New South Wales Court of Appeal CITATION : Nationwide News Pty Limited v William El-Azzi [2004] NSWCA 382 HEARING DATE(S) : 14 October 2004 JUDGMENT DATE : 14 October 2004 JUDGMENT OF : Spigelman CJ at 1; Mason P at 27; Beazley JA at 28 DECISION : Application dismissed; Non-publication order CATCHWORDS : DEFAMATION -- Mitigation of damage -- Evidence of bad reputation -- Ability to rely on post-publication evidence -- Importance of maintaining trial date LEGISLATION CITED : Defamation Act 1974 O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 Rochfort v John Fairfax and Sons Limited [1972] 1 NSWLR 16 Television New Zealand Limited v Quinn (1996) 3 NZLR 24 Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 John Fairfax v Kelly (1987) 8 NSWLR 131 CASES CITED : Walter v Alltools Ltd (1944) 61 TLR 39 Myer Stores Ltd v Soo [1991] 2 VR 597 Sadler & State of Victoria v Madigan [1998] VSCA 53 Scott v Sampson [1882] 8 QBD 491 Plato v Speidel [1961] AC 1090 Dingle v Associated Newspapers Limited [1964] AC 371 Chappell v Mirror Newspapers Limited (1984) Aust Torts Rep 80-691 Singleton v John Fairfax & Sons Limited (No 1) [1983] 2 NSWLR 722 King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 PARTIES : Nationwide News Pty Limited William El-Azzi FILE NUMBER(S) : CA 40881/04 COUNSEL : TD Blackburn SC and JD Hmelnitsky - Applicant T Molomby SC and R Rasmussen - Respondent SOLICITORS : Blake Dawson Waldron - Applicant Kings Lawyers - Respondent LOWER COURT Supreme Court JURISDICTION : LOWER COURT 10930/03 FILE NUMBER(S) : LOWER COURT Levine J JUDICIAL OFFICER : - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40881/04 SPIGELMAN CJ MASON P BEAZLEY JA THURSDAY 14 OCTOBER 2004 NATIONWIDE NEWS PTY LIMITED V WILLIAM EL-AZZI Judgment 1 SPIGELMAN CJ: The Court has before it two applications for leave to appeal from an interlocutory decision of Levine J made in the course of defamation proceedings listed to be heard before his Honour and a jury. In these proceedings all matters will be determined by the jury because they were instituted before the introduction of s 7A into the Defamation Act 1974. 2 This is the oldest defamation case in the Court. Indeed it is amongst the oldest case of any kind in the Court. The issues that arise on this occasion manifest the importance of hearing defamation actions promptly. 3 The plaintiff is a former policeman. The matter complained of was published in the Daily Telegraph in May 1991. The article referred to the plaintiff's association with various criminals. The Court does not have before it the entire interlocutory history of the proceedings. No doubt they are long and tortured. By its defence the defendant puts in issue whether or not the matter complained of was published of and concerning the plaintiff; it puts in issue each of the imputations pleaded and whether the imputations were defamatory of the plaintiff; finally there is a defence of qualified privilege. 4 The issues that arise in this Court concern the particulars relating to mitigation of damage. The defendant intends to rely on evidence of bad reputation of the plaintiff and has provided particulars of a series of matters which are expressed at different levels of generality. Some of the particulars have been in the pleadings since 2002. Additional particulars were supplied to the plaintiff by letter of 3 October 2004, shortly before the matter was listed for trial. 5 The last mentioned additional particulars referred to the plaintiff's suspension from duty in 1987, a charge of conspiracy to murder in 1988, conviction for a corruption offence in 1994 and conviction for an offence of conspiring to manufacture a prohibited drug in 2002. This last conviction has been the subject of appeal to the Court of Criminal Appeal, which reserved its judgment on the matter on 1 October 2004. 6 Justice Levine had before him a notice of motion by the plaintiff to strike out the particulars in the defence, on a basis which would have denied the defendant's right to rely on the additional particulars set out in its letter of 4 October 2004. Two of the three issues his Honour dealt with in his judgment are challenged by the respective applications of the defendant and the plaintiff for leave to appeal to this Court. 7 The plaintiff's application to this Court is based on the case mounted before his Honour objecting to the particularisation of specific incidents in the particulars, said to go to mitigation of damage, which it was submitted went well beyond evidence of general bad reputation. Levine J felt obliged to reject the application based on the reasoning of this Court in O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 especially at [5]. His Honour interpreted that judgment to change what had hitherto been regarded as the orthodox position in this respect, to the effect that evidence of bad reputation was limited to general reputation and that evidence of specific incidents is not admissible. On this basis, his Honour permitted the defendant to re-plead its particulars of bad reputation and to add two of the particulars in its letter of 4 October 2004. 8 The particulars supplied were not, in terms, restricted to the period prior to publication of the matter complained of, although each used the word "had" and may have been understood to be so limited. However, it was clear from the letter of 4 October 2004, which expressly sought to rely on the two convictions in 1994 and 2002, that the defendant intended to rely on post-publication reputation evidence. That clearly raised the authority of this Court's judgment in Rochfort v John Fairfax and Sons Limited [1972] 1 NSWLR 16. 9 Levine J regarded himself as bound to apply that judgment, even though the judgment has been criticised in subsequent authority. I refer in that respect to Television New Zealand Limited v Quinn (1996) 3 NZLR 24 at 64-67; Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 especially at [294]-[342] and the doubts expressed in this Court in Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at [1], [64]-[75] and [91]-[97]; and Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1403]-[1406]. 10 I note in particular the reliance by Ipp JA in ABC v McBride at [69], on the observations of McHugh JA in John Fairfax v Kelly (1987) 8 NSWLR 131 at 143 to the effect that the award of damages in defamation covers injury to feeling and damage to reputation between publication and verdict. Although McHugh JA did not expressly refer to Rochfort, his reasoning may not be consistent with that judgment. 11 I also note that the same issue has arisen in the case of damages awarded for injury to reputation in proceedings for false imprisonment and malicious prosecution - (see generally D K Allen et al, Damages In Tort, Sweet & Maxwell, London, 2000, Ch 8.) In this context there is authority that suggests damage to reputation is affected by events until the date of verdict - (see Walter v Alltools Ltd (1944) 61 TLR 39; see also Myer Stores Ltd v Soo [1991] 2 VR 597 especially at 633-634; Sadler & State of Victoria v Madigan [1998] VSCA 53 at [63]). 12 Important questions arise with respect to the authority of Rochfort and, in an appropriate case, they will need to be determined. 13 Mr Molomby SC, who appears for the plaintiff, has indicated he would not press his plaintiff's motion if leave to appeal were denied on the defendant's motion. Accordingly, I will deal with the defendant's application only. 14 There are a number of issues that arise, but of particular significance is the age of this case and the importance of maintaining the trial date, which is imminent and has been deferred pending the outcome of these proceedings. 15 This Court is asked to decide a matter of quite significant principle on the run, as it were, in order to resolve the question for purposes of imminent proceedings, proceedings which are at present intended to resume and be conducted to their conclusion from Monday next. 16 The issue of bad reputation has plagued the law of defamation over a considerable period. Bad reputation is not, and has never been, a defence. However, it has long been established that bad reputation may operate to mitigate damage. 17 In this, as in so many other areas of the law of defamation, conflicting interests have to be resolved. A balance has been struck in the case of reliance on bad reputation in mitigation, perhaps commencing with the judgment in Scott v Sampson [1882] 8 QBD 491. For decades it has been clear that the pressure by defendants to extend the use of bad reputation evidence has been continuous - see cases such as Plato v Speidel [1961] AC 1090 and Dingle v Associated Newspapers Limited [1964] AC 371. The same sorts of pressures have arisen in this State in the context of a pleading of contextual imputation and also with respect to the issues that have risen about the proper interpretation of s13 of the Defamation Act 1974 (see Chappell v Mirror Newspapers Limited (1984) Aust Torts Rep 80-691; Singleton v John Fairfax & Sons Limited (No 1) [1983] 2 NSWLR 722 at 724-725 and King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 at 309-318). 18 What is involved here is a need to balance the conflicting interests that arise in the particular context of defamation proceedings. I do not believe that a focus solely on Rochfort can do justice to this conflict of interests. The criticism that has been advanced of the Rochfort decision, and its apparent inconsistency with other areas of the law, does need to be considered. In this State, it should be considered in the context of the way similar issues arise in other contexts. I refer to such contexts as contextual imputations and s13. It will also be necessary to consider how, if post publication reputation is to be taken into account, it is possible to disentangle the effect of the defamatory publication on such reputation, from other causes. These are not matters that should be resolved on an urgent basis. The broader context that needs to be considered in determining whether or not Rochfort should be followed in the future, leads me to the conclusion that it is not appropriate to determine this question on a time frame which would enable the matter to be resolved for purposes of the imminent proceedings. 19 I also have in mind the fact that neither party has shown any particular urgency in raising this matter. The O'Hagan point which led to the application to strike out the particulars as they had been pleaded at least since 2002, was not taken until recently. On its part the defendant has recently sought to raise additional particulars, including matters which quite clearly raise the Rochfort point for the first time. I do not make findings about which party is more responsible for the delay that has occurred than the other. However, against this background this Court should not be placed in a position of resolving important matters of principle with the degree of urgency called for. 20 A number of the matters contained in the particulars sought to be relied on will arise in the course of proceedings. Mr Blackburn indicated that he would contend that even the convictions would go to the issue of credit. No doubt there will be cross-examination on other aspects, such as the injury and hurt feelings that the plaintiff will no doubt give evidence about, that may give rise to some exposure of these matters. There is also the consideration that some of this evidence may not be admitted at all. The trial judge expressly left open in his judgment of 12 October 2004 the exercise of the discretion for which s135 of the Evidence Act provides, permitting a trial judge to exclude evidence the probative value of which is substantially outweighed by its prejudicial effect. It may be that some of these matters will be the subject of applications as to the exercise of this discretion. 21 There is a further complication in the present case that arises from the 2002 conviction. As I have noted, the Court of Criminal Appeal has reserved its judgment in the appeal. If the conviction were to be overturned there would be some further difficulty if that conviction had been relied upon by way of the additional particular upon which the defendant seeks to rely. 22 I bear in mind the difficulty that may be occasioned if the defendant is correct and this Court eventually reviews Rochfort that, if the defendant succeeds on such a ground of appeal, the order will most likely be for a new trial, at least one limited to damages. If that be the case, then all the parties and the Court itself will have incurred needless expenditure. 23 On the other hand there is the factor that these matters arise only by way of mitigation of damage and they will come to this Court on appeal in due course only if the defendant fails on the broad range of other factors on which it relies: including the proposition that the imputations do not arise, that they are not published of and concerning the plaintiff; that they are not defamatory of him and were published on an occasion of qualified privilege. It is only at this point, when the jury reaches the question of assessing damages, that issues of mitigation arise. Furthermore, the award of damages may not be such that the defendant wishes to appeal from it. These are contingencies that may, or may not, eventuate. 24 In view of all the circumstances to which I have referred, in my view this Court should not take any step which raises any risk of interfering with the trial continuing next week. The trial judge has indicated a view on the matters. His view involved the application of prior judgments of this Court, which his Honour was obliged to apply. Perhaps those cases should be reviewed. This may well prove to be an appropriate vehicle to do so, however not with the degree of urgency that has arisen on the present application. 25 Sometimes the desire to provide perfect justice needs to be modified in order to ensure that any measure of justice is delivered. This is such a case. In my view each application should be dismissed with costs. 26 I order that the submissions and the judgment in this matter not be the subject of publication until further order by the trial judge. 27 MASON P: I agree. 28 BEAZLEY JA: I agree. 29 SPIGELMAN CJ: The two orders are as I have indicated, the orders dismissing each application, and the non-publication order. ********** Last Modified: 11/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.