Carleton v Abc [2003] ACTSC 28 (2 May 2003)

Last Updated: 13 May 2003

RICHARD GEORGE CARLETON v AUSTRALIAN BROADCASTING CORPORATION [2003] ACTSC 28 (2 May 2003)

PRACTICE AND PROCEDURE - costs - defamation - defence of comment/fair comment made out - no unreasonable prolonging of proceedings - public policy - actions in the public interest - usual order as to costs.

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Evans v John Fairfax & Sons Ltd [1993] ACTSC 46 (23 April 1993) (unreported)

Graham Charles Evans v John Fairfax Group Pty Limited, Alan Ramsey and John Alexander (unreported, 27 May 1993, Federal Court of Australia)

No. SC 474 of 2000

Judge: Higgins CJ

Supreme Court of the ACT

Date: 2 May 2003

IN THE SUPREME COURT OF THE )

) No. SC 474 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: RICHARD GEORGE CARLETON

First Plaintiff

JOHN DOUGLAS WESTACOTT

Second Plaintiff

HOWARD WENTWORTH SACRE

Third Plaintiff

AND: AUSTRALIAN BROADCASTING CORPORATION

First Defendant

PAUL BARRY

Second Defendant

PETER McEVOY

Third Defendant

ORDER

Judge: Higgins CJ

Date: 2 May 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The plaintiffs pay the defendant's costs of and incidental to these proceedings, to be taxed according to the Supreme Court Scale if not agreed.

1. In this matter, on 18 December 2002, I ordered the entry of judgment in favour of the defendants dismissing the plaintiffs' action against them.

2. This result had followed because, although the matter complained of was defamatory of the plaintiffs, it had fallen within the protection of the comment/fair comment defences available in one form or another in each of the jurisdictions in which publication had been made the subject of these proceedings.

3. The defendants had relied also upon defences that the matter complained of was true in substance and, insofar as applicable, for the public good or benefit. Further, they contended that the occasion of publication had, in each case, been covered by qualified privilege.

4. I rejected the defences of justification and, whilst persuaded that the occasions of publication had been covered by qualified privilege, nevertheless held that the occasions had been abused so that those defences also failed.

5. The plaintiffs now submit that as, from the outset, their objective had been to refute the truth of the accusation of plagiarism, in which they succeeded, they should have the costs of the action.

6. They point out that they offered, from the outset, to accept a retraction and apology and that the refusal to do so had been, as I found, based on an erroneous view of what constituted plagiarism.

7. The defendants, on the other hand, make the obvious point that they defended the action on several alternative (or cumulative) bases and it was immaterial which of them succeeded. It was enough that one did. It was not usual, Mr Lynch submitted on behalf of the defendants, to award costs on a lesser basis because only one of several defences succeeded. He conceded that some deprivation of costs might be warranted if the defendants had unreasonably prolonged the proceedings by reliance on defences which failed, but contended that the defence accepted by the Court, even had it been the only defence relied upon, would not have led to any substantial shortening of the proceedings.

8. He further pointed out that the plaintiffs themselves had failed to establish each of the imputations upon which they had relied or to establish malice or lack of good faith.

9. Further, although conceding that the plaintiffs had, prior to commencement of proceedings, offered to accept a retraction and apology, the plaintiffs had not undertaken to refrain from commencing proceedings for damages if their offer was accepted. Hence the defendants were at risk of making a damaging admission whilst not avoiding the costs of legal proceedings.

10. He pointed out that the defendants themselves had, by letter dated 18 February 2002, offered an apology which, whilst not resiling from the defendant's assertion that they honestly believed in the truth of their accusation of plagiarism, apologised for suggesting, if they did, the stealing of material or the use of material without authority.

11. It may be noted that the accusation of theft or unauthorised use of material was not found by me to arise. In any event, the thrust of the plaintiffs' complaint was the accusation of plagiarism.

12. In any event, the plaintiffs offered an alternative apology on 19 February 2002. It was in the following terms:

"In July 2000 in this time slot the ABC broadcast the Media Watch program.

Media Watch had an excellent reputation for exposing plagiarism in the Australian media.

Because of that reputation, when Media Watch made a mistake and wrongly accused a journalist of plagiarism that mistake was particularly damaging.

In the edition of Media Watch of July 17 2000 the ABC accused Richard Carleton and the 60 Minutes program of plagiarising material from the BBC production Cry from the Grave when they made their story on the fifth anniversary of the 1995 massacre at Srebrenica in Bosnia.

At that time the ABC was not fully aware of the facts relating to the 60 Minutes production.

The ABC is now aware of relevant facts which establish that the accusation was wrong.

Accordingly, the ABC withdraws the accusation unreservedly and apologises to Mr Carleton, his producers and the 60 Minutes program.

This apology is also made on behalf of Paul Barry, then the presenter of the program, the Executive Producer, Mr Peter McEvoy and on behalf of the publisher, The Australian Broadcasting Corporation.

This apology is to be published on the ABC's website for the same length of time that the ABC's original defamatory remarks were published there.

This apology is read by way of settlement of legal action Mr Carleton and others had taken against us.

This apology is essentially the same wording as that requested by Mr Carleton at the time of ABC's mistake."

13. The problem with that offer, from the defendants' perspective was, plainly, twofold. First, it suggested that the adverse accusation had been made in ignorance of the "facts". There was no such misapprehension. It was what could be regarded, reasonably, as plagiarism about which the defendants had been mistaken. Second, it required the defendants, if it was to be accepted, to acknowledge that the apology was "essentially the same" as that originally proposed in the period between the broadcast of the two publications sued upon. That was not entirely true. The later apology was offered in full settlement. The first was not.

14. Mr Lynch's principal point is that the publication had been lawful, even if it made an erroneous accusation. There was no public policy reason to deny the defendants their costs.

15. In reply Mr McClintock SC referred to Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 92, 97 per McHugh J at [67] - [69]. That was a minority judgment as to the result. The majority were prepared to depart from the usual rule on public interest grounds.

16. McHugh J referred to the merit in following the "usual order as to costs". It is, his Honour said, a principle "grounded in reasons of fairness and policy". It is not punitive in intent. It is to compensate the successful party for the expense incurred.

17. A "beneficial by-product", his Honour noted, was the instillation in would-be litigants of "a sober realisation of the potential financial expense involved".

18. No doubt, as his Honour observed, a departure might well be warranted where a successful party has committed some relevant misconduct or error, such as -

* Unnecessarily to protract proceedings

* To relevantly deceive or mislead the other party

* To succeed on appeal on a point not argued at first instance

* To unreasonably increase costs

* To refuse reasonable offers of settlement.

19. McHugh J, though acknowledging those exceptions, was, as I have noted, in a minority as to whether the "public interest" vindicated by the litigation could, or should, entitle a court to refuse to order the unsuccessful party to pay the costs of the successful party.

20. Gaudron and Gummow JJ based their decision on the position of the appellant/applicant in vindicating, albeit unsuccessfully, a public interest. Kirby J noted that the usual compensatory principle -

"... (126, [143]) says nothing about exceptional or special circumstances which warrant a departure from the general rule. ... Public interest litigation is just one category into which may be grouped particular kinds of cases that will sometimes warrant departure from the general rule."

21. The present case was one in which three individuals sought to vindicate their reputations in respect of a slur wrongly cast upon them by other media players in the course of the public discussion of matters of public interest.

22. On the one hand, the plaintiffs have obtained the benefit of this Court's opinion that the slur was unwarranted.

23. On the other hand, the defendants have vindicated their right to free speech and have been found to have so acted in good faith or, at least, not with malice.

24. I have considerable sympathy for the plaintiffs' position. Negotiations having failed to persuade the defendants that their view of what constituted "plagiarism" was wrong, albeit that issue was not accurately identified and addressed, there was no other course reasonably open, save perhaps the Press Council, for the plaintiffs to obtain an authoritative adjudication on the issue. The legal action was certainly an effective means of doing so.

25. In Evans v John Fairfax & Sons Ltd [1993] ACTSC 46 (23 April 1993) (unreported), I had found that the plaintiff in that case, whilst succeeding in "nailing the lie" and refuting the accusation made against him, failed because it had not been shown that the accusation though untrue, was defamatory. There had been a refusal to retract the offending article. That refusal precipitated the litigation.

26. I declined to make any order for costs on the basis of the substantial success of the plaintiff in achieving his primary objective.

27. That was not a conclusion with which the Full Federal Court agreed (see Graham Charles Evans v John Fairfax Group Pty Limited, Alan Ramsey and John Alexander (unreported, 27 May 1993, Federal Court of Australia)). It set aside my order in favour of the "usual order".

28. In so doing, the Court (Neaves, Miles and French JJ) did acknowledge that I had been empowered to make the decision I did and that it was a discretionary decision.

29. It was pointed out by the Full Court in addressing the question whether, had the defendant offered a correction and apology, the litigation might have been avoided:

[48] "Whilst the possibility could not be excluded that an apology may have avoided the litigation, the evidence did not suggest that it was a strong likelihood."

30. Nevertheless, their Honours further concluded:

[49] "It is difficult to see why the possibility that a defendant might have taken a course which would have avoided the litigation should necessarily deprive the defendant of costs where the defendant is successful following a hearing on the merits, as in the present case."

31. Further, the Court noted:

[51] "... a correction of an error contained in a defamatory publication, or an apology, or a combination of both, does not vindicate the plaintiffs reputation in the same way or to the same extent as a judgment of a court in favour of a plaintiff. Hence a plaintiff does not have to rest content with a published apology, and an apology does not stand in the way of an award of substantial damages for injury to reputation or injury to feelings. The principle so stated runs contrary to the hypothesis presented in the present case that an apology may have avoided litigation."

32. The court considered the basis for refusal of an order for costs to have been erroneous and that:

[53] "...No reason has been demonstrated why the ordinary rule of practice should not be applied and costs follow the event."

33. In my view, the fact that the defendants did not offer an apology nor accept that apology which was offered did, no doubt, precipitate the litigation. It seems likely to me that had the plaintiffs' offered apology been adopted by the defendants, the litigation may have been avoided.

34. However, that is not really the point. The point is whether, from the defendants' perspective, it was reasonable to have declined the offer. Given that it did not offer immunity from suit in any event and would have required them to abandon their honestly held belief as to the correctness of their comment, it cannot be concluded that their defiance was unreasonable.

35. Nor did the defendants assume a false position to provoke the litigation or its continuation. In that context the apology they later offered addressed the imputations that, though relied on by plaintiffs, did not, as I found, in fact arise. It was an apology consistent with their position that their comment had been justifiable.

36. It may be said that the defendants' pursuit, particularly in cross-examination, of Mr Carleton in a bid to establish the justification defences added to the length of proceedings, so Mr McClintock submitted. However, it was legitimate cross-examination which was relevant not merely to justification but also to damages, if any were to be awarded. Indeed Mr McClintock relied on that material as aggravation of damages.

37. The plaintiffs could not be said to have chosen the course of litigation, rather than some less satisfactory course, in ignorance of the risk that they could fail to achieve a verdict on one or other of the defences that might well be raised, including those of comment.

38. In my view, there is nothing in the conduct of the litigation warranting a departure from the usual rule of practice. Nor could it be said that the litigation was brought to vindicate some public right, as was the case in Oshlack (supra).

39. In the result therefore, there will be an order that the plaintiffs pay the defendants' costs of and incidental to these proceedings, to be taxed according to the Supreme Court Scale if not agreed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 2 May 2003

Counsel for the plaintiffs: Mr B R McClintock SC

Solicitor for the plaintiffs: Phillips Fox

Counsel for the defendants: Mr M Lynch

Solicitor for the defendants: Colquhoun Murphy

Date of hearing: 24 February 2003

Date of judgment: 2 May 2003