Trkulja v Telstra Corporation

[1998] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M86 of 1997

B e t w e e n -

MICHAEL TRKULJA

Applicant

and

TELSTRA CORPORATION LIMITED

First Respondent

RAUL AMON INTERNATIONAL PTY LTD

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 1998, AT 2.42 PM

Copyright in the High Court of Australia

MS L. LIEDER, QC:  If the Court pleases, I appear with my learned friend, MR S.V. PALMER, on behalf of the appellant.  (instructed by Libman Davis & Associates)

GUMMOW J:   We understood the applicant would be appearing in person.

MS LIEDER:   No.

GUMMOW J:   We are assisted, thank you.

MR J. RUSKIN, QC:  If it please the Court, in this application I appear with my learned friend, MR A.N. MURDOCH, for the first respondent which is Telstra.  (instructed by Mallesons Stephen Jaques)

GUMMOW J:   Yes, Ms Lieder.

MS LIEDER:   If the Court pleases, your Honours have an outline of argument, or summary of argument before you ‑ ‑ ‑

GUMMOW J:   Yes.  I should add that the Court has been informed by Wilmoth Field & Warne, Solicitors for the second respondent, that the second respondent does not wish to take an active part in the proceedings and will abide by the decision of the Court save as to costs.

MS LIEDER:   If the Court pleases.  Your Honours ‑ ‑ ‑

KIRBY J:   Can I, just to get it clearly in my mind, as I understand it the primary judge has two bases for knocking out the claim.  Basis No 2 was the justification, and all members of the Court of Appeal who dealt with that seemed to say there was nothing in it, that that was not a proper basis.

MS LIEDER:   That is so, your Honour.

KIRBY J:   Therefore, it comes to ground No 1 which was the issue of identification.  All judges who dealt with it seem to agree that it is not a principle of law in Australia that you have to call an actual witness to say they identified and that, with respect, seems to be right.  But, then, I would like to be clear why, given that there was some evidence of identification, the Court of Appeal felt that the evidence was not sufficient in this case.  Justice Tadgell said that the court below was not required to find identification.  Could you help me on the grounds of appeal in this State?  Are they by way of rehearing?  Does the court rehear the appeal on the papers or did you have to establish that there was an error of law to get up in the Court of Appeal on appeal from the District Court or County Court?

MS LIEDER:   It was the latter position, your Honour.  However, it appears - we were not counsel in the case - but it appears, and your Honours will see that from the respondent’s outline of argument, that the case proceeded on the basis of a concession made by counsel for the applicant, that the Court of Appeal was as able to determine the factual contents, so to speak, of the identification evidence as the primary judge.

KIRBY J:   But would that mean determine it on the basis of the principle that they decide whether, on the facts and taking into account the advantages that the primary judge had, that the facts led to a particular conclusion logically, or is the principle that the facts are required to lead to a conclusion, or different conclusion, for the Court of Appeal to intervene, because that certainly is not the case in New South Wales?  You do not have to prove required, you just have to prove that it is the proper view of the facts.

MS LIEDER:   Yes.  One would have thought that the latter position should have applied.  The difficulty appears to be that in the application there was almost a hybridisation, one could say, of those two principles.  That is to say that the court, on the one hand, certainly did make reference in terms to the evidence far beyond what the primary judge had referred to.  The conclusion drawn, however, by his Honour Mr Justice Charles, with whom his Honour Mr Justice Orminston agreed, was, one could say, a finding of fact on the material that was before them.  So, I cannot answer your Honour’s question specifically because, quite frankly, that is one of the difficulties that appear to emerge from the judgment itself.

KIRBY J:   Justice Charles seems to have been affected by the Abalos principle, but did that apply in this case, given that there was evidence which, I think, Justice Orminston said it would have been surprising to see rejected, that there was evidence of identification.

MS LIEDER:   We would be submitting, of course, that that was an incorrect application of that principle and that, indeed, his Honour himself, in referring to the evidence referred to at one part as being not insignificant and, certainly, at the conclusion, did not by any means put it aside.

KIRBY J:   What seems to have affected the Court of Appeal was, they said, “You do not have to bring a witness to establish identification”, but given the facts of this case, you would have expected that a witness would have been brought and Justice Orminston, I think, said, “And that did not mean you had to have somebody who was looking through the adult services in the phone book, you could have just called somebody to say, ‘This was drawn to my attention and when I see that particular company I think of the present applicant’”.  But you did not call that.  Now, why, in that circumstance, was it not open to the Court of Appeal to say, “Well, absent that evidence, it was really open to the primary judge in the rather vague evidence of identification to conclude that identification had not been made out in this case”?

MS LIEDER:   Yes.  Our response to that would be that that would be, in essence, an application of the Jones v Dunkel principle, to which his Honour Mr Justice Tadgell referred in specific terms, and which has again been referred to in the respondent’s outline of argument.  Our submission would be that that would be entirely inapplicable in a case of this nature, because a proper understanding of Jones v Dunkel would, in our submission, restrict it to situations where one might expect the witness to be called.  That, we would say, is the gravamen of the principle in Jones v Dunkel.  If, however, the law is, as it appears to be, with the utmost respect, that in a case such as this, which is a case, one could say, of mass publication, given the nature of the publication, it is not necessary to specifically call a person who says that, “I have read this entry”, then ex hypothesi a witness who is in the position to say, “Not only am I acquainted with the applicant, but also I have read the entry”, would simply not be a witness that one could expect to be called.

Indeed, if I may say so, his Honour Mr Justice Charles in his reference seemed to use it rather as an evidentiary tool that might have assisted in the task of filling whatever gap there was, wherein he is to be distinguished from Mr Justice Tadgell and, indeed, if I may say so, Mr Justice Ormiston, who also have enunciated it almost as a principle.  Now, our submission essentially is that it is simply not a situation where one could apply that principle.  Either the evidence is sufficient to establish the identification of the person with the company that was named, or it is not.  To use a principle which, essentially, is restricted, we would submit, to witnesses that might expect to be called to try and bridge whatever gap is seen, would, we say, be a misstatement of principle.  It is ‑ ‑ ‑

HAYNE J:   Do you, in the end, raise any point of principle or do you raise the application of known principle in particular and peculiar facts?

MS LIEDER:   We raise this point of principle which we acknowledge may not be spelt out in as precise terms as one would otherwise wish and we ask the Court’s indulgence for this.  As the Court has heard there was ‑ ‑ ‑

HAYNE J:   Counsel have come in lately.

MS LIEDER:   Very late.  Our point of principle ‑ ‑ ‑

HAYNE J:   Yes, what is the principle?

MS LIEDER:   Our point of principle is, indeed, that when we have a circumstance or a situation like this, where the issue is one of identification, that it is inappropriate to use the principle of Jones v Dunkel to bridge that gap and that it should be restricted to circumstances where the witness who is not called falls into the category of a witness one might expect to be called.  Secondary to that contention, we would say, is that if indeed it is the law that it is not necessary to call a reader of the entry, then the failure to call that witness cannot and should not be used in the process of determining sufficiency of identification evidence.  Essentially, it ‑ ‑ ‑

KIRBY J:   You did call evidence from people who said, “I saw him as the face of the company”.

MS LIEDER:   That is so.

KIRBY J:   It is the question of the link, that you did not then link that to the particular entry, that you say that established principle which the Court of Appeal accepted does not require you to do that and that, therefore, if there was some evidence, what the judge’s proper process of reasoning ought to have been:  he is seen by people in the Yugoslav community as the front of the company, the company is named, there may be some inhibitions on people coming forward and saying that, “We saw this in the adult services in the phone book”, but whether that is so or not, the company is definitely there and he is known by some to be the face of the company ‑ ‑ ‑

MS LIEDER:   The face of the business, I think ‑ ‑ ‑

KIRBY J:   The grapevine will put this around and, therefore, he is damaged.

MS LIEDER:   Yes.  Essentially, that is what we would say.  That evidence was there.  Had the Court of Appeal simply said of the evidence that the evidence was itself, or that the primary judge had made a finding that the evidence was insufficient and we do not propose to interfere with factual findings of the primary judge, and simply stated that that was so on the paucity of the evidence or otherwise, that would have been one thing.  But that is not what has occurred.

KIRBY J:   Justice Tadgell named Jones v Dunkel as his process of reasoning and Justice Charles named Abalos.  You say neither of those really provide the bridge.

MS LIEDER:   Neither of those apply, yes.  His Honour Mr Justice Ormiston, although he adopts the arguments - sorry, the judgment of his Honour Mr Justice Charles, in terms, then, passes on to an examination of the evidence which is in exactly Jones v Dunkel terms.

HAYNE J:   But what is the point that has to be proved?  What is the finding of fact that must be made?  That the publication is of and concerning, is it not?

MS LIEDER:   The publication issue was conceded by all parties.

HAYNE J:   Publication, I know, but, relevantly, that the publication is of and concerning the plaintiff.

MS LIEDER:   Indeed, so, the only issue ‑ ‑ ‑

HAYNE J:   And demonstrating that people who have not read it may connect the company with the man, is what, you say, enough to carry you over to publication of and concerning?

MS LIEDER:   We would submit that it is for this reason.  If the evidence is sufficient to link the man with the entry, that is to say, with the entry as such, and the entry is agreed by all parties as being, (a) published, and (b) defamatory, that is the first step.  If the evidence is sufficient to establish that there is a direct link between the person not named and the entry itself, and if the publication is in circumstances of mass publication, as this obviously is, in fact, more so, we would say, than a newspaper because this is a publication ‑ ‑ ‑

HAYNE J:   Is not the slip in the argument that mass publication means publication to all communities, if you are to divide it, including the relevant community, namely, the Serbian community.  Those in the Serbian community know who this man is and connect him with the company and is there not a slip in that chain of reasoning?

MS LIEDER:   I may be being obtuse, your Honour, but I do not see the slip in it.  If one takes ‑ ‑ ‑

HAYNE J:   You are not paid to.

KIRBY J:   There is some authority which is referred to, I think, in Justice Charles’ reasons in England, which says that the bridge is provided by what the reasonable person looking at the material would infer.  But, it may be that that was written in a rather monochrome society and that in Australia, with various little communities, that a link can be established in a particular case with, say, the Serbian community, or the Chinese community, and that talking about the reasonable person, as if that is one person in the whole community may not be appropriate here.

MS LIEDER:   Well, indeed, I respectfully agree with your Honour, and say that it goes further than that.  It is the nature of the publication.  The yellow pages being the sort of publication that it is, one starts from the premise that one can assume that most members of the community would have a telephone and that, accordingly, would be issued with the Yellow Pages, which is a publication that remains extant for a year.  So, it is not even like a newspaper which may be today’s news and tomorrow’s fish wrappings.  So, this is a publication which remains around forever.  As we understand the law and, indeed, as was referred to by his Honour Mr Justice Charles, and as was stated by his Honour Justice Isaacs in the David Syme Case, which is referred to in our submissions, the test there set out, which his Honour Mr Justice Charles refers to, is whether the words are such that it is reasonable in the circumstance that it would leave persons acquainted with the plaintiff to believe that he was the person referred to.

His Honour then went on to say that a plaintiff may be named or described so as to be recognised, and so on.  Now, that would, in our respectful submission, take us to the point that the only test to be applied is whether, in fact, there is sufficient identification of the plaintiff, or the applicant, as he now is, with the entry so that those persons who did, in fact, know of him in that light would be able to identify him as the person.

HAYNE J:   There is no evidence that the Yellow Pages were commonly used by the Serbian community?

MS LIEDER:   I think the Court could probably take judicial notice of the fact that the Yellow Pages are used by everybody.

HAYNE J:   You are going to bridge it that way.

MS LIEDER:   We would say that this is a matter of inference and, indeed, as was said in a case that is not referred to in our submissions, but is referred to by his Honour Mr Justice Charles and by the respondent, in Hughes’ Case, as your Honours will have noted, his Honour the Chief Justice there stated that, of course, that question of whether or not the publication reaches and whether somebody would read it, can be a matter of inference.  In our submission, we would say the inference is a clear one.

HAYNE J:   It may even be more narrow than that, if a particular classification was commonly used in that community.  That is going to be a bit more difficult to infer, is it not?

MS LIEDER:   I do not think anybody was suggesting that the adult product section was more particularly availed of by the Serbian community than any other.  Indeed, I think everybody was anxious to say that they themselves, personally, would not avail themselves of it.

GUMMOW J:   That is part of the trouble in running this case.

MS LIEDER:   That is, indeed, part of the trouble, yes, and, indeed, his Honour Mr Justice Orminston referred to that in precise terms.  We, of course, would like, on the one hand, to adopt what his Honour said but, on the other hand, we do not wish to be seen as also adopting the Jones v Dunkel gloss that his Honour was putting on the matter.

KIRBY J:   But you do not have to do that if the judicial notice would be taken that Serbian members of the community would use the adult products section of the phone book no more and no less than other people of the community.  That means an awful lot of members of the community, probably a lot of members of the Serbian community.

MS LIEDER:   Yes, we respectfully agree with what you say ‑ ‑ ‑

KIRBY J:   Too much nicety about this issue, I think, at the trial.  That was the problem.

MS LIEDER:   That was, indeed, one of the problems, particularly, in terms of the findings as to the credit of the applicant which, of course, was not an issue at the Court of Appeal and the desire, I think, to remove oneself from any provision of either sexually explicit material or services was, indeed, as your Honour says, a matter of over much nicety.  We would simply submit this in respect of these matters:  it is not necessary for a plaintiff in a case of this nature to demonstrate that there has actually been a reader of the entry if the publication ‑ ‑ ‑

KIRBY J:   That seems to be common ground.

MS LIEDER:   It is common ground.  If that is so, then any finding that was made by the Court of Appeal which seems to depend upon the absence of such a reader must, ex hypothesi, either be, (a) a misinterpretation of the principle of Jones v Dunkel or, (b) must be a refutation of that same principle, and we would say that given that the court did, in fact, say that it was prepared to accept that there was no need to call a reader, if there was

no need then that was not an expected witness.  If it was not an expected witness, the principle in Jones v Dunkel simply cannot apply.  All that, therefore, is left would be a finding that there was a plethora of material of one sort or another.  Indeed, his Honour Mr Justice Tadgell found it compelling.  His Honour Mr Justice Charles did not go quite to those lengths, but he did express himself as saying he was a little surprised by the primary judge’s finding and described the evidence, although at one part described as somewhat vague, he did say of it, also, that it was not insignificant.

GUMMOW J:   Now, explain to me again, what is the issue of general principle involved in it?

MS LIEDER:   The issue of general principle is that in issues of identification in matters of this nature, where extrinsic material is relied upon, that if it is a question of determination of a mass publication as to that identification, it is not appropriate to invoke the principle of Jones v Dunkel for the absence of a witness who has actually read the entry.  That is to say, the point is that there has been a misunderstanding of the principles in Jones v Dunkel.  And secondary to that ‑ ‑ ‑

GUMMOW J:   Well, that is a secondary level, is it not?

MS LIEDER:   It is a secondary level.  The primary level is that in questions of identification if there is uncontradicted, we would say, evidence of the fact that there is identification of the person with the entry, then no more needs to be established.

KIRBY J:   And you say if the Court is unconvinced that there has been a lot of identification, that is a matter that sounds in damages, not in the proof of the cause of action.

MS LIEDER:   Yes, and I should have said so in terms and I failed to do so, but, yes, we would gratefully accept that.  If the Court pleases.

GUMMOW J:   Thank you.  Yes, Mr Ruskin?

MR RUSKIN:   Your Honours, rather than ‑ ‑ ‑

GUMMOW J:   What is the answer to what has just been put by your opponent?

MR RUSKIN:   The answer is simple.  In this case, rather than use the  words of Justice Hayne that there was a slip in the argument, we say there is a chasm in the argument, and the chasm is ‑ ‑ ‑

GUMMOW J:   Well, metaphors aside, what is the point?

MR RUSKIN:   The point is this:  in a case in which a plaintiff is not named, the issue of identification can be solved in one of two ways.  Either because the extrinsic facts that are relied upon are so notorious that that person does not have to be named, case No 1.  Case No 2, you must call evidence that somebody has made the link.

KIRBY J:   So you say Justice Hunt was wrong in that decision?

MR RUSKIN:   No, I do not.  Justice Hunt was right because he was using the example of the Prime Minister in the Barbaro Case.  He said this, say you had a publication ‑ ‑ ‑

GUMMOW J:   That would be a notoriety case, would it?

MR RUSKIN:   Indeed.  If you had a publication that said, “The Prime Minister is a criminal”, you would not have to call someone to say, “I read that”, “Yes, and who did you think it was referring to?”, “Well, I thought it was referring to the Prime Minister”, and “Who is he?”  You do not have to do that, but if you say - I can give the Court an example away from this case, the Consolidated Case which is Sir Frederick Jordan’s decision.  The Consolidated Case went like this, the owner of a block of flats was a company called Consolidated.  Somebody put a bulletin around the tenants saying the owner is, for the sake of simplicity, the owner is a crook.  Now, the plaintiff did not call evidence to say anybody reading that would know that the owner is Consolidated because it is so notorious.  They did not call any evidence of that kind.  Accordingly, the plaintiff failed because, although you could make the inference, if you could call evidence that Consolidated was notoriously known as the owner, that fact of notoriety was not established.

KIRBY J:   But we are talking here of a particular community.  Here, we are talking about the Serbian community and there was evidence that some people identified the present applicant was Top Line News.

MR RUSKIN:   Indeed.  That was evidence that, to some people, he was the face of Top Line News.  But, you could not, or you did not have to, and that is what this case is about, whether you had to draw the inference or not because of the way appeal was put.  Your Honours will recall that ground 5 of the appeal, the only issue on identification was the learned trial judge was wrong, was wrong in holding - the only evidence was the plaintiff, the individual, was the face of Top Line News.  There was no evidence that anyone who knew that read the entry and, conversely, no evidence that anyone who read the evidence knew that fact, and since the fact was not notorious, there was no evidence it was notorious in respect of that publication.

KIRBY J:   Yes, but as Justice Orminston pointed out, there would not be a lot of people rushing into court to volunteer, especially, perhaps, in this community, that they were going through, carefully, the adult products, so the issue is whether, given that this is a mass publication, round for a year, lots of people having access to it including, doubtless, some members of the Serbian community looking for adult products, sees Top Line, and you have evidence that says Top Line is the applicant, that that is enough.  Why not find it is enough?

MR RUSKIN:   Because, first of all ‑ ‑ ‑

KIRBY J:   You want to have the witness called that says, “I was going through the adult products and I saw it, and I got a terrible shock”.

MR RUSKIN:   Yes, “I was accidentally looking up ‘Pets’ and I happened to get on to adult products”.  No, your Honour, we would be - in these sort of cases, the correct evidence is that which Mr Justice Orminston said, it would be very easy for him to have called evidence to say, “I was somewhere, and someone came to me and said, I understand you are in the adult products being talked about down the street”.  That evidence is perfectly admissible in a libel action.  It is evidence of the grapevine, not a sausage of evidence of the grapevine was ever called, which was available to be called ‑ ‑ ‑

KIRBY J:   But a sausage of evidence was called, that they identified the company, Top Line, with Mr Trkulja.

MR RUSKIN:   But no evidence of the link, your Honour.  And the question is, I am not here because the judge found the inference and I want to say he is wrong, I am here to uphold his not finding the inference and, really, what my learned friend’s argument comes to is, you must have found the inference, the judge was wrong in law in not making ‑ ‑ ‑

KIRBY J:   You say wrong in law.  Is the appeal to the Court of Appeal from a County Court judge’s decision an appeal limited to a point of law?  Of is the Court of Appeal, as in other States, reviewing the facts and ‑ ‑ ‑

MR RUSKIN:   No, the Court of Appeal was asked to deal with the issue, whether the learned trial judge was wrong.  That is to say, whether it was not open to it.

KIRBY J:   That is the use the formula wrongly.  He should have, in the light of the uncontradicted evidence of some people that they identified Top Line with Mr Trkulja, that, in those circumstances, there was just uncontradicted evidence.  Some people out there, looking at this mass production publication, would draw that inference.

MR RUSKIN:   Yes, but the ground articulated in the Court of Appeal meant that the Court of Appeal would have had to find that the judge was bound to find ‑ ‑ ‑

HAYNE J:   Not open to find as he did?

MR RUSKIN:   That is right.  Not open to find as he did.  Bound to find that the link had been made out, notwithstanding there was no evidence of it.  There was no evidence of the link, except, you are the face of Top Line News.  The analogy is like this:  if somebody put in the Victorian Bar News, “Barrister AB, QC, is a criminal”, you would only have to call evidence that, in Victoria, barrister AB, QC, is well known to be X.  But publish that in the New Guinea Times, it is not enough to say everybody in Victoria knows AB, QC, is X.  It does not help you to link the New Guinea publication with the plaintiff, and that ‑ ‑ ‑

KIRBY J:   We are not up in New Guinea, we are in the Melbourne Yellow Pages.

MR RUSKIN:   Yes, indeed, but we have the same hiatus, the hiatus which was open to the judge to find - another judge might not have, although we would say it was not possible to find - but what we have to answer is this:  it was open to the judge not to make the link in the absence of evidence which linked, in a small community, you are the face of Top Line News, to the entry.  Because the entry has to be of and concerning.  Apart from all that ‑ ‑ ‑

KIRBY J:   The entry is of Top Line, people in the Serbian community identify the plaintiff with Top Line and, therefore, people in the Serbian community seeing or hearing of this entry in a mass production publication will make that link.

MR RUSKIN:   Indeed, but, your Honour, all the authorities - and we can just give you the pages of the relevant one - talks about the need actually to have read it.  You have to have that link.  You have to have somebody who has actually read the libel.  It is no good me writing something mean about someone and putting it in my drawer.  It may be very defamatory but it has to be published to someone ‑ ‑ ‑

KIRBY J:   Yellow Pages are not put in your drawer.

MR RUSKIN:   No, they are not, your Honour.

KIRBY J:   They are put out to thousands and thousands, hundreds of thousands of people in the community.

MR RUSKIN:   But in circumstances where you have not made the link by evidence, it is open to the judge to say that the hiatus is there.  If you simply consider the cases - I will not even take you to the cases, but I will give you the page numbers - in the Capital Case, in Bruce v Odhams, the first of our authorities, in every one of them they talk about the need actually to have read it, and in the case of  ‑ ‑ ‑

KIRBY J:   Presumably, these are in cases of newspapers or other publications, not in case of a Yellow Pages advertising adult products.  There would inevitably be a disinclination on people to come and say that, or some people, to come and say that they looked through it.

MR RUSKIN:   But that only means, with respect, that the judge might have said ‑ ‑ ‑

GUMMOW J:   We come back to the question of inference.

MR RUSKIN:   Yes, it is about inference.  The judge might have said, “I will draw the inference because people are too embarrassed”.  But he did not.  So, what this Court has to say is, “Is that simply not open?  That judge had no right not to make the inference”, and what we say is that, for reasons articulated by the Court of Appeal, it was open to the judge not to make the link, especially as the evidence about the face of Top Line News itself was so bodgie.

KIRBY J:   That brings me back to the question I began with - the first question I asked.  What is the proper function of the Court of Appeal?  Looking at this in New South Wales, it is not to ask whether it was not open, but whether, properly viewed, the facts have this complexion, and you seem to be supporting Justice Tadgell’s statement that the court, the judge at first instance, was not required to find it.  Now, do you say that is the correct principle?

MR RUSKIN:   Yes, I do, your Honour.  I say that is ‑ ‑ ‑

KIRBY J:   It must be different here than it is in other parts of the country ‑ ‑ ‑

MR RUSKIN:   But, your Honour, that is ‑ ‑ ‑

KIRBY J:   You are required to prove as distinct from on a rehearing concluding that that is the proper inference, making allowance for the advantages that the primary judge had.  But, here, there was no question of credibility on this issue.  It was just a question of whether or not you drew the inference from the fact that some members of the Serbian community said they did identify the plaintiff with this company, that, therefore, others would, looking at the entry in the Yellow Pages, have drawn the same inference.

MR RUSKIN:   There was some issue of credibility on that very issue because the court did talk about those three witnesses, their evidence being extremely vague.  One of them said he knew he was the face of Top Line News, but he did not say when he was the face of Top Line News.  So, there was that sort of problem as well that made the evidence very vague.  It is no good saying, “You are the face of Top Line News”, but when, relative to this publication.  It might have been four years earlier.  So, there was that element as well, which made the case more complex and then there was the Nesterczuk point, which was that there was an identical publication - I really must bring this to the attention of the Court.  There was an identical publication, simultaneous publication, in Mr Big, or Melbourne Big, and it said exactly the same thing at exactly the same time.

KIRBY J:   Is that called Mr Big down here, is it?

MR RUSKIN:   No, I am sorry, this is just ‑ ‑ ‑

HAYNE J:   No, Mr Ruskin has Mr Big on the mind, it is simply Melbourne Big.

MR RUSKIN:   It is Melbourne Big, we are big in Melbourne, sir.  This is a point that goes to causation.  It is like the Nesterczuk Case, where, I think it was Sir Victor Windeyer said, it says a lot about negligence but says - very eloquent about negligence, but says nothing about whose negligence.  Now, here you had precisely the same contemporaneous publication - exactly the same words.  This was another reason which casts doubt on the link because he had to show, on the balance of probabilities, it was my entry that did it.

KIRBY J:   Well, that some damage was done to him by your entry and by some people who would, just by chance, look at adult products in one of the most read publications in the State.

MR RUSKIN:   That is right.  On the balance of probabilities compared to the other ‑ ‑ ‑

HAYNE J:   It has a great cast but not much of a plot, has it not?

MR RUSKIN:   Yes.  But that was another complication facing the judge.  It is like in all these cases - in the Wintle Case which we have cited ‑ ‑ ‑

GUMMOW J:   Yes, I think we have the points.  I think we are seized of the points.

MR RUSKIN:   I am sorry, sir.

GUMMOW J:   We know what the issues are now.

MR RUSKIN:   Well, the point was that it simply added to the difficulty that the applicant faced in persuading that the judge had to draw the inference.  We say that he did not have to draw the inference.

GUMMOW J:   And whether the Court of Appeal went wrong because it, in turn, was bound to make the inference.

MR RUSKIN:   Yes, that is right, and we say that is the square issue and we say that you could not be satisfied that any point of principle arises from that.  It is just the application to this case.

KIRBY J:   The reasons the Court of Appeal did not, was because Justice Charles said it is Abalos, and the primary judge had advantages in seeing the witnesses, and Justice Tadgell said, “Well, it is Jones v Dunkel” and, really, although they do not in law have to call another witness who actually read it, the failure to do so was fatal in this case.

MR RUSKIN:   That is right.  In other words, the hiatus was there, it was open to the judge to seize it, (a) because Abalos lets him do it, and/or (b) ‑ ‑ ‑

KIRBY J:   Abalos covers a multitude of sins.

MR RUSKIN:   Yes, it is a great case.  So, those are the matters which we say conspire to bring about the result that the applicant did not satisfy, rightly so, the Court of Appeal that the link had been made.

GUMMOW J:   Yes, thank you, Mr Ruskin.

MR RUSKIN:   Can we help the Court further?

GUMMOW J:   Thank you, Mr Ruskin.  Yes, Ms Lieder?

MS LIEDER:   Very shortly, your Honours, Mr Ruskin speaks about the hiatus of the evidence and we take issue with the fact that there was a hiatus at all.  If, in fact, we are correct in our primary submission which is that, given the nature of the publication, the fact that it may have been available, may have been read or not read by persons within the class of persons who were acquainted with the plaintiff, or the applicant, is irrelevant.  Once one has a situation of a publication that can fairly be expected to come into the hands of persons in the community generally, which necessarily includes persons within the class that are acquainted with the applicant, thereafter, the only question can be whether or not there was evidence of the identification of the applicant with the entry.

Now, we would say, with respect, that the Court of Appeal was not, in fact, making a finding of fact as such, or putting to one side the evidence of identification.  We commenced our submissions by saying that if they had done so, we would have very little to say to this Court.  We are very mindful of any appellate or supervisory court dealing with primary findings of fact.  That is not, however, what the Court of Appeal did.  There appears to be a blending, so to speak, of the two issues.  Firstly, that whether or not there was sufficient identification, his Honour Mr Justice Tadgell certainly found that there was a plethora of material that would link the applicant with the entry.  What he found was that it was necessary, however, notwithstanding that and leaving aside any question of the nature of the publication, to adduce evidence that, in fact, the entry had been read.

Mr Ruskin addressed the Court and says that every case says that there has to be evidence that someone read it.  Well, with respect, we take issue with it.  That is not what every case says and, indeed, his Honour Mr Justice Charles in his own ‑ ‑ ‑

GUMMOW J:   I do not think he quite says that.

MS LIEDER:   Perhaps I am doing him an injustice, I am sure I am.  I am simplifying his arguments to suit myself, essentially.

GUMMOW J:   Yes.

MS LIEDER:   I do believe, however, he said something very close to “almost every case”.

KIRBY J:   He did come very very close, I think.

MS LIEDER:   We would say that is simply not so.  In order for Mr Ruskin to support that, I presume he would then have to say that his Honour Mr Justice Charles was wrong, as a matter of law, in holding that there was no obligation ‑ ‑ ‑

KIRBY J:   I think it was when he said something like that that I asked him if he thought Justice Hunt had been wrong in the case that is cited in the Court of Appeal, and he disclaimed that.

MS LIEDER:   I think his answer was ‑ ‑ ‑

KIRBY J:   Mr Justice Hunt said, “You do not have to prove that that has been put up, that that is false”.  You do not have to prove it.

GUMMOW J:   In cases of notoriety.

MS LIEDER:   Well, with respect, we would say that the principle applies mutatis mutandis, in this sense, that if it is case is of notoriety, then you do not have to call evidence that the person is the person about whom the defamation took place, obviously, in matters of notoriety.  We say, the other side of the coin is that if, in fact, the person is not named then you have to call evidence that identifies that person with the entry and that has been done.

KIRBY J:   But may not there - this is the point I was trying to make earlier ‑ may not there be notoriety in the Serbian community?  There is notoriety, so it is said, that the applicant is the face of the business.

MS LIEDER:   Well, we would say that is certainly so.  Perhaps, we were misled because notoriety has this pejorative ring about it.  But, of course, your Honour is absolutely right.  The combination of all the evidence was that this man was, (a) was extremely well known in the Serbian community as being the face of Top Line and, indeed, so his Honour Mr Justice Tadgell found.  We would say, therefore, that if that is so, and if those principles are correct, there is, in fact, no hiatus in the evidence whatsoever.  If there is no hiatus in the evidence, then for their Honours to substitute, so to speak, the lack of what we would say is not a principle that they should have imposed ‑ ‑ ‑

GUMMOW J:   I think we are seized of that.

MS LIEDER:   Yes.  We would say, perhaps, a little prematurely.  We would say that they ought not to have done so and that is the point, really, that arises.

GUMMOW J:   Thank you.

MS LIEDER:   If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 3.19 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.21 PM:

GUMMOW J:   By majority, the Court is of the view that, notwithstanding the careful and precise submissions by counsel for the applicant, this application raises no question of principle sufficient to attract a grant of special leave and, further, there do not appear sufficient prospect of success for any appeal.  Accordingly, by majority, the application for special leave is refused.

MR RUSKIN:   We seek the costs of the application, if the Court pleases.

GUMMOW J:   Yes, I think that has to be with costs.

The Court will adjourn to reconstitute for the remaining matters.

AT 3.22 PM THE MATTER WAS CONCLUDED