Snedden v Nationwide News Pty Ltd

[2012] HCATrans 61

[2012] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S330 of 2011

B e t w e e n -

DANIEL SNEDDEN

Applicant

and

NATIONWIDE NEWS PTY LTD

Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MARCH 2012, AT 2.42 PM

Copyright in the High Court of Australia

MR K.P. SMARK, SC:   May it please the Court, I appear for the applicant with my learned friends, MR C.A. EVATT and MR R.K.M. RASMUSSEN.  (instructed by DC Legal Pty Ltd)

MR T.D. BLACKBURN, SC:   May it please the Court, I appear with my learned friend, MR J.O. HMELNITSKY, for the respondent.  (instructed by Ashurst Australia)

GUMMOW J:   Yes, Mr Smark.  Now, you are going to put us on the right pinhead?

MR SMARK:   That is right.  Paragraph 48 of the judgment of Justice McClellan which appears in the application book at page 58 is where the dancing is.  Your Honours, paragraph 48 commencing at line 22 is where the Court of Appeal grapples with substantially what is said to be the common law defence of justification amongst the various labels that it has given.  This case, we say, raises a question of the scope of what might more properly be called the Hore-Lacy extension of that doctrine. 

BELL J:   Can I just raise one question at this point as to the landscape of litigation of this character now under the uniform defamation legislation, because it seemed to me that there are particular difficulties confronting an action such as this where you have the 1974 Act, the 7A trial with the imputations set in cement by the jury, and then a pleading in other jurisdictions including where the common law applies and the very basis of Hore‑Lacy depends, does it not, on an idea that the Tribunal determining the imputation might find a lesser nuanced variation of the imputation particularised in the pleading.

MR SMARK:   That is our contention.

BELL J:   Now, how in light of the defamation legislation uniform throughout Australia does this matter present itself as a suitable one for special leave?

MR SMARK:   Yes.  It is no good to us to have your Honours think there might be a point if it is not of public importance.  It presents itself in this way.  A great part of the defamation litigation in Australia occurs in Sydney or in New South Wales, more precisely.  That may be good or bad.  In New South Wales ‑ ‑ ‑

GUMMOW J:   But having said that, it often concerns nationwide publication.

MR SMARK:   Absolutely.  This case is a good example.  Mr Snedden was in fact relevantly a resident of Perth and to the extent he had other connections in Australia it was in Victoria where he worked for some years, yet he chose to commence in New South Wales.  Starting in New South Wales, he was faced with the common law, uniform of course throughout Australia, applying as the law of the forum and as the lex loci delicti in each of the various States. 

Since at least 1974 – Mr Evatt would know if it goes further back than that, but I do not – it has been the settled practice of New South Wales judges, including since the 2005 Act has come in, when sitting with a jury to have the jury give their verdict by way of answers to questions framed in terms of imputations or particulars of defamatory meaning in this form.  Has the plaintiff established on the balance of probabilities that the following meanings or imputations or ones not differing in substance from them are conveyed:  A, B, C, yes, no.  Then are they defamatory:  A, B, C, yes, no.

So that practice remains as part of the procedural background by which defamation trials, at least in New South Wales, are carried out.  If I may say from personal observation, the same is true in the ACT.  It is clearly not the case in some other States.  That is not, of course, a manifestation of a difference in the common law.  That cannot occur.  It is an illustration of the way the courts simply have found it convenient to approach these matters even under a uniform Act.

That being so, the outcome of this case remains of, we would say, critical importance under the 2005 Act because juries will answer questions by reference to the particular meanings, imputations if one likes, which plaintiffs have pleaded.  If a plaintiff wishes to advance a different meaning, however it is called, then it will be incumbent on a plaintiff in this State to apply to amend.  It may be that that application, even if made on the day of the trial, will be granted.

But it is not the case that it is open to counsel for the plaintiff to cheerfully submit in closing address to the jury, “Well, do not worry if you do not find the imputation that the plaintiff is a thief.  Feel free to find a meaning like the plaintiff is a scoundrel” and one could correspond the imputations, but that being said, we say this is in fact far from being an inappropriate vehicle, an ideal vehicle.  Because of the section 7A process, it raises in crystalline form the fact that in this case it was beyond the power of anyone, relevantly the tribunal of fact, the trial judge, to revisit the question of the plaintiff’s imputations so that there was no latitude in the plaintiff to seek to put some other meaning.

BELL J:   Now, in this case, you had a number of contextual imputations pleaded in relation to the New South Wales ‑ ‑ ‑

MR SMARK:   Ten.

BELL J:   Yes.  But now, to the extent the publication was also relied on in other States, including in Victoria, at the time you would say well, contextual truth was not available as a basis for defending in Victoria.

MR SMARK:   Yes.

BELL J:   Yes.  Now, of course, it is.  So I suppose the whole question of the significance of the Hore-Lacy defence might well assume different propositions given under the uniform legislation contextual truth may be pleaded. 

MR SMARK:   Yes.

BELL J:   One would expect the practice will develop in those jurisdictions which have not had that ‑ ‑ ‑

MR SMARK:   Well, if I can – it is easy to be disrespectful to jurisdictions other than one’s own, and one can simply say from the reported cases that Victorians seem to be developing no enthusiasm, nor to the West Australians, for the sort of precision which is taken as a given in New South Wales and which would appear to be taken as a given in the ACT and to some extent in Queensland. 

It seems that those who come to charge juries in other jurisdictions do so on the basis, consistently with authority, let it be said – that is, authority on procedural matters which is no authority at all – that it is open to the jury to find some meaning different from the plaintiff’s meaning as pleaded.  Now, this Court, in a sense, dealt with all this.  Let me say this against myself.  In one sense it has been dealt with in a detailed way in Chakravarti.  In the various judgments in Chakravarti, there is to be found in a sense an answer to all these problems, but differently expressed ‑ ‑ ‑

GUMMOW J:   Chakravarti came from which State?

MR SMARK:   Queensland.

GUMMOW J:   Yes.

MR SMARK:   South Australia - sorry, I am thinking of Favell, yes, South Australia.  In that case the Chief Justice, Chief Justice Brennan, and Justice McHugh, in a joint judgment, referred to the practice in question as being an argumentative form of a “not guilty” plea, deprecating it.  In a sense your Honour made the same pleading point, your Honour Justice Gummow, in a case called Bashford, pointing to the qualified privilege plea like justification operated in confession of avoidance. 

When a defendant puts forward a different imputation there is no confession.  Something else is happening.  Justice McClellan said in his judgment in the Court of Appeal that the justification defence operated by way of a defendant raising a different pleading – I just do not have that quote to hand – but what his Honour appears to be meaning is – yes, it is paragraph 150 at page 86, about line 32.  His Honour said:

The defence of justification involves a defendant pleading and justifying an alternative meaning to the defamatory imputation pleaded by the plaintiff.

I may be unfairly taking that out of context, but on its face, that is just wrong.  Justification is just a fancy name for truth.  They have always been the same.  It has particularly been used in New South Wales, where you used to have a public interest component as well.  But it is wrong.  His Honour then noted the passage I have referred to in part at paragraph 151 from Chakravarti and his Honour, despite this, seemed to feel constrained to nevertheless permit ‑ ‑ ‑

BELL J:   What his Honour did, consistent with the approach that Justice Simpson, for example, took in Fawcett was to recognise that the so‑called Polly Peck pleading was not open but that there is a variant, the Hore-Lacy pleading, and to allow that.  Now, that is the issue that you seek to ventilate, the utility of which, in terms of this vehicle, in circumstances where there is now a uniform scheme which at least admits in jurisdictions that did not previously have a defence of contextual truth that is now available, one might just wonder about the utility of this vehicle to visit these issues, exquisite though they are, Mr Smark.

MR SMARK:   Yes, but there is a sharp distinction between contextual truth and this nuance business, and that is this elusive question of when an imputation differs in substance from another, which ‑ ‑ ‑

BELL J:   Speaking of elusive distinctions, there is a point taken against you, just in terms again of the suitability of this vehicle, at paragraph 18, page 111 of the application book.  I will not read out the contents of the paragraph, but a question of the utility ‑ ‑ ‑

MR SMARK:   Yes.  May I address that now?  Imputation 1 was an imputation that the plaintiff was a death squad commander.  Imputation 17 was an imputation that the plaintiff committed war crimes and between 1 and 17 were a number of other imputations which were undoubtedly of a grave character and which undoubtedly impeached the plaintiff and would undoubtedly greatly impact upon his claim for damages.  Let all that be said.

The allegation that the plaintiff was a death squad commander, however, was particularly strong.  The terms came from the article.  It was in the headline of the article.  It should have found its way in the application book, but it is here if your Honours need to see it.  But in any event, they were the defendant’s own words.  The headline was “Serbian Death Squad Commander Alive” - that was the banner headline across the front of The Australian. 

A death squad – and we are not responsible for the imprecision in the term, it is the defendant’s own term – was presumably a military unit responsible for unlawful killings, and that was its raison d’être.  It was not just a military unit that killed people along the way.  That was why it existed, and he was the leader of it.  It was akin to likening it to a Waffen SS figure, or leader.

Now, the seriousness of that is so great two things arise.  First, when one considers difference in substance, and I will come to that in a moment, but to address your Honour’s question and to rebut the allegation that these proceedings are useless because my client has no reputation, in substance, to say that he raped a woman and there has been a finding of that is obviously a matter highly destructive of his reputation ‑ ‑ ‑

BELL J:   As has the admission by him to having committed a massacre.

MR SMARK:   Imputation 4 was not an imputation and a finding that he had committed a massacre.  It was an imputation that he admitted doing it.  That was in fact the substratum upon which the truth of imputation 1 was found to be based.  It came from the article in substance.  He said to the journalist:

When the [Croatian] side uses hospitals or police stations in their villages as fortified positions, I’m sorry, I just have to massacre them.”

Perhaps not surprisingly, but it was contested, that was found to be an admission ‑ ‑ ‑

GUMMOW J:   Well, that would be a war crime, would it not?

MR SMARK:   Yes, and one is faced with the truth of the imputation that he committed war crimes.  But that does not make him a death squad commander.  In the key part of Justice McClellan’s judgment, that is paragraph 48, his Honour equated the truth of imputation 17 with the truth of imputation 1.  In doing so, he illustrated what we say is the fallaciousness of this doctrine because it involves erecting a false issue.  It says here are some facts.  Rather than direct them, as the common law requires, to deciding whether the plaintiff’s meaning is true or not true – substantially, let it be said, as Howden requires – rather, let the defendant erect some other position – in this case the plaintiff has committed war crimes – and then let us test that intermediate position against the plaintiff’s imputation. 

What a very long way around, and particularly is that the case when one will have the contextual truth defence in all jurisdictions, one would say why would one need to permit a defendant to do this any more and yet they will.  Why will they ‑ ‑ ‑

BELL J:   Well, perhaps in a case where they do, in the context of the uniform legislation an issue might be ripe to consider that.

MR SMARK:   I appreciate what your Honour is saying, with great respect, but we say this case is actually a case that is suitable because imputations 7 to 16 were found to be imputations that differed in substance from the plaintiff’s imputation.  They had to be to qualify as contextual imputations, and so the operation of the defences is directly thrown up.  When it comes to the common law States, we say that States that mattered were Western Australia and Victoria, because of his reputation. 

The further assault upon him that he was a death squad commander still left room for damage to his reputation, notwithstanding the terrible findings against him, let it be said, and that is because one’s reputation is not uniform.  It has its facets.  We are not talking here in the gross sense of a sector of reputation, simply that when one makes an allegation as serious as “death squad commander”, one does not justify it, even though one may mitigate the harm it causes, by pointing to an admission about committing a massacre.  For example, it is not an admission that he was commanding a unit of a particular character that committed a massacre.  Nor is it an admission that he had the character and the imputation.

For those reasons, we say that first, the Court of Appeal and her Honour applied a doctrine that is wrong because it raises a false issue.  Secondly, we say that the application of the doctrine, as revealed in paragraph 48, was wrong because if one is to compare imputations 1 and 17, they do indeed differ in substance.  Finally, we say in terms of utility, there is still a question which we would not be asking the High Court of course to determine, but one which would be remitted, as to how far damages should be awarded to a man whose reputation has undoubtedly

suffered by reason of the strong findings against it, but has not been rendered, as it were, incapable of further assault.

If I could deal very briefly with the other matter which would not warrant a grant of special leave by itself, that is the procedural difficulty with the amendment to imputation 1, the relevant portion of the Court of Appeal’s judgment is in the next most paragraph, that is in paragraph 49 found at the bottom of page 58.  The point here is a short one, and it is intimately connected with the special leave point.  That is why we have been brave enough to put it forward. 

It is this, that the application to amend, having been raised in the Court of Appeal, there being apparently some confusion as to its fate at trial – it was neither fair, nor appropriate, for the Court of Appeal to take the course it did which was to allow the amendment in its judgment, apparently on the basis, as far as one can follow the reasoning, with respect, that the admission essentially in terms of imputation 4 was sufficient to justify imputation 1 and, although his Honour does not quite say this, was apparently therefore not capable of further argument.

We say one only has to consider what the elements of being a death squad commander are, that is, the leader of a unit whose raison d’être is the killing of people in a particular way, to see that the admission of having committed a massacre simply did not do the job and indeed her Honour the trial judge, with respect, put it correctly when she said in finding the imputations true, that proof of that matter – this is on page 26 - I will just conclude with this, at line 38:

The substantial truth of imputation 4 . . . goes a considerable way towards proof of imputation 1 –

A considerable way is not proof of the substantial truth, and for those reasons, we would seek special leave.

GUMMOW J:   What was the proposed ground of appeal you were last referring to, Mr Smark?

MR SMARK:   The proposed ground of appeal is it is the grant in respect of the Court of Appeal allowing ‑ ‑ ‑

GUMMOW J:   Whereabouts do we see it?

MR SMARK:   In the draft notice of appeal.  It would appear at 1(c) and 1(d).

GUMMOW J:   Yes.  We will take a short adjournment before we consider the course we take.

AT 3.04 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.07 PM:

GUMMOW J:   We do not need to call on you, Mr Blackburn.

Notwithstanding what has been put by counsel for the applicant, we are not satisfied that an appeal would present a question of public importance which may be expected to arise under the 2005 uniform legislation, because on that ground there is a question of public importance arising on this application.  Nor, given what is submitted by the respondent in paragraph 18 of its written submissions, is this an appropriate vehicle for a grant of special leave.  The remaining grounds upon which the applicant relies would not by themselves attract a grant of special leave.  Special leave is refused with costs.

AT 3.08 PM THE MATTER WAS CONCLUDED