BOND CORPORATION HOLDINGS LID v_ AUSTRALIAN BROADCASTING COMMISSION SUPREME COURT OF NEW SOUTH WALES KIRBY P, SAMUELS and MEAGHER JJA 10 April 1989, 28 June 1989 [1989] NSWCA 22 DEFAMATION — innuendo — imputations — judge orders that the matter complained of is not reasonably capable of supporting any of the imputations pleaded — decides that the imputations will not go to the jury — current affairs news programme — reference to investigations into Australian investments of ex-President of Republic of Korea — investments allegedly secured by corrupt and unlawful means — application for assistance of Australian authorities to trace investments in Australia — remark that "the Bond Corporation is known to be paying close attention to the Korean investigation" — whether supports imputation of a reasonable suspicion that it assisted in the investment in Australia of funds known to be gained unlawfully — or that it was involved in unlawful business deals — held: (Samuels and Meagher JJA; Kirby P dissenting) (Dismissing appeal, by leave, from David Hunt J) The reference to the appellant in its context was not capable of giving rise in a reasonable listener to the imputations pleaded — the imputations were therefore properly withdrawn from the jury. Lewis and Ors v Daily Telegraph Ltd and Ors [1964] AC 274; (1963) 1 QB 340, 374 and Mirror Newspapers Limited v Harrison (1982) 149 CLR. 293 applied; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260; Anderson v Mirror Newspapers Ltd (1986) 6 NSWLR 99 discussed. JURY — defamation trials — respective functions of judge and — circumstances in which a judge may withdraw from the decision of a jury imputations which are not capable of reasonably carrying the meaning alleged by the plaintiff. PRACTICE AND PROCEDURE — defamation — withdrawal of imputations from jury — test to be applied — whether the ordinary reasonable reader of the newspaper report or listener or viewer would draw the inferences alleged in the imputations pleaded — discussion by members of the Court (Kirby P dissenting) of the history of defamation trials and of the respective functions of judge and jury. Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 696 considered. Defamation Act 1958, s6. Defamation Act 1974, s4, s6, s11, s23, s50, s53. Supreme Court Act 1970, s103. Supreme Court Rules Pt31 r2. Kirby P A separate trial was conducted in these proceedings by consent of the parties and pursuant to Pt31 r2 of the Supreme Court Rules. David Hunt J ordered that certain imputations pleaded by Bond Corporation Holdings Ltd (the appellant) to arise out of the matter complained of which was broadcast by the Australian Broadcasting Corporation (the respondent) should not go to the jury summoned to try the claim. His Honour granted the appellant leave to amend. No amendment is sought or seems possible. Pursuant to s103 of the Supreme Court Act 1970, the appellant sought the leave of the Court of Appeal to appeal from his Honour's orders. The Court heard the summons for leave to appeal. By consent of the parties, it dealt with the argument as a hearing of the appeal. For the reasons which I will now explain, lam of the opinion that leave should be granted. In respect of the two imputations still pressed by the appellant in this Court, I would reverse his Honour's order and direct that the imputations so pleaded be left for determination by the jury. 2 UNREPORTED JUDGMENTS Although in the matter complained of, the appellant is not identified by the name by which it sues but simply as "the Bond Corporation", Hunt J was prepared, for the purposes of the hearing, to assume that, by these words, the appellant was sufficiently identified. I shall make the same assumption. The question of principle involved in the appeal is the entitlement of a judge to withdraw from a jury - the "constitutional tribunal" established by law to determine disputed claims of defamation - the decision whether, in the matter complained of, the pLaintiff had established an arguable case fit to be tried. In issue is the respective function of the judge and the jury in disposing of complaints of defamation. Needless to say, the issue is not without legal authority. However, in my respectful opinion, the case illustrates a misapplication of that authority. It needs to be corrected. Only in that way in this, as in like cases, will the strictly limited function of the judge be observed and the function of the jury respected. Cf Hocking v Bell (1945) 71 CLR 430, 431 (HC); (1947) 75 CLR 125, 132 (PC). The matter complained of: In order to understand the full significance of the appellant's case - and the imputations for which it argues - it is necessary to set out a significant part of the matter complained of, so that those complaints will be seen in context. They must not be taken in isolation for that is not how the ordinary listener heard them. The broadcast in question occurred in the "PM" programme which the respondent put to air on 4 November 1988. Most Judges occasionally listen to the radio. They are entitled to take note that the programme (PM) is a major item of the respondent's current affairs service. It has a large audience and is broadcast throughout the country. It is, generally speaking, a serious and responsible programme, making an important contribution to the community's understanding of news events at home and abroad. These very features attract to its audience, people of sophistication and intellectual discernment. But there is also a mass audience of ordinary citizens many of whom (it may be inferred) listen to it on their journeys home from work or when otherwise distracted by evening chores. In the programme on 4 November 1988, an item was broadcast which contained an opening assertion that "South Korean investigators" had asked "the Australian authorities to help trace investments by the family of the former President, Chun Doo-Hwan as public pressure mounts for punishment of the unpopular ex-General". The broadcast continued: "PAUL MURPHY: Chun is said to be digging in his heels against suggestions from supporters that he apologise to the nation for past wrong-doings and surrender his ill-gotten assets. In an exclusive interview with the ABC, ahead of a State visit to Australia from tomorrow, President Roh Tae-Woo told our North-East Asia correspondent, Walter Hamilton, there should be no retaliation against the former leader. WALTER HAMILTON: The biggest protest yet against the abuses of the former regime erupted in the South Korean capital just as President Roh Tae-Woo was beginning his overseas tour. An inquiry has uncovered a trail of alleged influence peddling and graft leading back to the Chun family. Forced business mergers, closures of newspapers and revelations of more than 50 deaths in so called 're-education camps' during the early '80s are returning to haunt the new Government. I understand a request has been made by the Korean National Assembly for help from the Australian authorities with its corruption investigation. Attention is being paid to the activities of former Korean Ambassador Kim Sung Koo who was posted to Canberra by Chun, his brother-in-law. Media reports in South URRND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSION. (Kirby P) Korea have referred to alleged Chun investments in brewery and hotel interests in Australia, and profiteering cattle imports. The Bond Corporation is known to be paying close attention to the Korean investigation. In a separate development, prosecutors in Seoul are probing a suspicion of bribery against the Korean firm, Kon Wah Enterprises in connection with approvals to import an airship from the Bond-owned British manufacturer. In an exclusive interview with the ABC, President Roh promised that all leads would be checked, but said there'd be no political retaliation against his predecessor, who's also a close friend. President Roh is speaking through an interpreter. PRESIDENT ROH: When a new Government comes in people are bound to look back and talk about bad times, the irregularities and so on, and of course, it is natural and it is very much necessary that we have to straighten the historical records, and if there is any wrongdoing, we have to correct those wrongs. And the Government is helping these investigations. As for the former President, a lot of these accusations comes from these sentimental, emotional things, and among the political leaders in Korea, there's a broad agreement that there should not be any political retaliation. WALTER HAMILTON: A lot of what Koreans have heard about Australia recently concerns allegations that the Chun family have secret investments there and other shady business. Are you able to clarify this taint of suspicion? PRESIDENT ROH: Of course, if there is any suspicion or doubt, we have to take measures to clear it, but I do not think there is any possibility of that kind of shady deals. The national pride of both countries would not permit this, and I'm sure that nothing of that sort has taken place. All these rumours have been spread after the change of Government by various media and the people - a lot of people are moved by these reports, but I do not think there is any basis for these rumours. WALTER HAMILTON: Will you be looking for co-operation from the Australian Government and the Australian authorities to help clarify these issues? PRESIDENT ROH: If there is any problem or any question, we'll ask the Australian authorities, but I do not see any such possibility. PAUL MURPHY: In Canberra, the Federal Government has confirmed a request for help in tracing any Australian business interests of the former South Korean - Korean President Chun and members of his family. Stewart Heather's in our Canberra studio again and he's been making enquiries. What have you found out Stewart? STEWART HEATHER: Well I can confirm that the Australian Government has received a request from South Korea, and the wording of that request is that South Korea wants Australia to quote - identify any assets held in Australia by the former President Chun or any members of his family. Now the problem for the Australian Government is firstly that there simply isn't enough information in this cable for the Australian Government to know exactly where to start looking I suppose for these assets. And the Government is concerned that if it is going to act on this cable, it is going to have considerable difficulty in doing so. PAUL MURPHY: Yes, so they obviously need more information. Was it a request to the Prime Minister and Cabinet or to Foreign Affairs or.....? STEWART HEATHER: It was what is being called a 'formal message' from South Korea. It apparently was not given to the Australian Embassy in Seoul, but rather sent direct to the South Korean Embassy in Canberra. The Embassy here passed it on to the Department of Foreign Affairs and there it's been addressed for the attention of a very few senior Ministers. It does in fact appear as if it's being kept 4 UNREPORTED JUDGMENTS pretty close to the chests of those senior Ministers and there was a considerable reluctance in Canberra today from some Government spokesmen to admit that such a request had even been made. PAUL MURPHY: Yes nonetheless though, a serious request from the South Koreans but we require a bit more clarification? STEWART HEATHER: Yes, the problem for the Australians is where are they going to start looking. They say that they have enough problems doing corporate searches about Australian interests looking for the possibility of corruption in Australia, let alone looking for holdings from overseas people, and the name of President Marcos of the Philippines has been mentioned to me here in this context: the difficulties of looking for the Marcos millions said to be salted away in Australia. Australia and South Korea also do not have what's known as a mutual assistance treaty which would smooth the path of any judicial inquiries or any police investigations. So there's been no suggestion made to me for instance that the first thing would be simply to hand this over to the Australian Federal Police, which I might have thought was the simplest way of doing it. It seems that because the request was, as it were, a political request rather than one from a Supreme Court or one from the police in South Korea, that the Australians are facing something of a difficulty in protocol, and so at this stage South Korea has not even had a response from the Australian Government as to whether they're going to be helped or not." (emphasis added). Imputations withdrawn from the jury: In its statement of claim, the appellant pleaded four imputations as arising from the natural and ordinary meaning of the matter complained of. Of these, two are not now pressed. The remaining two are: "(b) That the Plaintiff is a company whose conduct was such as to give rise to a reasonable suspicion that it assisted Chun Doo-Hwan and members of his family to invest in Australia funds known by the Plaintiff to have been gained unlawfully; and (d) That the Plaintiff is a company whose conduct was such as to give rise to a reasonable suspicion that it was involved in unlawful business deals with Chun Doo-Hwan and his family." Alternatively, the appellant also pleaded a "true" innuendo, namely that the matter complained of conveyed the pleaded imputations to persons to whom the matter was published and who knew the extrinsic fact that the appellant had substantial brewery and hotel interests in Australia. Hunt J did not deal specifically with the "true" innuendo. Counsel for the respondent conceded that, if there were facts to be proved, then technically these would be matters upon which the appellant was entitled to have a jury pass. Although the appellant at first asserted an entitlement to have the jury's verdict upon the count alleging a "true" innuendo, it was pointed out by the Court that the substratum would remain the same. If the imputations pressed were not properly matters for decision by the jury, no amount of extrinsic facts could so qualify them. The substratum of the claim would just not be there. Accordingly, it was eventually conceded, rightly in my view, that the appellant's case, both upon the imputations contended for and the "true" innuendo, depended upon whether Hunt J was right to withdraw the two imputations now relied upon from the jury. His Honour concluded that "the ordinary reasonable listener", even when invited to speculate as to why the Bond Corporation was "paying close attention" to the Korean investigation, was not entitled to "base one inference upon another". Similarly such a listener would not be entitled to infer that UBRND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSION, (Kirby P) because the appellant had a business deal with Mr Chun that such a deal "because it dealt with money that was obtained unlawfully by Mr Chun was itself unlawful". The appellant's case is that alternative imputations could be accepted by a jury, reflecting upon the references to the Bond Corporation in the middle of a news item concerning former President Chun, his allegedly unlawful dealings and his connection with Australia. One inference which the jury might accept was that this reference was entirely innocent. But another inference was that, in the context, it was defamatory being in the nature of a suggestion that the "keen interest" displayed in the Korean investigation (and the request by the Koreans for Australian assistance) was the result of some unlawful or improper involvement by the Bond Corporation in the subject matter of the investigation or in former President Chun's allegedly unlawful dealings which had given rise to it. This, then, is the contest. What are the the principles by which it is to be resolved? Principles governing judicial withdrawal of imputations: 1. The starting point is an appreciation of the importance of the jury in civil defamation proceedings. Parliament has recognised the primacy of the jury in this regard by the terms of s88 of the Supreme Court Act 1970. Whereas in some cases jury trial is always, or nearly always, excluded (s87) and in other cases is excluded unless the Court otherwise orders (s85), in proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation, such proceedings "shall be tried with a jury" (s88). Exceptions are provided by s89. But trial by jury is the normal mode of trial. In this provision, Parliament has simply recognised the long established mode of trial for such actions in this State, in the colony before the State was established and in England before that. The mode of trial is particularly relevant in defamation cases for many reasons which do not really require detailed elaboration. Issues of reputation are not readily susceptible to the normative activity with which judges are familiar. There is a large room for evaluation, impression and opinion. It is better, for finality and community acceptance, that such decisions should be made by a group of citizens reflecting current community standards than by a judge. Furthermore, the opinion of a multi-member jury may be safer and wiser than the opinion of a judge, sitting alone. Finally, in Hutley JA's words in Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 682 at 692: "The law of defamation is one of the shields that the citizen has against excesses by the media. To be effective for this purpose, the hearing of the complaint should follow closely after the event... It behoves the courts to smooth the way of the plaintiff to the tribunal chosen by the legislature, the jury, and not permit the rules of pleading to be used as a means of obstructing this result." Hunt J has been highly critical of these words. See Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 267. Some of his Honour's criticisms upon the detail of the reasoning of Hutley JA in that particular case may have force. I make no further comment on that. But the central point of Hutley JA's opinion remains as true today as when it was uttered. Glass JA referred to it with approval in David Syme and Co Ltd v Lloyd [1984] 3 NSWLR 346, 349. I note that Samuels JA (at 358) (without any note of reservation or dissent) and Priestley JA (at 359) agreed in the judgment of Glass JA in that case. Jury trial is a right in defamation cases as important for the community interest as for the interest of the parties enjoying that right. Those parties, can, if they 6 UNREPORTED JUDGMENTS choose, consent to the alternative mode of trial, by judge alone. But where they do not so consent, judges have only a limited self-conferred power to deprive a party asserting it to a decision by the jury about the allegedly defamatory quality of the matter complained as. As Lord Devlin said in Lewis v Daily Telegraph Limited [1964] AC 234, 281: "Tn general the meaning of words is a matter of law... But in defamation the meaning of words is a question of fact, that is, there is libel or no libel according to the impression the words conveyed to the jury and not according to the construction put upon them by the judge." There is a risk that those closely involved in the repeated consideration of defamation cases may overlook this basal consideration, derived from the statutory right to trial by jury which Parliament has reserved for civil defamation actions in this State. Yet it is crucial for the demarcation of the respective functions of the judge and the jury. It is therefore necessary for this Court, from time to time, to remind itself and those concerned of the primacy of the decision of the jury and the entitlement of the parties, save in exceptional circumstances, to have the jury's verdict upon the defamation alleged. 2. The exceptional circumstances have been charted, relevantly, not by Parliament but by judges themselves. I acknowledge, as Hunt J pointed out in Morris (above) at 268, that to some extent, the Defamation Act 1974, the Rules of Court relating to pleading, the provision for separate trial and sometimes (as here) the consent of the parties can affect the relationship of judge and jury in a defamation action. But, relevant to the matter now before the Court, it is the judges who asserted the power to deprive the plaintiff of the jury's verdict where, in the judge's opinion, the matter complained of could not sustain the imputation alleged. As Samuels JA has pointed out, whereas Parliament in 1958 conferred the power, it withdrew it on the repeal of the 1958 Act. Whereas Parliament in the 1974 Act understandably conferred such a power in express terms on judges in trials of alleged criminal defamation, it refrained from doing so in civil defamation trials. The ordinary canons of construction and the legislative history point to the refusal by Parliament to provide such a power to the judges. Indeed, Parliament withdrew the power previously given. Against this background of legislation it is doubtful, as it seems to me, that the old common law is revived in this State to confer on judges the very power which Parliament saw fit to revoke. However, that point was not argued. Accordingly, I will take the test to be, in the words of Lord Devlin in Lewis (ibid at 285-7): One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded... I do not say that in this case it does; but I think that the words in their context and in the circumstances of publication are capable of conveying that impression.... It is undoubtedly the law that the judge should not leave the question "libel or no libel" to the jury unless the words are reasonably capable of a defamatory meaning... The judge must rule whether the words are capable of bearing each of the defamatory meanings, if there be more than one, put forward by the plaintiff.... If the plaintiff can get before the jury only those meanings which the judge rules as capable of being defamatory, there is good reason for having the meanings alleged set out precisely as part of the record." UBRND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSION (Kirby P) See also Lord Reid ibid 258-259 where the history of this delineation of function is laid out with references to The Capital and Counties Bank Limited v George Henty and Sons (1882) 7 App Cas 741, 745 (HL) and Neville v The Fine Art and General Insurance Co Ltd [1897] AC 68, 72-3. The principle in Lewis appears to have been accepted in Australia as stating the common law. The decision has been quoted with apparent approval by the High Court of Australia. See Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, 299, 304. The way in which it is applied in the daily administration of the defamation list is discussed by Hunt J, not only in Morris (above) but also in Anderson v Mirror Newspapers Ltd [No 1] (1986) 6 NSWLR 99, 104f. In this appeal, as I have said, the principle has not been challenged. 3. As will be apparent from the speeches in Lewis, it is difficult to lay down general rules for what a judge will do when a plaintiff asserts an imputation and a defendant contends that the words cannot sustain the meaning alleged such that the imputation should be taken from the jury. The very fact that, from the start, judges of the highest courts so often differed in their opinion about what should be done in particular cases illustrates the open-ended nature of the decision to be made having regard to the extremely wide language by which the test is expressed. In Capital and Counties (above) there was difference of judicial opinion on the capacity of the words to bear the imputation claimed as, upon one matter, there was later in the House of Lords in Lewis (Lord Morris of Borth-y-Gest dissenting). So it is also in this case. What one judge may think is the meaning which "the words are capable of bearing" will not necessarily find reflection in the opinion of other judges. In my respectful opinion this is a reason, out of a proper sense of intellectual humility and respect for the primacy of the jury, for judges to pause long and hard before they withdraw imputations from the jury. Some would consider it presumptuous for judges (many of whom lead narrow lives and some of whom may not even listen to the wireless) to assert that they know what reasonable fellow citizens will make of a broadcast. What a lack of confidence it shows in their fellow citizens for judges to frustrate the role which Parliament has seen fit to reserve to the democratic tribunal. Judges may have a high opinion of their capacity to do this task well. But the local Parliament has in three ways shown its doubts. By repealing s6 of the Defamation Act 1958. By reserving the express conferral of the power to s53 of the Defamation Act 1974. And by enacting the guarantee of jury trial in civil defamation actions in s88 of the Supreme Court Act 1970. Furthermore one might ask, by what measure do judges exercise this self-asserted right in the face of Parliament's several indications to the contrary? Instead of indulging the charade of guessing what the ordinary reasonable listener would think, why not leave it to a tribunal more likely to reflect the response of such a listener - the jury? In Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 187, Salmon LJ reflected upon the difficulty to which I have just referred, in these terms: "... Iam very conscious of the difficulty which a judge faces in trying to ascertain the meaning which the ordinary layman would attribute to words which he reads in his newspaper. Much of a judge's time is spent in construing statutes and legal documents - an apparently similar task to the one which now confronts us, but a task which, in reality, requires a different technique. There have been many differences of judicial opinion even on the question of what words are capable of meaning to the ordinary layman, see eg Lewis v Daily Telegraph Ltd. The principles are easy to formulate but difficult to apply. They were never better 8 UNREPORTED JUDGMENTS formulated than they were in Capital and Counties Bank v Henty nor perhaps ever worse applied. It was there held that the words complained of were incapable of meaning to ordinary men that the bank was in financial difficulties, yet they caused a run on the bank whose customers, presumably, were ordinary men. If it is difficult to decide whether words are capable of a defamatory meaning, it is still more difficult to decide what they in fact are likely to mean to the ordinary layman." It is proper to say that, notwithstanding these acknowledged difficulties, Salmon LJ concluded in Slim, with the other members of the English Court of Appeal, that the Court was entitled to, and should, reverse the trial judge's findings, that the words complained of were capable of the defamatory meaning attributed to them in that case by the plaintiff. Yet the words of caution, referring to the imprecision of the task in hand, and the criticism of the way the test had been applied in the past, surely provide reasons which should cause a judge to hesitate and to resolve any doubt by leaving the matter to be determined where it should be: in the jury room. I realise that in some respects the judgment of Salmond LJ in Slim found less favour in later English and Australian authority than the judgment of Diplock LJ in the same case. See discussion by Hunt J in Morris at 263. But the comments made by Salmon LJ concerning the non-normative nature of the decision to be made in a case such as the present are introvertible. They are correct and pertinent. They provide a powerful reason for the exercise of the most extreme caution before depriving parties of the right to a jury verdict which our legal history has provided and which Parliament has confirmed. 4. Another ground for avoiding elaboration of the general rule is that each case turns upon its own facts. The evaluation of the imputation depends upon the meaning to be ascribed to the words sued upon in the whole context of the matter complained of. Necessarily, the context will be different in each case. See the comment of Lord Denning MR in Heyward v Thompson [1982] | QB 47, 61 (CA). This is a reason why, even in the case of words commonly complained of (such as a reference to the arrest of a person) it is impossible to lay down any general rule. Each case calls for a decision by the judge upon the precise words used as those words derived meaning and colour from the context in which they appear. In part, this observation simply bears out the fact that language, especially one might say the English language with its etymological richness, is inescapably ambiguous. That provides a still further reason why the judgment upon the ambiguities should be left to the tribunal of fact wherever there is the slightest doubt. In Harrison, Mason J was led by an earlier judgment of Fox J in Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271 at 281 to look back to the judgment of Holroyd Pearce LJ in Lewis, sometimes overlooked because of the importance of the speeches in the House of Lords which followed the appeal. Mason J (ibid at 302) found it necessary to repeat his Lordship's remarks in the following terms (ibid at 374): "When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean. But when words with a precise and well known meaning are used without the addition of any expressions which could impart some other flavour to them, it is not fair to twist them from their normal sense." UARND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSION (Kirby P) Another practical reason for leaving the matter to the jury where there is doubt is that stated by Priestley JA in Syme (above, at 360). His Honour pointed out: "Unlike a judge who is obliged to try to read statutes so that the words are all logical parts of a clear and unambiguous whole, the reasonable reader of a newspaper is reasonably allowed more realistic canons of interpretation." The self-same realism is permitted to a reasonable listener to a radio programme which, in the middle of a revelation of investigations into the alleged criminality of an ex-foreign ruler, lets fall a mention of the name of a local corporation said to be watching the local investigation "very closely". 5. Unless judges adopt a cautious approach - one which I have described as intellectually modest - to applications to withdraw imputations from the decision of the jury, the risk is run that the judge will invade the jury's realm, usurp the function of the jury and substitute his or her opinion for that of the jury. After the Judicial Committee of the Privy Council upheld, in terms, the dissenting judgments of Latham CJ and Dixon J in Hocking v Bell (1945) 71 CLR 430, 440 in its judgment reported (1947) 75 CLR 125, courts in Australia have been more cautious than previously they were in depriving parties of their entitlement to a jury's verdict. The Privy Council took the most unusual course in the appeal from the High Court in that case to adopt, in terms, Latham CJ's reasons and to incorporate them in extenso in their Lordship's advice. A nail was thereby firmly hammered in the coffin of judicial invasions of the jury's function in negligence actions. The role of the jury in that field was upheld. It seems that it remains for the same result to be achieved in defamation cases. This is the more surprising because of the very nature of the tort and the legislative history set out above. The approach to be taken in a case such as the present is in my view by analogous reasoning, as rigorous as that stated in Hocking. The judge should conserve his power to withdraw imputations from the jury to the patently obvious case where the imputation alleged is virtually unarguable, equivalent to no more than an action or a scintilla of an argument such that no reasonable person could conclude as the plaintiff asserts. In a sense, the power is there to protect the court and other parties from something akin to an abuse of the court's process. It is to permit a peremptory remedy to a party who ought not to be put to the expense and inconvenience of a trial. But like other peremptory remedies, such relief is reserved to clear cases only. Cf General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129. It should not become part of a regular obstacle course (to adapt Hutley JS's simile) that a plaintiff must run before he gets the case he wishes to plead before the jury. There are strong practical reasons for saying this. The plaintiff may be denied the opportunity to put particular imputations to the jury. To challenge that ruling, decided (as here) in a separate trial, requires the leave of the Court of Appeal. Such leave is not normally granted because no question of principle is generally raised and the order can be challenged, as of right, once a final judgment is entered. The Court has recently stressed that leave will not as a general rule, be granted simply because the decision is shown to be erroneous. See Douglass v John Fairfax and Sons Ltd, Court of Appeal, unreported, 27 February 1989; (1989) NSWJB 26. Therefore, it is better in my opinion that the jury's verdict should normally be taken upon every arguable imputation in order that finality may be achieved. Otherwise, one of the principal objectives of retaining jury trial in this class of case is frustrated and may, as a practical matter, be defeated. 10 UNREPORTED JUDGMENTS 6. Behind the considerations of the respective functions of the judge and the jury discussed above lie other questions of legal policy which are sometimes acknowledged. Thus in Slim v Daily Telegraph Ltd (above) Lord Denning MR and Diplock LJ were clearly influenced in the decision which they reached by the high value which they each accorded to the right of fair comment as an essential element of free speech. Each of them declared that this should not be whittled down by legal or linguistic refinement. "We must ever maintain this right intact", said Lord Denning (at 170). "It would be an evil day for free speech in this country if this kind of controversy on matters of public... interest were discouraged by a fear that every word written to be read in haste should be subjected in a court of law to minute linguistic analysis of the kind to which these [words] have been subjected in this appeal", said Lord Diplock (at 179). These words are as applicable in Australia as they are in England. The complaints about the state of our defamation laws, and of the failure of Parliament to provide significant reform of them are many. However there are countervailing considerations. Some of them were referred to by Hutley JA in Hepburn (above) (at 691). Relevant to the instant case is a concern voiced by the appellant that a new technique of journalism may, condoned by this decision, gain currency, by which guilt by association is imputed by mentioning one person's name in the midst of a detailed analysis of the wrong-doing and suggested criminality of another. By that very mention, in such a context, the risk may be run that some of the bad odour attributed to the one will then rub off to the harm of the other. In such circumstances, to adopt the words of Holroyd Pearce LJ, the publisher can hardly complain if reasonable persons assume that the connection which is thereby made was intended. To adopt the words of Lord Diplock in Lewis, such a publisher can hardly complain if the reader or listener draws the inference that "where there is smoke there is fire". There is in this country an often-remarked "tall poppy syndrome". By it, those who are prominent are seen, by some, to be a fair target for denigration, innuendo and smear. This is what, in essence, the appellant complains of here. Its complaint might, or might not, in the circumstances, be sustained by the tribunal of fact. But the appellant asserts that it is at least entitled to have a jury decide upon its complaint. 7. Finally, there are questions of procedure. In Sinclair v John Fairfax and Sons Ltd, Court of Appeal, unreported, 4 March 1986; (1986) NSWJB 32, McHugh JA suggested (at p2 of his judgment) that the usual order after a ruling on a separate trial that an imputation is not available to a plaintiff is to strike the imputation out of the pleadings. Hunt J in Anderson (above) at 111 disputed that this was the usual order. His Honour suggested that it should "not be necessary for a plaintiff to follow the involved procedure" discussed by McHugh JA in order to preserve his rights of appeal. It is not necessary for me to resolve this procedural question in the present case. I simply note it. Certainly, the plaintiff is entitled to the fullest protection for appellate review in respect of any order made. By leave of the Court he may, as in this case, appeal against such an order and before the trial. Supreme Court Act 1970 s103. Application of principles to this case: I now turn back to apply these considerations to the instant case. The appellant summoned a jury. It therefore starts from an entitlement to have a jury's verdict upon the matter which it contends was defamatory of it. It has no more nor no fewer rights because it is a large and well known corporation with a chief executive who has what is nowadays termed a "high public profile". UARND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSION (Kirby P) Hunt J concluded that the ordinary reasonable listener could not draw from the references to the appellant, in the context in which they appear, the conclusions referred to in the imputations which he has directed may not to for trial. I differ. I acknowledge that the matter is arguable. But that is the very argument which I would reserve to the jury. The first thing to note in the matter complained of is that, out of the blue, in the course of discussing the allegedly miscreant acts of former President Chun, with his "secret investments and other shady business" in Australia, mention is made of the Bond Corporation. That corporation is said to be "paying close attention" to the Korean investigation. Why should it be paying attention at all? Why, in particular, should it be paying "close" attention unless it were closely involved in the subject matter of the investigation? And what was that investigation? It was into tracing the investments of the former President which were said to be "ill-gotten assets". And in that tracing operation the Korean investigators had "asked the Australian authorities to help". Tactics used by the former President included "forced business mergers, closures of newspapers and revelations of more than fifty deaths in so-called 're-education camps". The taint of association with these allegations is arguably attracted by the sudden reference, in the middle of them all, to the "close attention" which the appellant was "known to be paying" to the Korean investigation. No reason is stated as to why the name of the appellant is dropped. In my opinion, the reasonable listener, paying no more than the passing attention to the item, might naturally ask himself or herself: "Why is the appellant so closely interested in an inquiry into the allegedly corrupt investments said to have been made in Australia by the former President of the Republic of Korea?" He or she would possibly conclude that the appellant must have a good reason for paying such "close attention" to the investigations. From the close attention in such a context, it is at least arguable that the reasonable listener would conclude that a finger of suspicion of involvement in the former President's nefarious activities was pointed at the appellant. That in some way it had assisted former President Chun to invest his allegedly ill-gotten gains in Australian investments connected with the appellant, and with full knowledge of the outrageous ways in which the funds had been secured. Furthermore, I believe that a reasonable listener could quite readily conclude that, in some way, the appellant was involved in unlawful business dealings with the former President and his family. Why else would it be paying such "close attention" to the investigations? The very suggestion of official activity in this country, at the request of the Korean authorities, gives rise to the hint that the investigators are getting closer to their real target. And the only local potential target mentioned is the appellant - a tall corporate poppy indeed. I do not say that a jury would conclude in the way the appellant, by its imputations, pleads. It might well accept the respondent's assertion that the mere mention of its name, in the context, was entirely innocent. Or it might conclude that, though the appellant might have received some of the investments, it did so perfectly legitimately and lawfully and that this was all that was suggested. Such a conclusion would be open to the jury in the facts pleaded. But it is by the jury that the decision should be made. Not by a single judge expressing his robust opinion. By a jury of citizens weighing the allusion to the appellant in its context and evaluating the competing arguments for an innocent and a defamatory construction. To so conclude is not to damage the precious value of free speech and free expression in our community. It is simply to assign the protection of 12 UNREPORTED JUDGMENTS those values to the tribunal which the law generally designates, in whose hands that protection can safely be reposed. The jury. Orders: The orders which I would favour are: 1. Leave to appeal granted; 2. Appeal allowed; 3. Set aside so much of the orders of David Hunt J dated 9 December 1988 by which it was decided that imputations (b) and (d) would not go to the jury; 4. Order that the proceedings be returned to the Common Law Division to the intent that a trial be had before the jury upon the issues contained in the plaintiff's statement of claim, as so amended, including the issue raised by paragraph 5 thereof; 5. The respondent to pay the appellant's costs of the appeal; and 6. The costs of the proceedings at first instance to be costs in the cause. Samuels JA On 4 November 1988 in the course of its radio news program "PM" the respondent published the matter annexed to the statement of claim, a copy of which I attach to this judgment. The appellant pleaded four imputations said to arise on the natural and ordinary meaning of the matter complained of and, in the alternative, a true innuendo asserting that the matter complained of conveyed the pleaded imputations to persons with knowledge of the extrinsic fact that the appellant had substantial brewery and hotel interests in Australia. On 9 December 1988, with commendable alacrity and by consent of the parties, a separate trial was held before David Hunt J pursuant to Pt31 r2 in order to determine the capacity of the matter complained of to convey the imputations pleaded. His Honour refused to allow any of the imputations to go to the jury and granted leave to amend; but it would seem that if the imputations in question are not viable there must be an end to the action. There were originally four imputations, as I have said, but only two of them, the second and the fourth, formed the subject matter of the application for leave to appeal. The learned judge did not deal specifically with the true innuendo, but it was conceded before us that it would necessarily go the same way as the others. Bearing in mind the brevity of the questions involved it was agreed on all hands that the Court should treat the application for leave as the appeal, and we accordingly heard the whole of the argument which the parties wished to present on the merits. The imputations which remain and which the appellant continues to press are these: "(b) that the Claimant is a company whose conduct was such as to give rise to a reasonable suspicion that it assisted Chun Doo-Hwan and members of his family to invest in Australia funds known by the Claimant to have been gained unlawfully. (d) that the Claimant is a company whose conduct was such as to give rise to a reasonable suspicion that it was involved in unlawful business deals with Chun Doo-Hwan and his family." I add that it is agreed also that the reference in the matter complained of to "the Bond Corporation" is to be taken as a sufficient reference to the appellant. It will be seen that while the imputations must be considered in their full context the critical portions of the broadcast material consist of the paragraphs numbered 1, 6, 7, 8 and 9. The appellant's argument, relying upon the principles stated in Capital and Counties bank Ltd v George Henty and sons (1882) 7 App UND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSIGN (Samuels JA) Cas 741 at 745; Jones v Skelton (1963) 63 SR 646 at 650-1; Lewis v Daily Telegraph (1964) AC 234 at 284 and Mirror Newspapers Ltd v Harrison (1981-82) 149 CLR 293 at 302 and 304, was that the words were reasonably capable of conveying to the ordinary reader the defamatory imputations alleged and that the determination of this threshold point was a matter of law for the judge. The principles are by now well established. None was disputed by counsel. It was not suggested that their exercise must be limited by special judicial caution or restricted "to the patently obvious case where the imputation alleged is virtually unarguable, equivalent to no more than an atom or a scintilla of an arguments, such that no reasonable person could conclude as the plaintiff asserts, "or to "exceptional circumstances". However, the President, in a judgment which, I have had the benefit of reading, applies both restrictions substantially on the footing that the duty of the judge to determine the defamatory capacity of the matter complained of is "self-conferred" or "self-asserted". Since I have the misfortune to disagree with all these propositions I feel bound to express my own opinion about the relevant principles of law. I do not doubt that it was judges who first asserted the power which is regarded as fully expressed in Capital and Counties Bank Ltd at 745, the test being whether "under the circumstances in which the writing was published, reasonable men, to whom the publication was made, will be likely to understand it in a libellous sense". It is certainly the case that through the 18th century, and earlier, there was a considerable controversy as to whether a jury in a case of criminal libel had the right or even the power to return a general verdict expressing their opinion upon the question whether the publication was or was not libellous. The judges - though not all of them - tended to the view that the question of libel or no libel was a question of law and thus for the court; so that the jury were confined to finding the issue of publication and the innuendos, a somewhat technical question at that time because of the rules of pleading which existed prior to the Common Law Procedure Act 1852 s61. It must be remembered that at common law the publication of written defamatory material was not only an actionable wrong but also a crime punishable on indictment. Publishers of political pamphlets were not uncommonly charged with a misdemeanour when their criticism of the government of the day was regarded as scurrilous because it verged on sedition. Such trials were highly political, and whatever the sympathies of the judges were in fact (if, indeed, they had any) they were no doubt perceived by the government as likely to be more "reliable" than juries and therefore better fitted to determine the question of libel or no libel. All of this is to be seen in the report of The King v Shipley [1784] 4 Doug] 73; 99 ER 774, in which the defendant was the Dean of St Asaph, and was charged with having published a "false, wicked, malicious, seditious and scandalous libel" concerning the King, making certain trenchant criticisms of the government of the day and expressing what would come to be regarded a few years later as "Jacobin" sentiments. The case is referred to at some length in the speech of Lord Blackburn in Henty at 772 and following. For present purposes what is important is that although the majority in Shipley held that on the trial of an indictment for libel the only questions for the jury were the fact of publication and the truth of the innuendos, so that the question of libel or no libel was a question of law for the sole consideration of the court, Willes J dissented from the reasons given by Lord Mansfield, asserting that it was the law that a jury upon a plea of not guilty on an indictment for a libel had a right to examine the 14 UNREPORTED JUDGMENTS innocence or criminality of the publication. But although Willes J held that it was open to the jury to determine whether the material published was or was not defamatory, he did not regard this as a question exclusively for the jury, and added at 176 (827) that after a verdict of guilty it was still competent for the defendant, on a motion in arrest of judgment, to take the opinion of the court as to whether the publication was libellous. This history, apart from its intrinsic interest, is relevant as showing that there was a difference of opinion among the judges as to the role of the jury, but that it never seems to have been doubted that there was always a power in the judges to determine whether or not a publication was capable of conveying a libellous meaning. To that extent it may be truly said that the judges had established this right or power for themselves. But all judiciary law is conferred by the judges upon themselves, and to doubt its general validity would be, of course, to reject almost the entire body of the common law. Moreover, although the modern law of negligence is the construction of judges it is not suggested, so far as I know, that its principles should be applied with special diffidence or restraint or, indeed, only in exceptional circumstances; or, for that matter, that the duty of a judge to determine whether there is a case to go to the jury should be exercised other than with firm and detached adherence to principles long established. But although the source of the power was originally judicial, after 1792 and the enactment of Fox's Libel Act (32 Geo III, c60), the division of function between judge and jury was authorised by the legislature. The preamble to that Act in substance provided that it was intended to settle doubts which had arisen as to the powers of a jury upon a trial on indictment for the publication of a libel. The first section enabled the jury to give a general verdict upon the whole matter in issue and thus to decide whether the matter was or was not libellous and whether the defendant was guilty or not guilty. But the fourth section preserved a defendant's right to move in arrest of judgment "on such ground and in such manner as by law he or they might have done before the passing of this Act". As I have indicated, that meant that a defendant might still move the court upon the contention that the material was not capable of conveying a libellous meaning. I have gone back so far in an effort to show that the power which is now in question has long since been authorised by the legislature. But, of course, it may be objected that this refers only to decisions of the English Parliament which have little bearing upon circumstances in Australia or in its States. However, exactly the same authority may be found in Australia. In New South Wales the Defamation Act 1958 represented a not wholly successful endeavour to codify the law relating to defamation, and drew upon the Criminal Codes of Queensland, Tasmania and Western Australia, in which the law of defamation was also to be found. In accordance with their provisions, s6 of the New South Wales Act provided: "The question whether any matter is or is not defamatory is a question of fact. The question whether any matter alleged to be defamatory is or is not capable of bearing defamatory meaning is a question of law." Consequently, that proposition has been established by the legislature in most of the States of Australia for a considerable period, and the power of the judge which is now in debate has long been authorised by the will of the people or the voice of the Parliament or whatever the apt phrase may be. The Defamation Act 1974 repealed the 1958 Act and did not explicitly continue the terms of s6 of the previous Act. It would however be quite wrong to suppose from this that the Parliament intended to alter this long established UND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSIGS: (Samuels JA) division of function between the judge and the jury. The technical and perfectly obvious reason why no section in terms of s6 was included in the 1974 Act is that the new statute was designed to abrogate the code which the 1958 Act had established and to restore the common law except where it expressly provided for variations. So much is evident from s4 and s11 of the 1974 Act. If however further support for the proposition is required it is provided by what was said by Mr Maddison then Minister of Justice who introduced the Second Reading on behalf of the Attorney General Mr McCaw on 27 February 1974. Mr Maddison (New South Wales Parliamentary Debates volume 108 at 809) said: "The debate on this measure necessarily involves an understanding of the common law relating to defamation and, in view of the government's adoption of the Law Reform Commission's recommendations, with relatively few departures, for repeal of the 1958 Act and a return to the common law with some modifications, some familiarity with the commission's report tabled in this House in 1971. At 810 he referred to "those areas of the common law which are to be modified or extended under the provisions of this Bill" and to "replacing the 1958 code with a mixture of common law and statutory provisions". The Law Reform Commission Report (LRC 11, 20 April 1971) in paragraphs 18 and 19 recommended that there be a return in New South Wales to the common law and that the proposed new Bill "would modify the common law in those aspects only in which we find the common law itself defective". There is not the slightest indication in that report that any variation of the principle in Henty was considered desirable and no suggestion was made to change it. In my opinion it is patent from what I have so far said that if the legislature had intended to modify the principle now in debate it would have done so by inserting an appropriate express provision in the 1974 Act. This of course was not done, with the consequence that the established doctrines of the common law, including the rule to which I have referred, continued unimpaired. However, as it turns out Mr Maddison (at 813) dealt expressly with the question. He said: "The interpretation of a defamatory statement is a question of fact for the jury, but there are certain questions for the judge. The judge must non-suit the plaintiff if he decides the words are not reasonably capable of bearing the meaning complained of. Furthermore, if the judge considers that the words are necessarily defamatory, he may so direct the jury, and in such a case a verdict against the direction may be set aside and a new trial ordered." It is of some interest to note that the 1974 Act far from restricting powers firmly vested in the judges at common law extended the judges' function. As Mr Maddison said (loc cit): "The bill, for the first time in this State, will give the judge a function formerly that of the jury in the defence of truth as to a matter of public interest, to which Ihave previously referred. This is a significant change in the law, and is designed to bring about greater certainty in an area which under the existing law, is most uncertain." He was referring to s12 which provides that public interest is a question for the court and not for the jury; and I might add that s23 provides that the question of whether there is a defence of qualified privilege under division 4 of the Act must be determined by the court and not by the jury. Defences of qualified privilege under that division are not defences at common law. The Acct is silent about the position at common law, which has, in any case, always been the same as that declared in s23; that is to say that subject to the determination by the jury of any primary and relevant facts which may be in dispute, it is for the judge to say 16 UNREPORTED JUDGMENTS whether the imputation complained of was published on an occasion of qualified privilege, whether the imputation was relevant to the occasion and whether the publication was excessive. If one were to adopt the reasoning which regards the absence of any explicit provision along the lines of s6 of the 1958 Act as some kind of implied repeal, the same consequence would have to follow so far as qualified privilege was concerned. But the Law Reform Commission has in this instance explained exactly why no specific provision was included. In paragraph 113 the report having in the preceding paragraph stated the common law says: "This division of function between judge and jury is well understood and has worked well.... We do not catalogue the instances where the 1958 Act has been troublesome; we are convinced, however, that the better course is to return to the common law." Then in paragraph 112 the report continues: "The Bill, therefore, says nothing about the division of functions in cases where the qualified privilege arises under the common law. It seems best, however, to make explicit provision on the subject in respect of the qualified privileges arising under s20, s21 and s22 of the Bill." In s53 of the 1974 Act there is express provision that in a trial before a jury of an information for an offence under s50 the judge must first determine whether the matter complained of is capable of bearing a defamatory meaning before the question of whether it does or not is submitted to the jury. But the reason for this is, of course, that the offence under s50 was a new statutory offence intended to take the place of the old common law misdemeanour of criminal libel which the Act abolished. Hence some express provision was necessary, since the long established principles of the common law could not very well be incorporated by implication into the texture of an entirely new statutory misdemeanour. However, the importance of s53 to the present argument is that it is a very clear indication of the legislature's thinking in 1974 upon the general question of the division of function between judge and jury, a view which already appears from the other provisions in the 1974 Act to which I have referred. In my view it follows from all of this that it is incorrect to say that the duty of the judge to withdraw from the jury matter which in the judge's opinion a reasonable reader could not regard as defamatory, is an extraordinary restriction contrived by judges in order to deprive juries of some essential part of their "constitutional" function. In truth it is a rule which has been firmly embraced by the legislature for a great many years, and which has evidently been perceived by succeeding generations of legislators as possessing undoubted merit and utility. That being so, the remaining propositions cannot, in my respectful view, be sustained because they all proceed upon a premise which is itself unsound. There is no question of emotive invocations of the rights of juries; it is simply a matter for the exercise of the well established separate functions which the law has reposed in each section of the tribunal in the case of jury trial. That is a principle familiar to every common lawyer, because it is an essential part of the judge's charge to the jury in any summing up. No doubt a different system might have assigned the capacity of material to convey a defamatory meaning to the category of fact rather than of law. The common law of defamation did not follow this path and a reason for the course it took is undoubtedly to be found in the notion that fair results would be better achieved by a partnership between judge and jury. That conclusion seems to me to be in accord with modern notions of open and reasoned decision making. It entails a reasoned judgment expressing the judge's determination of the URQND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSION (Samuels JA) defamatory potential of the matter published rather than consigning that issue, along with the others, to the inscrutable doom of a jury's verdict. With that rather lengthy preamble, I can now turn to the question whether Hunt J was right in concluding that the imputations were not sustained by the matter published. It seems to me that the matter complained of fairly indicates that what is in question is the source of funds which Mr Chun is known, or is thought, to have invested in Australia, particularly "in brewery and hotel interests in Australia". The reference in paragraph 8 to the close attention being paid to the investigation by the Bond Corporation is no doubt capable of indicating that some of the Chun investments had been made in enterprises associated with or controlled by the Bond Corporation. I do not think that a jury would need to be seized of any extrinsic facts to arrive at that conclusion. It is entirely understandable that on that footing the Bond Corporation would be paying "close attention to the Korean investigation". But, as Hunt J has pointed out, to make good the imputation requires the further inference that the plaintiff assisted Mr Chun to invest in Australia. I am by no means sure that that inference follows since in the ordinary course investments may be made even offshore without the active co-operation of the enterprise in which the investment is to be made. In any event the further inference is demanded that the Bond Corporation knew that the moneys invested were unlawfully acquired or tainted by illegality. Whether or not the first inference is available I am quite clear that the second is not, being in this context merely the product of illegitimate speculation. Furthermore, as to the second remaining imputation, I can see no foothold in the matter for the inference that the plaintiff did have business deals with Mr Chun, or for the further inference that any such deals were unlawful. In short, I cannot see that the statement that the plaintiff was paying close attention to the investigation can support the reasonable suspicion that the plaintiff knew that it had accepted investments of money unlawfully obtained or amassed by Mr Chun, or that any business deals of that kind or of any kind in which Mr Chun and the plaintiff may have been involved were unlawful. I would therefore grant leave to appeal and dismiss the appeal. The appellant must pay the costs of the proceedings in this Court. ANNEXURE A "PM" programme broadcast on 4th November 1988: Paul Murphy: 1. South Korean investigators have asked the Australian authorities to help trace investments by the family of the former President, Chun Doo-Hwan, as public pressure mounts for punishment of the unpopular ex-General. 2. Chun is said to be digging in his heels against suggestions from supporters that he apologise to the nation for past wrong-doings and surrender his ill-gotten assets. 3. In an exclusive interview with the ABC, ahead of a State visit to Australia from tomorrow, President Roh Tae-Woo told our North-East Asia correspondent, Walter Hamilton, there should be no retaliation against the former leader. Walter Hamilton: 4. The biggest protest yet against the abuses of the former regime erupted in the South Korean capital just as President Roh Tae-Woo was beginning his overseas tour. An inquiry has uncovered a trail of alleged influence peddling and graft leading back to the Chun family. 18 UNREPORTED JUDGMENTS 5. Forced business mergers, closures of newspapers and revelations of more than 50 deaths in so-called 're-education camps' during the early "80s are returning to haunt the new Government. 6. I understand a request has been made by the Korean National Assembly for help from the Australian authorities with its corruption investigation. Attention is being paid to the activities of former Korean Ambassador Kim Sung Koo who was posted to Canberra by Chun, his brother-in-law. 7. Media reports in South Korea have referred to alleged Chun investments in brewery and hotel interests in Australia, and profiteering cattle imports. 8. The Bond Corporation is known to be paying close attention to the Korean investigation. 9. In a separate development, prosecutors in Seoul are probing a suspicion of bribery against the Korean firm, Kon Wah Enterprises in connection with approvals to import an airship from the Bond-owned British manufacturer. 10. In an exclusive interview with the ABC, President Roh promised that all leads would be checked, but said there'd be no political retaliation against his predecessor, who's also a close friend. 11. President Roh is speaking through an interpreter. President Roh: 12. When a new Government comes in people are bound to look back and talk about bad times, the irregularities and so on, and of course, it is natural and it is very much necessary that we have to straighten the historical records, and if there is any wrongdoing, we have to correct those wrongs. And the Government is helping these investigations. 13. As for the former President, a lot of these accusations comes from these sentimental, emotional things, and among the political leaders in Korea, there's a broad agreement that there should not be any political retaliation. Walter Hamilton: 14. A lot of what Koreans have heard about Australia recently concerns allegations that the Chun family have secret investments there and other shady business. Are you able to clarify this taint of suspicion? President Roh: 15. Of course, if there is any suspicion or doubt, we have to take measures to clear it, but I do not think there is any possibility of that kind of shady deals. The national pride of both countries would not permit this, and I'm sure that nothing of that sort has taken place. 16. All these rumours have been spread after the change of Government by various media and the people - a lot of people are moved by these reports, but I do not think there is any basis for these rumours. Walter Hamilton: 17. Will you be looking for co-operation from the Australian Government and the Australian authorities to help clarify these issues? President Roh: 18. If there is any problem or any question, we'll ask the Australian authorities, but I do not see any such possibility. Walter Hamilton: 19. In fact, such a report has been made. Thousands of students fought riot police with rocks and petrol bombs in Seoul and other cities yesterday demanding Chun's execution. The radicals formed what they called 'suicide squads' to attack the former President's home, but none was able to break through the police cordon. UND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSIGN: (Samuels JA) 20. Bystanders reportedly joined the students' protest chant. In a bid to diffuse the issue, the Ruling Party is pressuring Chun Doo-Hwan to publicly apologise for wrongdoings and surrender his fortune to the nation, all while President Roh is conveniently out of the country. 21. But Chun is now said to feel betrayed and is reluctant to co-operate. Walter Hamilton, "PM.", Tokyo. Paul Murphy: 22. In Canberra, the Federal Government has confirmed a request for help in tracing any Australian business interests of the former South Korean - Korean President Chun and members of his family. 23. Stewart Heather's in our Canberra studio again and he's been making enquiries. What have you found out Stewart? Stewart Heather: 24. Well I can confirm that the Australian Government has received a request from South Korea, and the wording of that request is that South Korea wants Australia to quote - identify any assets held in Australia by the former President Chun or any members of his family. 25. Now the problem for the Australian Government is firstly that there simply isn't enough information in this cable for the Australian Government to know exactly where to start looking I suppose for these assets. And the Government is concerned that if it is going to act on this cable, it is going to have considerable difficulty in doing so. Paul Murphy: 26. Yes, so they obviously need more information. Was it a request to the Prime Minister and Cabinet or to Foreign Affairs or...? Stewart Heather: 27. It was what is being called a 'formal message' from South Korea. It apparently was not given to the Australian Embassy in Seoul, but rather sent direct to the South Korean Embassy in Canberra. The Embassy here passed it on to the Department of Foreign Affairs and from there it's been addressed for the attention of a very few senior Ministers. 28. It does in fact appear as if it's being kept pretty close to the chests of those senior Ministers and there was a considerable reluctance in Canberra today from some Government spokesmen to admit that such a request had even been made. Paul Murphy: 29. Yes nonetheless though, a serious request from the South Koreans but we require a bit more clarification? Stewart Heather: 30. Yes, the problem for the Australians is where are they going to start looking. They say that they have enough problems doing corporate searches about Australian interests looking for the possibility of corruption in Australia, let alone looking for holdings from overseas people, and the name of President Marcos of the Philippines has been mentioned to me here in this context: the difficulties of looking for the Marcos millions said to be salted away in Australia. 31. Australia and South Korea also do not have what's known as a mutual assistance treaty which would smooth the path of any judicial inquiries or any police investigations. 32. So there's been no suggestion made to me for instance that the first thing would be simply to hand this over to the Australian Federal Police, which I might have thought was the simplest way of doing it. It seems that because the request was, as it were, a political request rather than one from a Supreme Court or one 20 UNREPORTED JUDGMENTS from the police in South Korea. that the Australians are facing something of a difficulty in protocol. and so at this stage South Korea has not even had a response from the Australian Government as to whether they're going to be helped or not. Paul Murphy: 33. Okay Stewart, we'll await developments with interest. Many thanks indeed for that. That was Stewart Heather in Canberra. Meagher JA In this matter I have had the advantage of reading in draft the reasons for judgment of Kirby P. However, I have the misfortune to disagree with the learned President. In my view, the decision of Hunt J was correct and the appeal should be dismissed with costs. It is well established that it is a question of law for the judge to decide whether the words complained of by a plaintiff in a defamation case are reasonably capable of a defamatory meaning. The test is that of an ordinary reasonable reader or listener. And in this regard it is important to remember what Mason J said in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301: "A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader." Applying these principles to the words complained of in the present case, I cannot see how any ordinary reasonable listener could torture those words into a statement that the plaintiff knew of the illegal source of the funds involved in any transaction in which it participated with Chun Doo-Hwan. They may or may not excite in some readers a "belief or prejudice" (to quote Mason J) which would lead them to that conclusion, but that is not the test. There is only one other matter to which I would advert. The words complained of, were apparently broadcast on a programme called "PM". The learned President said of that programme: "Tt is, generally speaking, a serious and responsible programme, making an important contribution to the community's understanding of news events at home and abroad." There was certainly no evidence before the Court to that effect, and it would defy belief that judicial notice could be taken that any programme of the Australian Broadcasting Corporation fitted that extravagant description. However, as the matter is hardly relevant, I shall not pursue it. 1. Leave to appeal granted. 2. Appeal dismissed with costs. Counsel for the Appellant: TEF HUGHES QC and B McCLINTOCK. Solicitors for the Appellant: ALLEN ALLEN and HEMSLEY. URQND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSIGN (Meagher JA) Counsel for ther Respondent M SEXTON.