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High Court of Australia Transcripts |
Adelaide No A37 of 2001
B e t w e e n -
GEOFFREY MARK ROBERTS and KENNETH ALLAN CASE
Appellants
and
RODNEY PIERS BASS
Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 10 APRIL 2002, AT 10.17 AM
Copyright in the High Court of Australia
MR S.M. LITTLEMORE, QC: May it please your Honours, I appear for the appellants with my learned friend, MR P.A. HEYWOOD-SMITH. (instructed by David Wilson)
MR D.A. TRIM, QC: May it please the Court, I appear with my learned friends, MR N.J.T. SWAN and MR H.M. HEUZENROEDER, for the respondent. (instructed by Lempriere Abbott McLeod)
MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear on behalf of the Attorney-General for Western Australia with my learned friend MR R.M. MITCHELL, intervening. I am not quite sure whether we are in support of the appellants or the respondent. (instructed by the Crown Solicitor for the State of Western Australia)
GLEESON CJ: Are you seeking leave or intervening?
MR MEADOWS: We do not need leave; a 78B notice has been - - -
GLEESON CJ: Thank you. Yes, Mr Littlemore.
MR LITTLEMORE: May it please, your Honour. I should start, your Honours, by withdrawing paragraph 60 of our written submissions which is in error, the last paragraph.
If your Honours please, the concept that an election campaign meeting is an occasion where candidates submit to genteel inquiry unmotivated by political point scoring is, we say, by the measure of contemporary political culture, a legal fiction. Defamation is the sine qua non of election campaigns in this country, yet the respondent retreats to the standards of another democracy - - -
GAUDRON J: Are you putting that forward as a proposition? A fact or a proposition of law?
MR LITTLEMORE: As a proposition of fact.
GAUDRON J: Thank you.
GLEESON CJ: Did you not win this argument in the Court of Appeal?
MR LITTLEMORE: It is more complex than that, your Honour. We did in part but not for the entirety, not in respect of Mr Roberts. Probably we won it in respect of Mr Case but not in respect of Mr Roberts.
GLEESON CJ: I may have misunderstood but I thought that the Court of Appeal disagreed with the trial judge's finding, in fact overruled the trial judge's finding in relation to a purpose of defeating an electoral candidate being an improper purpose.
MR LITTLEMORE: In respect of Mr Case, yes, but the purpose we say was indistinguishable that Mr Roberts had and the majority held that that was an improper purpose, that is, seeking to defeat the candidate at election.
Your Honour, as we had said in our written submission, the trial judge, whose reasoning was adopted by the majority on this score - - -
GLEESON CJ: Just before you pass from that I want to clear up my own understanding of this. I am looking at page 592, paragraph 43.
I am unable to identify any improper purpose attaching to the actions of either defendant and in this respect I would disagree with the conclusion of the Trial Judge.
MR LITTLEMORE: Yes, that is Justice Williams. Justice Prior adopted - your Honour is right, with respect, but that does not apply - the difficulty is this: whether one sees it as an improper purpose or some other form of express malice - and this is where the difficulty arises - the majority was of the view that Mr Roberts did have express malice. Now, one of the judges on the basis that he had an improper purpose, that was Justice Prior adopting the learned trial judge, and the other two on the basis of - I am sorry. Your Honour, we have that at paragraph 52 as my learned junior reminds me. The majority of the Full Court did not find a discrete improper purpose. Justice Prior and Justice Martin held that - we say Case's motive was no different from Roberts but the majority was satisfied that Case's motive was proper and that Justice Williams, in the passage that your Honour has referred to, found that Roberts had a proper purpose.
GLEESON CJ: Yes. I thought that was the main point of departure between the Court of Appeal and the trial judge. The trial judge seemed to be under the impression that seeking to procure the defeat of an opponent at an election is an improper purpose, but the Full Court would not have that.
MR LITTLEMORE: Quite so, your Honour.
KIRBY J: You say, do you, that both of the appellants had the same motive?
MR LITTLEMORE: Yes, your Honour.
KIRBY J: But may there not be a difference between the motive of - it depends on what level of generality you express it. At one level of generality they both wanted to defeat the respondent but at another level of generality Mr Case was really only handing out a document. It would be a curious thing for most people who hand out documents in elections that they go into the same level of detail as perhaps somebody who is organising the election. Thousands and thousands of people hand out documents and really do not read the fine print. Was that the position of Mr Case on the facts as found?
MR LITTLEMORE: Yes, it was. He read it and on his evidence, which is unchallenged, said it sounded right to him. We say that means that it accorded with his own views of the facts set out in it and/or the facts known to him that were notorious in the community, for example. On that point we say it cannot be the law that a person who volunteers to hand out a "how to vote" card and does not read it is in a better position in terms of his liability for what that document contains than a person who reads it and applies some consideration to it and adopts it as an opinion that he shares. At the heart of this case, we say, is this problem about it dealing with opinion. This is about the transmission of political ideas, and to say that somebody who is a volunteer to hand out ideas is under a duty to read Hansard or to make some special inquiry is inimical to the idea of political freedom.
KIRBY J: Yes, I only intervened because, at least in my own mind at this stage, I see a distinction between the position of Mr Roberts and Mr Case. You are appearing for both of them, but I just hope that in the course of elaborating your arguments that you will keep your eye on the fact that they may not be in the same boat.
MR LITTLEMORE: We certainly shall, your Honour, if your Honour pleases.
CALLINAN J: Are you saying that there are degrees of political activity, that a person who chooses to hand out pamphlets should be in a different position from the person who writes them?
MR LITTLEMORE: Yes, your Honour.
CALLINAN J: They are both involved in political activity. They are both seeking to achieve an object. Why should there be any distinction between them?
MR LITTLEMORE: Because, first of all, if it were a factual imputation, the opportunities that the author has for checking or verifying his facts, in terms of a Lange-type reasonability, or in terms of general common law qualified privilege - I mean, we only need this defence where the statement made is false and defamatory. So the author of a false and defamatory statement has, in writing it, obviously had a certain opportunity to check and verify his facts. The person handing it out is in a very different position.
CALLINAN J: Only because he chooses to be available to hand it out on the morning or the day of the election.
MR LITTLEMORE: Yes, your Honour.
CALLINAN J: If he wants to, he can make his own inquiries beforehand. Surely he knows before he decides or before the day that he proposes to hand out election pamphlets.
MR LITTLEMORE: Not necessarily, but even if he did, that does not mean he has had access to the pamphlet itself.
CALLINAN J: It is his choice, Mr Littlemore, it is entirely his voluntary choice. He does not have to be there and he does not have to be engaging in this sort of political activity.
MR LITTLEMORE: Your Honour, we say that the concomitant of that is that people simply will not engage in political activity. If they feel they can be liable for doing no more than scanning a document and assisting a party in whose principles they believe to hand it out to people as they turn out up at the polling booth, that cannot be right.
CALLINAN J: Not at all, not at all, they can take a responsible attitude to it.
MR LITTLEMORE: But, your Honour, if that involves reading Hansard, it becomes ludicrous.
CALLINAN J: That does not - - -
KIRBY J: I raised the question because it would seem to me, if the issue is malice - - -
MR LITTLEMORE: Yes, your Honour, it is.
KIRBY J: - - - that you may have a different element of malice than a person who puts the spin, designs the pamphlets, promotes the campaign, organises the strategy, from somebody who has just gone along and handed out electoral pamphlets. There are thousands and thousands of our fellow citizens who do that every election and the notion that they should read Hansard to make sure that what they are handing out is right is absurd.
MR LITTLEMORE: That is our position, if your Honour pleases.
If your Honours please, we say that election campaigns are a distinct subset of protected political communications. We say that was acknowledged by this Court in Theophanous where, at page 123, Chief Justice Mason, Justices Toohey and Gaudron said this:
criticism of the view, performance and capacity of a member of Parliament and of the member's fitness for public office, particularly when an election is in the offing, is at the very centre of the freedom of political discussion.
There is this idea, we say, of urgency and plainly, as a matter of common sense, in respect of those handing out a brochure, no opportunity to verify and, indeed, no duty to verify. We say that the burden placed on a plaintiff to defeat the defence of qualified privilege whether at common law or under Lange in the context of election propaganda will acknowledge that the publication of political ideas must be protected unless express malice of a high order in the form of ulterior motive or improper purpose is - - -
GUMMOW J: What is this distinction between under the common law or under Lange, I do not understand it?
MR LITTLEMORE: Your Honour, there is this situation, that if one - - -
GUMMOW J: What do you understand Lange has to say?
MR LITTLEMORE: That where you cannot get qualified privilege at common law because of distribution to too great an audience, then there is a test of reasonability to be applied.
KIRBY J: We had better go to that. It is some years since the Court decided Lange and, at least speaking for myself, I thought the most important core principle in Lange is said by a unanimous Court that common law moulds to the Constitution and you cannot have two different standards. The common law, in the matter of elections being the constitutionally relevant fact, moulds to the Constitution and therefore you do not get two standards. You cannot have two standards. That was said very clearly in the text of Lange. You only have the one standard in matters to which the constitutional norm is appropriate.
MR LITTLEMORE: Your Honour, that would appear to start at about page 571 of the report.
KIRBY J: What is the volume?
MR LITTLEMORE: 189 CLR, your Honour.
GUMMOW J: It starts at 570 actually.
MR LITTLEMORE: Thank you, your Honour.
GUMMOW J: About line 8, "The basis of this common law rule".
MR LITTLEMORE: Yes, your Honour, and then proceeding:
Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public. However, the common law doctrine as expounded in Australia must now be seen as imposing an unreasonable restraint on that freedom of communication, especially communication concerning government and political matters, which "the common convenience and welfare of society" now requires.
Then to the opposite page, we say, at about point 4:
However, the common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh J referred.
GUMMOW J: Exactly. What Justice Kirby is putting to you then follows, does it not?
KIRBY J: I think the general discussion of it is at 562 where there is quite an extensive discussion, which has been repeatedly referred to in other contexts, of the common law and the Constitution. You cannot have two standards. The Constitution hovers over everything and the common law then, in matters to which the Constitution attaches, just has to mould to the constitutional imperative, either express or implied.
MR LITTLEMORE: But, your Honour, to revert to Justice Gummow's question, the common law - - -
GUMMOW J: The first question is: South Australia is a common law State for this purpose, is it not?
MR LITTLEMORE: Yes.
GUMMOW J: So we are not considering the impact of any constitutional ideas upon any State statute?
MR LITTLEMORE: No, this is not a section 22 of the New South Wales Act situation.
GUMMOW J: That is right.
KIRBY J: Or a Code situation.
MR LITTLEMORE: No. Interestingly, the test is really the section 22 test.
McHUGH J: I know commentators say that. I would not stake my all on that.
MR LITTLEMORE: If your Honour pleases.
McHUGH J: Maybe it is a lot wider than what the cases of New South Wales hold.
GUMMOW J: Anyway, we do not have that problem here.
MR LITTLEMORE: No, we do not, which is fortunate.
GUMMOW J: It is simple. It is just Lange at page 570, 571.
MR LITTLEMORE: Yes. To revert to your Honour's question, we are talking here about the protection of false and defamatory statements.
GUMMOW J: No, that is not my question. My question was: you seem to be relying on two species of qualified privilege, one which you say is common law and the other which you say is "Lange".
MR LITTLEMORE: Your Honour, our understanding of Lange is that if you have common law - - -
GUMMOW J: What I and various members of the Court are trying to put to you is that Lange in fact is common law.
MR LITTLEMORE: It is a two-stage thing, we would respectfully submit, but one deals first with qualified privilege at common law without Lange and if it is such an occasion and if one can pass that hurdle, one does not need the extension of the common law that is offered by Lange. It would appear to us on our reading of Lange that the point that makes the difference is whether there was excessive publication. In this case excessive publication was never in issue. It was not pleaded in defeasance of the defence of qualified privilege, so in a sense we leapfrog straight to Lange. We have that protection if we do not already have the protection under qualified privilege.
We say the real complication that arises in this case is because the Full Court, as did the trial judge, was confused about where the reasonableness has to be, whether it is the reasonableness of the imputation or the reasonableness of the inquiry into foundational facts. We say that the Full Court was wrong in that it was applying a standard not to the imputation, which is the crucial thing, but to one particular foundational fact not in relation to Mr Case at all, because the publication that he made was of the "how to vote" card and it had no reference to this matter, which was the imputed membership of Mr Bass with the Frequent Flyer Program. That was the only erroneous foundational fact, and that is no part of the orange card, the "how to vote" ticket. It is no part of the imputations and it is not mentioned in that document. So for the Full Court to follow the trial judge in relation to unreasonableness of publication of that fact, not as an imputation and not as an imputation borne by "P4", we say was an error.
KIRBY J: You are jumping a little ahead of my understanding of the facts. Do not assume that I have absorbed all the detail of the facts yet.
GAUDRON J: And of my understanding of the way in which the case was conducted. I thought that at no stage did the defendants rely on reasonableness. At no stage did they argue that in the Full Court.
MR LITTLEMORE: That is right, your Honour.
GAUDRON J: You must be saying therefore, as I take it, that this is not a Lange-type matter. There was reciprocity in the traditional sense, because it was published within the electorate and no further and one just looks to the common law test. Is that what you are saying?
MR LITTLEMORE: That is what we are saying, your Honour.
GAUDRON J: But is there a concession implicit in that that it was not reasonable?
MR LITTLEMORE: No, there is not. We say that there may not be in particular circumstances of comment, for a start, any test of reasonability as articulated in Lange. The gap in Lange is it only deals with assertions of fact, testing the reasonability of an assertion of fact, that is a defamatory assertion of fact. Now, membership of the Frequent Flyers Club is not defamatory. To say somebody is a member is not to defame him. It is the imputation that arises from that and the other material with it, and the relevant imputation in respect of "P4" was about failing in his duty to the community by taking junkets abroad.
GLEESON CJ: Just counting heads of judges below, you won 4:0 on the issue of whether this was published on an occasion of qualified privilege - - -
MR LITTLEMORE: Yes.
GLEESON CJ: - - -and you are ahead 3:1 on the issues of improper purpose.
MR LITTLEMORE: Yes, your Honour. But on the issue of express malice, we lost in respect of Mr Case, 4:0, I suppose.
GLEESON CJ: The issue of express malice was approached below as though it involved two elements: purpose and belief. You won on purpose in the Full Court and you come to us having lost the case on belief.
MR LITTLEMORE: Yes, and we say - - -
GAUDRON J: I would not think that they were necessarily distinct issues.
MR LITTLEMORE: We entirely adopt that. The issue is express malice.
GAUDRON J: Well, the issue really is, is it not, whether the publication was made for the purpose which attracted or called forth the privilege claimed.
McHUGH J: And that is right and, if I might say so, Mr Littlemore, I think where your submissions do your case less than justice is that they do not emphasise the necessity for the activating factor. Chief Justice Jordan, in a series of cases in New South Wales, used to emphasise the fact that ill will was there was not sufficient to defeat the privilege; you had to show that it was what actuated the publication, so that notwithstanding the ill will nevertheless the defendant could succeed because it had not been shown that the purpose of the occasion had been breached.
Now, this seems to me to be extremely important in a political context. If you were a member The John Birch Society, you hated Earl Warren, for example, but it did not necessarily mean that you lost your privilege merely because you hated Earl Warren. What would have to be proven is that that ill will actuated. In other words, the publication was personal rather than political, and I think this is an important issue in this particular case.
MR LITTLEMORE: Yes, your Honour. I am sorry that our submissions do not deal with that, but that is the position we wish to take. Ill will, obviously, can translate to a wish to see him lose his job.
McHUGH J: Exactly. The whole purpose in political struggles is to injure your opponent's reputation, and quite often there is bitterness between the parties. But speaking for myself, I do not see that that loses the privilege unless you can show that the attack is, as I say it, personal rather than political.
MR LITTLEMORE: Yes, your Honour. And that, as the Chief Justice has said, we probably succeeded on, 4:0. But how that impacts - and it is not a question of, we say, breaking it up into these little subcategories of lack of honest belief, or ill will, or intention to harm reputation as opposed to candidacy. It is a general rubric, we would say, of express malice, which has to accommodate the realities of - as your Honour says, and as I tried to say at the beginning, defamation is the sine qua non of political contests. Of course it is. Half a contest is preaching your own virtues and the other half is denigrating your opponent and/or his or her virtues.
KIRBY J: Not necessarily in those proportions, nowadays.
MR LITTLEMORE: No, I am afraid it is not. Much as we would prefer it to be like the nineteenth century cases, it is not.
KIRBY J: It is not only nineteenth century. It was later than that - changed.
MR LITTLEMORE: Yes. Braddock v Bevins is probably in that same category in the English courts, your Honour.
GAUDRON J: Now, do you also say - it does not appear to be in your submissions anywhere - that if the publication were found to be reasonable, you would win?
MR LITTLEMORE: It is not the publication that has to be reasonable, but it - - -
GAUDRON J: Well, the communication.
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: But you did not rely on it below. Now, I do not understand what was going on.
MR LITTLEMORE: What was going on was - contrary to the point that Justice Gummow made to me - the trial judge and the court took the view that if it were an occasion of qualified privilege, then the common law test was applied first, and there was not to be an examination of Lange if the first test were the one that you satisfied, if you were not pushed by excessive publication. It appears to be implicit in that that publication within the electorate is not excessive.
KIRBY J: Now, that may be what this Court laid down in Lange; I do not remember. I do not remember, and I have to be taken to what the Court said, but if you look at it conceptually, one would have thought that the correct approach is to say this is a case where there is obviously a constitutional concern, because there is nothing more integral to the Constitution of the Commonwealth than the proper conduct of an election, including, I would think, a State election. But once you start conducting that election, you are in that box. It is not a matter of saying you first of all explore general issues of defamation law. You are in a box which is marked "constitutional", and therefore the common law in that box has to mould to the constitutionality of the circumstance.
MR LITTLEMORE: We would have said that, your Honour, yes. But our - - -
KIRBY J: But that is not how you conducted it, as I understand it.
MR LITTLEMORE: Our reading of Lange says that it is a two-stage process.
KIRBY J: Well, you will have to take me to where the Court said that, because - - -
GAUDRON J: You may be right in that, but there does seem to be a problem in saying if you publish to a larger audience, all that is required is reasonableness; if you publish to the limited audience, what is required is that you use the - well,
the publication was made for the purpose which attracted the privilege.
MR LITTLEMORE: Yes. Your Honour, at page 573, at about point 4, opposite Justice Gaudron's name:
reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience.
That was our reading.
GAUDRON J: What it says.
MR LITTLEMORE: Yes. That might explain it, your Honour.
GAUDRON J: Unless reasonableness is a higher test than use of the privilege - or use of the occasion for the purpose which attracts privilege. I would have thought it was not.
MR LITTLEMORE: It cannot be we would have said, your Honour. There is no point in going to another test if the test is higher than the one you have just failed. It must be a more liberal test and it is our respectful submission that in respect of the communication of political ideas as opposed to assertions of fact in respect of political matters, then it is a higher standard still.
McHUGH J: To get it in context, at least my understanding of Lange was that at common law it was only in exceptional cases that the common law recognised a privilege, or an interest or duty, to publish defamatory matter to the general material.
MR LITTLEMORE: To the general public, your Honour.
McHUGH J: To the general public, I am sorry. Lange said that in respect of political matters that rule was too narrow because it was contrary to the Constitution, therefore, common law privilege was to be extended to cover it but given the widespread damage that could be done by a publication to the general public some control device was needed and that was reasonableness of conduct in that extended publication situation. It is expressly said just after the sentence where you read:
Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.
On the following page it is said that the reputation of people would be protected by that requirement of reasonableness and would be further protected:
the defence will be defeated if the person defamed proves that the publication was actuated by common law malice to the extent that . . . it is not covered under the rubric of reasonableness - - -
MR LITTLEMORE: Which appears to be a kind of retreat back to make the distinction between reasonableness and common law malice even harder to pick up.
McHUGH J: There are matters that might be difficult for a defendant to establish but once having established it under the rubric of reasonableness it is, in effect, taken out of the equation when you come to consider the question of malice.
MR LITTLEMORE: Yes. May I say this, your Honour. Justice Gaudron was asking me earlier about whether it is a higher or lower test under Lange. On more reflection, it is obviously a lower test if reasonableness is the extended common law test, and this Court has articulated that as being reasonable belief in the truth in the matter, reasonable inquiry and no belief in the untruth of the matter. They are three particulars of express malice.
McHUGH J: Exactly.
MR LITTLEMORE: But when one goes back to express malice, ill will and a wish to injure more particularly - a wish to injure will be express malice under the common law test but not under a political test because that is a sine qua non of this kind of political communication.
McHUGH J: It could be. If ill will exists and the defendant decides to publish defamatory material to give effect to the ill will but not to the purpose then it seems to me that ill will can defeat even a Lange-type privilege but that because publication has got nothing really to do with political matters or government matters, it is actuated by the ill will.
MR LITTLEMORE: Yes, and, your Honour, you could not have ill will and reasonableness because ill will either prevent reasonable inquiry or prevent a belief in the truth of the facts or would constitute a knowledge of the falsity of the facts.
McHUGH J: I am not sure you can state it in absolute terms. There may be cases where what you did was reasonable but, nevertheless, ill will brought about the publication. I mean, you may have checked everything out but unfortunately made a mistake, therefore, you get over the reasonableness part, but then comes the question of your ill will and if it be proved that, really, it had nothing to do with politics or government matters but you really wanted to give vent to the hatred you had of this person, then you lose the privilege.
MR LITTLEMORE: Yes, your Honour, though it is hard to see anybody checking everything they could if they really were motivated by ill will.
McHUGH J: I do not know, Mr Littlemore, there are some journalists from time to time with agendas who check out their material very, very - take a person like Jack Anderson in the United States, somebody like that - - -
MR LITTLEMORE: Do we have to go that far afield, your Honour? I was dealing with Mr Case, if I may, just to cover matters that perhaps have not been as well stated as one would have wanted eventually with - - -
KIRBY J: They might be well stated but not well absorbed yet.
MR LITTLEMORE: If your Honour pleases, that is most generous of your Honour. The picture is this, that at the time he published the matter complained of, Mr Case was a teacher, a former member of the ALP and certainly active in community affairs.
KIRBY J: Where do we find the matter complained of?
MR LITTLEMORE: That is "P3".
KIRBY J: Where is it in the appeal books?
McHUGH J: It is 475, 480 and 481, I think, from recollection.
MR LITTLEMORE: I am sorry, I am dealing with just the "how to vote" card. That is to be found at page 386 of appeal book 2 and in the original, your Honours, it is this orange piece of paper of that size, the sort of thing that all voters are used to having thrust at them as they approach the polling booth. Now, Mr Case had been active in community matters but particularly opposing privatisation of the local hospital, the Modbury Hospital and, indeed, his group had published their own pamphlet about it, making the same imputations about junketing and about acting contrary to the community interest on the hospital, as are in this document, "P4". Mr Case agreed that he had resolved to target Mr Bass in the election campaign in order to defeat him in the interest of returning the hospital to public ownership.
The respondent contends that Mr Case's intention of targeting Mr Bass affects his act of publication and we respectfully respond that that amounts to question begging. Mr Case was overseas during the State election campaign, returning only two days before the poll. He volunteered to hand out material for the local action group and was sent to a particular polling booth and he collected the material from a cardboard box there and, having read it, formed the opinion that there was nothing in it that caused him concern. It sounded right to him. He handed it out for two hours at the particular polling booth to which he was assigned.
As the Chief Justice has said, there is no issue that the acts of publication were on an occasion of qualified privilege. If he published false and defamatory imputations that were assertions of fact, then the determining factor of whether he was entitled to defend under qualified privilege depended on proof of his improper purpose or ulterior motive and if that form of express malice were established, his defence under Lange then had to be considered by the standard of reasonableness.
But, your Honours, what we say is this, that if he published false and defamatory imputations that were comments, express malice required proof that he did not honestly possess the opinion that is expressed in the document and the Lange test of reasonableness, we say, has not yet been engineered to accommodate political ideas, only defamatory factual assertions.
GAUDRON J: What do you assert is comment at page 386?
MR LITTLEMORE: Nothing is comment in 386. The comment is in the imputations found by the trial judge, which, your Honour, boiled down to four. This is, of course, a common law jurisdiction and the imputations are not each a discrete cause of action, as distinct say from certain of the Code States and New South Wales, but the imputations, as his Honour found them, are those from the statement of claim in respect of this publication, and we would summarise them as four. Firstly, that the plaintiff travelled overseas for his own pleasure, not to enable him to better serve his electorate - - -
GAUDRON J: What is that comment?
MR LITTLEMORE: Because it amounts to a deduction, opinion, remark or criticism.
GAUDRON J: I am not too sure it does. It says he travelled overseas for a particular purpose. I would have thought that was an assertion of fact.
KIRBY J: But the word "junket" has in it the connotation of an improper or abusive or excessive purpose in the travel, does it not?
MR LITTLEMORE: Yes, and, your Honour - - -
KIRBY J: Was that the foundation of the finding of the imputation, "junket"? Because to ordinary Australians "junket" would mean that you have gone on a trip and you have pretended that it is for some official purpose but it is actually for some private and unofficial and inappropriate, or even wrong, purpose.
MR LITTLEMORE: In fact it is not, we would respectfully submit, quite as strong as that. When barristers used to go to London to appear in the Privy Council, those were junkets. They worked.
GLEESON CJ: What?
CALLINAN J: What? That is an outrageous submission.
MR LITTLEMORE: When journalists go with the Prime Minister in his Air Force aircraft to tour certain other countries, those are junkets, we say. A junket is - - -
GLEESON CJ: That seems to involve an assumption about a standard of comfort in the aeroplane that may not be entirely accurate.
MR LITTLEMORE: Your Honour, I looked at the Oxford Australian dictionary last night and that talks about a junket being an official trip with this element of pleasure to it.
GLEESON CJ: Mr Littlemore, where do we find in the judgment of the primary judge his conclusions about these imputations? I have to confess that for my part, because we are only concerned in this appeal with the issue of malice, I have not looked very carefully at his - - -
MR LITTLEMORE: Your Honour, I have not tagged the page, but I think the way his Honour did it was to deal with each of the - there is a heading at 539, "DEFAMATORY MEANING", and then his Honour deals at page 544 with this pamphlet. He starts there.
GAUDRON J: Is it really correct also to say that at common law fair comment is a defence to the imputations, or is it a defence to the publication, or parts of the publication?
MR LITTLEMORE: It is a very difficult question.
GAUDRON J: To the extent that you are asserting these are comments, it may be a question that has to be asked. I mean, if the case is simply about malice, that I understand, but you seem to have widened it.
MR LITTLEMORE: I am trying to, I must be frank, your Honour, because this strikes us as where you get the gap in Lange. Now, one reason they are comments is because his Honour found they were comments. Dealing with the defence of fair comment - - -
GAUDRON J: Where does his Honour find they are comments?
MR LITTLEMORE: It is at page 546. Now, I put myself in a difficult position here because his Honour does deal with a defence of fair comment and the appeal did not. What his Honour did there was, we say, quite plainly treat each of the imputations as a comment. The first question under the defence of fair comment is, of course, whether the imputation is an assertion of fact or an expression of opinion, and his Honour unquestionably accepts these as comments, but finds they were, to quote him at line 30 on page 547, "misstated and distorted comments".
KIRBY J: If every time an Australian politician or other official has been said to be on a junket, it is a distorted and inadmissible comment, especially in the context of elections, then our constitutional debates and so on are going to be really hampered, in my opinion.
MR LITTLEMORE: With respect, we would adopt that, your Honour.
KIRBY J: It is a very mild comment by Australian standards and very common and sometimes accurate.
MR LITTLEMORE: Your Honour, my learned junior has handed me a copy of the Macquarie Dictionary, which I must admit does not receive everybody's approbation.
KIRBY J: I do not know why not. It is a specific dictionary to Australian usage.
MR LITTLEMORE: And it says this of "junket", if your Honour pleases:
a trip as by . . . individual politician at public expense and ostensibly to obtain information.
So there is, we say, always an element that yes, you have this benefit of going on this junket. It was colourable, I suppose would be one say of putting it. Justice Gaudron, if I may, we say it is comment because the judge found them to be comments.
GAUDRON J: We are talking only about the orange pamphlet?
MR LITTLEMORE: Yes.
GAUDRON J: For my part I do not see any of the statements in the pamphlet a comment other than fact. If you say that the question is whether the imputations are comment, I have actually never heard it said that imputations are comment.
MR LITTLEMORE: That is what Perkins v The Land Council in the New South Wales Court of Appeal said. You plead comment to the imputation.
GAUDRON J: Yes, but that is an act. That is a different act, where what is actionable is the imputation. Even so, I would not necessarily assume the correctness of that. So, if you have something to tell me what imputations are comment, good. Then I need to know - and you can perhaps write a note on it - as to why the defence would be as to the imputation rather than the publication.
HAYNE J: Or rather to the action itself, a defence to the action.
MR LITTLEMORE: Yes, your Honour.
HAYNE J: Argument from categories to which tags are commonly applied under statutory systems, to the content to be attributed to those tags and thence to the operation of a common law system is, it seems to me, an entirely unhelpful chain of argument. But it seems to me, if I may say so, to underpin much of the argument that you have thus far advanced.
MR LITTLEMORE: If your Honour pleases. The imputations pleaded were those found by the trial judge in respect of exhibit "P4", the "how to vote" ticket. They are to be found at page 9 of book one, and there are many of them - paragraph 14 of the originating process. Criticisms can be made of certain of those. For instance, imputation (a) is simply not defamatory, but the gist of that group of imputations is more properly to be found in (c). It is about there being an improper purpose, or not the proper purpose, for the trips.
In Gorton v ABC, your Honours, particularly on this question of what is a comment, Justice Fox adopted Justice Cussen's definition of "comment" in the following words. That is in 22 FLR particularly at page 193 and at the bottom of page 193, referring to Clarke v Norton, his Honour cites Justice Cussen, referring:
to the primary sense of "comment" as "something which is or can reasonably be inferred to be a deduction inference, conclusion, criticism, judgment, remark, observation..."
He refers to Fleming and to the present comment which he says was, in his opinion "fair" and then goes on:
Fairness in this sense has the meaning customarily given to it in defamation . . . It is not necessary that it be shown to be "true" but it must have been an honest expression of opinion, and such as a fair-minded person might make.
Now, quite apart from the question that neither the Full Court nor the trial judge addressed that test of comment, we say that that dictum is correct as to what is a comment as distinct from an ascertain of fact, and in the imputations - - -
GLEESON CJ: There is a simple reason why the Full Court did not address that question, is there not? He that it was not argued.
MR LITTLEMORE: Yes, that is right, your Honour. But that does not mean that we are not still confronting a difficulty here with Lange when you are talking about reasonable truth of an idea and we have put in our written submissions - no doubt there is a problem with it, but Gertz in the Supreme Court of the United States has, what we respectfully submit is, a statement that has to be right whatever jurisdiction it is in, and that is that there is no such thing as a false idea. And what politics must depend on is the exchange of ideas to inform the community. The concept of wrong ideas has long been rejected in the United States and we say that is not isolated from Australia, because the real test of a wrong idea under our law is that when you profess it you do not honestly believe it.
KIRBY J: Yes, but there is a distinction between an idea which is encapsulating a fact or an idea which is encapsulating an opinion. If it is a fact the authorities in the United States quoted by the respondent point out, and have repeatedly said, as I understand it, and I think this Court may have said it, that there is no constitution or protection for false facts.
MR LITTLEMORE: But Gertz is about opinion, with respect, your Honour. The actual quote from Gertz is this: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas". Now we say, quite irrespective of this Court's attitude to Sullivan, and for that matter Gertz, that statement has got to be valid in this jurisdiction as anywhere else.
KIRBY J: But the defamation in that case was a false statement that the petitioner had arranged for a person to be framed. That sounds like a fact.
MR LITTLEMORE: That is fact, yes. I am not relying on the facts in Gertz but on that dictum, if your Honour pleases, which does distinguish facts, we say, from opinion. In Calwell v Ipec - - -
KIRBY J: That has been omitted from my collection.
MR LITTLEMORE: I am so sorry, your Honours, it is 135 CLR 335 in the judgment of Justice Jacobs. At the foot of the page he said this:
It is for the greatest public good that views on the political attitudes -
in that case -
including party loyalty, of members of the Houses of Parliament should be able to be expressed without inhibition. The public are entitled to the views on such a subject -
"the views", we would emphasise -
of political commentators, expert or expert. The views expressed, and the imputations thereby made, may be correct or incorrect, but the public has an interest in hearing them whatever they may be and it is for the public good that interest should not be stultified.
GAUDRON J: All of that is correct but that seems to be predicated on the notion that the views expressed are what are defended as comment.
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: And not the imputations. I had certainly thought that was so at common law where the standard plea was, in so far as the material complained of, consists of facts - the facts are true - and in so far as the material consists of comment, they are fair comment. They are fair comment, full stop. That was the position at common law, I think.
MR LITTLEMORE: Your Honour, that does though, does it not, create immense difficulties in respect of pleading and formulating?
GAUDRON J: I do not know. We are dealing with the common law. I also thought that at common law whether material was fact or comment, assuming it to be capable of being either, was for the jury.
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: You accept that that is the case?
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: Where are the findings of fact that it is comment, that anything is comment? Mind you, I do not think the trial judge dealt with it in a wholly orthodox way, but I do not find any state - any finding that it is comment and in the absence of such a finding and any complaint about the failure to make findings or any argument in the Court of Appeal as to what was fact or comment, I really do not see why you should be allowed to intrude this issue now.
MR LITTLEMORE: Your Honour, I can only take your Honour back to the passage I took you to before where his Honour - - -
GAUDRON J: There is no finding. It is not entirely an orthodox analysis of the problem, is it?
MR LITTLEMORE: No, but it is a finding. His Honour plainly acknowledges them as comment because he rejects them all as fair.
GAUDRON J: I am not too sure.
McHUGH J: His Honour's use of the expression "comment" is to be understood in light of what he says at page 544, para 227, line 4:
The allegation of "numerous junkets at your expense . . . is totally unwarranted. The further highlighted boxes . . . are completely unjustified . . . The comments in the boxes are most damaging -
Is his Honour there referring to comment in some technical understanding of comment as distinct from fact? Is his Honour referring to it simply as a synonym for statement?
MR LITTLEMORE: He is there doing what your Honour last posed, we would have to acknowledge. He is using the word very loosely there but he was not where he dealt with the defence of fair comment and that was a blanket, a sort of omnibus finding that each of the imputations was a comment - - -
GAUDRON J: Or it may have been a finding that if any of them were comment then the defence failed because they were not based on facts which were true.
MR LITTLEMORE: Well, I had not read it that way, but I can see what your Honour relies on. It certainly is not as well expressed as one would have hoped.
GAUDRON J: It does not actually specify what is comment and what is fact, and that, assuming they are capable of being either, is a question of fact for the trial judge, is it not?
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: Or for the jury, if there is one.
MR LITTLEMORE: Well, he is the tribunal of fact, of course, but the first - - -
KIRBY J: Yes, but appellate courts have their own responsibilities to review fact-finding, so long as the issue is before them.
MR LITTLEMORE: And whether something is capable of being a comment is still a question of law. But the very first paragraph at page 546, where his Honour deals with fair comment, at paragraph 237, he does address the proper question. He does turn his mind to the distinction. He says:
For a defence of fair comment to succeed, the defendants must prove that the subject matter of the publications complained of were comment, not a statement of fact, that it was a matter of public interest, that the comment was based on facts which are stated, or, indicated in the material, and, that the comment was fair. The issue in this case is whether the comments are fair.
It must be implicit there, as it is on the following page, at line 30, where he talks about the comments being "misstated and distorted", but at the very least he found some of the imputations to be comment. We would have said that that was a blanket finding, but we acknowledge the force of what Justice Gaudron has said to me, that he may be referring to particular imputations. It is impossible to say. We obviously would urge that it is a blanket finding in respect of every imputation.
What appears to have happened, we respectfully submit, is that his Honour dealt with these comments and these assertions as if there were a justification defence. His Honour heard evidence and formed the opinion that Mr Bass had not done anything wrong in respect of any of these subjects. He even went so far as to say, at page 535, that there could not be any criticism of Mr Bass in relation to the discharge of his parliamentary duties.
KIRBY J: What page is that?
MR LITTLEMORE: Page 535. It starts, really, at line 20 on that page, where he says:
There can be no criticism of him for the manner in which -
he inspected prisons in New South Wales. He refers to the Nauru trip, he refers to the evidence, and then he says:
In summary I have little hesitation in finding that the actions of Mr Bass in all of these areas were at all times totally responsible.
So his Honour has erected this as a test of justification:
There could not be any area of criticism of his parliamentary actions, or, the manner in which he dealt with constituent enquiries.
And at line 50:
There can be no base for any criticism of Mr Bass in regard to his use of parliamentary travel.
KIRBY J: Now, is his Honour expressing his own opinion there, or is he expressing a correction of factual assertions?
MR LITTLEMORE: We say, he is expressing his own opinion. He has looked at the facts as proved in the trial, formed the opinion that there can be no criticism, and from that progressed to say that neither appellant could possibly have believed the imputations to be true, because he does not believe them to be true.
GLEESON CJ: Mr Littlemore, you made a remark in his judgment that something turned on actually looking at the originals of these documents. Do you have the originals?
MR LITTLEMORE: We have at least two of them, your Honour. We have the original of "P3" and the original of "P4".
GLEESON CJ: Could I just have a look at those?
MR LITTLEMORE: Yes, certainly. I do not know that we have an original of the postcard.
GLEESON CJ: Do not worry about it.
MR LITTLEMORE: Apparently, it is in the exhibits folder, your Honour.
GLEESON CJ: Thank you.
MR LITTLEMORE: My learned friend has multiple copies of everything.
GLEESON CJ: When he says copies - thank you.
MR LITTLEMORE: Well, versions, I suppose. They are not copies, they are - - -
GLEESON CJ: Yes, thank you.
MR LITTLEMORE: There is a photocopy of the postcard, but I think the other documents are, as it were, originals. Of course, in dealing with Mr Case, we are only dealing with the orange document. The problem that arises there, if I may say so somewhat out of order in respect of the four-page brochure, the "Free Travel Times", was with the falsity of the imputation by that document that Mr Bass was a member of the Frequent Flyer Program of that particular airline. That has no part, as I have said before, in anything published by Mr Case. We say that it is at the heart of the constitutional protection that it is not open to a judge ever to declare, whether as a fact or as a matter of his own opinion, that a politician could not be criticised.
Dealing with Mr Case's malice, in the Full Court Justice Williams agreed with the trial judge's finding that Mr Case did not have an honest belief in the truth of the comments. Justice Prior found instead that he was recklessly indifferent to their truth, and Justice Martin differed again, finding that the evidence did not justify the "no honest belief" finding but that Mr Case was recklessly indifferent just to one imputation, and that was the gun control imputation. Those various findings are at pages 589 - - -
GAUDRON J: I am at a loss there again. These are ultimately factual findings?
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: Was the Full Court invited to make those factual findings as distinct from remit the matter for new trial if it was - - -
MR LITTLEMORE: I think not, your Honour; my learned junior tells me not.
GLEESON CJ: I am looking at page 576, first, just taking them in order. Justice Prior expresses himself as confirming findings of the trial judge at line 20. Then Justice Williams - - -
MR LITTLEMORE: At 589, paragraph 33.
GLEESON CJ: - - - appears to confirm the trial judge's finding at 33 and 34.
GAUDRON J: The issue there seems to have been whether it was open to the trial judge to make the findings, at least at page 589.
MR LITTLEMORE: Your Honour, he could make the findings but they were not the relevant test.
GLEESON CJ: Then on page 621 Justice Martin finds in your favour in relation to Mr Case on the matter of improper purpose and then he said in paragraph 100 line 35 the critical question is whether the trial judge:
was correct in finding the defence of qualified privilege also failed because Mr Case did not possess -
et cetera. He answers that question on page 622.
MR LITTLEMORE: At line 21, your Honour:
I doubt that the evidence justified a finding that Mr Case did not possess those professed beliefs. However, it is not necessary to decide this issue.
GLEESON CJ: Then at line 30 he says that "Mr Case was indifferent to the truth of the imputation".
MR LITTLEMORE: Yes. That is an imputation not pleaded.
GLEESON CJ: But they all seem to think that they were agreeing with the trial judge's finding of fact, so there seemed to be concurrent findings of fact on the question of belief.
MR LITTLEMORE: Yes. Some, no honest belief; others, reckless indifference, but to the same effect. For different reasons, the same finding. They did not adopt, as it were, the entirety of the trial judge's reasoning but they were all satisfied to varying degrees or for varying reasons, I suppose, of express malice of Mr Case.
GLEESON CJ: In the case of Mr Roberts as distinct from Mr Case, they did not have much trouble on that issue, presumably because of the way in which page 2 of the four-page document came into existence. It was just made up.
MR LITTLEMORE: It is a trope, is it not, your Honour, and as such it is ironic. It is an ironic figurative thing. It is done with some wit and imagination.
CALLINAN J: But wit and imagination do not protect defamation. In fact, very, very defamatory matter can be conveyed in an ironic way. I hear this submission made from time to time that because some people might think it is funny, it is not damaging. It is not protected because some people think it is funny, Mr Littlemore.
MR LITTLEMORE: It is not that, with great respect, your Honour. There is a long line of cases that says even if you jest, you do it at your own peril.
CALLINAN J: Exactly.
MR LITTLEMORE: There is no doubt about that but - - -
CALLINAN J: There is a bit of a misconception in media circles that if you do it by cartoon or if it is funny, in some way it is excusable. It is completely wrong, but you seem to be conceding that, that because it is funny it is not protected.
MR LITTLEMORE: But, your Honour, if one looks at the front of the document there is a cartoon of Mr Bass in a very unflattering form. It was not open to the judge to say. "I find the comment is absolutely untenable because he doesn't look like that". That seems to be the equivalent - that is why I say this is a trope and it is to be read as such, it would be read as such, as an entire comment.
KIRBY J: But there is a difference, it seems to me, between the cartoon, which may or may not be a fair comment, and the mock-up of a document which is a complete fabrication. The cartoon is an observation and there he is with his ice-cream and drink and so on and the comment in the words, whereas the other has the appearance, and was designed to give the appearance and to mislead by giving the appearance, that it is an accurate document. That is a factual matter.
MR LITTLEMORE: It is a matter for the tribunal of fact certainly, your Honour.
KIRBY J: I think they are in a different class myself, because the ordinary reader would look at that and say, "He's a frequent flyer", and draw the inference that he has gone on all those trips shown in the red box in order to get the Frequent Flyer points. At least that is open to the finder of fact.
MR LITTLEMORE: We would submit that is taking it a bit far. It is not defamatory to say of someone they are a frequent flyer. The use of this device is not in itself defamatory. There is nothing defamatory about accruing points, there is nothing defamatory about using them for yourself and your family. The defamation arises when you put together that assertion that frequent flyers get benefits and all the other assertions of fact in the matter, that he travelled the world and taxpayers picked up the tab. These are the "Free Travels of Sam Bass". He can use the Frequent Flyer points, that members of Parliament do it all the time. That is this montage on the back page.
KIRBY J: Well, typically of Australian politics today, it is designed to appeal to the lowest common denominator of jealousy and spitefulness and nastiness, but that is how the game is played nowadays.
MR LITTLEMORE: Yes, your Honour, and it is working.
CALLINAN J: I do not know. If you have a look at the newspapers at the turn of the century, I do not know whether political debate was any less robust.
MR LITTLEMORE: I do not think I would be anyone to hold those up as exemplars, your Honour.
CALLINAN J: Smith's Weekly would have published things much more defamatory than any of this.
MR LITTLEMORE: And Ezra Norton.
McHUGH J: John Norton.
MR LITTLEMORE: Yes, and The Bulletin.
GAUDRON J: Mr Littlemore, if we leave aside the comment issue which you do not seem to have explored below, does your case come to this: it was not open for the trial judge to find malice unless he made a finding, which may have been by inference from knowledge, et cetera, its recklessness, et cetera, unless he made a finding that the purpose of these publications, if I could call them that, was a purpose other than the communication to the electors of Florey as to the suitability of Mr Bass to be a member of Parliament?
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: And do you then go on to say, if there was no finding as to that issue, it was unnecessary in this case to consider reasonableness save to the extent that it may have been relevant to the question whether that was the purpose, whether the purpose was to communicate material as to the suitability of this man to be a member of Parliament?
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: Is it as simple as that?
MR LITTLEMORE: Yes. I have been struggling to it, but that is where we want to get to, your Honour, yes.
KIRBY J: That is in the case of Mr - - -
MR LITTLEMORE: Case - well, it really applies to both - - -
KIRBY J: Or is it in the case of both? That is in the case of Mr Roberts. In the case of Mr Case you have extra arguments, I would have thought.
MR LITTLEMORE: Yes, your Honour is quite right. I am sorry about my error. That is what it boils down to. Your Honours having put it better than I can, perhaps I can say that those are the submissions we want to make, if your Honour please.
GLEESON CJ: All right, thank you, Mr Littlemore. I think you are supporting Mr Trim, are you not, Mr Solicitor?
MR MEADOWS: Your Honour, in some respects we are supporting the appellants and in some respects we might be - - -
GLEESON CJ: Why do we not hear Mr Trim first and then we will hear you.
MR MEADOWS: Very well.
GLEESON CJ: Yes, Mr Trim.
MR TRIM: If the Court pleases, may I commence with some observations as to the fundamental differences between the case that is now sought to be argued on the part of the appellants and the manner in which the appellants' case was presented below because, in our submission, the differences are very informative and going to the merits of the appellants' case.
This case, neither in the court below or before the trial judge, was conducted on the basis that the extended Lange privilege applied. It was always conducted, both at trial and on appeal to the court below, as a case of traditional qualified privilege.
GUMMOW J: That is as Justice Gaudron was putting it to Mr Littlemore just a minute ago. He assented to it. So there it is.
MR TRIM: Yes, but the reason for that is that when one examines the evidence in the learned trial judge's findings, the appellants could never undertake the burden of establishing reasonableness and the trial judge has specifically dealt with that issue and I will not pause to deal with those findings for the moment.
CALLINAN J: You pleaded that the appellants had not acted reasonably - - -
MR TRIM: It was pleaded in reply. In paragraph 15 of the respondent's outline we have summarised the effect of the submissions put to the trial judge in respect of the - or not pressing the Lange defence, and we have quoted directly from the submissions of counsel at appeal as to why the Court should not have to be bothered with the issue of reasonableness.
KIRBY J: Could I ask: do you accept that the Lange principle, as it is being called, applies to State elections as well as to federal elections under the Constitution?
MR TRIM: Yes, we do.
KIRBY J: There is not a way to exclude it on that footing so the issue is not the attachment of the constitutional principle, it is whether (a) it applies, and (b) it was argued, and if not argued you have suffered a disadvantage by its not having been argued in the court below?
MR TRIM: I cannot point to a disadvantage but the case has always been conducted and it is at my client's case on appeal to this Court that the traditional qualified privilege concept still has a role to play and can co-exist with the Lange privilege in the circumstances where, factually, it is available to a publisher as it was in this case and that is why the case is being conducted - - -
KIRBY J: This is, again - it may be what the Court said in Lange and if so we have to think about it because we were taken to the passage but, just conceptually, one would think that first classify the genus of the common law that is applying to the case and if you have the common law applying to the case in relation to a constitutional setting, constitutional issue, then it would seem that that is the common law that applies and it is a common law that must mould to the Constitution. I just do not see how you can then say, "We will forget about that because we have got a common law that does not mould to the Constitution and that is indifferent to the Constitution."
MR TRIM: That is not the respondent's case and because what we say the Court has already identified in Lange, that traditional qualified privilege defence can co-exist with Lange, and it is moulded and serves or sufficiently places weight upon the constitutional freedom.
McHUGH J: I do not think that is right, Mr Trim. The Court said nothing about any particular category of the common law. What the Court said is that the common law must conform to the Constitution. That means the common law in all its forms, and what was said at page 567 in Lange that two questions must be answered: does the law effectively burden the freedom of communication which the Constitution guarantees? If it does, is it reasonably appropriate and adapted to serve a legitimate end recognised by the Constitution?
Lange, on the facts of the case, had to deal with a particular situation of publication to the world at large. That is not to say that the basic theme or principle of Lange is not applicable to the whole of common law. When you get into what you might call "a traditional common law type case", the question still arises, are those common law principles consistent with Lange? When one comes to examine questions of malice in a situation like this, say a local government election or a State election, the question still remains whether rules about malice in the traditional common law sense are consistent with that freedom of communication about government and political matters that the Constitution protects. For myself, at the moment I do not think Lange has got much to do with the case apart from the principle that is expressed at page 567 which states the governing principle.
What you have to persuade me, at all events, is that the judge's findings and approach in these cases is consistent with the constitutional protection.
MR TRIM: We say that is so because - - -
McHUGH J: It may well be, but that is - - -
MR TRIM: - - - the common law traditional category of qualified privilege, in our submission, does sufficiently accommodate the constitutional freedom.
McHUGH J: Yes.
GUMMOW J: That has to be your submission, does it not?
MR TRIM: It is and I have identified the passage in our submissions, but the particular passage that we have relied upon in Lange 189 CLR at 569 to 570 and that is identified in footnote 16 of the respondent's submissions where the Court, at about point 7 of the page - I will start halfway down on page 569 - says:
In New South Wales, the principal defences to the publication of defamatory matter concerning government and political matters are truth in respect of a matter that is related to a matter of public interest or an occasion of qualified privilege, fair comment on a matter relating to the public interest, fair report of parliamentary and similar proceedings, common law qualified privilege and the statutory defence of qualified privilege -
I will not read on, but the Court then goes on on the next page to identify - - -
McHUGH J: No, you skip over what is the most important statement:
Without the statutory defence of qualified privilege, it is clear enough that the law of defamation, as it has traditionally been understood in New South Wales, would impose an undue burden - - -
MR TRIM: Yes, that is without section 22.
McHUGH J: Yes.
MR TRIM: But we then - the feature of that comment is to be - - -
KIRBY J: Do you have an equivalent in South Australia to section 22?
MR TRIM: No, there is not. South Australia is pure - - -
KIRBY J: Does that passage that Justice McHugh just read not indicate that without such a statutory qualification, then you would be in the realm of an excessive burden on free speech?
MR TRIM: We say no because of the following words that run on to the top of page 570. If I can pick up the third to last line on page 569:
This is because, apart from the statutory defence, the law as so understood arguably provides no appropriate defence for a person who mistakenly but honestly publishes government or political matter to a large audience.
So our submission is that the identification of the relevance of section 22 of the New South Wales legislation is tied to the large audience concept.
McHUGH J: True it is, exactly, but that is what I say to you, Lange says nothing about the ordinary common law. Do not forget that Theophanous was pure common law and in Theophanous the common law was held not consistent with the constitutional freedom. Now, this Court, some would say, put a gloss on Theophanous, but whatever it did, it certainly did not reject that notion of Theophanous that the common law, as such, was inconsistent with the freedom of communication, that some changes had to be made.
MR TRIM: In our respectful submission, that conclusion was based or focused primarily on the hurdle placed in the way of communication to large audiences.
CALLINAN J: But, Mr Trim, in any event, with respect to Theophanous and Stephens, this Court unanimously said at page 554 that it was arguable that a number of the general statements - and I take the general statements to pick up the sort of matters that have been discussed - that it is arguable that neither of them contains a binding statement of constitutional principle which is also relevant, I think, to the possible question which still exists - and I only put it as a possible question - whether Lange, in any event, necessarily does apply to State elections or State political matters because, as I understand it, that is what Stephens was concerned with, indeed, similar sorts of facts, overseas travels by a State parliamentarian. But there are aspects of both Theophanous and Stephens which may not have survived - I only put "may" - but may not have survived Lange.
MR TRIM: For the purposes of the appeal, we would accept that the Lange principle applies to State elections.
CALLINAN J: You do accept that for the purposes of the appeal?
GUMMOW J: It says so at 571, does it not, last paragraph?
MR TRIM: Yes, thank you.
McHUGH J: And at 569 the Court expressly said in Lange at line 3:
Theophanous and Stephens decided that in particular respects the law of defamation throughout Australia was incompatible with the requirement of freedom of communication . . . However, those cases did so without expressly determining whether the law of defamation in its common law and statutory emanations has developed to the point that it is reasonably appropriate and adapted to achieving a legitimate end that is compatible with the system of government prescribed by the Constitution.
So that was the issue, and it seems to me that in the particular sort of situation you are in Lange does not provide a conclusive answer either way, except hovering over the case is the passage at 567 and 568. The passage at 568 in Lange says that the law of defamation does burden freedom of communication, so that the critical question is whether it is reasonably appropriate and adapted to protecting a legitimate end and the question is whether common law malice, in your type of situation, needs some refinement or whether the findings of the judges, for instance, are compatible with that freedom; do they put an unreasonable burden on freedom of communication in an election setting as in a State election?
GAUDRON J: That really takes you back to actuated by malice. That has to be the beginning and end, I would think, of the first tier of the inquiry. You do not just say, did not believe it, or reckless. You have to say, nonetheless, infer from that that the purpose was other than to communicate information or ideas about the suitability of this man for election.
MR TRIM: Well, if I could go to that issue, in the respondent's submission, there are findings in the court below that support the very fact your Honour just put to me, or has just put. We have the finding of the trial judge, we have the finding of Justice Prior and we have - - -
GAUDRON J: Well you do not have a finding about purpose, do you? You have a finding that stops short of purpose.
MR TRIM: Well, in respect of the trial judge, we would say we have an appropriate finding as to purpose, actuated by malice, desire to bring about the unseating of the respondent by any propaganda.
McHUGH J: Well, that cannot possibly be malice for the purpose to bring about the unseating by any means and you have to be much more concrete than that.
KIRBY J: You try to get concreteness by referring to the American cases which say where you assert a fact, you have to be accurate and there is no constitutional protection to inaccurate facts.
MR TRIM: Precisely.
KIRBY J: And, in this case, at least in respect of the Frequent Flyer assertions and their presentation of a membership of a Frequent Flyer organisation, this was a false fact and there is no constitutional merit in spreading false facts.
MR TRIM: A series of false facts, contrary to the submission put by my learned friend in support of the appellants' case, a matter I must come to, but a series of false facts in which there was no genuine belief. Going back to the point as to purpose, the submission we have made in writing - I do not pause to develop it at great length - is that the legitimate purpose of political communication in this context must be to honestly inform, and we have referred in our written outline to Braddock v Bevins. Here the purpose was not to honestly inform the electorate, because if that was the proper and honest purpose of the communication, then, of course, attempting or having the ultimate aim of unseating is perfectly legitimate.
KIRBY J: Well, there are problems in that. First of all, unseating is the whole point of politics. It is the whole point of elections. So that desire has to be viewed in the constitutionally valid hypothesis that that is the point of elections and I think you cannot really say that just because somebody wants to unseat another that that is going to attract the disapprobation of the law. The law here would have to mould to the fact that that is the whole point about elections. It is a question of how far you can go in pursuing that objective.
MR TRIM: That is the point. On the facts of this case - and I have to emphasise, on the facts of this case - the notional line was well and truly stepped over. That is the effect of the findings that are in the respondent's favour in the court below and the finding made by the trial judge.
KIRBY J: You have to try to hold onto the findings and win the case, but looked at from the point of view of constitutional principle, I at least would want to reflect upon what happens if this becomes the general rule, that every time a false fact or, more particularly, false comments are made in electioneering, which common experience suggests is happening all the time, that that is going to be rendered accountable in a court of law, before a civil jury or before a judge, instead of out there in the hustings. There must be a way of defining the point at which the Constitution says: "Go for your life. That is a free society and the electors determine the matter, not courts" against a case which says: "Go for your life, but make sure you get your facts right and make sure that your comments are fair and tailored to the facts which are correct".
MR TRIM: Yes, with respect, we could not possibly disagree with that proposition. We have given in the written outline the reference to the passage in the judgment of the Court in Lange at page 568 that goes to the very issue, which is balancing the competing interests between the reputation of politicians and free speech. I will not read the passage; it is set out in paragraph 27 of our outline. That goes to the very heart of the respondent's case. Here, the balance or the scales were well and truly tipped against the respondent, and your Honour Justice Kirby has quite rightly pointed out that we do draw comfort from both some of the American cases and the various Canadian cases referred to in our outline which support the very proposition that it is not in the interests of constitutional free speech or the notion of our constitutional government that there be an unfettered right to launch baseless attacks on politicians.
HAYNE J: Well, does it come to this, that the political process should be a controversy between beliefs and ideas, not between things that are not believed?
MR TRIM: Yes, with the greatest respect, we would pick that up exactly. It takes me back to where I was a little while ago - - -
KIRBY J: Could I just ask on that - and I will not interrupt you far. I can understand that argument vis-à-vis Mr Roberts, who is the preparer, the instigator, the genius behind these documents, but Mr Case, who is merely handing out the yellow form and is in a category that he glanced at it, it is a bit hard, is it not, to fix him with liability for what is contained in a pre-prepared document that is handed to him on election day to distribute to electors?
MR TRIM: With respect, that rather oversimplifies the role of Mr Case. He is a man with what I would label an agenda. He has a longstanding history of antipathy to Mr Bass's position as the sitting member - - -
KIRBY J: But do we not have to test - - -
HAYNE J: Well, what does that matter? Why does it matter that he might dislike him with a passion? So what?
MR TRIM: It does not matter except when one gets to the point when he is given a document and told: "Go and hand that out". It is not a document - - -
HAYNE J: He might rub his hands with glee and say: "Whacko, at last an opportunity to get at this man". So? Where do you go from there as the next legal proposition?
MR TRIM: It is the next legal proposition that that has to be addressed in the context of malice. Does he have a reasonable belief ,whether it be right or wrong, or is he simply reckless, does not care one iota as to the truth of what he is about to distribute?
GAUDRON J: Is that itself malice or simply evidence of malice? That is really the question you have to address, I think.
MR TRIM: It is evidence that points conclusively to the existence of malice.
GUMMOW J: Conclusively.
MR TRIM: Given the right factual circumstances.
KIRBY J: You say it is evidence that sustains a conclusion of the trier of fact which cannot be set aside unless this Court is convinced that it is erroneous.
MR TRIM: Correct.
GAUDRON J: Now, what is malice in the context of the law of defamation?
MR TRIM: We would say that notwithstanding certain observations made in the appellants' written outline, Horrocks v Lowe still applies with its full force and effect and the passages relied upon in the courts below and by the trial judge, both from the decision of Horrocks v Lowe and Barbaro, will prescribe what are the tests to establish malice. Both cases, as I said a moment ago, were referred to in the courts below and the well-known passage in Horrocks v Lowe [1975] AC is, in particular, at pages 150 and 151 of Lord Diplock.
GLEESON CJ: Malice is, is it not, a technical expression that is used to describe compendiously the circumstances that will defeat privilege?
MR TRIM: Correct, with respect, and it has been - - -
GLEESON CJ: It is not a psychological state.
MR TRIM: Absolutely not, and it is a term that has been deprecated by some as being inappropriate, but it is a compendium in exactly the way your Honour the Chief Justice has put it to me.
CALLINAN J: Absence of good faith is the Code term and in some ways it is the better term, I think.
MR TRIM: Perhaps it is a little easier, although there are some difficulties with Horrocks v Lowe. One perhaps on one view can read into it what one wants to, but it was correctly applied on the facts of this case, in our submission. The relevant parts of Horrocks v Lowe are at pages 150 and 151, at the beginning of the first full paragraph:
Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief." If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.
GAUDRON J: I do not understand that language at all. What is an honest belief as distinct from a mere belief?
MR TRIM: Perhaps if I can go down the paragraph, we have a little - - -
GAUDRON J: It seems to be a tautologist's concept, does it not?
McHUGH J: And Lord Diplock himself so described it.
MR TRIM: Precisely, but little assistance is gained by the sentence opposite letter E a little further down the page:
But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest", that is, a positive belief that the conclusions they have reached are true.
CALLINAN J: Mr Trim, Horrocks v Lowe is criticised, perhaps mildly, but it is criticised in the latest edition of Gagley - I think it might have been criticised in earlier ones - but at paragraph 16.16 on page 437 of the ninth edition the current authors say:
The judgment in the House of Lords in Horrocks v Lowe, perhaps in order to simplify the law, seems to underrate the extent to which people's beliefs may be influenced by their motives, and erects an unnecessarily strong presumption that it is belief in the truth of the matter published which has given rise to the publication -
and then it gives an example of a person anxious for something to happen and dissuading himself that it should happen not being protected.
MR TRIM: In fact that paragraph is in our list of authorities and we are conscious of that criticism and it does perhaps, in our submission, place - or the passage in which the author has criticised Horrocks v Lowe is, with respect, well-founded criticism. We have also placed in our list of authorities the decision of Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431. There is just one brief passage that we say is apposite to the facts of this case, at 444.
This is a case where the defendant had a quite unreasonable belief when he asserted that the performance of a certain venue was indecent when there was no foundation for that belief whatsoever. In respect of that issue, about eight lines from the bottom of page 444, Lord Esher said:
It seems to me that the expressions he used tend to shew that he was not acting simply from consideration of his duty in the matter, but had allowed is mind to get into such a reckless state of prejudice that he was regardless of the interests of other persons, and whether what he was saying was true or false.
That is a passage - - -
GAUDRON J: If one takes that to be a true statement, you do really have to look at whether, do you not, that is consistent with the constitutional protection?
MR TRIM: Yes, but the balancing exercise means, in our submission, one looks at whether there was any reasonable basis for the belief. If it is simply a series of, as we say here, false assertions of fact, not comment as the appellant would have it, a series of assertions of fact for which there was no reasonable basis in the belief and these people did not care.
McHUGH J: That leads to the conclusion, does it not, that the Flat Earth Party cannot participate in the political process? That is, the party whose ideas, viewed objectively, are without reasoned basis? They cannot participate in the political process. That is a large conclusion, is it not?
CALLINAN J: They can participate so long as they do not hurl invective at people. They can say what they like what like about their own beliefs so long as the beliefs do not reflect in a defamatory way that is not protected.
MR TRIM: With respect, I would adopt what your Honour Justice Callinan has just said. There is a very marked difference between Flat Earth Society members having a belief that the earth is flat and promulgating that view, and what has occurred here where false and defamatory assertions of fact are made about a candidate.
McHUGH J: The point is this, that you could have a marketplace of ideas, ideas and beliefs. That is one thing. But are you to have a relevant marketplace - if you introduce that notion - in which there is to be an objective assessment of whether the belief that is held and promulgated had reason to underpin it? It is a question. It is not a statement in the form of a question, but that is the base question which seems to me to emerge.
MR TRIM: With respect, in our submission it does not emerge on the facts of this case. It is not a question of any asserted beliefs or political opinions that are put forward.
McHUGH J: It emerges in the case in relation to Mr Case, does it not, and Justice Martin's finding? At page 622, paragraph 103, Justice Martin says at line 21:
I doubt that the evidence justified a finding that Mr Case did not possess those professed beliefs.
Then goes on - page 622, para 103, line 21 is where I am at.
I doubt that the evidence justified a finding that Mr Case did not possess those professed beliefs.
That is, did not possess the belief that there seems to be something in these statements or whatever that rather diffident version of events was. Then his Honour goes on and says, "trial Judge was satisfied . . . indifferent" to the truth. What is the hurdle that has to be surmounted to establish the defence? Is the hurdle surmounted by saying, and being accepted, "I believe that what I was handing out - I did not make any inquiry about it but I believed it - seemed to be true, seemed to stack up with what I knew"? Is that enough? Or have you to go on and say, "Confronted with the `how to vote' card, I made no inquiry", and because you made no inquiry you had no reasonable basis for the belief, therefore, you are indifferent to its truth or falsity? Is that enough?
MR TRIM: It is the second limb somewhat embellished, we would say. It is appropriate for the publisher to say precisely what your Honour Justice Hayne articulated as the first of the two propositions: "I had the belief". The onus is then upon the plaintiff to undertake the burden of proving malice. It was done here by establishing that there was no reasonable belief, labelled "indifference" by Justice Martin, to that which he was responsible for disseminating. He did not care. It is not a matter of inquiry. A question of inquiry is relevant, with respect, but is only one of the matters that is relevant to determining whether there was indifference.
GAUDRON J: Again, I have some difficulty in finding these as legal concepts in their own right, as distinct from evidentiary matters from which you infer a purpose other than communicating information or opinion as to this man's suitability for office.
MR TRIM: That goes back to the purpose issue. If one wants to convey the impression to the electorate that he is not a suitable candidate, one must do so by dissemination of facts upon which you have a reasonable belief, not something that is a series, as I have said before, of baseless and false allegations.
GLEESON CJ: This, however, raises the problem, does it not, about accommodating the common law to the constitutional freedom? The common law does not limit malice to ill will but, as I understand it, rather uses the expression to describe a motive for acting other than acting in pursuance of a duty or a sense of duty, but what has a sense of duty to do with political debate? Where do concepts of duty and interest fit in with freedom of political speech?
MR TRIM: They are tied in, in our respectful submission, to the legitimate purpose of the communication, which is to honestly inform the electors. It may be the information, when viewed objectively, is inaccurate but protection will be afforded if a genuine belief is held in that which is disseminated. That was not the case here. We would never have a striking of the appropriate balance that is addressed in Lange if the law countenanced the wholesale distribution of false and defamatory material for which there was no factual basis.
GLEESON CJ: There is a complicating fact, is there not, in connection with Mr Case? As I understand it, Mr Case - and I use this word in the colloquial sense - sought to justify what he did in relation to this "how to vote" card by giving it a meaning different from the meaning that the trial judge found it bore. In other words, Mr Case did not profess to believe that the statements as construed by the trial judge were true. Mr Case defended his conduct on the basis that he thought the document meant something else.
MR TRIM: That is so, particularly in respect of one part of the document, "P4", the $32,000 issue.
GLEESON CJ: $32,000 is four times eight, and eight was the amount of the parliamentary travel allowance, so we know where the 32,000 came from objectively and Mr Case, as I understand it, said, "I wasn't meaning to suggest that he had spent $32,000; I was referring to the entitlement that he would have".
MR TRIM: Yes, that is, with respect, the effect of what he said of that, of course, and the trial judge picked him up on this and the evidence is quoted in our outline.
GLEESON CJ: I just want to ask as a matter of principle how you relate this question of reconciling the common law concept of malice with freedom of political communication, complicated by the circumstance that the communicator at least professed a different understanding of the meaning of the communication from that that it was found to have?
MR TRIM: The answer to that is that neither appellant was found to hold honest beliefs in which they published, and it follows that his assertion - neither appellant was accepted as an honest witness with a subjectively distorted honest belief. Now, if he was accepted as a publisher with a subjectively distorted honest belief, that would be a different case and might avail the publisher. But neither appellant here was found to fall in that category; they were found not to have a belief in the imputations that were conveyed on the natural and ordinary meaning of the document, a specific finding which is to be found in that section of the trial judge's judgment dealing with the extended defence - a positive finding they had no belief in the imputations, the imputations being those, as I said a moment ago, drawn from the natural and ordinary meaning.
KIRBY J: But if you just take Mr Case, is that equivalent to saying he had a positive belief that he was telling falsehoods against your client or simply that he did not give enough thought and attention to it? That is the thing that concerns me. We have to test this by what happens if this becomes the general rule, that you have to establish that you had a positive belief in the truth of what you are handing out at election times. If that is the general rule in Australia, there will be very few people at polling booths, because they could not establish that.
MR TRIM: Well, he must establish, in our respectful submission, that he cared and turned his mind to it, and this case, in our respectful submission, would not be a suitable vehicle necessarily to laying down a general principle in respect of those who simply disseminate in the manner in which Mr Case did, because of the particular factual circumstances, his pre-existing agenda, and the fact that he turned his mind to it, and the specific factual findings that he did not care, on a head-count basis, the 4:0 in the courts below. He is in a different position - and we have made this point at the end of our written submissions in paragraph 39 - than a distributor who might turn up at someone's house on election morning and be asked to hand out a pamphlet containing material, commenting on the reputation or integrity of a candidate. That person would, generally speaking, be found not to be recklessly indifferent.
GLEESON CJ: But what will often bring a defendant undone where the defendant is trying to rely on qualified privilege is evidence that the defendant did not intend to convey the imputation that the material published is found to have conveyed. That then pulls the carpet out from under the defence of qualified privilege. How do you relate that kind of principle to freedom of political communication?
MR TRIM: The balancing exercise, we say, must be brought into play, and if there is a genuine belief in a different meaning, then, as your Honour the Chief Justice has pointed out, that may pull the carpet out from underneath the plaintiff. But they are not the facts of this case.
GLEESON CJ: It pulls the carpet out from under the defendant.
GAUDRON J: They are in a sense the facts of this case, and perhaps this highlights it. You have the "Will qualify for another $32,000". The defendant says, "I didn't say he had spent $32,000, I didn't believe he had spent $32,000, but I knew he had qualified. He had an entitlement to spend $32,000 and would get an entitlement". Does that not raise precisely the issue the Chief Justice is discussing with you?
MR TRIM: Well, it does, but the point we make is that which is set out in paragraph 37 of the written outline. A defendant cannot escape a lack of finding of malice because of a lack of honest belief because of a professed lack of an understanding of a meaning that arises on the natural and ordinary meaning of the document - - -
GAUDRON J: If that is right, consistent with the common law - and I am not entirely sure that the common law has been well exposed in this area, largely because these would be ordinarily matters for a jury to determine - but if that is the common law, then there is a real question about the freedom to communicate political ideas, if you have to sit back and say, "Might somebody take this other meaning from it, which I don't intend and which I don't believe to be true?". It does impose something of a burden on the participation of ordinary people in the political processes. The freedom, I should have thought, was about the participation of ordinary persons as much as it was by persons who look for double meanings.
MR TRIM: But the meaning, with respect, must be a damaging meaning. If the meaning is damaging on the natural and ordinary meaning to be extracted from the document, an objective consideration by the proposed publisher is called for.
GAUDRON J: But it may be precisely at this point that something like the Polly Peck principle does come into play. Forget the meanings as such, but if you say, "That's what I believed would be taken from it, that's what I intended, and I believe that to be true", you say that is not good enough, consistent with the constitutional freedom.
MR TRIM: It may be sufficient to attract the constitutional freedom, but again, it is a matter of coming back to the facts of this case. On the facts of this case, neither appellant believed or really cared at all about what they were to publish.
CALLINAN J: Mr Trim, did Mr Roberts admit that he had published inaccurate and misleading material to a material extent? He did plead guilty, did he not?
MR TRIM: Yes, he did, in the Magistrates Court.
CALLINAN J: And the charge was that he had published material which was inaccurate and misleading to a material extent.
MR TRIM: Correct.
CALLINAN J: You relied upon that admission, did you not?
MR TRIM: Yes, we relied very much upon it at trial and in the court below, and it was a plea made with counsel's advice.
CALLINAN J: What did he say? Did he say that he believed it, even though it was inaccurate and misleading?
MR TRIM: He would not recant from his belief that what he said initially was correct and that is the effect of the evidence, notwithstanding the plea.
CALLINAN J: If it was inaccurate and misleading to a material extent, then that goes some way to proving the unlikelihood of the belief in its accuracy, does it not?
MR TRIM: Yes, as part of the factual matrix and a significant part, with respect, we relied generally upon the learned trial judge's very exhaustive finding as to what the facts were and the basis of the professed belief by the appellants. The court was taken to passages in the findings of the trial judge made in respect of the evidence of Mr Bass and criticism was made of some parts of the findings which suggest his Honour was making a value judgment as to the conduct of Mr Bass, but when properly understood, that passage is no more than a series of findings of fact of what the truth was. Then his Honour turned to the other side of the coin and examined the evidence of the appellants to consider whether they had any genuine belief or whether they cared at all, and the findings are quite specific.
KIRBY J: The suggestion made to us is this is precisely the kind of intervention by the courts that is inimical to the exercise by electors of the constitutional freedom that you have judges in a District Court saying what they find to be the fact and expressing their opinions, instead of it being left to electors in the marketplace of the election to express their opinion.
MR TRIM: In the context of the defamation, with respect, there can be no alternative but for a judge in the District Court to make his findings of fact. I mean, at the end of the day, nothing could be advanced by these respondents to provide a raft upon which they could erect a reasonable belief of findings of fact, a belief rather than the truth of that which - - -
McHUGH J: But you keep saying "reasonable belief", reasonableness is at best only some evidence, and usually fairly weak evidence, of a lack of belief.
MR TRIM: Here there was an absolute lack of belief, a rejection by the trial judge or, rather, I put it more accurately by saying, reverting to the finding I touched on earlier which is to be found in the passage of the judgment dealing with the Lange privilege, there was no belief in the truth of the imputations, no belief. It is not a question, with respect, of reasonableness. It is not a question of degree on the facts of this case. On the facts of this case, it is a black-and-white issue, no belief.
GAUDRON J: But is there a finding that they knew them to be untrue?
MR TRIM: Yes, if I can pick up the passage in volume 3.
GAUDRON J: Which seems to me to be a different proposition. I am looking at page 589:
they could not have believed the imputations to be true.
Again, I am wondering if that is really the correct test, "could not have believed the imputations to be true".
MR TRIM: Was your Honour referring to paragraph 33?
GAUDRON J: It is the passage setting out the trial judge's findings.
HAYNE J: It needs to be read together with line 16:
I find that the defendants did not believe the imputations to be -
and apparently it was recorded as untrue.
MR TRIM: Yes, that is, in fact, the passage I was referring to in the trial judge's finding which is to be found at page 553, appearing at line 51 which I particularly direct the Court's attention to in respect of the issue that I have just addressed:
In my view, the first defendant could not possibly have believed the imputations to be true.
With regards to the fourth defendant, I am also of the same view - - --
GLEESON CJ: If you look at page 514 you will see the actual evidence of the fourth defendant about this $32,000 that was raised in cross-examination. The cross-examination goes from paragraph 109 on page 514 over to paragraph 110 on page 515. Now, that was his evidence as to his state of mind. Was that evidence accepted or rejected?
MR TRIM: Rejected, with respect, and that is the point of the passages I just took your Honours to, and founds my submission that neither appellants were accepted as honest witnesses, who subjectively distorted honest beliefs.
KIRBY J: I understand your case is that as to statements of fact, Lange does not protect, nor does the analogous United States constitutional principle protect, false facts, and people who get into the business of defaming others, whether it is in an election context or any other context, have to be very careful that the factual foundation for their defamation is true. That is met in this case by 553 where the judge, who had the advantage of seeing the present appellants, said that they could not possibly have believed the imputation to be true. So far as facts are concerned, I can understand that argument. But there are some matters which are comment, such as "junket". That is not a fact, that is a comment. There you have to allow a great deal of latitude in the political debates, and I just do not see where your argument runs on comment.
MR TRIM: With respect to that, if I may say so, your Honour has appropriately - very accurately summarised the first part of the respondent's case. I need to say no more about that in respect of the comment issue. If the underlying fact upon which the comment is based, assuming that it is a comment for the moment, is not true, that permeates or taints the whole publication because the fact is not accurately stated and - - -
KIRBY J: You say you have to read the word "junket" in the context of Free Travel Times, with its false mock up and its false assertion that he was a member of the Ansett Frequent Flyer, and in that context a false statement that he was - a comment that he was doing this only to get Frequent Flyer points and that on that foundation, the foundation for the comment was knocked away because it was false.
MR TRIM: Correct, and we draw some comfort for this submission from the approach of the court in the decision of Gertz as the Court has been taken to before. We say that the manner in which the appellants seek to rely upon Gertz, misunderstands Gertz for reasons we developed in the written submissions, and I do not pause to deal with it at great length. In respect of the point of distinction we draw in respect of Gertz, by referring to the footnote No 4 - and the reference to Gertz is [1974] USSC 144; 418 US 323 - the footnote to which we have referred in our written submission commences at page 331. The relevant portion of it runs over from one page to the other appears at page 332. The third line in the footnote at the foot of the page:
Thus respondent's privilege to publish statements whose content should have alerted it to the danger of injury to reputation would hinge on the accuracy of statements that carried with them no such warning. Assuming that none of these statements was published with knowledge of falsity or -
and I pause to emphasise these words -
with reckless disregard for the truth, we see no reason to distinguish among the inaccuracies.
Now, here, there has been a publication with reckless disregard for the truth.
GAUDRON J: Well now, could I just take you back to the findings at page 553, and they do concern me, in the context of malice. What the trial judge is saying, is "did not believe the imputations; could not possibly have believed the imputations to be true". Now in the context of malice, do the cases refer to belief in the truth of the imputations or belief in the truth of the material published?
MR TRIM: The expression used in Horrocks v Lowe is "material published", but material published, in our submission, does not mean bare facts shorn of all imputation.
GAUDRON J: That may be so, but there may, in the context of malice, be a real need to distinguish between the truth, particularly in the context of the constitutional freedom, it seems to me. The imputations only serve to show that it is defamatory matter, do they not? It may also be relevant as to damages, the extent of the harm to the reputation, but the cause of action is the publication of the material, is that not correct?
MR TRIM: Yes, correct, with respect.
GAUDRON J: And so the question with respect to malice, it seems to me, would also necessarily be linked to the publication of the material as distinct from the imputations at common law.
MR TRIM: Yes, but the cause of action arises from the natural and ordinary meanings of the words in their context, with respect.
GAUDRON J: Well that is true; well that is what gives it the character of being defamatory.
MR TRIM: Yes, and that is what has occurred here, but the appellants seek to shear away all imputations and leave bald assertions of facts standing and say when one does that there is only one fact standing that is untrue, namely the Frequent Flyer membership issue. Actually, that is not correct, there are a number of other factual assertions that are plainly just that, assertions of fact that are defamatory in their context, but in any event that is an artificial process, in our submission, that has no place in Australian law and has not been recognised in Australian law to date. It only has its genesis, as the appellants' submission goes, in the American line of authorities that has been rejected by this Court; it only has its genesis in those authorities because of the unique position of the First Amendment.
GAUDRON J: Well it seems to me that very much depends on what is meant by "malice".
MR TRIM: I agree, but in the circumstances of this case, Horrocks v Lowe still has its role to play and these appellants fell fairly and squarely within the Horrocks v Lowe test.
HAYNE J: Now as to what is the "matter published", is it appropriate or not appropriate to take account of the trial judge's finding about what the words published meant? Say, for example, at page 544 in the last couple of lines, dealing with the orange pamphlet, his Honour says:
I find the publication had the meanings pleaded by the plaintiff in paragraph 14 of his statement of claims.
Go to page 9 of the appeal book. The allegation in 14 was that the:
words in their natural and ordinary meaning meant and were understood to mean -
certain things, including, amongst others:
That the plaintiff had taken numerous overseas trips for his own benefit and enjoyment -
at the taxpayers' expense or variance on the theme. Now if one takes the words of Horrocks v Lowe and "matter published", does one or does one not take account of the meaning as found?
MR TRIM: Yes, with respect.
McHUGH J: But why? That would mean that in the case of a true innuendo the defendant can never succeed because - I mean he often could not succeed because the words may have an extended meaning by reason of extrinsic facts of which the defendant is unaware and by hypothesis he would have no belief in that extended meaning. Surely it is sufficient that he has a belief in what he or she publishes and whether or not those words are given a meaning by the judge or jury different from what the defendant thinks or because of extrinsic facts is beside the point.
MR TRIM: In that example, with respect, that would be so, but still the publisher would have to address his mind to it and have a belief in the meaning.
McHUGH J: In what meaning?
MR TRIM: The meaning he asserts, an honest belief in the meaning he asserts, and the facts that your Honour has put to me, if the words are damaging.
McHUGH J: Supposing I am the secretary of a fishing club and I report the catches of particular members but it turns out that, unbeknown to me, I have misstated the facts, the plaintiff has been making statements how he caught the biggest fish known and I am totally unaware of that. He pleads an imputation that it means he is a liar. Surely, in relying on my defence of qualified privilege, I do not have to show that I believe that he was a liar, it is sufficient that I believe what I wrote about the size of the fish he caught is sufficient.
MR TRIM: Yes, but an honest belief in that not the fact of - or the truth, rather - of the matter, but that, on the example your Honour proffers, an honest belief in the truth - - -
McHUGH J: Of what I published - - -
MR TRIM: Yes.
McHUGH J: - - - not of the meaning that is ultimately attributed to it by a judge or jury. That is why I think Lord Diplock probably chose his words carefully. It was the publication, not the imputation, and by "publication" I think he meant the words.
MR TRIM: Yes, but as to what is to be drawn from the words in an ordinary, natural meaning. Now, your Honours talked about a particular example, the true innuendo instance. That is not the facts of this case, with respect - - -
McHUGH J: Well, I know, but - - -
MR TRIM: I keep going back to the facts of this case.
McHUGH J: You do not need much experience of defamation actions to know, as the Chief Justice pointed out earlier, that defendants frequently get themselves in this situation, where they say, "Well, that wasn't the meaning I intended. I intended meaning A". A judge finds, or the jury finds, he has meaning B. Is the defence then lost, even though the person honestly believed in the meaning that he or she attributed to the words?
MR TRIM: Well, here, the appellants were taken to the meanings attributed to the publications by the respondent, taken to them one by one - I can give the references shortly, if necessary - and said, "Yes, I believe that". So the dichotomy does not - - -
GLEESON CJ: Take the very first one, No 1, on this pamphlet:
Sam Bass will . . .
Qualify to spend another -
highlighted, the word "another" -
$32,000 of taxpayers' money on overseas travel -
Now, Mr Case, in his evidence, as I understood it, said, "Look, I was interested in the word, `qualify'", and the trial judge says, "Yes, but what about that word, `another'? That carries the meaning that he had already spent $32,000". What does the common law of qualified privilege, accommodated to the constitutional requirement of free speech, set up as the test by which you determine whether or not the privilege is defeated in a situation like this?
MR TRIM: Our starting point goes back to a matter that I raised some time ago: we say that the traditional qualified privilege principle has a role to play and does meet the requirements of constitutional free speech. I do not seek to reverse that ground again. If that is the case, then traditional common law principles will apply with their full force and effect to that aspect of this publication and that there was no honest belief in a meaning that can reasonably be drawn from it, and an eccentric view without foundation is put forward, whether any factual foundation, that is not sufficient to say the publisher, in our submission.
McHUGH J: That seems to cut across the whole rationale. The only relevance of malice is, in its various forms, because it indicates that the occasion has been abused. Why is the occasion abused if the defendant really believes what he said rather than what a judge or jury find his words mean?
MR TRIM: In the circumstances of the $32,000 issue, there has to be honest consideration of the meaning to be reasonably attributed to the words by the publisher.
McHUGH J: Where do you get that from? You will not get it from Lord Diplock. He even spoke about people acting by intuition, unreasoning prejudice, did he not?
GLEESON CJ: What were the names of those cases that went to the Privy Council concerning imputations that West Indian cricketers had rigged games - - -
McHUGH J: Lloyd v David Syme.
CALLINAN J: Lloyd.
MR TRIM: Clive Lloyd was the captain. He was the principal plaintiff.
GLEESON CJ: Was not this issue involved in that litigation?
MR TRIM: I cannot honestly recall.
McHUGH J: It is. There is a passage either in it or in Austin v Mirror Newspapers in the Privy Council about this question. It is also dealt with in a judgment of maybe Singleton v French or one of those, but Justice Hunt and I both had a contrary view to the Privy Council about the matter. I cannot remember what I wrote but I think it might have been Singleton v French but it was when I was on the Court of Appeal of New South Wales.
MR TRIM: What I call an eccentric belief in the fact published may save a publisher in certain circumstances. We accept that and Horrocks v Lowe allows for some latitude of belief, but on the facts of this case, we say that cannot save these appellants on the concurrent findings that were made in respect of both of them as to recklessness.
GLEESON CJ: Just put Mr Roberts to one side for the moment for the purpose of this discussion. What were the findings of fact about the state of belief of Mr Case in relation to this proposition that your client had numerous junkets at electors' expense?
MR TRIM: It goes back to findings of fact made at pages 551 and 553. The findings of fact made at page 551 by the trial judge were made under the heading of "Malice" that appears at page 549 - - -
CALLINAN J: Is not the key finding of intention in paragraph 254 on page 550:
Their main intention -
speaking of both of them -
was to injure the plaintiff and to lower his estimation . . . All three publications were part of a strategy designed to have this effect.
MR TRIM: Yes, with respect, it is.
CALLINAN J: Then later on his Honour sets out a number of matters that led him to draw that inference, to make that inferential finding. They are the matters at 551 and 552, are they not?
MR TRIM: Yes, with respect, they are the seminal findings as to dominant purpose, findings that were - - -
GLEESON CJ: Let me ask you about the concluding sentence in paragraph 254. Why in an election campaign is it not a proper motive to lower your opponent in the estimation of his fellow persons by making them think less of him?
MR TRIM: If that is your predominant motive and your predominant motive is not to honestly inform the electorate, which is what Braddock v Bevins spells out to be the legitimate purpose of the communication. If your dominant purpose is to do that which is spelled out in paragraph 254, the purpose, in our submission, is not properly - - -
GLEESON CJ: This is the point on which you lost in the Court of Appeal, is it not? None of the members of the Court of Appeal were prepared to wear this proposition, that in an election campaign it is improper to denigrate your opponent.
MR TRIM: What we did not lose on is the finding that the dominant purpose was to injure the plaintiff.
McHUGH J: Yes, but that sentence itself has very considerable problems. Now, it may be accurate if their main intention was to injure the plaintiff in some personal capacity divorced from politics, but for the life of me I cannot see how, given the constitutional freedom, you can lose the privilege because your main intention is to injure the plaintiff's political reputation. That is what politics is all about.
MR TRIM: If we are wrong about that, then from my client's perspective we fall back to the recklessness ground.
McHUGH J: Yes.
MR TRIM: And we still say on the facts, the respondents would hold their judgment, having regard to the current findings as to recklessness.
KIRBY J: But you have to anchor your resistance to the constitutional principle. In the peculiarities of this case and the findings of fact about the absence of honest belief and in the fact that our Constitution, like the American, does not defend factual statements or comments that are based on erroneous factual foundations.
MR TRIM: Correct, with respect, and we would also draw upon the Canadian decisions to the same effect which we say are consonant with the principles that should be applied in this country.
McHUGH J: Yes. It seems to me the strength of your case lies in the findings about beliefs in the facts of the case rather than that finding at 254. That seems to me - - -
KIRBY J: And you have to say do not be too worried about the housewife or ordinary worker or political sideliner who goes along giving out forms or going to political meetings and handing out party documents - which goes on all the time - they will not fall into these peculiar factual circumstances. It will not be found against them that they had an absence of honest belief, they will simply be handing out the form and have no particular belief except some loyalty to the party or cause that they are handing out the form for. That is a separate case. That is not this case.
MR TRIM: With respect, that is the case we make and it is the point I was trying to make when I went to the penultimate paragraph. I think it is in our written submissions where we go to that issue.
GLEESON CJ: I thought that the finding of the trial judge was that both of these defendants were prepared to damage the plaintiff, which of itself, at least in the view of the Court of Appeal, is not an improper thing to seek to do in a political contest, by fair means or foul.
MR TRIM: Yes. The word was "any propaganda". They would utilise - "except any propaganda" was the expression. That is both appellants.
GLEESON CJ: Where is that?
MR TRIM: Page 539 paragraph 202.
GLEESON CJ: And 204.
MR TRIM: Yes, line 50.
McHUGH J: But look at one of the findings of the judge that you rely on in terms of recklessness, the one that appears at paragraph 256:
The evidence does, in my opinion, establish that the defendants published the defamatory material without "considering or caring whether it be true or not" . . . By way of example, when asked whether it had occurred to him that the plaintiff might not have been a member of the frequent flyer program in preparing the FTT pamphlet, the first defendant's answer was that "it was not something I drew my mind to".
But how does that prove that you did not care whether or not - how does it prove that you did not have an honest belief?
MR TRIM: We would say in response to your Honour's question, if there is no inquiry and you set about effectively forging page 2 of the frequent flyer document, and it is a forgery, then an absence of inquiry demonstrates the motive and what was running through the publisher's mind that he did not care. Any means would be used, fair or foul, to dislodge this man, and that is not the proper purpose of the communication of information.
McHUGH J: Well, it may be some evidence but I do not think it demonstrates it. I am going to have to read all the evidence very carefully in this case.
GLEESON CJ: One of the questions that you will have to address after lunch - you might like to turn your mind to in the meantime - is that we need to perhaps take some care to see that Mr Case is not caught up in the undertow created by Mr Roberts. We will adjourn until 2.15.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Yes, Mr Trim.
MR TRIM: Thank you, your Honour. Can I briefly turn to the distinction between fact and comment that the appellants seek to draw.
GLEESON CJ: The case I was referring to before lunch was a case about comment. It was the case of Lloyd v David Syme [1986] 1 AC 350.
MR TRIM: We have had a look at that over lunchtime and - - -
GLEESON CJ: And a defence of fair comment was held unavailable, or defeated, because the defendant did not profess to hold the opinion which the matter published was found to convey.
MR TRIM: Yes, as the imputation was found to exist, that was the nub of the passage at the foot of page 365. We did not think it particularly helpful, with respect. I was not going to take the Court to it, but we have multiple copies if it is thought to be of assistance. We had them run off at lunchtime.
Can I go to the distinction between fact and comment that the appellants seek to draw, which is perhaps, in one sense, at the nub of one of their central submissions. It is put, as we understood it, that the only matter of fact, foundational fact, as the expression is used by the appellants, was the membership of a Frequent Flyers Club. That is to be contrasted, we say, informatively, with the appellants' pleadings.
If I could ask your Honours to take up the supplementary appeal book, which is a thin document, and starting at page 25, we have an amended defence of the first defendant, the appellant Roberts. If I could then ask your Honours to go to page 29, this is a plea, in paragraph 17, on behalf of the appellant Roberts, of fair comment and we will see identified in paragraph 17.1 as a fact the assertion contained in the electoral day document:
Had numerous junkets at your expense including trips to the United Kingdom and Nauru".
And halfway down the page, 17.3:
"Stood by and did nothing to stop "secret deals" at the Modbury Hospital".
Again, identified as a fact, but now asserted to be a comment. At the top of page 30:
"He put gun rights ahead of your family's safety".
And on page 31 of the same book in respect of the postcard document "P2", paragraph 22.1, at about line 38:
"He is enjoying a winter break at your expense".
Similarly in respect of the defence of the fourth defendant in volume 1 at page 15 at paragraph 9.1 at about line 35, it is asserted again in the context of a plea that seems to be of justification:
"Had numerous junkets at your expense including trips to the United Kingdom and Nauru".
At the bottom of that page:
"Stood by and did nothing to stop "secret deals" at the Modbury Hospital".
The next page at line 26, paragraph 9.5:
"He put gun rights ahead of your family's safety".
So the pleader of the appellants' case thought it appropriate to characterise those statements as statements of fact and we say correctly so characterised them and the essential defamatory material here does not consist, in our submission, of comment, but of fact; the distinction is sought to be drawn by the appellant in support of a reliance upon the United States' cases that have been disavowed by this Court both in Theophanous and Lange. We have made that point in some detail in the written submissions. I do not seek to go to it in detail. But it is informative, we say, to reflect upon the pleadings as framed on behalf of the appellants.
KIRBY J: I notice the requirement of the State Electoral Office for the correction of the false fact in the document and the solicitor for the appellants suggested an amendment and then after that was suggested said he could not comply. Was anything done before the election to correct the false facts?
MR TRIM: No, it is not and we say it is an important issue going to malice.
KIRBY J: Traditionally, everything to the retiral of the jury is open as available as establishing malice. So it would be available at the point of time.
MR TRIM: Yes, but we say the significance of the failure to retract is - if I can just briefly touch upon a factual matter, the requirement was made initially on Friday, 3rd. The election was on Saturday, 11th, so that is eight days after the date of the requirement. On the 7th it became apparent to the Commissioner that distribution had been in fact commenced. The first requirement was to stop it but then he became aware that it had been distributed and required a retraction to be distributed. It was the appellants' case at trial that could not be done.
What emerges out of exhibit "P1", which is to be found in the supplementary appeal book, is that the Commissioner became so concerned about this he went to an independent letterbox distributor and received a letter, which appears at page 46 of the supplementary appeal book, which confirms that had a retraction pamphlet been given to them on the Tuesday before the election, or for that matter up to Wednesday at noon, a retraction could have been distributed by their walkers.
What his Honour found was that he was not prepared to accept - that is, the trial judge - the evidence of the distribution person, whose name was Douglas, that it could not be done because there was a range of evidence from electors - it is summarised in the judgment - that they received the pamphlet in their letterbox from times ranging from late Saturday afternoon up to and including the Tuesday, when this man said it could not have been done, and he also said as far as he was concerned it was over and done with; the circulation had been completed. That put a lie to that suggestion, and the trial judge's finding was specifically that it could have been done and there was indifference on the part of Roberts to doing anything on the Tuesday. He did in fact nothing.
KIRBY J: On the contrary, you say that the Court should draw an inference - and I think it was drawn below - that they were spinning it out?
MR TRIM: Exactly, he did nothing. He was taken in cross-examination to the simple example, "Did you look in the Yellow Pages?". The answer was "No" and both the trial judge and two of the judges on appeal, in particular Justice Martin, I think, commented on it that it reflected poorly on Roberts, but there was a specific finding it could have been done had the will been there, and that is a contentious matter on the written submissions, but the evidence of Douglas which founds that finding is at page 253 in volume 2. I do not pause to go to it, but the effect of the question and answer is, "Had I received the request and the document in my hand on the Tuesday, I could have had it done".
We say it goes to malice because in the face of that, in the face of being specifically told by the Electoral Commissioner "It is a false assertion of fact to say this man is a member of Frequent Flyers and you must publish a retraction in these terms", he, notwithstanding an assertion he could not get it done, marshals his resources to get the pamphlet done and distributed at election booths on the Saturday morning a few days later. The content of it just demonstrates his ongoing state of mind as regards the respondent. That is the significance that is placed by the respondent upon that chain of events.
Your Honour the Chief Justice asked me to consider the position of Case just before lunch. Findings of the trial judge of Case appear page 539 of volume 3 of the appeal books. I do not pause to work through them one by one, but the effect of some of the findings has been dealt with already, but he, that is Case, elected to target the respondent because he was a soft target.
That, of itself, may not be an improper purpose but, in our submission, it means that at that point, with that intent, it is incumbent upon Case to address his mind to the truth of what he is saying and consider what is the natural and ordinary meaning of that which he is about disseminate because, if or otherwise there will be no protection to any individual targeted by such dissemination, and the other side of the coin is that there will be no appropriate protection given to electors who will be receiving misleading material. In our submission, an elector handed material of this nature ought at least be able to say to himself, "I do not know whether this is true or not but the person who handed it to me must have believed it was true. I will take it and read it in that context." That, in our submission, is not a requirement cast upon the publisher in Case's position that is inconsistent with the constitutional freedom.
GLEESON CJ: Suppose an electoral worker or somebody assisting in a political campaign on polling day or earlier hands out a pamphlet saying "Candidate X has a criminal record", and let us suppose that the sole purpose of handing that out is to secure the election of candidate Y and to defeat the election prospects of candidate X. It is entirely political. There is not other personal spite or ill will involved. The worker does not know anything about the candidate except that the candidate is the opponent and hands out a "how to vote" card saying the candidate has a criminal record. Consistently, with the constitutional freedom, what is the test that is applied in that circumstance to decide whether that attracts a defence of qualified privilege?
MR TRIM: Does your Honour's example postulate a distributor or publishing coming, as it were, cold to the process and being given in good faith or receiving in good faith - - -
GLEESON CJ: I do not know what you mean by "good faith" in that context. You may need to elaborate that. I am postulating that the only motive of publishing that document by the person who is handing it out is to secure the election of that person's favoured candidate and to defeat the electoral prospects of the person about whom it is published. The sole motive is political.
MR TRIM: If the sole motive is political, the balancing exercise that I have talked about before lunch would require at least the distributor in those circumstances to turn his mind to the truth and consider whether the imputation to be conveyed, if he honestly believes by whatever circumstance - and it may be the circumstances in which he is given the pamphlet - that it is a fair statement of fact, then he will be protected. If there was no basis for an honest belief, to turn it round to this case - it is not quite your Honour's example, but to add another dimension to it, if there was a positive state of mind that was not true, then there could be no protection, otherwise there would be no protection afforded to individuals in the political process. The issue of whether the traditional defence of qualified privilege can coexist with a Lange test has been raised.
GAUDRON J: Perhaps there is an unanalysed assumption in this case, Mr Trim, namely that handing out leaflets or what have you throughout an electorate is, without more, properly identified as an occasion of qualified privilege at common law.
MR TRIM: We would say it was and, with respect, it was accepted - or, rather, not challenged - - -
GAUDRON J: Well, I know, but to the extent that qualified privilege presupposes a duty and interest, where does the duty come in into that situation?
MR TRIM: The duty is to honestly inform members of the electorate - in this case, some 10,000 to 12,000 households - and it was because the publication was to a discrete body of electors and there was no evidence that it went beyond that body - - -
GAUDRON J: What is the best case on the proposition that that is an occasion of qualified privilege traditionally?
MR TRIM: Perhaps Braddock v Bevins in the context of political discussion.
GAUDRON J: Well, just leave aside Lange-type considerations for the moment. Braddock v Bevins.
MR TRIM: Braddock v Bevins [1948] 1 KB is, of course, a traditional common law duty and reciprocal interest situation. The particular passages are 590 to 591. We have spelt them out in a footnote to the written submissions. Perhaps this one passage at page 591 of the report answers your Honour Justice Gaudron's query:
we make bold to assert that he has a duty to the electors to inform them honestly and without malice of any matters which may properly affect their choice in using their suffrages.
GAUDRON J: But who? Who is "he" in that case? A candidate?
MR TRIM: Yes, it was a - I cannot remember if it was a candidate or a person interested. I will have to look at the headnote.
GAUDRON J: Well, it seems to be of one candidate concerning the opposing candidate, page 590.
MR TRIM: Yes, but their Honours go on to say that the privilege would extend to persons - these are my words and not the words of the judgment - who would support a candidate.
GAUDRON J: Yes.
MR TRIM: And that appears halfway down page 591.
GAUDRON J: The complainant here is not the rival candidate; she supported a candidate.
MR TRIM: Yes, and the passage I had in mind starts at page 591:
It appears to us to be impossible to draw a distinction between such a person and the candidate himself.
Now, it was for this reason that there was no challenge to the trial judge's finding that the occasion to the electors of Florey was an occasion attracting common law qualified privilege.
GAUDRON J: This was in proceedings against the defendant by reason of statements in his election address?
MR TRIM: That is correct.
GAUDRON J: So we do not seem to be exactly in that territory, do we?
MR TRIM: No, not quite. It was a public meeting.
GAUDRON J: Yes, but I am just wondering - I know it has been assumed, not challenged, but somebody who is not a candidate whose interest is in a - so far as I can tell, I may be wrong - who is a single issue-type advocate, but not representing any political party standing a candidate, as I understand it, where does the duty interest notion come from in that circumstance?
MR TRIM: It must have its origin in Braddock v Bevins, in our submission, and cannot rise higher than Braddock v Bevins.
GAUDRON J: Yes. Well, can we deal with it as a matter of principle as distinct from the decision in Braddock v Bevins which, on its facts, does not seem to extend so far?
MR TRIM: Well, we would not suggest the issue is closed. The finding of the trial judge was accepted. We would not suggest the issue is closed and that Braddock v Bevins in any way closes off the issue.
GLEESON CJ: Is it a matter of reciprocity of interest?
MR TRIM: Reciprocity must be at the heart of it, with respect. With Case, he was the single interest appellant; Roberts had a broader interest.
GAUDRON J: What was Roberts broader interest? I missed that.
MR TRIM: Well, that he had a firmly held view that Bass was not discharging his responsibilities to the electorate in a proper and diligent manner.
GAUDRON J: Yes, but did he have any official role in anything?
MR TRIM: Neither of them had an official role and neither were members of any political party. They just had issues that concerned them. Although I have just said a moment ago - - -
GAUDRON J: See, what I am really wondering is whether, in a circumstance like that, no official role, but disseminating throughout the electorate I take it, one does not have to come to the privilege identified in Lange rather than a traditional common law privilege.
MR TRIM: Well, it remains, with respect, our primary submission that it is a traditional common law privilege - - -
GAUDRON J: Yes. It may or may not be in your interests to put that, but - - -
MR TRIM: We say two things. I have not adverted so far to a notice of alternative contentions that we have filed where the issue of whether Lange might be overarching in its role and exclude the traditional privilege might not be the proper conclusion on the facts.
GAUDRON J: One has to find out what the traditional privilege is. I can well understand reciprocity between a candidate and all members of the electorate. I could probably understand reciprocity between somebody having some official role in the election campaign or some recognised role in the election campaign and the entirety of the electorate, but I am not too sure that it exists when one is simply looking at people who are not members of a political party but hold strong political beliefs.
MR TRIM: If that were to be the case then, with respect, it would seem to us that one has to fall back to Lange. If we fall back to Lange in support of the appellants' position, it would be the respondent's argument, "They fail at the first hurdle because they demonstrably have failed to meet the test of reasonableness."
GAUDRON J: Yes.
GLEESON CJ: There was a finding by the trial judge about reasonableness, was there not?
MR TRIM: Yes, under the specific heading of the extended privilege in the judgment.
GLEESON CJ: What page is the finding of the trial judge about reasonableness?
MR TRIM: The passage we were at before, 552 to 553, the heading at line 16 or thereabouts at 552 is "Extended Form of Qualified Privilege". His Honour goes on to recite the law as he understood it, and the requirement of reasonableness and the specific finding at the conclusion of that passage at page 554, paragraph 271. That is against intermediary findings that have been adverted to before lunch, towards the foot of page 553 to the effect that neither appellants could have believed the imputations to be true, but I have been to those earlier.
GUMMOW J: Now, this Betty Braddock's Case. Is that consistent with Lang v Willis?
MR TRIM: Yes, we say it is.
GUMMOW J: Which is after all a decision of this Court.
MR TRIM: I am just having a copy of Lange v Willis turn up, your Honour, hopefully.
GUMMOW J: Perhaps a starting point.
MR TRIM: If my optimism is ill-founded - - -
GUMMOW J: Naturally enough, it was not referred to in the later decision of the English Court of Appeal. We do not have that luxury.
HAYNE J: How is it consistent with what Justice Dixon says at 667?
The proposition appears to me to be untenable that election speeches made to a large audience of unidentified persons are privileged because the speaker deals with matters in which the electors have an interest.
MR TRIM: I say two things about that passage. I think your Honour would find that Justice Dixon was dissenting, as he was dissenting, and secondly it is not inconsistent, in our respectful submission, with Braddock v Bevins because notwithstanding the force that must be given to anything that fell from Justice Dixon, he is talking about the commonly accepted impediment to traditional common law qualified privilege applying when the audience receiving the information is too broad. That of course - - -
MR HAYLEN: Why is it not too broad here? This was a letterbox drop three times, was it not, or one hand out and two letterbox drops? Why is the audience not too broad?
MR TRIM: The respondent would not demur from that position, but simply did not challenge it. The respondent did not seek to challenge the finding on appeal, and has been content to accept to date that it was an occasion of qualified common law privilege, given the findings in the respondent's favour in the courts below.
HAYNE J: But what is said in Lange must be understood, surely, against the background of the then understood extent of the common law qualified privilege in Australia informed, particularly, by Lang's Case, must it not? Where this leads to - can I just reveal that - that Lange injects this notion of reasonableness. It may be that the proper understanding of Lange is that reasonableness is something that is the quid pro quo for permitting a privilege, or recognising a privilege, for generalised dissemination to the electorate at large. The need for that, or the role that that has, depends upon the premise from which one begins about when common law qualified privilege would have cut in and cut out.
Now, Bessie Braddock's Case, yes, says in England there was a qualified privilege. But if it were right to say that common law qualified privilege was not engaged in this case and recognising, as I do, that this is not a matter for debate, there is a risk that the law will be skewed because reasonableness will not play a role in circumstances where perhaps it should have played a role if it were properly seen as a Lange case rather than a common law case.
MR TRIM: I understand all that, with respect, and that is the point of the first of the two alternative contentions that we put forward, that properly viewed this might well properly be seen as a Lange-type defence given the breadth of dissemination. The distinction between the Lang v Willis Case and the facts of this case is that in the Lang v Willis Case the publication did not simply target voters and the reason the matter was not sought to be agitated by the respondent on appeal was, as I have said earlier, the confined number both geographically and - well, in particular, geographically, of the recipients of the information.
HAYNE J: Letterbox drops may primarily target voters but they are not confined to voters. There are tenants and other people who may not be enrolled who have the joys of them.
MR TRIM: And there must be some spillage as a matter of common sense. We accept all of that, but I can take the issue no further. That is the very basis, I repeat again, of ground 1 of out notice of alternative contentions. We are alive to that as being a proper approach to the facts of the case notwithstanding the acceptance by the respondent of the findings of the trial judge as to the applicability of the traditional defence.
GLEESON CJ: What stage have you got to in the progress of your argument?
MR TRIM: I am nearly finished.
GLEESON CJ: Right.
MR TRIM: I was about to say, and I think I am about to conclude, that in respect of this issue of whether qualified privilege is sufficient and adapted to the appropriate purpose, in the respondent's submission it is for the appellants to show in what way the qualified privilege in the traditional sense interferes with the implication to be drawn from the specific text of the Constitutions that are in issue. We, in support of that, refer again to Lange 189 CLR at 567. It is just a short sentence that I will read:
To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is necessary to give effect to these sections.
If, in our submission, the appellants are not able to point to some manner in which the application of the traditional common law qualified privilege principles would interfere with that implication, then that is the end of the - the State Constitution I should focus upon - then, in our submission, that is the end of the constitutional inquiry.
CALLINAN J: Mr Trim, could I just ask you a couple of questions please. Gatley uses the expressions "actual malice" and "express malice". Are they the same" And what is the difference between actual or express malice, on the one hand, and malice?
MR TRIM: I think one could conjure up an argument to suggest there is a difference, but my response is there is no difference.
CALLINAN J: The appellants' submissions seem to me to proceed upon the basis that express malice, whatever that means, had to be shown to defeat the defence of qualified privilege, for example, paragraph 51 on page 10:
Actual malice in the context of electioneering material must take account of the special nature of the communication.
That is just an example, but is there not just malice?
MR TRIM: We say there is and the factual findings are sufficient to ensure the success of the respondent's case.
CALLINAN J: Mr Littlemore may be able to help me on that. The other question I was going to ask you is this: what is the first case or what is the main authority which speaks about dominant purpose as opposed to another or other purposes? Why do we have to look for a dominant purpose because, again, that seems to be an underlying assumption about the submissions; I think your submissions as well as Mr Littlemore's?
MR TRIM: No, I do not think, with respect, that it finds its way into our submissions in a positive - - -
CALLINAN J: It is not in yours, all right.
MR TRIM: We would say there is no concept of dominant purpose.
CALLINAN J: In any event, I think some of the judges in the Full Court talk about dominant purpose, do they not?
MR TRIM: Yes, they do and, in our submission, the notion of dominant is not one that finds its way into the appropriate test.
CALLINAN J: Arguably - and I will only say arguable - if, in fact, you have a number a motives, but one of them is not to use it technically but a malicious or an improper motive or improper purpose, then your motive or your purpose is probably an unprotected one.
MR TRIM: That would be okay.
CALLINAN J: That is your case.
GUMMOW J: Dominant motive comes out perhaps from Lord Diplock in Horrocks [1975] AC at 150, at 150G I think; maybe elsewhere as well.
CALLINAN J: I wonder whether somebody may be able to assist us on the question whether it appears before 1975 or not?
MR TRIM: We are not aware of any case that uses that expression and in the setting of the lengthy passage in Horrocks v Lowe, it would be our submission that it has no particular significance, that is, the word "dominant" has to be read in the context of the entire passage and no particular importance can be attached or should be attached to the word "dominant" in its context. They are the respondent's submissions.
GLEESON CJ: Thank you, Mr Trim. Yes, Mr Solicitor.
MR MEADOWS: May it please the Court, may I commence by saying that we rely on our written submissions and have one or two other matters that we would wish to add. Perhaps before I get into the points that we wish to make, could I draw the Court's attention to the judgment in Lange at page 570 where there is a reference to Lang v Willis and as to what it stood for and where the Court went on to say that in light of the freedom of political communication that had been identified by the Court, it would be necessary to develop the law in a way which went beyond what had been held in Lang v Willis. That is to be found at page 571, where it said, "Accordingly, this Court should now declare" et cetera.
McHUGH J: It was not only Justice Dixon who said they were not privileged. Justice Evatt, who was in the majority in that case, also said that.
MR MEADOWS: Yes, your Honour, and I would suggest that it could be taken that at that stage the common law relating to qualified privilege would not have rendered it available in a case such as the one that we are presented with today.
The reason that we have sought to intervene in this case is that we wish to make some submissions about the impact of the constitutional implication about freedom of political and government communication on the development of the common law and, in particular, in the context of when malice will defeat a claim for qualified privilege which would otherwise be available. In so doing, it is our submission that the answers to these questions are not to be found by reference to some implication to be found in the text and structure of the Constitution but through the development of the common law.
GLEESON CJ: "Malice" is hardly a synonym for "unreasonableness".
MR MEADOWS: No, that is right, your Honour. This was recognised by the Court in Lange at page 574, which recognised that the concept of malice may not necessarily be covered under the rubric of reasonableness. If I could just read from the passage at about point 2 on page 574:
The protection of those reputations will be further enhanced by the requirement that the defence will be defeated -
that is the defence of qualified privilege -
if the person defamed proves that the publication was actuated by common law malice to the extent that the elements of malice are not covered under the rubric of reasonableness.
GLEESON CJ: How does Lange deal with a case of the kind that I mentioned earlier? Suppose you have polling day and an individual who is a stranger to the electorate goes along to assist one particular party by handing out leaflets. The individual may not even know the candidates for the opposing parties and the individual is actuated by no subjective purpose other than one which is purely political, that is to promote the election prospects of the candidate that the individual is supporting. Against that background and those simple facts, the individual hands out a leaflet saying of one of the opposing candidates, "He has a criminal record". What are the principles that determine whether or not the candidate about whom that imputation has been published has a cause of action?
MR MEADOWS: To begin with, one would have to go to what is said at page 571 in Lange, where the dissemination of information in the context of an election is now something which is allowed and is subject to the protection of a qualified privilege. The issue would then be: was it reasonable for the person handing out the "how to vote" cards to have handed that out with that information on it? That may well take one to the issue of what inquiry the person should have made.
GLEESON CJ: So the whole matter would stand or fall on the issue of reasonableness of conduct?
MR MEADOWS: That is the starting point, we would say, because that is what the Lange test would have inherent in it.
KIRBY J: Not malice plus reasonableness. Simply reasonableness.
MR MEADOWS: Start with reasonableness. It may be subsumed within malice, but you can then go beyond reasonableness to issues of malice, as I read what the Court has said there.
CALLINAN J: Why would not malice always be unreasonable?
MR MEADOWS: That is why, once you get into the area of malice, once you have looked at the question of reasonableness, it may well be subsumed within that concept. But as the Court said in Lange, when it comes to making reasonable inquiry, it may be that in the situation which your Honour the Chief Justice has posed to me that it may not have been reasonably open for the person in that situation to have made inquiry. Under the test as formulated in Lange, that may be sufficient to allow them to escape liability, because, if one goes to page 574 again, in the final paragraph of that page - and admittedly this is in the context of a media publisher - the Court says:
as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.
It may be that the person in the situation which your Honour put to me would be able to say that it was not practicable for him to have ascertained whether or not what he was handing out was, in fact, true.
KIRBY J: On that theory, does not Lange reduce the constitutionally protected freedom of expression? It seems to be going in the opposite direction of that which is posited as the conceptual foundation for the protection, namely, to uphold freedom of electors to speak about the matters relevant to the conduct of elections.
MR MEADOWS: But the law of defamation is a burden on that freedom.
KIRBY J: Yes, but one would have thought that Lange is not making the burden greater.
MR MEADOWS: Well, no. In fact, it extended the law of qualified privilege to effectively diminish the burden that the common law of defamation placed on the freedom.
McHUGH J: It extended your privilege to communicate, and to a much wider audience, but the price that you have to pay is that you comply with the issue of reasonableness. Whereas certain types of malice will almost always negative reasonableness, it does not follow that because your conduct was reasonable that you still were not actuated by some forms of malice. For instance, an investigative reporter may have done everything to check out a story, believed it was true, and yet the publication was really actuated by ill will.
MR MEADOWS: That very example is given in the judgment in Lange.
McHUGH J: Yes.
MR MEADOWS: Just coming back to Justice Kirby's point, we would say that the Constitution does not mandate what the common law relating to defamation should be. The issue is, accepting that the freedom of political communication exists, does the common law of defamation - in this particular instance, relating to qualified privilege - burden the freedom of political communication to an extent that it is incompatible with the existence of that freedom?
GLEESON CJ: In the cut and thrust of political contest, you do not always look for or expect to find reasonableness.
MR MEADOWS: Well I accept that, your Honour, but I think it is fair to say that the effect of the judgment in Lange is that you can only rely on the extended qualified privilege defence if you can show that what you have done was reasonable.
GAUDRON J: In the circumstances.
MR MEADOWS: In the circumstances and, as I said, in the example put by the Chief Justice it may well have been impractical for the person concerned to have made inquiry as to the truth of the matter. If I could come back to Justice Kirby's point. The issue comes down to this, on our understanding of the judgment in Lange, and that is, is the common law relating to qualified privilege, reasonably appropriate and adapted to the achievement of a legitimate end, namely the protection of reputation, so as to enable it to exist in a way which detracts from the freedom of political communication. And so, when you are looking at legislation - - -
KIRBY J: You mean so that it does not unduly detract from the freedom of political communication?
MR MEADOWS: Yes. So if you are looking at legislation you ask that question and when you are developing the common law, as I take it your Honours are being asked to do in this case, you develop the common law in a way which again is reasonably and appropriately adapted to that end.
CALLINAN J: Very often you can infer the malice from the contents of the defamatory matter. Looking at the Free Travel Times document here, the compilation of an entirely false Frequent Flyer activity statement might lead some people to infer that the way in which it is compiled and set out itself is some evidence of malice.
MR MEADOWS: I would accept that, your Honour. If we are coming to the common law relating to malice, could we refer you to paragraph 16 of our written submissions where we would suggest that we have set out at least our understanding of what the common law is in relation to the issue of malice and we would suggest that, as the common law stands, what was said in Horrocks v Lowe is a correct statement of the law, and that is that what is required is a positive belief in what is being said and if you do not have a positive belief then it is possible to infer that there was malice. It is not so much a question of reasonableness of belief, but whether the belief is honestly held.
McHUGH J: The difficulty I have always had with Horrocks v Lowe and malice is the statement about without considering whether it was true or not. Before then the Royal Aquarium Case had generally been regarded as indicating that it was not necessary to know it was false; wilful blindness was sufficient and that is the same in the law of homicide, for example; wilful blindness is equivalent to intent, but saying without considering whether it was true or not, really it courts an objective test in doing it. I would have thought there has got to be something that really requires you to consider it. In other words, it seems, if Horrocks is read literally, then in every case the defendant must examine every lie and then consider whether or not it was true. It just seems so unreal, particularly in a political context.
MR MEADOWS: Well, yes, and I accept what your Honour says because we would ask rhetorically, "How can a defendant have a positive belief in the truth of the meaning of something which the person has never turned their mind to?". You cannot have a positive belief in something that you have not even considered.
McHUGH J: Yes.
MR MEADOWS: Subject to that qualification, we would say that Horrocks v Lowe postulates the true test.
CALLINAN J: What do you say about dominant motive, or dominant purpose?
MR MEADOWS: I do not think much can be obtained from the use of that word. I think it is just a question of emphasis I would imagine.
CALLINAN J: What about if there are a number of motives, some of which are not malicious or indirect and some which are?
MR MEADOWS: If one comes back to what was said in Lange again, it has to be actuating malice. Once you get that into the equation, you may have a number of motives. But if one of the motives is actuating malice, then that will be sufficient in order to bring that into play.
CALLINAN J: Because that is unreasonable?
MR MEADOWS: Yes. Well, more than unreasonable.
McHUGH J: It is an abuse of the privilege.
MR MEADOWS: Yes. If it pleases the Court.
GLEESON CJ: Thank you, Mr Solicitor. Mr Littlemore.
MR LITTLEMORE: I will be very short, your Honour. Justice Gaudron was asking about the duty interest situation. Gatley, in the most recent edition, at paragraph 14.5 deals with it not just being a duty/interest but an interest/interest reciprocity. So it is not necessary to manufacture a duty on the part of somebody advocating the election of an individual.
GAUDRON J: What authorities does Gatley - - -
MR LITTLEMORE: Toogood v Spyring, Baron Parke. The quotation - I will not read it out to your Honours, but it is at the bottom of page 329. In relation to dominant - - -
GAUDRON J: Now, what is the interest here, do you say, on your clients?
MR LITTLEMORE: The interest is in seeking to have somebody who has promoted the privatisation of the hospital lose his seat. The evidence shows that particularly Mr Case said that, "We thought to target him, even if we didn't win the election, even if the government were returned, if he were defeated, then the government would have to take hospital privatisation more seriously". That is what emerges from his evidence as to his purpose.
CALLINAN J: Baron Parke requires, however, that the publication be fairly made.
MR LITTLEMORE: Certainly, your Honour. All I was doing was pointing to the interest/interest being the correlative of the duty/interest relationship.
GAUDRON J: Does the interest have to be the same if you are talking interest/interest?
MR LITTLEMORE: No, your Honour, we would say not. The way Toogood v Spyring has it is to say:
the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty . . . or in the conduct of his own affairs, in matters where his interest is concerned.
He does not go on there to talk about interest/interest, but there is a good deal of reciprocity of interest dealt with in Gatley at 14.10:
reciprocity of interest is essential to found the privilege. "`Reciprocity of interest' does not mean that there must be some special relationship -
this is citing from Holzgen v Woollwright by Justice Tindall -
between the defendant and the person to whom he makes the communication. All it means is that the interest must exist in the party to whom the communication is made as well as in the party making it."
So the interest is in - - -
GAUDRON J: But that seems to suggest it is the same interest.
MR LITTLEMORE: It does seem to suggest that.
GAUDRON J: I must say, having thought about it a little since you commenced, I am by no means comfortable with the assumption that underlies this case, namely that it was a traditional case of qualified privilege.
MR LITTLEMORE: One would have to think again, I suppose, about formulation of the interest to get them the same. One would be the interest in telling electors what the local action group thought and the reciprocal interest would be in knowing what the local action group thought.
GAUDRON J: About the Modbury Hospital.
MR LITTLEMORE: Yes, about the hospital issue.
GAUDRON J: Hardly a word about that.
MR LITTLEMORE: In "P4", your Honour. That is Mr Case.
GAUDRON J: In the orange thing, yes.
MR LITTLEMORE: That is the position there. On the question of dominant interest, we have included on our list of authorities - - -
GUMMOW J: What do we do, Mr Littlemore, if we think that this case has gone off on wrongly perceived legal foundations?
MR LITTLEMORE: On wrongly perceived - - -?
GUMMOW J: Legal foundations as to the existence of this qualified privilege.
MR LITTLEMORE: Your Honour, that is - - -
GUMMOW J: We cannot be bound by some concessions that should not have been made, based on law.
MR LITTLEMORE: No, that is right, your Honour, but we say that, indeed, the appellants did establish reasonableness, that Lange defence was pleaded and pressed as an alternative and the appellants asserted there was no obligation in material such as this to seek the response of a political opponent. That was not reasonable. That would never happen, to distinguish it from the situation a the mass medium.
KIRBY J: You say it was reasonable to publish a mock-up of the frequent flyer document which was completely false and then, when asked by the responsible public servant who has the duty to ensure a fair and free election, to make a correction that you held back and you did not do it? You say that was reasonable? It does not seem reasonable to me.
MR LITTLEMORE: No, your Honour, we do not say that, but we say that when one analyses that the unreasonability goes to one thing, it only goes to one imputation.
KIRBY J: Yes, but it is in this very vivid document with a rather, on one view, amusing picture with an ice-cream on the front and then there is this document on the inside, "Bring the Frequent Flyer Back to Earth!" and "Parliamentary Traveller of the Year". That might be justified, I do not know, but "Bring the Frequent Flyer Back to Earth", a completely false statement and must have been known to be false when it was made. Somebody mocked up that document.
MR LITTLEMORE: Your Honour, "Frequent Flyer" there - does it have capitals, I cannot remember?
GLEESON CJ: Plus an assumption that Nauru is a well-known "junket destination", like Canberra.
MR LITTLEMORE: And Nauru.
CALLINAN J: I think it is a very flattering postcard, I must say.
MR LITTLEMORE: There is a good example, though, your Honour, of something in which there is no untrue fact at all.
KIRBY J: Yes, but it has all got to be read together and it has all got to be read in the document where somebody has mocked up this "Activity Statement".
MR LITTLEMORE: It does not have to be read with that because it was published separately and the evidence was that the postcard was published first.
KIRBY J: Yes, but your client was told that he had to correct that, and he did not.
MR LITTLEMORE: That is right, your Honour.
KIRBY J: I do not think that is reasonable.
CALLINAN J: Is it true to say that Nauru is a pacific island paradise?
GLEESON CJ: That might be non-justiciable issue.
CALLINAN J: Is it true that Mr Bass was enjoying a winter break there - enjoying the winter break?
MR LITTLEMORE: It was winter. Your Honour, we say the only untrue assertion there, even on the plaintiff's case, is the use of the word "break" as "junket".
CALLINAN J: Enjoying it - enjoying a winter break at a Pacific island paradise.
MR LITTLEMORE: It all depends where you come from, your Honour, but - - -
CALLINAN J: I prefer Glenelg to Nauru Island.
MR LITTLEMORE: May I just refer to this issue that was raised of dominant purpose. On our list of authorities is Tse Wai Chun Paul v Cheng [2001] EMLR 777. Lord Nicholls deals with that at paragraph 79.
KIRBY J: Is that in one of our bundles?
MR LITTLEMORE: I think we provided that or it is referred to in our reply. It is almost impossible to get hold of, I think, your Honour.
KIRBY J: I do not remember seeing that.
MR LITTLEMORE: It is footnote 2 in our reply. I had not intended to read from it, but I have a copy of it and we can certainly make a copy available to your Honours. But in that decision Lord Nicholls deals at length with Horrocks v Lowe and says Horrocks v Lowe does not apply to comment and that is the mistake that the authors of Gatley and the authors of Halsbury have made. His conclusion of law at paragraph 79 - this is a comment case in Hong Kong:
GUMMOW J: Of what court is this a decision in?
MR LITTLEMORE: It is what is called the Hong Kong Final Court of Appeal.
GUMMOW J: Right. Now, do we have a copy of it?
MR LITTLEMORE: We can provide it today, your Honour. The Court of Final Appeal of Hong Kong.
McHUGH J: What does Lord Nicholls say? Does he simply say that the only question is the honesty of opinion and that is it, it is completely different to malice?
MR LITTLEMORE: Yes.
McHUGH J: That was the view that used to be taken for a long period of time and that was certainly the view that was open.
MR LITTLEMORE: Yes, he says that is precisely:
Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive.
So dominant or sole,; so that envisages multiple purposes.
McHUGH J: Well, that was a widely held view and, I think, is it not the view that is enshrined in the New South Wales Defamation Act? Is malice an answer to the fair comment or opinion or comment under that?
MR LITTLEMORE: Yes.
McHUGH J: It is, is it?
MR LITTLEMORE: Yes, I think so, your Honour.
McHUGH J: Yes, I forget now.
MR LITTLEMORE: And it is that example of one of the particulars of traditional malice is publication for a purpose or main purpose of sensationalism in mass media cases.
GLEESON CJ: The purpose has to be collateral. It does not necessarily have to be ill will or spite towards the - - -
MR LITTLEMORE: Yes, quite so.
CALLINAN J: Mr Littlemore, I am sorry to come back to this, but I wonder if you can clarify this for me. At page 593 in the appeal book, paragraph 47, Justice Williams deals with the way in which the appeal seems to have been conducted and his Honour says:
Upon hearing of the appeal, the Court was told by counsel for the appellants that we need not be concerned with this defence.
And it is a Lange defence. Then in brackets:
(The Trial Judge decided that the defendants did not act reasonably).
Now, that suggests to me that the trial judge having made that finding and that being essentially a finding of fact, you were not challenging it and therefore you were of the view that you could not rely upon Lange. That is what it suggests to me, but I may be quite wrong.
MR LITTLEMORE: We have set that out at paragraphs 48 and 49 of our submissions.
CALLINAN J: Yes, but can you deal with it now?
MR LITTLEMORE: Your Honour, Lange was pleaded in defence. It was opened upon in defence. His Honour found in favour of common law qualified privilege. It then became unnecessary to go - - -
CALLINAN J: But did his Honour make a finding that your clients had not acted reasonably?
MR LITTLEMORE: Well, your Honour has read it, out there. I am quite sure that Justice Williams got that right, yes.
CALLINAN J: All right. Now, if, in fact, his Honour made that finding and if you did not challenge that as a finding, how could you rely upon Lange?
MR LITTLEMORE: Well, your Honour, we did challenge it and my learned junior tells me that at the appeal it was challenged - - -
GLEESON CJ: The finding is at page 554, paragraph 271.
CALLINAN J: Yes.
MR LITTLEMORE: Ground 11 of the appeal in the Supreme Court was that:
The Learned Judge erred in fact in finding that in respect of the extended defence of qualified privilege the Fourth Defendant failed to act reasonably.
But when the view of the Court of Appeal was that common law qualified privilege applied, it was not necessary to go to that. It was not decided on factual issues. If it be a two-stage process, as we say Lange is, then there was no occasion to go to it.
CALLINAN J: Thank you.
GLEESON CJ: The grant of special leave in this case was on limited grounds.
MR LITTLEMORE: Yes, your Honour.
GLEESON CJ: The grounds of appeal on pages 629 to 631 reflect that.
MR LITTLEMORE: Yes, your Honour. There is only one other thing that I wanted to say, may it please your Honour, and it is that repeatedly the respondent submitted, particularly in exchanges with Justice Kirby, that their case is that Lange does not protect false facts. Lange has no other function. One does not need Lange or qualified privilege unless the facts are false.
McHUGH J: Well, what is more, it only protects false defamatory facts.
MR LITTLEMORE: Yes.
McHUGH J: One of the problems in political argument is that people can suffer very grave political harm which is not defamatory. For instance, if you happen to be a member of an electorate with a large number of Jewish voters and your opponents falsely said that you were an Arafat supporter, it is difficult to see how that is defamatory, but it can do you enormous political harm in that particular electorate. So there are a lot of false statements made in politics that cause candidates a lot of harm. Lange does not protect false statements. What it protects is false defamatory statements of fact.
MR LITTLEMORE: Yes. Well, that is what I should have said. The question is, dishonestly false statements. What it does not protect is dishonestly false statements. Those are the matters that we wish to respond on, may it please your Honours.
GAUDRON J: Now, Mr Littlemore, can I take you to the orders sought, page 631. Even if you were writing everything, what one would come to was that the trial judge had not asked the right questions, and there would have to be a new trial, surely, rather than a dismissal of the action.
MR LITTLEMORE: I agree, your Honour.
GAUDRON J: Yes, thank you.
CALLINAN J: Mr Littlemore, would the respondents have had to have cross-appealed on the common law finding, or would they have been obliged to file a notice of contention justifying the decision of the trial judge on other grounds? I am looking at paragraphs 48 and 49 of your submissions.
MR LITTLEMORE: We say a cross-appeal would be necessary.
CALLINAN J: They won, did they not? They would not have to cross-appeal. They cross-appealed on damages, did they not?
MR LITTLEMORE: They are not seeking to support that part of the judgment, your Honour.
CALLINAN J: No, but what is the procedure in South Australia? Do they have to cross-appeal or do they file a notice of contention seeking to support the judgment of the trial judge on other grounds?
MR LITTLEMORE: My learned junior tells me the procedure in South Australia is a cross-appeal.
CALLINAN J: Is a cross-appeal?
MR LITTLEMORE: And there was a notice of cross-appeal. It is at page 566.
CALLINAN J: Does it go to that issue?
MR LITTLEMORE: I will have to turn it up, your Honour. It does not raise that issue, I am told.
CALLINAN J: It does or it does not?
MR LITTLEMORE: Does not.
CALLINAN J: No, it only goes to damages, does it not? How can you cross-appeal if you have won? That is what I do not understand. Normally, in this Court there would be a notice of contention, one would think. At the moment I am not satisfied that you do it by cross-appeal. From my point of view, speaking personally, I really want to know what happened and what the procedures are in respect of the appeal.
MR LITTLEMORE: I am sure my learned friend is a better person than I to assist the Court with that.
CALLINAN J: You are the appellant and you are trying to revive the Lange defence here.
MR LITTLEMORE: Your Honour, just pardon me a moment? Your Honour, my learned friend, Mr Trim, has conceded that they did not seek to challenge that element of the judgment, and for that reason we did not take it on in the appeal.
CALLINAN J: That may or may not be a complete answer to what I am asking you. Perhaps you could tell us subsequently. From my point of view I would like a written note as to the relevant rules and the practice in this regard in South Australia.
MR LITTLEMORE: Certainly, your Honour.
GUMMOW J: And perhaps the relevant transcript from the Court of Appeal hearing, because things seem to have been said in the course of the actual hearing that departed from the notices of appeal.
MR LITTLEMORE: Yes, your Honour, we can do that.
GUMMOW J: Not all of it, but the material - - -
MR LITTLEMORE: The relevant part. May it please, your Honour.
GAUDRON J: You did have a ground of appeal though - I just need to know this - complaining about the trial judge's finding of reasonableness.
MR LITTLEMORE: Yes, we did.
GAUDRON J: And that as it happens was not a matter that was dealt with by anybody in the Full Court, the view being taken that once malice was established it was unnecessary to consider it.
MR LITTLEMORE: Yes, your Honour.
GAUDRON J: So you would say if you are right in anything with respect to - well, on the question whether malice was established, whether the matter is answered by the - if you are right on malice, but if this Court were of the view that the assumption about traditional common law privilege was wrong, the matter would have to go back to the Full Court, would it not?
MR LITTLEMORE: Yes, I think so, your Honour. If your Honours please.
GLEESON CJ: Thank you, Mr Littlemore. We will reserve our decision in this matter.
AT 3.30 PM THE MATTER WAS ADJOURNED
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