Nationwide News P/L v Heggie

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40062/01 MEAGHER JA HODGSON JA FITZGERALD AJA Monday, 13 August 2001 NATIONWIDE NEWS PTY LIMITED v MARIA HEGGIE FACTS The respondent, a Councillor elected to Fairfield Council, sued for defamation arising out of an article published by the appellant. The article discussed a meeting of the Fairfield Council at which certain development applications for gaming taverns were debated. The respondent alleged that ten imputations arose from the article.

A jury was empanelled to determine whether the article carried the imputations alleged and if so, whether each imputation was defamatory. The manner in which counsel for the defendant addressed the jury on these matters led the trial Judge to discharge the jury. The appellant appealed from that decision.

HELD per Meagher JA, Hodgson JA & Fitzgerald AJA: (i) There was a ground on which the jury could be discharged. Per Meagher JA: Counsel for the defendant embarked to some extent on speculations as to the truth of what was said in the article which is not the function of a jury. His remarks were also directed to the intention of the newspaper, which is irrelevant. They overlooked the well-established principle that a re-publication of a defamatory statement is the publication of a fresh defamation. Per Hodgson JA: It is generally irrelevant whether the publisher would be understood as itself intending to make the imputation or endorsing it in any way. It may be erroneous and potentially highly confusing to invite juries to consider this question. As a general rule, the imputation is made by being published, even if it is published as an imputation made by someone else. Per Fitzgerald AJA: The defendant was entitled to seek to persuade the jury that, read in context, the passages complained of were not defamatory. However, the defendant was not entitled to misinform or confuse the jury. It is unnecessary to endorse fully the reasons given by her Honour to accept her conclusion that the defendant's address to the jury was confusing on issues of truth and intention.

(ii) The submission that her Honour erred in exercising her discretion to discharge the jury must fail. Her Honour made no mistake of law or fact.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40062/01 MEAGHER JA HODGSON JA FITZGERALD AJA Monday, 13 August 2001 NATIONWIDE NEWS PTY LIMITED v MARIA HEGGIE

JUDGMENT 1 MEAGHER JA: This is an appeal by leave from an order made by Bergin J discharging a jury after a s.7A hearing in a defamation case. 2 It arose out of an article which appeared in a newspaper called "The Fairfield Advance", a well known journal which circulated in Fairfield, which is a suburb of Sydney. That article dealt with certain proceedings which took place at a meeting of the Fairfield Council, at which certain development applications for "gaming taverns" were debated. Part of that article said: "Mr Watkins also accused Mrs Heggie of having double standards, saying he would 'love to know what the real deal is, what's in it for you'."

3 Mrs Heggie is the plaintiff/respondent. She sued for defamation. The imputations she alleged arose from this newspaper article were ten in number, and included the following: (1) The plaintiff was a corrupt councillor in that she voted for the approval of a tavern at 244 Canley Vale Road because there was a secret benefit in this for her.

(2) The plaintiff voted for the approval of a tavern at 244 Canley Vale Road because there was a secret benefit in this for her.

(3) The conduct of the plaintiff in voting for the approval of a tavern at 244 Canley Vale Road was such that she might reasonably be suspected of having obtained a secret benefit.

(4) The plaintiff voted for the approval of a tavern at 244 Canley Vale Road because she had been bribed.

(5) The conduct of the plaintiff in voting for the approval of a tavern at 244 Canley Vale Road was such that she might reasonably be suspected of having been bribed.

The case had then to go to the jury in order for them to determine whether the newspaper article carried those imputations, and if so whether those imputations were defamatory. This is what is required by the new s.7A of the Defamation Act (1974). Sub-sections (1) and (3) of that section read as follows: (1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning.

(3) If the court determines that: (a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and

(b) the imputation is reasonably capable of bearing a defamatory meaning, the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.

4 Mr Neil QC addressed the jury on these matters on behalf of the plaintiff, as did Mr Hale SC on behalf of the defendant. 5 It was Mr Hale's efforts in this regard which caused her Honour to discharge the jury. 6 There is no need to quote at length the submissions which Mr Hale made to the jury. However, they provoked the learned Judge to make the following utterance: "This jury is not required to deal with truth or falsity or intentions to convey imputations. This jury must only decide two issues, as I have said already: (1) whether this article and its context in fact conveys the imputations for which the plaintiff contends."

7 To my mind, her Honour was quite entitled to take the course she did. What Mr Hale did was, to some extent, embark on speculations as to the truth of what Mr Watkins said, which is quite clearly not the function of the jury to determine at a s.7A hearing. But the thrust of his remarks was directed to another , and equally irrelevant, topic, viz. the intentions of the newspaper when it published its report. He insisted that the jury determine whether the newspaper intended to defame Mrs Heggie, whether it clearly distanced itself from Mr Watkins, whether it can be said to have "adopted" or "given its imprimatur" to his utterances. He repeated it all before this Court. 8 What Mr Hale SC, with all respect to him, overlooked is the well-established principle that a re-publication of a defamatory statement is the publication of a fresh defamation. As Gatley on Libel and Slander (6th ed) 1967 says: "Every republication of a libel is a new libel". The same point was made by the Full Court of New South Wales in Wake v John Fairfax and Sons Ltd (1973) 1 NSWLR 43 at 49, when the matter is put in the following way: "There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted. The purpose of the republication will also have a significant bearing. There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts it or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v Daily Telegraph Ltd (1964) AC 234 at 284: 'For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it'."

This was re-stated by Smithers, Neaves and Pincus JJ in Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259. Mr Hale's fixation on "adoption" of the libel, and his obdurate refusal to recognise that the newspaper article was republishing Mr Watkins's libel, in the light of those authorities, was thus demonstrably provocative. 9 It follows that, in my opinion, the appellant's principal submission, viz that there was nothing in Mr Hale's address to which objection could properly be taken, must fail. 10 The only other point is a submission that her Honour erred in exercising her discretion to discharge the jury. This is a hopeless submission. Her Honour made no mistake of law or fact. She knew, and said, that a discharge was a last resort. But she felt - and who can judge the matter better than she? - that she was unable to undo all the mischief by giving further directions to the jury. 11 In my opinion, the appeal should be dismissed with costs. 12 HODGSON JA: I agree with Meagher JA that this appeal should be dismissed with costs. I would however express my reasons a little differently. 13 According to s.9 of the Defamation Act 1974, a cause of action in defamation requires that there be a publication by means of which the publisher "makes an imputation defamatory of another person". Mr. Hale SC submitted that whether published words convey a particular imputation will depend on the meaning the ordinary reader understands the publisher as having intended to convey; and he relied on Amalgamated Television Services Pty. Limited v. Marsden (1998) 43 NSWLR 158 at 167B and Australian Newspaper Co. Limited v. Bennett [1894] AC 284 at 287-8. 14 The authorities do show that it may sometimes, in particular circumstances and for particular purposes, be relevant to consider what an ordinary reader would understand a publisher as having intended to convey; but in my opinion the question whether a publication makes an imputation does not in general require any consideration of the question whether an ordinary reader would understand the publisher to have intended to convey that imputation. And in my opinion, it may be erroneous and potentially highly confusing to invite juries to consider this question. 15 Where the publication is of an assertion that certain words were spoken by another person, the general rule is as stated by Lord Devlin in Lewis v. Daily Telegraph Limited [1964] AC 234 at 284: For the purpose of the law of libel, a hearsay statement is the same as a direct statement, and that is all there is to it.

See also Wake v. John Fairfax & Sons Limited [1973] 1 NSWLR 43 at 49 and Australian Broadcasting Commission v. Comalco Limited (1986) 68 ALR 259. It is generally irrelevant whether the publisher would be understood as itself intending to make the imputation or endorsing it in any way. As a general rule, the imputation is made by being published, even if it is published as an imputation made by someone else. 16 Although this is the general rule, it is not entirely without exceptions. 17 A report that a person has been charged with an offence does not generally carry the imputation that the person is guilty of the offence, but merely the lesser imputation that the police reasonably suspect the person of having committed the offence: Mirror Newspaper Limited v. Harrison (1982) 149 CLR 293. 18 It also seems clear that, if a publication is of an imputation and also its refutation, then it may be that the whole publication does not make the imputation: see Bik v. Mirror Newspapers Limited [1979] 2 NSWLR 679n. 19 Furthermore, the identity of the person who made the imputation and/or the circumstances of its making may be such that the publication of the fact that the imputation was made, together with the identity of the person making it and/or the circumstances of its making, does not itself make the imputation. Plainly, a report that an actor X accused an actor Y of being a murderer does not carry the imputation that Y is a murderer, if the report makes it clear that the accusation was part of the dialogue of a play in which both were acting. 20 More relevantly to the present case, a report that an opposition politician A accused a government politician B of deceiving the public, in relation to a particular action of the government, would not necessarily be understood as making the imputation that B acted dishonestly and deceitfully, or the imputation that B is a dishonest and deceitful person. Furthermore, if B sued A and the publisher in respect of the publication of that accusation, a finding that A made the imputation would not, as a matter of absolute necessity, require a finding that the publisher also made that imputation. In a case such as that, in my opinion it might be relevant to consider whether the claimed imputation was an allegation made by a person who had an interest in making such allegations and who regularly made them, whether the other side of the picture was published, whether there was any endorsement of the allegation by the publisher or any other suggestion that it was true, and whether there was any intention manifested by the publisher itself to make the allegation. However, all those considerations would only be as matters relevant to the question, does the published material, considered fairly and as a whole, make the claimed imputation. 21 However, in my opinion, it would be quite wrong to suggest that published material, setting out an imputation made by another person, does not itself make the imputation if it merely publishes an allegation, or if both sides of the picture are published, or if there is no endorsement of the imputation by the publisher, or if no intention of the publisher to make the imputation is manifested. Certainly it would be an error to suggest that, because all that is published is an allegation, the publication does not make an imputation. There is in fact no sharp distinction between an allegation and an imputation: an imputation simply is an assertion concerning a person, or a charge or accusation: see Petritsis v. Hellenic Herald Pty. Limited (1978) 2 NSWLR 174 at 183, 189 and 197; Monte v. Mirror Newspapers Limited [1979] 2 NSWLR 663 at 677-8. 22 In my opinion, on a fair reading, Mr. Hale's address to the jury did convey the impression that an imputation is not made by merely publishing an allegation, particularly if both sides of the question are published; and that an imputation is not made if there is no endorsement of the allegation by the publisher. Although questions concerning the circumstances of the original making of the allegation, the publication of both sides of the matter, and the lack of endorsement by the publisher, are matters which might be relied on, if carefully put as part of a submission that the published words did not make the imputation complained of, such matters were in this case used in a way which was both erroneous and liable to confuse the jury. 23 In those circumstances, in my opinion, there was a ground on which the jury could be discharged; and in my opinion no error in the exercise of discretion by the trial judge is shown. 24 For those reasons, in my opinion the appeal should be dismissed with costs. 25 FITZGERALD AJA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Meagher JA.

26 As his Honour has said, Bergin J discharged the jury prior to obtaining its decision in a defamation action brought by the respondent against the appellant. That order, which it seems has not been entered, was made on the respondent's application following the appellant's counsel's address. The appellant then sought and obtained an adjournment of the trial but was ordered to "pay the [respondent's] costs thrown away by reason of the discharge of the jury and the application for the adjournment." Subsequently, the appellant obtained leave to appeal. According to its notice of appeal, the appellant appeals against Bergin J's decisions and asks that her Honour's orders be set aside and, "[i]n lieu of those orders, the Court order the respondent pay the costs occasioned by the discharge of the jury and the vacation of the hearing dates on 5-9 February 2001" and the appellant's costs of the appeal.

27 In this Court, the appellant accepted that the order discharging the jury has already taken effect and an order setting it aside would be a futility, that the order for an adjournment was made on the appellant's application, and that the order giving leave to appeal was not directed to interlocutory costs orders. However, the appellant argued that its appeal raises important principles of defamation law which should be decided before another jury is empanelled in this proceeding.

28 The passage in the article published by the appellant which the respondent alleges defamed her stated that another Councillor had accused the respondent of "double standards" and quoted the other Councillor as saying that he "would love to know what the real deal is, what's in it for" the respondent. If the Councillor's accusation and quoted statement were defamatory of the respondent and that was all that the article relevantly contained, the article also defamed the respondent: Lewis v Daily Telegraph Ltd. (1964) AC 234, 284; Wake v John Fairfax & Sons Ltd. (1973) 1 NSWLR 43, 49; Australian Broadcasting Commission v Comalco Ltd. (1986) 68 ALR 259. However if, as the appellant contends, the article also contains other relevant passages, the words complained of by the respondent must be considered in context to ascertain whether the appellant, by the article, made the defamatory imputations alleged by the respondent: cf. Bik v Mirror Newspapers Ltd. (1979) 2 NSWLR 679n.

29 I accept the first step in the appellant's argument, namely, that it was entitled to seek to persuade the jury that, when the passages complained of by the respondent are read in context, the article did not defame the respondent.

30 However, the appellant was not entitled to misinform or confuse the jury by its submissions concerning the approach to be taken by the jury to ascertain the meaning of the relevant passages in the article and whether it made the imputations defamatory of the respondent which she alleged.

31 The trial judge considered that the appellant's counsel's address to the jury had "caused .. confusion" which her Honour doubted she could correct by directions. Both the appellant's submissions to the jury and its attempt in this Court to justify those submissions loosely interwove a variety of disparate propositions in a manner which is extremely difficult to understand.

32 It is sufficient for present purposes to note that the confusion extended to issues of intention and truth, sometimes by reference to the appellant and sometimes by reference to the Councillor who made the accusation and statement quoted in the article. Confusing references to intention related to both whether the appellant intended to defame the respondent and whether the Councillor who made the accusation and statement, as a politician, intended that what he said be believed. One phrase used was whether what was said was "intended literally". The truth or falsity of the Councillor's accusation and statement was introduced on the basis, sometimes at least, that if a reasonable person reading the article would not have believed the Councillor's accusation and statement, seemingly because he was a politician, the article was not defamatory. Elsewhere, it seemed to be suggested that the article was not defamatory unless the reasonable reader would have concluded that the other Councillor's accusation and statement "must be true". The jury's "impression" concerning whether the other Councillor had "thoroughly researched and considered" his accusation and statement and "satisfied himself" was suggested to be relevant.

33 It is unnecessary to endorse fully the reasons given by her Honour in an ex tempore judgment in order to accept her conclusion that the appellant's address to the jury was confusing.

34 The trial judge had heard the appellant's counsel's address and observed the jury. She might well have decided that an attempt to clarify the position would necessitate repetition of what the appellant had submitted to explain why it was wrong and that that would increase the confusion. Her Honour's conclusion that it would be better to discharge the jury was open.

35 I agree with the orders proposed by the other members of the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.