Coherence
71 The appellants also make two submissions based on the principle of coherence. At a general level, the principle was invoked for the proposition that damages under s 52 of the Act should not be awarded for loss of reputation as the policy of the law and/or the interpretation of the Act is for such matters to be dealt with exclusively by the law relating to defamation. The second, and narrower, submission is that it would be contrary to public policy and to the provisions of the Act to award damages for misleading and deceptive conduct in relation to a publication which was found to be true and in the public interest.
72 The issue is one of statutory interpretation. I do not find the references to "the policy of the law" to be pertinent.
73 Mr Macfarlan acknowledged that acceptance of the general submission would mean that the enactment of s 65A would not have been necessary. It is, furthermore, a submission which is inconsistent with the line of authority to which Parliament responded by enacting s 65A. (See esp Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 47 ALR 497 and subsequently (1985) 58 ALR 549.) This line of authority, set out by French J in Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 7-10, continues to be applied. (See e.g. Versace v Monte (2002) 119 FCR 349 esp at [45]-[46].) Mr Macfarlan submitted that the argument which he was now putting to the Court was not put in these cases.
74 The appellants rely on the fact that since the decisions in the Federal Court which adopted a literal interpretation to s 52 and s 82 of the Act, the High Court has emphasised the significance of coherence of the law including coherence between the common law and statutory law understood as a single body of law. (See Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [53]-[55]; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at 532 [31]; Hill v Van Erp (1997) 188 CLR 159 at 231 referred to with approval in Sullivan v Moody at 580 [50]; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 335 [28], 342 [58], 361 [123], 425 [323]; New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 esp at [92]-[95]; Edwards v Attorney General (NSW) [2004] NSWCA 272; (2004) 60 NSWLR 667 esp at [6].)
75 Mr Macfarlan relied upon the reasoning of Levine J in Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 and the similar conclusion reached by the Full Court of the Supreme Court of South Australia in Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269 esp at [694].) However, in those cases the issue was whether the tort of negligence should intrude into the sphere regulated by the tort of defamation. The issue of statutory interpretation with which this Court is concerned was not involved.
76 The issue of coherence that arises in the present case is whether the words of either s 52 or s 82 of the Act should be read down so as not to extend to proceedings for injury to reputation, either at all or with respect to defensible publications. In such a context, the principle of coherence can only apply, if at all, as an assumption about the intention of Parliament when enacting the Act.
77 The issue of coherence in this case requires reading down the literal words of the Act on the basis that Parliament would not have intended to disrupt a well established body of doctrine, such as the law of defamation. This proposition is contrary to reasoning of the Full Court of the Federal Court of long standing - on the basis of which Parliament has intervened to further regulate the matter. The approach reflected in that Court, as modified in a particular way by statute, has been established for too long for this Court to intervene. In any event, it reflects the literal, perhaps literalist, approach that has long been adopted with respect to these statutory provisions. The appellants' general submission that s 52 or s 82 should be read down so as not to extend to publications covered by the law of defamation should be rejected.
78 The alternative proposition, for which the appellants primarily contended, is based on a factual situation where the actual act of publication has been found to be defamatory, but defensible as being true and in the public interest.
79 It must, however, be remembered that the act constituting the false and misleading conduct in the present case was not the publishing of the material. The false and misleading conduct identified was the deception involved in getting access to property. It was that access which enabled the appellants to obtain visual footage of a confrontation with Mr Cox which, directly in his own case and indirectly in the case of Ilvariy, was found to have caused damage.
80 There is, in my opinion, no intersection of any kind between the law of defamation and the statutory contravention, unless damages have been recovered for injury to reputation by the ultimate publication. Mr Macfarlan accepted that it was a necessary step in his argument on this ground of appeal that he establish that Smart AJ awarded damages for injury to reputation.
81 Mr Macfarlan's submissions on the issue of reputational damage were based on passages in his Honour's reasoning which, he submitted, indicated that the broadcast of the confrontation between Mr Fordham and Mr Cox was part of the material that conveyed the defamatory imputations and gave them greater sting. He submitted that the defamatory imputations were not derived only from broadcasting the footage of dissatisfied homeowners, but also from the footage which occurred by reason of the trespass which, in turn, came about only by reason of the false and misleading conduct. I have set out the relevant passages of Smart AJ's judgment above.
82 The first passage to which Mr Macfarlan drew attention was the reference in par [1066] to how the conduct enabled the appellant broadcaster to "enhance its program and give it greater sting at the expense of CHNR (Ilvariy) and Mr Cox". In my opinion this is not a reference to the impact on the respondent's reputation by reason of the imputations found to be defamatory but defensible. This passage is a reference to how the confrontation enhanced the impact of the programme as a whole. It was not, in my opinion, directed to enhancing the sting of any defamatory imputation conveyed by the programme.
83 In par [1066] his Honour went on to say that the respondents "were visually held up to public criticism" and that, "[w]ith the visual representation added to the words, the criticisms and allegations are more memorable and tend to linger longer in the recollection of the reasonable viewer". The "intentions and allegations" are, it appears to me, a reference to the statements said to give rise to the imputations. In this regard, in my opinion, Mr Macfarlan has established an interconnection between injury to reputation and that part of the broadcast which consisted of the confrontation.
84 Mr Macfarlan also referred to [1069] where his Honour indicated that the false and misleading conduct enabled the appellant broadcaster "to enhance its program by a personal confrontation in unfair circumstances" and that "Mr Cox would not have suffered the damage of his visual representation being exposed to hundreds of thousands [of] people in adverse circumstances".
85 This passage is a reference back to his Honour's analysis at [1052] where he distinguished the part of the programme consisting of statements by the disappointed homeowners and referred to the fact that the access granted on the basis of the misrepresentations led to the confrontation with Mr Fordham who made some "strong and defamatory remarks". This does link the confrontation to the defamatory imputations.
86 Furthermore, these comments at [1052] were made in a context in which his Honour identified the task which he was undertaking - and which he described as "more difficult" - as being the identification of "a causal connection between the contravening conduct and the injury to the reputation of Ilvariy and Mr Cox" (emphasis added). This reference also indicates that his Honour was focusing on the publication of the confrontation in terms of compensation for the injury to the reputation of the respondents arising from the confrontation.
87 Accordingly, the appellants have made out the factual basis of these submissions.
88 Mr Macfarlan emphasises the incongruity of the consumer protection provisions of the Act giving rise to an award of damages for conduct which was related to, albeit not constituting, the supply of truthful information to the public. Although the fact that s 52 appears in part of the Act entitled "Consumer Protection", which has long been held not to confine the scope of s 52, the heading remains part of the context when construing the language of the Act. (See Concrete Constructions at 601-602.) In that case the High Court confined the words "in trade or commerce", in part, on this basis.
89 I do not find the principle that a person cannot take advantage of his own wrong or the ex turpi causa principle, on which Mr Macfarlan relied, of any assistance on the issue of statutory interpretation.
90 I have not been able to identify a textual foothold for the appellants' proposition. It cannot be the word "by" in s 82, as Mr Macfarlan expressly abjured any causation point. Nor has it been submitted that, by reason of the truth of the imputations, the respondents did not in fact suffer any compensable damage from the conduct found to be in contravention of s 52.
91 Without a textual foundation for reading down either s 52 or s 82 in the manner contended, the appellants' proposition, even if not strictly covered by authority, is inconsistent with the line of authority to which I have referred above. For example, the joint judgment of the Full Court in Global Sportsman commenced with the observation:
"There is no definable boundary between conduct which is misleading or deceptive … and material which is defamatory."
92 In any event, this submission is based on the unattractive proposition that the end justifies the means. This process of reasoning is potentially subversive of the rule of law. There appears to be no authority directly in point. Nor should one be created.
93 In my opinion, the appellants' submissions should be rejected.
94 I note that although the appellants did appeal in grounds (m) and (n) of their Notice of Appeal from the award of damages as excessive, no submissions were addressed to this issue either in writing or orally.