Sydney, 1971, November 16, 17; December 7. 7:12:1971

BARWICK C.J. The appellant sued the respondent for defamation. The proceeding before a magistrate published by the respondent in its newspaper. The report clearly was defamatory of the plaintiff. The respondent pleaded in separate pleas that the report was a fair report of a judicial proceeding and a fair report of the result of a judicial proceeding. If it was,the publication if bona fide was by dint of s. 14(1)(d) of the Defamation Act, 1958 (N.S.W.) a lawful publication.

2. The case was tried by a judge and jury. The trial judge directed the jury to return a verdict for the defendant. The evidence led in support of the plaintiff's case before the jury included a photostat copy of the newspaper report and a transcript of a shorthand note of what had been said by the magistrate when giving his reasons for dismissing an information under the Landlord and Tenant (Amendment) Act, 1932-1968 (N.S.W.) and of what was said by the parties to the magistrate and by the magistrate after he had delivered his reasons and announced his decision. (at p336)

3. The newspaper publication purported to be a report of those reasons, no reference being made to the discussion which supervened on their delivery. There is no doubt that the newspaper report was not verbally identical with the reasons given by the magistrate: also there was a headline which placed emphasis on what in my opinion may be thought to be an interpretation of those reasons. In considering the defendant's application for a verdict, the learned trial judge examined the newspaper report and the transcript of the reasons for judgment. In the course of his reasons for directing a verdict he expressed the opinion that there was no material fit to be submitted to the jury that the newspaper report was not fair. His final conclusion was "on a reading of the article and the judgment that this is a fair report of the proceedings within the meaning of the section and that it would not be open to a jury of reasonable men to hold otherwise". (at p336)

4. On appeal, the Court of Appeal Division, by majority (Asprey and Manning JJ.A., Jacobs J.A. dissenting) upheld the verdict. Upon the appeal to this Court a number of questions have been discussed, but as will appear, there is no need to decide all of them. (at p336)

5. I should first state briefly how the matter stood at the close of the evidence before the jury. The newspaper report and the transcript of the reasons for judgment tendered by the plaintiff established both the publication of defamatory matter, the actual words of the magistrate and the text of the supervening discussion, the accuracy of the shorthand not being questioned. The defendant, of course, could rely on this material in proof of its case. The issue on the relevant pleas of the respondent was whether the newspaper report was a fair report of, or upon the result of, the judicial proceedings it purported to report. The question was not whether the report was unfair: but if the matter were submitted to a jury whether they were satisfied positively that it was fair. The respondent bore the onus of establishing its pleas. If the jury were unable to make up their minds that it was fair, they would be bound to find against the defendant on the issue. (at p336)

6. Subject to a possible exception to which I shall refer, the trial judge in my opinion could only direct a verdict for the defendant on whom the onus rested, if as a matter of law the jury would be bound to find such a verdict. Thus if the jury were bound in law to find that the report was fair, there would be occasion to direct a verdict for the defendant. However if there had been no difference between the newspaper report and the reasons of the magistrate, it could have been said, in my opinion, that the jury were bound to find the publication a fair report. Also, it may be that if the report differed so little from those reasons that it could be concluded with absolute certainty that reasonable men must nonetheless conclude that the report was fair the trial judge could direct a verdict for the defendant as if the jury as a matter of law were bound to find for the defendant. But there is no need in this case to resolve either question which might be thought to be involved in the reasons for judgment of Latham C.J. in Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at p 442 and Dixon J. in Shepherd v. Felt and Textiles of Australia Ltd. [1931] HCA 21; (1931) 45 CLR 359, at p 379 , namely whether, even in such cases the issue must be left to the jury, their verdict if unreasonable being subject to being set aside as perverse. Cf. Brett L.J. in Milissich v. Lloyds (1877) 46 LJQB 404, at p 406 . (at p337)

7. This is quite clearly, in my opinion, not a case in which there is identity between the report and the reasons or so little difference that it could certainly be said that reasonable men must find the report fair. With respect to the contrary opinion expressed in the Supreme Court, the differences between the report and the magistrate's reasons, including the emphatic statement in the headline, were substantial. They required, in my opinion, that the issue raised by the relevant pleas of the defendant should be decided by the jury. In other words, the relationship of the newspaper report to the magistrate's reasons was not such on any view of the above questions that the jury were bound to find that the report was fair. Consequently, in my opinion, in the circumstances it was not open to the trial judge to direct a verdict for the defendant. To do so was to usurp the function of the jury. (at p337)

8. As there must, in my opinion, be a new trial, I do not think it appropriate to discuss in detail the differences which, in my opinion, make it impossible to conclude that the jury were bound to find the publication a fair report of the proceedings. But it is necessary, I think, to mention some matters which may assist a judge presiding over the retrial. (at p337)

9. The question for the jury as the matter presently stands would be whether the newspaper report as it would be read as a whole by members of the public is a fair report of so much of the proceedings of the magistrate's court as it purported to report. It is not for the judge to construe the publication as if it were a legal document creating or regulating the rights of parties. The plaintiff's rights flowing from the publication come from the Defamation Act. If there is no dispute as to the accuracy or completeness of the transcript of the shorthand note of the magistrate's reasons and the subsequent discussion, the question for the jury will be whether the publication is a fair report of what occurred in the magistrate's court as established by the transcript. (at p338)

10. The differences between the publication and the reasons are not limited in my opinion to those discussed in the judgments below. For example there is in my opinion a real question whether the magistrate did say that the solicitor had misled him. He said that he had been misled by certain documents and admissions and that the solicitor was involved at least in the making of the admissions. There is also his cryptic remark at the end of the supervening discussion to be considered. Whether the statement that the magistrate said that the solicitor misled him is a fair report of what he did say is in my opinion a matter for the jury. (at p338)

11. There remains the question whether the discussions which followed the delivery by the magistrate of his reasons for dismissing the complaint ought to be considered by the jury when considering whether the report was fair. I have already suggested one respect in which what occurred in these discussions might bear on the accuracy of the report. So far I have treated the defendant as entitled under s. 14 (1) (d) to justify its publication as a fair report of judicial proceedings or of the result thereof by treating the proceedings for the purpose of s. 14 (1) (d) as consisting of what occurred when the magistrate gave his reasons and pronounced his judgment: and also, that the reasons for judgment could be regarded as part of the result of the proceedings. No point was taken in this appeal by the appellant as to what for the purposes of s. 14 (1) (d) relevantly are judicial proceedings or the result of judicial proceedings. I see no present need to discuss or decide whether what the respondent has claimed to be entitled to do is a permissible course under the Defamation Act. But I am of opinion that the discussion which took place and which is included in the depositions forms part of the proceedings in this case. Further I do not think it can properly be said that what passed between magistrate and parties about the reasons for judgment could not possibly have any bearing on the question before the jury. In my opinion the jury are entitled when considering whether the publication was a fair report to have regard to what occurred upon the delivery of the reasons for judgment, as well as to any differences between the publication and those reasons. (at p339)

12. Finally, I may say that whilst I cannot accept the view that the jury must find that the report was fair in its references to the notice to quit as false, I am otherwise in general agreement with the reasons for judgment given in the Supreme Court by Jacobs J.A. (at p339)

13. In my opinion, the appeal should be allowed and a new trial ordered. (at p339)

McTIERNAN J. For the reasons stated by the Chief Justice I agree that the appeal should be allowed and a new trial ordered. (at p339)

OWEN J. I agree that the appeal should be allowed and a new trial ordered for the reasons given by the Chief Justice. (at p339)

WALSH J. Except as to one matter to which I shall refer presently, I agree with the reasons for judgment of the Chief Justice. I do not think that it is necessary in this case to consider the extent to which the judgments in Kimber v. The Press Association Ltd. (1893) 1 QB 65 , to which the learned trial judge referred when giving his reasons for directing a verdict to be entered for the respondent, should be accepted as correct. If it be assumed, contrary to the submissions of counsel for the appellant, that in Kimber's Case (1893) 1 QB 65 there was a correct statement of the tests by which a trial judge should decide whether or not to leave to the jury the question of fairness of a report of judicial proceedings or of the result of such proceedings, I am of opinion that in this case that question should have been left to the jury. (at p339)

2. But, in my opinion, the failure of the respondent's report to refer to a discussion which took place, after the Magistrate had given his decision and his reasons for it, could not be taken into account by the jury in deciding whether or not the report was fair. I do not think that I am required in the present case to examine closely the views as to the scope of the common law privilege covering reporting of judicial proceedings, which were expressed in the Court of Appeal in Macdougall v. Knight (1886) 17 QBD 636, at pp 639-640, 642 and 643 ; in the House of Lords on appeal in that case, (1889) 14 App Cas 194, at pp 200, 203-206 and 207 ; and, again, in the Court of Appeal in macdougall v. Knight (1890) 25 QBD 1 . Nor do I think it necessary to decide whether, within the meaning of s. 14(1)(d) of the Defamation Act, 1958 (N.S.W.), a fair report of "the result" of proceedings includes a report of the reasons for a decision as well as the decision itself; cf. Macdougall v. Knight (1889) 14 App Cas, at p 206 , where Lord FitzGerald said: "The reasons for the judgment and the judgment itself are quite distinct, though together usually described as the judgment of the judge." (at p340)

3. My reason for thinking that it is not necessary to resolve the questions to which I have just referred is that upon a perusal of the transcript of what occurred in the present case after the decision was given, I am of opinion that the omission of any reference in the respondent's publication to what was then said was not capable of being regarded as having a bearing on the question whether the publication was a fair report of the proceedings to which it referred or of the result of such proceedings. There was no retraction or qualification by the Magistrate of what he had said. An argument was addressed to him that part of what he had said was based upon a misunderstanding of the evidence or upon a failure to advert to some of it. But he did not accept the argument. The failure to include in the report an account of this part of what took place was not capable, in my opinion, of being taken into account as a circumstance affecting the question whether or not what was published was a fair report of the proceedings. But although I do not accept the submissions for the appellant complaining of the exclusion of the transcript of the discussion from consideration, I am of opinion, as I have said, that the question whether or not the report was a fair one should have been left to the jury. (at p340)

4. In my opinion the appeal should be allowed. (at p340)

GIBBS J. I have had the advantage of reading the reasons for judgment prepared by the Chief Justice and am in agreement with them. I would, however, add a few remarks. (at p340)

2. I incline to the view that the words "the result of any such proceedings" in s. 14(1)(d) of the Defamation Act, 1958 (N.S.W.) refer to the decision given in the proceedings or to the outcome of proceedings in which no decision was given, rather than to the reasons for judgment pronounced by the court. The delivery by a court of its reasons for judgment, in my opinion, forms part of the proceedings of the court. The real issue in the case was therefore raised by the second plea (that the words complained of were part of a fair report of the public proceedings of a court of justice) and not by the third plea (that the matter complained of was part of a fair report of the result of the public proceedings of a court of justice). However, no argument was addressed to this question either before us or, it would appear, in the Court of Appeal. (at p340)

3. The onus lay upon the respondent, the defendant, of proving that the report published was fair, and for the reasons given by the Chief Justice I am of opinion that in the circumstances of the present case it should have been left to the jury to determine whether they were satisfied on the balance of the probabilities that it was fair. Indeed, even where the judge considers that as a matter of law the jury are bound to find that the report was a fair one, the prudent course, except in the clearest of cases, is to leave the question to the jury to obviate the risk of a new trial: cf. Hope v. Sir W.C. Leng and Co. (Sheffield Telegraph) Ltd. (1907) 23 TLR 243, at p 244 . (at p341)

4. In my opinion the proceedings of which the words complained of purport to be a report did not necessarily conclude when the magistrate finished reading his judgment. The discussion that ensued and is recorded in exhibit D was between the magistrate and a party to the proceedings, and it appears that it took place before the case was concluded, and before the question of costs had been dealt with. What was said was not a mere interjection by a by-stander (see Delegal v. Highley [1837] EngR 841; (1837) 3 Bing NC 950, at p 961 [1837] EngR 841; (132 ER 677, at p 681) and cf. Farmer v. Hyde (1937) 1 KB 728, at pp 741-743 ) or an outburst after the proceedings had been closed (as in Hughes v. West Australian Newspapers Ltd. (1940) 43 WALR 12 ). It was open to the jury to consider that the discussion recorded in exhibit D formed part of the proceedings on the occasion on which the magistrate delivered his judgment, and that what was said placed a different complexion on the magistrate's strictures, so that to omit a reference to it rendered the report unfair. Of course they might have taken the opposite view, but the question was for them. (at p341)

Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be allowed with costs, order that the judgment for the defendant be set aside and that there be a new trial of the action.