Nationwide News Pty Limited v Ali [2009] HCATrans 24 (13 February 2009)

Last Updated: 17 February 2009

[2009] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S401 of 2008

B e t w e e n -

NATIONWIDE NEWS PTY LIMITED

Applicant

and

ROMZI ALI

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 11.08 AM

Copyright in the High Court of Australia

MR T.D. BLACKBURN, SC: May it please the Court, I appear with my learned friend, MS S. CHRYSANTHOU, for the applicant. (instructed by Blake Dawson)

MR T. MOLOMBY, SC: May it please the Court, I appear with my learned friend, MR R.K.M. RASMUSSEN, for the respondent. (instructed by the Public Interest Advocacy Centre - Sydney)

GUMMOW J: Yes, Mr Blackburn.

MR BLACKBURN: If the Court pleases, the starting point for this application, in our submission, is the finding by the majority in the Court of Appeal at application book page 95 in paragraph 108 of the judgment. Their Honours, in that paragraph of the judgment, dealt with the finding by the trial judge that he, the trial judge, did not believe that the respondent to this appeal believed that the publication of the matter complained of, the article, had caused the breakdown of his marriage. At application book page 95, paragraph 108, the majority noted that the trial judge found:

that it was difficult to credit that the appellant’s wife could have permanently lost confidence in him because he did not immediately tell her about the articles - - -

GUMMOW J: What is the point of general principle?

MR BLACKBURN: The point of general principle, your Honour, is this. What the Court of Appeal held was that where evidence, even as here, inferential evidence, which was not given expressly, is not cross-examined on it must be accepted, except for two circumstances, those circumstances being, firstly, where the evidence not cross-examined on is inherently incredible or unbelievable or lacks any factual basis and, secondly, where there is a substantial body of evidence in direct contradiction of the evidence that was not cross-examined on.

In our submission, both in principle and on authority, that proposition must be wrong because it does not permit an assessment of the demeanour of the witness which the trial judge relied on in this case. The trial judge made an explicit finding that the respondent had exaggerated the effect of the article upon him. The respondent’s claim was that he believed that the publication of the article had caused the breakdown of his marriage.

GUMMOW J: Where do we find this in your amended application for special leave?

MR BLACKBURN: In the application book, page 144, grounds (a) and (b). What the Court of Appeal held – and I will take your Honours to the references now, if I may – is that where evidence is not cross-examined upon, even evidence that is purely inferential and that is not given expressly, it must be accepted, in the absence of two factors which allow it not to be accepted, even where the trial judge has made an adverse credit finding about the witness and has found that the witness tended to exaggerate the evidence and, as here, the effect of the article upon himself and the effect on his life.

HEYDON J: Mr Blackburn, you concentrate on the words “prima facie it should be accepted” in paragraph 112?

MR BLACKBURN: Yes, we do, your Honour, but it is quite clear that, in using that term “prima facie”, it means the two qualifications which the majority then go on to express. Paragraph 112, where the majority says - - -

HEYDON J: This immediately follows the quotation via Justice Tobias of Justice Newton. Justice Newton said it was not the law that the judge was required to accept evidence that had not been cross-examined on.

MR BLACKBURN: Yes, your Honour, and that is one of the exceptions which the Court of Appeal specifies. Our complaint about this is that what the Court of Appeal has said is that evidence that is not cross-examined upon – and I interpolate here, even if it is purely inferential evidence only urged upon the court in submissions –must be accepted, except in two circumstances. The first is that referred to by Justice Newton – that is, where there is a credible body of evidence in direction opposition or contradiction of the evidence that was not cross-examined on. The other circumstance in which such evidence may not be accepted is where it is inherently incredible.

What the Court of Appeal said was that unless one of those two exceptions applies the evidence must be accepted and that cannot be right, for the reasons explained, for example, by Justice Kirby in Elkington’s Case, which I will take the Court to in a moment.

HEYDON J: What do you say about Justice Rolfe’s judgment in M & E M Holt Pty Ltd v Thompson?

MR BLACKBURN: Justice Rolfe’s judgment, your Honour, sets out the other exception, the other exception being - - -

HEYDON J: There are quite a few of them.

MR BLACKBURN: They are subsets of each other, in our submission. What Justice Rolfe says there is there are circumstances in which evidence in a report – and he is really talking about expert evidence here – “may be rejected or subject to criticism or doubt”.

HEYDON J: As, indeed, most witnesses.

MR BLACKBURN: Indeed, most witnesses:

evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established.

That must, in our submission, be a reference to expert evidence. Really, the incomplete or incorrect history, or the assumptions not being made out, are not so very different from the category of evidence which is inherently incredible or unbelievable. In other words, there are two broad exceptions laid down by the Court of Appeal. One is where the evidence is inherently incredible or unacceptable or where the factual assumptions are not made out. The other is where there is a substantial body of evidence in opposition to, direct contradiction of, the evidence that was not cross-examined on. They conclude, at paragraph 112, by saying:

There can be no doubt that where factual evidence is not cross-examined upon, prima facie it should be accepted.

GUMMOW J: What do you say about Mr Molomby’s response at page 163 of the application book? Have you gone trawling around and found.....

MR BLACKBURN: Is that paragraph 3 of the response, your Honour?

GUMMOW J: Page 163 of the application book, under the heading “FAILURE TO CROSS-EXAMINE”.

MR BLACKBURN: Yes.

HEYDON J: Paragraph 1.

MR BLACKBURN: We have not created a false issue because when one reads the totality of paragraphs 108 to 112 of what the Court of Appeal said, it is perfectly clear – and I will state the reason in a moment – that the Court of Appeal were in fact saying that the evidence must be accepted unless those two exceptions apply.

That follows from the fact that the trial judge expressly made a credit finding. If the Court of Appeal were intending to say, “There are these two exceptions and, by the way, there are others, for example, where the trial judge has made a finding adverse to the credit of the witness and does not believe it”, the Court of Appeal would have said that. In this case the trial judge did make an adverse credit finding of the respondent - in relation to the respondent. Nevertheless, the Court of Appeal in this case said, “We, the applicant, cannot contest the respondent’s inferential evidence that the publication caused the breakdown of his marriage because you did not cross-examine on it”. That overlooks the fact that his Honour expressly rejected that evidence based on his assessment of the respondent’s credit.

Now, one must then conclude that what the Court of Appeal were saying was what they in fact said at paragraphs 108 to 112, that unless the evidence, even if inferential and tangential, is cross-examined upon, it must be accepted, unless one of those two exceptions is made out. They could not have had regard, in saying that, to the fact that the trial judge made an adverse credit finding on that very issue of the respondent. In other words, one must take it that what the Court of Appeal was saying was that, even if the trial judge has disbelieved the respondent on that issue, because of his demeanour, that is irrelevant to the question of whether it should be accepted. It was not cross-examined on. It does not matter that the trial judge expressly disbelieved that evidence, based on his assessment of the credit of the witness. It must be accepted because (a) it was not inherently incredible and (b) there is not a substantial body of evidence in direct contradiction of it.

GUMMOW J: Do you want to say anything about grounds (c), (d), (e) and (f)?

MR BLACKBURN: I do, your Honour. Can I go to ground (c). This is the general ground raising this principle that what the Court of Appeal have accepted and assumed is that failure to apologise can be conduct in aggravation of damages. It is trite law to say that aggravation of damages in a defamation case can be given in these circumstances where the conduct relied on is improper, unjustifiable or lacking in bona fides. If such conduct is proved and if it is found by the tribunal of fact to have increased the sense of hurt suffered by the plaintiff or if it is proved to increase the injury to the plaintiff’s reputation it may sound at the discretion of the tribunal of fact in an increase in the amount of general damages awarded, if the tribunal of fact so decides.

Now, the point of principle here is this. We say that a mere failure to apologise cannot, as a matter of principle, or is an omission which cannot sound in - - -

GUMMOW J: Do you want to say anything about Mr Molomby’s response to that at page 164? The applicant did not press the principle during the appeal. .....he said the opposite, both at trial and on appeal. It should not be allowed to.....be agitated.

MR BLACKBURN: We do not understand it to be an immutable principle that if something is not agitated in the Court of Appeal we cannot raise the point of principle in this Court. I accept the force of what is said there - - -

GUMMOW J: .....principle; it is hardly a response though.

MR BLACKBURN: It is an important principle, in our submission. There are obiter statements, as your Honours have seen in the submissions, in the House of Lords and also in this Court in Carson’s Case that the mere failure to apologise is not something that is able to sound in aggravated damages. That is what this Court said obiter four judges in Carson.

HEYDON J: If it was not contested before the Court of Appeal, what was said is either not an authority or authority of such insignificance as is not likely to poison the well of justice in future.

MR BLACKBURN: It is an issue that is going to continue to arise, your Honour. It is right for determination, in our submission. I cannot put it any higher than that, but it is a live issue and, as we say, four judges decided obiter in Carson or doubted that a mere failure to apologise was something that would sound in aggravated damages. I acknowledge that it was not raised in the Court of Appeal. It is a point right for special leave, in our submission.

May I move on to ground (d). We acknowledge that this is a visitorial point rather than a point of principle, but it is a point of principle to this extent. What the trial judge did was consider all the evidence, including, firstly, that the claim for aggravation for failure to apologise was raised a week before the hearing, a week before the final trial. The respondent had never asked for an apology and he said in his evidence that an apology at that late stage he did not want it, it would not do any good.

So the issue not raised until a week before, never at any time requested and a statement in evidence that at that stage when it was raised it would not have done any good. His Honour took all of those matters into account and made a discretionary decision, because that is what it amounts to, that he would not increase the plaintiff’s general damages by including a component for aggravation. What the Court of Appeal said about that was, and they said it rhetorically, “If you can’t get aggravated damages for a failure to apologise where there is a failure to apologise and the defences are withdrawn then there can’t ever be a case where you can get aggravated damages for failure to apologise”.

As we have submitted, with great respect, that is not an argument from principle, but something more akin to an argumentative statement. It is trite to say that an award of general damages is analogous to an exercise of discretion. There is not anything in the majority judgment, in our respectful submission, that deals with the issue of why that discretionary exercise went wrong. The Court of Appeal, in our respectful submission, simply appeared to decide that they, the majority, would have awarded aggravated damages in those circumstances, which they were not entitled to do.

GUMMOW J: .....manifest inadequacy, does it not?

MR BLACKBURN: Yes, it does. May I take the Court briefly to the statement of principle in Demir, which is No 6 on our list, at page 369 where, in the judgment of Justice Gibbs, at about point 5, his Honour said:

It is unnecessary to discuss at length the principles that govern an appellate court in the performance of its task when it is called upon to review an assessment of damages for personal injuries.

And we interpolate “defamation”:

Whether the assessment was made by a judge or a jury the court of appeal will not interfere simply because it would have awarded a different figure had it tried the case at first instance. Where the assessment was made by a judge, and it has not been shown that he acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered.

That is the basic statement of principle and we say you can only overturn such an award of damages if you - - -

GUMMOW J: What do you say about paragraph 133 of the judgment, at page 103:

leaving this aspect to one side, in our respectful view the amount awarded by his Honour flies in the face of the following findings -

and then it goes on.

MR BLACKBURN: Yes, but there is no suggestion that his Honour did not take those matters into account. On the authorities, what must be proved is manifest error – the verdict must bespeak error.

GUMMOW J: Leading to paragraph 134.

MR BLACKBURN: That is the Court of Appeal’s view, but there is nothing in his Honour’s judgment that cuts across that. There is no suggestion that his Honour did not take into account all the relevant factors. Our complaint, your Honour, is that what the Court of Appeal did not do, as Justice Basten said, was identify why an award of damages - - -

GUMMOW J: The Court of Appeal is saying your client’s defamatory publication was absolutely catastrophic for the particular community he lived in.

MR BLACKBURN: Yes, your Honour, but it was Justice James, with respect, who saw the respondent - - -

GUMMOW J: Why should we get involved in this?

MR BLACKBURN: Because what they have not done is identify, as we have said in our written submissions, that range or identified why the verdict is insufficient. They have not done what Justice Hayne said ought to be done in paragraph 63 of Rogers Case. When one takes the totality, in our submission, of the errors made by the Court of Appeal, some errors of principle, some visitorial matters, this, in our submission, is a case that is appropriate for a grant of special leave. May it please the Court.

GUMMOW J: Yes, we do not need to hear you, Mr Molomby.

There are insufficient prospects of success on any of the grounds advanced by the applicant to warrant a grant of special leave by this Court.

Special leave is refused with costs.

AT 11.28 AM THE MATTER WAS CONCLUDED