Harbour Radio Pty Limited v Keysar Trad [2011] HCATrans 234 (2 September 2011)

Last Updated: 7 September 2011

[2011] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S141 of 2011

B e t w e e n -

HARBOUR RADIO PTY LIMITED

Applicant

and

KEYSAR TRAD

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2011, AT 9.33 AM

Copyright in the High Court of Australia

MR R.G. McHUGH, SC: May it please the Court, I appear with my learned friend, MS G.R. RUBAGOTTI, for the applicant. (instructed by Banki Haddock Fiora)

MR.R.K.M. RASMUSSEN: If it pleases your Honours, I appear for the respondent. (instructed by Turner Freeman Lawyers)

CRENNAN J: Yes, Mr McHugh.

MR McHUGH: Your Honours, the central issue on the qualified privilege question is whether it was open to the Court of Appeal to prefer two sentences in an English textbook to a decision of your Honours’ Court. Could I take your Honours in the application book to page 121 in the judgment of the Court of Appeal and to paragraph 108 where your Honours see in the last sentence that the question that was posed was whether, in the present case, what was published – that is the response – exceeded permissible limits. What is important about that identification of the question is that their Honours are not distinguishing at that point between the question of malice and the question whether the matter was published prima facie on an occasion of privilege. If your Honours come over the page to 122 and to the end of the paragraph just before the quotation your Honours see:

Less remote from the concept of a legitimate response may be the imputation that the appellant deliberately gives out misinformation about the Islamic community, because such an assertion may be said to challenge the credibility of the appellant –

So that notion comes in early in the judgment. Then, as your Honours see, there is a long quotation from Justice Dixon in Penton v Calwell. Before I take your Honours through that, I might take your Honours to the facts of Penton v Calwell which your Honours will find in [1945] HCA 51; 70 CLR 219, which should be in the folder, at tab 8. If your Honours turn to page 220 at about point 3 or 4 on the page, there is a paragraph quoting from the publication that begins with the words “Mr Packer” and it refers to Mr Calwell. If your Honours come down a few lines:

His attempt to suggest otherwise is a lie. Some time ago we libelled Mr Calwell deliberately. We do so again, by saying that he is maliciously and corruptly untruthful. In other words, a dishonest, calculating liar.

So that was the nature of the counterattack, that is, it is not in this case a rejection or a denial of what was said about the defendant. It is a direct counterattack on Mr Calwell which the High Court held was perfectly within the scope of the privilege. If your Honours come back to the application book at 122 and to the quotation from Justice Dixon, the first thing to note is that this was his Honour giving the judgment at first instance which was varied on appeal to the Full Court, and I will take your Honours to that in a minute, but as your Honours come through the quotation that was set out there, in the first block about two-thirds of the way into it your Honours see the words:

whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion.

In my submission, it is very clear that that is a statement of principle at a high level, but that is directed to the malice aspect of this inquiry, not to the question of whether the publication was prima facie made on an occasion of privilege.

KIEFEL J: The difficulty in the area of qualified privilege in malice is that there is always an overlap between the two, is there not? It is always hard to draw the line of where the occasion is exceeded in the inquiry that is relevant to that and questions which are purely questions on the issue of malice.

MR McHUGH: Well, in some cases it may be, I would have to accept that, and the short answer to what your Honour puts to me is that when one is dealing with this area where it is a response to attack basis for the occasion, the inquiry as to malice, as is well accepted in Roberts v Bass and subsequent cases, is one that turns on the question of the nature of the occasion, that is, malice is an improper motive, misusing the occasion, and it is in the nature of response to attack qualified privilege that the defendant is entitled to attack the plaintiff, to go on the counterattack. That is why it is so very difficult in this area to say that one has exceeded the bounds of the occasion as opposed to getting to the question of malice.

As your Honours will have seen from the written submissions, of course, malice was a non-issue in this case at this stage, that is, failed at trial, failed in the Court of Appeal. So all we are dealing with is whether the matter was prima facie published on an occasion of privilege. When your Honours come down a bit further into that quotation in the middle of the block, it is accepted by Justice Dixon that the counterattack may even attack “the general veracity of the attacker”. Then again after that, another reference to “bona fide for the purpose of vindication” which must be a reference to malice expressed at a high level. I do not need to trouble your Honours with the rest of that quotation.

If your Honours come over to 123 in the book at paragraph 110, your Honours will find the submission that I put both at first instance and in the Court of Appeal. It is acceded before the Chief Justice at common law but not in the Court of Appeal that these were considerations of malice. If I can take your Honours to the full passage in Penton that is referred to in part at paragraph 110. If I can take your Honours to page 242 in the judgment of the Chief Justice and Justice Williams – this was on the appeal – and this is to come to the point your Honour Justice Kiefel raised about relevance. There is a paragraph that starts at the foot of the page and a couple of sentences in:

If the occasion exists, the communication, though defamatory, is protected if it is relevant to the matter which gives rise to the privileged occasion. The judge decides (after the jury has decided any relevant disputed facts) whether the occasion is privileged. But the privilege is lost if express malice (spite, ill-will, indirect or wrong motive not connected with the privilege) on the part of the defendant is proved, the onus of proof as to such malice lying upon the plaintiff. It is not for the defendant to disprove malice. Statements which are made in self-defence are privileged when they are made in reply to attacks upon the character or conduct of the defendant, or in protection of an employer –

Those words when they are made in reply, in my submission, identify the test of relevance for present purposes. As long as it is a reply, it is published prima facie on the occasion and then the onus shifts entirely to the plaintiff to establish malice in defeasance

CRENNAN J: But does that not really lead to this position, that the legitimate response test or the bona fide test, whilst it may of course function in the context of malice, those tests are also relevant to identifying whether the occasion is a privileged occasion.

MR McHUGH: In my submission, no. In my submission, it is an objective question and that is effectively what your Honour Justice Kiefel, the Chief Justice and the third judge in Dillon has held recently. It is an objective test, not a subjective one where one inquires into bona fides. It is an objective test whether or not the matter is published on the occasion and the test for that, as the Chief Justice and Justice Williams say clearly here, in my submission, is whether it is in reply. As long as it constitutes a reply, and in this context one is permitted to go on the counterattack, as long as it constitutes a reply, prima facie it is published on the occasion of privilege and that is why the question of onus is so important in this area. The onus at that point shifts to the other party. As the Chief Justice and Justice Williams said on the following page at the top in the first full sentence on the page:

When a person has been attacked seriously and abusively, the terms of his reply are not measured in very nice scales, but excess in reply may so exceed a reasonable view or the necessities of the occasion as to provide evidence from which malice may be inferred.

That is, these questions go to the malice inquiry. When your Honours turn through to page 250 in the judgment of Justice Starke, who was also in the majority, your Honours will see in the first full paragraph on the page at about point 3:

In the main, the words used by the defendant cannot, as a matter of law, be classed as irrelevant to the accusations made.

This is the issue your Honour Justice Crennan is taking up with me –

Great latitude must be allowed to a person defending himself, his interests and rights against attacks and accusations made against him, and, however violent or strong his language may be, still it is for the jury to determine whether he could not honestly and reasonably have believed them to be necessary for the vindication of himself –

That is the malice question because that is the only question the jury looks at.

KIEFEL J: But there is still the question in relation to qualified privilege of whether the occasion has been exceeded and that is where you get something of an overlap. It is not to say that there is not a distinct question about malice, but there is not purely a distinct question about the boundaries of the occasion being exceeded.

MR McHUGH: I accept that in principle, but the difficulty, particularly where one is dealing with a response to an attack, is that there is such latitude given in responding. If the response was something that had - - -

CRENNAN J: That is because you need to take into account all the circumstances in order to establish whether the occasion is one of qualified privilege or not.

MR McHUGH: What is different about this aspect of qualified privilege is that the ordinary case involves a reciprocity of duty and interest and that is the inquiry as to circumstances. What is different about this species of qualified privilege is that it is the attack which immediately gives rise to the occasion. As soon as a public attack is made, there is automatically an occasion and the question is then, is what is published by the defendant prima facie published on that occasion. If one purported to respond but attacked a third party - - -

KIEFEL J: It is difficult always talking in the abstract in defamation cases and we should, perhaps, come to how it applies in the present case, but the question is more correctly, is it not, whether what was published by the defendant in vindication of the defendant’s rights and reputation went beyond what was reasonably necessary, having regard to what was said by way of attack?

MR McHUGH: In my submission, no. That inquiry as to whether it went beyond what was reasonably necessary is only relevant to the question of malice. If it was completely irrelevant in the sense that it was not a response to the attack at all objectively, then I accept what your Honour says, then it would just be plainly irrelevant, but it is the language that your Honour uses in framing the question that gives me pause for not accepting it.

KIEFEL J: But you are assuming it cannot be objectively ascertained.

MR McHUGH: Well, no, it can be objectively - - -

KIEFEL J: And by the language used and the way in which it is used before you get to the questions of whether or not someone can be said to have been motivated by malice, which is a subjective question.

MR McHUGH: But the point where we are perhaps disagreeing is, in my submission, if the question of relevance is determined purely by is this objectively a response, but the language that your Honour puts to me whether it is a legitimate response or - - -

KIEFEL J: It still comes down to whether it exceeded the bounds of the occasion. So perhaps we should look at the particulars.

MR McHUGH: At the particulars. Well, your Honour, the last thing I wanted to say about this, while your Honours have page 250 open, is what Justice Starke says in the sentence that begins at about point 6 on the page. There is a line that begins “course of law” and then the sentence:

The language in which defamatory accusations are repelled must not be scrutinized too critically, for the party vindicating his character has a privilege to publish matter of vindication and defence and matters [as your Honour says] not irrelevant for that purpose. And it is for the jury to determine whether or not the privilege of the occasion has been abused.

If one comes back to the judgment, the Court of Appeal referred at the end of paragraph 110 to Justice Starke but did not quote from his Honour or refer to the principle, and then at 111 your Honours see the reference to Gatley:

in our opinion, the better view –

that is, expressly rejecting the High Court and what has been put above quoted from Justice Williams and Chief Justice Latham, is what is in Gatley, which is –

“[m]ere retaliation, which cannot be described as an answer or explanation –

which is a quite different concept from a counterattack –

is not protected . . . [t]he privilege extends only so far as to enable [the defendant] to repel the charge brought against him – not to bring fresh accusations against his adversary”.

If one looks at the facts of Penton, the fresh accusation was that Mr Calwell was a corrupt liar. That statement of principle in paragraph 111 Gatley just cannot be reconciled with Penton at all.

KIEFEL J: Would you mind reminding me, how did the appellant contend – what is the better view, the contention that they are referring to?

MR McHUGH: Your Honour, this is one of the things that has puzzled us because we have not been able to find where the appellant contended that. That is a question better directed to Mr Rasmussen because that is what the Court of Appeal records, but we have not been able to find where the appellant made that contention in the Court of Appeal.

KIEFEL J: What is the contention? Their Honours do not express it.

MR McHUGH: It appears to be what follows, that is, that one cannot go on the counterattack.

KIEFEL J: It just says “It is supported by Gatley”. It does not say that is what Gatley says.

MR McHUGH: No, your Honour.

CRENNAN J: Is it a point about the boundary?

MR McHUGH: It must be a point about the boundary and the question of principle is, is this evaluative process that uses the language of what is bona fide and so on something that occurs on the question of whether it is prima facie a publication or an occasion or is it in the malice box? In which case, my friend carried the onus - - -

KIEFEL J: Their Honours are tying it to a question of relevance, are they not?

MR McHUGH: They do in the last sentence there, but, your Honour, I do not have any difficulty with the proposition:

In short, in our view, the question is whether the matter complained of is relevant to the occasion –

My point is that the Chief Justice and Justice Williams and Justice Starke made it very clear in Penton that the test of relevance is, is it a response, not on any evaluative basis, and that is the problem when we get to 112 because if your Honours look at the language of 112 in the second sentence:

They constituted a legitimate response –

which is the Court of Appeal evaluating whether or not this was appropriate –

to the attack on the radio station. As indicated above, imputation (c) was, in our view, not a legitimate response –

Now, your Honours will find imputation (c) back in the book on page 83. That is:

c. the plaintiff incites people to have racist attitudes –

Why is that not a legitimate response where the attack upon the radio station was that it was racist? Why is it not attacking and responding by undermining the credibility of Mr Trad to say that, in fact, he incites people to have racist attitudes? It is difficult to see how one could possibly say that that was not within the privilege prima facie, subject of course to the question of malice. Then if your Honours go back to 124 in the book and paragraph 112:

and was not, accordingly an answer or an explanation.

The difficulty is, in the first sentence (a), (b), (d) and (g) were said to be legitimate responses. Coming back to 83 - - -

CRENNAN J: Imputations (d), (h) and (k) were not.

MR McHUGH: Yes, but just dealing with that with page 83 and imputation (b):

the plaintiff incites people to commit acts of violence –

Imputation (b) and (c), which the Court of Appeal has said one is legitimate and one is not, come from the same sentence of the broadcast. The very same sentence starts with the words he “incites people” and it has those two things in it. That is how artificial what the Court of Appeal has done really is. Then when your Honours come back to 124 in the book, as to imputation (g) their Honours say that:

it was sufficiently linked to the public attack on the respondent to be part of a legitimate response.

But imputation (h) is not a relevant response to describe him as a pest. In my submission, that is again an attack upon Mr Trad’s credibility and it is well within the scope.

KIEFEL J: It might not really be an imputation either.

MR McHUGH: It is interesting they say it was vulgar abuse in that very sentence, but then imputation (j):

concerning misinformation, ranges more widely, but, we would accept, was within the latitude of response allowed to a party attacked, which seeks to undermine the credibility of its attacker. Imputation (k) was not a bona fide answer or retort –

That is the language of malice, and the difficulty with what their Honours have done is that they have taken statements of principle at a high level of generality that wrap up both the question of occasion and the question of malice on which there is a very well established delineation as to who carries the onus.

KIEFEL J: But in terms of the need for clarification of principle as to where the boundaries of the defence and the occasion in the defence and malice lie, have not those matters more recently been addressed in Cush v Dillon and Boland v Dillon?

MR McHUGH: Not in this context, your Honour, in my submission, no. What Cush v Dillon was dealing with was a very different kind of qualified privilege, a very different occasion.

KIEFEL J: That is true.

MR McHUGH: There was discussion in that context in your Honour’s judgment with the Chief Justice about in what situation a question of malice and a question of relevance arises. If it is convenient, your Honours, I am happy to hand forward a copy of the judgment and take your Honour to the particular paragraphs. At paragraph 24 in the decision of the Court, and this is in the Chief Justice’s decision and the decision of each of your Honours, it is page 9 of the print I have just handed up. At paragraph 24:

The final determination of this case rests upon the issue of actual malice.

Then there is the reference to the observations of Lord Esher that were taken up in Adam v Ward by Lord Dunedin. If your Honours read that paragraph, it culminates in the crucial point in the last sentence:

But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice.

That is very much helpful to me, but it cannot be reconciled with what the Court of Appeal has done in this case, particularly in the context of a response to attack. The long and the short of it is the High Court in Penton v Calwell made very clear what the scope of the latitude was and what the test of relevance was in that context, that is, is it a response? If it is a response, it is relevant. But the problem one has with what the Court of Appeal has done is that they have gone into this evaluative question of whether it is a legitimate response or a fair response or one bona fide warranted and, in my submission, as a matter or principle, that is just not open. Now, I should move quickly to the problem with the truth case and the approach taken by the Court of Appeal. Might I take your Honours into the supplementary application book.

CRENNAN J: I see you are about to exceed your time limits, Mr McHugh. In any event, presumably you can do this quickly.

MR McHUGH: I had misread the time point. The point is really a very short one and I do not need to take your Honours into the supplementary book. What that contains is a very extensive set of submissions about truth and the evidence in support of the truth case. What happened in the Court of Appeal was that their Honours took the view, on some basis that is difficult to follow, that the trial judge did not apply the test at all which his Honour had identified and the real problem is that the Court of Appeal, exercising jurisdiction under section 75A of the Supreme Court Act, had a duty to reconsider the matter and to make findings itself.

Having said there was some problem with his Honour’s approach, but having had full argument on the evidence and on the test, the Court of Appeal just refuses to exercise its jurisdiction at all. It says there was no notice of contention filed in circumstances where no one ever suggested there would have to be one, because they decide the appeal on a point on truth that no one has ever raised, and then refused to come to terms with the evidence at all. So after extensive argument on all of those issues, that they just do not exercise a jurisdiction and, in my submission, that is a point of principle about the proper approach. May it please the Court.

CRENNAN J: Thank you.

KIEFEL J: Just before you sit down, I would like to ask you this. In relation to the draft notice of appeal, although grounds 1 to 6 in a way set out an argument and go beyond what is perhaps necessary for grounds of appeal, but I think 1 to 4 encapsulate the point that you have just - - -

MR McHUGH: Yes.

KIEFEL J: Then we go on to 5, 6 and 7, I think run together.

MR McHUGH: Ground 5 is an adjunct to 1 to 4 in the sense that it is the consequence of the - - -

KIEFEL J: Conclusion, yes.

MR McHUGH: And then 6 - - -

KIEFEL J: Grounds 6 and 7 - - -

MR McHUGH: Are directed to the question of truth at the point of principle I just raised with your Honours. Then ground 8 is again the consequence in relation to the grounds of principle.

KIEFEL J: But in relation to what you say are points of principle in relation to grounds 6 and 7, what would this Court be involved in determining? It would have to go back to the Court of Appeal?

MR McHUGH: Unless this Court were prepared to come to terms with all of the evidence, which I well understand may not be an appropriate function

for this Court to carry out, it would lead to a remitter to the Court of Appeal to require them to determine the matter according to the evidence and in accordance with section 75A.

KIEFEL J: The Court would be required to consider the evidence in relation to whether it was open to the Court of Appeal to make findings, that is to say, there is a factual inquiry here that the Court would be involved in.

MR McHUGH: Your Honour, the trial judge found - - -

KIEFEL J: It is always said that they are at a very superficial level and will not take us very long.

MR McHUGH: The reason why that is so is the trial judge found in.....that all the primary facts were made out and in the Court of Appeal the judgment for the most part does not engage with the evidence at all and does not say there was not evidence in support of the primary findings. What the Court of Appeal says is his Honour did not apply the test.

KIEFEL J: Yes, I see.

MR McHUGH: May it please the Court.

CRENNAN J: Thank you. Yes.

MR RASMUSSEN: May it please the Court. Your Honours, special leave should be refused for two reasons. The first is that the qualified privilege point is obscure and it does not have sufficient prospects of success, in our submission.

KIEFEL J: Well, it cannot be that obscure, we have just been talking about it.

MR RASMUSSEN: Your Honour, it is also not a question of law or sufficient public importance, in our submission.

KIEFEL J: It is either questions of principle or visitation, I suppose, but the way in which Mr McHugh has put it forward is an area which has not really been clearly delineated which is where the line between malice and the occasion for qualified privilege may lie.

CRENNAN J: Can you help us here. At page 123, paragraph 111, you recollect there was some discussion earlier about the view for which the appellant contends. What was the view for which the appellant was contending, to which that appears to be a reference?

MR RASMUSSEN: Your Honours, I am sorry I cannot assist you with that one. I have tried to find it myself in the book and I have not been able - - -

KIEFEL J: I think it must be the question of relevance.

MR RASMUSSEN: Yes, I think that may be right.

KIEFEL J: Just returning to this question though, if there is one of principle for which Mr McHugh contends in relation to the line between or confusion as to what is relevant to the question of an occasion for qualified privilege and that which is more properly to be considered in relation to malice, the decision in Guise v Kouvelis I think is a good indication of where minds may differ about this and, in particular, Justice Dixon in that case, I think, his sheer annoyance with the majority for confusing the question of malice permeates his Honour’s judgement. That is the sort of issue and, I think, perhaps that is the high point of a decision where this sort of issue can be seen to create confusion.

MR RASMUSSEN: Your Honour, does it not suggest that there is, therefore, some sort of special exception to reply to attack? In our submission, that does not fit within, if you like, the unified theory of qualified privilege which - - -

KIEFEL J: We might be in a particular circumstance in this case, but maybe that does not mean that this is an inappropriate vehicle. It may mean that the question is more focused. That might be something you have to deal with. I mean, if you are going to say that the general question – this case does not throw up a very good example of that general question, that might be something you need to develop.

MR RASMUSSEN: Well, your Honour, in respect of that, the matters on which the Court of Appeal relied – I might take that matter on board, your Honour. I think in a question that your Honour raised with my learned friend about the appropriate formulation of the test, I understood your Honour to be adopting the language of Lord Dunedin from Adam v Ward - - -

KIEFEL J: I was not conscious of that when I said it, but I might have been.

MR RASMUSSEN: - - -which I have had reason to look at a little more carefully because of what transpired in or what fell from this Court in Cush v Dillon, paragraph [19]. Your Honour, we would submit that that is the orthodox position. That is something which has been adopted and applied, as I think my learned leader set out in the written submissions at paragraphs 9 and 10, as being adopted and applied by the High Court over many, many years. The formulation that the Court of Appeal used in terms of their test again is well founded in authority in principle, and I think my learned leader has set that out very clearly in the written submissions and I would not want to try and repeat those.

Your Honour, the other matter which your Honours may consider to be appropriate or not on the question of whether or not there ought to be leave is that this, of course, does arise under the 1974 Act which is now defunct. The importance of that is simply that the imputation under that Act is the cause of action, whereas under the current one it is no longer the case that it is the cause of action and that may mean that it is an unsuitable - - -

KIEFEL J: This affects the question of the segregation of the imputations as distinct from the holistic view of them.

MR RASMUSSEN: That is right, and your Honour’s judgment in Cush v Dillon, of course, was in respect of a matter of the 1974 Act and so it fell more clearly to distinctly divide the occasion by reference to the imputation, whereas under the new Act it has been criticised a little as being the nisi prius of defamation Acts, tries to take a bit each way, but it clearly states that the publication is the cause of action, that is, the defamatory matter being the publication itself, and it takes it away now from the imputation, but, of course, in respect of some of the defences it tries to elevate the imputation, in any event. My point simply, your Honours, is that so far as whether or not this is a suitable vehicle, this must be one of the last cases under the 1974 Act that is likely to appear before your Honours. I can think of only one other that I know of that might appear one day.

KIEFEL J: But the new legislation would not affect the question of the boundaries between occasion and malice. The common law still applies.

MR RASMUSSEN: That is correct, your Honour. That is quite right, it does apply, it does indeed. Insofar as it attaches or might attach to the imputation itself, it may affect the way in which the question is dealt with, but I cannot develop that submission any further, your Honours. I think my learned friend suggested that Penton v Calwell indicated no more than if you could characterise it simply as a reply to an attack, therefore, you had the occasion and everything else was left for malice. With great respect, I do not think that that is a characterisation of all of the other weight of authority.

The other cases in the High Court referred to in my learned leader’s submissions do suggest that this issue of the excess of the statement from the privilege or its connection to the privilege is available on both issues, malice and, of course, on the occasion as to whether or not the occasion

arises itself, and it is not in the bare simpliciter or the mere sense that, I think, my learned friend contends for. The weight of authority, in my submission, is against that. That, we say, your Honours, suggests why it is that it is not an appropriate vehicle for this Court and why it is that there is not a sufficient matter of public importance for this Court.

Your Honours, so far as the truth point is concerned, your Honours, it is an issue of fact. What they are asking this Court to do is to revisit the issues of fact that they lost in the Court of Appeal. In our submission, they have not shown that there is any substantial injustice or miscarriage by way of what occurred below and, indeed, if successful, it would only affect, I think, imputation (c) because (h) and (k) there was no plea of truth to (h) and (k). So if your Honours have dealt with that question to their favour, then that would assist them in respect of imputation (c) only. So there are three surviving imputations, (c), (h) and (k). It was (c), (h) and (k), of course, which are determined by this issue of qualified privilege if they are successful on the appeal. Your Honours, I am sorry there is nothing further I can say that might assist you, at least I do not think so.

CRENNAN J: Thank you.

MR RASMUSSEN: If I could be allowed to sit down, thank you.

MR McHUGH: Your Honours, there are only two points. I perhaps should not be so quick to jump to my feet. But, your Honours, on the point about truth that my friend just raised, the significant point was that in light of the findings of substantial truth made by the primary judge, his Honour went on to say that the defence of contextual truth was made out to the whole matter, and so what has happened in the Court of Appeal is that because I have lost the primary findings of truth as to four imputations, I lost the defence of contextual truth to the whole matter. So it is not just one imputation. The other point is, as your Honour Justice Kiefel says, the 1974 Act issue is a red herring, the question of principle is exactly the same.

CRENNAN J: We understand.

MR McHUGH: And it really is a question of what is the dividing line. May it please the Court.

CRENNAN J: Mr McHugh, we have a query about your draft notice of appeal, having regard to the fact that what you are really wishing to raise in respect of truth is the point set out in paragraph 6 of your draft notice.

MR McHUGH: Yes.

CRENNAN J: We are just concerned to ask you whether the point can be raised on the basis of paragraph 6 and whether or not it is really necessary to add the subsequent paragraphs?

MR McHUGH: In effect, paragraph 7 amounts to particulars of what went wrong in paragraph 6.

KIEFEL J: The statement of principle is contained in 6 though, is it not? If this Court was to avoid the exercise of determining for itself whether these findings of substantial truth should be set aside, it would limit itself to 6, would it not, the point of principle, and would not that then resolve the question if there has been misapplication?

CRENNAN J: As you say, the matter would have to be remitted depending on the result.

MR McHUGH: Your Honour, I think that is right. Your Honour, I do think that is right and I should say, of course, that if I was successful on the qualified privilege question, no question of remitter would arise in relation to truth in any event.

KIEFEL J: Yes, that is right.

CRENNAN J: That is right.

KIEFEL J: But 6 would need to be perhaps recast to raise the point of principle more clearly and to make plain that there is no question of revisiting facts.

MR McHUGH: Yes, your Honour. It may be that that would also be done by an amendment to the orders of a sort to make clear that in the event that there was success on truth, there would have to be a remitter rather than - - -

CRENNAN J: In combination with a redrafted paragraph 6?

MR McHUGH: Yes, your Honour.

CRENNAN J: Yes. Yes, thank you.

MR McHUGH: May it please the Court.

CRENNAN J: The Court will grant special leave in relation to this application on the basis that the notice of appeal is redrafted as we have just discussed. Now, how long will this take, Mr McHugh? Will it take all of a day or less?

MR McHUGH: It certainly would not take more than a day. It would almost certainly take less, your Honour, but I hesitate to say a half day.

CRENNAN J: Yes, very well. We will allow a day.

MR McHUGH: May it please the Court.

CRENNAN J: Thank you.

AT 10.12 AM THE MATTER WAS CONCLUDED