TCN Channel Nine Pty Ltd v Bass

[2004] HCATrans 187

[2004] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S310 of 2003

B e t w e e n -

TCN CHANNEL NINE PTY LTD

Applicant

and

ROBIN BASS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 12.14 PM

Copyright in the High Court of Australia

MR B.R. McCLINTOCK, SC:   May it please the Court, I appear with my learned friend, MR M.F. RICHARDSON, for the applicant.  (instructed by Gilbert & Tobin)

MR T. MOLOMBY SC:   May it please the Court, I appear with my learned friend, MR  R.K.M. RASMUSSEN, for the respondent.  (instructed by Kalantzis)

GLEESON CJ:   Yes, Mr McClintock.

MR McCLINTOCK:   Your Honour, in my submission, the majority below made two groups of errors.  The first group of errors involved their Honours’ approach to this Court’s decision in Roberts v Bass and, within that group of errors, we identify two, so to speak, sub‑errors.  The second group of errors involves the question of principle as to what constitutes malice so as to defeat their reply to attack qualified privilege.

GLEESON CJ:   Just remind us what stage of the litigation we are at.

MR McCLINTOCK:   Your Honour, the matter arose on an application in the course of the trial to strike out the particulars of malice given by the plaintiff in his reply.  That was dealt with by the trial judge, although he actually determined it on the basis that the matters particularised could not constitute malice relevantly, given the nature of the occasion of qualified privilege.

GLEESON CJ:   They were in the course of interrupting the progress of a civil trial on a point about particulars.

MR McCLINTOCK:   Your Honour, the way it came up was the plaintiff applied for leave to amend the reply, to file the amended reply.  We countered that by saying that those particulars in that reply are liable to be struck out, even though we cannot say there is any prejudice.  Therefore leave to amend was granted and we went straight on to deal with the application to strike out the particulars in question.  But it threw up the question of principle, because the issue had been pleaded in the defence, when we gave particulars of the occasion of qualified privilege, was that we were relying upon the media organisation’s privilege to publish a reply to an attack made, in this case, upon the plaintiff.

The issue then arose as to what kind of malice would defeat that occasion of qualified privilege.  Our argument was that the two items particularised, which were knowledge that the reply, the attack, was false and knowledge of the malice of the replier would – we took the point that they would not amount to malice.

GLEESON CJ:   But depending on the findings of fact that the trial judge makes, this could be all irrelevant.

MR McCLINTOCK:   There were no findings of fact, your Honour, on this point.

GLEESON CJ:   The trial is in progress.

MR McCLINTOCK:   No, your Honour.  No, the trial finished four years ago.

HAYNE J:   And it is to go back for retrial?

MR McCLINTOCK:   There was a retrial ordered.  The history of this matter has been this ‑ ‑ ‑

GLEESON CJ:   That is why I began by asking you a question ‑ ‑ ‑

MR McCLINTOCK:   I am sorry, I misunderstood your Honour.

GLEESON CJ:   Take your time and answer it then.  At what stage of the litigation are we at? 

MR McCLINTOCK:   The Court of Appeal has heard an appeal, allowed the appeal in part and ordered the new trial.  I am sorry ‑ ‑ ‑

GLEESON CJ:   But this is an argument about particulars.

MR McCLINTOCK:   In one sense it is, but it throws up a significant argument about the issue of principle involved.

GLEESON CJ:   In what sense is it not an argument about particulars?

MR McCLINTOCK:   Your Honour, it is an argument about particulars, but the argument is, are those particulars capable in law of amounting to malice in a reply to attack a qualified privilege case?  That is the legal issue and the issue of principle.  Is it sufficient to allege that the person in the position of my client, publishing the reply, was aware that the reply in question was untrue or that the person doing the replying was actuated by malice?

GLEESON CJ:   I am still not clear.  There has to be a reason why we would get involved in an argument about particulars at this stage.

MR McCLINTOCK:   Because, your Honour – perhaps I should reveal the history on that.  The matter went to trial, the jury determined that two imputations were conveyed.  We pleaded truth to one of those; the jury found that imputation was true, and that need not be considered further.  We also relied upon a defence of qualified privilege, that is, the qualified privilege considered by this Court in Loveday v Sun Newspapers in the 1930s, that is, the right of a newspaper or media organisation to put forward the response of a person attacked publicly.  That is what we were doing.  In fact, the reply – the actual words in question – appear on page 7 of the application book.

GLEESON CJ:   They have alleged by their particulars that they hope to be able to defeat your privilege by malice. 

MR McCLINTOCK:   Yes.

GLEESON CJ:   And this is an argument about what would constitute malice. 

MR McCLINTOCK:   Exactly, your Honour.

GLEESON CJ:   But the argument might become irrelevant, depending on the findings of fact of the trial judge, might it not?

MR McCLINTOCK:   With respect, your Honour, no, because of the way the Court of Appeal has actually dealt with it.  What they have done, if I take your Honours to the orders which are set out – and this is a jury trial on the remaining issues because this was a 1990 publication, prior to the 1995 amendments to the Jury Act.  If your Honours go to page 119 of the application book, your Honours will see the Court of Appeal’s order as entered and your Honours will see:

1.  The appeal be allowed; 

2.  The judgment entered for the respondent [my client] in the Court below be set aside –

We had succeeded wholly at trial –

3.  There be a new trial of the action limited to the issues of malice raised by paragraphs 2(c) and (d) of the appellant’s further amended reply of 23 October 2001 and the issue of damages –

The issue of damages followed because it was, on the premises, correctly said that, obviously, malice could affect damages.

GLEESON CJ:   But you might win that issue on the facts, might you not?

MR McCLINTOCK:   We might, your Honour, but we would rather, if I could say so, have what we see as a fundamental error of principle as to what is malice in this area corrected by your Honours, rather than go back and chance our arms before a jury on this matter.

GLEESON CJ:   If you win on the facts before a jury, the question of law you want us to decide does not arise.

MR McCLINTOCK:   No, it does not.  That is quite correct, your Honour, but it arises now because, if we are right, we are entitled to judgment now, as the Chief Justice, Mr Justice Spigelman, found in his dissenting judgment in this matter.  In those circumstances, we would not have to go back for the new trial.  I appreciate what your Honour says to me, that it may be resolved in that sense, factually, and we may win, indeed, but at the end of this trial, when these issues had been ventilated before the trial judge, when there had been ample opportunity for my learned friend to make any additional correction or amendment to the particulars, he took the stand on the particulars as they stood, which were dealt with by the trial judge.  It was those particulars that threw up the malice issue in the Court of Appeal and throw up what we say is a significant question of principle, which is, what is malice in this area? 

Your Honours will be aware that in Roberts v Bass this Court, in the joint judgment of Justices Gaudron, Gummow and McHugh, said that malice is and can only be some form of impropriety of purpose.  Now, Roberts v Bass was handed down between argument and decision in this case, but when your Honours come to look at what the majority in the Court of Appeal did in relation to that case, what they did was ignore the critical finding on that issue in Roberts v Bass.  In fact, they do not even refer to the critical finding; it is as if it had been crossed out of the Commonwealth Law Reports.  They prefer a decision of the Full Court of the Federal Court, Comalco Ltd v ABC, which was first obiter and implicitly disapproved of in Roberts v Bass as the Chief Justice there found.  Could I take your Honours to those points ‑ ‑ ‑

HAYNE J:   Just before you do, if there is to be a retrial, how are you relevantly limited in the answer you would make at that new trial of the limited issue identified by the Court of Appeal’s order?

MR McCLINTOCK:   I cannot make the submission that these matters are not evidence of malice.  

HAYNE J:   Why do we get into it, if you cannot point any way in which your answer at trial is impeded?

MR McCLINTOCK:   It is, your Honour.  The argument that I cannot make at trial to the trial judge is that it is not evidence of malice to say that my client was aware of the falsity of the reply made by the BWIU, nor can I say that it is not evidence of malice that my client was aware of the BWIU’s malice.  What their Honours did in this respect was that they determined an issue of law adversely to my client.  The issue of law is, what is malice?  It impedes what we can say to both the trial judge and to the jury at the second trial, and, your Honours, prior to the Court of Appeal we had the benefit of a judgment in our favour here, which their Honours have deprived us of, by majority, and ordered a new trial limited in this way.

One also has to say, your Honours, while we are not in any sense cavilling with the form of their Honours’ orders, it is certainly a strange exercise to limit the trial in that way, in circumstances where my client has previously succeeded on defences of truth and so on, and one anticipates the difficulties for a trial judge in instructing a jury in that matter.  That is the way we would be hampered, but, in any event, if I am correct on the errors we identify in the Court of Appeal’s judgment, the consequence would be that we would be entitled to judgment or restoration of the judgment given in our favour by the learned trial judge.

Your Honours, the errors with these.  First, to repeat myself slightly, the decision of this Court in Roberts v Bass stands for the proposition that malice is and is only the publication for some impropriety of purpose.  The respondent to the application never identified any impropriety of purpose ever, and, indeed, never asserted that my client was or had an improper purpose.  It follows from that – and as I said, your Honours, the majority in the Court of Appeal never even refer to what we would say is a critical finding of this Court in Roberts v Bass. 

The contrast, your Honours, is the way that it was dealt with by the Chief Justice, and your Honours will find that at page 83 of the application book and following.  There, in paragraph 14, his Honour is quoting from Penton v Calwell.  It is the second paragraph, the words beginning, “The foundation of the privilege is the necessity” and so on.  That is where Sir Owen Dixon was identifying the occasion of the privilege and why it exists.  That is repeated in paragraph 15 and if your Honours go back then to paragraph 11, which appears on page 82, where his Honour is dealing with malice in the context there, his Honour says: 

Roberts v Bass reaffirms the basic nature of the defence of qualified privilege as a protection which is lost if there is purpose or motive foreign to the occasion of the privilege and that other purpose or motive actuates the making of the defamatory statement. 

He then refers to the joint judgment in Roberts v Bass, paragraph 79, where their Honours Justices Gaudron, Gummow and McHugh said:

“malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication.  It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant’s belief in the truth of the matter.”

Your Honours, what the majority did – and this can be seen from the discussion that appears on page 103, commencing at paragraph 105 – what their Honours did there was they turned to a decision of the Full Court of the Federal Court, that is, Comalco v ABC.  If your Honour goes over to page 104, there is a lengthy quote from Sir Reginald Smithers there.  May I say that his Honour’s judgment was only his Honour’s judgment.  No one else in the Full Court of the Federal Court agreed with it.  If your Honours go to paragraph 108, on page 104, your Honours will see that there are two lines that have been underlined by Mr Justice Handley, and they are:

To publish such material knowing it to be untrue would be to abuse the occasion. 

His Honour is saying there that knowledge of falsity is malice, relevantly.  Your Honour, that is the proposition that cannot stand with what this Court said malice was in Roberts v Bass.  That is the view that the Chief Justice took. 

If I could take your Honours back to page 85 of the application book – I am sorry to be dancing around, so to speak – where, after summarising in paragraph 23 what Sir Reginald Smithers said, his Honour the Chief Justice says in paragraph 24 – and, may I say, his Honour’s summary is consistent with Mr Justice Handley’s summary: 

The first and third way of expressing the point suggest an absolute proposition which is not, in my opinion, consistent with the reasoning of the High Court in Roberts v Bass.  The second way that Smithers J expressed the proposition, i.e. “almost inevitably would constitute conclusive evidence of malice” is in virtually identical terms to that of the joint judgment in Roberts v Bass. 

To treat knowledge of falsity as necessarily conclusive, as distinct from “almost inevitably” conclusive, is to regard such knowledge as itself a kind of malice, as distinct from treating it as a basis for inferring an improper motive for publication, and is, in my opinion, contrary to the reasoning of the High Court in Roberts v Bass –

His Honour was – I say so with respect – saying correctly that Mr Justice Handley was wrong to follow Comalco v ABC in preference to the decision of this Court in Roberts v Bass. 

The second error of principle in this area that we identify in Mr Justice Handley best emerges or arises in relation to the second particular, which was the fact that it was asserted that my client, the television station, knew that the relevant union secretary was himself actuated by malice.  How that could conceivably be relevant to an occasion of qualified privilege such as this is very difficult to see, but if I take your Honours to the way Mr Justice Handley dealt with it, because it is a fundamental principle in this area that one is only liable – putting aside questions of vicarious liability, such as agency – for one’s own malice, that is, one’s own state of mind, as opposed to that of any other joint tortfeasor. 

If your Honours go to paragraph 77 in Mr Justice Handley’s judgment, which appears on page 97, your Honour will see there that his Honour – correctly, in our view – says:

The issue of the Union’s malice against the plaintiff has not been tried, but there is no doctrine of transferred malice in the law of defamation apart from the ordinary principles of vicarious liability:  Dougherty v Chandler (1946) 46 SR (NSW) 370; Egger v Viscount Chelmsford [1965] 1 QB 248 CA.

If your Honours then go forward to paragraphs 95 to 96, which appear on page 101 of the application book, your Honours will see there that, dealing with Egger v Viscount Chelmsford, his Honour has taken a quite different view of what that authority stands for from that expressed at paragraph 77. He says:

It is not obvious that a person who republishes with knowledge of malice or falsity can be described as “innocent”. 

Even if the judgments of the Court of Appeal are to be read as meaning that a person involved in a joint publication is “innocent” unless personally actuated by malice the statements to that effect would only be dicta as the facts did not raise that question and it was not necessary to decide it. 

They did, in fact, but that, of course, is contrary to the proposition that his Honour has expressed at paragraph 77 in relation to Egger v Viscount Chelmsford.  Then, in paragraph 114, there is a non sequitur on the same issue, where his Honour expresses the view that knowledge of another’s malice could constitute itself malice, in the last sentence of the paragraph. 

Your Honours, those, in my submission, are significant errors of principle, that is, it is contrary to this Court’s decision in Roberts v Bass to say that knowledge of falsity is malice.  It is contrary to longstanding authority and, indeed, illogical – if I can say so with respect to the majority below – to say that because you know someone else is malicious or know of their state of mind, you yourself have been malicious. 

This, in my submission, does throw up a significant issue of principle.  The Court of Appeal, the majority below, was wrong, for the reasons given by the Chief Justice.  If we are right, we are entitled to have the judgment in favour of the defendant restored and should not have to go back to deal with the issues on a retrial, particularly in the truncated form that the majority ordered.  Your Honours, those are my submissions.

GLEESON CJ:   Thank you, Mr McClintock.  Yes, Mr Molomby. 

MR MOLOMBY:   If it please the Court, the reliance placed on the decision of Roberts v Bass is, in our submission, misconceived.  Roberts v Bass was about malice, yes, but the key consideration that was made relevant to this case was whether knowledge of falsity was itself determinative of malice, without more.

GLEESON CJ:   Mr Molomby, before you launch into a consideration of the general principles in relation to these things, perhaps you might direct attention to whether this is a suitable vehicle for consideration by this Court, at this stage of the proceedings, of those issues.

MR MOLOMBY:   In our submission, it is not.  The Court has already heard the history of the litigation to this point, the stage at which it now sits, and the fact is, under the order for a retrial of the Court of Appeal, the defendant is perfectly able to argue a case on the facts, which may well succeed, in which case there is no further legal point to be taken.

GLEESON CJ:   The argument that is put against you on that point is that the defendant had a judgment in its favour and it ought to be entitled to maintain that judgment in its favour, if it is right on the principles.

MR MOLOMBY:   Your Honour, given that there is the further contest ordered by the Court of Appeal, the defendant is not faced with, necessarily, a permanent deprival.  The defendant has the chance of winning on the facts at the retrial that has been ordered. 

GLEESON CJ:   As I understand the argument that Mr McClintock puts, it is that the only hope you now have of defeating the claim of qualified privilege is your response of malice, and the only particulars that you have given of malice cannot, in law, sustain that response.

MR MOLOMBY:   That is exactly his position. 

HAYNE J:   Much may therefore turn on what exactly is encompassed by those particulars of malice.

MR MOLOMBY:   Yes, your Honour, we accept that.

HAYNE J:   We are invited to launch into an appeal on the basis of, presumably, a singular or at least a confined range of constructions of those particulars.

MR MOLOMBY:   It would be a consideration absolutely particular to this case, your Honour.  In our submission, it would not, on that score, be a matter that would assist general principle very much at all.  What I was opening on, your Honour, was not going to be as broad as perhaps your Honour might have thought I was going to, but to say that what the applicant advocates is really not something that derives from Roberts v Bass at all, but something that is quite contrary to the development of the common law, as very clearly articulated, and quite contrary to the sensible approach of principle.

While Roberts v Bass was about only knowledge of falsity and whether that was sufficient, in this case there is a complete extra element, which was never considered in Roberts v Bass, and that is knowledge of the other party’s malice.  And what the applicant wants to do ‑ ‑ ‑

HAYNE J:   Much may turn on how those terms are used.

MR MOLOMBY:   It might, your Honour, but, if I can come to the fundamental, what the applicant wants to do, as is quite patently stated in its submissions in reply before the Court, which are at application book 139 in paragraph 1(i) and (iii) – what the applicant says is that the media, in acting as a channel for replies in cases like this, have a particular independent privilege, not dependent upon the privilege of the party whose reply is being published.  Now, that is quite contrary to the law, and if I can quickly go to three lines of Sir Owen Dixon at page 519 of Loveday v Sun Newspapers, he says, halfway down the page:

The privilege of the newspaper would arise out of and depend upon that of the town clerk, or, perhaps more strictly, of the municipal council, as the party attacked and entitled to reply. 

In other words, it is an ancillary or dependent privilege.  On no account, as the common law sees it, is it an independent privilege, and that is what the applicant is trying to persuade this Court it ought to be.

GLEESON CJ:   Is it a possible point of view that knowledge of the falsity of what is published and/or knowledge of the malice of the source of the matter might or might not itself constitute or evidence malice, depending on the circumstances?

MR MOLOMBY:   Indeed so, your Honour.

GLEESON CJ:   Well, then, whether or not these particulars are viable particulars of malice might depend on the circumstances.

MR MOLOMBY:   It might depend on how the evidence falls out at the trial.  Quite so, your Honour.  I accept that.

GLEESON CJ:   Is that a convenient time?  We will adjourn until 2.00 pm. 

AT 12.40 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:  

GLEESON CJ:   Yes, Mr Molomby.

MR MOLOMBY:   Your Honours, might I add one matter to the considerations involved in the retrial, the matter that we were exploring just before the adjournment.  This was drawn to my attention only over the adjournment, but in a retrial, or for the purpose of a retrial, we would be seeking to amend the reply to plead a further particular of malice.  That would be relying on factual matters that have already been ventilated in the proceeding, so they are not novel to anyone, but have not so far been relied on for this purpose. 

HAYNE J:   I am not sure that you would want us to get into whether you can, you cannot, you may, you may not, Mr Molomby.

MR MOLOMBY:   I do not suggest so for a moment, your Honour.

HAYNE J:   Tell us if you want to, but there we are.  Let us deal with it as it presently stands, shall we?

MR MOLOMBY:   I just thought I should advise the Court of that because of the questions as to what was likely to happen at a retrial and what the issues might be; to say to the Court, it is not a possibility, we do propose to seek leave to add a further matter as a particular of malice.  And if the Court wished to know what it was, I have a rough draft of it which I could ‑ ‑ ‑

GLEESON CJ:   No, it is quite all right, thank you.

MR MOLOMBY:   I am sure it is.  If it please the Court, I have no further matters to address on, unless the Court wishes to raise any further questions.

GLEESON CJ:   Thank you.  Yes, Mr McClintock.

MR McCLINTOCK:   Your Honours, we have nothing, the issue of this principle which this case raises does not depend upon what will occur at the new trial, and it does not depend upon the evidence which will be led there.  The reason, your Honours, is this.  If we are right, and malice is and is only impropriety of purpose, as this Court said, we say, in Roberts v Bass, the evidence will never come up at the trial. 

What is relevantly an improper purpose can only be determined by considering the nature of the occasion of qualified privilege.  That is what your Honour the Chief Justice said in paragraph 8 of your Honour’s judgment in Roberts v Bass.  Given the fact that the occasion of qualified privilege here was to publish the reply of a person who had been publicly attacked by Mr Molomby’s client, the only purpose which could relevantly constitute malice so as to defeat that occasion of qualified privilege would be a purpose other than publishing a reply to that attack.  Mr Justice Handley in fact gives some examples in an early part of his judgment below. 

Your Honours, that aspect of the matter – purpose, and whether my client’s purpose was other than to publish a reply to an attack – is not part of my learned friend’s particulars and therefore will not come up at the trial.  If your Honours go to page 119 of the application book, your Honours will see that the trial – and may I say, this gives the answer to my learned friend’s reference to amendment – you would have to go to the Court of Appeal to get leave to re‑open.  The order was:

a new trial of the action limited to the issues of malice raised by paragraphs 2(c) and (d) of the appellant’s further amended reply –

That reply itself appears at page 25 and your Honours will see at line 25, particular (c), which is a statement that my client knew that the BWIU was actuated by malice; (d) that my client – this is line 41: 

believed that what it published about the Plaintiff was false –

Your Honours, nothing, given the fact that the trial is limited to those matters, is going to affect the question of my client’s purpose and the issue of law which arises which is, what is malice in this case?  We will be limited in the evidence we can lead because of those particulars and because of the Court of Appeal’s order. 

I, for example, cannot say to the Court that Mr Molomby fails to establish malice because there is no evidence of impropriety of purpose and most significantly, your Honours, I cannot lead evidence from my client, Mr Munro – or, for example, Mr Munro – to say this.  Well, the first part of what I am going to say I could lead.  Mr Munro might get into the witness box and say, “I believe that what Mr Bass [Mr Molomby’s client] said was true.  I thought the union was lying.  I also knew they hated him and that they were saying what they were saying basically to get him.  But, even knowing those things, I was still publishing what the union said so as to give the union a right to reply to what Mr Bass had said about them, and to show there were two sides of the story”. 

Now, that latter part of the evidence I could not lead under the orders made by the Court of Appeal.  It follows, your Honours, that even if there were to be a new trial, the case will still be in the same posture, relevantly, as it is now.  It is true to say that my learned friend might fail, because he might fail to make out the particulars, but if he succeeds in circumstances such as that, where I have been deprived of the right to lead evidence of purpose, as must be the case on the orders of the Court of Appeal, we will be in exactly the same position as we are now, and the issue which the case throws up which is, “What is malice in these circumstances, and are those particulars sufficient to establish malice?” will still arise following the end of the trial. 

In the meantime, may I say, your Honours, a case that we say – that is, the majority decision below – shows an illegitimate attitude towards what is malice in this area, and, for that matter, an illegitimate approach to the decisions of this Court – that is, Roberts v Bass – will stand for whatever precedential value it has in the courts of New South Wales.  Your Honour, that is what I wish to say by way of reply.

GLEESON CJ:   This case was dealt with by the Court of Appeal as a case about particulars.  Underlying that issue there were questions of wider importance, but the proceedings do not, at this stage, provide a suitable vehicle for the consideration by this Court of those issues.  The application is refused with costs.

AT 2.07 PM THE MATTER WAS CONCLUDED`