High Court Upholds Admissibility of Ethical Evidence in Defamation Case

OUTCOME: Dismissed

High Court of Australia Gibbs, [NAME], Murphy, Wilson and Brennan JJ. [COMPANY] v [NAME] [1982] HCA 4

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1982, Feb. 9 Gibbs C.J.

I would dismiss this appeal for the reasons given by my brother [NAME] which I have had the advantage of reading and with which I agree.

[NAME].

I agree with the judgment of [NAME]. and with the order which he proposes.

[NAME] J.

I agree generally with Brennan J. However, where a [NAME] is the tribunal of fact and the issue of libel or no libel depends on the natural and ordinary meaning of the words, reference to hypothetical referees is not called for. The [NAME] are there as referees to decide whether they would understand the words in defamatory sense. The [NAME] stand for the community, it is their opinion which is decisive, not, despite what has been said in some cases, their estimate of what "reasonable" or "right-thinking members of society generally" (whatever that means) or "ordinary men not avid for scandal" would think.

The appeal should be dismissed.

[NAME] J.

[NAME] would dismiss this appeal, for the reasons given by [NAME] J.

[NAME].

In the Supreme Court of New South Wales the respondent, an English journalist, recovered a judgment against the appellants for damages for defamation. The first appellant had published a book, Great Cases of Scotland Yard — Volume I, which included a chapter of which the [NAME] appellant was the author and which contained the matter complained of. The chapter was entitled "The Stealing of Mrs. [NAME] [NAME]" and concerned the tragic abduction of Mrs. [NAME] and her subsequent murder in London. The relevant passage purported to describe a conversation between two police officers in the [NAME] home after Mrs. [NAME] had been abducted:

[NAME] opened the door to the dining room, and then a telephone trilled. "There it goes again," he said morosely, "Hasn't stopped ringing since [NAME] arrived."

"[NAME]?"

"The editor of The Sun. I suppose [NAME] felt he needed a friend to talk to, someone he'd known for a long time and who wasn't part of the family. I can understand that. [NAME] was the ideal choice from his point of view; they've known one another from the days when [NAME] was with the [COMPANY]." [NAME] drew out a chair and sat down at the table. "Trouble is," he said, "[NAME] is a newspaperman through and through and he has a nose for a story, and that's how the wires started humming and word got around that [NAME] [NAME] is missing."

This passage in its context was pleaded in par. 5 of the statement of claim. In accordance with the Rules of the Supreme Court the specific imputations alleged were pleaded in par. 6 of the statement of claim. That paragraph reads as follows: The matter referred to in paragraph 5 hereof, in its natural and ordinary meaning, contained the following imputations, each of which was defamatory of the plaintiff:

[redacted]

(ii) The plaintiff, in order to secure a sensational [NAME] story, exploited the tragedy that had befallen an old friend.

(iii) That the plaintiff, for journalistic ends, obstructed the course of the police inquiry concerning the disappearance of Mrs. [NAME] [NAME].

The defence denied that the matter complained of in par. 5 of the statement of claim bore or was understood to bear or was capable of bearing the imputations pleaded. In the result the learned trial judge (Lee J.) withdrew the third imputation from the [NAME], the [NAME] negatived the first imputation and the [NAME] found the [NAME] imputation established. The [NAME] assessed damages at $20,000 and judgment was entered for that sum and costs.

An appeal to the Court Appeal Division of the Supreme Court on the grounds of wrongful admission of evidence was dismissed. This appeal is brought from that judgment. The evidence to which objection was taken was adduced from the plaintiff and from two of his witnesses, Messrs. [NAME] and [NAME]. Mr. [NAME] was the chief executive of a [COMPANY], and Mr. [NAME] was the editorial general manager of that group. The respondent was employed by a company of the group. The appeal relates to the admission of three pieces of evidence. The first piece of evidence was given by the plaintiff:

[redacted] The [NAME] piece of evidence was given by Mr. [NAME]: Q. By virtue of your training as a journalist, and your association with [NAME] in the course of the company's activities, do you yourself have a view as to the ethical standards which journalist should observe. A. Yes, I do, I insist on the highest standards.

Q. Have you read the conduct which is ascribed to Mr. [NAME] on the two pages or so in that story? A. Yes, I have.

Q. Do you have a view as to whether or not that conduct meets the ethical standards which you regard as necessary to be observed? A. No.

It appears that the answer which he gave to the last of these questions was understood at the trial as meaning that the conduct attributed by the article to the plaintiff did not meet the ethical standards which the witness regarded as necessary to be observed. The third piece of evidence was given by Mr. [NAME]: Q. What effect upon your estimate of Mr. [NAME] did your reading of that portion have upon your mind? A. I felt that if what was implied by the statements reported of the policeman that Mr. [NAME] would have been guilty of betrayal of a friend's trust in a personal sense, that he would have been guilty of a gross breach of the code of journalistic ethics to which I subscribe, and would have been instrumental in embarrassing the police investigation of what was an important crime. Evidence that the conduct attributed to the respondent amounted to a breach of the [NAME]' ethical code or of the required standard of [NAME]' ethical behaviour was thus admitted, although no imputation alleging a breach of that code or standard was pleaded in the statement of claim. The appellants' submission is that the [NAME] might have awarded damages on the footing that the appellants had made an imputation that the respondent had been guilty of a breach of the ethical code or standard when such an imputation had not been alleged and could not have been found by the [NAME]. It is submitted that the evidence to which objection was taken, being wrongly admitted, might have inflated the damages awarded.

If an imputation of breach of ethical standard or code had been pleaded, the respondent would have been put to proof that an ethical standard or code existed and that the conduct imputed to the respondent had breached it. It would have been a true innuendo and the challenged evidence would have been admissible to establish the extrinsic facts to support it. Assuming such an imputation to be defamatory, a further cause of action for making that defamatory imputation would have been alleged in addition to the cause of action upon which the respondent recovered his judgment ([NAME] v. [RESPONDENT]. [1] ), though both causes of action would have arisen from the same publication (see the Defamation Act 1974 N.S.W., s. 9(2)(a)). And then, had it been established that such an imputation had been made and that it was defamatory, a higher sum could have been awarded as damages for making that defamatory imputation (see s. 9(5), and [NAME] v. [COMPANY]. [2] ).

1. [1964] [NAME]. 234. 2. [1964] 1 W.[NAME]. 988, at p. 992; [1964] 2 All E.R. 794, at p. 797.

As no imputation of breach of an ethical standard or code of ethics was alleged or found, no damages for making such an imputation could have been awarded. There is no reason to suppose that damages for making such an imputation were awarded. It does not follow that, because the challenged evidence tended to establish extrinsic facts which would have been necessary to support such an imputation, the [NAME] assessed damages on the footing that such an imputation had been established. His Honour's direction to the [NAME] clearly restricted their assessment to damage occasioned by making the defamatory imputation or imputations which had been pleaded and which the [NAME] might find to be established.

The admissibility of the evidence to which objection was taken is therefore to be determined by reference to the issues raised in the pleadings and litigated at the trial. Those issues arose under s. 9(2) of the Defamation Act which provides in part:

(2) Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a case of action against the publisher for the publication of that matter to that recipient.

Although a defamatory imputation may be made "by innuendo or otherwise" (s. 9(1)), none of the imputations pleaded in par. 6 was pleaded as a true innuendo. The meaning upon which the respondent relied to establish the imputations pleaded was the natural and ordinary meaning of the words published.

Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees — Lord [NAME] reasonable men ([COMPANY] v. [NAME] [3] ) or Lord [NAME] right-thinking members of society generally (Sim v. [NAME] [4] or Lord [NAME] ordinary men not avid for scandal ([NAME] v. [COMPANY]. [5] ) — would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ([NAME] v. [NAME] [6] , being a standard common to society generally ([NAME] v. [NAME] [7] ; [NAME] v. [NAME] [8] ; [NAME] v. [COMPANY]. [9] ).

1. (1882) [NAME]. 7 App. Cas. 741, at p. 745. 2. (1936) 52 T.[NAME]. 669, at p.671. 3. [1964] [NAME]., at p. 260. 4. [1937] 1 [NAME]. 818, at p. 833. 5. (1874) [NAME]. 9 C.P. 118. 6. (1921) 90 L.J.[NAME]. 883. 7. [1930] 1 [NAME]. 467, at p. 479.

It follows that the challenged evidence was not admissible to show the meaning which the hypothetical referees would place upon the words in the book. In [NAME] v. [COMPANY]. [10] Lord [COUNSEL], delivering the advice of the Judicial Committee, said that witnesses "cannot be asked what meaning they attached to the words because that is the very question the [NAME] have to decide". [NAME]. directed the [NAME] that they should not allow the challenged evidence to influence them in any way in determining the meaning of the words published, and no error is suggested in that respect.

1. [1946] 2 W.W.R. 181, at p. 182.

The challenged evidence was equally inadmissible to show that the pleaded imputations were defamatory, though it may be inferred that among the members of a profession bound by a code of ethics a member who transgresses the code is likely to be lowered in the estimate of others. But the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof; it is pre-eminently a matter for the [NAME] to give effect to a standard which they consider to accord with the attitude of society generally. His Honour's direction to the [NAME] as to the defamatory character of the imputations did not refer to any of the challenged evidence. He put to the [NAME] an objective test by which they might determine whether the imputations alleged were defamatory, and there is no reason to suspect that the [NAME] erroneously took the challenged evidence into account in determining the issue.

The evidence to which objection was taken was not relevant to any issue which arose under s. 9(2) of the Defamation Act, but once the cause of action under that provision is established, the [NAME] must turn its attention to the assessment of the damages for the wrong done.

When the libel is proved, some general damage is presumed (English and [COMPANY]. v. [COMPANY]. [11] ) but there is no reason in principle why evidence should not be admitted to show the gravity of the damage done to a plaintiff's reputation by the making of a defamatory imputation independently established (see per Bowen L.J. in [NAME] v. [NAME] [12] ; Ingram v. [NAME] [13] ). A [NAME] is entitled to take into account in assessing general damages the effect of the libel on those who read it ([COMPANY]. v. [NAME] [14] ), bearing in mind that some readers will regard the defamation more seriously than others ([COMPANY]. v. [NAME] [15] ). In making its assessment, a [NAME] is properly assisted by evidence that the making of the defamatory imputation found by them had an especially adverse impact upon the plaintiff's reputation in the eyes of some group or class in the community. Of course, care must be taken to ensure that evidence of the attitude of particular groups of classes is not misused: it is neither material to, nor admissible upon, the issue of the defamatory nature of the imputation made. The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes. But if the imputation is defamatory according to the standards of the community generally, a particular impact of the defamatory imputation may be proved.

1. [1940] 1 [NAME]. 4409, at p. 455, 461. 2. [1892] 2 [NAME]. 524, at p. 530. 3. (1840) 6 [NAME]. (N.C.) 212, at pp. 216, 217 [133 E.R. 84, at pp. 85-86]. 4. (1928) 41 [NAME]. 254, at p. 263. 5. (1966) 117 [NAME]. 185, at p. 215.

The [NAME]' standard or code was not put forward to show what the hypothetical referees would regard as the appropriate standard of conduct for a journalist. The challenged evidence went no further than showing that among the likely readers of the book were [NAME] who would regard more seriously than many other members of society the alleged failure of the respondent to adhere to standards of ordinary decency. The severity of the [NAME]' adverse estimation was not said to turn upon some special meaning which they would attribute to the words used to describe the respondent's conduct, nor was it said to depend upon some higher ethical code or standard than that expected by the ordinary right-thinking member of society generally. The challenged evidence simply went to establish what [NAME] J.A. called "the impact of the imputation which the [NAME] found to be made out upon the reputation of a journalist among [NAME]". [NAME]. so directed the [NAME] with respect to Mr. [NAME] evidence, and he was right to do so. He might have given that direction with respect to the challenged evidence given by the respondent and by Mr. [RESPONDENT] but he dealt with that evidence in a different way.

His Honour directed the [NAME] that they were entitled to assess damages for injury to the respondent's feelings as well as injury to reputation (see [NAME] v. [COMPANY]. [16] , per Lord Radcliffe), and they were invided to take into account "the emotional upset caused to him" which involved "a fear for his employment" to which the respondent had testified. The challenged evidence given by [NAME] was said to give substance to that fear. Assuming that the fear was properly to be regarded as a factor in the injury to feelings for which damages might have been assessed, the challenged evidence given by the respondent and [NAME] was relevant to the extent and reality of the fear. No exception is taken to the direction to take the fear into account, and accordingly there is no foundation for criticism of the way in which his Honour dealt with the evidence relevant to it.

1. [1964] [NAME]. 371, at p. 398.

However, the summing-up does not determine the admissibility of evidence given in the trial. In my opinion, the evidence given by the respondent, Mr. [RESPONDENT] and Mr. [RESPONDENT] was admissible to prove the impact of the defamatory imputation upon the respondent's reputation among [NAME]. If the [NAME] gave weight to that evidence in assessing damages for the making of the defamatory imputation which they found, they were entitled to do so. There is nothing in the summing-up which suggests that the evidence was misused to establish any other issue in the trial or to establish an imputation which had not been pleaded.

In the Court of Appeal, it was held that the challenged evidence was admissible to show "the circumstances of the publication" in order to rebut a defence under s. 13 of the Defamation Act, but as the evidence is admissible on other grounds this argument need not be considered.

The appeal should be dismissed with costs.