Chakravarti v Advertiser Newspapers Limited A6/1996 [1996] HCATrans 312 (14 August 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A6 of 1996

B e t w e e n -

MANOBENDRO CHAKRAVARTI

Applicant

and

ADVERTISER NEWSPAPERS LIMITED

Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 1996, AT 3.30 PM

Copyright in the High Court of Australia

MR P.A. HEYWOOD-SMITH: If the Court pleases, I appear with MR R.J. BRADSHAW, for the applicant. (instructed by Johnston Withers)

MR A.R. HARRIS: If the Court pleases, I appear for the respondent. (instructed by Lawson Downs)

DAWSON J: Mr Heywood-Smith.

MR HEYWOOD-SMITH: If the Court pleases, this is an application for special leave in a defamation matter. The first question which is said to raise a question of special leave is the extent to which a plaintiff can rely upon a defamatory meaning not specifically pleaded but encompassed by in the sense of lesser than or within the meaning actually pleaded.

The plaintiff in this matter pleaded a meaning at page 102 of the appeal book, to the effect that the article asserted that the was actually involved in misconduct and conduct rendering it appropriate that he cease employment with Beneficial Finance or "any other position of trust". The defendant, having initially pleaded justification after a series of withdrawals, eventually pleaded that the meaning of the article was one of mere suspicion involving misconduct. The plaintiff, considering that there was nothing in the allegations, including no basis for even causing somebody to have a suspicion, sought by his reply to assert that if the meaning was one of suspicion, then it carried with it the further connotation that that suspicion was well founded

Could I invite the Court to go to page 130 of the application book because in the reply at 4.2, where this plea is made, in my submission, it is clear that what the plaintiff was saying was, "If the natural and ordinary meaning is not as I have pleaded it in my statement of claim, namely actual involvement, and it is restricted to" - those are the words used - "something less, suspicion only, then it is a well-founded suspicion", meaning, we would say, that it is an intermediate step between guilt and mere suspicion; a suspicion which is based on reasonable grounds, which is one that is warranted by the plaintiff's conduct, or something to that effect.

GAUDRON J: Is there not a further question to be raised in this context, namely, how was the case conducted at first instance?

MR HEYWOOD-SMITH: At first instance, I am pleased to tell the Court, that the case was conducted by the defendant on the basis that it sought to justify - - -

GAUDRON J: How was it conducted by the plaintiff at first instance? I mean, the defendant would have been responding to what you had put, and if you did not address the possibility of an even lesser meaning, then it was conducted on a basis which the defendant did not need to deal with.

KIRBY J: Justice Williams appears to have relied very heavily on this.

MR HEYWOOD-SMITH: What we say is that paragraph 11 of the defence, which appears at page 112 of the appeal book, the defendant raised matters going to the plaintiff's involvement with loans which necessitated the plaintiff, in his case, making a blanket denial of such involvement. Having made the blanket denial, the defendant, in cross-examination over numerous days, and following the subpoenaing of documents from the State Bank sought to justify, not merely a suspicion, not merely a suspicion which was warranted or based on reasonable grounds, but it was put to the trial judge, even truth of the meaning initially pleaded in the statement of claim.

I do not want to the Court to focus too much on this because it does not, in my submission, affect the first question because his Honour the trial judge - - -

KIRBY J: You say that but I have a lot of sympathy for Chief Justice Doyle's statement about the modern approach to questions of this kind but it does seem that the majority on this point was affected by what they took to be the way in which the matter was conducted at the trial.

MR HEYWOOD-SMITH: I would agree that certainly Justice Perry says that but without justification because Justice Cox, in his decision, notes that the defendant was totally unable - notwithstanding its attempts to justify the meanings which he had attributed. He dealt with it in a throw-away line as simple as that.

KIRBY J: In this State, the imputation is not the defamation, is that correct? I mean, you are not bound to the way in which you plead and prove the imputation in order to succeed, as under the New South Wales Act you are.

MR HEYWOOD-SMITH: That is right.

KIRBY J: So that you are in a common law position.

MR HEYWOOD-SMITH: That is right.

KIRBY J: The common law would normally allow a degree of flexibility that the smaller is within the greater. That is what the Chief Justice said.

MR HEYWOOD-SMITH: That is right. This, we say, is where there is controversy between the various State Full Courts. Can I take the Court, initially, however, to page 14 of the application book where the trial judge, at lines 17 to 27, sets out his found defamatory meanings, mainly:

that the plaintiff's conduct had brought him.....into collision with "the board".....that the matter of his conduct was of such gravity that it raised a question whether it amounted to criminal or civil misconduct -

that there was some involvement with a "Melbourne joint venture" which had caused the Premier to be angry, and had something discreditable attached to it, and that he left under a cloud.

Bearing that simply in mind, I would ask the Court to go to the book of documents and to the passage from Tobin and Sexton which is tagged 4. Tag 4, in this passage in Tobin and Sexton, the authors deal with this issue of the meanings to be attributed - the natural and ordinary meanings attributed by a plaintiff. They commence by noting the approach of Justice Fox in Hadzel v De Waldorf which was quite a narrow approach. They then note the decision of the English Court of Appeal in Slim v Daily Telegraph, and they note that the three members of that court approached it in three quite separate ways.

Lord Justice Denning would have approached it on the basis that it was not for the plaintiff to nominate the meanings at all, it was a matter for the jury. Lord Justice Diplock approached it on the basis that the plaintiff is entitled to nominate a meaning, and that becomes the most injurious meaning, and he is bound in the sense that the jury cannot find a more serious meaning, or a totally different meaning, but the jury is entitled to find any lesser meaning.

KIRBY J: Lord Justice Diplock said that? And that is the approach Chief Justice Doyle has taken?

MR HEYWOOD-SMITH: No, that is not the approach that Chief Justice Doyle has taken. The third approach of Lord Justice Salmon was that the plaintiff is "bound by his pleadings", the narrow approach taken by Chief Justice Doyle. The authors then go on to note that a later English Court of Appeal in Lucas Box appears to have opted for the middle course of Lord Justice Diplock. Then the authors say at the bottom of the page:

These observations in the judgment of the Court of Appeal are consistent with the decision of Diplock LJ rather than that of Salmon LJ in Slim v Daily Telegraph. The author of Gatley on Libel and Slander (8th ed, para 1069) suggested that the "better view" was that.....of Salmon LJ. Nevertheless, despite the fact that in the years since Lewis v Daily Telegraph it has become "settled practice" for a plaintiff to plead the meanings he relied on, there is no authoritative answer to the question as to the extent to which the plaintiff is bound by those meanings at trial.

It is that authoritative decision that we ask this Court to consider.

GAUDRON J: Is that not a question that will, in any event, depend on how the case was conducted at trial or, on ordinary principles, it would - - -

MR HEYWOOD-SMITH: We say, on the authority of Lord Diplock, no. It would be for the defendant to give consideration to what lesser meanings it believes flow from the article and as to which of those, if any, it wishes to justify. But, can I just say, beyond that, the Full Court of Western Australia, in the Gumina Case, which is at tag 2, opts for the Lord Justice Diplock approach and notes that the Full Court of Victoria has opted for such an approach. That is at page 361.

KIRBY J: Leave aside these authorities, because they are really only illustrations and, in a sense, practice in every jurisdiction will be marginally different to attitudes to practice questions, but what is the important point of principle that is not safely left in the practice decisions of the courts here?

MR HEYWOOD-SMITH: The important point of principle is this, and it is identified by Justice Anderson in the second of the Western Australia courts, that there is a controversy. The controversy is over whether it is the Lord Justice Diplock approach, which would allow a less injurious meaning, or the Lord Justice Salmon approach which appears to be suggested the Prichard v Krantz Case in this State and, of course, the case under appeal, follows and that there is a controversy. If that controversy were to be - - -

KIRBY J: Why, in principle, is Lord Justice Diplock's approach preferable, in your submission?

MR HEYWOOD-SMITH: Whether or not it is preferable, in my submission, is not something that I need necessarily approach in this matter. I simply draw attention to the fact that there is a controversy between Full Courts - Full Courts of Victoria and Western Australia take the Lord Justice Diplock approach which, in my submission, would allow the plaintiff to succeed in this action, because Justice Cox has found meanings, lesser meanings, and Chief Justice Doyle has found some of those - not all, some of those, as well.

KIRBY J: But you not say, in support of your application, that that is in harmony with modern approaches to the practice of allowing a degree of flexibility and takes into account that in many of these cases these issues are determined by juries who may not be able to make the fine distinctions that are urged. It is not so in this State, but in other States it may be.

MR HEYWOOD-SMITH: Quite so, and I have to move on to the other matters, but can I conclude by saying but the Full Court here, the majority of the Full Court with Justices Perry and Williams, have approached it on the basis that they were strictly confined and that the plaintiff was strictly confined and that there was no possibility of him relying upon a lesser meaning.

It is necessary for me to proceed quickly. The third issue, is one which I say is a clear special leave point. Can I ask the Court to go to the Wrongs Act which is after tag 1. The Court will see on the second page of the Wrongs Act, section 7. It is in these terms:

A fair and accurate report.....shall.....be privileged -

The question is, should that be construed as meaning a report to the extent that it is fair and accurate shall be privileged and to the extent that it is not fair and accurate shall not be privileged. Here, in a very clear way, the Chief Justice, in respect of the second article, identified five defamatory imputations. He held that in respect of two of them they properly arose out of what might have been a fair and accurate report of this particular extract.

In respect of three, he held that they could not arise but they did arise, on the article, as a result of an unfair and inaccurate report of the proceedings: is the defence available in respect of those two imputations that arose out of a fair an accurate report, to the extent that it was fair and accurate?

GAUDRON J: Did the Chief Justice really - I mean, it is a bit ambiguous - find that, or did he really say, "You can take it into account in the assessment of damages that the imputations were - - -"

MR HEYWOOD-SMITH: That is the fourth issue. The third issue, in my submission, is a quite distinct one. We say simply this, that prior to this statutory defence, which came into the common law world in the late 19th century as a result of an English Act, a newspaper proprietor could not report on public meetings and report defamatory imputations without knowing that he would have to justify. Parliament saw fit to say, "We will give you a defence, but the defence is conditional. The defence is conditional upon your report of those public proceedings - - -"

KIRBY J: This is the interpretation of a local statute. It involves an examination of all the particular facts of this case. It does not sound terribly attractive.

MR HEYWOOD-SMITH: With respect to your Honour, the same provision appears in the defamation laws of every State, in similar verbiage, in every State and Territory. The question is, "Is the defence conditional upon it being a fair and accurate report in all material respects?" We say here that the Court clearly found that in material respects it was not fair and accurate.

GAUDRON J: Can I take you, though, to page 58, Mr Heywood-Smith, line 27 of the application book. I know his Honour has qualified his findings that it was not a fair and accurate report to the extent that, but what all that seems to lead to is not that the defence succeeds in part or not in part, but to this:

the plaintiff is entitled to damages in respect of the first article, but only in respect of the two imputations identified by me.

I am wondering if in the end, it is only a matter of damages on his Honour's finding.

MR HEYWOOD-SMITH: With respect, your Honour, we say it is not because there would be clear instances - not perhaps shown on these facts, but take, for example, the case of a report of a - - -

GAUDRON J: You still get a verdict, do you not? There is no verdict for the defendant as to the imputations. There is a verdict for the plaintiff on the articles.

MR HEYWOOD-SMITH: There might still be a verdict but it might be one which is substantially reduced.

GAUDRON J: That is the damages. That is damages.

MR HEYWOOD-SMITH: It is the damages, but there will be fact situations where that part of the report which is fairly and accurately reported, conveys a defamatory imputation which is so great compared with others, that it will render nugatory the award. That, in my submission, however, is the point. The point, we say, is one which Gatley says nothing about, which we say our learned friend, in his summary, has not answered at all, and we say that this is a situation where we are considering the rights of the citizen. What degree of protection has Parliament given to commercial enterprises which report proceedings?

The fourth question which your Honour has put to me as damages is an interesting one as well because when one comes to assess the damages, if I am wrong on that situation, does one assess the damages on the basis, "Well, there are some defamatory imputations here which are not protected, but there are some defamatory imputations which are protected. How do I assess the damages? Do I deduct from the defamatory effect of the former, the defamatory effect of the latter?" That, we say, is what the Chief Justice has done. That is what he says he does at page 69 of the appeal book, when he says, at line 13, "Therefore one must subtract from the defamatory effect" and - - -

GAUDRON J: And he does there refer to them as "non-actionable parts" which supports your third argument.

MR HEYWOOD-SMITH: That is right. He says you "subtract from the defamatory effect", and he seeks to rely upon Dingle's Case, a case where, in fact, we say he has quite misread the speech of Lord Radcliffe, where Lord Radcliffe says that, "No, the approach in such circumstances is not to detract from the defamatory effect but to totally eliminate from your consideration such aspects as are privileged." They are two quite different concepts. My time is running out. I must pass to the fifth point.

The fifth point is this: the Court will note from section 7 of the Wrongs Act that section 7(1) has a proviso:

Provided that

(b) the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it is proved that the defendant has been requested to publish by the same newspaper or radio or television station, as the case may be, a reasonable letter or statement by way of contradiction or explanation -

That proviso occurs in the legislation of Western Australia, Victoria and the Northern Territory, as well. It is a matter not solely of South Australian application. I have not time to take the Court to the letters but one significant aspect of this matter was that the article came out. Mr Chakravarti was not in the Royal Commission on the day. He went the next day to the Royal Commission and he says, "May I have the transcript?". He is given the official transcript. The official transcript does not record the answer of Mr Simmons. Those are our submissions.

DAWSON J: We have your written submissions. Thank you, Mr Heywood-Smith. Mr Harris.

MR HARRIS: If the Court pleases, could I deal with the first of the matters raised by my friend, and that is the question of the finding of the majority of the Full Court in relation to the first article that an imputation of guilt of the discreditable conduct, which was the subject of the report, was an imputation of a substantially different kind to the imputation of suspicion.

As we say in our outline at paragraph 4 of the statement of argument, this matter has been dealt with by the Full Court of the Supreme Court of South Australia in Prichard v Krantz. Prichard's Case is, I think, the first behind the tab of the respondent's documents. In particular, the passage in the judgment of his Honour the Chief Justice at page 386 deals, we say with respect, with the position of lesser imputations being included in the greater. Your Honours, I will not read the passage but it is referred to by his Honour the Chief Justice in his judgment in this case. It is also referred to by his Honour Justice Williams, and the principle is alluded to by Justice Perry. Shortly put - - -

GAUDRON J: But was not applied by the majority, was it?

MR HARRIS: We say, your Honour, that it was in respect of the first article because what the majority found was that the assertion by the plaintiff in the reply that any suspicion was a suspicion well founded was an imputation of guilt.

GAUDRON J: You have to read into that an abandonment, do you not, of any lesser meaning? You have to take that reply as one which either did abandon it or would lead a reasonable person to believe that any lesser meaning was abandoned.

MR HARRIS: Yes, and your Honours, we say that the trial in this case was conducted on the basis that the plaintiff never disavowed the fact that the words complained of in the first article conveyed an imputation of guilt.

GAUDRON J: Why would he? How did it affect you, in any event?

MR HARRIS: There are very good reasons why a plaintiff in a defamation case may choose to aim at the more serious imputation. We accept, on the authority of Prichard's Case, that in light of the practice in the common law jurisdictions where the defamatory imputations are not a distinct cause of action unless they are supported by extrinsic facts and are a true innuendo, but modern pleading practice has developed in the courts, we say, to this effect and that is that parties are entitled to know, including defendants in defamation cases, what is the nature of the case being brought against them. My friend has Taylor v Jecks on his list, and the decision of Justice Anderson, who wrote the judgment of the Full Court of the Supreme Court of Western Australia. His Honour observes in that case that the reason why plaintiffs, in all but the most obvious cases, resort to setting out the defamatory senses in which they claim the words to be understood.

GAUDRON J: But in this case, you, yourself, asserted a defamatory meaning. The defendant said, "Well, it has got a defamatory meaning but it is this lesser defamatory meaning".

MR HARRIS: That is true, your Honour.

GAUDRON J: That you then say you were going to justify it. How could you be embarrassed or in any way prejudiced in the conduct of the defence when it was the meaning that is now in issue is that which you asserted, arose on the first article.

MR HARRIS: Because, your Honour, the plaintiff pleaded back to the defendant that if the article complained of conveyed the imputation of suspicion, it was a suspicion that was well founded. We say, with respect, there is clear authority for the fact supporting the finding of the majority in this case on the appeal that that is an imputation of guilt. Therefore, although my learned friend in his outline refers to this intermediate status which is a certain conduct by the plaintiff giving rise to a suspicion that he has been guilty of the discreditable conduct which, on the cases that he refers to, was really just stating in the active voice what might have been said in a passive voice which was raised in the defence, the straight allegation of suspicion.

KIRBY J: But plaintiffs who are hurt are going to, as it were, state it at its highest hurt. But why should it not be open to a judge or a jury, looking at it, to say that within the particulars it still is something less. These are very complex trials. It seems better in terms of principle and more conformable to modern, less rigid rules of practice to permit the smaller to be within the greater.

MR HARRIS: Your Honour, we would accept that the smaller is within the greater, except in the circumstances his Honour Chief Justice King said in Prichard's Case at page 386, except where the imputation amounts to "an imputation of a substantially different kind". We say that an imputation of suspicion is an imputation of a substantially different kind than an imputation of guilt.

GAUDRON J: It has never been so held, though, has it?

MR HARRIS: With respect, your Honour, it has.

GAUDRON J: Has it?

MR HARRIS: In Lewis's Case - could I take your Honours to - - -

GAUDRON J: It has been held that there are different meanings but not of a substantially different kind.

MR HARRIS: Your Honour, in Lewis's Case, which is at tab 2 of the respondent's outline, could I ask your Honours to go to the speech of Lord Reid at page 260.

GAUDRON J: There are certainly different shades of meaning. That is the question, is it not?

MR HARRIS: We say it is important to distinguish two circumstances. In the common law situation where there are no separate causes of action for distinct defamatory imputations, nevertheless, there may be separate defamatory stings conveyed by a publication and, indeed, by proceedings, as we say in our outline. There is no invitation by requiring a degree of rigidity to what a plaintiff asserts as the defamatory senses which he complains of in the trial. That is no invitation to devise ingenious and rhetorical imputations which the courts have set their faces against in all jurisdictions. Lord Reid, in Lewis's Case at page 260 about point 5, says this:

Then it is said that if that is so there can be no difference between an allegation of suspicious conduct and an allegation of guilt. To my mind, there is a great difference between saying that a man has behaved in a suspicious manner and saying that he is guilty of an offence, and I am not convinced that you can only justify the former statement by proving guilt.

The significance of this matter is this: what might be available to a defendant by way of a defence of justification will depend upon the defamatory sense in which the plaintiff complains of the article.

GAUDRON J: Were you not in this situation: you had to establish less by way of defence on this imputation than you had to establish on the more serious charge if you were to justify it? I fail to see how that gives you any prejudice when you are in the same factual area and you have assumed the burden of justifying.

MR HARRIS: Your Honour, because as Justice Perry pointed out in his judgment, had the plaintiff accepted - and we say he never did - that the words were capable of bearing a meaning no more serious than suspicion, the course of the trial may have been entirely different.

GAUDRON J: It is not up to the plaintiff to accept that. That is trying to force the plaintiff to abandon part of his case. That puts it all on its head.

MR HARRIS: But, your Honour, the finding of the majority was that the words were incapable of bearing an imputation of guilt. We would say that finding is correct.

GAUDRON J: Yes, but that does not matter. The only real question to you, from your point of view, can be whether in some way you were prejudiced of the conduct of your defence. That is why you look to substantially different meanings - wholly different meanings.

MR HARRIS: Perhaps I can come back to what this Court said in Harrison's Case, which is at tab 3 in our bundle of cases, and to the judgment of Justice Mason at page 303. At about point 5, his Honour said:

Glass JA was right in saying that any publication which goes on to say or suggest that the charge was well founded, i.e., that the plaintiff was guilty, carries the further imputation of guilt. The question which remains is whether the melodramatic account published in the appellant's newspaper is capable of bearing the imputation -

so, Justice Mason, in Harrison said that an assertion that a suspicion of guilt is well founded is an imputation of guilt. That is what the majority of the Supreme Court found in this case. They found that an imputation of suspicion was an imputation of a substantially different kind. The question of what imputations the words are reasonably capable of bearing, initially is a question of law; after is a question of fact. At the end of the day this is a question of fact. What are the imputations which these words bore? The Full Court found, by a majority, that in respect of the first article that the imputation of suspicion was a different imputation than the imputation of guilt. We say that is a finding of fact.

KIRBY J: Thereby reversing the trial judge, who is the judge of fact, who had certain advantages in the conduct of the trial.

MR HARRIS: With respect, your Honour, the learned trial judge, as we say in our outline, never went through the exercise of looking at the pleaded imputations of which the plaintiff had complained; looking at the proceedings which were the subject of the report, and then looking at the article to determine for himself what were the defamatory imputations that the report bore. How did they compare to the defamatory imputations which he could take from the proceedings which were the subject of the report and what of those did the plaintiff complain of? With the greatest of respect to the trial judge, he never went through that exercise. He looked at the words upon the basis of deciding for himself what he thought the imputations might flow from it, some of which were not pleaded, we say, by the plaintiff at all.

DAWSON J: Which is probably exactly what a jury would do, but still - - -

GAUDRON J: Does the imputation have to be pleaded in South Australia?

KIRBY J: No, that is the New South Wales position, I think, because the statute requires it, but not here.

GAUDRON J: I do not think it does. Perhaps, particularised, so as to ensure the fairness of the trial, but I do not think it has to be pleaded, does it?

MR HARRIS: We say, as we say in our outline, that is not the issue here. The plaintiff, as it happens in all but the most obvious of cases, chose to do it. He chose to do it in circumstances where, in Prichard's Case, the Full Court said a plaintiff will be bound, not strictly and not as is contended in the application for leave on the basis that there is no room for movement or not flexibility, as your Honour Justice Kirby has alluded to, but simply, if the imputation is one of a substantially different kind or one that is more serious than the one that is the most serious one alleged, a plaintiff will not be allowed to rely on it. We say that is in conformity with modern pleading practice, that the parties ought to be entitled to know the boundaries of the fight in the trial when they go to the trial. We say the decision of the Full Court in respect of that imputation that it was substantially different is not one that ought to attract the attention of this Court on a leave application.

Can I move on to the second matter which is agitated by my learned friend and that is the question of fair and accurate report. Your Honours, we say that there is no relevant leave point that arises in this case, either on the question of liability, initially, or on the question of damages to which your Honour Justice Gaudron has referred, for this reason: the defence of fair and accurate report exists because the law recognises a distinct public interest in open access to justice, to proceedings of courts, royal commissions, et cetera. In those circumstances, a balance is struck against the private expectation of an individual's reputation being maintained in favour of the wide access of members of the community to the public proceedings of courts and royal commissions. That is why the defence exists. We say that the test of a fair and accurate report is to identify the gist or the sting, or the number of stings, which might be found in the relevant proceedings that are being reported on. One then has to look at the report of those proceedings and see whether or not there is any substantial difference between the stings which are conveyed by the report and the defamatory stings which were uttered under absolute privilege in the relevant proceedings. To the extent that the latter is more than the former, it is not a fair and accurate report, but it is not a case where the whole defence falls where there are separate and distinct defamatory imputations.

GAUDRON J: I must say, unless you sue on the imputations, and each imputation is a separate cause of action, it must. It is one defence.

MR HARRIS: But, your Honour, there may well be many situations where, in a long proceeding, for example, there could be a number of quite distinct defamatory charges made.

GAUDRON J: How do you announce the verdict? Verdict for the defendant on these imputations; verdict for the plaintiff on the others. You do not do that in South Australia. You do in New South Wales, of course.

MR HARRIS: What happens is that the plaintiff recovers a verdict, as the plaintiff recovered a verdict in respect of the second article in this case.

GAUDRON J: I mean, it surely would affect costs, for example. Anyway, these are matters for - I am taking up your time.

MR HARRIS: Your Honour, the point that is agitated by the applicant would have this effect: if there were, in proceedings in a royal commission, evidence under absolute privilege which made three distinct defamatory charges - one matter and therefore one actionable proceeding, we accept, at common law. But assume that those imputations were that the plaintiff is a murderer, the plaintiff is a rapist and the plaintiff is a swindler, they are three quite distinct defamatory charges. The situation could emerge then that if the article reported, accurately, murderer and rapist, but inaccurately reported swindler, the effect of my learned friend's point agitated on this leave application would be that the whole defence of "fair and accurate report" would fall and the plaintiff would be entitled to be compensated for the distinct imputations of murder and rapist, which were given under absolute privilege where anybody in the proceedings could have heard them and where those proceedings were fairly and accurately reported.

We submit that would be incongruous and would defeat the purpose for which the privilege exists. The nature of a fair and accurate report is the extent to which the defamatory impact of the report is greater than that of the proceedings.

KIRBY J: It would encourage good journalism and accurate reporting.

MR HARRIS: With the greatest of respect, your Honour, that is a penalty which is too high to be paid in terms of the purpose for the existence of the freedom..

KIRBY J: That is an important matter to be discussed.

MR HARRIS: Your Honour, section 7 of the Wrongs Act contains the sanction to which your Honour alludes and the sanction which applies in respect of sloppy, uncaring or reckless journalism. This defence is unavailable if it is found that the matter was published maliciously. That means if the defence was raised in respect of those three imputations to which I have alluded - murderer, rapist and swindler - and assume that there was a fair and accurate report of the first two but not of the third, our submission would be that the plaintiff would be entitled to be compensated in damages for the defamatory impact of the unprotected report, that is, swindler. It would be unjust for him to be compensated for the others. If that were the price to be paid of the reporting of the public doings of our courts they would not occur and the public interest for which the defence exists would not be served. But, more importantly, we say that the whole defence does not fall unless the court could be satisfied that the gratuitous edition of swindler, which in no way is connected to the proceedings which are the subject of report, would warrant an inference of malice, that is, that the journalist was so reckless or had activated by a predominant motive to injure the plaintiff, that an inference of malice could be drawn which would defeat the whole defence.

Otherwise, we say, the position is that the defence of fair an accurate report is available to such of the defamatory imputations, although they are not separate causes of action, but to such of the distinct defamatory imputations which are correctly reported. The plaintiff is entitled to damages in respect of those which are not. We say that is precisely what happened in this case. His Honour the Chief Justice, we say, with whom Justice Perry agreed, and Justice Williams, while not expressly agreeing, applied a similar analysis. His Honour the Chief Justice, we say, correctly dealt with the question of liability by reference to the speech of Lord Radcliffe in Dingle's Case and can I take the Court, without going to it, but refer to page 68 of the appeal book, where his Honour said:

While accepting that the defendant was only liable in respect of those parts of its article which were not privileged or which had not been justified -

et cetera, referring to Lord Radcliffe. His Honour then goes on to discuss Dingle, and what his Honour did was to say: "I found that some of these imputations were permissibly reported. They are fairly and accurately reported in a sense that what was given under absolute privilege was correctly described by the newspaper. The purpose for which the defence exists was served by these accurate reports". "I have found", says his Honour Chief Justice Doyle, "there are separate defamatory imputations", of which he identifies three. "They are distinct and in respect of those the plaintiff recovers damages."

His Honour refers, on pages 68 and 69, to Dingle and the word "subtraction" occurs on page 69. His Honour was not there discounting for the defamatory effect of protected publications. His Honour was simply saying, "A plaintiff is only entitled to damages for such of the defamatory imputations as are conveyed." So, we say he did not discount. He correctly applied Dingle and the result was the plaintiff got a verdict for those parts of the publication which were not protected. That is consummate with the purpose for the existence of the defence. There being no malice, there ought to be no interference.

DAWSON J: Thank you, Mr Harris. Mr Heywood-Smith.

MR HEYWOOD-SMITH: I have nothing in response, if the Court pleases.

DAWSON J: There will be a grant of special leave in this case.

AT 4.10 PM THE MATTER WAS CONCLUDED