Hall v Qld Newspapers Pty Ltd [2000] QCA 308

[1] PINCUS JA: This is an appeal against a defamation judgment, given after a jury trial. The successful defendant, now respondent, resisted a claim by Judge Robert Hall, a District Court judge, that he was defamed by an article about him in the "CourierMail", which has a large circulation. The appellant's case was that the article contained accusations that he had made comments which were outdated, narrow minded and misguided, that he needed to mend his ways and that he disadvantaged and prejudged children and perpetuated discrimination against children; then there was a statement that "Queensland had the 'most shocking' rate of children being mistreated as witnesses by courts and lawyers". The whole article is at the end of these reasons.

[2] The respondent did not defend by saying that the criticisms could be justified as being true of, or a fair comment about, the behaviour of the appellant; nor did it set up any variety of privilege. That attitude was taken for the good reason that what was said was not in fact intended to apply to the appellant, Judge Hall, but rather to another person, Judge Wall; it appears that the resources of the respondent were inadequate to ascertain the correct surname of the person against whom the criticism was directed. The argument which brought the respondent success was that although the appellant was named several times in the article he would not have been taken by a reasonable reader to be the person referred to. That is, reasonable readers would necessarily have understood that criticisms of "Judge Hall" did not refer to Judge Hall.

[3] Two points are clear: that words intended to refer to a particular person may nevertheless give others a cause of action (Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276) and that the court cannot assume that readers of a newspaper article will scrutinize it carefully (Morgan v Odhams Press Ltd (1971) 1 WLR 1239 at 1245, Talmax Pty Ltd v Telstra Corporation Limited [1997] 2 Qd R 444 at 446).

[4] A difficulty for the appellant is, perhaps, the wording of the question which the jury answered "no", resulting in a judgment for the respondent. That question was: "Were the words complained of in the Statement of Claim published of and concerning the Plaintiff?". Mr Keane QC for the appellant said the answer should have been yes. But it was common ground that the article was not intended to refer to the appellant. A jury taking the words of the question in their ordinary sense would have had difficulty in answering it with an unqualified "yes". The appellant's real case was that although some readers would have picked up indications in the article that the references to "Judge Hall" were in error, others would certainly not have done so. The indications that a mistake might have been made were that, although the judge being criticised was, six times, identified as having the surname Hall, that name once had the given name "Clive" prefixed to it as well as the addition "QC"; also, the article says that the remarks attributed to Judge Hall were made in Townsville. The facts are that the appellant's first name is Robert, not Clive, he is not a QC and, although he was based in the District Court at Townsville for some years, he was transferred to Southport in 1989. Judge Clive Wall QC was at the date of the article a recent appointment to the court at Townsville, a city where none of the three Southport judges would, in the ordinary course of events, sit.

[5] Mr Keane argued that the jury's answer was so plainly wrong as not only to entitle but to oblige this Court to hold that, notwithstanding the jury's answer, the appellant was defamed. The difficulty of the case appears to me to lie in the area of determining whether the strong disinclination of Courts to treat a civil fourperson jury verdict as not open to the jury should stand in the way of correcting of what appears to be an error. Of the very large number of Courier-Mail readers, Gold Coast readers would be among those most likely to be interested by the article. The appellant's well-publicised (as appears from the evidence) and long judicial service in their locality must have made many of them aware of his existence and, at least, his surname. Mr Mulholland QC for the respondent accepts, correctly in my view, that it is enough if some reasonable readers who knew or knew of the appellant would have taken the article to refer to him.

[6] A familiar problem dealt with by the reported cases is that in which the plaintiff relies on people having special or particular knowledge which makes a publication defamatory of a plaintiff, although it is not so on the face of it. Here the boot is on the other foot; the defendant's case depended on the proposition that all reasonable readers would know that the appellant's given name is not "Clive", that he is not a QC and that he would be quite unlikely to sit at Townsville or some of these three facts; and such knowledge would surely make them all realise that the repeated references to "Judge Hall" were all mistaken.

[7] Of the indications relied on, the strongest from the lay reader's point of view appears to be the name "Clive", since at least some readers must have known and recalled that the appellant is called "Robert". But the single use of the name "Clive", rather than the multiple use of the name "Hall", could well have been taken to be the mistake. And of course some people, including judges, are commonly known by other than their first name; I exemplify that usage.

[8] The witness A J H Morris QC, called for the appellant, thought when he first read the article that it referred to the appellant. Later in the same day he reread the article and started to wonder whether it referred to Judge Wall instead. As a practising barrister, he would hardly represent the general reader's state of knowledge of the judiciary and its workings; but acceptance of that evidence would have tended to support the view that not all reasonable readers would infer that the use of the name "Hall" was erroneous. The jury's answer cannot, however, be disregarded on the basis that there was an obligation to act on the evidence of a particular witness, on a contested issue; the jury might simply have been unconvinced by the evidence of Mr Morris, and that of other witnesses called for the appellant.

[9] The ground of my opinion that the jury's answer was plainly wrong is that, if the jury understood what they had to determine, their answer must have been based on an inference that a reasonable reader could not have failed to know the extrinsic facts which, together with the mention of "Clive", "QC" and "Townsville", pointed to the name "Hall" being a mistake; and so such a reader could not have failed to appreciate that the article related to a person other than the appellant. The assumption and inference underlying this reasoning are, to my mind, quite unreasonable. If it is right that many readers would deduce that "Hall" was an error, it must surely also be right that many would not.

[10] It is necessary to discuss the question whether it is enough that some reasonable readers take a publication to refer to and be defamatory of the plaintiff, although that point is not in issue. There are statements in the authorities which are capable of being read as imposing a stricter test. An example is the Rasputin case, Youssoupoff v MGM Pictures Limited (1934) 50 TLR 581. A film about Rasputin included a character, "Princess Natasha", who was raped by the villain; Princess Youssoupoff complained that people knowing certain facts would have taken it to refer to her. In stating the appropriate test, Scrutton LJ spoke of "reasonable people, not all reasonable people but many reasonable people" (583), and Slesser LJ spoke of "a substantial and reasonable number of persons" (587). Despite these possible implications that just "some" people may not do, a reading of the facts of the case makes it clear that only a small proportion of those who saw the film could have understood it to suggest that the rape victim was Princess Youssoupoff.

[11] An authority in favour of the correctness of Mr Mulholland's concession is the judgment of the New Zealand Court of Appeal in Hyams v Peterson [1991] 3 NZLR 648, a case of defamation of a "Gang of 20". The Court, in a judgment given by Cooke P, as Lord Cooke then was, referred to the question whether the publication was capable of being understood in a certain way by "some reasonable readers or viewers", an expression used twice (657). A view according with that is set out in the American work, Harper James and Gray: "The Law of Torts" 2nd ed Vol 2 para 5.7:

"... it is enough that some person or persons recognized the plaintiff as the person defamed ...".

[12] Support for the "some" test is also found in Bruce v Odhams Press Limited [1936] 1 All E R 287 at 291, 296 and in Hayward v Thompson [1982] QB 47 at 68 ("... the only reasonable inference is that some readers must know the special facts ...") (emphasis added). Here the question is not quite that, but is rather whether the right inference is that none but unreasonable readers could fail to know, and infer a mistake from, extrinsic facts.

[13] Authorities which suggest that the test is whether the defamatory words could be interpreted as referring to the plaintiff also appear to imply that it is enough that some, not all, readers would understand them in that way; an example is Adam v Ward [1917] AC 309 at 326.1, per Lord Dunedin. And in Newstead v London Express Newspaper Ltd [1940] 1 KB 377, another case of arguably uncertain reference, MacKinnon LJ was of opinion that the question for the jury was: "Could the words used by the defendant be reasonably interpreted by those to whom they were published as referring to the plaintiff?" (at 389-390). Again, this language is consistent with the view that it is not necessary that all or most reasonable persons would so interpret them.

[14] Perhaps most importantly, in Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276, Dixon J, as his Honour then was, discussed the situation in which a publication may be capable of denoting two or more people and be "reasonably understood by one group of people to refer to one of them, and by another group to another and so on" (290). So here: many readers among those familiar with the name "Judge Hall" would take it to refer to him; others knowing one or more of the three facts relied on by the respondent would be uncertain whether it referred to the appellant or not; and some (surely the smallest group) would understand that the intention was to refer to Judge Wall.

[15] A reason for having discussed the authorities supporting the view that an inference that some people would reasonably take the references to "Judge Hall" to be to Judge Hall justifies finding for the plaintiff, now appellant, is that it is not clear that the jury must have understood this to be the issue for them. The agreed wording of the question would not have brought the point to their attention. Criticism was made before us, although not before his Honour, of the language used, in this connection, by the learned primary judge when summing-up. In my opinion the problem is not so much whether authorities can be found which support the expressions the judge used; they plainly can. It is whether it was brought home to the jury that what they really had to decide was whether reasonable readers would, necessarily, not have taken the article to refer to the appellant or, to put the issue positively, whether some reasonable readers, not all, would have taken it to refer to him. The learned primary judge told the jury that if satisfied that "more probably than not the words were published about the plaintiff, then you will answer [question 1] 'Yes'"; that the appellant had to establish "that he was the subject of any defamation contained in that article"; that the first question was "whether these allegedly defamatory statements were published of or concerning, that is, about, the plaintiff"; and that it had to be shown "on the balance of probabilities that the plaintiff was the person concerned". One could not be confident that any of these directions would have fastened the jury's attention on the point that it did not matter if they thought there were reasonable readers who would not have taken the article to refer to the appellant.

[16] To give effect to the criticisms now advanced as to the adequacy of the summingup, which accorded with the agreed form of the question and was not challenged by counsel at the trial, is an unattractive course. The chief importance of the form of the question and of the directions is that they may provide an explanation for the giving by the jury of an answer which was, at least if the agreed question was understood as raising the proper issue, unreasonable.

[17] The next point is whether the error is clear enough to justify the unusual step of rejection of a jury verdict. The most recent case of high authority relevant to that point is Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 61, 62. The principal judgment there drew attention to the appellate court's duty:

"If an appellate court is convinced, not that in its own view the amount is too high or too low but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, the proper performance of its functions will require it to intervene to prevent a miscarriage of justice".

A case in this State which is itself an example of interference with a jury's defamation verdict and contains a useful collection of some previous authorities of a similar kind is Evans v Davies [1991] 2 Qd R 498 at 512; one of the successful appellants in the cases cited was an ancestor of mine. Various expressions are used in the authorities there mentioned, for example, that contrary to the jury's view a publication "necessarily casts an imputation" is "necessarily actionable" or the verdict was "unreasonable". I prefer, adapting the language in Carson, to say that the question is whether the view that all reasonable readers must have taken the newspaper not to refer to Judge Hall when it said "Judge Hall" is outside the range of conclusions which could reasonably be reached, in the circumstances of the case - more simply, that that view could not reasonably be reached - and so the proper performance of this Court's functions requires it to intervene to prevent a miscarriage of justice.

[18] I would set aside the judgment for the respondent. Mr Keane suggested that we should now fix and award damages to the appellant. The fact that there have been two trials, in relation to a case not likely to involve any great sum of money (apart from costs) makes the submission a tempting one; but I would not adopt it. A question as to whether the publication was defamatory was left unanswered, at trial. Although the respondent's counsel has not conceded that point, it is one to which there is only one reasonable answer. Mr Mulholland has, properly in my view, not argued in this Court that it is other than defamatory. I would allow the appeal with costs, set aside the judgment entered below, order that the respondent pay the costs of the previous trials and order that there be a new trial, limited to the amount of damages to be awarded to the appellant.

A District Court judge has attacked the credibility of child witnesses, saying he would ban video evidence from them in his courtroom if he could.

Judge Clive Hall, QC, also said police officers had often made up their mind about the accused's guilt when questioning children.

'Children are a very risky business,' Judge Hall said.

'You cannot, in a criminal trial, keep children in an ivory tower. They cannot always be in a privileged position.'

The judge's comments, made during a case in which a man was found guilty of indecently dealing with a child under the age of 16, immediately drew a barrage of criticism.

Children's Commissioner Norman Alford said Judge Hall's comments were outdated, narrow-minded and misguided.

Commissioner Alford said Judge Hall needed to read a copy of the Australian Law Reform Commission's report, A Matter of Priority, to better understand children.

'We've got one or two judges that need to mend their ways and get a bit more au fait with the development of children,' Commissioner Alford said.

'He is clearly disadvantaging and pre-judging (children).

'He is showing an outmoded point-of-view and is perpetuating discrimination against children. I think it's regrettable that these sorts of views are being promulgated.'

Federal Human Rights Commissioner Chris Sidoti said A Matter of Priority revealed Queensland had the 'most shocking' rate of children being mistreated as witnesses by courts and lawyers.

Commissioner Sidoti said that the use of video tapes had been found to be a valuable way of sparing children the gruelling process of cross-examination in multiple hearings in court rooms.

He said there was no reason why children could not give good and reliable evidence.

He also said one of the reasons Australia had such a low rate of paedophile convictions was because the legal profession had not been able to extract evidence from children or to use that evidence properly.

Judge Hall delivered his comments last week after retiring a jury in the Townsville District Court to consider charges against Ray Maxwell Garraway, 48, of Kirwan.

Garraway was found guilty of one count of indecent dealing with a girl under the age of 16 on or about December 24.

The girl's sister, then 11, gave evidence on video tape claiming she witnessed the sexual assault.

But Judge Hall said the video evidence - the first used in Judge Hall's court - did not prove what happened and that the sister's motives should be questioned.

He added that children should be able to recall significant events that happened six months ago without needing to have their testimony taped.

A Matter of Priority states the law had traditionally viewed children as unreliable witnesses, based on perceptions they were "prone to fantasy", were suggestible and their evidence 'otherwise inaccurate'.

The report, however, recommended that judges be prohibited from warning or suggesting to the jury that child witnesses were unreliable.

Before retiring the jury, the judge warned the panel that the 11-year-old girl may have wanted to help her sister and that her taped evidence should be carefully compared to evidence given in court.".

[20] WHITE J: I have read the reasons for judgment of Pincus JA with which I agree and wish to add only a few comments. Once it is accepted, as it must be, that it is sufficient if some reasonable readers who knew or knew of the appellant would have taken the newspaper article to refer to him, the jury's answer to question one cannot stand. It cannot be supposed that six references to "Judge Hall" in a relatively short article would be dismissed as an error and not thought to be a reference to the appellant Judge Hall by all reasonable readers.

[21] It is a serious matter to set aside a jury verdict. I agree with his Honour that the expression of the duty of an appellate court when persuaded that a jury has fallen into error enunciated by the majority in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1992-3) 178 CLR 44 at 61, 62 is apt for application to this case. It seems clear that a conclusion that reasonable readers must have taken the newspaper not to refer to the appellant when it said "Judge Hall" went beyond the range of conclusions which could reasonably be drawn. That being so, this court is required to intervene to prevent a miscarriage of justice.

[22] The article admits of only one answer to the question 'was it defamatory?' There should therefore be a new trial confined to the issue of the quantum of damages. I agree with the orders proposed by Pincus JA.

[23] DUTNEY J: I agree with the orders proposed by Pincus JA for the reasons set out by him. I agree also with the additional observations of White J.