Levine, David --- "The UTS Law Review" [2000] UTSLawRw 15; (2000) 2 University of Technology Sydney Law Review 214

The UTS Law Review

Address at the Launch of the first issue —
The Courts and the Media 1999

The Hon. Justice David Levine RFD

Supreme Court of New South Wales
(Defamation List Judge)

UTS Law School is to be congratulated on the fact of the publication of the first issue of its Law Review. Particularly, it is to be congratulated on its theme: The ‘Courts and the Media’. Having had an opportunity over the last week to read the journal, I have come to the conclusion that so thorough is its coverage of all aspects of the subject matter, there is very little, if anything, that I can now add in a useful way. As has been remarked within the body of the material in the journal, the very fact that a forum on the theme took place is eloquent testimony to the changes in attitude and outlook on the part of the courts and of the media to their necessary interaction.

Before turning to the theme of the remarks I propose to make in exploitation of this occasion, there are two papers on which I wish to comment. First is that of Professor Flint. His chapter on judicial restraint contains nothing with which I disagree. I merely wish to say, additionally, that it is, of course, quite open to a judicial officer to act in one way that should not attract the label either of ‘legislator’ or ‘sociologist’—namely, simply to make recommendations for law reform. This quite frequently occurs: the recommendation arises from the judge being in the best position to observe the operation of statute law in the actual vital circumstances of a litigated case. For example, the Jury Act was recently amended to require parties in a civil action to announce the names of witnesses prior to the empanelling of the jury. The amending legislation at the same time abolished challenges to jurors in civil cases. Under the 1994 amendments to the Defamation Act 1974, the only issue for the jury to determine is whether or not a given publication in fact carries the pleaded imputations (and whether they are defamatory). There is, arguably, no room for the operation of the new section of the Jury Act. In a trial earlier this year, I delivered a ruling that the amendment to the Jury Act simply had no application and could have no rational application. Indeed, to apply it strictly could be quite counterproductive, given that the issue for the jury involved the calling of no evidence from any person at all.

In the criminal law in particular, the judge performs a function that might well attract, but wrongly, the description, ‘sociologist’. In sentencing (the most difficult task for common law trial judges), elements of personal and general deterrence are, as a matter of principle, components of the process. They cannot be applied in a sensible way without, to put it simply, judges being aware of what is going on in the community. Judges are aware of what goes on in the community, not merely because they are members of the community. In these kinds of areas, it would not be a lack of judicial restraint but, rather, an abdication of judicial responsibility for judicial officers to be silent. This is principled activism—it is but the performance of judicial duty—but founded upon and circumscribed by the evidenced facts of each case in a recognised context. I do not take anything that Professor Flint said in his paper to indicate that he would have any view to the contrary.

Professor Sally Walker’s paper on “The Courts, Parliamentary Privilege and the Media” is worthy of special acknowledgement. I am presently engaged in the writing of a judgement on this very subject. I have been inundated with written submissions and have folders of photocopies of reported cases. How welcome was Professor Walker’s paper when I read it: there it all is, and it will be of much assistance to me in coming to the view that I will have to form on a very difficult question in this particular case. It might well be the first reference in a judgement which cites this journal.

It is, however, to Mr Richard Ackland’s paper that I wish to devote a few moments. He concludes by saying: “There is much about which the media should be legitimately concerned in view of the recent spate of restrictive, uncreative, unimaginative judicial determinations.” Mr Ackland said this in the context of his topic “The Law and Freedom of the Media” and his discussion of the decisions of the High Court in Theophanous and Chakravati and of the Supreme Court of Queensland in the Pauline Hanson case.

If that sentence was repeated by substituting the words ‘trial judges’ for ‘the media’, it would have equal pertinence.

I think it fair to say that, by reason of the development of the substantive law of defamation in New South Wales since the 1974 act, and appellate intervention (both active and resigned) and the excruciating and sterile technicalities attending its practice, it has virtually come about that there can no longer be seen to be a remedy in tort for the wrong, or a mechanism for the assertion of the right of free speech in any sensible, reasonable, practical way.

There might have been good reason in 1974 for enacting that the imputation will be the cause of action. But a quarter of a century ago, I really do not think it could have been foreseen that the rights of litigants, on both sides of the record, would have been so adversely affected by the developments to which I have referred.

Fortnight after fortnight, I have to deal with arguments concerning whether a pleaded imputation is proper in form and is capable of arising from the relevant publication. The vocabulary of the Defamation List now includes words used with increasing frequency: ‘Jesuitical, casuistry, weasel words’ and, the best of all, ‘epexegetical’.

The tort of defamation is intended to provide a remedy for a person whose reputation has indefensibly been injured by the publication of something disparaging of that person’s good name. It boils down to determining what the publication means—or it should. The amount of the court’s time, let alone litigants’ resources, expended profligately in the determination of what words, sentences and phrases mean is positively scandalous—and this is at the initiation of proceedings. Contextual imputations then raise their heads, and the same arid arguments are advanced for and against their availability as to form and capacity. Matters of principle have been elevated to an obsessive preoccupation, the playthings of forensic ingenuity, fantasy and imagination, at the expense of the early, quick and cheap litigation of real issues that affect the people involved in libel actions.

From time to time, I have tried judicially and judiciously to say that the nonsense must end, not because of any predisposition on my part to the agonies a plaintiff must undergo in prosecuting an action, nor because of a view I have formed of the resources available to a media defendant in the taking of technical points as part of some suspected campaign or strategy to keep a plaintiff out of court. I have done so because it simply no longer makes any sense to me. It makes no sense to me in the wide and important context of the administration of justice, which should involve the speedy and efficient and fair resolution of disputes.

To bring about statutory reform, history has shown is a long, slow process. The 1994 amendments to the Defamation Act 1974, which I regard as a hasty, reactive legislative spasm, removed the most important issues from the jury and took us back 200 years to the enactment of Fox’s Libel Act.

The one issue left to the jury is the one that is the most complex and artificial and, from the position of the detached and reasonable observer, ridiculous. The question is not simply: what does a publication mean and is what it means defamatory? The jury has to determine, in the no-doubt novel (for the jurors) environment of the courtroom and the jury room, whether to ordinary, reasonable people the words that constitute the imputation carefully crafted by lawyers are in fact carried by the publication complained of.

To suggest the repeal of s9 of the Defamation Act 1974, with consequential amendments, is no doubt heretical. To suggest a focus not merely upon dealing with the complexity of cases but, more importantly, upon the elimination of the complexities, would, in many quarters, also be seen as heretical. Unless, however, this is done, the tort of defamation will be dead, the remedy will be dead, the rights will be dead, and the interests both of the community and of the media will be ill served and, thus, the administration of justice and the rule of law will be, at the very least, profoundly compromised.

Whether or not the area of privacy law will offer the mechanism for relief, or the basis for asserting, in another way, freedom of speech, could be the subject of discussion.

In this context, I can announce that measures will be taken over the forthcoming months to change the mechanisms for and the practices of the conduct of defamation actions in the Supreme Court—from being subject merely to directions in the Defamation List to more intense case management. The newly introduced Professional Negligence List will serve as a model, although, of course, account will have to be taken of differing strains in principle and practice in each area of litigation. Emphasis will be placed upon the early determination by the jury of whether or not pleaded imputations in fact are found, and are found to be defamatory. The merits of this course are obvious: the plaintiff being successful, thereafter there will be a regime of directions and management involving strict compliance with rules of practice, to enable and empower the court to bring it about that the remaining issues will speedily and, above all else, more cheaply be disposed of.

It is often argued, of course, that case management is inimical to the adversary system. There comes a time, however, when the administration of justice and, thus, society as a whole can no longer afford to leave totally in the hands of lawyers and their clients the conduct of their cases. Often this is so because the litigants themselves, as well as their lawyers, appear to lose sight of the objective which they seek to achieve—namely, the just and fair determination of their asserted claim. The wood is lost sight of by reason of the trees, the doughnut by reason of the hole.

When the model is at an advanced stage of preparation, comments will be called for from members of the profession and all interested persons. But the reality is: change there will be. This change will not be at the expense of litigants’ rights. It will not be an unprincipled exercise in forensic or, indeed, economic rationalism. Rather, it will be directed towards the triumph of common sense and, indeed, good sense, in the interest of fairness, justice and access to the law.

I am confident that even Mr Ackland would not gainsay at least the good intentions behind these proposed reforms.

I am particularly pleased to participate in this evening’s event, not only as the Defamation List Judge of the Supreme Court of New South Wales. I am President of the Arts Law Centre of Australia, which enjoys a special relationship with this university and particularly with the Faculty of Business and the Postgraduate Diploma in Arts Management, in the provision by Arts Law of expert lecturers in the areas of copyright, contracts, business structure, agency and employment. I am not embarrassed on the occasion of the launch of a law journal dealing with the media and the courts to put in well-deserved praise for the Arts Law Centre and for this university, and their combined efforts towards artistic and cultural achievement which, in its own way, also reflects the civilised democratic society of which the rule of law and freedom of speech are fundamental components.

The legal profession and the media will be well served by volume one of the University of Technology Sydney’s Law Journal. The community as a whole will be well served by the maintenance of the high standard of contributions, as exemplified in the first issue, which I was privileged to launch.