Rogers v Nationwide News Pty Limited S145/2002 [2002] HCATrans 565 (5 November 2002)

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S145 of 2002

B e t w e e n -

CHRISTOPHER MICHAEL ROGERS

Applicant

and

NATIONWIDE NEWS PTY LIMITED

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 9.48 AM

Copyright in the High Court of Australia

MR T.K. TOBIN, QC: May it please the Court, I appear with MR A.S. MARTIN, SC and MR A.A. HENSKENS for the applicant. (instructed by Harrington Maguire & O'Brien)

MR S.D. RARES, SC: If the Court pleases, I appear with my learned friend, MS J.A. STEELE, for the respondent. (instructed by Gallagher de Reszke)

GAUDRON J: Mr Tobin, we thought we might be assisted by hearing first from Mr Rares.

MR TOBIN: Yes, your Honour.

MR RARES: Your Honours, the court below all found that Justice Hill's judgment conveyed an imputation, although Justice Mason asserted that the need to attribute the words used was firstly a legal requirement, there being no authority in the Australian English common law to support that and, secondly, his Honour then found that in the facts of this case that did not happen. If one goes to what his Honour - - -

GAUDRON J: Well, it may not be a need to attribute words, but on a reading of the article it does not necessarily appear that it is reporting on that issue what was said, does it?

MR RARES: Well, the question, in our submission, was, as the Court held both in Chakravarti, we say unanimously, and in Leslie v Mirror Newspapers Ltd, what, as a matter of fact, a fair reading of the article by the ordinary reasonable reader would convey to the reader as being communicated. In other words, was this a report of the court case? What is done is, if one goes to Justice Mason's judgment at page 65 paragraph 36, what his Honour does is he picks out the phrases that are concentrated on by our learned friends and says those, in effect, do not purport to represent the judgment, at the top of page 66.

If one goes to the article at page 111, the first quote his Honour takes:

robbed of sight by a surgeon's negligence -

is the second half of the sub-headline:

Scrooge taxman wins legal battle to take $168,000 from a woman robbed of sight by a surgeon's negligence.

The ordinary reasonable reader reading the newspaper would say, "Well, what was the legal battle about? What did the judge say? She was robbed of sight by his negligence." Given that Justice Hill used the words, she suffered personal injuries at Mr Roger's hands, and all members of the Court of Appeal agreed that conveyed the imputation, why would an ordinary person reading that not be able to think, as a matter of fact - and this is the findings of fact by the Court of Appeal - that referred to the judgment?

GAUDRON J: But by what authority really did the Court of Appeal make that finding of fact? Where is the error in the finding of fact by the trial judge that entitled the Court of Appeal to intrude into that issue?

MR RARES: This is a Warren v Coombes case. The trial judge was in no better position than the Court of Appeal to determine the facts, namely, what does the ordinary reasonable reader understand this to convey? There was no jury about this. It was accepted an imputation was conveyed and the question is, you compare the judgment with the report and you say, "Does that fairly convey the judgment?" The judgment conveys the imputation that Dr Rogers blinded Mrs Whitaker in the operation by carelessly operating on her, because his Honour says she suffered injury at his hands. Anyone reading the judgment would understand that and, in our submission, the Court of Appeal was quite correct to find the judge got that completely wrong, which he did, with respect.

The next sentence that Justice Mason takes, the second quote in paragraph 36 of the judgment on page 65:

blinded by a surgeon's negligence -

comes from the first paragraph of the article on page 111:

Maree Whitaker, blinded by a surgeon's negligence, walked from a Sydney court yesterday, the first victim of a tax department assault on compensation payouts that could reap it billions of dollars.

So, again, the ordinary reader is looking at that saying, "She has walked from a Sydney court, and what is the case about?" I mean, you are entitled to have some - what is the impression you get from the judgment? The ordinary person gets this impression: she is blinded by a surgeon's negligence. That is what the judgment said in terms. Why would not the ordinary reader read that? Why is it wrong? And when Justice Mason said this is not attributed, I mean, the ordinary person is capable of reading it as being referable to the court proceedings coming out of the judgment - it is clearly a report of the judgment. Then the third one that is complained of is in the box at the top right:

The Case of Maree Lynette Whitaker

and the first one is:

1984: Blinded during an eye operation.

Well, again, this is a report about a case that had been decided the previous day. Would not the ordinary person say, "What was the case about?" Here is a summary, a fair digestion of what Justice Hill said in his judgment, and, again, it is attributable, in our submission, clearly on its face to explaining what the case was about.

If your Honours go to what Justice Hill said in the book of authorities that the applicant has provided, much of it is summarised by Justice Stein, but at page 156 at the bottom right, which is 63 FCR 11, under G, Justice Hill wrote:

In the present case Ms Whitaker claimed two separate amounts in the proceedings she commenced. The first, which was an affair of capital was damages for a personal injury she had suffered at the hands of Mr Rogers.

Well, it was not at the mouth of Mr Rogers. We all know the case was about failure to warn in the Rogers v Whitaker litigation. But this is reporting what a Federal Court judge decided, in a written judgment, delivered on 21 August 1996 and the court reporter prepares a story the next day based on this, and where she gets the details - - -

GAUDRON J: Is that the only reference in the judgment?

MR RARES: No, but she gets the facts of what the operation was for from, in this book, page 148, at the top of page 3 of the report, between A and B:

In 1984 Ms Whitaker sought the services of Mr Rogers, a prominent eye surgeon, in connection with a proposed corneal graft. She was operated on by him and ultimately lost her sight in both eyes. Subsequently, she brought proceedings against Mr Rogers in the Supreme Court of New South Wales. In those proceedings she claimed damages against Mr Rogers, either for breach of contract or in negligence.

And then there is a recounting of the amounts of damages and the history through the courts, but no statement anywhere about the failure to warn issue that came up, which was the point that everybody went off on - the trial judge went off on and my learned friend's case is about.

McHUGH J: But it is not really a report at all of court proceedings. It is a story which happened incidentally to refer to a couple of factual matters.

MR RARES: Well, your Honour, in our submission, when you read what Justice Hill said, it is a report - - -

McHUGH J: It is full of comment. It is full of comment by other people, comment by Mrs Whitaker - - -

MR RARES: And they are clearly identified. The question is - - -

McHUGH J: If the media wants the protection of the fair report, then it has to be a report. They cannot mix it up with comment and other statements, run a story and then incidentally say, "This defamation comes out of some court proceedings, therefore an offence of fair report is available." You may be right, but it certainly seems to me to raise some important issues.

MR RARES: But is not the real test, if you look at what Justice Hill wrote, if he conveyed the imputation about Mr Rogers and the cause of action in New South Wales is the conveying of imputation by a publication, if this publication fairly conveys what Justice Hill said about Mr Rogers, which, in our submission, it plainly does - there is no other way you can read the statement, "she sued for personal injuries suffered at his hands".

McHUGH J: But it has to be a fair report of proceedings. You just cannot take an item here or there and say, "Well, that was said. Therefore, this is a report of that." It is like in Burchett v Kane, it was never a fair report at all, it was never a report of proceedings, except counsel that appeared at the trial never took the point.

MR RARES: Well, your Honour, in our submission, in this case, why does this not report proceedings? You go back to the parliamentary sketch cases - - -

McHUGH J: It starts off:

Maree Whitaker, blinded by a surgeon's negligence, walked from a Sydney court yesterday, the first victim . . . test case . . . means the right -

to comment on the tax office.

The litigation leading to the landmark -

et cetera. Then there are a couple of words about Justice Hill and then the rest of it:

The decision means the ATO will keep -

money and page after page of comment on the justice of this situation.

MR RARES: Well, with respect, no. If you go through it, your Honour, in the fourth paragraph, after the decision had cost her that money:

The litigation leading to the landmark ruling -

which is what Justice Hill summarises in his judgment. Then it is Mrs Whitaker - - -

McHUGH J: Yes, but it says:

could raise billions of dollars for the government coffers - - -

MR RARES: Yes, but it is reporting on a case and then, after that, your Honour, it discusses what Justice Hill found at the bottom of the second column: you follow "legal precedent", "upheld the ATO", talked about what the interest was for. It sets it all out. It then says towards the end of the third column:

Mrs Whitaker was the first person to have her interest taxed and appealed to the Federal Court -

So it is presenting the impression one would get from reading the judgment. This was a test case, the first time that this had been run.

McHUGH J: It is a lot more than an impression about a tax case.

MR RARES: And then there are clearly identifiable material, such as what Mrs Whitaker said, which showed that she was commenting on things, and the taxpayers association people and the tax office were also commenting on the case. That is fine, but when you are looking at whether what is complained of is, a number of words are said to be defamatory of Mr Rogers because - and we say, well, no, they fairly report what Justice Hill said in a public judgment delivered the day before, and they do. The imputation that those words convey, we say, is fairly reported in the story. One goes back to what Sir Garfield Barwick said, which we cite in our submissions on page 120 of the application book, in Leslie, that the question for a jury in that case, or the question of fact is:

"... would be whether the newspaper report as it would be read as a whole by members of the public is a fair report of so much of the proceedings of the magistrate's court as it purported to report. It is not for the judge to construe the publication as if it were a legal document creating or regulating the rights of the parties."

And, in our submission, if you go back to cases like Cook v Alexander, which was the English Court of Appeal case about a parliamentary sketch.

McHUGH J: What about going back to cases like Thom v Associated Newspapers?

MR RARES: Well, those cases have the same principle. It is the impression you get and you compare what was said in court with what is in the report. Here, if you compare what Justice Hill said, he conveyed that imputation, and the report conveys the imputation, and the passages complained of refer to the battle, refer to the court case, refer to the decision, and the ordinary reader is capable of reading it that way. The facts are the majority of the Court of Appeal said that is how you would read it.

McHUGH J: The first question is whether there is a report, and that would seem to me to be a question of law for the court.

MR RARES: Well, your Honour, is that not a question of capacity and how you would read it? In our submission, that was not the way the case was put, in those terms. I mean, what is said is there were errors. In our submission, if you read the matter complained of, it is clearly tied back to the judgment and it clearly, in our submission, is capable of being read as factually related to what Justice Hill had decided in his - - -

GAUDRON J: But "factually related to" is not the defence though, is it?

MR RARES: No, but it has to be a fair - - -

GAUDRON J: It is a fair report of proceedings - - -

MR RARES: Or a fair summary or fair extract - - -

GAUDRON J: - - - or a fair summary.

MR RARES: - - - that is, it conveys fairly the impression that one gets from reading the judgment. Now, why is it unfair to the reputation of Mr Rogers to report, as was done, that he had blinded Mrs Whitaker as a result of his conduct of the operation, when the judge in the Federal Court proceedings had said such a thing in his judgment? Why is that unfairly reflecting on his reputation? Because that is the test. It goes back to saying compared to, and then you say, "Is there an unfairness about it?"

In our respectful submission, the passages in Chakravarti which pick up what your Honour Justice McHugh is referring to in Thom are discussed correctly by the Court of Appeal in the different judgments. Justice Stein at 82 of the book picks up what your Honour Justice Gaudron and Justice Gummow said. Justice Kirby's judgment is picked up and, I think, Justice McHugh and the Chief Justice, Sir Gerard Brennan, expressed a similar test at the beginning of their judgment in Chakravarti. The question is - it is a factual question as to whether or not you compare the relevant record of proceedings with the matter complained of.

GAUDRON J: The real difficulty in this case is what Justice McHugh has been referring to. When you read it, so far as it concerns the role of Mr Rogers, there is nothing to indicate that that is a report really of what was said in the judgment.

MR RARES: But why?

GAUDRON J: It may be a fair indication - - -

McHUGH J: I will answer your rhetorical questions - and you should not ask questions of judges, but I will answer it.

MR RARES: I am sorry, your Honour.

McHUGH J: The fact is that this is a decision about taxation and deals with it at length. This is not a fair report. I must say, having a look at the judgment, I cannot see where you can get the impression that this doctor blinded this woman. He operated on her and ultimately lost her sight and she sued him for breach of contract or in negligence. Where does - - -

MR RARES: And for personal injury suffered at his hands.

McHUGH J: Yes. Where does that say he blinded her?

MR RARES: Well, your Honour, that, in our submission, is what an ordinary reasonable person would understand "personal injuries suffered at his hands" would be.

McHUGH J: Where is the passage about "suffered at his hands"?

MR RARES: At page 156G of the authorities:

In the present case Ms Whitaker claimed two separate amounts in the proceedings she commenced. The first, which was an affair of capital was damages for a personal injury she had suffered at the hands of Mr Rogers.

This is not at his mouth, which is what the case we know was about. The reporter only had this. What do you go off? If you are reading this, you say the judge is saying, "Well, she went to him for an operation. He operated on her and she went blind." The judge says she suffered the injury at his hands. You do not parse and analyse this and then go back and say, "Well, I will go and pick up 175 CLR and work out what the judge didn't say in this judgment." You would rely on what the judge published as to what happened.

McHUGH J: Well, you would have been on solid ground if you had quoted what the judge had said. Instead you sought to interpret it.

MR RARES: But, in our submission, the Court of Appeal unanimously said that is what the judgment conveyed to the ordinary reasonable person reading it and that is how you have to read these things. I mean, they are not trained lawyers. Ordinary members of the public have to deal with this. What would you make of this as an ordinary member of the public?

In our submission, it is just absurd to suggest that that would not convey the meaning that he blinded her by his operation and certainly gives no hint anywhere in this judgment that Dr Rogers failed to warn her. There is not a word of it in here. That is the problem with it. That is why Justice Hill's judgment, if you read it fairly, absent your extrinsic knowledge of the litigation between him and Mrs Whitaker, clearly conveys it is at his hands, the operation that did it, and that is why we submit that when a reporter is having to deal with this, or a member of the public is picking up this judgment, what is the impression it makes on you? The very imputation that was conveyed. Why is he unfairly treated by a reporting of this as the impression?

Your Honours, in relation to the other matter said to be a matter for the attraction of special leave, it proceeds on an assumption that there is a fair report and then it says, because somewhere in the newspaper's files there is evidence allegedly that the true facts in Rogers v Whitaker have been received, then notwithstanding that the judge found that the reporter and the editor responsible were not malicious in publishing this, knew nothing about the other facts, because somewhere in the newspaper's files they have a notice of the previous proceedings years before or because somebody may have been employed at the same time and was in an editorial position and he might - there was no evidence that he was on duty on the relevant day or days when these other articles were published, therefore you are malicious because you publish this, even though it is a fair report, or you are not publishing it in good faith.

In our submission, that is just ludicrous and hopeless and that ought not to be granted special leave and there ought not to be any grants of special leave for the other matters in the notice of appeal dealing with damages and aggravation and the like which were not the subject of any submissions and which came when a notice of appeal was served at the time the submissions and reply came.

So, if your Honours were to grant special leave, it ought to be limited to the fair report point and the damages would then be limited to the 75,000 the Court of Appeal awarded. I think the draft notice of appeal is on page 99, your Honours. The knowledge issues are in 6, 7, 8 and 9 and then in 10 there is no ground for special leave raised on aggravated damages and the like, and then the issues about the amount of damages that are raised and the orders sought in 13, we say ought not to be such as attract a grant. I mean, if the Court is interested in the matter, it ought to be limited to the issue that has attracted attention.

GAUDRON J: Yes. Now, Mr Rares - - -

MR RARES: I notice the - - -

GAUDRON J: We will extend it until you answer my questions. There were grounds of appeal by your appeal to the Court of Appeal that did not have to be dealt with?

MR RARES: Yes, that is right.

GAUDRON J: So that even were Mr Tobin ultimately to succeed on fair comment, the matter would have to go back to the Court of Appeal for resolution of those grounds?

MR RARES: No, I think the Court of Appeal said that the qualified privilege case failed and that was the - - -

GAUDRON J: I see. No. So this is the only - - -

MR RARES: That would be the only issue.

GAUDRON J: The only issue is fair comment.

MR RARES: Fair report.

GAUDRON J: Fair report, I am sorry, yes.

MR RARES: It would be for unfair comment case.

GAUDRON J: Yes, sorry.

MR RARES: So, if there is to be a grant, then it ought to be confined to that and the 75,000 damages the majority ordered, Justice Mason and Justice Grove.

McHUGH J: But how can the 75,000 - - -

MR RARES: Well, he was not named. The only reputation witnesses that were called were his wife and a person the judge did not believe as to the effect on him and there was no evidence of any economic loss at all. The Court of Appeal were well aware of the appropriate levels in New South Wales and 75,000 is what you normally can expect for a mass-media publication of an ordinary sort and this is one where - - -

McHUGH J: $75,000?

MR RARES: He was not named and no evidence - - -

McHUGH J: Neither was Mr Andrews. He got 480,000 in 1979.

MR RARES: And he had a lot of economic loss, as your Honour knows, and his company got most of it - - -

McHUGH J: No, I did not.

MR RARES: - - - and the tax returns were all put in, in a way that this case made no claim - he is a doctor who is supposed to have been substantially damaged in his reputation and not one cent claimed as damages for economic loss.

McHUGH J: What about all the people in the profession who would identify him with this particular case and whose recollection would be not as clear as it once was and who would read this as that this doctor blinded the woman?

MR RARES: Not one of them was called and not one of them was said not to refer any more. His practice did not suffer. Why, in our submission, would they not necessarily remember him, particularly if they were in the profession, for the very thing the case established, your Honour, the need to warn and to answer people's questions? That was our case below, that people who had a recollection about this case, if they remembered back, would know that the reason was a failure to warn.

The one witness they called, Mr Horwitz, his best friend who had gone through the whole case with him and the judge did not believe when he said he read the newspaper article and thought differently about him, because he blinded her during the operation, as opposed to the failure to warn, which he knew all about. So that it was not exactly the world's best case for that kind of thing and if there were a real foundation to it, you would have expected at least some evidence from even your friends and associates, particularly your professional associates, that would support such an allegation. So, in our submission, the Court of Appeal assessed the damages and that ought to be left where it is. May your Honours please.

GAUDRON J: Yes, thank you. Mr Tobin there is just one question: I take it that your malice argument is tied up with your damages argument?

MR TOBIN: Yes, and the absence of good faith is tied up with the section 24 issue, because if the Court opened the door, as it were, on this as a report, then there may need to be a safety net to import elements of good faith, such as knowledge by the defendant company. But that question of good faith does go to damages.

GAUDRON J: Yes. Well, there will be a grant of special leave in this matter. It will not be restricted, but there may be need for you to have a slightly closer look at your grounds of appeal, Mr Tobin.

MR TOBIN: Yes.

GAUDRON J: The matter should not take more than one day, should it?

MR TOBIN: No, it should not, your Honour.

GAUDRON J: No, and counsel can agree between them as to the allocation of that time, otherwise it will be agreed for them. Yes, thank you.

AT 10.14 AM THE MATTER WAS CONCLUDED