FEDERAL COURT OF AUSTRALIA

Nationwide News Pty Limited v Rush [2018] FCAFC 70

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed 3 April 2018 be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    I will ask Lee J to deliver the first judgment on the leave application.

LEE J:

2    The principles informing the determination of whether to grant leave to appeal from a decision of a single judge of this Court are not novel. The starting point is that in exercising the power to grant leave, regard must be had to the statutory charge in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (Act) that the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

3    Consistently with the facilitation of a just resolution, an applicant must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ).

4    Additionally, consistent with the facilitation of a quick, inexpensive and efficient resolution is the principle which emerges from the oft-cited warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, that if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be “disastrous to the proper administration of justice”.

5    This warning has a particular resonance in defamation. Interlocutory disputation in defamation occurs to an extent which is uncharacteristic of other forms of litigation, particularly commercial litigation. This interlocutory disputation takes many forms including applications to amend or strike-out pleadings because of challenges to the form and capacity of the imputations or, after the defence has been filed, if contextual truth is pleaded, applications to strike-out or ‘plead back’ contextual imputations. Moreover, in defamation, interlocutory disputes bespoke to defamation law, such as so-called ‘strike in’ applications and disputes that have fallen (or largely fallen) into desuetude elsewhere, such as arguments about administering or answering interrogatories, are not uncommon. Already, in cases such as Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 at [52]-[74] and [80] (Wigney J), this Court has adopted an approach as to the form of imputations and as to capacity determinations which represents an attempt to apply to defamation cases the same approach to case management that applies in all other civil litigation in the Court (as mandated by Part VB of the Act). The predilection for interlocutory disputation in this area of the law should not be encouraged by the ready grant of leave. To do otherwise would fail to pay sufficient heed to the warning of Jordan CJ that cases could be delayed “interminably” and “costs heaped up indefinitely” if a litigant could, in effect, transfer all exercises of discretion in interlocutory applications to the Full Court.

6    Even if it was reasonably arguable that the primary judge’s discretion miscarried, that would not, in and of itself, be a sufficient basis for the grant of leave.

7    As to whether the primary judge’s decision warrants reconsideration, I do not consider that it does.

8    First, although not determinative of the application, as Mr Rush submits, it is correct that this application be characterised as a matter of practice and procedure. Apart from the presently irrelevant exceptions of new evidence being admitted or where there is a change in the law, an appeal by way of re-hearing requires demonstration of error: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at 435 [22] per Allsop J (Drummond and Mansfield JJ agreeing). Moreover, what is required is demonstration of error in the orders made by the primary judge and not the reasons given for those orders. Here the orders challenged were made by the primary judge for two reasons: (a) the pleading of paragraphs 36.9A-36.9C of the amended defence was unable to be sustained as a matter of law, in the sense that the pleading did not disclose a reasonable defence; and (b) because the relevant paragraphs were insufficiently relevant, ambiguous and were likely to cause embarrassment, prejudice or delay: see Rush v Nationwide News Pty Ltd [2018] FCA 357 at [159], [163] and [166]. Although these two reasons were interrelated (as the reason given for embarrassment and prejudice was that it was not possible to discern the apparent relevance of the impugned paragraphs and how they interrelated with the more orthodox pleading of qualified privilege), this application is not just about what Nationwide and Mr Moran sought to characterise as a novel point of substantive law. It also carries with it the need to establish that there was something wrong with his Honour’s conclusion that the issue of law did not require determination and the real question was the relevance and ambiguity of the relevant paragraphs. This characterisation of the application as a matter of practice and procedure is not an insuperable barrier to leave, but is a reason to proceed with caution.

9    Secondly, and more importantly, focusing on the reasons given for the orders, no sufficient doubt exists as to their correctness. It is unnecessary for the disposition of this application to canvass the numerous authorities to which we were referred. Section 30(1) of the Defamation Act 2005 (NSW) provides a defence where defamatory matter is published in the course of disseminating information on a subject of interest or apparent interest to readers, and the respondent conducts itself reasonably. If the story is true, a defence otherwise exists. Although as Mr Blackburn SC submitted orally, the defence of justification is not, in some fashion, deferred until after one rejects a defence of justification, the purpose of statutory qualified privilege is to afford a defence when truth is not an answer and yet a publisher acts reasonably.

10    It follows from this, as his Honour described at [140]-[141], that the “main question for determination” was whether the publisher “acted reasonably in publishing despite the fact that what was published turned out to be untrue” and that it is “difficult to see how the objective truth or falsity of the statements can have any real bearing on any of the s 30(3) matters” in the circumstances of this case. No sufficient doubt has been demonstrated in his Honour’s conclusion at [133] and [149] that it was not reasonably arguable that the objective truth of the facts as pleaded in paragraphs 36.9A-36.9C could relevantly bear on the reasonableness of the conduct of Nationwide and Mr Moran in publishing the matters the subject of complaint. It is worth noting that his Honour referred, on a number of occasions, to the failure of Nationwide and Mr Moran to point to any logical connexion between those paragraphs and the matters identified in s 30(3) of the Defamation Act (that the Court may take into account in the evaluative assessment of whether the conduct of publication was reasonable).

11    In my opinion, substantial injustice would not result if leave is refused. Even if one was to leave to one side the ‘tight rein’ which must be kept on appeals of this type, neither Decor limb is made out, and I consider that the application should be dismissed with costs.

RARES J:

12    I agree with the orders proposed by Lee J and generally with his reasons but wish to add the following observations. First, the argument of Nationwide News Pty Limited and Jonathon Moran (the publishers) amounted to no more than what they published was a collection of statements that other people had told the publishers and of the inquiries that they had made. The publishers contended that their reporting of those, as appeared in the matters complained of, entitled them to lead evidence to determine the objective truth of those matters. The primary judge rejected that argument. There is no sufficient doubt as to the correctness of his reasons for doing so.

13    Secondly, there will be cases in defamation litigation where it is essential for the Court to engage in interlocutory processes at an early stage, including to determine the capacity of a matter complained of to convey alleged imputations or contextual imputations. After all, much of defamation litigation turns on what the words of the publication complained of convey to the ordinary reasonable reader, listener or viewer. However, that should not detract from the obligation of the Court, the parties and their lawyers to conform with the overarching purpose of the civil practice and procedure provisions as provided in Pt VB of the Federal Court of Australia Act 1976 (Cth), as Lee J explained. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 321 [51], French CJ, Kiefel, Bell, Gageler and Keane JJ, said that case management is now an accepted aspect of the system of civil justice as administered by Australian courts. They added:

It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.

14    This case is an exemplar of why that should be so. The publishers made a public attack on Mr Rush of a most serious kind. He was entitled to a prompt hearing of the dispute based on the real issues that were for trial. The primary judge distilled those issues, promptly, after some attempts, as he recorded in his reasons. Were leave to appeal granted, an appeal would expose the parties to yet another round of interlocutory disputation. In addition to the passage that Lee J cited from In re the Will of F.B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, Jordan CJ also said (which Gibbs CJ, Aickin, Wilson and Brennan JJ approved in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177):

The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

15    In my opinion, there is no reason to doubt the correctness of his Honour’s decision to strike out paragraphs 36.9A to 36.9C of the defence as well as his finding that it was not necessary to decide which of the two approaches was correct as to the relevance of the objective truth of the matter complained of to a statutory defence of qualified privilege (whether or not under the now repealed s 22(1)(c) of the Defamation Act 1974 (NSW) or its current analogue in s 30(1)(c) of the Defamation Act 2005 (NSW) and the other uniform defamation legislation). Those approaches are those in Makim v John Fairfax & Sons Ltd (1990) A Def R 50-075, 5 BR 196 per Hunt J or Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 90-93 [322]-[331] per White J.

16    I would simply observe, as Lord Griffiths said, giving the advice of the Privy Council, in Austin v Mirror Newspapers Ltd [1986] AC 299 at 313C-D:

In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be.

17    For these reasons, I agree with the orders proposed by Lee J.

ALLSOP CJ:

18    I agree with the orders proposed by Lee J. I agree with the substance of his Honour’s reasons and I agree in substance with the additional observations of Rares J. For my part, it is unnecessary and inappropriate to isolate a question that might lie between the views of Hunt J in Makim v John Fairfax & Sons Ltd (1990) A Def R 50-075 and White J in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; 237 FCR 33. What can be identified as a relevant circumstance for the purposes of s 30(3) of the Defamation Act 2005 (NSW) is a question of the meaning and application of the statute and the particular circumstances in the context of the alleged defamation. I would eschew a process of creation of a priori rules that might encrust the statute unnecessarily. The primary judge himself recognised this very point. He said at [137]:

It may perhaps be doubted, however, that Hunt J intended to lay down a concrete rule that the objective truth of the published statements can never be relevant to the reasonableness of the publisher’s conduct in publishing, and can never be relevant to any issue that may arise in the context of the defence of qualified privilege.

19    The question is whether the truth of the matter as pleaded in this case was capable of assisting the defence of qualified privilege under s 30(3). The primary judge was of the view that it was not. In my respectful view, for the reasons the other members of the Court have given that evaluation is not subject to real doubt and leave to appeal should not be granted on that issue. It is certainly not, in my view, an appropriate case to isolate a legal issue that does not arise.

20    The application for leave to appeal filed 3 April 2018 is dismissed with costs.

Associate:

Dated:    4 May 2018