Grundmann v Georgeson [1996] QCA 189

Court of Appeal (Qld)|1996-06-18|Before: Before Davies J, McPherson J, Dowsett J, Davies J

I have had the advantage of reading the reasons for judgment of Dowsett J. Except to the extent referred to below I am content to adopt his Honour's statement of the relevant facts giving rise to these proceedings, of the course of litigation at trial, of the decision of the learned trial Judge and of the arguments in this Court.

The respondent submitted that the learned trial Judge was wrong in concluding that the words published were published of and concerning the appellant. However, as the learned trial Judge pointed out, the respondent's words were plainly published of and concerning the doctor proposing to establish the abortion clinic referred to in the article and there were at the time of publication a number of people in Central Queensland who knew that the appellant was the person proposing to establish the clinic. Moreover the article in which the respondent's words appeared identified the person proposing to establish the clinic as a doctor who has operated a similar establishment in Townsville for the past four years. This would have identified the appellant to many who would have recalled publicity given to raids on abortion clinics. I agree with the learned trial Judge's reasons for concluding that the appellant was identified as the person referred to.

Of the meanings which the appellant said the publication had, I agree with his Honour that it could not have meant that the appellant practised genocide. Both the learned trial Judge and Dowsett J. also concluded that the publication, in particular of the statement that termination of pregnancy was just a nice way of saying murder, was not capable of carrying any of the meanings that the appellant had committed murder or had unlawfully killed or that he had no respect for human life.

The learned trial Judge thought that no hypothetical referee of the kind referred to in the authorities[2] would understand the words to bear any of those meanings because, in the context of the "hyperbole of the abortion debate" they would be "understood to express a point of view on an issue of morality or philosophy; but not to mean that the plaintiff was a murderer or anything like it". Dowsett J.'s reasoning is that, if the respondent's use of the word "murder" carries no other meaning than that the appellant practises abortion, the latter could hardly complain of it and, his Honour says, he does not understand the appellant to do so; therefore if equation of abortion to murder is to be defamatory it must be because the term "murder" means something more than performing an abortion and the publication does not bear that meaning.

In my view, however, what the respondent was intending to mean, and what the appellant says was defamatory of him, was that the appellant was a murderer, that is a person who intentionally and unlawfully terminated human life, because he performed abortions by choice. That is more than merely to describe him as an abortionist; and to conclude that the published words were intended to mean or understood to mean anything less than that he was a murderer is, in my respectful view, to misunderstand both the respondent's intention and the way in which those words would be generally understood .

It is true that, underlying the debate about whether abortion by choice should be permitted are moral and philosophical questions upon which there are in the community strongly held opposing views. But these differences in views do not affect the meaning which the respondent intended by his words or the meaning which they would be generally understood to convey. They may, however, affect the question whether, having that meaning, they are defamatory.

The question whether to call an abortionist a murderer because he performs abortions by choice is defamatory does not admit of an easy answer. An immediate problem is to identify the so-called right thinking members of society who are the arbiters of that question. This is because of the opposing views within the community to which I have already referred. I do not think it can be said that either of those views, to the exclusion of the other, is that of right thinking people. Moreover there are many intelligent and reasonable people in the community who are undecided on the question of abortion by choice.

It may be that to those who, like the respondent, hold the view that abortion by choice is murder and that all those who perform such operations are murderers the word "murder" adds nothing to the word "abortion". On the other hand those who support abortion by choice may be unaffected in their opinion of the appellant, knowing him to be an abortionist, by the description of abortion as murder. But the same would not be true, in my opinion, of those who are undecided on the question; they, or at least many of them, would think less of the appellant upon reading that what he did when terminating a pregnancy was to murder. And it could not be said that those who thought that were not a substantial, intelligent and reasonable section of the community. That is sufficient, in my view to make the publication defamatory.[3] The same is true, in my view, of the imputations that the appellant was a person who unlawfully killed and had no respect for human life.

In this Court there was no serious contest to the learned trial Judge's finding that the published words meant that the appellant took life contrary to the standards of his profession and to the Hippocratic oath. The point was raised by the respondent in one line of a long written submission and not elaborated on in oral argument. I agree, in any event, with Dowsett J. that there is no merit in the respondent's submission. However notwithstanding that, as the learned trial Judge noted, no attempt was made at trial to argue that that meaning was not defamatory, the respondent's outline of argument on appeal sought to do so. The submission, which would apply equally to the imputation that the appellant was a murderer because he performed abortions by choice, was that, because the appellant was a self-proclaimed abortionist of long standing, his reputation was unlikely to be affected by anything said by a Right to Life spokesman. I have already concluded that to call an abortionist a murderer because he performs abortions by choice is defamatory. The same reasoning applies to the imputation that the plaintiff took life contrary to the standards of his profession and to the Hippocratic oath. The learned trial Judge was correct, in my opinion, in concluding that this meaning was defamatory of the appellant.

I agree with Dowsett J. that the proposal by the appellant to establish in Rockhampton for the first time a fertility control clinic or abortion clinic may be a subject of public interest within the meaning of s.377(8). I would also conclude that the public discussion of that subject was for the public benefit.[4] And having regard to the wide meaning given by the majority judgment in Bellino to the phrase "in the course of" in sub-s.(8)[5], the publication of the statements that abortion is murder and that the appellant took life contrary to the standards of his profession and the Hippocratic oath were, in my view, made in the course of the discussion of that subject.

I agree with Dowsett J. that the matter the existence of which may excuse the publication in good faith of defamatory matter, referred to in s.377 is, in the context of sub-s.(8) the discussion of the subject of public interest. And I agree that both of the defamatory matters published of the respondent were relevant to that discussion. But that is not, in my view, because, as Dowsett J. says, "the ethical standards of the proposed developer of a clinic to provide health services, including terminations, is ... relevant to" that discussion. Rather it is that the abortion debate, which includes the question whether human life begins at conception, is relevant to the discussion of any proposal to open an abortion clinic. The proposition that human life begins at conception is the foundation of each of the defamatory statements which express, albeit in dramatic terms, one of the two opposing views in that debate.

As to the manner and extent of the publication, it follows from what I have already said that I disagree with the views of the learned trial Judge and of Dowsett J. that the respondent did not intend the word "murder" to be taken literally; I think he did. But it does not necessarily follow that I would conclude that the manner or extent of the publication exceeded what was reasonably sufficient for the occasion.

The occasion here was the discussion of the proposal by the appellant to establish an abortion clinic in Rockhampton.[6] Manner and extent, it appears,[7] may exceed what is reasonably sufficient for the occasion not only because of the form of language or breadth of publication but also because of the subject matter of the publication. But here neither the statement that abortion is murder nor the statement that the appellant took life contrary to the standards of his profession and the Hippocratic oath can be said to exceed what was reasonably sufficient for the occasion once it is accepted that the abortion debate was relevant to the discussion and that these statements reflected no more than one of the opposing views in that debate, albeit expressed in strong, even dramatic terms.

The imputations that the appellant committed murder, that he unlawfully killed and that he had no respect for human life were comments based on the view that human life begins at conception. It is unnecessary for present purposes, in my view, to decide whether, to be fair, it is sufficient that a comment expresses a view genuinely held or whether, as well, it must be one which could be held by a fair-minded person. For reasons which have already appeared, that some fair-minded persons could hold the views expressed by the comments, the comments were fair.

I agree with Dowsett J.'s reasons for concluding that the respondent was not activated by ill will. No other improper motive was suggested and it follows from what I have already said that the respondent did not believe that his statements were untrue.

I therefore agree with Dowsett J., but for different reasons, that the respondent had the benefit of the qualified protection of s.377(8) and that therefore this appeal must fail. It is unnecessary, in my view, to consider the other defences raised by the respondent.

Notwithstanding the failure to obtain leave to appeal and the decision of this Court in Schonnecht & Ors. v. The Golden Casket Art Union Office[8] the respondent sought by cross-appeal to appeal against the orders made for costs by the learned trial Judge. The respondent had sought leave from the learned trial Judge to appeal against the costs order but had identified no ground upon which leave should be given; his Honour refused that application. Before this Court the respondent orally sought an extension of time within which to appeal against his Honour's refusal of leave. No explanation, other than that the respondent was waiting to see if the appellant appealed, was advanced for the delay. In my view the existing cross-appeal is incompetent and should be dismissed.

The application for an extension of time within which to appeal against the costs order should also be refused. The costs order was made on the basis that, in two respects, the respondent improperly or unreasonably raised allegations which occupied some time of the trial. The first raised the issue whether the respondent said the words attributed to him by the newspaper, on which the learned trial Judge thought the respondent quite unreasonably reversed his initial position of admitting that he used the words. The second raised the question of illegality of the appellant's conduct which his Honour thought was unreasonably and perhaps improperly raised; in his view there was a strong prima facie indication at least that it was raised in an attempt to embarrass the appellant.

Even if, as Dowsett J. has concluded, the learned trial Judge was mistaken as to the extent of the plea of justification and that, in one respect, the illegality of the appellant's conduct was relevant to it it does not follow, in my view, that the exercise of his Honour's discretion miscarried. The way in which the trial was conducted by the respondent may, in any event, have led his Honour to the conclusion that illegality had been raised in order to embarrass the appellant. Moreover it would have required more than an error in the exercise of his Honour's sentencing discretion to justify this Court, in the absence of any right of appeal from his Honour's order, to exercise that discretion afresh.

I would dismiss the appeal with costs. I would dismiss the cross-appeal and I would refuse the respondent's application for an extension of time within which to appeal on costs. I would order the respondent to pay the appellant's costs of the appeal.

For the reasons given by Dowsett J., the appeal should be dismissed with costs. I also agree with Dowsett J., for the reasons he has given, that the application for leave to appeal on the question of costs should be dismissed; that the cross-appeal should be struck out; and that the respondent should be ordered to pay the appellant's costs of those proceedings.

The appellant and the respondent are both medical practitioners. The appellant has practised in Townsville since 1983, specialising in what he describes compendiously as "family planning services", performing "legal therapeutic pregnancy terminations", tubal ligations and vasectomies, inserting and removing intra-uterine devices and giving contraceptive counselling and advice. In mid-1986, he was planning a similar practice in Rockhampton and had discussions with Helen Griffin who supervised the Rockhampton office of an association called, "Children by Choice". He also spoke to a couple of doctors in Rockhampton about his plans and to a real estate agent concerning premises. Exhibits 3 and 4 disclose that between 1984 and mid-1986, the appellant was regularly mentioned in newspapers as a medical practitioner associated with fertility control clinics and abortion in Townsville. The articles in exs. 3 and 4 also demonstrate that during that period, the topic of abortion was raised regularly in the "Morning Bulletin", a newspaper circulating in Rockhampton.

It seems that early in 1987, the respondent, who practises in Rockhampton, became aware of the proposal to open what he described as "an abortion clinic" in that city. He issued a statement opposing this step, and as a result, was interviewed by Jeremy Greaney, an employee of the "Morning Bulletin". Mr Greaney then wrote an article which appeared in that newspaper on 21 February, 1987, containing statements attributed to the Mayor of Rockhampton, Alderman Webber, and to the respondent. There were also statements attributed to an unidentified spokesman for the proposed clinic. Evidence at the trial suggested that this was the appellant. Ms Griffin was also quoted. In the course of the article, Mr Greaney said that the doctor who was planning to open the Rockhampton clinic had operated such a clinic in Townsville for the past four years. This was the only basis for identifying the appellant as the person proposing to open the Rockhampton clinic. A second article appeared on 23 February, 1987, but it has no relevance for present purposes. A copy of the article of 21 February is attached to this judgment.

The appellant claims that the article was defamatory of him and in particular, complains about the following three passages:-

(1) "I find it quite hypocritical for a doctor to take life, when he has taken an oath to preserve life. "

(2) "How can anyone deny life to an unborn child? It's genocide."

(3) "But Dr Georgeson said termination of pregnancy was 'just a nice way of saying murder'.

'Legal abortion, where the mother's life is at risk, is justifiable, but indiscriminate abortion is abhorrent.'"

All three passages were attributed to the respondent.

The appellant asserts that these words meant or were understood to mean:-

(a) That the appellant took life contrary to his oath and the standards of his profession;

(d) That the appellant committed the crime of murder;

(e) That the appellant was a person who unlawfully killed;

(i) That the appellant had no respect for human life;

For reasons of consistency, I have adopted the identifying letters used for the relevant sub-paragraphs of paragraph 10 of the statement of claim.

The respondent denies that the words were capable of bearing any of those meanings, that the publication was defamatory of the appellant or that it referred to him. The respondent also alleges that the words conveyed a common sting, namely:-

"(a) that human life commenced at conception and, whilst it was lawfully justifiable to kill an unborn child when the mother's life was at risk, abortion without that discrimination was abhorrent and 'termination of pregnancy' in that context was a euphemism for murder;

(b) that a fertility control clinic was in fact an abortion clinic providing abortion without the discrimination referred to in (a) above and killing unborn children on a large scale, which was genocide;

The respondent seeks to justify the common sting and the imputations (a) and (i) above (hereinafter called the "para.10(a) imputation" and the "para.10(i) imputation" respectively), although there is a dispute about whether justification of the imputations was a live issue at trial. I will discuss that matter at a later stage. The respondent also seeks to rely upon the defence of qualified protection pursuant to s.377(8) of the Criminal Code. A number of other matters are raised in the defence, but it is not presently necessary to discuss them.

In reply to the defence of qualified protection, the appellant joins issue with the defendant, but specifically denies good faith, relying upon:-

(f) absence of reasonable grounds for believing in the truth of the publication; and

The appellant also asserts that if any part of the publication constituted comment, such comment was not objectively fair.

The action was tried before a Judge without a jury. The relevant findings were as follows:

(a) Mr Greaney's report accurately reflected what the respondent had said to him, save that his Honour was not satisfied that the word "hypocritical" had been used. His Honour thought it more likely that the journalist had confused a reference to the Hippocratic oath.

(b) The respondent intended to refer to the appellant in what he said to Greaney.

(d) At the time of publication, the respondent knew of the appellant and of his clinic in Townsville. It was in this context that his Honour inferred that the respondent intended to refer to the appellant.

(e) The publication was not capable of carrying the meanings that the appellant was a murderer, that he had committed the crime of murder or that he had unlawfully killed.

(f) The publication was not capable of carrying the meaning that the plaintiff practised genocide.

(g) The publication was not capable of carrying the meaning that the appellant had no respect for human life.

(h) The publication meant that the plaintiff took life contrary to the standards of his profession and the Hippocratic oath.

(j) The publication did not carry the common sting contended for by the respondent.

(k) The respondent had not established that, "indiscriminate abortion is abhorrent to right thinking people".

(l) The respondent had not established that a doctor undertakes by the Hippocratic oath to save human life.

(m) The appellant had performed abortions on numerous women at his Townsville clinic when there was no necessity for him to do so in order to prevent serious physical or psychiatric injury to the patients in question. His Honour expressly rejected the appellant's assertion that he honestly and sincerely applied that test before each and every abortion which he performed.

(n) The publication was made for the purpose of the discussion of a subject of public interest, namely the operation of fertility control clinics or abortion clinics and a proposal to establish in Rockhampton, for the first time, such a clinic for the purposes of enabling abortions to be performed.

(o) The public discussion of that topic was for the public benefit.

(p) To the extent that the publication consisted of comment, the comment was fair.

(q) The publication, in particular, as it concerned the appellant, was relevant to the subjects of public interest previously mentioned.

(r) The manner and extent of the publication did not exceed what was reasonably sufficient for the occasion.

(s) The respondent was not motivated by ill-will towards the appellant in making the publication.

His Honour's conclusion was that the publication was protected by the terms of s.377(8) of the Criminal Code. The appellant therefore failed in the action.

The appellant firstly attacks his Honour's finding that the publication was not capable of carrying the meanings that the appellant was a murderer, that he had committed the crime of murder, that he had unlawfully killed, that he had no respect for human life and that he practised genocide.

To establish that the publication meant that the appellant was a murderer, the appellant must rely upon the assertion that termination of pregnancy was, "just a nice way of saying murder". Presumably, the appellant argues that the words meant and were understood to mean that he was a murderer in the sense generally understood in the community - one who has killed another person, intentionally and illegally. A major focus of the debate about abortion is as to whether a foetus should be treated as a person in that context. The suggestion that termination of pregnancy is murder is really an assertion that a foetus is a person who should be protected by law.

The article as a whole was, in some respects,ambiguous in its assertions about the legal status of abortion. Alderman Webber was indirectly quoted as saying that there were, "no legal avenues that can be taken to stop this operation, so it is up to the people in the community to show their disdain for abortion." On the other hand, the respondent was quoted as saying that, "Legal abortion, where the mother's life is at risk, is justifiable, but indiscriminate abortion is abhorrent. Life begins at conception and no person has the right to take that life. We have to crack down on abortion and make it illegal." The reference to legal abortion (where the mother's life is at risk) might suggest that abortion in other circumstances is illegal, but the article did not say that. It said that abortion was "abhorrent" and should be made illegal.

Clearly, to abort a foetus is to prevent that foetus being born as a child. If the respondent's use of the word "murder" carried no other meaning than that the appellant performed abortions, he could hardly complain of it, and I do not understand him to do so. If the equation of abortion to murder was defamatory of the appellant, it must be because the term "murder" in the publication meant something more than that. That further meaning could only have been that the appellant had killed a person or persons, other than by abortion. The publication simply did not bear that meaning. What was said was that the doctor in question provided abortion services and that the respondent was of the view that to abort a foetus is immoral and should be illegal, other than in certain circumstances. Any reasonable reader would have so understood the publication. Similarly, the publication did not mean that the appellant had committed the crime of murder or that he had unlawfully killed any person in any sense other than by aborting a foetus. The alleged meaning that the appellant had no respect for human life suffers from the same logical flaw. It is clear from the publication that the respondent was asserting that the appellant lacked respect for human life only in that he performed abortions. In other words, the publication condemned abortion in the strongest terms and said that the appellant performed abortions.

As to the question of genocide, the issue is somewhat more complex. The word appears to be of relatively recent derivation and is defined by the Shorter Oxford Dictionary to mean, "annihilation of a race". It is difficult to see how the respondent's reported use of this word was consistent with that meaning. The expression in question was, "How can anyone deny life to an unborn child? It's genocide." Abortion could only be equated to genocide if candidates for abortion were selected upon ethnic or, possibly, national criteria. The publication did not suggest this, but that abortion is (per se) genocide. The breadth of the assertion effectively excluded the possibility that the word had its usual meaning. As with the "murder" imputation, the word "genocide" carried only the meaning that the respondent considered abortion to be undesirable and/or immoral.

There is a secondary aspect which requires consideration. Because abortion may be a tool used in genocide, it could be argued that using the two concepts in close proximity might have carried the meaning that the appellant was performing abortion for the purpose of genocide, although there was no ethnic or national group identified as the object of the genocide. The appellant did not assert this meaning, and the words do not support it. This ground of appeal must fail.

Although the respondent attacked his Honour's finding that the publication meant that the appellant took life contrary to the standards of his profession and the Hippocratic oath, I am unable to see any merit in that attack, and it was not advanced in any detail at the hearing of the appeal.

The next ground of appeal concerns the availability of the defence of qualified protection pursuant to s.377(8) of the Criminal Code. The appellant submits that such protection did not attach to the publication. Unfortunately, much of the argument on this aspect of the case centred upon the decision of this Court in Bellino v. Australian Broadcasting Corporation (unreported - Appeal No. 270 of 1992). That decision was, at the time, subject to appeal to the High Court, and since argument of this appeal, the decision has been published (unreported - judgment delivered 28 March, 1996-FC 96/008). That decision renders irrelevant much of the argument before us.

The majority in the High Court considered that prior to the Defamation Act 1889, the expression, "some subject of public interest", had a precise meaning at common law, namely, "the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion." Their Honours also described the defence as, "a right to comment on the acts or omissions of persons whose conduct (is) a matter or subject of public interest." The majority considered that s.377(8) merely re-states the common law position immediately prior to its enactment and therefore protects only publications in the course of, or for the purpose of, discussing the conduct of any person whose conduct, inherently, expressly or inferentially, invites public criticism or discussion. The discussion of the conduct of any person holding public office, participating in the administration of justice or public affairs, offering goods or services to the public or otherwise engaging in public conduct which invites public criticism or discussion will come within that protection.

The alternative view favoured in this Court was that the expression, "subject of public interest" should be given a much wider meaning, not limited to the acts or omissions of a particular person. That view found favour with the minority in the High Court (Brennan CJ and Gaudron J). Brennan CJ endorsed the view expressed by Lord Denning MR in London Artists Ltd v. Littler [1968] EWCA Civ 3; [1969] 2 QB 375 at p.391 as follows:

"There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment."

Gaudron J considered that there was no difficulty in particularising, as a subject of public interest, matters such as, "organised crime and corruption in Queensland".

For present purposes, the particularised subject of public interest is:-

"... the operation of fertility control clinics or abortion clinics and a proposal to establish in Rockhampton for the first time, such a clinic for the purposes of enabling abortions to be performed ..."

It follows from the majority judgment that the first arm of the particularised subject of public interest, "... the operation of fertility control clinics or abortion clinics ...", cannot be a subject of public interest for the purposes of s.377(8). However the second arm, "... a proposal to establish in Rockhampton for the first time such a clinic for the purposes of enabling abortions to be performed ...", may be such a subject because the proposal was obviously made by some person. It was, in fact, the appellant's proposal. At the very least, the appellant was proposing to offer services to the public and was therefore inviting public criticism or discussion concerning his conduct in so doing. The respondent accepted that invitation. It follows that the publication was made in the course of the discussion of the subject in question, which was a subject of public interest. Consistently with the view of the majority in the High Court, this approach renders it unnecessary to have regard to the long history of press coverage of the abortion issue and the place of the appellant in that history. The remaining questions for consideration are of good faith, public benefit and fair comment.

The appellant submits that although the particularised subject may have been a subject of public interest, the public discussion of which was for the public benefit, the imputation that the appellant took human life contrary to the standards of his profession and the Hippocratic oath was not relevant to the discussion of that subject. In light of the High Court's decision in Bellino (supra), that submission need only be considered in connection with the second limb of the particularized subject.

The definition of "good faith" for the purposes of s.377 requires that the published matter be relevant to, "... the matters the existence of which may excuse the publication ...". The "matters" are the various bases for qualified protection prescribed by each of the sub-paragraphs of that section. In the case of sub-s.(8), it is a little difficult, as an exercise in construction, to identify the "matter" in question. It may be the course of, or the purposes of the discussion of the subject of public interest, or it may be the discussion itself, or it may be the subject of the discussion. The majority of the High Court in Bellino considered that the focus of relevance is the discussion of the subject of public interest. In the present case, the test of relevance was clearly satisfied. It is impossible to argue that the ethical standards of the proposed developer of a clinic to provide health services, including terminations of pregnancies, is not relevant to the discussion of his proposal.

In his written outline of argument, the appellant submits that:-

"The matter complained of, 'I find it quite hypocritical for a doctor to take life, when he has taken an oath to preserve life', is relevant to the respondent's personal view of when life begins and not the operation of a fertility control clinic or a proposal to establish one in Rockhampton".

This submission is inconsistent with his Honour's finding that the word "hypocritical" was probably not used by the respondent, but in any event, the submission cannot be maintained. The meaning that the appellant took human life contrary to the standards of his profession and to the Hippocratic oath certainly reflects the respondent's view concerning the commencement of life, but that does not mean that the publication was irrelevant to the discussion in question. As I have said, it clearly was relevant. That the publication disclosed a personal view did not deprive it of the protection of the Code.

The appellant submits that to the extent that the publication was comment, it was not objectively fair. I accept that the publication was substantially comment. Section 377(8) requires that the comment be fair. His Honour found that it was. The appellant relies upon the decision of the High Court in Pervan v. North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309, submitting that the case establishes that the test to be applied to comment is "objective fairness". It is true that at the conclusion of the judgment of the majority in Pervan (supra) at p.329, their Honours observed:-

"While the formulation of Dixon J cannot be applied directly to s.377(8), our view is that under the Code it is sufficient that the publication is made in good faith and is objectively fair."

Their Honours were dealing with a case in which a newspaper had published an advertisement which contained comment which was defamatory of the plaintiff. The passage quoted above concerned the question of whether the publisher of a newspaper need hold the opinions expressed in a defamatory advertisement in order to enjoy qualified protection. The Court concluded that in those circumstances, the publication of the comment need only be in good faith and "objectively fair". It is clear that their Honours were concerned with the special position of newspaper publishers who, in the course of the ordinary functioning of newspapers, publish the opinions of many people. It would greatly impede the capacity of the newspapers to facilitate the expression of opinion if it were necessary that a publisher personally hold each opinion so expressed in his or her newspaper. The use of the expression "objectively fair" was intended to exclude the need for such subjective belief, but to maintain the requirement that the comment appear to be fair on the facts as known or alleged, subject to the other tests of good faith. The use of the word "objective" adds nothing to the test for present purposes. As I have said, to the extent that the publication consisted of comment, it was held to be fair. Apart from the suggestion that his Honour did not apply the test of "objective fairness", no other ground of criticism is advanced concerning that finding. There is no substance in this criticism.

In support of his attack on the "good faith" ground, the appellant also submits that the manner and extent of the publication exceeded what was reasonably sufficient for the occasion. His reply asserts that:

"The manner and extent of the publication exceeded what was reasonably sufficient for the occasion, the words were extravagant, exaggerated and unduly vehement by reason of the words themselves, the impression created upon the mind of what was written and the fact that the language was so far in excess of the occasion, unnecessarily strong, wholly, extremely and utterly disproportionate to the occasion intemperate and extreme."

This appears to be a reference to the use of the words "genocide" and "murder" and the general context of the publication. It is clear from the articles in ex.3 and 4, if it were not otherwise a matter of common knowledge, that the points of view in the abortion debate differ greatly and are firmly held. Those who support abortion (other than where the mother's life or well-being is immediately threatened) tend to justify their position by asserting that a woman's entitlement to choose abortion is simply part of her undoubted rights in respect of her own body. Those who oppose such abortion justify their position by reference to the perceived rights of the unborn child. The latter point of view is often based upon strongly-held religious beliefs. Both positions can be justified intellectually and morally, depending upon one's starting point, but the defence of each position is also likely to be emotional. Each side is entitled to express its views firmly and persuasively.

The use of hyperbole in public debate is by no means new. Hyperbole is defined by the Shorter Oxford Dictionary to mean:-

"A figure of speech consisting in exaggerated statement, used to express strong feeling or produce a strong impression, and not intended to be taken literally."

His Honour correctly concluded that the respondent did not intend that the words "murder" and "genocide" be taken literally. The usage was by way of hyperbole. Once it is accepted that the words were not intended, and would not have been understood to carry their ordinary meanings, but rather to communicate the respondent's view in a forceful way, it cannot be said that the manner and extent of the publication exceeded what was reasonably sufficient for the occasion.

The appellant also submits that his Honour, "approached the topic of ill-will on too narrow a basis," in finding that the respondent was not motivated by ill-will towards the appellant. This is a very difficult attack for the appellant to mount. His Honour saw the respondent give evidence, and there can be little doubt that his impression of him as a witness must have influenced his view on this subject. The appellant submits that there is an inconsistency between his Honour's conclusion that the respondent did not know the appellant and his rejection of the respondent's evidence that he had forgotten the appellant's name and the existence of the clinic in Townsville when speaking to Greaney. I see no conflict between these two findings. His Honour's finding was:-

"I do not accept Dr Georgeson's evidence that he had, when he was speaking to Mr Greaney forgotten both Dr Grundmann's name and the existence of an abortion clinic at Townsville. It may be that Dr Grundmann's name was not initially present in his conscious mind, but I cannot believe that he had forgotten the existence of the Townsville clinic. Dr Georgeson cared too deeply about the subject of abortion and had involved himself in the controversy since at least the time of the raid on Dr Grundmann's premises. There were only two such clinics in Queensland. I also find that the Townsville clinic was referred to in the conversation between Mr Greaney and Dr Georgeson. Mr Greaney was 'fairly sure' they spoke about Dr Grundmann. As he put it, ' I would have assumed that because he was the gentleman that was involved and I would most definitely would have brought that up with him. There is no reference to Dr Grundmann's name in Mr Greaney's notes, but the words "Brisbane, Tweed Heads, Townsville" are highlighted. Dr Georgeson denied that Mr Greaney mentioned the establishment at Townsville, though he admitted (somewhat inconsistently with his other evidence) that had that been mentioned, 'I'd have known who it was." That he did know who it was is reinforced by his assertion in his particulars that the plaintiff had made known his intention to move to open a fertility control clinic in Rockhampton and the defendant was requested to give his opinion of this proposal. I find that Dr Georgeson intended to refer to Dr Grundmann. "

This finding relates to evidence given in 1995 concerning events which occurred in 1987. The mere fact that the respondent intended to refer to the appellant at the time of publication did not prove ill-will, nor did the fact that he subsequently denied having so intended, although it was a matter for consideration. The appellant also seeks to rely upon the fact that his Honour ordered the respondent to pay part of the appellant's costs of the trial because the respondent had, "improperly and unreasonably raised allegations and that the defence raised a strong prima facie indication of an attempt to embarrass the appellant." It is said that such a finding was indicative of ill-will. In my view, it may have been indicative of ill-will at the time at which the conduct in question occurred, but it did not necessarily show ill-will at the time of publication. The appellant further submits that his Honour's finding that the respondent had, "seized upon emotively laden words and injected them into the abortion debate for their emotive appeal", and had, "done so blatantly", indicated ill-will. I cannot see that the finding indicated anything other than that the respondent was anxious to advance his argument as forcefully as possible. It certainly did not compel a finding of ill-will, although all of these matters were for his Honour to consider in that regard. Having seen the respondent give evidence, his Honour concluded that there was no ill-will, and I can see no basis for interfering in that finding.

A number of other minor matters require attention. Firstly, it is submitted that in determining the meaning which the publication was capable of carrying, his Honour failed to take account of the fact that the appellant was not bound by the precise meanings which had been alleged and might rely upon any available imputation which, in substance, did not differ from them. I am not sure what the relevance of this may be in the present context. The appellant also submits that his Honour failed to take account of the fact that the respondent said that he believed these matters to be true. This seems to have been little more than a repetition of the comment made by the respondent in the article.

The appellant submits that the learned trial Judge failed to take account of the fact that, "a substantial body of the community would believe those matters to be true". It may well be that a substantial number of people would, in appropriate circumstances, describe abortion as murder or genocide, but they would not believe it to be so in a literal sense. Such usage would be a forceful way of expressing an opinion based upon certain values. The thrust of these arguments appears to be that to call somebody a murderer or to accuse him of practising genocide is to convey, "all the derogatory imputations," associated with such a person or such conduct. That submission assumes that the words as used in the context of this publication would have been understood to mean that the appellant was a murderer or a person who practised genocide according to the literal meanings of those words. The learned trial Judge rejected that view, and I agree.

His Honour, in his reasons for judgment at p.19, said in connection with the allegation of murder:-

"I have not the slightest doubt that the hypothetical referee in Australian society, and particularly amongst the readers of the Morning Bulletin, was in 1987 sufficiently sophisticated to ridicule such an allegation. He or she would by that time have become accustomed to the hyperbole of the abortion debate. The words might have been understood to express a point of view on an issue of morality or philosophy; but not to mean that the plaintiff was a murderer or anything remotely like it. "

The appellant submits that there was no evidence that readers of the "Morning Bulletin" at the time were sufficiently sophisticated to so ridicule the allegations. He says that the newspaper cuttings in ex.4 did not demonstrate the same style as the publication complained of and that this, in some way, demonstrated, "how forcefully an argument can be put in a debate without the need for defamatory material ..." It is submitted that his Honour wrongly imported into the tests he applied, "new and inappropriate elements of a sophisticated reader ready to identify and ridicule hyperbole and of sufficient moral and philosophical detachment and awareness." It is also submitted that, "... his Honour further erred in attributing those qualities to all reasonable readers." I do not take his Honour as meaning to attribute any special qualities to the 1987 readers of the "Morning Bulletin". He was, I think, merely describing the qualities reasonably expected in the ordinary reader of that publication or of any other publication in Queensland or the Commonwealth. In my own conclusions as to the meanings reasonably attributable to the publication, I have certainly not assumed any special qualities.

Finally, it is submitted that his Honour, "was erroneously inconsistent in eschewing the literal meanings of some of the words used but adopting such meanings for the words genocide, murder, etc." I am not sure what this submission means. It seems to me that his Honour eschewed literal meanings for the words "genocide" and "murder", in my view, correctly.

The respondent also seeks to hold the judgment upon grounds rejected or not considered by his Honour. In view of my conclusions as to the applicability of s.377(8) of the Code, the disposition of the substantive appeal does not require that I consider these matters. However, the order for costs made by his Honour was, to some extent, affected by his views of a number of those defences. It is therefore necessary that I consider them.

The primary ground in question is that of justification. At trial, the respondent denied that the publication was capable of bearing the imputations pleaded by the appellant and advanced what has become known as a "Polly Peck" defence. This is a reference to the decision of the Court of Appeal in Polly Peck (Holdings) PLC v. Trelford [1986] 1 QB 1000. In that case, the plaintiff had sued upon the basis of one defamatory statement in a publication which contained a number of such statements. The defendant asserted that when the publication, including the various defamatory statements, was taken as a whole, those statements carried a "common sting", different from the meaning alleged by the plaintiff, but also defamatory of him. The defendant then sought to justify the common sting. It was held that the defendant was entitled to so plead. The respondent sought to follow that course in this case. Paragraph 6 of the amended defence alleges that the words conveyed a common sting to the effect:-

"(a) that human life commenced at conception and, whilst it was lawfully justifiable to kill an unborn child when a mother's life was at risk, abortion without that discrimination was abhorrent and 'termination of pregnancy' in that context was a euphemism for murder;

His Honour rejected the "Polly Peck" defence, holding that the publication did not bear the meaning for which the respondent contended. The question of justification of that meaning therefore did not arise. The respondent does not challenge that outcome. However, the respondent also seeks to justify two of the plaintiff's imputations, the para.10(a) (took life contrary to his oath, etc.) and para.10(i) (no respect for human life) imputations. In my view, his Honour correctly found that the former was made out, but not the latter, which therefore need not concern me further.

In the course of the appellant's address at trial, it became apparent to his Honour, for the first time, that the respondent was seeking to justify both the "Polly Peck" meaning and the paras.10(a) and 10(i) imputations. When his Honour raised this matter with counsel, counsel for the appellant said that at a directions hearing before Williams J, that matter had been raised. Counsel for the respondent had then conceded that the plea of justification went only to the "Polly Peck" meaning, and that if the appellant's imputations were made out, there was no defence of justification because those imputations necessarily excluded the "Polly Peck" meaning. The learned trial Judge confirmed this account by reference to Williams J, and then held that the defence should not be interpreted as supporting a plea of justification of the imputations.

Logically, there was no reason why the respondent should not have sought to justify both the pleaded imputations and the "Polly Peck" meaning, but the defence as it stood at the time of the appearance before Williams J raised justification only in respect of the latter. However, Williams J gave leave to amend the defence, and an amended defence was delivered on 3 March, 1995. Paragraph 6, the "Polly Peck" plea, remained in the same form as previously, but para. 7, the justification plea, was varied. Excluding the particulars, the paragraph was as follows:-

"The words were true in substance and in fact and bearing the meanings contended for in para 10(a) and (i) of the further amended statement of claim and in para 6 hereof, and their publication to the former fourth defendant ("the reporter") and any republication in the newspaper hereof was for the public benefit."

In the judgment, after reciting the facts in more or less the form set out above, the learned trial Judge said:-

"Since the defence had not, prior to the last amendment, sought to justify that particular meaning, I could well understand that his Honour's attitude might have been influenced by such a concession. As Mr Wall told me that his Honour had made a note, I have inquired of his Honour what his notebook reveals. He has told me that he has clearly noted in the margin and highlighted (as is his habit when a concession is made by counsel) the words, 'No defence of truth and public benefit if plaintiff's meaning is accepted'.

In these circumstances, I am not prepared to interpret para.7 of the defence as supporting a plea of justification to the meaning propounded by para.10(a) of the statement of claim."

I find it difficult to understand what was meant by the reference to the, "attitude" of Williams J.. It may have meant that his Honour would not have given leave to amend in terms wide enough to permit justification of the para 10(a) imputation had his Honour been aware that this was intended. It is not suggested that the order limited the leave to amend in any relevant way. Clearly, counsel for the appellant had every opportunity to familiarise themselves with the contents of the amended defence when it was delivered. Indeed, in the early stages of the trial, the appellant sought to have parts of it struck out. It seems that counsel for the respondent may also have been labouring under a misapprehension at that stage. When the application was made, Mr Hampson indicated that such was:-

"... the same application (as) he made on 28 February to Mr Justice Williams and Mr Justice Williams dismissed that application. That is to say, he applied to strike out these paragraphs raising a plea of justification under the Code unsuccessfully."

That submission was clearly inaccurate as para. 7 had been amended.

It seems that before Williams J, the appellant was complaining about the adequacy of the particulars of truth and perhaps, public benefit. The particulars provided details of various patients treated by the appellant and the reasons for which abortions were procured in those cases. The application to strike out made at the beginning of the trial also related to those matters. Nobody then adverted to the addition of the defence of justification of the imputations.

His Honour conceded that it was possible to read para.7 as pleading justification of the imputations, but apparently concluded that the references to the meanings contended for in paras.10(a) and 10(i) of the statement of claim and para.6 of the defence were to be read conjunctively. It is somewhat difficult to understand how this could have been so in view of the earlier concession that if the plaintiff's imputations were made out, the "Polly Peck" meaning could not stand. In any event, with all respect to his Honour, para.7 clearly raises the plea of justification of the para.10(a) imputation. The reference to "the meanings" implies that all three meanings (the paras 10(a) and 10(i) imputations and the "Polly Peck" meaning) are said to be true. Out of fairness to his Honour and to the appellant's counsel, I should say that a perusal of much of the evidence at the trial suggests that justification of the paras.10(a) and 10(i) imputations was not a prominent issue.

To some extent, the form of the order for costs made at the trial reflected his Honour's mistaken view of the plea of justification. It followed from that view that the evidence relating to the alleged illegality of abortions performed by the appellant (the "illegality question") went only to justification of the "Polly Peck" meaning. His Honour considered that the assertion of such meaning was completely misconceived, and that therefore, the illegality question was unnecessarily canvassed, possibly for the purpose of embarrassing the appellant. This was obviously a weighty matter in formulating the order for costs which was made.

The respondent submits that the illegality question was also relevant to the plea of justification of the para 10(a) imputation, that the plaintiff took life contrary to the standards of his profession and the Hippocratic oath (as his Honour interpreted the imputation). He submits that it must be contrary to the standards of the medical profession to perform illegal abortions. Whether one accepts that proposition or not, such illegality must be at least relevant to the identification of those standards. As I consider that the plea of justification of the para 10(a) imputation was, and is alive on the pleadings, his Honour could not properly have inferred that the illegality question was unnecessarily canvassed without having first decided that the respondent should fail on the plea of justification which, of course, he did not do. I turn to consider that matter.

The learned trial Judge held that the appellant had performed abortions on numerous women in his Townsville clinic in circumstances where there was no necessity for him to do so in order to prevent serious physical or psychiatric injury to the patients in question. His Honour expressly rejected the appellant's assertion that he honestly and sincerely applied that test in deciding whether to perform an abortion. The legality of any abortion depends upon s.282 of the Criminal Code which provides:-

"A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case."

His Honour's finding did not address, in terms, the requirements prescribed by s.282, but clearly, they went a long way towards establishing that the abortions in question were not authorised by that section.

To justify the para 10(a) imputation, the respondent had to prove the standards of the medical profession concerning abortion and breach thereof. Five medical practitioners gave evidence - the appellant and Drs Moore and Power in the appellant's case and the respondent and Dr Green in the respondent's case. Curiously, none of them was asked directly to give evidence of professional standards concerning abortion, but the appellant and Drs Moore and Power made it clear that they consider abortion to be a matter for the woman concerned. The respondent considers that virtually all abortion is wrong. Dr Green did not express a view. When asked if the Hippocratic oath was, "... something that practitioners recognize in Queensland?" He replied, "I believe so, generally, yes." He subsequently agreed that the oath is not to be taken literally but is rather to be interpreted, "in the light of modern times." A person taking the Hippocratic oath undertakes that he will not, "give to a woman an abortive remedy." Medical practitioners in Queensland do not now take the Hippocratic oath.

There was evidence that doctors in Queensland, and in particular, gynaecologists do not regularly perform abortions, certainly not as frequently as does the appellant. Many, perhaps most hospital authorities, public and private, do not permit abortions in their facilities, or allow them only in very limited circumstances. It was said that some practitioners may fear loss of their rights to operate in particular hospitals if they perform abortions, and that some might not perform abortions because they fear that a reputation for doing so would be deleterious to their practices because of the attitudes of their peers or public opinion.

In Adamson v. The Queensland Law Society Inc [1990] 1 Qd R 498 at p.507, the Full Court adopted as a test for professional misconduct, "... whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency ...". That test seems equally appropriate for present purposes. I do not understand the test to be concerned with views held by members of the profession in other capacities. A practitioner may personally oppose abortion for religious or moral reasons but concede that other members of the profession are entitled to hold other views and to conduct their practices accordingly. Such an attitude, even if held by a large majority of the profession, would not establish a professional standard condemning abortion. Many practitioners may prefer not to perform abortions because they do not want publicity of the kind which the appellant has endured or to jeopardise their practices. Some practitioners may prefer not to perform abortions simply because they are unsure about the moral implications. These observations might also apply to hospital authorities. None of these attitudes would necessarily lead to the inference that to perform an abortion is contrary to the standards of the medical profession.

Although the Hippocratic oath clearly forbids abortion, its status in Queensland is equivocal, and it therefore does not establish a clear professional standard. The respondent apparently took the oath and considers its terms to be binding, but given that Queensland practitioners do not take it, it is difficult to see that it can have effect other than as a general guideline in the light of "modern times". That qualification renders doubtful its application in the present situation. In the end, the respondent must rely upon the proposition that to perform an illegal abortion is, per se, a breach of professional standards, or at least, that to do so regularly is such a breach.

In Medical Board of Queensland v. Cooke [1992] 2 Qd R 608, all three members of the Court, (McPherson ACJ, Thomas and Byrne JJ) considered that breach of a by-law did not necessarily constitute misconduct in a professional respect (per Thomas J at p.616, 621-2, Byrne J at p.623; McPherson ACJ, concurring generally). Although it may be argued that breach of a provision of the criminal law is more likely to constitute such misconduct than is breach of a by-law, it follows from Cooke that the law does not conclusively determine professional standards. The weight to be given to the legal status of the conduct in question will vary, having regard to the seriousness of the offence. It follows that other factors, especially the attitudes of practitioners, will also be relevant.

The individual attitudes of the doctors who gave evidence must be considered. For present purposes, the views of the appellant and respondent may be suspect because of interest, but that leaves the evidence of Drs Moore and Power. Although they do not perform abortions themselves, they clearly do not disapprove of what they understand to be the appellant's practice. The reported reluctance of other practitioners to perform abortions and of hospitals to permit them is not necessarily, or even probably, evidence of a professional standard against performing abortions in the circumstances in which the appellant does so. I think it at least as likely that social, religious and/or financial considerations are the causes of that reluctance. Drs Moore and Power were willing to make public their roles in referring patients to the appellant, implying a belief that to do so was not in breach of any professional standard. It follows that they do not consider the appellant's practice to be in breach of such a standard. Because of the way in which the case was conducted, they were deprived of the opportunity to say so expressly, but inferences may be drawn from what they did say. On the whole of the evidence, I am not satisfied that the appellant's practice as to abortion was contrary to any professional standard. The respondent did not discharge his onus of proving that members of the medical profession of good repute and competency generally consider it improper to perform abortions in the circumstances in which the appellant performs them.

The respondent also complains that his Honour indicated, in the course of addresses, that he did not wish to hear his counsel on the illegality question. The respondent suggests that the learned Trial Judge should not have so indicated unless he was satisfied that the plea of justification was made out, which he was not. I consider that his Honour was indicating only that he was at least willing to assume, for the purposes of the defence of justification, that the appellant had performed abortions illegally. I have also made that assumption.

His Honour's order as to costs also reflected his views of a number of other grounds of defence which he determined against the respondent:- firstly, the respondent's denial that he used the words attributed to him in the article; secondly, his submission that the words were not defamatory of the appellant; and thirdly, his submission that the words did not bear the defamatory meaning contended for by the appellant. I have dealt with this last submission. It is also submitted that various other defences of qualified protection pursuant to other sub-paragraphs of s.377 should have succeeded before his Honour. None of these grounds was strenuously argued before us. The respondent largely contented himself with resisting the appeal against the s.377(8) defence and asserting an entitlement to succeed upon the ground of justification, the latter argument oriented more towards demonstrating the error made by his Honour in connection with the plea of justification than towards urging a result on that issue favourable to the respondent. As to these other defences (apart from the other grounds of qualified protection), the sparse arguments advanced by the respondent in his outline, which were not expanded upon in the course of oral submissions, do not persuade me that his Honour erred in the conclusions which he reached. As ventilation of the other grounds of qualified protection under s.377 did not significantly increase the cost of the trial, and in view of my opinion concerning the substantive appeal, it is not necessary that I consider them further.

For the sake of consistency, I will continue to refer to Grundmann as the appellant and Georgeson as the respondent. The respondent has filed a cross-appeal against the order for costs made by the learned trial Judge. However, pursuant to s.9 of the Judicature Act 1876, such an appeal lies only by leave of the Judge making the order. See Schonnecht & Ors v. The Golden Casket Art Union Office (unreported - Appeal No. 146, 147 and 149 of 1994 - judgment delivered 11.11.94). It is necessary that I set out certain matters relevant to the question of costs and the order which was made.

The trial commenced on Tuesday, 2 May, 1995, and addresses were completed on Monday, 8 May, 1995. The trial therefore took five days. The learned trial Judge published his reasons on 19 May in Townsville, where the trial took place. Following the delivery of judgment, his Honour indicated that he wished to hear submissions on costs. Junior counsel for the appellant, said that, "It might be wise to have a considered view in relation to costs . . .". The solicitor for the respondent agreed. Counsel for the appellant suggested that perhaps submissions might be made in writing, but his Honour did not accede to that submission. At one stage, counsel for the appellant said:

"Your Honour would not be able to sort out the reserved costs today in any event. We have agreed between ourselves on that."

It seems likely that counsel for the appellant and the solicitor for the respondent were anxious to have the matter put off until another day, but his Honour made it clear that he wished to hear submissions later in the day.

When the matter came on in the afternoon, senior and junior counsel (both of whom practise in Townsville) appeared for the appellant, and the respondent was represented by a solicitor. (His trial counsel practise in Brisbane.) The solicitor indicated that his counsel were presently in Brisbane. His Honour observed that it was really a matter for him whether or not he engaged local counsel to take the judgment. Senior counsel for the appellant then made his submissions as to costs, as did the solicitor for the respondent. In the end, his Honour ordered that the appellant pay the respondent's costs of and incidental to the action, limited to one day of hearing and two-fifths of the costs of preparation. Certain specific matters were excluded from that order. He ordered that the respondent pay the appellant's costs of two days of the hearing and two-fifths of his costs of preparation. His Honour also dealt with the costs of the interlocutory proceedings. The solicitor for the respondent sought leave to appeal, but advanced no ground in support of the application other than that, "We're not happy with it ...". He subsequently said that perhaps he was being "semi-facetious", and that the basis for the proposed appeal might be that the learned trial Judge had misapplied the decision in Re Elgindata Ltd (No.2) [1993] 1 All.E.R. 232 at p.237. There was no suggestion as to how his Honour may have so erred. His Honour refused the application, "in the absence of any point of general importance or any other ground why leave should be granted . . .".

In the event, a notice of cross-appeal was filed by the respondent, without leave, seeking variations in the order as to costs. Various grounds were specified. Summarised, they are as follows:-

(a) that the order was wrong in that it had the net effect of requiring the respondent to pay costs to the unsuccessful appellant;

(b) that his Honour was wrong in finding that the issue of illegality of the appellant's conduct was raised by the respondent at the trial in an attempt to embarrass the appellant;

(d) that his Honour was wrong in finding that the respondent's denial of publication was unreasonable;

(e) that his Honour was wrong in ordering the respondent to pay the appellant's costs of proceedings before the Chamber Judge on 2 August 1994 in assuming that the appellant had succeeded in those proceedings;

(f) that his Honour was wrong in acting upon the basis that the application before the Chamber Judge on 17 February 1995 was 'frustrated by a new defence';

(g) that his Honour erred in taking into account the fact that the respondent put in issue the question of whether the appellant was identified in the publication.

In the course of the appeal, when counsel for the respondent addressed the question of costs, the Court drew to his attention the fact that the appeal was incompetent in that there had been no leave of the trial Judge. Counsel indicated that he was aware of the decision in Schonnecht & Ors v. The Golden Casket Art Union Office (supra), but said that it was inconsistent with the previous understanding in the profession that such leave was only necessary where there was no other appeal concerning the judgment in question. I must say that such has never been my understanding, although the judgment in Schonnecht suggests that there may have been prior disagreement on this point. In any event, counsel conceded that in light of the decision in Schonnecht, it was necessary that he apply for an extension of time in which to appeal against his Honour's refusal of leave to appeal. I doubt that there can be such an appeal, save where it can be said that there has been no recognisable exercise of the discretion. See Copping & Ors v. ANZ McCaughan [1995] SASC 4917; (1995) 63 SASR 523 (per King CJ at p.520.)

Whether that be so or not, the respondent faces significant difficulty in prosecuting such an application at this time. He has offered no real explanation for the delay in bringing the appeal, save that he was waiting to see whether or not the appellant appealed against the substantive judgment. That is a tactical position which the respondent thought appropriate to adopt, having regard to his own interests. I am by no means sure that it is an explanation for his failure to appeal. On the other hand, it is arguable that as the Court has had to examine the matter in some detail in any event, much of the underlying justification for s.9 may not be relevant in the present context. The respondent sought to rely upon affidavit material said to explain the delay or otherwise to justify the appeal or the application for leave to appeal. However the Court refused to receive the affidavit in view of its lateness and in view of the fact that it was not clear that the contents would be uncontroversial as between the parties.

Apart from the question of delay, the respondent also faces the problem that no serious attempt has been made to formulate the basis upon which it is said that his Honour erred in refusing leave to appeal. This problem is exacerbated by the fact that before his Honour, little attempt was made to specify the proposed grounds of appeal. Leave to appeal against an order as to costs is not given as a matter of course. A trial Judge, when asked to grant such leave, should not be expected to accede to such a request simply because his or her own order is to be attacked. Leave should not be given unless the applicant demonstrates that there is a cogent argument against the order. It will not usually be enough to assert dissatisfaction or that the Judge may not have correctly applied a well-established principle. The respondent has not demonstrated that the trial Judge erred in refusing leave to appeal. He did not bother to advance any cogent ground of appeal at the time of seeking leave, and so the application was correctly refused. I would refuse to extend time to appeal against the order refusing leave to appeal.

Much was made in argument of a so-called "agreement" between counsel for the appellant and the respondent that questions of costs would be argued at some later time and not at the time at which his Honour delivered judgment. There is no suggestion that his Honour was a party to that agreement, and so it cannot be a ground for attacking his decision to hear and determine the question as he did. It is not for counsel to reach agreements of that kind and then to seek to impose them upon the Judge. It is the usual practice to address question of costs at the time at which a reserved judgment is delivered. There is much to be said for such a practice because it means that the proceedings, insofar as they concern the Judge in question, are then at an end. If the parties wish to make some special arrangements as to the way in which the issue of costs is to be dealt with, then as with any other departure from the usual practice, application should be made to the Judge in question, who will decide the matter.

This proposition is so clear that I would not have bothered to mention it save for the fact that it was suggested by counsel for the respondent in the course of argument that the respondent had been denied natural justice in the events which happened. The assertion is simply untrue and should not have been made. His Honour gave notice that the question of costs was to be argued in the course of the afternoon. The respondent was given an opportunity to be heard, and he was heard.

Notwithstanding my view that the respondent should not be permitted to appeal against the order as to costs, I must consider the order which was made in light of my conclusion as to the issue of justification. His Honour's order took account of the fact that:-

"... the issue of illegality of the plaintiff's conduct was unreasonably and perhaps improperly raised. It was raised in a context where the defence, the 'Polly Peck' defence, was not made out on the facts and indeed with the benefit of hindsight at least can be shown to have not been available in the circumstances, and there is in my view a strong prima facie indication at least that it was raised in an attempt to embarrass the plaintiff."

It is clear that the order was designed to make the respondent pay the costs associated with the illegality question because the respondent failed on the only issue to which his Honour considered it related (the "Polly Peck" defence) and because the question was, "unreasonably and perhaps improperly raised." I consider that the illegality question was also relevant to the issue of justification of the para.10(a) imputation. My conclusion that such issue was alive at the trial means that his Honour's view was based upon a false premise, and the order as to costs, which reflects that view, cannot stand. In those circumstances, this court must itself exercise the discretion as to costs.

Although I suspect that his Honour may have been correct in the view that the ventilation of the illegality question was unreasonable and improper, I am not satisfied that such was the case. However, it obviously consumed a substantial amount of time at the trial, and the respondent failed on the issues to which it related. For that reason, I consider that he should pay for it. I infer that the order made by his Honour was designed to achieve that result. There has been no suggestion that it did not do so. As I consider the result to be appropriate, albeit for different reasons, I adopt his Honour's quantification. I therefore propose an order for costs in the same form as that made by his Honour.

I would dismiss the appeal, ordering that the appellant pay the respondent's costs thereof. I would refuse the respondent's application for leave to appeal on the question of costs and strike out the cross-appeal, ordering the respondent to pay the appellant's costs of those proceedings.

[1] See Nicholson v. Seidler (1990) 5 B.R. 365.

[2] His Honour referred to Reader's Digest Services Pty. Ltd. v. Lamb [1982] HCA 4; (1992) 150 C.L.R. 500 at 505, Farquhar v. Bottom [1980] 2 N.S.W.L.R. 380 at 385-6 and Slatyer v. Daily Telegraph Newspaper Co. Ltd. [1908] HCA 22; (1908) 6 C.L.R. 1 at 7.

[3] Hepburn v. TCN Channel Nine Pty. Ltd. (1983) 2 N.S.W.L.R. 682 at 686, 694.

[4] Bellino v. Australian Broadcasting Corporation, High Court of Australia, unreported, 28 March 1996 at 39, 44, 58.

[5] Bellino v. Australian Broadcasting Corporation at 53-57.

[6] Bellino v. Australian Broadcasting Corporation at 61.

[8] C.A. Nos. 146, 147 and 149 of 1994, judgment delivered 11 November 1994, unreported.

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