Channel Seven Adelaide Pty Ltd v Manock [2007] HCATrans 252 (25 May 2007)

Last Updated: 22 June 2007

[2007] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A27 of 2006

B e t w e e n -

CHANNEL SEVEN ADELAIDE PTY LTD

Applicant

and

DR COLIN MANOCK

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 25 MAY 2007, AT 11.25 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON, QC: May it please the Court, I appear with my learned friend, MR S.J. DOYLE. (instructed by Kelly & Co Lawyers)

MR N.J.T. SWAN: May it please the Court, I appear with my learned friend, MS A. WILLIAMSON, appear for the respondent. (instructed by Lawson Smith Lawyers)

GUMMOW J: Thank you.

MR WHITINGTON: May it please the Court. The decision of the Full Court in this matter is of great significance to the law of defamation in South Australia because it effectively has the capacity to deny to a defendant the defence of fair comment. The defence of fair comment is fundamental to the right of free speech and this Court has recently affirmed the importance of the right of free speech in the law of defamation in the decision in O’Neill v Australian Broadcasting Corporation. This case concerns four short sentences which the defendant - - -

GUMMOW J: We see them on page 25.

MR WHITINGTON: Correct, your Honour. Yes.

GUMMOW J: Plus a picture, I think.

MR WHITINGTON: A picture, yes, of the plaintiff was published with the promotion. As the Court sees, those four short sentences were:

3.1 the new Keogh facts;

3.2 the evidence they kept to themselves;

3.3 the data, dates and documents that don’t add up; and

3.4 the evidence changed from one Court to the next –

The Court has probably gathered that the publication was in relation to what was and is a cause celebre in South Australia involving the conviction of one Henry Keogh for the murder of his fiancée after two trials and many appeals, applications and a lot of public controversy. The debate and controversy centred on the evidence of two forensic scientists employed by the State, Dr Colin Manock, who is the respondent of course, and Dr Ross James. As the Court has seen, Dr Manock sued for defamation alleging that those four sentences were defamatory of him. Under the common law in South Australia his cause of action lies in the defamatory words, that is, the published statement alleged to be defamatory.

In South Australia, in accordance with accepted pleading practice, the plaintiff pleaded an imputation. The imputation was that he had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder. But the application that we pursue arises out of a pleading dispute in which the plaintiff - - -

GUMMOW J: If you can just stop there for a minute. We have looked at this somewhere before but what, to people from outside South Australia may be a peculiarity, is particulars seem to be treated as pleadings under your rules in the Supreme Court, is that right?

MR WHITINGTON: They were under the rules at the time, yes. The rules at the time did not actually refer to particulars. They referred to pleading of material fact and, in fact, further pleading of material fact. So people would for shorthand ascribe part of the pleadings a particular, but in fact it could be treated as part of the substantive pleading for which a response was called for.

GUMMOW J: Yes, thank you.

KIRBY J: Your point is really quite a short one. It is that in judging whether a matter is fair comment, you look at the matter complained of and you are not bound by the way some barrister on a Saturday night pleads imputations. It has got to be looked on as the citizens would look on it in the context of the matter complained of.

MR WHITINGTON: Precisely, your Honour, and that is because the defence of fair comment is primarily a subjective defence. It relates to what the commentator had in mind when they made the comment. Now, it is our case that what the commentator here had in mind are the matters particularised and yet the - - -

GUMMOW J: Can we just stop there for a minute? The matters particularised might be seen, might they, as bearing on the third sentence:

3.3 the data, dates and documents that don’t add up –

MR WHITINGTON: Yes, they might. But we also say that they also bear on the other sentences as well.

GUMMOW J: What, deliberate suppression? If that is the force that is sought to be got out of “kept to themselves”.

MR WHITINGTON: But, you see, we do not necessarily have to meet the plaintiff’s imputation. What we say is - - -

GUMMOW J: Do you say “kept to themselves” can be neutral?

MR WHITINGTON: It can be, and that is ultimately a trial question.

GUMMOW J: Yes.

MR WHITINGTON: But the question here is how we plead for the time being. What we say is what we had in mind was this substratum of fact, this subject matter. We cannot be confined at this stage by the plaintiff’s imputation except to this extent. If it could be said that no honest person, no matter how biased, prejudiced, irrational and so on, could express an opinion in terms of the plaintiff’s imputation, it might be said there is no rational connection between the comment as confined by the plaintiff and the substratum of fact, but that was never the plaintiff’s application. That is essentially a trial question. It would be a very rare, if not unique case for a court on an interlocutory application to say that the opinion was so extravagant, so extreme, that it simply had no rational bearing or relationship to or on the pleaded substratum.

Now, here we say we do not have to specify a meaning. We plead further and in the alternative. In other words, we say, even if the words mean what the plaintiff says they mean, the words we actually uttered were comment and, in fact, they were comment on the substratum of fact we pleaded. Now, the Full Court, we say, has gone off the rails here by treating us as a Polly Peck kind of case and saying that in the area of fair comment a defendant somehow must plead a responsive imputation, which we did not have to here and did not, and then they must particularise the substratum of fact somehow to support that pleaded imputation.

If they do not plead the same imputation as the plaintiff, then they cannot be allowed to defend on that substratum of fact. That completely confuses the defence of justification to the defence of fair comment, because in the defence of justification, of course, the defendant must justify or make true the imputation and we concede in the case of justification it would be idle and barren for a defendant to put up a materially different imputation and seek to justify that. But fair comment is radically different.

KIRBY J: In your written submissions you say there is now a significant difference between the intermediate courts on this issue. What is the lay of the land in that respect?

MR WHITINGTON: There was considerable debate and uncertainty in New South Wales under the Defamation Act 1974 and there is a long ling of cases debating the issue about how one tests comment. But of course in New South Wales under the Defamation Act 1974 the imputation was the cause of action. It was said there that the defence of comment must be a defence to that imputation. Then there was debate as to the material the court could look at to determine whether the published statement with that meaning was comment. Ultimately the position has been arrived at that the court can then revert to the entire statement in the entire context to determine if it is comment.

GUMMOW J: We now have a new Defamation Act which is hopefully uniform. How does that square with this situation?

MR WHITINGTON: In South Australia the section creating the defence of honest opinion is section 29. It is in identical terms in every State and Territory around Australia. When one analyses the elements of the defence in the Act against the background of the New South Wales authorities where there were similar elements in the former defence under the 1974 Act, the effect is that the defence is in all respects on all fours with the common law defence. So the issue that we are debating now will arise - - -

GUMMOW J: It will be a live issue under the new legislation.

MR WHITINGTON: Precisely, your Honour, yes, and around the country. There is a further view, your Honour, that we need not debate it now, but a further view that in any event the new Defamation Act has not codified defences. So that the common law defences and the statutory defences can stand side by side and a defendant can avail themselves of either or both.

KIRBY J: Does any other State intermediate court take the same line as the South Australian court? You have explained the position in New South Wales but that was peculiar because of the fact that the cause of action was the imputation.

MR WHITINGTON: There is a decision of single judge in Victoria, Justice Bongiorno, upon which our Full Court partly founded but that was a particular and peculiar case. That was Anderson v BHP where, for one reason or another, the defendant had felt the need to plead back against the plaintiff a meaning of the comment. They pleaded back a materially different meaning and then the court said, “What is the point of that? What is the point you pleading back a material different meaning and then seeking to provide a foundation? If you are right, then that is the end of the matter. The plaintiff has not demonstrated its meaning.”

There have been several decisions in Western Australia, one of which is Fogarty, making the same proposition, but in each of those cases, again, the defendant for one reason or another had seen the need to plead back at the plaintiff an imputation said to be by way of comment and then sought to support that comment with a foundation of fact. Again, the court said, “What is the need of the defendant to do that if you are ships passing in the night?”

Now, our Full Court has picked up on those authorities and used them, we say quite erroneously, to apply Polly Peck justification principles to fair comment, and you run the rule over the defendant’s plea of a substratum of fact. If that substratum of fact is not capable of producing a meaning equal to the plaintiff’s pleaded imputation, then the defendant is out of court. But that effectively emasculates the defence of fair comment and it allows the plaintiff to hijack the defendant’s opinion because it means that the defendant has an opinion, it has an opinion on a particular state of affairs, it expresses that opinion on that state of affairs.

The plaintiff then comes along and says, “I choose to sue on a particular imputation I say arises out of that statement.” It might be a very narrow imputation. “Now, you have to say that your substratum makes good my imputation in the sense of makes good the meaning of it. The defendant will say, “But I did not have in mind anything other than the substratum I have pleaded. That is what I was commenting on. That is my defence.” The Full Court says, “No, too bad. If the facts you plead do not have a meaning that gives rise to the plaintiff’s imputation, you cannot have a defence of fair comment.” As I say, that effectively emasculates and denies the defence of fair comment.

GUMMOW J: Polly Peck [1986] QB 1000 has been rather controversial, I think, has it not?

MR WHITINGTON: It has.

GUMMOW J: It was discussed to some degree in Chakravarti 193 CLR 519. In the case you would be presenting to us, would there be any revisiting of Chakravarti, any critical evaluation of Polly Peck?

MR WHITINGTON: Only incidentally. We accept for these purposes the view about Polly Peck taken by their Honours Chief Justice Brennan and Justice McHugh in Chakravarti, that is that Polly Peck was wrong to say that a defendant could be permitted to plead, first of all, a materially different imputation, and then, secondly, seek to justify the truth of that, because that is a barren exercise; at least the second step is. Now, your Honour Justice Gummow and Justice Gaudron and your Honour Justice Kirby, your separate reasons did not specifically address that point, as I recall it.

GUMMOW J: I think that is right, yes.

MR WHITINGTON: Our Full Court in another case involving Mr Manock and Advertiser News has effectively accepted the dictum of the Chief Justice and Justice McHugh and said that a defendant cannot be allowed to go to trial seeking to prove the truth of an imputation which the plaintiff, in effect, does not sue on. We accept that, but what we say is that the Full Court was wrong to say you translate that paradigm to the fair comment case, because fair comment is an entirely different concept. That is where our Full Court has got very muddled and confused.

GUMMOW J: Yes, thank you.

KIRBY J: I am just a little concerned that the respondents can call in aid Justice Samuel’s reasons in Petritsis because Justice Samuels knew an awful lot about this area of the law. Was that contaminated by the New South Wales law that the cause of action was the imputation? The passage quoted at the bottom of page 59 in the respondent’s submissions does not appear to be based on that foundation.

MR WHITINGTON: In that case Justice Samuels did hold that the cause of action in New South Wales was on the imputation as a result of the 1974 Act. In that he was joined by Justice Mahoney. Justice Reynolds was in dissent on that point and held that the Act had not changed the common law and that the cause of action was still the common law cause of action.

KIRBY J: So Petritsis was the case that laid down that the cause of action was the imputation under the 1974 Act?

MR WHITINGTON: That is right.

KIRBY J: Therefore you have to read what his Honour says in the context of a pleading which is directed at the peculiarity of the New South Wales cause of action in defamation.

MR WHITINGTON: That is correct, although I think his Honour might have been then going on to a further question and that is, accepting that the cause of action is in the imputation, can the pleader confine the defendant’s plea of comment by formulating an imputation which appears to be a statement of fact? As to that I think he said, “No, they cannot.” You are bound by the imputation as found, but there is a remaining question; do the words in that sense constitute comment or a statement of fact?

GUMMOW J: Yes, thank you, Mr Whitington. We would be assisted at this stage if we hear from Mr Swan.

MR WHITINGTON: May it please the Court.

MR SWAN: If the Court pleases. In our respectful submission, there is at present no difference in the law around Australia. Certainly in the past there has been some debate in New South Wales which arose largely out of the provisions of the New South Wales Act, but that debate and the whole of the discussion which arose really from Petritsis’ Case was eventually really laid to rest. My friend is really having to go back a long way in history to raise some difference on the law. The matter was laid to rest both by the Privy Council firstly in Lloyd v David Syme and then subsequently in 1998 in New South Wales Aboriginal Land Council v Perkins in New South Wales. It is quite clear - - -

KIRBY J: I just think we do have to be a little careful, do we not, with New South Wales authorities, because of this line of territory that has said the cause of action slips out of the matter complained of and it is what some barrister has been able to persuade the Court is the imputation, whereas that was not the common law and is not required in the Code States, I do not think, and therefore, just in point of principle, when a person seeks to plead fair comment, they are not really addressing themselves to imputations which can sometimes be quite technical, but they are doing it to the matter complained of in its totality. That is what is going against you, in my mind.

MR SWAN: That was certainly the case probably until the change of the Act, in the sense of the cause of action coming from the imputation. But the discussion which has taken place in relation to that has really gone far beyond that to say that is certainly a concern and was certainly a concern initially. But what the Privy Council have said and, indeed, what the Court of Appeal have said in New South Wales is that one looks at what is alleged to have been the comment and one compares that either at common law or under the New South Wales Act with what the plaintiff is complaining about, and if there is not some congruence or if there is not some relationship between those two things, then the plea of comment has really got nothing to do with it.

The Anderson Case in Victoria, which my friend referred to, is really a very good illustration of that, and that was not dealing, of course, with the New South Wales Act, but that was a case where Mr Anderson complained that the publication meant that he had acted improperly as a CEO and as a director of BHP. Now, the defendant said, “We were just commenting that you had perhaps done things which, in effect, the shareholders might not like. That was our comment and we can justify that comment.” The Court said, “So what?” in effect. “That is not what the plaintiff is suing about. The plaintiff is suing on a particular imputation which they say arises whether they dreamed it up perhaps on Saturday night or otherwise, but that is the plaintiff’s case. Of course, if the plaintiff does not make it out when it eventually comes to trial, the plaintiff fails. So we do not need to concern ourselves with fair comment.” And in this case - - -

KIRBY J: I see the way you put it, but can you deny that this is an important issue for practice and substance in the law of defamation? In terms of principle, it does seem offensive that the comment is dragged down in a court of law not from the matter complained of but into this rather narrow pleading game that is the scourge of the law of defamation.

MR SWAN: That would be so if it had to precisely match the imputation pleaded by the plaintiff, but if we take, perhaps, another example. If a television station says that it is a terrible thing that the justice system is allowing murderers to walk the streets and while it is doing that it has my photograph in the background or perhaps vision of me in the background walking down the street, I would be very upset about that because I would say there is clearly an imputation that arises out of that that I am a murderer.

Now, for the defendant to then say, “But we are just commenting on the justice system in general and we are entitled to do that,” could not possibly be a defence to my case. That is really where the applicant is going. They are trying to say, “Well, do not worry about the plaintiff’s case. Let us just look and see if this is a comment and if it is a comment” – this is where they fall at the second hurdle – “we can justify it by it by any facts we like.”

KIRBY J: So your theory of the way this works is that if Mr Whitington is not happy with the way you pleaded the imputation and says that there is some other more innocence imputation, his side have to plead that over? Is that how it works?

MR SWAN: If they wanted to raise a different meaning, yes, then both sides would know what the case was all about, but to simply say - - -

KIRBY J: That might be so, but is that not an important point? That might well be correct and, I must admit, I am affected by Justice Samuels because he knew an awful lot about the law of defamation and about the law of pleading and that is something going for you, but the issue tendered is one of general importance for the law of defamation. Do you contest that it is still a live issue in the uniform Defamation Act?

MR SWAN: Only insofar as the uniform Defamation Act allows the previous defences to still be maintained. My view of the current view of the section would be different to what is being put, but I do not think we need to go into that. I accept that the old defences still remain. It would still be a live issue to that degree, but there is, as I have suggested, just no difference at the moment between the approach which has been adopted around Australia as much as there might have been some potential debate back in the 1970s. That is really where my friend has to go to get the debate going.

KIRBY J: In part that is because of the 1974 Act in New South Wales and the fact that most reported decisions on defamation are in that State.

MR SWAN: Although there are now decisions, as my friend has acknowledged, in both Victoria and Western Australia and now in South Australia – in fact there is now two in South Australia – which are all quite consistent and, indeed, the more recent authorities in New South Wales are consistent. So he is not actually able to point to inconsistent authority anywhere on the present state of the law.

There is a second hurdle, really, which makes this an inappropriate case, in any event, to consider that type of matter and this has perhaps got lost behind the Full Court’s judgment. This matter originally arose because my client said, “Look, the facts you are choosing to rely on, you want to rely on in this pleading, simply are not identified, are not proper facts” – to use the New South Wales Act expression which has now achieved some currency in other jurisdictions – “to found a comment in any event, because they are not facts which were notorious”. They are not facts which were contained in the broadcast and, in fact, we argue they are facts that have got nothing to do in many respects with my client at all. They talk about other things which might have gone wrong with the police investigation and so on. So they just were not proper facts on which to place - - -

KIRBY J: They seem to be. They say:

3.1 the new Keogh facts;

3.2 the evidence they kept to themselves;

3.3 the data, dates and documents –

so all of that seems to be a reference to facts.

MR SWAN: Yes, but then when we go to the type of things which have been pleaded and if we go to either the defence or where it is summarised by the Full Court, there is a whole range of extraordinary things about photographs being taken with ordinary flashlights which – no suggestion my client either took the photograph or gave specific evidence about it – the things about labelling of exhibits and slides, things about what Dr James failed to disclose. So they might be things that might have founded a comment about Dr James, but that has got nothing to do with our case. Our case is; you have asserted that Dr Manock has deliberately concealed evidence. All of these obscure facts, not facts which are in the public domain, are not proper facts to found a comment because - - -

KIRBY J: Is not their case, “Look, you are too paranoid. You are trying to bring this all down to yourself. Sorry, but we were not just talking about you. We were talking about the whole of the Keogh facts.”?

MR SWAN: Yes. There are two answers to that. The first is that does not meet our case, but the second is the facts are not there anyway for the public to - - -

KIRBY J: It would make your case in a way. It says that you have tried to bring this case down to the plaintiff whereas, in fact, the comment was more broad and general and fair comment on a matter of public concern.

MR SWAN: That goes back to my illustration if I am walking along the street. I mean, it might very well support a comment about the justice system generally. It might very well support in this case comments about the expertise of various witnesses. What it does not - - -

KIRBY J: I want to pin you down here. How, on your theory of the case, does the defendant get a chance to say, “This is fair comment and it is on a wider series of facts than you have tried to squeeze this case down to by your pleaded imputations”?

MR SWAN: Obviously the first and the most usual way is that the defendant is supposed to include the facts in the broadcast and if they do, then the member of the public who watches it can make up their own mind about the fairness or otherwise of the comment. Second category would be if the facts are otherwise notorious or are a matter of such public event, or spectacle is the usual type of example that is given, that a comment could be made on them. We would concede that to some degree in this case the trial itself could have been such a spectacle, even though that is probably going beyond any cases that I have been able to find in any event. But here it is not as though the defendant is saying, “This happened at the trial. They are the facts that I want to rely on.” The defendant is going back to investigations at the murder scene.

Now, we say they cannot possibly be facts which could found a comment as fair, because they are not facts which any member of the public could have taken into account in assessing the appropriateness or otherwise of a comment. That is the whole purpose of the defence of fair comment, that you can make assertions, they may be outrageous assertions in some cases, as long as you honestly believe them. But the person to whom you make the assertion can make their own judgment and say, “Well, Fred says that, but I know Fred is a nutter and he has said it based on those facts and I can make my own assessment based on those facts as to whether that is a fair comment or not.” That is a freedom of speech which fair comment as a defence protects.

It does not protect a freedom of speech to say what you like and then say, “Hidden in the potential investigations of a police officer many years ago there was some fact that was overlooked and nobody knows about that, but I am going to prove it later on and justify my comment as fair.” If you want to do that, you would have to put it in your broadcast and say, “This is the fact I am relying on. This is the fact I wish to comment on,” and the defendant has not done that. I am not sure if that answers the question but that is how I would see it as being nailed down.

KIRBY J: This was a promotion, but did the subsequent program contain those extra facts?

MR SWAN: It certainly did not, we would say, contain all of them. It contained some assertions, but that is a different matter.

KIRBY J: Your theory might knock promotions on television out because they have got to be in the twinkling of an eye. They cannot have all the facts.

MR SWAN: Yes. There are many cases where plaintiffs have succeeded in suing on promotions where subsequent broadcasts have in fact been defensible.

KIRBY J: It might not be a bad thing to knock promotions out. There are so many of them nowadays. They are so boring usually and they are repeated endlessly.

MR SWAN: Yes, and they are such nonsense, as in this case.

KIRBY J: I did not say that. That is your statement.

MR SWAN: Sometimes you may be able to link two publications because of the terms of them and they may have consequences, but in general terms if you have an isolated promotion, you cannot justify that by what you choose to publish sometime later, because, the obvious reason, there are going to be members of the audience who are not going to see the final program.

If the Court pleases, we would submit that not only as a matter of principle must there be some relationship between the plaintiff’s case and the asserted comment, but then when one turns to the facts sought to be called in aid, they must be what is generally being termed proper facts. That initial correlation between the plaintiff’s case and the comment has been referred to in various ways. In Petritsis’ Case, of course, it was initially put and it has been put in many cases that the proper material must
be stated or sufficiently indicated in the publication. That is one of the ways it has been put.

KIRBY J: But the whole point of a promotion is to state it in the most succinct way enough to dangle a bait to get the reader or listener to come and watch the full program. That is the whole point.

MR SWAN: That is right. Yes, exactly. But if you go the extent in a promotion of making a positive assertion, then you must in due time also be able to justify that. Otherwise you can just say to the audience, “There is an exciting program tomorrow,” and nobody can complain. If you go the extra step and make a positive assertion that a party has deliberately concealed evidence from a court, a professional witness has done that, then you cannot leave it to the audience to see the full program in due course. If the Court pleases, they are my submissions.

GUMMOW J: Thank you. We do not need to hear you in reply, Mr Whitington. There will be a grant of special leave in this matter. It will be a one-day case or less I should imagine.

AT 12.00 PM THE MATTER WAS CONCLUDED