Brian Stanley Fisher v Channel Seven Sydney Pty Ltd

EX TEMPORE Judgment (REVISED) 1HIS HONOUR: The Court must deal with issues arising in relation to the addresses of counsel and the directions to be given to a jury in these defamation proceedings. The first issue relates to the availability of the defence of comment and is the effect of a film purporting to show the plaintiff driving whilst using a mobile phone in circumstances where the film does not, in fact or in truth, relate to an occasion when the bus, said to be driven by the plaintiff, was in motion. 2Counsel for the plaintiff suggests that in circumstances where the film inaccurately purports to disclose the plaintiff utilising a mobile phone whilst driving, the film depicts an untrue state of facts and the facts upon which the alleged comment for which the defendant agitates have not, therefore, been stated in the publication. 3I have been taken to the judgment of the High Court in Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 and in Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245. In Pervan, the majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) were of a different view to the expressed by McHugh J on this question, or may have been of a different view in this respect. 4In Pervan, McHugh J seems to have suggested that the rule that the facts must be stated in order for the defence of comment to arise does not apply as strictly as one would suggest (Pervan, at 340). The reasons for judgment of McHugh J indicates that the rule as it applies to plays, sporting events and book reviews may apply more generally. The majority were not of that view. 5Further, the High Court (Gleeson CJ and the plurality of Gummow, Hayne and Heydon JJ) in Manock made it clear that the majority in Pervan was the preferred approach and that it was necessary for the facts to be stated in the publication or broadcast in order for the defence of comment to arise or be capable of arising. 6Having stated that principle, which was a matter of some debate before the Court, and coming to the clear view that the facts must be stated in the broadcast, the facts stated, in this matter, upon which the alleged comment or opinion is said to be based, is that the plaintiff used his mobile phone whilst driving. That is the fact upon which the comment is said to be based. That fact, that the plaintiff used his mobile phone whilst driving, was stated in the broadcast. 7The facts stated may be proved to be true by extrinsic evidence. In other words, the facts upon which the comment is said to be based must be stated in the broadcast, but the evidence proving the truth of those facts does not need to be stated. 8The circumstance, which I accept, that one of the films, what has been called "the red shirt film", depicted in the broadcast, has the plaintiff speaking on the phone while the bus is stationary is not the relevant fact. It is evidence of the fact, and, therefore, the circumstance that the film in question does not of itself prove the truth of the imputation or opinion does not detract from the availability of the argument that it is opinion. The defendants do not have to prove the truth or accuracy of the film. 9The second aspect of the matters to be dealt with by way of address and/or directions was the issue relating to whether the contextual imputation must be "additional" and not one that is otherwise contained within the Statement of Claim. 10While I consider that the inability to use an imputation pleaded by the plaintiff that is proved to be true as a means of mitigating the damage and proving contextual truth is counter-intuitive, I have been taken to the judgment of the Court of Appeal in Besser v Kermode [2011] NSWCA 174; (2011) 282 ALR 314 in which, McColl JA (with whom Beazley and Giles JJ agreed) said: "[78] This markedly different language highlights the sea-change the 2005 Act has wrought to defamation law in this state. Although s 26 created a new defence for all Australian jurisdictions other than this state, it is framed by s 8 in terms of the common law cause of action. A defence of contextual truth must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings: see [47] above. Thus s 26 postulates that the defence of contextual truth must carry contextual imputations "in addition to" those "of which the plaintiff complains". [79] Second, when the tribunal of fact comes to the weighing exercise the contextual truth defence entails (see [73] and s 26(b)) it must be able to conclude that because of the substantial truth of the contextual imputations "the defamatory imputations" - that is to say the plaintiff's cause of action - do not further harm the plaintiff's reputation. One again the focus is on comparing the defendant's contextual imputations with the plaintiff's cause of action. [80] Third, the use of the definite article in both subparagraphs of s 26 (the defamatory imputations) focuses attention on the plaintiff's imputations as a group - emphasising that the defence has to respond to all the plaintiff's imputations (cause of action). In contrast, s 16 of the 1974 Act used the indefinite article, directing the defence to "any imputation complained of", thus permitting the pleading-back of any other of a plaintiff's imputations to another. [81] Fourth, the words "in addition to", as the primary judge pointed out at [38] and [40], correctly in my view, cannot be "contorted to include imputations pleaded by the plaintiff". To conclude that the phrase "in addition to ... etc" connotes an imputation the plaintiff has not relied upon does no more than ascribe its ordinary meaning to it. This is reinforced by the use, in the same paragraph (s 26(a)) of further alternative language emphasising the distinction between the plaintiff's and the defendant's imputations: "one or more other imputations", the latter being defined as the "contextual imputations". Kaye J took the same approach to the construction of s 26 in the Defamation Act 2005 (Vic) in Newnham v Davis (No 2) [2010] VSC 94 at [48] - where the point presently under consideration did not arise. [82] Finally, I do not discern any legislative intention in the extrinsic materials to which I have referred that the s 26 defence was to continue the pleading-back practice which prevailed under s 16 of the 1974 Act. Rather, in my view, the structure of the 2005 Act and the language of s 26 belie any such intention. The New South Wales Attorney-General said, in the second reading speech to the Bill which became the 2005 Act, in reference to cl 26 that there would be a defence of contextual truth under the 2005 Act, that there had been one under the 1974 Act and that "[t]he purpose of the defence [was] basically to prevent plaintiffs from taking relatively minor imputations out of their context within a substantially true publication". That position is still open under s 26." 11My view is that the Court of Appeal, with great respect to them, is correct. The terms of s 26 of the Defamation Act are crafted in a way that requires the imputation to be "additional", that is, beyond that about which the plaintiff complains. 12The foregoing arises because of the way in which the Defamation Act has been framed. Indeed, that is the basis upon which the Court of Appeal came to its conclusion. 13The notion that such an approach is counter-intuitive is best exemplified by the example used in addresses already, namely, if a person were alleged to be a murderer who stole $20 and the plaintiff complained of two imputations, one that he was a murderer; and two, that he was a thief. If the defendants were to prove the truth of the murderer imputation, that imputation could not then be used as contextual truth to overcome the effect of the untrue imputation, namely, that the plaintiff had stolen $20. I have to say such a result is irrational and, frankly, seems to arise from a mistake in the legislative drafting. 14Nevertheless, the legislation is clear and I am bound by the judgment of the Court of Appeal to that effect. 15Lastly, the issue that was raised relates to how one deals with the effect of an alleged contextual imputation as against imputations that have not been proved to be true. This was the subject of discussion by the Court of Appeal in John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541. The Court of Appeal judgment in Blake concerned an application in relation to a pleading and was, therefore, a decision that dealt with the issues under s 16 of the Defamation Act at an interlocutory stage. 16In the course of the judgment at [5], Spigelman CJ, with whom Rolfe AJA agreed said: "[5] Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a 'matter of substantial truth'. It is 'by reason' of such 'substantial truth' that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not 'further injure the reputation of the plaintiff'. For purposes of determining whether the s 16 defence is capable of being madeout, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself." 17On the other hand, in the reasons for judgment of Hodgson JA, his Honour said: "[61] In his judgment in this case, Spigelman CJ has taken the view that s 16(2)(c) does not require 'weighing imputation against imputation': rather, the court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation itself. In my opinion, the use of the words 'further injure' in s 16(2)(c) precludes this approach: the reputation of the plaintiff is not in fact injured at all by the facts, matters and circumstances in question, but only by the publication carrying the contextual imputation; so in my opinion it is a matter of weighing imputation against imputation. In my opinion, the true effect of the matters relied on by Spigelman CJ is as I have stated (at 556 [58] supra). I would add however that substantial justice is achieved by both approaches: in the case of my approach, by ensuring that thecontextual imputation states the relevant facts, matters and circumstances fairly and precisely; and in the case of his approach, by weighing injury directly against the relevant facts, matters and circumstances themselves." 18The difference between their Honours is important in circumstances where one is considering, as were the Court of Appeal, whether a contextual imputation arises and the defence can be made out. It is of less importance in dealing with the final decision. I add that the dissenting judgment of Hodgson JA, even on the interlocutory aspect, is compelling. 19The matter was the subject of discussion by the Court of Appeal in Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477 in which the Court commented, at [31] and following: "[31] Some care must be taken in the application of Blake: there the imputations relied upon to give the context were not those pleaded by the plaintiff. Further, the matter was dealt with pre-trial, as a pleading point: namely, by asking whether the defendant's proposed contextual imputations were capable of providing a defence to the plaintiff's imputations. [32] In the present case, there was no dispute that, in principle, establishing the substantial truth of one or more of the appellant's imputations (b)-(g) could have the effect that neither of imputations (h) or (k) would further injure the appellant's reputation. In other words, the broadcaster did not need to establish substantial truth of all of (b)-(g) in order to succeed on contextual truth with respect of (h) and (k): success would depend upon weighing the injury to reputation of those proved to be substantially true, against any injury flowing from (h) and (k). [33] So far as concerned the basis on which the weighing exercise was to be carried out, the broadcaster accepted that it was necessary to look at the matters relied upon to establish the substantial truth of the contextual imputation(s), which were to be weighed against the injury to reputation caused by the particulars supporting the other imputations. The appellant accepted that what needed to be compared were not the imputations themselves, but the particulars behind them: Tcpt, 10/04/13, p 54(5-20). He did not suggest that the exercise proposed by the broadcaster was inapt. Accordingly, the issue does not require to be addressed further." 20Ultimately, the Court in Trad found it unnecessary to deal with the issue finally, because of the agreement between the parties as to the approach to be taken. 21In the application of the principles, the difference between the approach of his Honour the Chief Justice and that of Hodgson JA in Blake will make little or no difference in this case. 22In McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224, McCallum J recited the direction to be given. With great respect to her Honour I do not disagree with anything that her Honour there says. Nor do I disagree with the direction given. However, comparing facts, matters and circumstances that establish the contextual imputations, on one hand, with the plaintiff's defamatory imputations, on the other, is not a comparison that is the end of the matter. To what end and for what purpose are they compared? In that respect one must look at the effect of the facts, matters and circumstances and the effect of the imputation. 23In each case it is the effect on the reputation of the plaintiff that is examined in order to determine the relative harm done by the untrue imputations pleaded as against the contextual truth, or vice versa. 24It is those rulings with which I will seek to deal, as simply as possible, in the directions to the jury.