Macquarie Radio Network Pty Limited v Dent [2008] HCATrans 229 (13 June 2008)

Last Updated: 26 June 2008

[2008] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S528 of 2007

B e t w e e n -

MACQUARIE RADIO NETWORK PTY LIMITED

Applicant

and

ARTHUR DENT

Respondent

Application for special leave to appeal

GUMMOW ACJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 12.39 PM

Copyright in the High Court of Australia

MR B.R. McCLINTOCK, SC: May it please the Court, I appear for the applicant. (instructed by Banki Haddock Fiora)

MR C.A. EVATT: May it please the Court, I appear with MR C.J. DIBB for the respondent. (instructed by Carters Law Firm)

GUMMOW ACJ: Yes. Mr McClintock.

MR McCLINTOCK: Your Honour, these proceedings arise out of an absolutely typical piece of talkback journalism or news commentary which was broadcast on Sydney radio in June 2002. The particular matter complained of appears at pages 74 to 76 of the application book. Your Honours will see, on looking at it, that what Mr Hadley, who was the relevant employee of my client, did was describe, based on an article that he had read in the Sydney Morning Herald, which in fact appears at the top of page 74, proceedings in the District Court brought by the respondent here seeking damages for personal injuries. He in fact reads out, virtually verbatim, the article that he had read and then proceeds to make comments or express opinions based on the reported proceedings he had seen in the Herald that morning.

That, your Honour, perhaps obviously gives rise to or takes us to the two provisions that we rely upon here and say that the majority of the Court of Appeal misconstrued. They are section 24(3), which is quoted by her Honour Justice Beazley on page 77 of the application book at about line 40. Your Honour will see that section 24 deals with – there are analogues in the current defamation legislation – protected reports. There is of course no dispute that the report of court proceedings is in fact a report within the meaning of section 24(1).

Then there is section 24(3), which in some ways is an unusual provision because the premise of that provision is that the underlying report – that is in this case the Sydney Morning Herald article - is in fact wrong and inaccurate. It says:

Where a protected report is published by any person, there is a defence for a later publication by another person of the protected report or a copy of the protected report, or of a fair abstract or fair abstract from, or fair summary of, the protected report, if the second person does not, at the time of the later publication have knowledge - - -

GUMMOW ACJ: We can read it, Mr McClintock. What is wrong with the reasoning of Justice Bell, actually?

MR McCLINTOCK: What is wrong with the reasoning of Justice Bell is her Honour failed to take account of the fact that the underlying – she proceeded on the basis that the test under section 24(1) that we relied upon was the same as the test under section 24(3). Your Honour will see, if your Honour is thinking of the passage which appears at – I missed the particular reference but there is, in my submission, a logical inconsistency in the passage her Honour deals with. It commences on page 42 of the application book and your Honour sees at 111 a summary of the submission. The issue is dealt with by her Honour at paragraph 117 on page 45.

GUMMOW ACJ: You have to look at paragraph 115, do you not?

MR McCLINTOCK: Yes, your Honour. That is where the reasoning is. The error in that reasoning is simply that it is not factually justified by the article in question. I appreciate the problem that your Honour may perceive coming from that, but the fact is that it is the same error that appears in Justice Beazley’s reasoning, which is this. The fact is that an article such as this - the law proceeds on the basis because of what is in section 30 which specifies that a fair report is such as – one can base a comment on a fair report – that what her Honour is saying there is that, because there are comments expressed, that ceases to make it a fair report. But that is logically, in our submission, inconsistent with what appears in section 30.

That very clearly emerges, your Honour, from what appears in Justice Beazley’s reasoning which is, we would say, to the same effect on this issue at page 94 of the application book in paragraphs 71 and 72. Your Honours will see that in the last three or four lines of paragraph 71 her Honour says:

the added comments were also significant and substantial and added both nuance and gravity to the material in the Herald Article.

What her Honour is saying there is this article comprised a description of what happened in the court proceedings based on the Sydney Morning Herald and expressions of comment. She then goes on in paragraph 72 to say that because, in effect, they had comments they could not therefore be a protected report. That is how we read paragraph 72 and how we read paragraph 115, to which your Honour directed my attention in Justice Bell’s judgment.

With respect, that cannot be a fair reading or cannot be an accurate understanding of what appears in section 30 of the Defamation Act which appears on page 99 of Justice Beazley’s judgment, where her Honour quotes the paragraph. Your Honour will see that section 30(1) says:

For the purposes of this section . . . proper material for comment means material which . . . would . . . by reason that it is a protected report within the meaning of section 24 . . . be material on which comment might be based -

There is a circularity of reasoning in what both Justice Bell and Justice Beazley said, your Honours, on this point and the circularity is if it has a comment in it, it cannot be a fair protected report and therefore the - - -

GUMMOW ACJ: That is not what they said.

MR McCLINTOCK: Well, that is the point that I wish to make in relation to paragraphs 71 and 72. We would also rely, your Honour, upon what Justice Basten said in his reasoning which appears commencing at page 106 of the application book. His Honour asked the two questions that we, in our respectful submission, say are the right questions, which are: did Mr Hadley accurately paraphrase or summarise the article in the Sydney Morning Herald, to which his Honour answered the question, yes, and we adopt his Honour’s reasoning that appears in paragraph 123 on page 109. Then, once that happened, it followed, in effect, as night follows day, that the comment defence had to succeed in relation to the imputations.

Your Honours, in our submission, there is a significant question of construction of the two provisions of the Defamation Act that I pointed your Honours to. The propositions that I have advanced are either good or they are bad. There is no point in taking any further time, your Honours.

GUMMOW ACJ: Thank you. We do not need to call on you, Mr Evatt.

There are insufficient prospects of success in any appeal in this case. Accordingly, special leave is refused with costs.

We will now adjourn.

AT 12.47 PM THE MATTER WAS CONCLUDED