume 3.

I am sorry, 674 deals with the question of knowledge.  Your Honours will see at paragraphs 115 and following his Honour sets out the argument before the Court of Appeal.  He says at the end of 115:

The question raised by the respondent is whether the corporate knowledge of the appellant can be taken into account.

His Honour then relies upon a judgment of Mr Justice Hunt in Waterhouse v 2GB.  That is a case limited to the question of relevant evidence going to good faith in the section 26 defeasance of fair protected report.  That is to say that his Honour was not dealing with the last limb of subsection (3), the knowledge of the publisher, but rather with the question of good faith.  It is to be distinguished on that ground.  We contend, your Honours, that section 24(3) does, given the principle behind that defence ‑ ‑ ‑

CALLINAN J:   Mr Tobin, where is the relevant part of Justice Hunt’s decision?

MR TOBIN:   I think it is either at 69 or 72, your Honour.  Does your Honour have the judgment?

CALLINAN J:   Yes, I have the report.

GLEESON CJ:   Page 72F, is it not?

MR TOBIN:   There is a quote from page 72.  I think there may even be – that is the last paragraph, in answer to Justice Callinan.  Then over the page at the top of 73 I think his Honour makes another reference to it.

CALLINAN J:   If that principle is good, it is really a licence to defame.  You just find a journalist who has not read one of the earlier articles and get him or her to write a defamatory article about somebody.

MR TOBIN:   Your Honour, why we challenge that as a statement of general principle is for this reason.  His Honour is reading down the words “good faith to public information” and saying that it is not to be allied with the concepts of malice.  That is at page 64D.

CALLINAN J:   I understand that, but just getting back to the fundamentals of it, it would mean that the more people you employ, the bigger the corporation, then the better chance you have of escaping liability on the basis that somebody does not know something.

MR TOBIN:   Yes, notwithstanding that there is institutionalised a library system designed to make all the previous publications accessible.  The other difficulty with it is this, that Mr Justice Stein simply adopts the decision in Waterhouse and applies it to subsection (3), but there is no warrant in the proper interpretation of subsection (3) to assume that when there is a reference to a person, in this case a corporation, that the knowledge of that corporation is somehow to be limited only to the people involved in the publication because it is the publication of the corporation itself.  We have set out the general principles.

CALLINAN J:   Under this sort of principle, if it exists, how long does the corporate memory have to be – a day, a week, a month?  The actual knowledge of somebody, who may well have been…..on a particular occasion, and raises the possibility that everything known by everybody else in respect of previous occasions or collectively known should be just treated as irrelevant.

MR TOBIN:   Your Honour, that would be why – again, on an ordinary reading of the subsection, the onus rests upon the newspaper to discharge the obligation of demonstrating – the onus of demonstrating – that it did not have the knowledge through any of its servants or agents.  Your Honours, in Fightvision v Onisforou, 47 NSWR 473 at 527, which is on our list, which is a judgment of the Court of Appeal, the Bench was Justices Sheller, Stein and Giles. At page 527, paragraph 244, their Honours say:

We can see the force of the observation by von Doussa J in Beach Petroleum NL v Johnson . . . that knowledge imputed to a company should not be treated as capable of being simply forgotten or lost at the death of the director whose knowledge was imputed.  In El Ajou v Dollar Land Holdings . . . Hoffmann LJ, as his Lordship then was, said that once knowledge was treated as being the knowledge of a company in relation to a given transaction, the company continued to be affected with that knowledge for any subsequent stages of the same transaction ‑ ‑ ‑

GLEESON CJ:   What paragraph, Mr Tobin?

MR TOBIN:   244 on page 527:

there are sound practical reasons for corporate knowledge including the knowledge of former officers and employees.  A corporation cannot cause itself to shed knowledge by shedding people, and it cannot be that a head of sporting acquisitions can sign‑up a sporting identity whom his predecessor could not sign up simply because of the change in personnel.

That was Tszyu – Mr Tszyu, the boxer, was the ‑ ‑ ‑

CALLINAN J:   Take the defence of malice, represented by extreme recklessness.  If this principle is right, then you could not have any collective recklessness.  I mean, one person involved might contribute to it, another person might contribute to it, but it is only by looking at the actions collectively of a number of people that you could see that there has been gross recklessness.

MR TOBIN:   What your Honour says is an echo of Sir Isaac Isaacs in Webb v Bloch as to all those who partake in the publication are liable for it as publishers.

GUMMOW J:   How do we assess what is involved in the acquisition of the knowledge in the first place?  What is it that is needed to fix this artificial person with what is a human characteristic, namely knowledge?

MR TOBIN:   It is part of the business of News Limited to publish stories.

CALLINAN J:   Would not you say what it said on previous occasions which it said accurately – or reasonably accurately, substantially accurately, which is different from what Justice Hill said and also different from what was written on this occasion?

MR TOBIN:   If I could put it ‑ which was more than Justice Hill said – added the ground of negligence, and it was markedly different from what the later reporter said.  The way one fixes it, your Honour, is ‑ ‑ ‑

GUMMOW J:   But the answer to the question is then, is it, it is enough that it is found in a prior publication by this corporation?

MR TOBIN:   Yes, if the corporation here has published this to the world at large, that corporation has the necessary knowledge.

CALLINAN J:   It wrote what it knew, and it knew what it wrote, at the time.

MR TOBIN:   Yes, but, in a sense that is its business, that is what it does to generate profits, employ people and so forth.  It does not seem to us that this interpretation would put any, I think the word is, “chilling” effect upon publication of proceedings as listed in the schedule to the Act ‑ a myriad of proceedings scheduled in the Act which, in the case of this corporation, it has access to in its own library.

GLEESON CJ:   What, if any, difference is there between those publications that call themselves “journals of record” and others?

MR TOBIN:   Your Honour, there are some very impressive tabloid newspapers.

GLEESON CJ:   Well, you can be a journal of record and tabloid, I presume.  What does that expression mean?

MR TOBIN:   I think the answer is this:  there are probably in the world hardly any journals of record left.  I do not think that one could say in Australia, in the classic sense, that any newspaper is a journal of record any more, because the concept of the journal of record could be illustrated by one historical fact.  In 2002 was the hundredth anniversary of The Times Literary Supplement, which became an independent periodical published by The Times newspaper because in those parliamentary sessions in 1902 there was so much parliamentary reporting that all the literary articles had to be shifted into a new vehicle.  What that illustrated, of course, was that the journal of record, as a newspaper function, no longer exists.  The journal of record may well be the Internet, where one can get the transcript of the Secretary of State’s address and so on.

GLEESON CJ:   Is a journal of record one that accepts some kind of responsibility to publish parliamentary proceedings or court proceedings?

MR TOBIN:   Yes, that was the case, your Honour.

GUMMOW J:   Even if not entertaining.

MR TOBIN:   Yes, often especially so.  It was a badge of seriousness.

GLEESON CJ:   Well, now, does that cover your points except for damages?

MR TOBIN:   Your Honour, we deal with reasonableness in answer to the notice of contention.  I do not know if your Honours prefer me to deal with it after the ‑ ‑ ‑

GLEESON CJ:   Is that the one that attempts to raise Lange?

MR TOBIN:   No, quite apart from Lange, there is another section 22 defence.

GLEESON CJ:   It may be convenient to deal with that in reply.

MR TOBIN:   I will do that later, your Honour.  There is only one other topic, which is this.  On the question of malice, we contend that Mr Justice Hunt’s statement in Waterhouse should not apply in the circumstances of this case.  We distinguish this case from Waterhouse on the grounds I think I have already expanded on, namely, where there is a publication purporting to be a report of proceedings in which the reporter has implied or assumed facts and published them not in the original judgment, and those facts carry with them the defamatory sting, then, if that reporter has access to factual material which would have contradicted the assumption, the plaintiff is entitled to point to that as evidence of absence of good faith and, alternatively, malice, in publishing with knowledge of falsity.

HEYDON J:   But the malice goes to damages only, does it, because you are not concerned with qualified privilege any more?

MR TOBIN:   Yes.  As I understand the position now taken by the respondent, common law qualified privilege, other than the Lange defence, is no longer pursued.

GLEESON CJ:   And they will need leave to raise the Lange defence.

MR TOBIN:   Yes, so it is only on the issue of damages, so I could come to that.  Does your Honour wish to hear me later on damages?

GLEESON CJ:   No, now is a good time for damages.

MR TOBIN:   Well, I have unanimity on each side at the Bar table.  The malice question will also touch on section 22 which is not just reasonableness but it is a question of whether it is reasonable to publish with a state of mind where you know or ought to know the publication is false.

HEYDON J:   Where is that pleaded in the reply?  How does that fit into the abstract?

MR TOBIN:   There is a plea of malice in answer to qualified privilege.

HEYDON J:   Yes, which we need not bother about and then there is your section 26 ‑ ‑ ‑

MR TOBIN:   And section 22, the onus rested upon the other side to establish reasonableness under section 22(1)(c), so malice was in issue in the proceedings, your Honour.  I think that is the safest way to put it.

HEYDON J:   Section 22(1)(c) relates to qualified privilege, does it not?

MR TOBIN:   Yes.

HEYDON J:   I thought qualified privilege was out.

MR TOBIN:   No, common law qualified privilege is out.  Leave is sought to pursue the Lange defence of qualified privilege.

HEYDON J:   Which we can forget about for the moment.

MR TOBIN:   And statutory qualified privilege is in.  Section 22 is still in.  That is a notice of contention point.  I think it is 2.1 in the notice of contention.

GUMMOW J:   So by common law privilege you are referring to section 11 actually.

HEYDON J:   Which reserves it.

MR TOBIN:   Yes, but the respondent does not pursue the qualified privilege at common law.

GUMMOW J:   No, so we are just on the statutory version.

MR TOBIN:   Yes, your Honour.

Could I take the Court then to our submissions on damages.  The Court of Appeal held that there was no evidence of aggravation and Mr Justice Stein said that in any event that would not have counted very heavily in the actual quantum of damages.  It is our contention, your Honours, that there was nothing excessive in the damages awarded by the trial judge of 250,000.

The following aspects are uncontroversial.  The first is that The Daily Telegraph is a newspaper of extremely wide circulation.  The second is that the defamatory matter was published with the utmost prominence on page 1 with supporting headlines.  The third proposition, your Honours, rests of course upon the Court getting to damages and that is that the publication was a story which contained a defamatory imputation which did not fairly reflect what had happened in court.

Again, as the trial judge found, the material was produced with great sensationalism.  That goes to the impact of the defamatory matter and the damage that follows.  The trial judge also then considered the question of the apology that was published or what was purportedly an apology and the effect that that had upon Mr Rogers.  If I could go to that, your Honours, the appeal book at 285 ‑ ‑ ‑

HEYDON J:   What page of The Daily Telegraph was that apology published on?  Is it 18?

MR TOBIN:   Page 2, your Honour.  Does your Honour see just above the little index next to the photograph?

HEYDON J:   Yes, I see.

MR TOBIN:   It is written in, but I recognise the layout.  It says:

Eye surgeon Dr Christopher Rogers has complained that the article headed “Blind Justice” published in The Daily Telegraph on August 22 implied an award of $808,000 obtained by ‑

the name there is ‑

Mare Whicker against him for medical negligence related to his negligent performance of an operation on her eyes.  In fact, Dr Rogers’ care and expertise in conducting the operation were never questioned.  He was found negligent because he failed to warn Ms Whicker of a possible effect of the operation.  The Daily Telegraph apologises to Dr Rogers for any misunderstanding.

Your Honours would also have, in the preceding two pages of the appeal book, on 27 August, that is three months before the apology, in answer to a complaint made by Dr Rogers, a reply which certainly is not coy.  It says in paragraph (i) that Mr Rogers is not named.

One may assume that members of the legal and medical communities to whom you refer, if they are aware of your client’s identity, would be aware of the true facts of the case . . . 

(ii)  The text of the article is compatible with a finding of negligence against your client for failure to warn on the basis that if Ms Whitaker had been warned of the possible effects of the operation, she would not have undergone it.  In that sense she was “robbed of sight” . . . 

(iii)  Your attention is drawn to the provisions of the NSW Defamation Act relating to contextual justification ‑

They there say that if proceedings were taken they would be defended on the basis of a clear, contextual truth as to the circumstances of the original Rogers v Whitaker negligence.  Now, prior to the publication of this report on page 2, there were negotiations between the parties – and for some reason Exhibit 1 is not to be found in the appeal books.  Perhaps I could hand that to your Honours.

GLEESON CJ:   Thank you.

MR TOBIN:   That was tendered at page 60 of the appeal book.  This “Without prejudice” letter was admitted by her Honour over the objection from plaintiff’s counsel on the basis of an issue waiver of privilege.  This is offered as a complete discharge of all claims.  The proposal that was put to Dr Rogers says:

An article headed “Blind Justice” in The Daily Telegraph of 22 August may inadvertently have implied that the award of $808,000 obtained by Maree Whitaker . . . related to the manner in which Dr Rogers had conducted an operation on her eyes.  Dr Rogers’ care and expertise in conducting the operation was never questioned.  His negligence was found to arise solely from his failure to warn Ms Whitaker of a possible effect of the operation.

The appellant gave evidence of his reaction to that apology.  If I could give your Honours the page references.  At pages 57 and 58 he said that he was extremely angry that it was published without warning to him, the negotiations having broken down for a complete settlement.  This was published in October without notice or warning to him.

At page 69 he gives evidence as to the negotiations about an apology and a payment of damages.  At page 71 of the appeal book he deals with the inadequacy of the apology and at pages 71 and 72 he says that the apology in the terms in which it was published was untrue.

Your Honours, the position that Dr Rogers took was this.  Dr Rogers said that he found the publication of what was called an apology in the newspaper offensive because, first of all, it asserted that it was in response to his complaint.  Second, it asserted that:

Dr Rogers’ care and expertise in conducting the operation “were never questioned.

It then apologises for any misunderstanding.  Dr Rogers says in his evidence that, first of all, it looks as if the statement is being made – and it is not called an apology – at his behest because he is bringing a complaint, that is, there is not recognition by The Daily Telegraph that it has defamed him or injured his reputation.  It is said to be at the initiative of Dr Rogers.

Second, it contains an untruth, namely, that the original article did not question his care and expertise in conducting the operation.  I think your Honours would appreciate from the article that that can hardly be a true statement in the apology.  Thirdly, of course, it came in October after the August matter complained of was published and he said the lapse of time was such that it simply revived in people’s mind the memory of the allegation being made against him.

There are a number of elements that go to aggravated damages.  One of them is the nature of that apology.  The strongest authority in practical terms is the Victorian decision of the Full Court in David Syme v Mather [1977] VR 516. The Bench was Mr Justice Starke, Mr Justice Lush and Mr Justice Kaye. The judgment of Mr Justice Lush deals with the relevant passage, your Honours, at page 528. This was the treatment of four issues put to the jury. Halfway down it says:

The second matter relates to the apology.  It was implicit in the jury’s verdict that they regarded the printed apology as inadequate, and having regard to the evidence that its wording was agreed upon between the plaintiff’s solicitors and the managing editor of the defendant it seems likely that the inadequacy found by the jury lay in its presentation and display as compared with that of the libel.

Perhaps that is redolent of the question Justice Heydon put about where it was in the newspaper.

For the defendant it was conceded that the jury was entitled to find that the apology had no mitigating effect, but it was contended that this apology in the circumstances of this case was incapable of having an aggravating effect and accordingly the jury should not have been told that they could consider it in relation to aggravated damages.

I was at first attracted by this argument, but at the conclusion of counsel’s submissions . . . my opinion was, and it remains, that it was possible for the jury to take the view that the apology indicated an indifference to the plaintiff’s feeling which could exacerbate his sense of injury, and so be relevant to the question of aggravation.

Now, your Honours do not have the benefit of having heard the plaintiff and his evidence about why he resented the publication on page 2 of The Telegraph as an apology, but it seems to us to be axiomatic that what is considered as a proper apology recognises and accepts the fact that the publisher has conveyed something false and defamatory of the plaintiff.  That is the heart of an apology in a defamation suit, and the failure to do so is not mitigated, as it were, by the fact that there were negotiations between the parties ‑ some of which is admitted in evidence – as to a form of apology which he may have accepted in total settlement with compensation.

So the question of this apology stands to be judged on its own terms and, of course, echoing Justice Lush’s observations on what the jury might have thought in Mather’s Case, there was no input from the plaintiff as to the prominence to be given to the apology.  That itself can be an aggravating factor, that you can be defamed in one or one and a half inch headlines on page 1 and the newspaper can excuse itself, on untrue grounds, on page 2 in a small box three months later.

We contend that their Honours should have accepted the case as to that apology, in aggravation of damages.  We also contend, your Honours, that the circumstances in which the original publication took place, in the absence of a defence of fair protected report, also aggravates the damages for this reason.  Allied with the sensationalism of the article is the fact, as found by the primary judge and accepted by the judges on appeal, that the conduct of the defendant was unreasonable in the way found by the trial judge.  The Court of Appeal accepted those elements which go again, we say, to the question of aggravated damages.

In addition to the so‑called apology, your Honours, is the fact that the issue of damages, we say, should be – I am sorry, I have just lost my train of thought – what the trial judge called the excessive quality of the publication, by which he meant that the subject matter of Dr Rogers and his operation with regard to Mrs Whitaker had no relationship or proper bearing upon a reporting of a tax case.  To put it another way, if one was pursuing this as an aspect of qualified privilege, what was published about Dr Rogers was simply irrelevant to the proclaimed purpose of the newspaper in publishing the story.  Her Honour found that there was no proper nexus or relevance between the newspaper publication about Dr Rogers and what was purportedly the purpose of the publication by the newspaper.  Again, we submit, your Honours, that that is a proper matter in aggravation.

On the general question of quantum of damages, we set out at paragraph 102 a number of cases involving professional people, or people of some high profile, and the sort of damages that they were awarded.  One thing that seemed to have operated on the mind of the Court of Appeal was the identification issue, the fact that Dr Rogers was not named.  There are two answers I would like to make to that, your Honours.  The first is, by way of analogy, Dr Nugawela received an award of damages of 300,000 in general damages for an allegation of dishonesty in the presentation of a lecture to a team of doctors, and that that was circulated by the medical authorities to a number of doctors.  It was not given wide circulation in the mass media.

The second aspect of medical practitioner is to be found in Nixon v Slater & Gordon, where there was an award of 200,000 for a pamphlet sent to about 8,000 medical practitioners.  The pamphlet had a photograph of a gowned and masked doctor on the cover, which also had some digital disenhancement.  That went to 8,000 medical practitioners as a pamphlet on malpractice and the doctor successfully sued, said that he was recognised by other recipients of the publication and that it was defamatory of him for imputing that he was a person whose conduct of medicine and operative procedures was marked by malpractice.  They are, as it were, analogous situations, your Honour.

GLEESON CJ:   I suppose surgeons are rather like barristers.  They get most of their work from other medical practitioners.

MR TOBIN:   Yes.  Dr Rogers gives evidence about that, your Honour.

GLEESON CJ:   Was Mr Andrews named, the architect?  For years his was the largest award of damages.

MR TOBIN:   No, I do not think he was named, your Honour, and he got a very heavy award, but there was an element of special damages in Andrews.  Your Honours, putting it bluntly, 75 to 100,000 for an allegation of this kind on the front page of The Mirror is simply out of sympathy with the general trend of damages awards, not just in New South Wales, but throughout the country, and we are at a loss to understand the basis upon which the Court of Appeal found it excessive.  They do not expostulate on the principles.  There was one factual matter, which I think we have answered in the reference we have given your Honours to the Road Transport Authority Case.  I will give your Honours the reference in our written submissions.

HAYNE J:   The basis for the Court of Appeal’s interference was manifest excess, was it not, and only that?

MR TOBIN:   Yes.

HEYDON J:   Incidentally, Mr Andrews was not named in the article, according to Mr Walker’s predecessor on the special leave application.

MR TOBIN:   That was my failing memory of it, your Honour.  Palmer v Road Transport Authority was a very serious paraplegic case.  Total damages of 16 million plus were awarded.  General damages of 420,000 were awarded – that is at paragraph 105.  That case was determined in 2002.  That is a little after the Court of Appeal judgment, and it seems to us that the Court of Appeal, in finding error in the trial judge’s statement that 500,000 was the top of the awards for general damages in personal injuries, the Court of Appeal’s attack on that is really not justified in the light of Palmer v Road Transport Authority.

Your Honours, the last submission I make on damages is this.  The Court has always recognised that vindication is a crucial element in the award of damages, and I think in the analysis that Justice McHugh has given in a number of cases over a number of years the requirement of vindication of a plaintiff may cause the whole of the damages, both hurt to

feeling and injury to reputation, to be lifted.  It does not form, as it were, an independent element in the award of damage, but it modulates or governs the adequacy of the awards of damage for loss of reputation and injury to feeling.

We would submit, your Honours, that an award of $75,000 or $100,000 to a leading surgeon for an allegation of blinding a patient, may I say in the gruesome detail invented by The Daily Telegraph, speaks to a very heavy award for vindication, leaving all else aside.  We would submit, your Honours, that if we are successful on the appeal that your Honours should not in fact interfere with the award by her Honour at first instance, and that the Court of Appeal was in error.  As your Honours please.

GLEESON CJ:   Thank you.  Yes, Mr Walker.

MR WALKER:   May it please the Court.  At the heart of the dispute lies a relation between the published reasons for judgment of Justice Hill, matters which are stated in those reasons for judgment and matters, that is the matter complained of, then published by my client.  There is a relation evident as it happens on the face of the published reasons for judgment of Justice Hill with the past as described by his Honour, and there is obviously a relation with what his Honour stated in what my client published.

In analysing that relation, as we have to do in order to persuade your Honours to our success in this case, in particular under section 24 of the Act, questions of terminology by reason of the ordinary English words used in section 24 become somewhat fraught.  I shall try, for example, to describe my client’s publication as “the article” for reasons that your Honour the Chief Justice has already noted.

Can I come immediately then via a question of terminology to a question of concept at the heart of the difficulty both for our position and also for understanding the application of section 24 for cases such as the present.  Here, of course, I talk about what I have already referred to as Justice Hill’s published reasons for judgment.

Your Honour Justice Hayne has already, with great respect, identified something in the world which is at least real to lawyers of the way in which courts, in particular the court of which Justice Hill is a member, regulates or even constitutes the doing of certain acts in and related to their proceedings.  The particular rule in question permits the familiar course which may well have been permitted otherwise – one need not speculate about that – namely of publishing reasons, that is giving to them the necessary quality of being openly announced or expounded to the world, by delivering – handed down is the colloquialism which is literally correct in most courtrooms – delivering from the Bench to the associates or clerk’s desk, usually nowadays, fortunately, a typescript of reasons for judgment if they are documentary.

GLEESON CJ:   That must be on the understanding that the associate will then make them available in a variety of ways to interested members of the public and the parties.

MR WALKER:   Yes and no.  If one is talking about the intellectual content, then in a sense the associate may then be responsible for that, though one would expect the logistics of most courts would make that quite unnecessary or even inappropriate.

GLEESON CJ:   But this procedure in the rule is just an alternative to actually orally delivering ‑ ‑ ‑

MR WALKER:   To vocalising the reasons for judgment, for speaking the reasons for judgment.

Now, we wish, with respect, to introduce this distinction, which sounds terminological and involves terminology, but is importantly conceptual for understanding the statute as we would urge your Honours to apply it, in order, perhaps, to distinguish – if your Honours will forgive me this language – between the Ur‑text and all other replications of it. 

That is important for this reason, because unvoiced but, it would appear, implicit in the other side’s argument is the notion that what machines can reproduce photographically, or word processors simply remake by their processes, or the Internet replicate on a screen without any paper or printing involved at all, will never be, and cannot be, in law, a protected report of that phase of the proceedings which is the delivery of reasons for judgment, because it omits nothing from what I have called the Ur‑text, that is, in the case of the written reasons for judgment, the document and its literate marks, handed down literally by a judge to associate, under procedures such as are contained and regulated by the rules in this case.

GLEESON CJ:   In section 24, subsection (1) directs us to Schedule 2, clause 2, to find out what a protected report is.  That includes, in paragraph 5, “proceedings in public of a court”.

MR WALKER:   Yes.

GLEESON CJ:   Which were the “proceedings in public of a court” to which the defence of protected report relates in the present case, Rogers v Whitaker or Whitaker v Federal Commissioner of Taxation?

MR WALKER:   Whitaker v Federal Commissioner of Taxation.  Now, metaphor has been used against us of the not quite infinite but numerous regression of dolls within each other – the Russian doll approach.  Well, of course, many reasons for judgment, be they spoken or written of a court, will in fact contain references to – if your Honours will allow me to use this word, ambiguously, at least once – reported cases, including citations which enable you to find one of the tens of thousands prints of particular authorised reports of cases, and may even contain verbatim quotes or often paraphrases.  If a distinguishing case is a part of the reasons for judgment in question, then they will often contain highly summarised versions of fact, which, in the case of most litigation, be it civil or criminal, will often involve one or other of the players, usually a party, being involved in something in the nature of wrongdoing. 

So that, of course, it is in the nature of things that, by a regression which may go by more than one or two stages, one set of reasons for judgment will contain statements which – leaving aside the happy release that death brings to the defamed – will contain statements harmful to the reputation of human beings.  One only has to recall attempts by law lecturers to enliven instruction in undergraduate courses in the law to remember that often the story is told of the people whose case is decided in what for the young students may appear to be impenetrable or merely clinical prose, and often told in a way which involves paraphrase, so as to describe what one can recall as being generically “the rogue”, for example, as having done certain things and having caused innocent parties losses, for example.

So it is in the nature of the talk of law, that is, litigation, and the talk about litigation, that there will be statements, often embedded in this regressive fashion, harmful to the reputation of actual people.  It therefore ought not to be in the nature of a puzzle or a conundrum, nor ought it to be seen as bizarre or unwarranted that within the universe of section 24 – I stress, section 24 – a protected report may comprise from time to time the photographic reprint, the photocopy, that in fact becomes available, informally or formally, after and separately from the transaction or dealing by which the judge publishes his or her reasons for judgment by physically handing over – in the case of written reasons – a document.

HAYNE J:   Was that a submission that seeks to distinguish between the reasons for judgment which I would, for my own part, have thought to be simply the authenticated copy published in court with some copy of it.

MR WALKER:   Yes, it does.

HAYNE J:   To what end?  Where are we going with the submission, Mr Walker?

MR WALKER:   In order to make good that which the Chief Justice has identified, with respect correctly, at least in one respect, as to the nature of our case.

GUMMOW J:   It enables you to get out of subsection (2) and into subsection (3), does it not?

MR WALKER:   Yes, now we are out of that anyhow for reasons I will go to in a moment concerning forensic course, but yes, your Honour, yes, it does.

HAYNE J:   You will tell me later how you do that, yes.

MR WALKER:   Can I try and answer your Honour’s first question and I promise I will come to the next one.  As to the first question by your Honour Justice Hayne, yes, we do seek to distinguish.  May I, however, try to avoid using the word “copy” as your Honour did first.  I am sorry for the awkwardness of the expression “Urtext”.  By that expression I am trying to make it clear I am talking about a definitionally unique, in the case of written reasons, physical object being a document with writing on it.  Now I keep saying in the case of written reasons because in the case of orally delivered judgment then, in our submission, that which is created whether by a reporter for a newspaper, by an interested person waiting to write home, a spectator who wandered in, or a transcription shorthand writer ‑ ‑ ‑

HAYNE J:   Why the last?  Why is not the last part itself of the proceeding?

MR WALKER:   That may depend upon the logistical organisation of the court ‑ ‑ ‑

HAYNE J:   Where it ends on the file.

MR WALKER:   For example, your Honour, it may depend upon the way in which court rules, court statutes, maybe even court organisation in relation to contracting out and the like, deals with the status of a transcription particularly before it has been, as it were, authenticated.

GLEESON CJ:   I would have thought that by publishing his reasons for judgment Justice Hill was not reporting on the proceedings before him, he was bringing the proceedings almost to an end.  I say “almost” because you have to take an order out.

MR WALKER:   Yes.  That, with respect, is where your Honour’s suggestions to my friend as to how we may be putting our case is different from the way in which we do seek to put the case.  We do not say that whether Justice Hill had spoken his reasons or handed them down, physically the written reasons as they were handed down - we do not say that the occasion of the words spoken, obviously they cannot, or for that matter the document actually handed over, that very collection of paper handed over, we do not say that that is a protected report and for the reason your Honour the Chief Justice has identified.  They constitute part of, indeed, the culmination of and an integral part of the proceedings, that is, they are not a report of themselves.  They are, or comprise part of, the event or phenomenon called “proceedings” in the Act which are being reported.  They are therefore being reported only by something subsequent to and extraneous from that actual dealing, transaction, phenomenon or event of which the spoken words or the unique handed‑down copy comprise part.

GLEESON CJ:   Does that mean that neither Justice Hill nor the Federal Court published any report of the proceedings of Rogers v Whitaker?

MR WALKER:   Yes, and there is an error in our written submission in that regard.  On page 3, paragraph 8, in the third last line, the parenthetical phrase here by the Federal Court itself is wrong as a matter of principle and as it happens of fact.

One reason why it is wrong is that the Federal Court ought not to be treated as a person for relevant statutory purposes, which includes section 24 ‑ ‑ ‑

HEYDON J:   So we just draw a line through “here by the Federal Court itself”?

MR WALKER:   No, I was going to actually insert something, “here by persons associated with the Federal Court”.

HAYNE J:   What do you mean by that?

MR WALKER:   I mean functionaries, I do not mean the associate.  I mean whoever it was, and I will go 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.

GLEESON CJ:   They only did that as agents of the Federal Court.

MR WALKER:   I do not think that there is a principal and agency analysis necessary, your Honour.  It is part of their duty or their function to supply according to requests on the ordinary stipulated terms ‑ ‑ ‑

GLEESON CJ:   If you go back to the rule which is, we have agreed, intended to replace the obligation on a judge to state orally the reasons ‑ ‑ ‑

MR WALKER:   Yes, or to be there.

GLEESON CJ:   Yes.  You publish the reasons by delivering them to an associate.  That has to be on the assumption, has it not, that the associate is going to pass them on to at least the people who are sitting in court awaiting to hear what the judge has done?

MR WALKER:   Yes.

HAYNE J:   Or is it consistent with at least the file of the court being open for search?

MR WALKER:   Yes.

HAYNE J:   And leaving it to the parties, or other third parties who are interested, searching. Now, the ordinary practice of I think every court in this country is, is it not, that a copy of written reasons for judgment is made available to the parties by court staff at or as soon after delivery of judgment as may be.

MR WALKER:   Yes, with exceptions that do not need to be remarked, yes.

HAYNE J:   That is why people line up at 10.16 in the Melbourne Registry of the Court, Mr Walker.

MR WALKER:   That is right.  In Sydney there is a procession, like a crocodile.

GLEESON CJ:   Does that mean that it is your argument that that activity just described by Justice Hayne constitutes a publication of a protected report?

MR WALKER:   As to everything but the copy that goes into the file, yes.  Your Honour earlier asked me about the expectation that the associate or proper officer, for example in Order 35 rule 2 of the Federal Court Rules, would pass on those reasons.  The answer is no, not that document - that is kept - but handing out what happens under our present technical system to be photographic reprints on paper, yes.  Although, in answer to Justice Hayne, for all I know - I regret I cannot answer your question accurately - there may now be courts sufficiently electronic to eschew any paper copies and simply say, “It’s now available.  This is the media neutral citation and available on the Internet forthwith so that no paper is available at the court”.  That would be equally, in our submission, the publication of a protected report.

GLEESON CJ:   Those Internet publishers get them from the court.

MR WALKER:   Yes.

GLEESON CJ:   They go to in Sydney.

MR WALKER:   Yes, and the court’s functionary - I am trying to distinguish between member of the court in the sense of judicial officer and the public servant, perhaps the contractor who is responsible under whatever logistical arrangements exist, administrative arrangements exist, for actually physically delivering paper if copies are involved or for doing those things which are required for electronic dissemination.

GLEESON CJ:   I have no difficulty with the concept that when puts them on the Internet it is publishing a report of proceedings.

MR WALKER:   Yes.

GLEESON CJ:   Like the Law Book Company.

MR WALKER:   Notwithstanding, with respect, that certain electronic publishers - I do not want to be offensive to them - add no value textually, that is there are no headnotes, catchwords ‑ ‑ ‑

GLEESON CJ:   And some of them put down the bottom that copyright belongs to them.

MR WALKER:   And indexed by letters of the alphabet that are positively misleading, yes.

GLEESON CJ:   But I do not have difficulty with the proposition that the communication from the court to constitutes the publication of a report of court proceedings.

MR WALKER:   Your Honour, it is difficult to identify tangibly in the case of purely electronic dissemination the precise point at which the thing passes, but one thing is clear:  the dealing, which may in certain circumstances be overtly commercial – it may in other circumstances simply be a social intellectual exercise – the dealing by which the reasons for judgment delivered, say, at 10.16 am, at 10.22 are disseminated to for example, that dealing is not part of the proceedings, at least not as court statutes and rules are presently framed and certainly not so far as ordinary understanding of court proceedings are concerned, just as it is not part of court proceedings, as Justice Hayne was inquiring, for people either after the event to queue up at the counter to get reasons for judgment or immediately after the event to follow by whatever process is required in order to get your copy of the half a dozen or so in court.  They are not part of the proceedings.  They follow the proceedings.  They in fact happen because the proceedings have ended relevantly.

GUMMOW J:   Is judicial power spent at that stage?

MR WALKER:   Yes.  That is not judicial power; that is administrative, executive power ancillary to ‑ ‑ ‑

GUMMOW J:   There is opinion that ancillary administrative activities…..judicial power.

MR WALKER:   Yes, ancillary to the exercise of the judicial power.

GUMMOW J:   And that is part of judicial power has within it certain ancillary administrative activities.

MR WALKER:   Yes, but I am seeking to distinguish between ‑ ‑ ‑

GUMMOW J:   Davidson’s Case makes that as plain as a pikestaff.

MR WALKER:   Your Honour, I am seeking to distinguish between the administrative ‑ ‑ ‑

GUMMOW J:   You want to truncate it at some earlier stage.

MR WALKER:   Yes, I want to truncate proceedings.

GUMMOW J:   I know you want to.

HAYNE J:   And the maintenance of the court file, you say?

MR WALKER:   Is not in itself part of the proceedings.  That is, what happens 50 years after a case has finished, everyone is dead and gone, nobody cares about it any more, what happens to that file when a legal scholar, historian, has it retrieved from archives is clearly within the administrative penumbra of the judicial power.  It is part of a court particularly of record maintaining its records.

HAYNE J:   And the scholar pays the fee to search and pays the fee for a copy of the reasons for judgment of XJ published in 1920.

MR WALKER:   Nothing done by the prothonotary, the registrar, the chief clerk or the counter clerk to oblige that scholar and to bring to light those long‑forgotten reasons, nothing would be part of the proceedings which for present purposes culminated in, had their final phase in, the last judgment being delivered.

GLEESON CJ:   So your argument is that the officer of the Federal Court who handed a copy of Justice Hill’s reasons for judgment to Ms Toy was publishing a protected report of the proceedings in Whitaker v Federal Commissioner of Taxation.

MR WALKER:   Yes, and we would seek to persuade your Honours the bizarreness, if that is the right expression, for the immediate impression of such an argument comes about, we submit, because it happens that this is the fairest of all possible protected reports.  It is a simulacrum of the document which happens to be in the case of written reasons for judgment the final phase of the proceedings itself.  There is nothing in the Act, nor would there be anything in the purpose the Act serves ‑ ‑ ‑

GUMMOW J:   I am not sure about that.  What is the mischief that 24(3) was introduced to meet?  Do we not have to look at paragraph 127 of the Law Reform Commission’s report?

MR WALKER:   Yes, we do.

GUMMOW J:   It is not talking about this sort of precise activity.

MR WALKER:   Yes, subsection (3) both for mischief and, with respect, the apparently intended method of dealing with it.  There is more than one way of dealing with the mischief identified in subsection (3) is at the heart of our case.  May I say for present purposes nothing has been identified in the Act or in the mischief, apparently recognised by those who advised on the preparation of the Bill, nor in what might be called the general policy which puts the openness and privilege attaching to judicial proceedings in tension with an interest an individual reputation.  Nothing would suggest that the concept of protected report in this statute is to be withdrawn in its application from a report which omits or changes nothing from that phase of the proceedings which is being reported. 

HAYNE J:   No, I am probably going to divert you from your argument, Mr Walker, but does the counter clerk who on payment of the fee makes the file available for the report of the search, who being a Luddite reporter says, “No, thank you, I do not want the zerox copy; I will copy it laboriously word for word”, is there then a protected report by the counter clerk?

MR WALKER:   No, it is by the Luddite.

GLEESON CJ:   Your argument is that the “person” referred to in line 1 of section 24(3) in the present case was whoever it was in the Federal Court who gave a copy of these reasons for judgment to Ms Toy?

MR WALKER:   Yes, and that is why I needed to correct and I apologise for the error in paragraph 8 of our written submissions.

GUMMOW J:   It is the net result of this that a report which does not fall within subsection 2 because its fairness is impeached by lack of accuracy nevertheless can be propped up under subsection (3).  Is that not ‑ ‑ ‑

MR WALKER:   To an extent, yes, and on terms ‑ ‑ ‑

GUMMOW J:   Why would one do that?

MR WALKER:   Why would Parliament do that, your Honour?

GUMMOW J:   Yes, having regard to what they thought they were doing, having regard to paragraph 127 of Professor Morrison’s report.

MR WALKER:   Yes.  The best answer we can attempt for the hypothetical purpose of the hypothetical single mentality in question would be that subsection (3) was intended to be a contribution to the fostering of what might be called, somewhat ironically, but nonetheless was called informed public debate on certain kinds of issues and that there were to be particular statuses accorded to things called reports, which need not be written, of course, in section 24, which would have them available as what was called the source of material which would provide the basis for the so‑called informed debate, and the purpose of subsection (3) in that broad context would appear to be to allow the debate, which would no doubt be a matter normally both current and topical, to proceed without the reinvention of the wheel involved, in not being able to proceed on the basis that the source was correct.  And the trade-off, as it were, was that there had to be a certain state of mind, or an absence of a specified state of mind, in the person or persons claiming the advantage of that which might be called derivative or subsequent defence of further report in subsection (3).

The relation of that with subsection (4) is that the same fostering of supposedly informed debate should be allowed to continue without the risk that when, unbeknownst to the people in good faith participating in such a debate, the source material to provide the basis of such discussion, was not what it appeared or purported to be - again, the trade-off being the absence of a certain state of mind and all covered by section 26 which, subject to onus of course, requires another state of mind to be true as well.

GLEESON CJ:   Why is section 24(2) unavailable to your client?

MR WALKER:   Because – I should be careful in what I concede by the preface to that – it is a pure speculation and regret for the past for me to observe, and I will not dwell on it, that maybe it was available and it was not pleaded.  Section 24(3) was the issue and ‑ ‑ ‑

GUMMOW J:   But some view seems to have been taken at some earlier stage which may have been what, not necessarily being your present view?

MR WALKER:   I do not know, your Honour.

HEYDON J:   It is very funny though, Mr Walker, that the judge, Judge Tupman said, at page 602, that the defendant relied on section 24(2) and then at the top of page 603 she said that:

the Defendant relies on the defences arising in both Section 24(3) and Section 24(4) of the Act.

And then she seemed to go on to deal with (3) and (4), but never came back to (2), yet it does seem to be the case that (2) was not pleaded.

MR WALKER:   That is right.  As to your last proposition, there is ‑ ‑ ‑

HEYDON J:   The Court of Appeal seems to have jumbled up the two.

MR WALKER:   There seems to be no qualification necessary.  It was not pleaded.  What your Honour observes – no doubt it is, with respect, odd.  I have no explanation.  It does not affect, we would respectfully submit, the present position so far as our argument is concerned – what Judge Tupman said, however, what the Court of Appeal said obviously does.  Perhaps if I could grasp that nettle immediately, and try to deal with both what your Honour Justice Heydon has raised plus what the Chief Justice raised at the beginning of my learned friend’s submission.

Your Honour the Chief Justice raised the possibility this morning that section 24(3) does not appear to have been the subject of decision by the Court of Appeal in such a way as to suggest it was not the subject of argument.  My instructions, which I would ask your Honours to take as provisional at the moment until checked again, is that for the reasons I am about to put it is clear beyond any doubt that section 24(3) was argued in the Court of Appeal.

Now, my learned friend has already gone to some of the material relevant to that proposition.  The first, of course, is in the learned President’s reasons at paragraph 7, which can be found in volume 3 of the appeal book at 644.  The language is not the language recording either a submission or a pleading, but it is language which would be odd to use were, by dint of a lack of submission or a lack of a pleading, the issues under section 24(3) unavailable.

HEYDON J:   I am sorry to interrupt.  The notice of appeal to the Court of Appeal was on page 625 and the first group of grounds concerns “Fair Protected Report”.  Those grounds – I could be wrong in saying this – do not seem to mesh into subsection (3) or mesh into the way the argument has been taking place here.

MR WALKER:   On the other hand, ground 2 uses the expression “summary”, which, whatever else it may convey, is spot on for subsection (3) or, if it mattered, subsection (4) – and to use one of the words, of course, of the pleading.

HEYDON J:   Yes.  In the way the Court of Appeal talk, it is as though they were using “Fair Protected Report” as a shorthand for the subsection (3) defence.

MR WALKER:   Yes.  In fact, I would ask your Honours to exercise that reading charity that there is an ellipsis, perhaps a synopsis, used from time to time whereby the defence of protected report is used compendiously, and not severally, to describe the distinct defences appearing in subsection (2), subsection (3) and subsection (4).  Now, perhaps that is readily understandable and entirely forgivable, bearing in mind the heading of Division 5, which is:

Protected Reports etc –

It would be a little harsh, perhaps, to treat the warning in “etc” as a warning against using that expression.

GLEESON CJ:   It is the non‑reliance, for whatever reason, on section 24(2) at this stage that propels us into this argument that takes as its first step that the publisher of the protected report was some unfortunate clerk in the office of the Federal Court.

MR WALKER:   Yes, it is.

GLEESON CJ:   And we go from there.

MR WALKER:   Yes.  Equally, of course, something can be said of the same kind about section 25, with which I have to deal as well because of the way in which my friend has raised that and what might be paraphrased from his argument as the prohibition of overlap.

GLEESON CJ:   Mr Walker, for the benefit of the people in the next case, can I ask how long you expect to be in your argument?

MR WALKER:   I do not think I could finish in less than an hour but I would hope to finish in less than an hour and a half, your Honour?

GLEESON CJ:   What about you in reply?

MR TOBIN:   I think half an hour, your Honour.

GLEESON CJ:   We will sit until 4.30, we will resume at 10.00, and we will say that the next case will be taken not before 11.15.

MR WALKER:   May it please the Court.  Could I then ask your Honours to go back to the devil’s number, 666, where my friend took you.

HAYNE J:   Just before you do that, is the only part of your written submission which deals with the premise for this argument that which is found in paragraph 8?

MR WALKER:   Paragraph 8, yes.

HAYNE J:   Yes, thank you.

MR WALKER:   And one finds that premise maintained spelt out in the fifth line of paragraph 13.

HAYNE J:   Yes, thank you.

MR WALKER:   Where, on reflection, the expression “the document recording” needs to be read as “the one provided to Ms Toy” because that is the one she was summarising. 

Your Honours, at the foot of 666 in the appeal book, paragraph 88, Justice Stein for the majority below notes that section 24(2) provides a defence, et cetera, and then says of subsections (3) and (4) that they provide as he then sets out verbatim.  In paragraph 90, reference to section 26 continues the indifferent treatment of the three possibilities under section 24 because section 26 applies to all of 24.

GUMMOW J:   I am sorry to take you off your course, but what has been said about 24(2) and for whatever reason its unavailability seems to cast a real cloud over any prospect of relying on Lange as being addressed to 24(3) in this case, even allowing for the fact that Lange itself would be a newcomer.  Perhaps you can think about that overnight.

MR WALKER:   Yes, but may I say I need to expose in my answer that a difference between the parties is whether or not under subsection (3) and subsection (4) the publications to which the defences may be raised must be, that is must only be, publications which are not fair within the meaning of subsection (2).  I am sorry to use shorthand about fair publication.  I mean publications of or deriving from a protected report which was not fair, as that word is used in subsection (2).

We, as shown in our written submission, dispute that and the Law Reform Commission explanation strongly supports the proposition for which we contend, namely, that subsections (3) and (4) apply expansively, as was intended by those who suggested provisions in these terms, so as to provide a defence notwithstanding or even if the protected report published or providing the source of the publication covered by subsections (3) and (4) was not itself fair.

GLEESON CJ:   Subsection (3) was drafted by an author of legal textbooks.  I can ‑ ‑ ‑

MR WALKER:   I have no criticisms to adopt, your Honours, at the stage where the slate it still blank, at least as to its authoritative interpretation.

Your Honours, it is for those reasons that, in answer to your Honour Justice Gummow, if it were the case that everything which could ever be covered by subsections (3) and (4) was definitionally unfair in a subsection (2) sense, then, with great respect, what your Honour says must be right.  It would be a very heavy fire indeed that we would endure to run Lange in 24(3) so understood.  But, in our submission, 24(3) and (4) are not confined to those matters which did happen to be unfair.  It embraces the possibility of them being unfair, without requiring that they be so.

GUMMOW J:   No.  If, as you say, you might have had the case under 24(2), why on earth should we get entangled in Lange, as a matter of leave?  I am talking about inconvenient vehicle.

MR WALKER:   As to the leave question, I would have nothing to say to that proposition.  Lange, however, comes into an argument as to the proper understanding and application of section 22, that is not Lange as a discrete common law defence of constitutional provenance, but Lange as reasoning in this Court involving the proposition that statutory provisions such as 22 require to be read so as to be congruent rather than incongruent with the Constitution.

GLEESON CJ:   So you are not seeking to raise in this Court a point that was not ‑ ‑ ‑

MR WALKER:   Not on the section 22 argument, but, yes, we have sought to raise – perhaps given the hour of the day and its very discrete nature, if your Honours will forgive me I will just deal with that now without arguing the substance of it.

GLEESON CJ:   Say whatever you want to say about it right now.

MR WALKER:   As to why leave ought to be given to raise that which does not appear explicitly – which I concede means was not pleaded in the defence and which the Court of Appeal held could not, fairly in that court, be raised, that is, a freestanding, separate, substantive defence called the Lange defence.

GUMMOW J:   Well, it is not that, we have tried to explain.

MR WALKER:   I am using shorthand, your Honour.

GUMMOW J:   Yes, why?

MR WALKER:   That is a substantive answer ‑ ‑ ‑

GUMMOW J:   We went through all this in Roberts v Bass.  It is a great strain to one’s nervous patience.

MR WALKER:   A substantive answer, your Honour, that does not involve pleading section 22, a substantive answer that does not involve pleading section 24.  That is what I am trying to isolate.  The one and only reason why your Honours should entertain the argument, which is set out in writing in our written submission on that point, is that if it be correct that there is such a defence – and we submit without wishing to elaborate it – that is clear on authority.  It is a matter which is of considerable public importance, that is, not confined simply to the disputes of two private parties as are before you, and this case would provide a vehicle bearing in mind the factual matter ventilated.

Now, that brings me, of course, to the Suttor v Gundowda objection which is, frankly, the best reason why your Honours should not grant leave on this point, and it is held against us in the Court of Appeal that there was, in effect, a Suttor v Gundowda point.

However, no particulars are given in the reasons as to what the Suttor v Gundowda point really is.  What is it about the reasonableness, which was ventilated for section 22 purposes, which was different or could conceivably have been different from the analogous element of argument in the defence which we sought to raise in that court and seek to raise in this Court?  Bearing in mind that it is the same matter complained of, bearing in mind that the public nature of the issues discussed in the article are the same and have the same quality as a matter of politics and constitutionality, that is, how should tax be levied, how should the tax law operate in the case of persons who have received compensation for civil wrongs committed against them. 

In our submission there cannot be seen any conceivable reason, even allowing for the speculation permitted in Suttor v Gundowda reasoning, as to how the case below could have been run differently had the matter been pleaded at trial.

Now, it may be put against us that if something under the banner of Lange had raised its head separately in the pleading below, then there could have been cross‑examination on what might be called reasonableness in relation to political issues, to which our answer is as to the characterisation of the subject matter so as to fit within any such defence that is not susceptible of evidence.  That is a matter for judicial adjudication by reference to the material which was not contestable.

Second, as to reasonableness, in light of the nature of the political issue - and here one picks up the concepts well and truly explored by the trial judge and the Court of Appeal of so‑called sensationalist or extremist publication - in our submission, one, that has clearly already been fully ventilated and, two, it is difficult to see how any cross‑examination would have added to the notion of reasonableness or otherwise for the purposes of a Lange defence.

If, and only if, we can overcome that Suttor v Gundowda obstacle, then, in our submission, with the imperfect parallels between section 22 and the defence which we would seek leave to raise in this Court, for the reasons we have put in writing, which do not need separate elaboration, then that defence as well was made out.  The shortest description of the subject matter of the matter complained of, that is the parts of the article said to convey the imputation in question, was the incidence of taxation, supposedly on income, for something which plainly was calculated according to the writer, to excite human sympathy by reason of the social assessment that those who have been wronged by conduct that the law regards as unlawful civilly, that is negligence, should be compensated for that wrong.

HAYNE J:   Can I just ask you something about the nature of the present application you are making.  Is it not in truth to appeal from the discretionary decision of the Court of Appeal to refuse you leave?

MR WALKER:   Yes, it is.

HAYNE J:   Why should we embark on that?  Why is the error so plain that we should get into it?

MR WALKER:   Because no reasons are given for what it is in the Suttor v Gundowda nature that prevented the matter from being decided in the Court of Appeal, and that is my only answer to your Honour, namely, that no reason appearing except the conclusory assertion that the case may have been run differently below – upon scrutiny, that appearing to lack substance, then in House v The King terms something must have gone wrong for that result to have ensued.  Alternatively, a failure to take into account the relevant consideration of being able to put some flesh on the speculative bone of how the case may have been run differently, had the point been raised at the appropriate time.

GLEESON CJ:   Leave is refused.

MR WALKER:   May it please your Honours.

GLEESON CJ:   Is that a convenient time?

MR WALKER:   Yes, it is.

MR TOBIN:   Your Honour, could I hand up a summary of evidence from the appeal books?  It touches on the question of damages.  There are about two or three hundred pages of reports, newspapers reports, law reviews, et cetera, and they go to the question of identification of Dr Rogers widely in the legal and medical communities as well as public.  Thank you, your Honour, I will give you a copy.

GLEESON CJ:   We will adjourn until 10.00 am tomorrow, the next case not before 11.15.

AT 4.30 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 1 MAY 2003