Harvey v John Fairfax Publications Pty Ltd [2006] HCATrans 47 (10 February 2006)

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Harvey v John Fairfax Publications Pty Ltd [2006] HCATrans 47 (10 February 2006)

Last Updated: 3 March 2006

[2006] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S404 of 2005

B e t w e e n -

JOHN HARVEY

Applicant

and

JOHN FAIRFAX PUBLICATIONS PTY LIMITED

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 FEBRUARY 2006, AT 3.37 PM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the applicant with my learned friend, MR R.W. POTTER. (instructed by Carneys Lawyers)

MR T.D. BLACKBURN, SC: May it please the Court, I appear with my learned friend, MR K.P SMARK, for the respondent. (instructed by Freehills)

KIRBY J: I am sorry, gentlemen, that we are a little late but were at the service and it went on a little longer than we expected.

MR REYNOLDS: Thank you, your Honour. Can I start by thanking your Honours for the indulgence granted to me in the listing of this matter and apologise for any inconvenience which I have caused.

KIRBY J: You did not cause any inconvenience at all.

MR REYNOLDS: Your Honours, this application for leave starts with what I concede is not a terribly promising starting point which is this, that ultimately, if leave were granted, this will be an appeal from the Court of Appeal’s exercise of discretion in refusing to allow an amendment.

KIRBY J: Add to that that it is really within a matter of practice and procedure.

MR REYNOLDS: Quite, and the Will of Gilbert.

KIRBY J: You can add another burden that the substantive law of defamation is in the process of being changed and that a lot of this may become rather theoretical in the future.

MR REYNOLDS: I am going to come to that, your Honour, and address that precise point.

KIRBY J: You can add a further, that this would be a third trial which is itself - - -

MR REYNOLDS: Yes. Your Honour, I feel like I have the ball in my hand - - -

KIRBY J: No, but you opened it up, Mr Reynolds, and very properly and very candidly and with all the skill for which you are well known.

MR REYNOLDS: I did. Your Honour, I am here standing on the dead ball line and I am going to try and do a David Campese. With all of those problems, I suggest that there are two matters, and a third, indeed, that warrant the grant of special leave in this case. The first matter that I want to raise is what I will call the appropriate practice in the pleading of imputations in defamation cases in New South Wales, in particular, and also I will take up the question of other jurisdictions.

Your Honours will have seen that in this case one of the reasons for refusing the amendment was that Justice Hunt in his judgment castigated the pleader for adopting what he described as this new pleading practice, and at page 150, line 20 indicated that “this new pleading practice . . . must be stopped.” His Honour said at the top of page 143:

This new practice is to plead the imputations for which the plaintiff contends in the words of the matter complained of itself, rather than (as was previously the practice) in order to identify the act or condition attributed to the plaintiff by the publication giving rise to the defamation, which usually –

will not involve referring to the words of the matter complained of. As your Honour Justice Kirby well knows, this is an important dispute about the manner of pleading cases in defamation cases which has been around for a while.

KIRBY J: I certainly remember it.

MR REYNOLDS: It was raised, your Honour will remember, very, very well in the case of Drummoyne v ABC where your Honour referred back to a previous decision of the Court of Appeal called Hepburn and where your Honour referred to statements by Justices Glass and Hutley supporting what Justice Hunt described as “this new practice”.

KIRBY J: It came up peripherally in that case in Brisbane recently which you successfully argued in the Court.

MR REYNOLDS: It did and your Honour raised it with me and that was the case your Honour asked me to recall on my feet. In this case your Honour dissented on the result, that is, in Drummoyne. Justice Priestley and Chief Justice Gleeson formed the majority. If I could take your Honours briefly to that case which is in the pile of cases your Honours have there, the test articulated by the Chief Justice at page 138E was that:

“ . . . The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.”

But his Honour put a very important rider on that, and that is to be found on the previous page at page 137E and it is this that:

The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says “X is disgusting”, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.

What has happened, I suggest, although my learned friend may regard this as a tendentious statement, is that that rider has been seized upon, particularly by plaintiffs, as a justification for pleading the words of the matter complained of because using the Chief Justice’s words the plaintiff says, “Well, that’s the best that I can do”, no doubt trying to avoid an argument at the section 7A trial that the distillation which moves away from the words of the matter complained of does not arise because that is not what the article says. Justice Priestley, on the other hand, at page 155F said:

I reach agreement with Hunt J’s conclusion without the need to rely on any of the decisions he cited . . . because the appeal seems to me to be a relatively simple pleading case dependent on the long-established . . . rule that a pleading must be sufficiently clear to the opposing party –

This case is a very long way, contrary, we submit with respect, to what Justice Hunt says in this case, from being an endorsement of his own practice as the defamation was judged on these matters. Your Honour Justice Kirby referred – and I will perhaps take your Honours briefly to this – to the decision of the Court of Appeal in Hepburn and your Honour at pages 145 to 147 referred to what Justice Glass and Justice Hutley had said and concluded at the top of page 148 that what they said on this point – that is, one can plead in general terms the words of the matter complained of – was not obiter. Your Honour also referred – and this important, I submit – at page 151D to what Justice Clarke said in John Fairfax v Foord, with the concurrence of Justice Hope, that is, his Honour talked about:

“If the complaint is that the imputation as pleaded lacks clarity because the word ‘corrupt’ is ambiguous then that deficiency flows naturally from the material published. It was the defendant who used the word ‘corrupt’ and, provided that the respondent in an unqualified manner can satisfy the test on identification –

et cetera. So we would say that that is further support, in addition to the Hepburn Case, for the practice which Justice Hunt castigated. The bottom line, as your Honours would guess from what I have said already, is this. We submit there is a serious divergence of views in the Court of Appeal. First of all we have Hepburn which endorses the practice adopted by my client in this case; secondly, Foord; Drummoyne, on this case, is equivocal. Your Honour Justice Kirby - - -

KIRBY J: Justice Hunt acknowledged that there were these differences at 147 in paragraph 125 and that I had accepted, and with regret, that my dissent had been to no avail. I think I have to choose battlefields. This is one, I suspect, where I would not carry the Court.

MR REYNOLDS: But your Honour has, with respect, triumphed, as it were, by stealth because what has happened is that the Chief Justice’s view in the Drummoyne Case has been picked up and applied, probably for the better part of 10 years now, and it was applied by Justice Levine as the defamation list judge and it has been continued to be applied by the latest judge in the defamation list. As your Honours well appreciate, the imputation is the very foundation of a cause of action.

KIRBY J: I know that is so under the law as applied here, but my understanding is the new law is going to change that. Is that not correct?

MR REYNOLDS: Not at all, your Honour. Can I deal with that directly? Your Honours will see in the pile we have there the Defamation Act 2005 (NSW).

KIRBY J: I thought that that was one of the most important - - -

MR REYNOLDS: All of the other States have this legislation. Your Honours will see section 25 talks about it being:

a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried . . . are substantially true.

So they will have to be pleaded. Then the “Defence of contextual truth” in section 26 relates:

to the defamatory imputations of which the plaintiff complains –

So they are going to have to be pleaded under this new Act all over the Commonwealth.

KIRBY J: But the step has been taken to go back to the old principle, is it not, and the imputation is not the defamation?

MR REYNOLDS: That is on the following page, section 8, which we have put there and that is that “A person has a single cause of action” in relation to a defamatory matter “even if more than one defamatory imputation” is there, but that does not alter, again, the need to plead these imputations.

KIRBY J: But would it not be better from the point of view of this Court – and I know it is not good from your client’s point of view – for us to tackle problems in this area of practice and procedure, if at all, which would be unusual, but if at all in a case that arises under the new uniform laws?

MR REYNOLDS: I submit that this is an appropriate vehicle. It arises, of course, under the 1974 Act, but this Act of 2005 only cuts in for publications on 1 January. There are, on any estimate, years of cases involving pre-1 January publications. The Court of Appeal held last week that the new Act will not affect in any way those old causes of action. There are going to be, with respect, probably hundreds of cases, still, from before 1 January 2006.

The other thing is this. In another case on our list of Robinson v Laws which again was raised in that Favell your Honour may recall, the Chief Justice in that case, Justice de Jersey, pointed out that in Queensland, under the Code, that the imputation is the basis of a cause of action and the other judges agreed with him and that same observation - - -

KIRBY J: Queensland has joined this new system, has it not? Everyone is in, I think.

MR REYNOLDS: Well, of course, that has been replaced as of 1 January 2006. I concede that. The same observation would inevitably apply to the Code in Western Australia because it is virtually the same. In the other States, of course, the practice is generally just to have particulars based pretty much on the words of the matter complained.

KIRBY J: It is not a bad system.

MR REYNOLDS: With respect, we say that too. What has happened is that for at least 10 years, approximately, the plaintiffs have been relying on this statement of the Chief Justice in Drummoyne and saying, “Well, that is the best we can do. We are not going to try and further distil the precise meaning because it is unclear in the matter complained of”, and then the Court of Appeal has come along and said they are going to reinstitute what they say is the former practice.

We submit there are all sorts of doubts about that for the very reasons that your Honour the presiding judge articulated in the Drummoyne Case. This is not an argument that is done and dusted in this State at all. It is a very live matter and a situation where there are inconsistent decisions of the Court of Appeal. That is the first point that I wanted to raise.

HEYDON J: Did Justice Santow and Justice Basten agree with Justice Hunt there?

MR REYNOLDS: Justice Santow made it quite clear that he agreed with Justice Hunt on this point. I do not think Justice Basten dealt with it.

HEYDON J: Yes. I accept what you say.

MR REYNOLDS: The second issue that I want to raise I will compendiously describe as the Anshun issue. Your Honours will recall that – and this is set out at the top of page 118 and the bottom of 117. The Court of Appeal first dealt with the question of estoppel by saying it could:

arise only where there are two separate proceedings between the parties and where the proceedings giving rise to the issue estoppel have been concluded. In my view, the agreement between the parties as to the effect of the Anshun case so far as it affected the present matter was correct.

So that is how they deal with estoppel. Justice Hunt deals, however, with a similar idea on amendment – on the discretion at page 124 at line 35 where his Honour says:

The present case does, however, raise the possible exercise of the discretion to refuse an amendment along lines which may properly be described as being “akin” to both an Anshun issue estoppel and an abuse of process –

What his Honour is saying there in those two passages is, “There is not an Anshun estoppel, there is not an abuse of process, but in exercising my discretion I am going to say there is a sort of Anshun abuse of process flavour about all of this and I am going to take that into account on discretion.” We take issue with both of those points, with respect, first of all because we submit that on this issue of estoppel the Court of Appeal have, with respect to them, started from an altogether incorrect starting point.

The starting point my learned junior set out in his supplemental written submission which your Honours should have there and he quoted the passage from Lord Diplock in Fidelitas which this Court endorsed in the Bass Case where Lord Diplock said:

Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment –

et cetera. That is the starting point, that is, where there is a separate trial there is a form of estoppel. That would not, of course, get the defendant home. What the defendant would have to show was that there is what we have described in the submissions, a principle which involves overlaying the principle in Henderson v Henderson on top of Fidelitas. So one takes a separate trial in Fidelitas and a form of estoppel there and then has to translate the notions of Henderson v Henderson, could and should have raised the point below, and say they apply to our form of interlocutory determination.

We submit that this question of this form of interlocutory estoppel is an important issue that your Honours should consider. Your Honours also have on the pile of authorities there Rogers v The Queen. Page 275 has been photocopied and Henderson v Henderson is there quoted by Justices Deane and Gaudron. This was the case involving a form of interlocutory estoppel about the admissibility of evidence in a criminal case. Their Honours referred to Henderson v Henderson and the notion of once a judgment is pronounced and not being able to bring forward a “point which properly belonged to the subject of litigation”. They said that “that principle, if it be one, is to be treated with caution.”

So that is the important point which I suggest this Court would have to start with if leave were granted on this issue. We submit that that is the appropriate starting point and if there be no estoppel, if there be no abuse of process, then it is neither here nor there to talk in very vague terms about could and should in relation to an amendment. Almost any amendment, one is going to be able to say in relation to it you could and should have done it earlier – almost every time there is an amendment application.

The other difficulty on this point, given that there was a retrial ordered, is, as Justice Hunt notes in the judgment, first of all a plaintiff is
very often given leave to replead after a separate trial on an issue of law or capacity and he also notes that when orders for retrials are made generally, then very often the parties amend.

I am running out of time and I have articulated the second point. Can I finish by pointing out two matters we suggest raise an injustice on the exercise of discretion. The first is at page 125 at lines 14 to 34. Justice Hunt seems to have taken into account some idea that a costs order made against my client is the price of the amendment may, I guess, not be met because of “his comparative lack of means”. That is at line 34. With respect, there was not any evidence about this and this issue of costs is very easily dealt with either by making the amendment subject to the costs first being paid or subject to an order for security.

The only other matter I want to raise is in relation to page 121, line 35 where his Honour talked about my client “may have been” using the trial for a “tactical advantage”, and at 124 at line 40, that he is making:

a case which he could and should have made at the first trial but may not have done so for tactical reasons, and without providing any reasonable explanation –

The explanation was in fact given – the usual explanation by counsel which is noted at page 129, at about line 15 which, paraphrasing it, is that counsel just did not think of it. So this idea of tactical issues, we submit, is unsustainable. It is not articulated and the suggestion that there was no explanation is, with respect, not correct because it was explained in terms by counsel in his statement that is there noted.

So, your Honours, we come back to three things in the end. First of all, this pleading practice issue; second of all, Anshun with the Henderson v Henderson overlay; and, thirdly, an injustice based on these last two matters which were part of the exercise of discretion. If your Honours please, those are my submissions.

KIRBY J: Yes, thank you, Mr Reynolds. The Court does not need your assistance, Mr Blackburn.

This application concerns defamation practice in the Supreme Court of New South Wales. A number of points have been submitted and some are not without legal interest and arguable merit. However, we are not convinced that the actual outcome of the proceedings in the New South Wales Court of Appeal involved a miscarriage of justice. The applicant has had two trials of his defamation action and failed before the jury on both occasions on the primary imputations that he alleged. He wants a third trial and wishes to plead new imputations. Denial of that request involved discretionary considerations and ultimately a question of practice and procedure in which this Court would rarely become involved.

In refusing special leave we do not necessarily endorse all that was said in the Court of Appeal on the issues that were considered by it. The substantive law of defamation is changing and new issues of practice will doubtless engage the attention of this Court in the future. That is another reason why the application does not present the occasion for this Court to examine the matters which the applicant has pressed upon us.

Special leave to appeal is therefore refused. The applicant must pay the respondent’s costs.

Adjourn the Court now until Tuesday, 28 February 2006 in Canberra.

AT 4.00 PM THE MATTER WAS CONCLUDED