Gatto v Australian Broadcasting Corporation & Ors [2022] HCATrans 197 (11 November 2022)

Last Updated: 14 November 2022

[2022] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M29 of 2022

B e t w e e n -

DOMENIC GATTO

Applicant

and

AUSTRALIAN BROADCASTING CORPORATION

First Respondent

NINO BUCCI

Second Respondent

SARAH FARNSWORTH

Third Respondent

Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 10.30 AM

Copyright in the High Court of Australia

____________________

GORDON J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR G.O’L. REYNOLDS, SC appears with MR D.A. WARD and MR C.C. PORTER for the applicant. (instructed by Lennon Lawyers)

MR M.J. COLLINS, KC appears with MR S. MUKERJEA for the respondents. (instructed by ABC Legal)

GORDON J: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, I need an extension of time. We were a day late. I have been told that that is not opposed.

GORDON J: You have that leave, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour. Your Honours, this case raises four questions of law relating to the law of defamation. I submit each is important – indeed, of critical importance in that area of the law. Each arises in all Australian jurisdictions. On three out of the four of those points, there is no decision of this Court. On three out of the four, there is a divergence between intermediate Courts of Appeal. And all four questions of law relate to the critical question of law, which arises in every defamation case; namely, how the tribunal of fact determines if a publication conveys defamatory imputations.

In addition to those four issues of law, we submit that the decision of the Victorian Court of Appeal rejecting all six imputations is, with all due respect, a grave and manifest injustice warranting visitation. All six imputations were, we submit, clearly conveyed. And again, with respect, the Victorian Court of Appeal conducted no adequate examination of the facts; dealt with all six imputations in under two pages; provided no adequate basis for rejecting the meanings, and with respect, the reasoning is exiguous.

Can I deal with the first issue of law which arises, which relates to what has been called the “single meaning rule”, which has adopted – if I can take your Honours to page 71 of the application book, at paragraph 41 of the judgment, where it stated in the last four lines that:

The question . . . is what is the single or dominant meaning which the trier of fact believes was actually conveyed –

which they refer to as the “single meaning rule”. If your Honours go to paragraph 44 on the following page, the word “select” is used in the first line. So, the trier of fact has to select the dominant meaning, and only one meaning. We say there are two important questions here. First of all: is there such a rule? We submit that there is no such rule. Second of all: if there is such a rule, how should it be formulated? On those two questions, we submit that the following propositions are indisputable. First of all ‑ ‑ ‑

EDELMAN J: Mr Reynolds, just before you go. Was there dispute in the Court of Appeal about the scope of the single meaning rule?

MR REYNOLDS: Absolutely, your Honour. That was the main point of the appeal, was that it was submitted that the trial judge had got the scope of the rule wrong, and that was upheld – that ground – by the Victorian Court of Appeal. So, first, this ‑ ‑ ‑

EDELMAN J: There was no dispute that there must be a single meaning?

MR REYNOLDS: The dispute was as to the scope. The submission that was put on behalf of my client was to adopt a statement which is to be found at page 69 of the application book from Readers Digest v Lamb. We submit that that has got nothing to do with the single meaning rule, and that was the proposition which was put. So, the effect of that is to put something different from the single meaning rule, and, as I say, the scope of it was a subject in dispute.

GORDON J: Can I ask one other question about that, Mr Reynolds, just so I am clear. Do you take issue with what it is in paragraph 45 about that question?

MR REYNOLDS: The Victorian Court of Appeal judgment?

GORDON J: Yes, please – on application book 73.

MR REYNOLDS: I have it, your Honour. Yes. I take issue with that because, first of all, it is not a matter for the tribunal of fact to determine the meaning that is selected; second of all, there is no single meaning; and third of all, if we go back to paragraph 41, third‑last line, it does not have to be a dominant meaning. Again, that is repeated . . . . . dominant meaning at paragraph 43, fifth‑last line, and again at paragraphs 60 and 61.

EDELMAN J: Mr Reynolds, that brings me back to the question I asked you at the start, that part of your answer to Justice Gordon is that there is no single meaning. Was that point in issue before the Court of Appeal?

MR REYNOLDS: Indirectly, your Honour, insofar as the law that was adopted was the formulation in Readers Digest v Lamb at the top of page 69 of the application book. However, as I say, the formulation of it was keenly an issue and, indeed, was won on that issue, although we lost the case. We are taking the point that, not only was the formulation by the Victorian Court of Appeal wrong – and we are entitled, obviously, to take that point – we say that basically the whole rule is, with all due respect, nonsense.

This Court, first of all, has never examined the rule. Second of all, it has never even mentioned it. Third of all, it has been much criticised by both judges in the Academy. That is to be seen on page 90 of the application book, where at paragraphs 28 and 29, we have selected some criticisms by both judges and academics. Fourthly, there are conflicting Court of Appeal decisions as to whether the rule even exists. That is to be found in the application book page 90 at paragraphs 27 to 28. Fifthly, there are conflicting Court of Appeal judgments as to its formulation. The formulation here in paragraph 41 conflicts with the formulations set out in paragraph 27 at page 90 of the application book. These issues, sixthly, are relevant to all Australian jurisdictions and, seventhly, these issues are inextricably linked with the closely‑related question of what is the correct test to determine what imputations are conveyed.

If your Honours go back to the judgment below at paragraph 41 – that is application book page 71 – again, the last four lines of paragraph 41:

The question for the trier of fact –

and they then set out this test. That is the test that is applied at paragraphs 60, 61 and also 63. That leads me to the second and closely‑related question of law which we say is important, and that is: what test is applied by the tribunal of fact to determine what imputations are conveyed? Now, on that issue there is a clear divide between two groups of States. Some States adopt what I call the Victorian approach, and the effect of that is set out at paragraph 41 of the judgment, at page 71 of the application book, which I have taken your Honours through already.

The second group of States – and I will call this the New South Wales approach – adopted an approach which will be well familiar to your Honour Justice Gleeson. That is set out at page 91 of the application book, at paragraph 32, in the last three lines. And this is a very simple question: does the publication convey the substance of this implication to an ordinary reasonable reader? Nothing about what is dominant, nothing about a single meaning, and nothing about the tribunal of facts selecting a meaning because it is the plaintiff that selects the relevant meaning in the pleading.

If special leave is granted in this case, we wish to submit, with respect, that the Victorian test, which is inextricably linked with the single meaning rule is wrong and that the New South Wales test is correct; the New South Wales test being completely incompatible with this single meaning rule.

The question of what is the correct test on this topic is self‑evidently of very grave importance. It arises in every defamation case in every jurisdiction and this issue affects all subsequent issues, particularly truth defences, which swing off this issue of meaning. This issue will inevitably arise on the appeal, come what may, because this Court will need to decide what test is to be applied, and, again, this is an issue where intermediate courts have reached completely divergent views and only this Court can resolve this key issue, one of critical importance. That leads me to the third issue of law.

GORDON J: Mr Reynolds, I do not know what order you propose to take them in, but I think the Court would be assisted by you looking at, if it is possible, what I think will be your third issue, and that is whether the imputations themselves were conveyed. Do you propose to deal with that next?

MR REYNOLDS: I can, if your Honour asks me to, but there are two other issues of law I was going to address, which is the question of the appellate standard and then the question of hearsay statements. I am in your Honour’s hands.

GORDON J: I do not want to take you out of your order, but I think that is one of the issues which we would like to hear submissions on.

MR REYNOLDS: Well, I will take my leave from what your Honour has said and deal with ‑ ‑ ‑

EDELMAN J: It is up to you, Mr Reynolds. The legal questions take their importance and their colour from the prospects of success, and the prospects of success depend upon whether or not there is a likelihood that the imputations were conveyed.

MR REYNOLDS: Well, your Honours, I put my client’s case on this issue very, very high. If this was a jurisdiction where verdicts could be directed in the Court of Appeal, I submit that multiple verdicts on these imputations . . . . . be directed. We submit that the decision on these imputations is, with respect, manifestly unsustainable. It is not only affected by these various issues of law, but we submit that all six imputations were very clearly conveyed and that there is a manifest injustice warranting visitation in any event. Can I focus on imputation (a), and your Honours have the article at page 103. If your Honours look at the ‑ ‑ ‑

EDELMAN J: You abandoned (e) and (f), is that right?

MR REYNOLDS: That is so, but the rest of the imputations we have put very detailed submissions on. If your Honours go just very briefly to the article at page 103 – and we have put line numbers – t line 10 you see the heading. Now, that is – but the text effectively of imputation (a), “Gatto threatened to kill police Informer 3838”, the only difference is that it adds “court told”. So that relates to this issue that I have not yet dealt with, the issue of hearsay statements. But we submit that the case for my client on this imputation, which is the only one that I thought I would have time to deal with, is extraordinarily strong.

Can I just take your Honours through the argument briefly. If your Honours go to page 94, if we just take this as an example of how strong this case is, this statement that is in that headline is made – if your Honours go to paragraph 49 on page 94, that statement is made eight times in the article, where the court is told that “gangland figure Mick Gatto threatened to kill police informer”. They are the very words of this imputation and ‑ ‑ ‑

GORDON J: The imputation is that the court was told that.

MR REYNOLDS: Yes, I understand that, your Honour, but that goes back to this issue of law – to pick up what Justice Brennan and Justice Devlin said – and that is, a hearsay statement is the same as a direct statement, and that is all there is to it. We say that this is a false distinction. If I say, Bill Smith says John Jones is a murderer, is the same as me saying directly, John Jones is a murderer – and, we submit, that this is bread and butter law, subject to one qualification which I can go back to later – if that is the law, then there cannot be the slightest doubt that that is the case. Even it is not the law, it is still repeated where you have got – if we move to the other points in paragraph 49 of my submissions – you have got it in the heading.

Thirdly, as we have said, a hearsay statement is the same as a direct statement – the evidence that was given was given by an officer of more than 40 years’ experience which supports its credibility and was clearly intended by the ABC to support it. Fifthly, Inspector Hall’s quoted evidence that “Gatto has threatened her” reinforces the imputation. Sixthly, the other senior officers are said to have stated in evidence that Ms Gobbo was “almost certainly going to be killed”, which suggests that they believed that Gatto’s threats would be carried out. Seventhly, multiple affidavits were prepared outlining the fears police hold for her life, which shows that police believed the threats made by Gatto would be carried out. Eighthly, there is no material – and this is critical – which, in any way, asserts that Mr Gatto – whose name is mentioned 28 times – was not guilty.

Most articles that are properly legal have material going back the other way. They say, Mr Gatto denies the allegations; Mr Gatto’s barrister said that his client was not guilty and said none of these things are true. But there is nothing going back the other way in this article. Finally – and, perhaps, most importantly, other than in relation to the headline, line 49 says that “the threats were made”. That means that the ABC is specifically adopting the statements made by the police.

Your Honours, this case, I submit, is as strong as it could possibly get in the real world. It is extraordinary, with respect, I submit, that this imputation was found not to be conveyed. Why was it not found to be conveyed? If your Honours go to the application book at pages 94 to 97, we point out, point after point, after point, as to why all of these imputations arise and yet if your Honours go to page 118 – and we would expect some reply on the merits of this argument – what do we get from the ABC, you get paragraph 25. Basically, absolutely nothing.

This, I submit, is very revealing and emblematic of the weakness of the ABC’s case. And if we go back to the Victorian Court of Appeal, at pages 78 to 79, there is no reasoning there either. If your Honours scan paragraph 60 through to 66, there is no discussion of any of the material in the article – or barely any. It just, basically, says – and we say this goes back to this test of House v The King – it looks at whether there was an error or whether the judge’s decision below was reasonable.

To make that point good, can I take you to paragraph 61, the last word is “error”. Paragraph 63, last word is “no error”, paragraph 66, “we see no error”. At the end of that paragraph 66:

we are not persuaded that there was any relevant error –

The other test, which comes from House v The King, as to whether the decision below was reasonable is to be found at the fourth line of paragraph 61. Your Honours, my client cannot get anyone to hop in the ring with him on this issue of how is it that these meanings – which we say are very strong – are not conveyed. There is not any ‑ ‑ ‑

GORDON J: Mr Reynolds, just so I am fair about this, can I just understand that the response made is a response, I think, that one has to take 60 and 61 and then read it in the context of what follows. There may be other parts of the judgment as well, as 64 and following. Is that not right? In other words, one has to look at it as a whole.

MR REYNOLDS: My point is that there is nothing there, at pages 78 to 79. Normally – and as your Honour knows, as all of your Honours know – an article of this kind would look at all of the detail of the article and say, well, there is this passage that helps the plaintiff or the defendant, there is this passage, this passage, this passage. We have done that, our opponents do not do that, and nor does the Victorian Court of Appeal.

Your Honours, I am left in a position where I have got – and I am not complaining – three minutes to deal with the other issues of law. I have touched on the issue of hearsay; that is, that a hearsay statement is the same as a direct statement. That was the view that Justice Brennan took, adopting what Lord Devlin said. That is to be found at page 93.

GORDON J: Was that in the context of a publication about court proceedings?

MR REYNOLDS: I do not recall, your Honour, but it makes – with respect – not a jot of difference. The real issue here, in this case, is going to be whether there was a fair report defence, not as to whether the imputations are conveyed. It . . . . . standard direction to be given to any jury that if there is a hearsay statement in the publication that that is to be treated as exactly the same as a direct statement, and I have heard that direction given many times.

There are other views about this issue in this Court. Justice McHugh took a more nuanced view and said that it was not an invariable rule, but that is one of the issues we say should be looked at. The final and fourth issue of law is the standard of appellate review. We say that it is clear that the Victorian Court of Appeal at paragraph 52 adopted a House standard. I have already taken you to the various passages where they use the expressions “no error” or “unreasonable”, which we say clearly shows that they are applying a House test.

The other test is whether the issues are to be redetermined completely afresh. We say that regardless of how one characterises the Court of Appeal reasoning, this issue is going to arise on the appeal because this Court is going to have to determine whether it determines the matter afresh, or whether it applies a House v The King test. We say that it is clear that the Court of Appeal – not that it matters – but it is clear that they did apply the House test. First, they said the House test was correct. Second of all, there are these references to “no error” and “unreasonable”. And perhaps most importantly, if the Court of Appeal was applying a fresh redetermination test, where is the fresh redetermination by going through all of the detail of the article?

Your Honours, we submit that there are four critical issues of law that will arise, the first three in every defamation case . . . . . On the first three there are split courts of appeal, and the case here for visitation is extremely powerful.

Unless your Honours have any further questions, those are my submissions.

GORDON J: Thank you, Mr Reynolds. Mr Collins.

MR COLLINS: Thank you, your Honours. If I deal with the single meaning rule ground first. Even if there were some controversy about the application of a single meaning rule in defamation law – and we submit there is not – the point simply does not arise in this case. Your Honour Justice Edelman asked our learned friend about how this matter had been dealt with below. Our learned friend should have taken your Honours to paragraph 18 of the judgment, at application book 62. Our learned friend seeks to resile here from a concession that was made below. As the court accurately recorded at paragraph 18:

First, relying upon High Court authority, the applicant noted that the judge was required to determine the single meaning conveyed by the article.

So there was a concession below that there is a single meaning rule that applies in the law of defamation and the applicant relied upon Reader’s Digest Services v Lamb. That concession was correct. If your Honours go to application book 69, the Court of Appeal extracts a passage from Reader’s Digest v Lamb. On the top of application book 69, about five lines in, the middle of the line, there is a sentence:

Whether the alleged libel –

This is the passage from which all of the subsequent cases, to which I will refer shortly, hinge:

Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used –

That is a unanimous statement of this Court in respect of the operation of the single meaning rule.

We have collated all of the authorities from around Australia, both intermediate appellate and first instance, which we have been able to find which refer to and apply the single meaning rule, and your Honours will see those in our written submissions at paragraph 9 and the footnotes attached thereto. There is just a mountain of . . . . . there is simply no controversy about the application of this principle ‑ ‑ ‑

GORDON J: Mr Collins, to be fair to Mr Reynolds, I think when it is taken at its narrowest it is really about the scope and application of that rule.

MR COLLINS: Yes. Can I come directly to that. This is the next area in our learned friend’s submissions, with respect. That argument, too, is entirely inconsistent with the manner in which the applicant ran the case before the Court of Appeal. Could I take your Honours to application book 76, judgment 55, about halfway through the paragraph the court records:

Indeed, as the applicant conceded in his written case in this Court, the question of the meaning of the article was a ‘binary choice’. There was no continuum, and there was no ‘approximate centre point’, to be considered or found. As his Honour’s reasons disclose, the judge carefully considered each of the applicant’s pleaded imputations by reference to the whole of the article –

and found for the respondents. So our learned friends raise two points before this Court. They seek to persuade your Honours that there is no single meaning rule. That is flatly wrong, and inconsistent with the concession made below. Then they seek to argue that the application of the single meaning rule somehow caused this trial and appeal to miscarry, but they conceded below that the single meaning rule had no role to play on the facts of the case because it did not involve the choice of an approximate centre point; it was a binary choice between the imputations contended for by the applicant and those contended for by the respondents. So, in our respectful submission, that is the beginning and the end of the single meaning rule ground. There is no merit to it.

Can I move then to the question of – I will deal with proposed grounds 1 and 2 together – the standard of review and the correctness of the decisions below. The first point to be made – and, again, our learned friend made no reference to this in his submissions – the parties were in agreement below as to the applicable standard of review. There are three points in the judgment that are important. The first is at application book 73, paragraph 46.

EDELMAN J: Mr Collins, do you seek to defend the statement in paragraph 52 about the approach to review?

MR COLLINS: No. We say it is plainly obiter, and I will demonstrate why that is so by taking your Honours to the way in which the Court of Appeal identified the competing tests, then going on plainly to apply the test which the parties below had conceded was the applicable test – which is what their Honours called the correctness test.

No, we do not seek to defend that. It was plainly obiter. As their Honours note, it was not the subject argument before them – it is expressed tentatively. When one goes to the analysis which immediately follows it, one sees no further reference to the House v The King standard, one sees only references to the standard that the parties had agreed was the applicable standard. So, the starting point of the agreed position between the parties is paragraph 46. At the end of the paragraph:

both sides also accepted that . . . the existence of error being . . . indispensable –

Secondly, at paragraph 49 – this is, again, a fatal problem of our learned friend’s submissions:

In oral argument, the applicant accepted that if a choice arose between conclusions which were equally open or –

it says “finally” but it should be “finely”:

finally balanced, and where there could be no preponderance of view, error would not be established merely because this Court had a preference for one view over another.

That was the agreed test. Their Honours stated that test at paragraph 51 – and just to come back to your Honour Justice Edelman’s point, paragraph 51 begins:

On the one hand –

Paragraph 52 begins:

On the other –

So, the court was identifying two possible tests:

On the one hand –

and this is the test that parties agreed was the applicable one – in the final sentence:

if this Court formed a different view from that of the trial judge as to whether the pleaded imputations were conveyed, it would find error and allow the appeal.

So, when one looks later in the judgment to the Court saying, “we are not persuaded” there is error, that is plainly, in our submission, a reference back to the agreed test in paragraphs 51, 49 and 46. The Court of Appeal is saying, we have not formed a different view from that of the trial judge, we have not found error and we do not allow the appeal. That is the way it is dealt with in 51. Paragraph 52 then – just to make good my proposition about that being obiter – begins with:

On the other hand –

So, the court is setting out the dichotomy. Then they say, about halfway through, just after footnote 49:

For that reason . . . we have not had the benefit of full argument, the better view is –

and they then set out the House v The King standard. But then, at the end of 52, they set out the question which would apply if they were to go on the House v The King standard; that question being:

not whether this Court has formed a different view from that of the trial judge, but whether the trial judge’s determination was reasonably open.

So, if the court, as our learned friend would have it, went on to apply the House v The King standard, you would expect to see – you would have to see the court answering the question which it had itself posed at paragraph 52, and not the question which it had itself posed in paragraph 51. But when one goes to the way the court deals with it – and I will just deal with imputation (a) first ‑ ‑ ‑

EDELMAN J: That would be the language of “reasonably open”, rather than the language of “error”.

MR COLLINS: Exactly. Yes, that is our point. So, if your Honour goes to ‑ ‑ ‑

GLEESON J: But, Mr Collins, would not you also have to see some consideration by the Court as to its view about whether the imputation was conveyed?

MR COLLINS: Yes. Thank you, Justice Gleeson, exactly. You would expect to see the Courts say, we would have come to a different view in respect of this matter, but we are satisfied that the conclusion below was reasonably open or, in the language of House v The King, not unreasonable. We do not see any of that kind of analysis. Paragraph 52 is obiter. We never see another reference to House v The King in the judgment. And if I then take you, if I could, to paragraph 61 ‑ ‑ ‑

GORDON J: Can I just ask one practical question, Mr Collins, before you proceed. You said it was not the subject of argument, but it was raised with the parties. Did anyone submit it was their right approach to be adopted?

MR COLLINS: No, your Honour. Both parties said, as the court accurately recorded at 46 and 49, that the test that should be applied is what we have called the correctness standard.

GORDON J: And who raised it?

MR COLLINS: Justice Beach.

GORDON J: Thank you.

MR COLLINS: Justice Beach asked – my recollection, I was in the case, as was Mr Mukerjea. Justice Beach asked whether either party could refer to any authority considering the application of the House v The King standard, but Mr Gilbertson, who then appeared for Mr Gatto, and I, each said that we could not and that we – it was then put to us, what test do you say we should apply. And it is as recorded in paragraphs 46 and 49 of the judgment.

GORDON J: Thank you.

MR COLLINS: Then, going to paragraph 61, on page 78 of the application book, the court says:

Plainly, as the parties’ contentions . . . show –

I just interpolate. Our learned friend says there is no analysis in this judgment. There is a mountain of analysis. The reference in paragraph 61 to “the parties’ contentions in this Court” is a reference . . . . . to page after page in our analysis of those competing contentions earlier in the judgment. But I will come back to that. The court says at 61:

there are features of the article pointing in both directions. In the end, we think the issue is finely balanced.

That is the language of the conceded test the court had recorded at paragraph 49. The applicant had conceded that if the matter was “finely balanced”, the appeal must fail. That reference is significant. The court then says:

Different triers of fact could reasonably come to either of the two possible meanings being the (or a) dominant one. In such circumstances, we are not persuaded that his Honour’s choice of meaning . . . involved any error.

That is not the language of the House v The King test. That is the language, word for word, of the test the court had identified at the end of paragraph 51 when they said:

if this Court formed a different view . . . it would find error –

Where, in 61, they say “we are not persuaded” there is any error. That is another way of saying, we have not formed a different view from the trial judge, in our submission.

Our learned friend’s argument considers this a very strong case. It is not; it is exceptionally a weak case, in our submission. Our friend’s submissions hinge entirely upon false assertion that there is no significance to the fact that this article involves a recitation of allegations made in court proceedings. He says a hearsay statement is the same as a direct statement and that is the end of the matter. That, with respect, is demonstrably wrong.

This is a case involving a report of allegations that had been made in ongoing court proceedings. If your Honours go to page 103 – let us deal with imputation (a) first – my learned friend says the imputation appears in terms eight times. That is just not right, as your Honour Justice Gleeson – I think it was your Honour Justice Gordon pointed out. At the end of the headline, the significant words are “court told”. These were allegations made before a court, not allegations made or adopted by the ABC, not allegations the result of an exercise in investigative journalism. It is a straight court report. Then, in the next paragraph:

Underworld figure Mick Gatto threatened to kill a lawyer turned informer if it was ever proven she was speaking to police, according to the confidential evidence of a senior police officer.

As the case has repeatedly remind us – Mirror Newspapers v Harrison perhaps being the best example in this Court – ordinary reasonable readers well understand the distinction between allegations and counter‑allegations which are made in court proceedings, and proven facts which might be the result of a finding of the court. The very next paragraph:

Inspector Brooke Hall stated in a 2016 affidavit –

This is an assertion of an affidavit, not a proven fact. That is picked up again on page 104 towards the bottom of the page, line 163:

As part of the court action, multiple affidavits were prepared –

These were allegations . . . . . untested affidavits put before the court. At line 166:

Senior officers . . . Fontana and . . . Brigham gave evidence . . . that they backed Inspector Hall's assessment –

What this article conveys is that there were reasonable grounds to believe – and police reasonably believed – that Mr Gatto had threatened to kill Informer 3838. It does not convey that that threat had in fact been made, that that threat was a matter of proven fact. Perhaps the passage which puts the matter beyond doubt, in our respectful submission, is the passage which the Court of Appeal referred to from the decision of this Court in Mirror Newspapers v Harrison. If your Honours go to application book 18 in the trial judge’s reasons, the relevant passage is extracted and the Court of Appeal then refers back to this passage in its judgment. At paragraph 13, from the judgment of Justice Mason:

The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury . . . In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge . . . But this does not warrant the conclusion . . . that the person concerned is guilty.

That, in our submission, is exactly this case. The article goes on to make a point, as my learned junior points out . . . Mr Gatto was never charged. We make the same points in respect of the other imputations. If I deal quickly with how the court disposed of imputations (b) and (d). Your Honours will see that at paragraphs 62 and 63 – sorry, imputations (b) and (c).

GORDON J: I think they are dealing with (b) and (c), Mr Collins.

MR COLLINS: Yes. I am sorry. Imputations (b) and (c), that is:

the applicant is one of Australia’s most violent criminals; or . . . has been proven to have organised murders in the past.

One sees at the end of 62 the court saying:

we think, a matter capable of debate.

Then, in paragraph 63, at the end:

For the reasons we have given in relation to imputation (a), we are not persuaded that his Honour’s conclusion in relation to imputations (b) and (c) involved any error.

This is again, in our respectful submission ‑ ‑ ‑

EDELMAN J: Is your submission, Mr Collins, that basically what it comes down to is – I think it might be Lord Devlin’s statement in Lewis – whether the allegations of smoke have finally moved to an allegation of fire.

MR COLLINS: Yes. That is the way in which it was put below, correctly and responsibly, by our learned friends for the applicant. Neither the trial judge, nor the Court of Appeal were persuaded of that, and we would say, rightly so. The Court of Appeal was right to say that there are features pointing in both directions. In this article, that is undoubtedly true; there is smoke. But the article also repeatedly ties it back in a sober, not sensational way to an analysis of evidence which had been given in a confidential affidavit and other material before a court proceeding. Ordinary reasonable readers, we submit, would draw a sharp distinction between matters which were the subject of allegations before a court, and subjects which are assertions adopted by the media or reporting on findings of fact made by the court.

The court was – I might just say, in respect of the remaining imputations, (d), (g) and (h), our learned friend’s points are weaker, again, in respect of those three imputations because the Court of Appeal there was
quite clearly affirmatively satisfied that those imputations were not conveyed. One looks at 64 for example, at the end:

To arrive at these imputations, a significant amount of reading between the lines must be undertaken.

And 65:

Reading the article as a whole, we are not persuaded that the judge erred in failing to find that imputations . . . were conveyed by it.

Again, not the language of House v The King, but the language of the correctness standard. At 66:

We see no error in the judge’s analysis of whether imputations (d), (g) and (h) were conveyed . . . we are not persuaded there was any relevant error –

So, in our submission, the Court correctly identified the test that was subject of agreement between the parties; mused about the application of the House v The King standard but in a way that properly read as plainly obiter. Incidentally, the full Federal Court considered this judgment – we put this in our submissions in . . . . . earlier this year and characterised paragraph 52 as being obiter.

We say the court applied the standard which the parties agreed was the applicable standard, and there is no error requiring an intervention by this Court in circumstances where the article is plainly in the nature of a court report reporting on allegations made before a court, not matters of proven fact.

Unless we can assist further, those are our submissions.

GORDON J: Thank you, Mr Collins. Anything in reply, Mr Reynolds?

MR REYNOLDS: Yes, your Honours. As to the single meaning rule, my learned friend tries to drag everything back to the way this case was argued below, but it is clear, as has been put to my friend, that the scope of this rule – which is what this comes down to – was the central issue on that appeal.

The other thing is that the submission, as I said before, that was made on behalf on my client was made by reference to Readers Digest v Lamb, which is quoted at page 69 of the application book, and it is an impossible submission to say that that embraces the single meaning rule. Impossible. It does not mention anything about the single meaning rule. It is talking all about the attributes of the ordinary reasonable person. It says nothing about a single meaning or one meaning or of the tribunal of facts selecting a meaning. It says nothing about dominant. That is what this case will probably come down to, if leave is granted, whether that is the law or whether, alternatively, it is the single meaning rule.

There is a huge controversy about this. My learned friend said no controversy, but the submissions set out all of the different tests. The South Australian Full Court says there is no such rule, and there are very different tests that I took you to in chief that have been enunciated by the various Full Courts. We say there is no such rule, and we will be suggesting – if leave is granted – that Reader’s Digest v Lamb should be applied, and that it has nothing to do with the single meaning rule.

Your Honours will have noted, as to standard of review, that my learned friend ran a very, very long way in the way the reasoning of the Court of Appeal is put together, and that is because, if we go to the judgment again at paragraphs 60 through to 66, there is nothing here. Nothing there. The idea is that because in paragraph 61 the parties’ contentions or arguments are being put means that that reasoning is, we submit, manifestly unsustainable.

The whole point is that all the Court of Appeal is saying here, again, and again, and again, is “no error” – the language of House v The King – or, in paragraph 61, it was a reasonable decision. Come what may, the issue of the correct test will arise – for the reasons I said – in any event. That is a second issue which, inevitably, will arise on any appeal.

As to the strength of the case, my learned friend focused your Honours on this issue of hearsay statements. As I said before, this is a standard direction that is made in every defamation case to a jury where the article quotes a statement made by another person. We will submit that what I will call the Brennan/Devlin view is correct, and, on that basis, the imputation found in the headline is exactly the same as the imputation pleaded.

My learned friend says our case is not strong, and yet even the Court of Appeal conceded that it was very finely balanced. I respond – because I do not have time to deal with all of the imputations – just on imputation (d), to take another example which my learned friend focused on. We go to imputation (d), which is set out at the application book at page 96, that states – this is at paragraph 58, that “Mr Gatto was responsible for the murders of Victor Peirce and Frank Benvenuto”. These allegations are made in terms. There are specific references to Gatto organising the murder
of Peirce, specific references to him organising the murder of Benvenuto, and, finally, it is stated that the person who was convicted as the getaway driver was “another associate of Gatto”. There is not any doubt about that imputation, just as there is not any doubt about imputation (a).

Your Honours, this is an extremely strong plaintiff’s case, and I would ask your Honours to grant leave on the basis of this being a visitation case, and also because, inevitably, these four issues of law are involved. If the Court pleases, those are my submissions in reply.

GORDON J: Thank you, Mr Reynolds. The Court will adjourn momentarily to consider its position.

AT 11.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.18 AM:

GORDON J: In our opinion, any appeal would have insufficient prospects of success to warrant the grant of special leave. Special leave to appeal is refused, with costs.

Please adjourn the Court until 11.30 am.

AT 11.18 AM THE MATTER WAS CONCLUDED