New South Wales Court of Appeal CITATION: Echo Publications Pty. Ltd. v. Tucker & Ors. Fast Buck$ v. Tucker & Anor [2007] NSWCA 170 HEARING DATE(S): 18 June 2007 JUDGMENT DATE: 18 July 2007 JUDGMENT OF: Mason P at 1; Hodgson JA at 2; McColl JA at 56 DECISION: 1. In the Echo Publications appeal, there is to be a further hearing on the s.22 issues; and the costs of the application are to be costs in the further hearing. 2. In the Fast Buck$ appeal, there is to be a further hearing in relation only to matters consequential on the further hearing of the Echo Publications appeal; and the costs of his application are to be costs in the further hearing. 3. Submissions by Echo Publications and by Fast Buck$ to be provided within 21 days, submissions by Mr. Tucker to be provided within a further 21 days, and submissions strictly in reply to Mr. Tucker's submissions to be provided within a further 14 days. 4. Matter placed into the Registrar's list to be given a hearing date in October 2007. CATCHWORDS: PRACTICE - Re-opening decisions - Whether denial of procedural fairness - Whether misapprehension of facts or law Autodesk Inc. v. Dyason No.2 (1993) 176 CLR 300 Hoecheong Products Limited v. Cargill Limited [1995] 1 WLR 404 CASES CITED: McVeigh v. Willara Pty. Ltd. (1985) 6 FCR 587 Ozmanian v. The Minister (1996) 137 ALR 103 Telstra Corporation Ltd. v. Kendall (1995) 55 FCR 221 Echo Publications Pty. Ltd. - appellant PARTIES: Ross Tucker - 1st respondent Fast Buck$ - 2nd respondent FILE NUMBER(S): CA 40761/05; CA 40061/06 Mr. B. McClintock SC for the appellant COUNSEL: Mr. T. Hale SC with Mr. M. White for 1st respondent Mr. Fast Buck$ appeared in person Banki Haddock Fiora, Sydney for appellant SOLICITORS: Elliot & Sochacki, Mullumbimby for 1st respondent Mr. Fast Buck$ appeared in person LOWER COURT JURISDICTION: Supreme Court, Court of Appeal (Application to re-open) LOWER COURT FILE NUMBER(S): As above LOWER COURT JUDICIAL OFFICER: Mason P, Hodgson JA, McColl JA LOWER COURT DATE OF DECISION: 5 April 2007 LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWCA 73 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40761/05 CA 40061/06 MASON P HODGSON JA McCOLL JA Wednesday 18 July 2007 ECHO PUBLICATIONS PTY. LTD. V. TUCKER & ORS FAST BUCK$ V. TUCKER & ANOR. Judgment 1 MASON P: I agree with Hodgson JA. 2 HODGSON JA: On 5 April 2007, this Court gave its decision in this matter: [2007] NSWCA 73. 3 On 10 April 2007, Echo Publications filed a Notice of Motion seeking orders that the Court's judgment dated 5 April 2007 be set aside and that Echo Publications be heard orally in relation to a number of issues, namely: (a) Whether endorsement of another's defamatory statements in reply to an attack means that the statements in question were made, or published, by the "endorser" and not the person attacked so as to defeat a reply to attack qualified privilege. (b) Whether, because Person A "endorses" Person B' s reply to an attack, Person B' s reply ceases to be her reply. (c) Whether John Fairfax Publications Ply Ltd v Obeid [2005] 64 NSWLR 485 ([87]-[121]), Bass v TCN Channel 9 Pty Ltd (2003) 60 NSWLR 251 [58] and Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 support the propositions set out in paragraphs 86-93 of the Court's judgment. (d) Whether the propositions set out in paragraphs 87 and 91 of the Court's judgment are a finding of malice in circumstances where that supposed malice ("endorsement") had not been pleaded by the first respondent, nor relied upon in any other way. (e) Whether those propositions are contrary to Roberts v Bass (2002) 212 CLR 1, and Bashford v Information Australia (2004) 218 CLR 366. (f) Whether reliance on Collins v Ryan (1991) 6 BR 229 and Roberts v Bass (2002) 212 CLR 1 was developed in submissions before the learned trial judge, contrary to the finding at paragraph 116 of the Court's judgment. (g) Whether the matters specified in paragraph 117 of the Court's judgment were in fact, in substance, put to the learned trial judge. (h) Whether the Court should take any account of the "endorsement" point when it was not pleaded or otherwise raised below, and was not taken by the first respondent in this Court, by way of oral argument or notice of contention. (i) Whether, consistently with the approach taken by the Court in relation to the "endorsement" point (which was not taken below or in this Court), the Court should have determined the section 22 case on the basis stated in paragraph 117 of the Court's judgment even if (contrary to the fact) it had not been taken below or in this Court. j) Costs, in the circumstances where the point on which the first respondent succeeded was not taken below or in this Court. 4 As a result, the Court's orders have not been entered. 5 On 19 April 2007, Fast Buck$ sent by facsimile to the Court a document entitled Notice of Motion, which did not in terms seek any order, but which adopted Echo Publications' submissions. It thus indicated that similar orders were sought. 6 Written submissions have been filed by Echo Publications on 8 May 2007, by Fast Buck$ on 10 May 2007 and by Mr. Tucker on 5 June 2007. Oral argument on the application was heard on 18 June 2007. CIRCUMSTANCES 7 Oral argument on the appeal was heard on 8 and 9 August 2006. At the conclusion of the hearing, leave was given for further written submissions, in the case of Mr. Tucker and Echo Publications leave was given to deal with specific matters, and in the case of Fast Buck$ a broader leave, because he had not been present on the first day of the hearing. 8 A series of further written submissions were received, ending with submissions from Fast Buck$ on 15 September 2006. 9 On 13 February 2007, the Court sent to Counsel for Mr. Tucker and Echo Publications and to Fast Buck$ a memorandum in the following terms: The court would be assisted by any submissions you might wish to make on the following matter, which we think is broadly within Mr. Hale's submissions although not put precisely this way. Accepting that Echo had a privilege attendant upon Ms. Potts' privilege to reply to an attack on her through the public press, it is arguable that this privilege does not extend to publishing an opinion that Ms. Potts is to be believed in preference to her attacker (relevantly Mr. Tucker). On one possible view, the article here conveyed the message that Ms. Potts is to be believed in preference to Mr. Tucker: see in particular par.[18], but also (for example) pars.[11] and [19]. The only question on which we invite submissions is whether the article did have the effect of endorsing the relevant part of Ms. Potts' response (relevantly in pars.[6] and [15]), and if so whether this takes Echo outside its attendant privilege. The closest authority we are aware of is Radio 2UE v. Parker (1992) 29 NSWLR 448 at 460-461. We would ask that you let us have any submissions on this matter within 21 days. 10 The Court received submissions in response to that memorandum on 6 March 2007 from Echo Publications and on 12 March 2007 from Fast Buck$. 11 On 2 April 2007, the Court received a request from Fast Buck$ for an opportunity to put on further submissions. The Court did not accede to that request, and judgment was delivered on 5 April 2007. The question of endorsement of Ms. Potts' response, raised in the Court's memorandum, was decided adversely to Echo Publications: see par.[89]-[93] and [98]-[99] of the judgment. JURISDICTION TO RE-OPEN 12 I accept that, in rare cases, there is jurisdiction to re-open a judgment where an applicant can show that, by accident or without fault on the applicant's part, he or she has not been heard, and also where the Court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or law: see Autodesk Inc. v. Dyason No.2 (1993) 176 CLR 300 at 303. ISSUES 13 Mr. McClintock SC for Echo Publications has advanced three broad submissions in support of the application: 1. Echo Publications was not fairly informed of the point decided against it. 2. The Court's decision of that point displays a misapprehension of the law and/or the facts, which could have been avoided if a proper opportunity had been given to Echo Publications to deal with it. 3. In deciding against Echo Publications in relation to s.22 of the Defamation Act 1974, the Court did not determine an argument put to it, because it mistakenly took the view that this argument had not been put. 14 He also, in written submissions, contended that the Court denied procedural fairness to Echo Publications in failing to hear its submissions on costs. 15 Fast Buck$ adopted the submissions of Echo Publications. He also submitted that he particularly was denied procedural fairness in relation to the "endorsement" point, and in not being given the opportunity to make submissions on costs. He also advanced submissions as to why the decision on the endorsement point was wrong in fact and law. 16 His written submissions also included submissions that there were other errors in the Court's judgment; but these submissions do not raise any issue of the kind that could justify recalling the Court's decision, and I will not deal with them specifically. 17 The question whether procedural fairness was given concerning the endorsement issue cannot be kept entirely distinct from the soundness of the Court's decision of that issue; and I will first consider all questions relating to that issue. 18 Next, I will consider Echo Publications' submissions in relation to s.22. 19 Then I will consider all questions relating to costs. ENDORSEMENT ISSUE Submissions 20 Mr. McClintock submitted that the endorsement point was an entirely new question of law and/or fact introduced by the Court; and thus, if it was to be raised at all, it needed to be thoroughly explored by adversarial means, both as to its merit and to the propriety of entering upon it: Hoecheong Products Limited v. Cargill Limited [1995] 1 WLR 404 at 409. 21 He submitted that the point was not within the pleadings and was not a subject of address below or in this Court; and that the terms of the Court's memorandum precluded Echo Publications from advancing submissions on this aspect. 22 He submitted that the Court's memorandum did not fairly inform Echo Publications of the point, in that it did not convey that it was Fast Buck$'s endorsement, and not Echo Publications', that could destroy the privilege; did not refer to authorities referred to in the Court's judgment (par.[87] and [91]); and did not convey the notion, accepted by the Court, that the endorsement somehow transmuted one person's words into the words of another. 23 He submitted that the cases referred to could have been shown to give no support to the Court's conclusion. 24 He submitted that the point relied on by the Court was entirely novel, and was a serious misapprehension of the law. It wrongly suggested that, because Fast Buck$ endorsed Ms. Potts' response, she ceased to be a publisher. 25 He submitted that the Court misapprehended the law in that it failed to appreciate that the defence of qualified privilege protects what is said on an occasion of qualified privilege, and that everything said on such an occasion is protected unless the plaintiff proves malice or that the defamatory matter was not relevant to the occasion. 26 Fast Buck$ submitted that he was not treated fairly, because he was not given a right of reply on a matter that turned out to be central, in that he was given only the Court's "musings" and no submissions on them by Mr. Tucker's lawyers. 27 He also submitted that the article made it plain that it was giving Ms. Potts' version; that any opinion expressed by him was no more than "that the hat fits"; that in the context of The Star article to which the Echo article was a response, the heading "advertisement" and Fast Buck$'s role as a politician, this could not be considered endorsement in any real sense; that it could not have caused any additional damage from the imputations, so the findings of endorsement was at best entirely technical; that this Court's finding were contrary to the jury's findings that Fast Buck$ did not defame Mr. Tucker by calling him a liar; and that at the trial before the primary judge, Fast Buck$ had been restricted in the evidence he led and the questions he asked to matters relevant to the two damaging imputations. Decision 28 The issue in question was raised by Echo's pleading that "the matter complained of was published under qualified privilege at common law", and the relevant particular was that it was published "in response to an attack made by the plaintiff". Mr. Tucker's Reply joined issue and alleged malice. 29 The relevant finding of the primary judge was that set out in par.[257] of his judgment, which is quoted in par.[29] of this Court's judgment. The relevant ground of appeal was that the primary judge "erred in finding that the appellant lost the privilege for the reasons expressed" in that paragraph. 30 A submission made by Mr. McClintock at the hearing of the appeal, and repeated in this application, was that the remainder of the article, that is, the remainder leaving aside the parts giving rise to the defamatory imputations, was irrelevant to the question of qualified privilege, except in so far as it could be relevant to the issue of malice. 31 That submission having been made, it was incumbent on this Court to consider it, and, if the Court thought it was material to whether Echo Publications' attack on the decision of the primary judge should succeed, to decide it. If the Court thought that the submission was wrong for a reason not advanced by Mr. Tucker's representatives, it would not be right for the Court to uphold the submission; but if that reason had not been adequately explored in argument, then the Court should give the parties an opportunity to address that reason. 32 The reason in question was touched on in oral argument (see transcript 8/8/06, p.29); but the Court considered it necessary to raise it specifically in its memorandum, both to give procedural fairness and to obtain assistance from the parties. 33 The case referred to in the Court's memorandum stated the principle underlying a newspaper's derivative privilege in the case of a reply to an attack, in a way that limits it to what is relevantly said by the person attacked; so that although the Court could find no case in which the notion of endorsement had been relied on in this context, the idea that endorsement could take a publication outside the privilege did not appear to the Court to be "an entirely new question of law and/or fact" of the kind referred to in Hoecheong. 34 The rules of natural justice do not necessarily require a decision-maker to bring to the attention of a person affected the precise detail of all matters that may be relied on: McVeigh v. Willara Pty. Ltd. (1985) 6 FCR 587 at 600-1; Telstra Corporation Ltd. v. Kendall (1995) 55 FCR 221 at 230. It is sufficient if the substance or gravamen is disclosed: Ozmanian v. The Minister (1996) 137 ALR 103 at 123. In my opinion, the Court's memorandum in this case did disclose the substance of the matter in question. 35 In my opinion, the memorandum could not reasonably be construed as precluding a submission as to whether the point was open: Echo Publications did in fact submit in response to the memorandum that the point had not been taken by Echo Publications in this Court or below. In any event, in my opinion the point was within the issue raised by the joinder of issue on Echo Publications' defence of qualified privilege, and was raised directly by Mr. McClintock's submission that the remainder of the article was irrelevant except as to malice. 36 The cases referred to by the Court dealing with endorsement did not deal with the loss of this kind of qualified privilege; but in my opinion they confirm the importance of the question of endorsement in various areas of defamation law, in a way that could apply by analogy to the present question. The Court's decision did not turn on a suggestion that Ms. Potts ceased to be a publisher. 37 Mr. McClintock submitted that, since malice had not been found, the only question was whether the defamatory material was germane to the occasion, and the Court had found that it was. However, in my opinion this submission takes too narrow a view of what material could be taken into account. If an attacked person gives a reply, and another person asserts that the attacker is to be disbelieved and the attacked person is to be believed, publication of that assertion together with the attacked person's reply may not give rise to any additional defamatory imputation beyond that contained in the reply itself and may not be sufficient to show malice; but in my opinion the additional assertion is not relevant to the occasion and, by its adoption of the attacked person's reply, also conveys the defamatory imputation. 38 Fast Buck$ submitted that there should be no liability unless the endorsement caused additional damage, and that otherwise the principle applied by the Court would be purely technical and unmeritorious. However, given that publication of the matter giving rise to the imputations had caused damage, and that the publisher has not brought the publication within the relevant defence, in my opinion there is no basis on which the Court could or should investigate the extent to which the damage would have been caused anyway even if there had been no endorsement. The law of defamation seeks to balance the conflicting interests of reputation and freedom of speech, by means of detailed rules; and it is inevitable that its application to some cases may seem technical. 39 Fast Buck$ submitted that, as an unrepresented litigant, he should have been given more than the Court's musings. I agree that courts must try to ensure that unrepresented litigants understand the issues being considered, but this does not mean that they are entitled to a detailed analysis of the law from the Court, or a right of last reply after all other submissions are received. 40 The question whether the article did convey an assertion by Fast Buck$ that Mr. Tucker was not to be believed and that Ms. Potts was to be believed was the subject of submissions and decision by the Court; and I see no ground for re-opening that decision. SECTION 22 Submissions 41 Mr. McClintock submitted that the Court in pars.[114]-[117] of my judgment did not deal with Echo Publications' argument on s.22, and that there were two misapprehensions of fact: (1) that the primary judge held that "the community in the Byron Council area had no legitimate interest in receiving the publication"; and (2) that the argument referred to in par.[117] had not been put. 42 Mr. McClintock also submitted that the Court's judgment was in error in the last sentence of par.[115], because the beliefs of Echo Publications were irrelevant to the question of "apparent interest"; but that submission appears to overlook the express words of s.22(2). Decision 43 It is true that the primary judge's statement that "the community in the Byron Council area had no legitimate interest in receiving the publication" was given one qualification, to the effect that the article could be regarded as published on an occasion of qualified privilege as a reply by Ms. Potts to The Star article. That was the only "subject" on which, on the primary judge's finding, the community had an interest in receiving information; and I took the view that the decision concerning the reply to an attack point meant that this could not support the s.22 defence. 44 However, I note that s.22 extends to protect matter published in the course of giving the recipient information on that subject, so "the matter" here could satisfy that requirement, even if the only subject on which the community had an interest in receiving information was a reply to The Star article. The question would then become one of reasonableness. 45 I took the view that the primary judge had, at least impliedly, decided the question of reasonableness in par.[254]-[257] of his judgment; so that to succeed in the appeal Echo Publications would have to establish either that his decision (on the lack of any other community interest and on reasonableness) was wrong, or that he did not give reasons for his decision. My decision that Echo Publications did not establish these things did depend on a view I took about the submissions made, so it is necessary to re-consider those submissions. 46 On re-reading the material referred to by Mr. McClintock, notably Orange 123F-V and 191S-193B, I am now of the view that an argument to the general effect of par.[117] of my judgment was put below. I do not think it was put in written submissions before this Court (see Supplementary Orange 13E-14R) or in oral submissions (see transcript 8 August 2006 pp.32-3), although in those oral submissions there was reference to the submissions below at Orange 191-3. 47 I now think that in par.[117] I did misapprehend what submissions were made below, and that this does impact both on the question whether the primary judge's reasons were adequate and on the question whether this Court should be prepared to find that his conclusion was wrong. 48 For that reason, I would be prepared to re-open this aspect of the appeal by Echo Publications. 49 As regards the appeal by Fast Buck$, the primary judge's decision not to permit him to rely on s.22 was not set aside by this Court, and in my opinion no sufficient grounds have been advanced to justify reconsideration of that question. Accordingly, I would not be prepared to re-open any aspect of his appeal, except to the extent necessary by reason of the re-opening of Echo Publications' appeal. 50 If the Echo Publications' appeal were successful, Fast Buck$ would be left solely liable for the damages awarded to Mr. Tucker; and so in my opinion he is entitled to be heard on that basis. Also, there would be a question whether the order that he pay Mr. Tucker's costs of the proceedings should stand: it would be arguable that he should pay only some part of those costs, if Mr. Tucker's judgment against Echo Publications is set aside. In relation to those matters only, I would also re-open the appeal by Fast Buck$. COSTS 51 The decision of the Court had the effect of dismissing all of the grounds of appeal relied on by the appellants. In those circumstances, costs would follow the event, except to the extent that costs were increased by unreasonable conduct by the respondent or incurred because of some severable issue on which the respondent failed. 52 The circumstance that one of the many grounds of appeal failed because the appellant's argument was found to be unsound, for reasons not originally advanced by the respondent, would not be a ground for departing from the usual order. 53 I would not re-open on the question of costs, except to the extent necessary by reason of the re-opening on the s.22 question. ORDERS 54 I would make the costs of both applications costs in the further hearing. 55 I propose the following orders: 1. In the Echo Publications appeal, there is to be a further hearing on the s.22 issues; and the costs of the application are to be costs in the further hearing. 2. In the Fast Buck$ appeal, there is to be a further hearing in relation only to matters consequential on the further hearing of the Echo Publications appeal; and the costs of his application are to be costs in the further hearing. 3. Submissions by Echo Publications and by Fast Buck$ to be provided within 21 days, submissions by Mr. Tucker to be provided within a further 21 days, and submissions strictly in reply to Mr. Tucker's submissions to be provided within a further 14 days. 4. Matter placed into the Registrar's list to be given a hearing date in October 2007. 56 McCOLL JA: I agree with Hodgson JA. ********** 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.