Festival City Broadcasters Pty Ltd v Entienne Pty Ltd & Anonr A14/2001 [2002] HCATrans 182 (19 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A14 of 2001

B e t w e e n -

FESTIVAL CITY BROADCASTERS PTY LTD

Applicant

and

ENTIENNE PTY LTD and DON COSENZA

Respondents

Application for special leave to appeal

GAUDRON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 12.08 PM

Copyright in the High Court of Australia

MR B.R. McCLINTOCK, SC: May it please the Court, I appear with my learned friend, MR J.S.L. LUMSDEN, for the applicant. (instructed by Thomson Playford)

MR C.J. KOURAKIS, QC: May it please the Court, I appear with my learned friend, MR A.P. DURKIN, for the respondent. (instructed by Duncan Basheer Hannon)

GAUDRON J: Yes, thank you, Mr McClintock.

MR McCLINTOCK: Your Honours, in the eyes of the law words are either defamatory or they are not defamatory. They cannot - and one might think that this is a matter of simple logic - be both. With great respect to the judge - - -

GAUDRON J: There were two questions, were there not? One, whether they were capable of bearing a defamatory meaning?

MR McCLINTOCK: And second, your Honour, the factual question whether they were?

GAUDRON J: All right. Now you lost on both, in essence?

MR McCLINTOCK: For the Full Court to come to the result they did, obviously we had to lose on both, but - - -

GAUDRON J: The second one is only a question of fact which we would not ordinarily entertain, so we must come back to the question, are they capable of bearing a defamatory meaning?

MR McCLINTOCK: With respect, your Honour, no.

KIRBY J: You say the Full Court confused the two and looked at the second question with the test that has been propounded for the first?

MR McCLINTOCK: Absolutely, your Honour.

KIRBY J: That is it; it is either a good point or it is a bad point. If it is a good point it is a quite serious good point.

MR McCLINTOCK: Absolutely, your Honour. Your Honour can see the error. It appears in paragraph 42 on page 38, line 60; it is obviously a summary of what has gone before. It is the rejection of what Lord Diplock said in Slim v The Daily Telegraph and may I say, your Honour, those words of Lord Diplock have never been questioned and they have always been thought accurately to state the considerations that involved determination of the second question, that is, whether they are defamatory.

GUMMOW J: Well, just a minute. I understand what you say about those passages, but then it is said against you and at paragraph 56 his Honour got it right and, moreover and in any event, Justice Williams clearly got it right at paragraph 68.

MR McCLINTOCK: Your Honour, that was Justice Duggan rather than Justice Williams.

GUMMOW J: Yes, sorry.

KIRBY J: Justice Williams agreed with Justice Olsson.

MR McCLINTOCK: Yes exactly, and with respect, your Honour, the fact that Mr Justice Duggan got it right, so to speak, would not matter in view of the fact there was a majority that, with respect, got it wrong.

GAUDRON J: What did they get wrong? I mean, forget about the reasons, because we do not appeal from reasons, they got wrong that it bore a particular meaning?

MR McCLINTOCK: Ultimately, yes, but they got wrong on the way to coming to that conclusion a test, or the test, that applies in this area.

GAUDRON J: Forget about the test, did they get wrong their conclusion or the implicit conclusion that they could bear a defamatory meaning?

MR McCLINTOCK: Once it was found, as it was found and as stated by Mr Justice Olsson, that this was, as he says in paragraph 53:

intended to be (and manifestly constituted) a comic, nonsensical, spoof -

and so on, and clearly - - -

GAUDRON J: And does it follow on your argument that nobody could therefore have taken it seriously and that would depend on the quality of the humour, would it not? I mean, if the humour might possibly of such a low standard that somebody would say to themselves, this is of such poor quality they must be intending to make a point about an actual situation.

KIRBY J: I hope we are not going to be the High Court of humour. I think we would fail in that task.

MR McCLINTOCK: Your Honour, that is not the process of reason that a court or the ordinary reasonable listener would follow. The point is, your Honour, that humour is the stock-in-trade of the media and of ordinary Australians everyday.

KIRBY J: The High Court Justices listen to soothing music in the morning, but ordinary Australian perhaps listen to humour.

MR McCLINTOCK: They listen to humour, and coming from Sydney, your Honour, they listen to Triple J and Triple M, all of which have comedy sketches like this, run by people like - - -

KIRBY J: It is very - - -

GUMMOW J: They do not usually assert that people are drug dealers, do they, by way of a joke? Maybe they do, but maybe they should not.

MR McCLINTOCK: Your Honour, that is the question here, whether there was an assertion to that effect.

GUMMOW J: Well, exactly, and you have not answered her Honour's question; you keep saying there was not, I think, by implication.

MR McCLINTOCK: Well I am not trying to evade her Honour's question, your Honour.

GUMMOW J: Well you have got to answer it if you are not evading it.

MR McCLINTOCK: It has now passed from my mind what the precise terms of the question in fact were, but, your Honours, the difficulty with what the Full Court did really appears on that page, page 41, where they have the premise, which is stated in paragraphs 53 and 54, which is where his Honour said:

I entertain no doubt that the mythical ordinary listener would have accepted that presentation with that general realisation.

Now that is a realisation that it was "comic", "nonsensical" and a "spoof". If the reader accepts that, it is entirely subversive of the fact - - -

GAUDRON J: The presentation was?

MR McCLINTOCK: And indeed the words were. When your Honour comes to it, it is ridiculous to think, for any reasonable person to think, that television interviewers or radio interviewers or radio newsmen, approach people in streets like this, or people come up to them, and offer them drug deals, it is just as ridiculous to think that people come up to the interviewer and then try and steal his microphone as happens a few seconds afterwards. The whole presentation is meant to be ridiculous.

GAUDRON J: Except that it is located in Hindley Street, and it is using that location because of that street's reputation, I suppose, for being the Kings Cross of Adelaide.

MR McCLINTOCK: Yes, your Honour.

GAUDRON J: And, on that basis, it is not improbable that somebody would steal the microphone or do worse damage or that somebody would be dealing in drugs.

MR McCLINTOCK: But what is improbable, your Honour, is the victim of the theft would be broadcasting it on the radio presumably the next morning.

KIRBY J: And that was the view that the primary judge took, was it not?

MR McCLINTOCK: Yes.

KIRBY J: He said, you have got to look at this in its context and its context is just an attempt at humour. Whether you like the humour or do not like the humour, this is just really base humour. That is how it would be viewed and listened to.

MR McCLINTOCK: Yes, exactly, your Honour.

KIRBY J: And the significance of the case is, as I understand it, these are very common programs nowadays. We may not listen to them, but sometimes in taxis you hear them.

GAUDRON J: Could we go back then. You say it was incapable of being understood in a defamatory sense?

MR McCLINTOCK: Yes, your Honour.

GAUDRON J: As a matter of fact or because the words used were simply incapable of bearing the meaning assigned to them.

MR McCLINTOCK: Your Honour, I say two things in summary: first I say it was incapable - - -

GAUDRON J: But as a matter of fact?

MR McCLINTOCK: As a matter of law.

GAUDRON J: As a matter of law.

MR McCLINTOCK: And I am relying there on what Lord Justice Millett said in Berkoff v Burchill, the "hideously ugly" case there, the passage is quoted, in fact, by the Full Court in paragraph 59 on page 42, and it is only three lines long, and it is the opening words of his Lordship's judgment in Berkoff v Burchill:

"Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously".

GAUDRON J: Here you had evidence that some people - - -

GUMMOW J: That was a dissenting - this is Berkoff, is it not?

MR McCLINTOCK: It is a dissenting judgment, I accept that, your Honour, but, in my submission, it is right.

GUMMOW J: What did Lord Justice Neill say about it? He would have known a lot more about defamation, I think.

MR McCLINTOCK: He did, as Lord Justice Millett said and indicates in his judgment.

GUMMOW J: Lord Justice Millett grew up in the chaste confines of the Chancery Division.

KIRBY J: Many great defamation judgments have been written by Chancery judges.

MR McCLINTOCK: I was going to say exactly that, your Honour.

KIRBY J: And often it is a good thing to have people from outside a discipline; I say that with respect to everybody to bring - a good commonsense, but in any case, in this case the judge, who is equivalent to the jury so regarded the broadcast. Now I see you have it here.

GAUDRON J: But before you go to it, can I take you back to what is there said from Berkoff v Burchill - "no one would take them to be meant seriously", not no one could take them to be meant seriously. You have to go that one step further to advance what you are saying is a proposition of law.

MR McCLINTOCK: Your Honour, with respect, we would suggest that Lord Justice Millett was not drawing that distinction.

GAUDRON J: I think he would have known the difference between "could" and "would".

MR McCLINTOCK: He would, your Honour, but he was dealing there whether the case should be allowed to go to the jury at all and the question before the Court of Appeal there was the capacity question, not the fact question, and his Lordship said, this case, because it is a joke, should not go any further.

KIRBY J: And that seems to have just been ignored in this case, that the trial judge, who had the primary obligation under law to evaluate both the "could" and "would" question, determined that this was just rubbish, this was just humour, chaff.

MR McCLINTOCK: Exactly, your Honour, and - - -

KIRBY J: Are we to give no credence to what - is it going to have to always go up the whole hierarchy until it comes to the humourless High Court?

MR McCLINTOCK: I have never found that a characteristic of this Court, your Honour. Your Honour, in some ways, this is breaking a very small - - -

GAUDRON J: Now why do we need to listen to it if it is only a question of law?

MR McCLINTOCK: Your Honours, I am unhappy not to play it.

GAUDRON J: You seem keen to do it, but I want to know - I mean, my problem, let me tell you, in this case is that you have to find a question of law and I do not understand how you really say it is a question of law, I do not understand the words from Berkoff v Burchill, which raised the question of law and I do not understand that you will demonstrate that it is anything other than a question of fact by playing it. Which is to say, I do not think you would want to play it if it were a question of law.

MR McCLINTOCK: Your Honour, can I demonstrate the question of law to your Honours. The question of law does involve - and this is what I was going to say is the second error that the Full Court made - the second question, which in a final analysis is a question of fact. What their Honours in the majority did was misdirect themselves as to the question of law that applies in relation to the second test - they misdirected themselves as to the legal basis relating to the second question, the question of fact, and that comes from that page 38.

GAUDRON J: And should that be so? Assume the misdirection - and I think there are a lot of statements in here that raise a number of questions - on what basis can it be said as a matter of law that this skit was incapable of bearing a defamatory meaning, when it refers to a person, perhaps intended to be hypothetical, but in terms which identify the hypothetical person with a real person, or are capable of so doing - and there is evidence that he was identified - in terms suggesting that he is dealing drugs.

MR McCLINTOCK: There was evidence that people made a link in their mind, but that is not evidence of identification. Your Honour, the word "chosen", the plaintiff's business name was Flash Gelateria. Flash is a slang word in both North America and in Australia and has a wide variety of meanings. "Flash as a rat with a gold tooth". "A flashy dresser." There is apparently an American meaning with reference to a rap singer that was actually factually intended by the particular presenter, but, your Honour, the mere coincidence of names and the fact that people when they hear the word "flash", used on 5AAA, think of, or may think of, a gelateria in Hindley Street, is not sufficient there.

But can I go back to the point, your Honour, because there is something quite serious and quite disturbing about what the Full Court has actually done here, because if this judgment stands, one can expect that there will never be any attention paid in any case following to the second question which the law has posed for over 100 years in this area, which is the factual question, because the Full Court, in effect, says, if there are two meanings reasonably open, you can take both; that is the legal error and that is what appears on page 38 of the judgment. It also follows - it is worked out, so to speak, and the error continued, on page 41. The Full Court says that it was reasonably open to take an innocuous meaning from this because it was a joke.

They then say, it was reasonably open - well they do not actually say this, your Honour, they proceeded in a different way. But paragraphs 53 and 54 are an acceptance of the basis upon which the trial judge proceeded, and this follows from what is on page 38; that is, that their Honours rejected what Lord Diplock said about it being either defamatory or not defamatory and there being one meaning. They then applied Stubbs v Russell, which is a case which has got to do with the capacity question and no one would dispute that if it was capable of meaning two things, it must go to the jury or must be determined by the tribunal of fact, but that does not affect the question here. Then after rejecting Lord Diplock - and I might say Mr Justice Olsson said it was not in accord with the stream of authority. Your Honours, as I said, the overwhelming stream of authority - well, this is the only case, may I say, your Honour, that has ever differed from what Lord Diplock said in the common law world - - -

GAUDRON J: Yes, well all of that may be accepted in a sense but, what, in the end would you be asking this Court to decide in the event that you got special leave, the precise question of law?

MR McCLINTOCK: The precise question of law could be encapsulated by saying - - -

GAUDRON J: No, do not tell me what it could be; what is it that you would, again distinguish between "would" and "could"? Now what would you ask this Court to decide, as a question of law?

MR McCLINTOCK: That is what I was going to answer, your Honour, and there are two questions I would ask this Court to decide, and I would say there is a corollary that flows from those questions. Question one is, was the Full Court's rejection of Lord Diplock correct, as a matter of law; second, was the Full Court's implicit finding that this matter was capable of being defamatory, was that correct?

GAUDRON J: And what would you have to establish before you could win the appeal? Which seems to me to be a different question which your submissions do not address.

KIRBY J: Can I ask, is your approach this: the Full Court is not entitled to disturb a factual finding of the primary judge unless it is authorised by law to do so. When they approached the matter they made an error of law in their approach. They should therefore not have disturbed the primary judge's finding and therefore it should stand, which involved an evaluation of the alleged defamation in its context?

MR McCLINTOCK: That is it, your Honour.

GAUDRON J: And what would you have to establish to win the appeal, even being that there was error of approach? You would have to establish that the actual decision was wrong. The error of approach may well be accepted, but you would have to establish, would you not, you would have to get this Court to hold, as a matter of law, that, in context, the words were incapable of varying the meaning that drugs were being sold from the Flash Gelataria.

MR McCLINTOCK: Your Honour, once it follows that the Court of Appeal got the legal test wrong, it must follow, largely for the reasons that Justice Kirby put, that the appeal should have been dismissed.

GAUDRON J: No, it does not follow, because it would still be open for the people to argue that to the extent that the matter was looked at, it proceeded on a basis of "could not".

MR McCLINTOCK: Your Honour, if it came down to that it is the sort of matter that could always be remitted back to the Full Court for further proceedings in accordance with your Honour's reasonings.

KIRBY J: And you say this is an important point, because there are programs like this in every part of the Commonwealth?

MR McCLINTOCK: I do, your Honour, and it goes further than that, because this test is not the problem, it is not limited to situations such as humour. Their Honours spoke in terms of general application and in terms that no court in the common law has ever spoken, ever.

May I say one further thing, your Honour, it is implicit in the Full Court's judgment that if they had not made the error they did, they would have dismissed the appeal, because they say, specifically, that it was a joke and if it was a joke it could not have conveyed the meanings. Your Honours, subject to any - - -

GUMMOW J: What was the primary judge saying at the top of page 21? He dismissed the claim, but on what footing, at what stage of the inquiry did he dismiss the claim?

MR McCLINTOCK: He dismissed it, your Honour. That is capable of being read as both stages but - - -

GUMMOW J: That is the problem.

MR McCLINTOCK: It is not the problem that detained the Full Court, it is the - - -

GUMMOW J: No, just favour me for a minute, Mr McClintock.

MR McCLINTOCK: Certainly, your Honour.

GAUDRON J: You will get injury time.

GUMMOW J: Now, what do you say is the meaning at page 21?

MR McCLINTOCK: Your Honour, that is, in fact - - -

KIRBY J: He makes it clear he understands it on the previous page, page 19 of his judgment, line 30. He says:

There are two questions -

and he has the "could and does" and he says:

I must consider the broadcast as an ordinary reasonable man -

So, he is approaching the matter in the right way as a jury and then he comes over the page and he says, "Having gone through those stages I come to my conclusion, I have listened to it and the reasonable person would have regarded this as rubbish".

GAUDRON J: Except that what is there at line 30 is not the defamatory imputation as such, but whether it refers - it is really a question about a true innuendo in a sense there, is it not?

MR McCLINTOCK: At line 30, paragraph 74 his Honour is there dealing with the identification issues but he has already dealt with, as Justice Kirby says, the factual question, that by determining that factual question in favour of the defendant at that stage, your Honour, he - - -

GUMMOW J: Where does he answer the second question?

MR McCLINTOCK: He has answered the second question, your Honour. He has instructed himself as to the second question.

GUMMOW J: Where does he answer the second question posed at paragraph 67?

MR McCLINTOCK: In paragraph 71, your Honour. That is what he is doing there.

GUMMOW J: I see.

MR McCLINTOCK: His Honour has, with respect, instructed himself correctly in paragraph 67.

GAUDRON J: But he does not go on to say further that it is not capable of bearing a defamatory imputation. I would have thought that he had to go on and say, "Could not understand it either to refer to the Flash Gelateria" or "Could not understand it to be suggesting as a proposition of fact that drugs were being sold at the Flash Gelateria".

KIRBY J: If it does not refer to Flash Gelateria, it is not going to be drug dealing in the Flash Gelateria.

GAUDRON J: No.

MR McCLINTOCK: Yes, your Honour. Could I just respond to what your Honour Justice Gaudron put to me. I will just say two things. I am conscious that I have gone over time. In paragraph 75 his Honour makes quite clear that he is determining the second question, the factual question. He says:

For all the above reasons I am satisfied, and I so find, that the words complained of in their context do not have the meaning ascribed to them by the plaintiff.

Then he went on to deal with another matter.

The other thing I wished to say, your Honours, is that in jurisdictions where these matters are not tried by juries judges, not surprisingly, because it is convenient, go to the second question, the factual question, and determine it because if the imputations do not arise as a matter of fact, obviously - - -

GAUDRON J: But if it is only a question of fact in the Full Court you do not get anywhere near a special leave point.

MR McCLINTOCK: Your Honour, what appears on page 38 makes it very clear this is not merely a question of fact. This is a rejection of a considered judgment of one of the greatest common lawyers of the second half of the 20th century, Lord Diplock, who knew this area and knew it intimately and who - - -

GAUDRON J: But Lord Diplock - I mean, I do not know why the Full Court referred to it. I do not see that really in the end it impacts on their reasoning.

KIRBY J: That is the point. It was the touchstone of their reasoning and they - - -

MR McCLINTOCK: Exactly, and if they did not reject Lord Diplock, they could not have upheld the appeal because at the highest in their Honour's favour they are saying there are two meanings reasonably open. One of them is that this is a joke and - - -

GAUDRON J: Whether it is a joke does not seem to me to bear on the meaning. Jokes work because of a meaning. I would have thought in this context the question whether it was a joke would bear directly on whether it would be understood to refer to Flash Gelateria and it would be a question of whether it would be understood to suggest that in fact he was doing it, but the fact that it is a joke seems to me ultimately only to go to the second question. It could not go to meaning.

MR McCLINTOCK: With great respect, your Honour, there are very, very great divergences as to what jokes are. I recall a member of the Bench many years ago telling a joke about a well-known senior counsel in Sydney. It proceeded on the premise that his family were a bunch of boorish hillbillies and involved a pig with a wooden leg. Could it be seriously suggested that that senior counsel could have sued, or his family could have sued, over a joke like that?

GAUDRON J: Yes.

MR McCLINTOCK: The reason why is the situation is ridiculous, as it was ridiculous - - -

KIRBY J: It would depend on where it was said. If it was at a Bar dinner and meant to bring down the reputation of the person - jokes can be defamatory.

MR McCLINTOCK: They can be defamatory, your Honour.

KIRBY J: Ridicule is in the classic definition.

GAUDRON J: And that is why, it seems to me, the fact that it is a joke goes to the factual issue, not the legal issue.

MR McCLINTOCK: Your Honour, it must go to both, and that is what Lord Justice Millett said in - it can go to the first one. There is a defence, that does not occur very often - or does not succeed very often - called mere vulgar abuse. It is quite capable, if it can be seen as being only capable of being - - -

GAUDRON J: This defence - you say, really, if it had to go to a defence, it would be: "Just a joke, Joyce".

MR McCLINTOCK: I am sorry, your Honour. Just a - - - ?

GAUDRON J: Just a joke, Joyce.

MR McCLINTOCK: I am not quite sure what your Honour means.

GAUDRON J: Well, you obviously were not watching television at a time when I was.

MR McCLINTOCK: I think other people present in the Court obviously were, your Honour.

KIRBY J: Neither was I, so do not feel guilty about it. I do not know what her Honour is referring to. I do not watch such programs.

MR McCLINTOCK: I was reading the application book, your Honour.

KIRBY J: Exactly. I probably was doing the same. Anyway, you have had your time.

MR McCLINTOCK: I have had my time, your Honour.

GAUDRON J: Yes. Well, we should hear from you, Mr Kourakis.

MR KOURAKIS: If the Court - - -

KIRBY J: You would agree, Mr Kourakis, that there are many programs such as this on radio, throughout the country. Are you willing to agree to that?

MR KOURAKIS: If your Honour pleases, that is so, and, unfortunately, there is probably a - - -

KIRBY J: Breakfast humour.

MR KOURAKIS: Sorry?

KIRBY J: Breakfast humour. It is ghastly, to some people, but it is very common, is it not?

MR KOURAKIS: There is a lot of it, and it varies greatly, too. In my respectful submission, little would be gained by considering this particular aspect of now fairly old breakfast humour, in terms of elucidating much for the whole of Australia and their radio programs, if your Honour pleases.

KIRBY J: Yes, but the message that goes out from the Full Court's decision is that breakfast humour radio now has to scrutinise every word with the greatest of care, and that really affects the spontaneous nature of breakfast humour radio - if you ever listen to it. You probably do not listen to it. I get it sometimes in taxis.

MR KOURAKIS: Yes. More often, perhaps. But, if your Honour pleases, paragraphs 54 and 56 show that the Full Court has not been in any way influenced - and his Honour Justice Olsson was not in any way influenced - by the earlier considerations and discussion of Stubbs and the like. What his Honour Justice Olsson has applied in paragraphs 54 and 56 is simply the straightforward, orthodox test: what is the meaning that I give to these words? And he has found that they bear the defamatory meaning, in fact, finding that all would so understand them, except those that knew the plaintiff well, like his brother-in-law. Accordingly, for the - - -

GUMMOW J: Why was it open to the Full Court to interfere with a contrary finding on this question?

MR KOURAKIS: If your Honour pleases, his Honour Justice Olsson dealt with that in paragraph 60, and he found there in the determination of the learned trial judge, for the reasons that appear there. There are occasions in which a Full Court might nonetheless interfere. The applicant has not suggested that there is any special leave question associated with the interference in this case. In essence, the applicant simply wishes a Full Court of this honourable Court to form a view, and consider whether it would form the same or a different view on a question of fact, that formed by three justices in the court below. And unless - - -

KIRBY J: No, but they have said that the primary judge was in the position of a jury. We really have to ask ourselves, had this been a jury trial and the jury had come back with a verdict of not guilty or a verdict for the defendant, then would the Full Court have been authorised to disturb it? Of course, we have the reasons of the primary judge, but he did seem to address himself to the "could" and "did" tests. So therefore you have to ask yourself what was the authority of the Full Court to disturb the factual finding of the primary judge?

MR KOURAKIS: On a consideration of his reasons - and, of course, a trial judge, unlike a jury, gives reasons - on a consideration of the reasons, their Honours formed the view that he had erred, and felt entitled to draw their own conclusion about the meaning. Although the fact that these matters were heard once by juries - not for a long time in South Australia, still in other places - is a factor to take into account, but, in the end, now, a trial judge hears and gives reasons, and those reasons must be susceptible to review as in any other case. They were reviewed; the Full Court unanimously found the meaning to be the defamatory one; and all that this Court could do on appeal would be to say, one way or another, as to this particular broadcast, whether they were of that view or not.

KIRBY J: But I thought we have said many times that Full Courts are not entitled to disturb primary judges, unless they find error. The error is in paragraph 60, which looks like just a different assessment of the character of the alleged defamation.

MR KOURAKIS: If your Honour pleases, that would then involve a consideration as to, in this particular case, whether the interference was justified. In my submission, that is not a matter of special leave importance. This Court has pronounced on that question many times. This Court would become even more overworked if it still undertook the job of investigating, in every case, whether the error was sufficient or not. In the end, it is simply my submission that the observations made by his Honour Justice Olsson played no part in his conclusions, and it is only his reasons for the conclusion with which Justice Williams concurred. His Honour Justice Duggan, clearly, also simply applied the orthodox test on, in the end, what is a factual question about one, now fairly old, morning radio broadcast. If the Court pleases.

GAUDRON J: Thank you. Mr McClintock?

MR McCLINTOCK: Your Honour, there is nothing I wish to say in reply.

GAUDRON J: Thank you. We will adjourn briefly to consider the course we will take in this matter.

AT 12.42 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.45 PM:

GAUDRON J: Having considered the written submissions and the submissions made by counsel today, the Court would not necessarily agree with the reasoning either at first instance or on appeal. However, by majority, the Court is of the view that the actual decision is not attended with sufficient doubt to warrant the grant of special leave. Special leave is refused with costs.

The Court will adjourn briefly to reconstitute.

AT 12.46 PM THE MATTER WAS CONCLUDED