Queensland Newspapers Pty Ltd v Cross [2008] HCATrans 343 (30 September 2008)

Last Updated: 7 October 2008

[2008] HCATrans 343

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S230 of 2008

B e t w e e n -

QUEENSLAND NEWSPAPERS PTY LTD

Applicant

and

RONALD CROSS

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 SEPTEMBER 2008, AT 10.25 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please, the Court, I appear with my learned friends, MR J.S. WHEELHOUSE, SC and MR M.F. RICHARDSON, for the applicant. (instructed by Thynne & Macartney)

MR C.A. EVATT: I appear with MS J.E. RAWLINGS for the respondent, your Honours. (instructed by Licardy Harris Co Pty Ltd)

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the course of these proceedings somewhat resembles a funnel largely produced by what might be regarded, at least at the time, as the experience of success by my client. However, what it has resulted in is, we submit, a vastly excessive narrowing such that the retrial which results from the Court of Appeal’s orders is one which, in our submission, simply will not address the real issues between the parties and thus will not serve appropriately the administration of justice in resolving the dispute.

The broadest end of the funnel, the entry point, can be picked up by the four imputations, as they then were, that your Honours will have seen quoted in application book page 244 at the top of that page. Success can be measured by what is then narrated in paragraph 4. Upon receiving “particulars of truth” imputations 2 and 3 were abandoned by the plaintiff, the current respondent.

There was then a trial and imputations 1 and 4 were justified, successfully, at first instance. Imputation 4 remains justified and it was not the subject of an appeal and will thus not become, in itself, in any pleaded issue sense, the subject of a retrial.

GUMMOW J: I cannot quite understand your grounds of appeal in a way, Mr Walker. Can we just look at page 239?

MR WALKER: Yes, your Honour.

GUMMOW J: Ground 2 complains of the Court of Appeal’s treatment.

MR WALKER: Using the dictionary rather than the newspaper.

GUMMOW J: Yes. But then order 3 is what one might call a procedural retrial point.

MR WALKER: Yes.

GUMMOW J: Are you pressing both?

MR WALKER: Yes. May I, however, hasten to expand the word “procedural”. This is no mere procedural point at all.

GUMMOW J: But you are pressing 2 and 3?

MR WALKER: Yes, your Honour. They go together in the sense that the error at which ground 2 is aimed is an error that led in the Court of Appeal by reference to dictionary definitions and with not so much an insufficiency as an absence of reference to the text - - -

GUMMOW J: But suppose you are right on ground 2, what order do we then make?

MR WALKER: That would involve overturning the foundation of the Court of Appeal’s rejection, overturning of the trial judges upholding the justification defence.

GUMMOW J: I know, but you do not seem to have a consequential order, consequential upon success on ground 2 alone. Do you see what I mean?

MR WALKER: Your Honour is quite right.

GUMMOW J: That is why I am mystified.

MR WALKER: Paragraph 5 is deficient. It needs to recognise the success on ground 2 alone would lead to setting aside all the orders in the Court of Appeal and in lieu thereof ordering that the appeal by the respondent be dismissed with costs.

GUMMOW J: Yes, all right. Thank you.

MR WALKER: I apologise. Yes, that is a deficiency. If I can go back to what is obviously an alternative, namely, that grounds 2 and 3 are interlinked in this sense, that it is the understanding of the imputation, particularly the reference to “exorbitant” which of course sets the parameters for the kind of truth evidence which will be involved. Whether there be any truth evidence is, we submit, a matter again not merely insufficiently but completely underappreciated by the reasons in the Court of Appeal.

That is because there has been a determination adverse to us of the truth defence. There will not be a plea of justification because that will be contrary to the holding of the Court of Appeal. The question arises, and there is a division of opinion in courts of intermediate appellate level around the country - your Honours have seen a recent reference to the August decision in the Western Australian Court of Appeal to this effect - as to whether in the absence of that plea of justification we are entitled to lead evidence of the truth of the ripping off of the investors in relation to damages.

CRENNAN J: Is that a premature point at this stage, Mr Walker?

MR WALKER: In one sense, your Honour, we could, as it were, suffer the truncated retrial that we fear and then seek, as it were, to come back via a new Court of Appeal decision.

CRENNAN J: Seek to lead the evidence in mitigation in the absence of the justification. You may be permitted to do so.

MR WALKER: The respondent has made it, we think, inferentially the case that they will regard it as irrelevant. If we are correct in that then there is no prematurity, we are already confronted with the position that there will not be a plea of justification. There are, as your Honours have seen, decisions of intermediate appellate courts to the effect that we will not be able to rely upon the evidence purely for the mitigation of loss.

CRENNAN J: Is there a conflict on that issue in the New South Wales Court of Appeal?

MR WALKER: No. I am bound to point out that we would be relying upon the decision in Zunter to which we have drawn attention in our written submissions and that is in our favour. We have drawn attention, I think, to paragraph 51 of their Honour’s reasons which is unequivocally to that effect.

Evidence of truth or partial truth may also be before the tribunal of fact where a defence of contextual truth fails and such evidence is also relevant when assessing damages for the relevant harm.

It requires, we think, only the slightest of extensions, as a matter of principle, to apply that to the case of a justification case which has failed and is no longer before the tribunal of fact. We are bound to say, however, that there is, and has not been, either acceptance – there has not been acceptance by the respondent of that position. It raises, as a matter of principle, also the question whether this is not an area where there is room for a paramount effect of sections 55 and 56 of the Evidence Act. If it be true that evidence that I will call going to truth of the sting, if it be true that that is rationally capable of affecting the facts relevant to the assessment of damage, then it may be, and this is not an issue which has been the subject of decision in the country, so far as we can find out - - -

CRENNAN J: Bribe, perhaps?

MR WALKER: It is not a section 55, 56 statutory point.

CRENNAN J: No. I think the argument might have been touched upon but I may be misremembering.

MR WALKER: Certainly relevance is the touchstone, as the English decisions make it clear that if the evidence of truth diminishes the sting, as one would expect as a matter of common sense, an ordinary approach to the nature of defamatory hurt, then it sounds, in the legal sense, as if it is relevant evidence on an issue, albeit there is no issue of justification. In this jurisdiction that raises, in our submission, immediately the question whether another statute is operating and ought to be considered in this context, namely, the Evidence Act which does not suggest – it has not hitherto been suggested that there is anything in any defamation legislation around the country which would cut across that.

That is my attempt to answer Justice Crennan’s question as to whether this is a premature issue. Obviously enough there could be a set of contingencies in the future in this very limited retrial. There could be a set of contingencies which may, in that very narrow sense, render the point premature but, in our submission, taken in the broad, as to the very probable manner in which this retrial must proceed following these orders of the Court of Appeal there will be a truncated enquiry.

Now, partly, at least, that is because as things presently stand, and this is to which our ground 2 applies, there is, in our submission, the unrealistic approach taken to the words conveying sting, that is the word “exorbitant”. Your Honour appreciates that the Court of Appeal has made a decision which will obviously provide a limitation to what occurs at trial or otherwise - - -

GUMMOW J: There is also the word “selling”, is there not?

MR WALKER: Yes, I was about to say - so there is the word of sting. “Exorbitant” is also a word which is fundamental to the nature of the truth of the imputation and your Honours have seen that that has been done in what can only be described, in our submission, as an impractical conveyancing approach to what is meant. You will find a copy at application book page 131, the first article, “Marketeer aims for the south”. At line 30 you have the plaintiff “peddling Gold Coast homes”. Well, peddlers as your Honours will notoriously understand do not always complete the transaction. Quite often the doors shut in their face.

The next paragraph is referring to “targeting ‘mum and dad’ investors” and it is to be recalled this is not a first stage rocket that has fallen out of the interplanetary trip that is these proceedings. Your Honours, this is the matter complained of. That provides the material for the proper judicial approach to the understanding of the words chosen by the plaintiff’s pleader for the imputation. When one comes to consider the grounding of the tort of defamation in such a way as to involve true defences of truth justification then it is fundamental, a matter of principle, that the interpretation of the imputation which after all is that which is conveyed by the matter complained of in context that that interpretation itself proceed in that context.

That ought to be because it is true in all other fields in which the Court approaches the interpretation of words rudimentary, namely it is the ordinary meaning of the words in the context, which may be highly particular and thus depart from an ordinary meaning or may confirm it, or may demonstrate which of the available nuances of the ordinary meaning is the one that is in question.

The Court of Appeal does not, with respect, proffer any explanation as to why, bearing in mind the evident context and message conveyed by this article, one would interpret sale as meaning that which presumably involves a completed executory transaction. Exchange of contracts does not appear to be enough. Somebody repents and complains apparently - - -

GUMMOW J: But do you say there has to be at least an exchange of contracts?

MR WALKER: Of course not, no. Ask a person in a bar “What do you do? I am in sales.” Now, that does not mean that he or she has made lots of sales in the last few months. It means they are selling and selling is marketing. It involves the attempt to persuade somebody to part with their money for something else. That is certainly what the article says. That is what “peddling” means. That is what “targeting” means and that is what this Queensland term “marketeering” means.

GUMMOW J: Did Justice Basten deal with this point you are now on, Mr Walker?

MR WALKER: Not in a way that I can call in aid, your Honour.

GUMMOW J: I am thinking about this question of sale.

MR WALKER: Yes. No, your Honour.

MR EVATT: ......page 214.

MR WALKER: I am obliged to my friend for his assistance, but no, sale is not found at the bottom of page 214 in Justice Basten’s reasons.

GUMMOW J: Is it found in the other reason?

MR WALKER: Page 120 starts the discussion of the way in which one interprets and “sale” - - -

FRENCH CJ: This is the first instance judgment, is it?

GUMMOW J: You are looking at Justice Beazley, I think.

FRENCH CJ: Page 160.

MR WALKER: Page 168 - paragraph 72 at the foot of 167, top of 168; the top of page 170, lines 10 to 15:

A ‘sale’ in that sense means a sale that had resulted in a binding contract –

and it actually goes on to mean more than a binding contract, your Honours –

that is, one where title had been transferred and the - - -

GUMMOW J: One means completed.

MR WALKER: Yes, “and the purchaser had become the owner of the property”. We criticise both elements there, namely that you do not need to make a binding contract and you certainly do not need to have completed it in order for the fundamental element of the imputation of bad conduct, read in the context of the matter complained of, to have been made out.

Now, when one considers the spectacle of the retrial, one has “sale” in this cribbed fashion, one has “exorbitant” in a fashion which is completely removed from the “mum and dad investor” context, a $30,000 or $50,000 bath on one of these real estate investments is, in our submission, manifestly well within the field of ordinary English read in the context of this matter complained of as being a price to produce such a loss which is exorbitant, particularly when marketeering proceeds on the basis that the land you buy after being flown to the coast is, of course, land situated in a rising market.

Now, for all those reasons, in our submission, the retrial which is presently subject to those limits is one which is bound to go off the rails.
When you add to it the doubt, which is posed by the authorities, albeit we have, we think, the support of the New South Wales Court of Appeal decision in Zunter on our side, concerning what we can do quite with evidence of truth for a plea of justification which has now been disposed of by the adverse decision of the Court of Appeal, in our submission, it is clear that this is a case which presents not only an opportunity to examine the straightforward and extremely important everyday defamation question of the availability of justificatory evidence in mitigation of loss in the absence of such a plea, but also to make clear the proper way in which an imputation falls to be understood, namely by reference to the matter complained of from which it is derived.

When one puts that together then with the injustice which is threatened in a case which, as I say, has been funnelled down to something so narrow that it now represents a reversal of the merits that have been, bit by bit, established between these parties, then, in our submission, it is in the interests of justice as between the particular parties as well that this Court take on the question of examining whether or not the Court of Appeal has gone beyond the appropriate limits of the power which is itself unquestioned of ordering a limited retrial.

This, in our submission, is a paradigm case for the Court to reassert the usual appropriateness of a trial of all the issues that remain live between the parties. If it please the Court.

FRENCH CJ: Thank you, Mr Walker. Yes, Mr Evatt.

MR EVATT: This was an unusual trial. At the end of it the trial judge only determined the issues of truth raised by the applicant. There are other defences. Both parties asked him to determine those, but he did not. So he determined the issue of truth for the relevant publication here and found that the defendant applicant had established the truth of that imputation, that imputation being that the plaintiff ripped off “mum and dad” investors by selling them investment properties at exorbitant prices.

It went on appeal and the three judges unanimously found that the defendant had not established the defence of justification and ordered a limited trial, not restricted to the way my friend says because the new trial still had to determine the issues of contextual truth, qualified privilege, comment and, if necessary, damages.

Now, a limited trial was ordered by the three judges and my friend in his submissions has pointed to cases where a limited trial was ordered, or should not have been ordered, some of which I was in, but never have we had a case which went for six weeks. There were six volumes of the black appeal books, so that is the transcript. There were 1,724 pages of transcript. There were 11 volumes of exhibits comprising 2,200 pages. It is against that background this huge, lengthy trial with volumes of material and the applicant never got close to proving truth.

What they want is another go, although they did not appeal. They did not appeal from that decision. What they said when trying to explain why they did not appeal, at page 264 of the application book just under line 20:

It is simply not appropriate to seek special leave to appeal from a finding of fact made in the course of a rehearing pursuant to section 75A of the Supreme Court Act –

which is exactly what they are doing when they are challenging the order, a matter of fact for the retrial. However, although they did not appeal from it, they are trying to appeal by the back door by challenging the imputation. The imputation – they say that the Court of Appeal should not have defined the word “exorbitant” as grossly excessive, but they do not say what it should mean. Exorbitant, grossly excessive – Mr Justice Basten said that the word “exorbitant” had a touch of moral obliquity, but this is not a difficult word – “exorbitant”. Why are they complaining about that? If it does not mean grossly excessive, what does it mean? Why has my friend not said what it means?

Sometimes we get difficult words in these courts like “corruption”. No one is quite sure whether it means bribery or some other conduct, but a simple word like “exorbitant” they challenge because the Court of Appeal has defined that as grossly excessive. Then he says “sales” means well, if you are in the hotel and you say you are a salesman then they can challenge one of your sales. There is no substance to that argument.

What they need is this. Out of 17 cases that they took to the court, only three were found upheld by the trial judge. Weir and Wilson, which there was no evidence about and the Court of Appeal threw it out, and they want the Barry transaction which was a trap, a set up, a sting, he had no intention of buying so if we look at the imputation, the plaintiff ripped off – Mr Barry was not ripped off. You have to have a sale to be ripped off. “Mum and dad” investors – he was not a “mum and dad” investor, he was an agent for Channel Nine. By selling them – that is the sale – investment properties at exorbitant prices.

It is for the Court to determine the meaning of the imputation. All three judges of the Court of Appeal determined the meaning, that is Singleton, French and quite a number of other cases are authorities that the court determines the meaning. The Court of Appeal determined the meaning, exercising its powers under 75A as a sale so that the imputation that the plaintiff ripped off - meaning an actual ripping off, cheating, cheated - by selling - a sale - properties at exorbitant prices – that was their meaning. That is three. The trial judge had the same meaning, so that is four judges who find the same meaning.

My friend wants to go to the High Court to get their view on the meaning. That is just not the function of this Court, with respect. The meaning is determined as a matter of fact.

Another thing my friend says is that because the defence of truth is determined he cannot lead all his evidence and he said that our position is unclear. It is not unclear at all. At application book 259, down the bottom of the page, paragraph 31, I said I could not follow his point on this as to what evidence can be led in mitigation of damages because a defendant is always entitled to lead relevant evidence in mitigation, but, and then I followed it up on paragraph 32, it is more than that. They have a defence of qualified privilege on. Now, qualified privilege – that is under section 22 in this State, under the Code in Queensland – both involve the necessity of the defendant establishing its conduct was reasonable.

So we have a defence where the defendant has the opportunity of establishing its conduct in publishing the imputation was reasonable and “reasonable” will include all evidence that they want to lead. If they want to lead that he did not sign a document, if they want to lead he misled them under the forms, under the Act there, if they tried to do this, tried to do that, all will come out in the defence of qualified privilege.

They also have a defence of comment on and they have the defences under the Code and, of course, contextual truth. Why the Court of Appeal ordered a retrial as to those issues is because the trial judge made no finding on them and in the absence of a finding the Court of Appeal was reluctant to intervene and ordered a new trial as to that. But why should they, after six weeks, 1,700 pages of transcript, 2,200 pages of exhibits, be given another go at trying to establish – which they did not get close to at the first trial – the defence of truth.

They are not prejudiced by failing to call evidence. It is all available to them. Anything they like to particularise can go to mitigation, qualified privilege, comment and, where relevant, contextual truth. They have the advantage of course of having established the truth of the third imputation for the second publication, that is, the plaintiff is a lawbreaker. They have established that is true and, of course, that is not challenged so they have all that.

Even so, looking at the line up on the left, I hope it will not go six weeks and that is what the Court of Appeal, I think, had in mind, that this
trial just went so long that they had to intervene. My friend is not challenging the powers. I sent round the court in a list of authorities just the two pages of the relevant Act – that is section 75A(10) where they are entitled to:

make any finding or assessment, give any judgment, make any order or give any direction –

and then the Uniform Civil Procedure Rules I sent round – that is 51.53(3):

If it appears to the Court that some ground for a new trial affects only part of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only -

Now, my friend was eloquent, but no less eloquent than my friend, Mr Wheelhouse, in the Court of Appeal, except my friend went 20 minutes and Mr Wheelhouse, I think, went two days. But he made the same submissions to the Court of Appeal, which were rejected, all about the evidence as my friend has so succinctly put here.

There is one submission my friend made in reply to mine. He said that the word “exorbitant” is not even in the article. Well, it is not, but he overlooks the fact that that imputation was found by the section 7A jury. They found the word “exorbitant”. They found the imputation as we pleaded. There was no appeal from that. If you analyse my friend, Mr Walker’s, submissions, all he is saying really, we want another go, we want another six weeks to have a go at proving what we failed to prove at the first trial. If the High Court is interested in this, they can rummage through the 2,200 pages of exhibits and the 1,720 pages of transcript - - -

GUMMOW J: It is no good trying to terrorise us, Mr Evatt.

FRENCH CJ: Yes.

MR EVATT: I think on that note, your Honour, I will sit down.

GUMMOW J: If it is a case for special leave, special leave will be granted. If it is not a case for special leave, it will not be.

MR EVATT: Thank you, your Honour.

FRENCH CJ: Mr Walker.

MR WALKER: Your Honours, one of the main reasons why the retrial which is the course presently set by the Court of Appeal for this still unresolved dispute is one that should attract the attention of this Court by a
grant of special leave, is precisely for one of the reasons that my learned friend himself relies on. There is contextual truth, there is qualified privilege, there is comment remaining. It is not really the case, despite the language of concession that your Honours have heard in the last 20 minutes, that we have been told that that which we have adduced in the past and was canvassed in the Court of Appeal on the plea of justification, will be conceded as available to us on that retrial for those continuing pleas in defence.

One need only see that open category at the foot of page 259 of the application book in my learned friend’s written language, “a Defendant is always entitled to lead relevant evidence in mitigation”. Quite so, hence the reference to sections 55 and 56 of the Evidence Act. But the question, nonetheless, remains as to what in light of the difference of authority, is the position concerning the overlap but not complete congruence between the remaining defences and the defence which has been, we submit, dealt with on false premises concerning the meaning of the words in the relevant imputation by the Court of Appeal.

One need only look at what is written by my learned friend in his paragraph 34 in application book page 260 to see that, understandably, my learned friend warns, in effect, that the scope of the evidence needs to be tailored to the respective defences. That is, after all an issue driven determination of relevance.

It is for those reasons, in our submission, that there are important issues, not only as between the parties. They are for all the reasons my learned friend, Mr Evatt, has pointed out important. But there are also reasons of principle which, in our submission, considered and determined by this Court do hold out a very considerable promise of being able to streamline this kind of dispute in the future, a kind of dispute which is not likely to lessen in frequency in this country. If it please the Court.

FRENCH CJ: The Court is of the view that there are insufficient prospects of success on the first proposed ground of appeal to warrant the grant of special leave. The second proposed ground is linked to the first as counsel for the applicant indicated in the course of oral submission. The second ground challenges the particular orders for retrial made by the New South Wales Court of Appeal. No question of principle arises in respect of that order. We are not satisfied that the interests of justice call for a grant of special leave. Special leave will be refused with costs.

AT 11.03 AM THE MATTER WAS CONCLUDED