Supreme Court of NSW|1998-02-04|Before: Mason P, Handley JA, Hunt CJ, Levine J

For the reasons which I gave in relation to the third issue, in my judgment the plaintiff has failed in relation to this issue also.

Each party has succeeded in the appeal in relation to one imputation but has failed in relation to the other imputation. As to imputation (g), the plaintiff succeeded upon only one of the two bases argued, a very different basis to that which was successful before Levine J, and then only after he had substantially amended the imputation. On the other hand, the defendant failed to object to the form of the imputations when the matter was heard by Levine J.

(1) The defendant's appeal is upheld in part, and the orders made by Levine J in relation to imputations (g) and (h) are set aside.

(2) Imputation (g) (as amended) will go to the jury.

(3) Imputation (h) (as amended) will not go to the jury.

(4) Each party is to pay his and its own costs both in the proceedings before Levine J (so far as they related to imputations (g) and (h)) and in the Court of Appeal.

[1] In fact, it was the dismissal by a single justice of the High Court of the plaintiff's application for an injunction pending the hearing of his application for special leave to appeal from the decisions of Levine J and of this Court refusing an injunction to restrain the defendant from telecasting this investigation: Levine J (29 April 1996, unreported); Court of Appeal (2 May 1996, unreported); Gummow J [1996] HCA 13; (1996) 136 ALR 243.

[2] There are four commercial breaks in the one hour "Witness" programme, each of approximately the same length. The two segments of the "The Dark Side", together with its own commercial break, last just on thirty minutes.

[3] The transcript as pleaded does not correctly record this passage.

[4] Crimes Act 1900, ss 78H-78Q.

[5] Prior to 1984, homosexual intercourse was unlawful whatever the age of the participants involved: Crimes Act, ss 79-80. The time frame within which the plaintiff is alleged to have had "sex" with boys is stated at different places to have been the 1970's and early 1980's (lines 78, 274), and the boys are described at one place as "the class of '74" (line 26).

[6] Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 190; Singleton v Ffrench (1986) 5 NSWLR 425 at 428.

[7] Saunders v Jones (1877) LR 7 Ch D 435 at 451; Rex v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 at 740; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664. Other authorities for this proposition are collected in Sims v Wran [1984] 1 NSWLR 317 at 321-322.

[8] Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155.

[9] Tarkanyi v Mirror Newspapers Ltd [1983] 2 NSWLR 688 at 699-706; Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 389-395; Morris v Newcastle Newspapers Pty Ltd (1986) 1 NSWLR 260 at 263-264; Whelan v John Fairfax & Sons Ltd (at 152-153).

[10] See Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported) at 3; Sinclair v John Fairfax & Sons Ltd (Court of Appeal, 4 March 1986, unreported) per McHugh JA (with whom Glass JA agreed) at 8-9; Singleton v Ffrench (at 433, 435).

[11] Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 at 138, 155, where my statement to that effect in Whelan v John Fairfax &Sons Ltd (at 155) was approved. The approach of this Court in the Drummoyne Municipal Council Case is now said to be "well settled": Rigby v John Fairfax Group Pty Ltd (Court of Appeal, 1 February 1996, unreported) per Priestley JA (with whom Meagher JA agreed) at 12 [SLAR [1997] HCA 46; (1996) 17 LegRep SL2a]. Kirby P, who had dissented in the Drummoyne Municipal Council Case, recognised in Rigby (at 1) that his earlier dissent had been to "no avail". The same approach has been taken by the Full Federal Court, in Bourke v State Bank of NSW (4 August 1995, unreported) at 24.

[12] (1990) 21 NSWLR 135 at 138-140, 154-155.

[13] Brewer's "Dictionary of Phrase and Fable"; "weasel word" is an expression of US origin, but it is very expressive when applied to a word which has both a more serious and a less serious meaning. See also "The Grand Panjandrim", Hook, at 151.

[14] The causa causans or the causa sine qua non.

[15] Jones v Skelton (1963) 63 SR 644 at 650.

[16] Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 733.

[17] Jones v Skelton (at 656); Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 372; Farquhar v Bottom [1980] 2 NSWLR 380 at 386; Lloyd v David Syme & Co Ltd (at 733).

[18] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551-552. The position may well be different in relation to an oral publication where witnesses have given evidence as to the manner in which the words were spoken and there was no electronic record taken, when the trial judge's findings of fact in relation to the manner in which the publication took place may assume some importance. Even then, however, the ultimate issue would still be for this Court to decide.

19 5th Edn (1984), by Prosser & Keeton, at 238. The earlier words quoted are taken from the judgment of Samuels JA in Parker v John Fairfax & Sons Ltd (Court of Appeal, 30 May 1980, unreported) at 16 [SLAR 5 September 1980, Legal Reporter Vol 1 No 6 at 6].

[20] Shirt v Wyong Shire Council [1978] 1 NSLWR 631 at 648, referring to the same statement in the 3rd Edn, at 209. The issue was more extensively discussed by this Court in Potter v Commonwealth (26 August 1980, unreported), per Moffitt ACJ at 1-3, Samuels JA at 3-4.

[21] Parker v John Fairfax & Sons Ltd (at 16).

[22] [1980] 2 NSWLR 380 at 386-387, referring to the same statement in the 4th Edn, at 308.

[23] "The Law of Defamation in Canada", Brown (2nd Edn, 1994), par 5.12.

[25] Defamation Act, s 7A. This merely reflects the common law: Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 745; Lewis v Daily Telegraph Ltd [1964] AC 234 at 259, 266 (HL); Jones v Skelton (at 650); Farquhar v Bottom (at 385); Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 302.

[27] Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7.

[29] Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577 at 586.

[30] Lewis v Daily Telegraph Ltd (at 260).

[31] Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 340.

[32] Capital and Counties Bank Ltd v George Henty & Sons (at 744, 771); English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 at 452-453.

[33] Morgan v Odhams Press Ltd (at 1254, 1269). The principles stated in these last two paragraphs - as encapsulated in Farquhar v Bottom (at 385-386) - have been adopted in this Court. See, for example, John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 708 at 719; Crampton v Nugawela (1997) A Torts R SS 81-416 at 63,867.

[34] Ibid (at 1270); Steele v Mirror Newspapers Ltd (at 373).

[35] Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd (at 1245); Steele v Mirror Newspapers Ltd (at 373); Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 at 641; Parker v John Fairfax & Sons Ltd (at 8).

[36] Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374 (CA).

[37] Gorton v ABC (1973) 1 ACTR 6 at 11; Brown v ABC (Hunt J, 4 May 1987, unreported) at 11.

[38] Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420.

[39] Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413.

[41] Wainer v Rippon [1980] VicRp 15; [1980] VR 129 at 135.

[42] Defamation Act 1974, s 8; "Defamation" LRC 11, par 34.

[43] Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (Pt 1) 223 at 235; Mirror Newspapers Ltd v World Hosts Pty Ltd (at 641-642); Mirror Newspapers Ltd v Harrison (at 301); Sergi v ABC [1983] 2 NSWLR 669 at 677; John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 719; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 455.

[44] Lewis v Daily Telegraph Ltd (at 259-260, 274, 286) (HL); Mirror Newspapers Ltd v Harrison (at 299-300).

[45] cf Lubrano v Gollin and Co Pty Ltd [1919] HCA 61; (1919) 27 CLR 113 at 118; Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 at 358.

47 [1964] AC 234 at 279-280: see Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 12.

49 Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 300.

[51] The phrase "reasonable cause" is substituted for "ground" at p 301.

[52] The cases referred to by the High Court are Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 and Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16.

[53] His first name is spelt "Leslie" in Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 95.

[54] However, in a hand written version of these words also shown, only Bevan and Westwood are named and there is no indication that any third man is named by Patrick Murphy. No doubt the reason for this discrepancy will be elucidated by interrogatories.

[58] "The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean" (at 374)(CA).

[59] David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 at 238; Knupffer v London Express Newspapers Ltd [1944] UKHL 1; [1944] AC 116 at 119, 123, 124.

[60] cf Knupffer v London Express Newspapers Ltd (at 124).

[61] The plaintiff's picture - together with that of the boy who appears in both parts of the investigation report - is included in those shown in the closing titles to the complete "Witness" programme, but the defendant's assertion is correct.

[62] (cf the plaintiff's earlier statement "I have never had sex with anyone under age" - line 111.)

[63] There appears to be some corruption in the transcript of the last paragraph.

[64] Lewis v Daily Telegraph Ltd (at 259-260, 274, 286).

[65] Mirror Newspapers Ltd v Harrison (at 299-300).

[66] Film of Les Murphy is shown on the screen during the words "in others he fathered appalling violence" (line 351).

[67] Morgan v Odhams Press Ltd (at 1243-1244, 1253-1254, 1258-1259, 1265).

Broadcasting Act 1942

Amalgamated Television Services v Marsden Matter No 40005/97 [1998] NSWSC 4 (4 February 1998)

Wainer v Rippon [1980] VicRp 15; [1980] VR 129 followed

Lubrano v Gollin & Co Pty Ltd [1919] HCA 61; (1919) 27 CLR 113; Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353; Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9; Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620 followed

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 referred to

Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 followed

Amalgamated Television Services v Marsden Matter No 40005/97 [1998] NSWSC 4

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Amalgamated Television Services v Marsden Matter No 40005/97 [1998] NSWSC 4 (4 February 1998)