Fairfax Media Publications Pty Ltd (ACN 068 675 221) Lahey, and Fairfax... [2012] ACTCA 36 | Case summary | Zoe

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Fairfax Media Publications Pty Ltd (ACN 068 675 221) Lahey, and Fairfax Printers Pty Ltd (ACN 068 675 221) v Cummings [2012] ACTCA 36

[2012] ACTCA 36

Court of Appeal (ACT)|2012-08-24

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Court of Appeal (ACT)

Decision date

2012-08-24

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Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

FAIRFAX MEDIA PUBLICATIONS PTY LTD (ACN 068 675 221), KATE LAHEY and FAIRFAX PRINTERS PTY LTD (ACN 068 675 221) v ANTHONY CUMMINGS

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD (ACN 087 887 456), THE AGE CO LTD (ACN 004 262 702) v ANTHONY CUMMINGS and ANTHONY CUMMINGS THOROUGHBREDS PTY LTD (ACN 116 873 271)

[2012] ACTCA 36 (24 August 2012)

APPEAL AND NEW TRIAL – In general and right of appeal – Application for leave to appeal from interlocutory judgment – General principles.

APPEAL AND NEW TRIAL – In general and right of appeal – Application for leave to appeal from interlocutory judgment – Refusal to consolidate proceedings – Defamation – Statutory cap on damages – Whether multiple proceedings abuse of process – Where imputations virtually identical – Where parties in separate proceedings part of the same corporate group – Effect of amendments to Civil Law (Wrongs) Act 2002 (ACT) on common law following Thompson v Lambert – Whether Civil Law (Wrongs) Act 2002 (ACT) s 133 determinative.

APPEAL AND NEW TRIAL – In general and right of appeal – Application for leave to appeal from interlocutory judgment – Refusal to consolidate proceedings – Defamation – Prospects of success on appeal – Central to the question of leave – Referral to full bench.

APPEAL AND NEW TRIAL – In general and right of appeal – Application for leave to appeal from interlocutory judgment – Refusal to strike out imputations – Whether trial judge erred in finding matters capable of carrying relevant implications – General principles – Test on application –Imputations that may be conveyed by publishing allegations in civil pleadings depend on context – Issue properly determined by trial judge – Appellate intervention inappropriate unless necessary to ensure fair trial – Insufficient prospects of success on application – Application refused.

Civil Law (Wrongs) Act 2002 (ACT), ss 120, 133, 135, 139F, 139I

Human Rights Act 2004 (ACT), s 21

Supreme Court Act 1933 (ACT), s 37E(4), 37J

Defamation Act 2005 (Vic), s 23

Handley, K A, Spencer Bower, Turner and Handley: The Doctrine of Res Judicata (Butterworths, 3rd ed, 1996)

A Goninan & Co v Atlas Steels (Australia) Pty Ltd [2003] NSWSC 956

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

On 25 February 2010, a story said to refer to Mr Anthony Cummings, the respondent in proceedings ACTCA 53 of 2011 and the first respondent in proceedings ACTCA 54 of 2011, and which Mr Cummings says was defamatory of him, was said to be published in various places in Australia.
It was said to be published in various forms in different media. The Statements of Claim in the two proceedings in the Supreme Court, in respect of which the applications presently before me have been taken, say that the first and second applicants in proceedings ACTCA 53 of 2011 published the story in a newspaper, “The Sydney Morning Herald”, that the first and third applicants in those proceedings published a poster which advertised the story and that the first applicant in proceedings ACTCA 54 of 2011 published it on various websites and that the second applicant in those proceedings published it in a newspaper, “The Age”.
The second respondent in proceedings ACTCA 54 of 2011 is a company which is apparently related to Mr Cummings, said to trade under the name “Cummings Thoroughbreds”. I shall refer to it as the Cummings Company. It claims also to have been defamed by the publications referred to in these proceedings.
I shall, for convenience, refer to the applicants collectively as the Fairfax parties and the proceedings in this Court as “the Proceedings” or, if either must specifically be mentioned, as “Proceedings No 53” or “Proceedings No 54”. For convenience, Proceedings No 53 and Proceedings No 54 are being heard together.
In the proceedings in the Supreme Court from which Proceedings No 53 have been taken, Mr Cummings is the plaintiff and the three applicants in Proceedings No 53 are the defendants. I shall refer to those proceedings, where necessary, as “Supreme Court Proceedings No 412”.
In the proceedings in the Supreme Court from which Proceedings No 54 have been taken, Mr Cummings and the Cummings Company are the plaintiffs and the two applicants in Proceedings No 54 are the defendants. I shall refer to these proceedings, where necessary, as “Supreme Court Proceedings No 411”. Collectively, I shall call both proceedings in the Supreme Court as “the Supreme Court Proceedings”.
Supreme Court Proceedings No 411 and Supreme Court Proceedings No 412 are both actions to recover damages, interest and costs for defamation said to be constituted by the publication of the story in its various forms. The Statement of Claim in the former seeks additional orders.
Neither of the Supreme Court Proceedings has progressed very far. Statements of Claim have been filed and served and Notices of Intention to Respond filed and served in each matter.
Thereupon, applications were made by the Fairfax parties to the Supreme Court in the Supreme Court Proceedings for orders that they be consolidated and that certain imputations in the Statements of Claim be struck out.
Those applications came before an additional judge of the Supreme Court on 16 September, and 4–5 October 2011. On 18 November 2011, both applications were dismissed: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2011) 6 ACTLR 40.
There is no doubt that such decisions as were then made were interlocutory decisions; they did not finally dispose of the rights of the parties, the test commonly applied, as set out in decisions such as Licul v Corney (1976) 180 CLR 213 at 220, 225; Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 at 248, 253–4; Bienstein v Bienstein (2003) 195 ALR 225 at 230; [25]; Re Luck (2003) 203 ALR 1 at 2; [4]. As a result, the applicants required, and have applied for, leave to appeal under s 37E(4) of the Supreme Court Act 1933 (ACT).
I have discussed at some length the approach of the Court to applications for leave to appeal from interlocutory decisions in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 and do not need to rehearse that consideration. In that case, I said (at 52; [28]–[29]): It would appear, therefore, that the principles with which a Court approaches the decision as to whether to grant leave are: (a) that leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases; (b) that a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion; and (c) that decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave. It may be that these principles should be applied more liberally in the light of s 21 of the Human Rights Act 2004 (ACT) which expresses the right to a fair trial since an error in the interlocutory decision may have the effect of derogating from the fairness of the trial.
I went on to consider how these principles had been dealt with by the courts and, by way of summary, add: (d) the party seeking leave bears the onus of satisfying the Court of the necessary criteria to justify the grant of leave; (e) the Court will ordinarily grant leave where the decision is wrong and prejudice (sometimes referred to as “substantial prejudice”) will be suffered by the appellant; (f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is “attended with difficulty and [its] correctness is open to dispute” (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and (g) it may be a factor favouring the grant of leave that: (i) the decision involves a matter of public importance; or (ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
I shall apply these principles. The applications
The applications involve a challenge to the decision in respect of both matters, the refusal to order consolidation and the refusal to strike out the imputations.
I shall deal with each in turn. Consolidation of the Supreme Court proceedings
The articles containing the story in both newspapers are very similar, though there are some editorial differences as is shown in Annexure A to the reasons for judgment of the Supreme Court. The Court held (at 50; [46]), that “there is a commonality between the two proceedings with regard to one of the publications only”, that is the publication in the two newspapers.
The publications on the various websites, however, contained, in terms used in the Statements of Claim, the same “sense and substance” as the newspaper articles, as shown by the fact that the imputations said to arise from each of the publications (other than in respect of the posters) were virtually identical, with some slight variations, no doubt the result of the editorial variations in the various publications.
That there are some variations may not matter, for, as Hodgson JA, with whom Beazley JA and Brownie AJA agreed, said in The Age Corporation Ltd v Beran [2005] NSWCA 289 at [49]: I accept that it can be an abuse of process for a plaintiff to seek to re-litigate, even against a different party, issues decided against that plaintiff. For example, if the plaintiff now brought proceedings against the author of the articles, or against some distributor of The Sydney Morning Herald, in respect of publication of the material in The Sydney Morning Herald, I believe that would be an abuse of process, even if the plaintiff sought to plead the imputations a little differently.
The parties were different in each case, though the applicants say that they are relevantly related. The respondents submitted that this was not proved by evidence before the Supreme Court, a position challenged by the applicants, though there were certainly statements made in the Supreme Court’s judgment which can reasonably be interpreted as showing that his Honour accepted that the applicants, save for the author of the article said in the Statement of Claim to be an employee or agent of the first applicant in Proceedings No 54, to be related companies, part of the same corporate group (see, eg, at 45–46; [16], 51; [50]) .
The nub of the applicant’s case is that Mr Cummings, by taking two proceedings against what are at law different publishers, though they were part of the same corporate group, in respect of what is in substance the same publication, was attempting to circumvent the cap on damages which is to be found in s 139F of the Civil Law (Wrongs) Act 2002 (ACT). This section, relevantly, provides: (1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded. (2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
Since, say the applicants, there are now two sets of proceedings, Mr Cummings is able to seek $500 000 instead of $250 000 for, essentially, the publication and republication of the one story. That, the applicants submit, is an abuse of process as it attempts to circumvent the legislative policy that is manifest by the section.
The applicants further say that the learned Trial Judge was in error when he considered that the question was resolved by application of s 133 of the Civil Law (Wrongs) Act, which provides: If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.
The applicants accept that this section does not apply directly to these proceedings; “the same defendant” does not include different legal entities even if within the same corporate group. That, the applicants submit, does not end the enquiry that the learned Trial Judge was required to undertake.
The question was not whether s 133 was infringed, but whether the circumstances of the case amounted to an abuse of process, somewhat different to the abuse of process which was addressed in s 133, though that section was a manifestation of the policy which underpinned the relevant abuse of process.
As the applicants put it in the written submissions of Mr T D Blackburn SC, who appeared with Mr A T S Dawson, for the applicants: According to those general principles, although not prohibited by section 133, it is also an abuse of process for a plaintiff to maintain separate proceedings in respect of the same publication against, for example: (a) The company which owns the masthead; (b) The company which prints the masthead; (c) The company which operates the websites; (d) The journalists; (e) The editor; (f) The editor in chief; and (g) The sub editor who settled the final form of the article. Accordingly, it is an abuse of process if a plaintiff is permitted to divide Fairfax up into defendants as the plaintiffs seek to do here in order to maintain a number of different actions in respect of the same article published in separate Fairfax publications, against a number of defendants who are different for legal purposes but all from or related to the same publisher. ... In short, section 133 does not, and does not purport to, cover the field of potential abuses of process where a plaintiff commences a multiplicity of actions in respect of the same or similar matter. So to constitute the proceedings amounts to an abuse of process, quite independently of section 133. The fact that section 133 is not infringed is not determinative, as the learned primary judge apparently held.
The applicants submitted that the abuse arose because there were two actions commenced in relation to the same subject matter by what should be regarded as the same defendant, not in the sense in which it is used in s 133 (though there may be a case for extending it in this way, but that is for another day), but in the sense that it was used in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, where it was used to encompass, as in Meckiff v Simpson [1968] VR 62, for example, the author and writer, the printer and publisher and the publisher and distributor.
The principles, as enunciated by McColl JA, with whom Giles and Campbell JJA agreed, in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [141], is that where there is multiple publication of defamatory matter, a person defamed has a “complete remedy” in one proceeding and it is an abuse of process to divide the remedy by bringing separate proceedings where the plaintiff seeks to sue the “same defendant” (in the sense used in Haines v Australian Broadcasting Corporation), being those principally responsible for publishing the same publication.
As Gleeson CJ, McHugh, Gummow and Hayne JJ observed in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 604; [36]: Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata [Jackson v Goldsmith (1950) 81 CLR 446], issue estoppel [Blair v Curran (1939) 62 CLR 464], and what has come to be known as Anshun estoppels [Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589], all find their roots in that policy. ... Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel. For the application of the “well-established principles preventing vexation by separate suits” in the defamation context, see, eg, Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 100–2; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 537; Meckiff v Simpson at 65; and Thomson v Lambert [1938] 2 DLR 545.
This is, the applicants urge, consistent with s 120 of the Civil Law (Wrongs) Act, which provides: A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than 1 defamatory imputation about the person is carried by the matter.
In addition, the applicants relied on the fact that the proceedings could also be considered to offend what has become known as “Anshun estoppel”, established in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and so-called after the High Court decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, that all relevant issues should be brought in one proceeding and not prosecuted serially. This will apply even if the parties in the two proceedings are not the same: Habib v Radio 2UE Sydney Pty Ltd at [83] and the cases there cited.
Such an abuse of process, where the parties are not the same, was established in Reichel v McGrath (1889) 14 App Cas 665 and applied in Australia in cases such as Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 at 201–2; [15]–[16], as well as being applied in the defamation context in Haines v Australian Broadcasting Corporation. See also Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175 at 193–4; [33] and the cases there cited.
That such claims as had here been made in the separate proceedings should properly be brought in the one proceedings was, it was submitted by the applicants, made clear by the Canadian decision in Thomson v Lambert. That decision had been followed in Australia in, for example, Habib v Radio 2UE Sydney Pty Ltd. To bring separate proceedings was an abuse of process which the courts would not allow to proceed, either by a stay or by consolidation.
In Rippon v Chilcotin Pty Ltd, Handley JA, with whom Mason P and Heydon JA agreed, followed the approach taken by Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports ¶81-423 (64,077), in accepting what his Honour said should be “amongst the matters to which regard may be had” when considering whether there was such “oppression and unfairness to the other party to litigation and concern for the integrity of the system of administration of justice” as to warrant finding an abuse of process for re-litigating the same issue. These matters were: (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ... (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
In support, the applicants submit that the indicators of abuse of process in the present proceedings are: (a) the articles sued on in the two proceedings are in substance the same; (b) the imputations pleaded are the same each time the article is sued on; (c) the defendants to each are all related; and (d) there is the possibility of inconsistent findings between the proceedings in relation to the same subject matter – a consideration which is central to many categories of abuse of process.
They go on to add: Indeed, it may be concluded that any one of the three characteristics of abuse of process are identified by the High court in the Batistatos v RTA at [14] and by McColl JA in Habib at [78] are exhibited by the plaintiff’s proceedings: (a) the invoking of a Court’s processes for an illegitimate or collateral purpose – the attempt to avoid the damages cap; (b) the use of the Court’s procedures would be unjustifiably oppressive to a party – the defendants face a number of different proceedings and lose the benefit of the limitation of liability the damages cap achieves; or (c) the use of the Court’s procedures would bring the administration of justice into disrepute – on any view, permitting the proceedings remaining in the current form allows the Court’s processes to be used to avoid the legislative restriction which was enacted as part of a wider reform of the laws of defamation.
Finally, following Buckley v Herald & Weekly Times Pty Ltd (2009) 24 VR 129 at 131; [8], the applicants submit that where the subject matter is different, separate actions may be maintained, but that where, as here, the subject matter is effectively the same, the policy of the Civil Law (Wrongs) Act in ss 120, 135, 139F and 139I would require an application of the abuse of process doctrine to require that the proceedings be consolidated.
The error identified by the applicants in the decision of the learned Trial Judge was that his Honour considered that s 133 was decisive and that his Honour failed to consider the issue of abuse of process in the context of the Act as a whole and the common law.
The respondents submit that there was no error in the decision of the Supreme Court and that his Honour correctly applied the provisions of the Act and the common law. Mr T K Tobin QC, who appeared with Ms S Chrysanthou for the respondents, submitted that his Honour had dealt with the issue of abuse of process when he said at 50; [49]: The defendants argue that despite the plaintiffs following s 133 to the letter, and not suing on the same articles and against the same defendants, the proceedings should be struck out as an abuse of process. However, the Court considers that the legislature has explicitly set out the circumstances where a plaintiff cannot institute more than one defamation proceeding in s 133 of the Act. The Court considers the defendants’ proposal would extend the operation of s 133 of the Act beyond the intention of the legislature.
The respondents further submit that they have at all times acted within the terms and spirit of s 133 of the Civil Law (Wrongs) Act, in a manner which was supported by Buckley v Herald and Weekly Times Pty Ltd, so that there was no question of abuse of process.
It may be accepted that, in Buckley v Herald and Weekly Times Pty Ltd, the Victorian Court of Appeal held that the result that there would be a reduction in maximum damages available to the plaintiff from $500 000 to $250 000 by the consolidation in that case of two proceedings each subject to the cap on damages was a serious prejudice to the plaintiff and that, if the plaintiff satisfies the legislation (there Defamation Act 2005 (Vic) s 23; here Civil Law (Wrongs) Act s 133), then a plaintiff is “prima facie entitled to the benefit” of the maximum cap for each of the separate proceedings.
The cases of Thomson v Lambert and Habib v Radio 2UE Sydney Pty Ltd were not applicable, the respondents contended, as they have been overtaken by the legislation. In any event, there was no evidence that each of the applicants were “principally responsible for publishing the same publication” so as to fall within the relevant notion of the “same defendants”.
The Supreme Court proceedings, it was submitted, were perfectly appropriately separated. Supreme Court Proceedings No 412 concerned what the respondents called the primary publishers while Supreme Court Proceedings No 411 concerned those concerned with republication. Both, of course, were responsible for the defamation, if proved, as is clear from Webb v Bloch (1928) 41 CLR 331 at 364–5, but as principals and in separate capacities.
Thus, as Handley JA, with whom Stein and Santow JJA agreed, held in Harris v 718932 Pty Ltd (2003) 56 NSWLR 276, an action for a distinct republication of a libel is not in respect of the same damage as that suffered as a result of an earlier publication and is not barred either by the doctrine of res judicata or abuse of process or the then applicable legislation.
As there were separate publications, Mr Tobin submitted, there could not be a complete remedy in the one proceedings and so it could not be seen as an abuse of process. For example, the billposter, part of Supreme Court Proceedings No 412, was and could not be part of the other proceedings.
Thus, he submitted, there was no abuse of process.
In addition, the respondents relied on the decision of the Victorian Court of Appeal in Buckley v Herald and Weekly Times Pty Ltd to show that there was prejudice to the plaintiffs were consolidation to be ordered. The Court there followed Cameron v McBain [1948] VLR 245 where Herring CJ held (at 248) that where the plaintiff would be prejudiced by the order for consolidation, such an order should not ordinarily be made. That prejudice would include a reduction in the damages available to the plaintiff: A Goninan & Co v Atlas Steels (Australia) Pty Ltd [2003] NSWSC 956 at [11], [42], [43], [59].
As the real purpose of the order for consolidation, fairly and frankly accepted by the respondents, is to limit the damages, this is a prejudice which the Victorian Court of Appeal accepted in Buckley v Herald and Weekly Times Pty Ltd militated strongly against consolidation. The decision of the Supreme Court was, accordingly, right. Consideration
This matter is one of not insignificant importance. While Buckley v Herald and Weekly Times Pty Ltd has explored one aspect of the issue, it has not resolved the whole spectrum of whether the changes to defamation law have rendered the principles in Thomson v Lambert now irrelevant or inapplicable.
It is true that the publications were somewhat different, but in sense and substance the same and the imputations almost identical. Had the publication been by the same corporate entity s 133 would easily have answered the question. Where, however, the publication is by separate corporate entities within one corporate group where all are related it is not an easy question as to whether the principles of abuse of process applied and, if so, continue to apply. It is also of some public importance in defamation proceedings.
I have to say that it is by no means clear to me that the amendments made to the Civil Law (Wrongs) Act on 23 February 2006 did abolish the principles in Thomson v Lambert as followed in Australia since then. That is a matter of some difficulty. The arguments for both parties are strong.
There is no doubt that the applicants will be significantly prejudiced if the decision of the learned Trial Judge is wrong and the proceedings should have been consolidated and the damages limited to the one amount under s 139F. Of course, as I have noted, the respondents would similarly be prejudiced by an order for consolidation.
Though the question of consolidation is a matter of discretion, there is no doubt, the applicants argue, and there is a basis for this argument, that his Honour acted in the exercise of that discretion on a wrong principle, namely that s 133 was determinative of the issue.
Thus, the matters favouring a grant of leave to appeal on this ground are made out, save for the question of the likelihood of success of the appeal. That is a central question and it seems to me that it is a question of such difficulty and so finely balanced that I should not decide the question of leave to appeal myself.
While under s 37J of the Supreme Court Act 1933 (ACT), a single judge may determine an application for leave to appeal, it is clear that the full court of three judges has concurrently that power.
In this case, the grant of leave is, since the other matters to be considered are satisfied and were not in contention in the hearing, entirely dependent on whether there is a prospect of success. It seems to me that it should be decided by the full bench as on appeal. That such a reference can be made is decided in Director of Public Prosecutions v Iacuone [2012] ACTCA 23. In that case, I said that I had not been able to find a precedent in this Court for such an order. Such an order was, in fact, earlier made in Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34 at 35; [2]. It requires the Court, of course, to consider the issues of whether leave should be granted and, if so, to decide the appeal.
In respect of this issue, I shall make the appropriate order. Imputations
The second issue agitated by the applicants is the refusal of the learned Trial Judge to strike out certain of the imputations.
The substance of the relevant imputations was succinctly described by his Honour as follows (at 51; [55]): The gravamen of this application lies in the defendants’ submission that such imputations are predicated upon the basis that the plaintiffs had in fact engaged in the conduct complained of, and were accordingly liable for or ‘guilty’ of the matters referred to in each of the alleged defamatory publications. The defendants submit that the published articles do no more than report on the content of the pleadings filed in the Supreme Court of New South Wales and thus cannot leave a reasonable reader with the impression that the plaintiffs have actually engaged in the conduct set out in the pleadings.
The challenge to the imputations is not, of course, that the matters complained of did not in fact carry the imputations; that is a matter for trial and not for an interlocutory application. The challenge was that they were incapable of carrying the relevant implications.
The test on such an application has been authoritatively stated by Hunt CJ at CL, with whom Mason P and Handley JA agreed in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164–7. Those principles were summarised by Tobias JA, with whom Sheller JA and Young CJ in Eq agreed in Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 as follows (at [18]–[20]): Pursuant to s 7A(1) of the Defamation Act 1974 (the Act), the primary judge was required ‘to determine whether the matter complained of is reasonably capable of carrying the imputations pleaded by the plaintiff.’ By s 7A(2) of the Act if the court determines that the matter is not reasonably capable of carrying the imputation pleaded, it is required to enter a verdict for the defendant in relation to that imputation. The principles applicable to the correct approach of the primary judge and this Court to the issue posed by s 7A(1) were authoritatively stated by Hunt CJ at CL, with whom Mason P and Handley JA agreed, in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167. Relevantly for present purposes, those principles may be summarised as follows: (a) Section 7A(1) of the Act is declaratory of the common law, namely, that the issue of the capacity of the matter complained of in a defamation action was properly described as the task of deciding whether it would be open to the jury in the particular case to find that ordinary reasonable readers would have understood the matter complained of, when read as a whole, in the defamatory sense pleaded. (b) On any appeal, this Court is required to independently come to the conclusion as to whether there is a case to go to the jury. (c) If reasonable persons may differ as to whether the matter complained of was capable of carrying the imputation pleaded, then the issue must be left to the jury; otherwise, it is a matter for the court. (d) The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it; in deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; accordingly, any strained or forced or utterly unreasonable interpretation must be rejected. (e) The ordinary reasonable reader is a person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal. However, that person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs. (f) The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader. (g) The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. (h) There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual. (i) There is a distinction to be drawn in the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded. The distinction is between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said: it is the former approach, not the latter, which must be adopted. Although in dissent as to the result, the foregoing principles were re-stated by McHugh J in John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 where his Honour observed (at 1161 [26]) (omitting citations): However, although a reasonable reader may engage in some loose thinking, he or she is not a person ‘avid for scandal’. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If ‘[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together’. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. See also Callinan J, with whom Gleeson CJ agreed, at 1699 [181] (emphasis in original).
It is, of course, necessary for this decision that the Court consider the whole of the matter complained of and the context in which it appears. As Lord Devlin said in Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 at 285: [I]t is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done.
The applicants point out that a report that a person has been arrested and charged cannot without more convey an imputation that a person is guilty of the offence the subject of the charge: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. They then submit that there is no difference in principle between that and a report of an allegation in the pleadings in a civil case.
In this, the applicants rely on Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 (Ross McConnel Case) at 850; [24], where Hunt J said as much. His Honour went on to say (at 850; [25]): [W]here the context of the report of an allegation in a pleading is that the allegation is denied and that its truth has yet to be determined by a trial, the report as a whole is, in my view, incapable of conveying the imputation that the plaintiff is guilty of the allegation reported. Each case will, of course, depend upon the context in which that allegation is reported.
The matters complained of, submit the applicants, contained reports of allegations made in the Supreme Court as contained in a Statement of Claim and Cross-Claim as filed with the Court. Each of the matters complained of referred to denials made to the allegations and that the proceedings were ‘due before the Court for directions’.
Thus, submitted the applicants, the situation was covered by the approach in the Ross McConnel Case.
The learned Trial Judge, the applicants submitted, appeared to accept the correctness of the Ross McConnel Case but distinguished it on the basis that the pleadings there, unlike the pleadings in the Supreme Court Proceedings, had been “ventilated in open court”. That, the applicants point out, is not correct, for Hunt J referred (at 847; [6]) to the “pleadings which were neither read nor deemed to have been read in the proceedings held in public.”
Accordingly, the applicants submit, his Honour distinguished the Ross McConnel Case on an incorrect basis. It is correct that his Honour did make that error.
His Honour, however, considered that, even were the principle decided by that case to apply to pleadings not read out in open court, his Honour would not have followed the decision. His Honour said (at 59–60; [97]): If Hunt J’s decision was intended to apply to the publication of pleadings which had not been discussed in open court this Court would not follow such a far-reaching extension of principle for several reasons. Firstly, the decision is contrary to decisions of two Australian courts as already referred to, and is irreconcilable with principles in various English authorities. Secondly, there is no basis to extend the privilege to defamatory material contained in pleadings not yet read in open court. To do so would enable a person (including a newspaper), to publish defamatory statements with impunity where no basis exists for privilege.
This was, the applicants submitted, confusing by conflating the question of the capacity to convey the imputations with the availability of a defence of fair comment, a species of the defence of qualified privilege.
Accordingly, the applicants submit, the decision of the learned Trial Judge was such that it ought to be reconsidered on appeal.
The respondents submitted that it was clear that an important principle in this area of the law was that where reasonable minds may differ as to their understanding of the matter complained of, the tribunal of fact should be left to consider the case: Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports ¶81-915 (70,270) at (70,277); [30]. That is, the matter should be left to the trial.
The respondents then addressed the issue of Mirror Newspapers Ltd v Harrison, noting that it was confined to a report of the fact of arrest and charge: at 298 per Mason J. See also John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 at 500; [67]. This was based on the Court’s view that the ordinary reasonable reader would be mindful of the principle that a person charged with a crime is presumed innocent until proved guilty, which proof has to be determined by a court.
It is true that when an issue arises in civil litigation as to whether a criminal, or seriously wrongful, act has occurred, a presumption of innocence arises: Gonzales v Claridades (2003) 58 NSWLR 188 at 197; [34]–[35]. Jurists know that: John Fairfax Publications Pty Ltd v Obeid at 501; [74]. Whether the ordinary reasonable reader would know it also is another matter.
Thus, the respondents submit, the Ross McConnel Case does not stand for the proposition that any report of civil proceedings that notes that allegations made in the proceedings are denied is not capable of conveying imputations of guilt of those allegations. It is, the respondents submitted, necessary to consider the whole of the matter complained of in order to determine this.
Thus, the respondents submit, matters such as the following may be very material in determining the issue here: (i) the fact that the matter complained of is not expressed to be a report of contested proceedings (a matter found by the learned Trial Judge); (ii) the comparative weight given to the allegations against the plaintiff when compared with his denials; and (iii) the inclusion of “extraneous colour”.
The test, the respondents submitted, is a very high one before a court will find that the matter complained of is incapable of conveying the imputation. It must be, as Glass JA said in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 674, “blindingly obvious”.
The applicants submit that they should not be forced to go to trial when there has been an error in the reasoning on which a decision has been made about the basis on which the trial is to proceed. Consideration
The learned Trial Judge did not merely rely on the argument in relation to the Ross McConnel Case when declining to strike out the challenged imputations. His Honour went into some detail in assessing whether the imputations were capable of being conveyed, outside of the application of a principle said to be derived from that case.
This is in accordance with the obligations of a judge when considering such an application – to consider the whole of the matter complained of and its context.
Thus, it is by no means clear that even were the principle for which the applicants contend, as found in the Ross McConnel Case and which his Honour seems to have rejected (including distinguishing it in reliance on an error), to be established (contrary to his Honour’s holding), it is by no means certain that the decision of his Honour, not to strike out the imputations, would necessarily be overturned.
Here, further, there are difficulties that the applicants face in the application for leave to appeal. The fact that the learned Trial Judge has not held that a recounting of allegations in pleadings in civil proceedings and their denial cannot convey a defamatory imputation by themselves does not deprive the applicants of any argument at trial.
While it will require the applicants to address the imputations, they are still in a position to argue that the Court should not find that the imputations were conveyed. If, as they have argued, the imputations are not capable of being conveyed, it would clearly be highly likely that they will be able to argue successfully that they were not conveyed. It may even be possible for the applicants to argue at the conclusion of the trial, as it will be by judge alone and not before a jury, that the decision of the learned Trial Judge, being interlocutory and based, at least in part, on an error, should be revisited: K R Handley, Spencer Bower, Turner and Handley: The Doctrine of Res Judicata (Butterworths, 3rd ed, 1996) 79–83; [170]–[172].
The applicants did not take me to the matters complained of nor to the pleadings. The argument was really that, as a matter of law, publishing the allegations in pleadings in civil proceedings cannot convey defamatory imputations. That, however, is too simple an approach. As even Hunt J himself said in the Ross McConnel Case (at 850; [25]), “[e]ach case will, of course, depend on the context in which that allegation is reported.”
In those circumstances, the applicants have not proved that in the particular circumstances of this case, the appeal enjoys sufficient prospects of success in finding that in the proper consideration of the facts of the Supreme Court proceedings, whether the learned Trial Judge was correct in distinguishing the Ross McConnel Case, the matter complained of was not capable of conveying the imputations pleaded.
In addition, it does not seem to me that it is proper to intervene in the ordinary processes of the court proceedings unless necessary to ensure a fair trial. Here, the Court would be required not merely to consider an issue of law but also to consider the terms of the matters complained of and their factual context. It seems to me that the issue should first be determined by the trial judge.
Finally, the applicants say that if, as I propose, the question of consolidation should be heard further, then it will not add much to the hearing to deal with this point as well. I am not satisfied that this is so. In the first place, there is not sufficient prospects of success and no immediate prejudice; leave should not be granted simply because another point in the case can conveniently be considered. No matter how short a point, it can add to the hearing and, of course, the Court’s consideration, if it is required to reserve its decision.
In the second place, it would require consideration not only of the matter complained of but also of the pleadings in the Supreme Court Proceedings and that cannot be said to be an inconsequential addition to the hearing of the proceedings.
Finally, I do not propose, strictly speaking, to grant leave to appeal in respect of the issue as to consolidation, but only to refer the application for leave to appeal to the Court of Appeal comprised of three judges. In the circumstances, it is not appropriate to do that with the issue as to the imputations.
In all the circumstances, I will refuse to grant leave in respect of that part of the judgment of the Supreme Court in which the Court refused to strike out the imputations challenged by the applicants. Conclusion
I will, accordingly, make orders consistent with these reasons. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the his Honour, Acting Chief Justice Refshauge.

Fairfax Media Publications Pty Ltd (ACN 068 675 221) Lahey, and Fairfax Printers Pty Ltd (ACN 068 675 221) v Cummings [2012] ACTCA 36

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