Sutton v Jones

[2005] HCATrans 966

[2005] HCATrans 966

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S509 of 2004

B e t w e e n -

RUTH SUTTON

Applicant

and

DARREN JONES

Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2005, AT 12.22 PM

Copyright in the High Court of Australia

MR B.R. McCLINTOCK, SC:    May it please the Court, I appear with my learned friends, MR R.K. WEAVER and MR A.T.S. DAWSON, for the applicant.  (instructed by McMahons National Lawyers)

MR T.E.F. HUGHES, QC:   May it please your Honours, I appear with my learned friend, MR A. LEOPOLD, for the respondent to this application, the plaintiff below. (instructed by Allens Arthur Robinson)

HEYDON J:   Yes, Mr McClintock.

MR McCLINTOCK:    Your Honours, this was a case involving a couple of sentences spoken by my client on two occasions.  The total number of people who heard those sentences was four.  One of the people who heard them on the first occasion repeated them to a fifth person.  So the respondent was defamed, as the jury found, to five people. 

On any view of the matter, it was a small case or a small defamation – the very kind of situation, in my submission, for which section 13 exists in the defamation law.  That section has been in the New South Wales legislation since, I think, 1847, when it was enacted along with the abolition of the distinction between libel and slander in New South Wales, and it was there to prevent trivial actions in defamation being brought, in effect, as part of the price for doing away with the requirement of special damages in slander cases.

Your Honours, it is a significant section in the New South Wales legislation.  It is repeated, in effect verbatim, in the draft legislation or the Bill that has now in fact passed, I understand, the New South Wales Parliament and comes into force on 1 January next year.  It is one of those sections as to which there is not, one has to say, over the last 160‑odd years a great deal of authority, but that does not detract from the fact that it is a significant section.  It is one of those sections that is in the armoury of every responsible barrister who gives advice in these areas to deter people from bringing cases of this nature. 

Your Honours, the trial judge found – in our submission, found correctly – that the publications were made in circumstances where the plaintiff was unlikely to suffer harm.  Those findings which appear in the application book, I think, in summary form at least, at page 78 in paragraph 201 depended critically upon her Honour’s views as to the credit of the various people involved in this.  Your Honours will see the findings set out there:

I find that each of the defendant’s publications of 7 November 1999 and the publication of 16 November 1999 was published in circumstances in which the plaintiff was not likely to suffer harm and further . . . that he in fact suffered no harm whatever.

I will come back to that passage, but the point to be made is that her Honour applies in effect two tests, the second of which the Court of Appeal found was wrong, but the first of which the Court of Appeal found was right.  In fact it was the “circumstances in which the plaintiff was not likely to suffer harm”.  Her Honour then goes on to say:

The evidence of Councillors Dee and Page makes this lack of harm clear in relation to the Dubbo Bus and Dubbo Dinner publications.  I reject the evidence of the plaintiff, Councillors Moxham, Stephens and Julie Sutton as to the harm allegedly caused by the Councillors’ Lounge publication and its “grapevine effect” publications and I regard the evidence of the General Manager as particularly unsatisfactory.

Your Honours will see that on its terms it is a based on her Honour’s views as to the witnesses. 

Can I take your Honour to the first of the four errors or groups of errors that we identify?  The first, your Honours, appears in the judgment of Justice Beazely at paragraph 48 on page 149 of the application book.  Her Honour is there dealing with the meanings of the words “not likely” in the section, “not likely to cause harm”, and there was a debate between the views that was put by Mr Justice Deane in Tillmanns Butcheries and the view that we advance, which is the words are simple and obvious and they just mean more probably than not that he was not going to suffer harm.  Your Honours in paragraph 48 there is a series, in my submission, of quite serious errors.  The first is what his Honour says about the presumption:

First, in the law of defamation, it is presumed that some damage will flow from the publication of a defamation in permanent form.

Your Honours, it is true to say that when one comes to assessing damages that a plaintiff does not have to lead evidence of actual harm, but it is not true to say that at any point earlier than that there is such a presumption.  There is not.  Sections 8 and 9 do not say anything about such a presumption.  Section 8, for example, is the section that maintains the abolition of the distinction between libel and slander.  I do not think I need give your Honours a copy of it, but I can simply read it because it is extremely short.  It says:

Slander is actionable without special damage in the same way and to the same extent as libel is actionable without special damage.

It does not stand for that proposition.  The passage in Gatley deals with the Porter Report into broadcasting in the 1950s and, putting aside the possibility that there is a typographical error, it does not support the proposition either.  Her Honour then goes on to turn what she has described as a presumption, which, in our submission, does not exist, into a right.  She says:

Section 13 affects that common law right in that if the defence is established, the presumption will not operate.

Your Honours, it is one thing to say there is a presumption, albeit, in our submission, incorrectly; it is another thing to say that that is a right.  It is not a right of any sort.  Then her Honour goes on, in relation to this point, to apply what Justice O’Connor said in Potter v Minahan, which upon its face must be inapplicable to a section like section 13. 

The consequence of what her Honour has done is this.  She says there is a presumption that harm will follow.  Then she says that is to be applied to a section that says there is a defence if it is unlikely that harm will suffer.  If there is a presumption that harm will suffer, it must follow that there are no circumstances where it is unlikely that harm will follow.  Either that or there is some distinction between her Honour’s use of the word “harm” in the circumstances. 

In my submission, that passage there is, with great respect to her Honour, insupportable.  It is a critical passage too, because it leads in to her Honour’s findings about the meaning of the section as to rejecting what we said about the true construction being simply more probable than not.  Your Honours, that is the first error that we identify in the Court of Appeal’s judgment.

The second error, or again group of errors – and in some ways this is more error by omission rather than by commission – is nowhere does the Court of Appeal actually consider what the word “harm” means in the defamation context.  “Harm” can only mean, given the nature of the tort and the rights it protects, damage to reputation.  Perhaps it also means the feeling of pain that follows from being publicly defamed, but the primary meaning of “harm” is damage to reputation. 

Her Honour then goes on – and the key passage is paragraph 63 of her Honour’s judgment which appears on page 154.  Her Honour says there that:

Harm can occur “even where a person holds final judgment in suspense”.

In our outline of argument we point out that that proposition there is misquoted from Lord Devlin and taken completely out of context.  The case in question does not support that proposition.  Your Honours, “harm” in defamation can only mean actual harm to reputation; that is someone thinks the less of a person.  There is no other meaning that those words can in fact be given. 

What her Honour is saying there, with respect, if we interpret it correctly, is that one can have actual harm if there is no conclusion reached by the recipient of the particular publication.  With respect to her Honour, that proposition also, in our submission, must be wrong.  They are talking about an actual effect on reputation and the section could be glossed by saying, “If there is not likely to be an actual effect on reputation, the defence applies”, and that is in fact what the learned trial judge in this case found, and found after a very considerable consideration of the evidence in the case.

Your Honours, the third group of errors arises from the circumstances from the way in which the Court of Appeal treated her Honour in relation to the passage from her Honour’s judgment that I read.  Your Honours will recall that her Honour instructed herself concededly correctly and incorrectly concededly on our part.  That is dealt with by Justice Beazely at pages 147 to 148 of the application book. 

At 42 our argument is set out; that is that we said her Honour had correctly instructed herself.  Without giving any real reasons, her Honour Justice Beazely says that the court should intervene and reconsider, but in a circumstance where the learned trial judge made findings of fact based on her views of the evidence and proceeded, as she said, on two bases, either of which supported the judgment, one of which it turned out was wrong which involved a misunderstanding by her Honour of a decision of Justice Mahoney in the Court of Appeal.  Your Honours, in our submission, it is not a satisfactory approach to do that, because it proceeds on the basis, in effect, the trial judge was right and there was, in our submission, no occasion to intervene in the matter for that reason. 

The fact that her Honour was right can be seen from the passage to which I took your Honours to that appears on page 78 in paragraph 201 of the judgment.  There are earlier passages, which I will not take your Honours to now, where her Honour makes it quite clear that she is proceeding on both bases as alternatives and that her decision is supportable on the basis of either, in my submission.

Your Honours, the next group of errors is the way that Justice Beazely and the Court of Appeal dealt with events that happened after publication.  This is the points made in paragraphs 30 to 31 on page 209 of our submissions.  The Court of Appeal – and this appears at 145 to 146 – that is the passage I took your Honours to and I need not take your Honours back to it.  Their Honours in the Court of Appeal proceeded on the basis that it was irrelevant to take an account of what occurred after publication and the trial judge was wrong for that reason, but of course there is no better guide in terms of likelihood than what actually happens when one is viewing the matter retrospectively, as both the trial judge and the Court of Appeal were. 

Equally, when one is talking here about the characteristics of human beings and the fundamental case that we were making here was that because of the situations of the people involved, that is they were political enemies – the defendant, my client, was an independent councillor and newly elected to the particular council.  The respondent here was, if I could put it…..was a conservative member of the council who had been there for 20 years.  They were at daggers drawn.  They were political enemies. 

The third of the publications was made, as the jury found, by the defendant, my client, to three political enemies of hers, allies of the plaintiff, who, as the trial judge found, were not likely to take any account whatever, particularly given the circumstances in a late night meeting in the councillors’ lounge at Warringah Shire Council, of anything she was going to say.  Those views were based on her Honour’s views as to the characteristics of the people in question.  Your Honours, that is the third error ‑ ‑ ‑

HEYDON J:   Just one moment, Mr McClintock.  Legal representatives and other people interested in the matters after this need not remain in Court.  We will resume hearing applications at 2.00 pm.  Yes, Mr McClintock.  Incidentally, is Chappell against you on the current argument?

MR McCLINTOCK:    No, your Honour.  We would say it is not.

HEYDON J:   Did not Mr Justice Moffitt say the issue turns on proneness to cause harm?  The words are “was not likely to suffer harm” and not “did not suffer harm”.

MR McCLINTOCK:   Your Honour, on that point we do not contend that the section can be read as “did not suffer harm”, and that was the point in fact, in effect, where the Court of Appeal found that the trial judge was in error and we do not suggest on that point that she was right but ‑ ‑ ‑

HEYDON J:   Your argument is applying the correct test you can see whether it is met by seeing what actually happened?

MR McCLINTOCK:   Yes.

HEYDON J:   I see.

MR McCLINTOCK:    Yes, and, for example, if one.....the characteristics of human beings, what they do on day zero plus 10 is relevant to what they were like on day zero, so to speak.  It is a simple proposition and one would have to say that the Court of Appeal’s rejection of it, we would say, was surprising.  There was nothing mysterious about the proposition or in any way out of the ordinary.

The fourth area, your Honours, is the way in which the trial judge’s findings of credit were treated.  It is not an exaggeration to say that her Honour came to the conclusion she did because she believed my client and she disbelieved almost totally, and said so, the respondent and all the witnesses called for him.  Her view, and it was amply justified on the evidence, was that really this case was part of a political vendetta brought by one councillor, in effect, to silence another councillor. 

I have taken your Honours to the findings of credit in summary form of the trial judge, that is the ones that appear at page 78 of the application book, but I should also point your Honours to, for example, the findings that appear at pages 72 and 73 of the application book, which critically involve the plaintiff.  Take for example at the bottom of page 72, paragraph 186:

The plaintiff was anxious to denigrate political opponents but in response was prepared to use the defamation laws to stifle even minor criticism.  When the plaintiff sent a solicitor’s letter to demand the withdrawal‑

I do not need descend into the details, your Honours, but in paragraph 188:

Having regard to the inconsistent evidence the plaintiff gave concerning the circumstances in which he learned of the third publication, I find his assertion of injury to feelings from each of the publications wholly implausible . . . He is incapable of hurt feelings by statements by a political opponent such as the defendant, whom he regards with contempt and disdain.

One has to say there, your Honours, that her Honour is clearly applying the correct test there, “incapable of hurt feelings”.  Your Honours, there is in effect no reference to the real reason why her Honour upheld the defence in the Court of Appeal’s judgment on this point.  I will not weary your Honours with the references to cases like Rosenberg v Percival.  Your Honours know them well, but the fact is that in the judgment on the appeal their Honours made no real reference to those matters at all. That

was in surprising contrast to what occurred in relation to the costs judgments where, in effect, the plaintiff, the respondent, was deprived of a large part of his costs because of the very same findings.  We would say that there is an inconsistency between the two approaches.

Your Honours, there is a significant issue of principle here, that is the meaning of a significant section of the legislation.  I appreciate in one sense that the damages were small and I appreciate that it is a small case, but the consequences are large for my client and they are large in general for the law.  In my submission, there should be a grant of special leave.

HEYDON J:   Thank you, Mr McClintock.  We need not trouble you, Mr Hughes.

In our opinion the construction of section 13 is not attended by sufficient doubt to justify the grant of special leave and there are insufficient prospects of altering the outcome in the Court of Appeal.  Accordingly, the application is refused with costs.

The Court will adjourn until 2.00 pm.

AT 12.42 PM THE MATTER WAS CONCLUDED