O'Shaughnessy v Mirror Newspapers Ltd ("Othello case") [1970] HCA 52; (1970) 125 CLR 166 (9 December 1970)

HIGH COURT OF AUSTRALIA

O'SHAUGHNESSY v. MIRROR NEWSPAPERS LTD. [1970] HCA 52; (1970) 125 CLR 166

Defamation

High Court of Australia
Barwick C.J.(1), McTiernan(1), Menzies(1), Windeyer(2) and Owen(1) JJ.

CATCHWORDS

Defamation - Fact or comment - Fair comment on a matter of public interest - Criticism of a stage performance - " Dishonesty" of production - Defamation Act, 1958 (N.S.W.), ss. 2, 15(f) and (g).

HEARING

Sydney, 1970, October 28, 29; December 9. 9:12:1970
APPEAL from the Supreme Court of New South Wales (Court of Appeal).

DECISION

The following written judgments were delivered:-
BARWICK C.J., McTIERNAN, MENZIES AND OWEN JJ. This is an appeal by special Wales (1970) 91 WN (NSW) 738 dismissing an appeal from a verdict and judgment for the defendant (the present respondent) in an action brought by the present appellant seeking damages for libel. (at p172)

2. The libel alleged was the publication in The Australian of a criticism of a performance of "Othello" sponsored by the Arts Council of Australia (N.S.W.) Division which was directed by the plaintiff and in which the plaintiff played the part of Othello. (at p172)

3. The criticism was called "What A Tragedy" and was written by Katharine Brisbane. The substance of the article was that the plaintiff, having at his disposal as good a group of players as Australia could produce, wasted their talents in a dishonest production devoted to enhancing his own role at the expense of those of the rest of the cast. A few extracts illustrate this.

"Stupidity and lack of talent are forgivable; brave failures
are deserving of praise - these are every-day human failings.
But the waste and dishonesty of this production, or rather
recitation, make me very angry indeed."
"I suspect the liveliness of John Norman's athletic,
romantic Cassio and the lifelessness of Rob Inglis' Iago had
something to do with the fact that Othello is seldom on stage
with the former and almost always with the latter.
Mr. Inglis' Iago is most elaborately boring. Mr.
O'Shaughnessy in his programme note 'flatly rejects' the
Leavis view that Iago is 'not much more than a necessary
piece of dramatic mechanism' but that is exactly what he
makes of Mr. Inglis."
"In short the performance is a disaster which has all the
makings of a fine production. All it needs is a producer with
a little humanity, who understands that the actors on stage
are people and the audience are people too. As it was the
only fellow feeling I had with the stage on Tuesday was with
Miss Thody's" (Desdemona) "expression at curtain-call.
She looked as if she had had enough for one evening, and so
had I." (at p172)

4. At the trial the learned trial judge ruled that, as a matter of law -

". . . the whole of this alleged defamatory matter, the whole
of this article . . . is comment and comment upon the production
of this Shakespearian play Othello by the plaintiff."

No doubt his Honour so ruled because he regarded the criticism as doing no more than expressing the critic's own evaluation of the production. In reaching this conclusion he had in mind well-established authority which protects honest criticism however severe, or even wrong headed, it may appear to be. One such authority, of course, is the following statement by Jordan C.J. in Gardiner v. John Fairfax & Sons Pty. Ltd. (1942) 42 SR (NSW) 171, at pp 173-174 :

"A person exposes himself to comment if (inter alia) he
invites the acceptance or approval by the public of his
literary or artistic productions. This applies to authors,
artists or sculptors who offer or display their work to the
public, and to musicians, singers or actors who perform in
public. In these cases, since the persons concerned have
invited the public to interest itself in their work, they cannot
be heard to say that its quality is not a matter of public
interest. Any member of the public is therefore entitled
freely to express his opinion of the work or of the performance,
whether by way of praise or blame: Thomas v. Bradbury,
Agnew & Co. Ltd.
(1906) 2 KB 627, at p 639
; and so long as he restricts himself to
statements of opinion he incurs no liability in defamation unless
his statements are found to be unfair or malicious. The critic
himself is as much exposed to comment for his criticism as is
the author criticized.
It is essential that the defamatory matter sought to be
defended as comment should be statements of opinion only.
Where, however, the matter complained of is, on the face of
it, a criticism of a published work or public performance, the
statements are prima facie comments unless they are seen to
be statements of fact or are proved to be such.
The test whether comment is capable of being regarded as
unfair is not whether reasonable men might disagree with it,
but whether they might reasonably regard the opinion as one
that no fair-minded man could have formed or expressed." (at p173)

5. His Honour must, however, have gone further than simply forming an opinion of his own that anything defamatory in the article was merely an expression of opinion and not a statement of fact. He must have formed the opinion that the jury could not have taken a different view, for, if there be doubt, it is for the jury to decide whether what has been published is a statement of fact or an expression of opinion. Aga Khan v. Times Publishing Co. (1924) 1 KB 675, at pp 680-681 ; Sutherland v. Stopes (1925) AC 47, at p 87 per Lord Wrenbury; Turner v. Metro-Goldwyn-Mayer Pictures Ltd. (1950) 1 All ER 449, at p 461 ; and Jones v. Skelton (1963) SR (NSW) 644, at p 657 . (at p174)

6. In our judgment his Honour was in error in taking the issue of fact or comment away from the jury and directing it that the article did not contain any defamatory statements of fact. It appears to us that the passages we have quoted could fairly have been regarded by the jury as going beyond criticism of the production and attributing a dishonourable motive to the plaintiff as a statement of fact. This is one of those cases where the critic, in making her evaluation that the production was a disaster - which, of course, she was entitled to do - did not plainly confine herself to commenting upon facts truly stated; she wrote what could, we think, have been regarded as amounting to a defamatory statement of fact, viz. that the producer dishonestly suppressed the roles of other players to highlight his own role. It is not that the writer merely failed to preface what she had to say about the production with some formula such as "it seemed to me"; it is rather that the jury could have found that an imputation of dishonesty was levelled against the plaintiff as the writer's explanation of what she asserted to be a waste of talent. If what was written had been no more than comment it only had to be fair, but, if it were fact, it had to be correct to defeat the plaintiff's claim. It was, we think, for the jury to decide whether there were any statements of defamatory fact, and, because the issue was withdrawn from them, we consider that the trial miscarried. (at p174)

7. To safeguard ourselves from too broad a generalization we would add that it is not our view that an imputation of dishonesty is always an assertion of fact. It is part of the freedom allowed by the common law to those who comment upon matters of public interest that facts truly stated can be used as the basis for an imputation of corruption or dishonesty on the part of the person involved. The same principle is recognized by s. 15(f) and (g) of the Defamation Act, 1958 (N.S.W.), for it is to be observed that these provisions cover comment upon the character of the person participating in a public performance "so far as his character appears from the matter exhibited". (at p174)

8. Upon appeal (1970) 91 WN (NSW) 738, at p 740 , Herron C.J. was of the opinion that the learned trial judge's ruling, that the defamatory matter was comment and was not capable of being read as containing a statement of fact, was correct. The conclusions reached by Jacobs and Mason JJ.A. are more complicated. Their Honours took the view (1970) 91 WN (NSW), at p 753 that "on the defendant's approach the allegation of dishonesty was" not "capable of being regarded as comment". This approach was seemingly that the producer, knowing that he could not do so, held out that his production would be a breakthrough in the staging of Othello, and his failure to achieve such a breakthrough could therefore be clearly described as dishonest. Their Honours held, however, that the matter should not have been permitted to go to the jury in this way because there was no evidence that the plaintiff knew he could not achieve what he said he was going to achieve. They then said:

"There would have to be a new trial if the allegation of
dishonesty were reasonably capable of being regarded as an
allegation of fact or if a jury could properly and reasonably
find that the comment, viewed in the way which we have
indicated, was unfair."
(1970) 91 WN (NSW), at p 754

but added:

". . . we do not think that the allegation of dishonesty is
in its setting an independent allegation of fact or is capable
of being so regarded. It is a conclusion from seeing the play
and reading what the plaintiff has written."
(1970) 91 WN (NSW), at p 754

Moreover, their Honours said:

". . . we do not think that . . . the allegation regarded as
comment can be reasonably regarded as unfair."
(1970) 91 WN (NSW), at p 754

As to this their Honours added:

"It would be different if it availed the plaintiff to prove, as
he sought to prove, what manner of performance of 'Othello'
actually was done that night, but a description of the manner
of performance as seen by the writer is subjective and, as we
have earlier said, is within the area where, provided it is
honest, the publication is lawful. In other words, the facts
upon which the ultimate comment of dishonesty was based
were the plaintiff's expressed views of the play and the
performance as seen through the eyes and ears of the writer.
From the performance as so seen and described and from the
published programme note it seems to us that the ultimate
comment of artistic dishonesty must come within the wide
area of fairness which the law allows."
(1970) 91 WN (NSW), at p 755

Their conclusion was that:

". . . a new trial would serve no useful purpose and the appeal
should therefore be dismissed."
(1970) 91 WN (NSW), at p 755 (at p175)

9. From what we have already written it is apparent that we must, with respect, disagree both with his Honour the Chief Justice and the conclusions of Jacobs J.A. and Mason J.A. in so far as their Honours say that the allegation of dishonesty was not capable of being regarded as an allegation of fact. Furthermore, we cannot accept the view of the majority that a jury could not fairly regard the allegation as constituting unfair comment. What the writer was commenting upon was an actual production of "Othello", and what happened that night was the "performance publicly exhibited" which could serve to bring the publication within s. 15(f) of the Defamation Act and so take it outside ss. 9 and 10 of that Act. If the article was fair comment respecting a "performance publicly exhibited" or relating to the character of the performer "so far as his character appears from the matter" exhibited, then the publication was not unlawful. The subject matter of the comment must, however, have been the matter exhibited, not the observer's impression, right or wrong, of this matter. If, for instance, a painter were to exhibit an abstract picture, an attack upon him as a debased libertine, based upon the critic's misapprehension that the picture was of a group, including the artist, indulging in obscene practices, might not be defensible under s. 15(f) of the Act. In such a case the jury would, of necessity, see the picture and form its own conclusion, and would not be bound to accept the critic's statement of what he thought he saw in the picture. It is, of course, true that the jury here could not themselves see the performance of the play that was the subject of the article, but we would give no support to the view that evidence of the actual production constituting "the performance publicly exhibited" could not avail the plaintiff, or indeed, the defendant. For instance, upon the issue whether there had been a waste of talent, evidence that Iago was played with great gusto and with manifest enjoyment of his villainy would not have been irrelevant; nor, of course, would the critic's account of the production from the witness box. The imputation of dishonesty which was made, if it were to be regarded as fair comment, would have to appear as the writer's honest expression of opinion upon facts truly stated and as an inference open to a fair-minded person. In saying this, we leave out of account altogether any question relating to the onus of proof which is outside our consideration here. (at p176)

10. Having concluded, therefore, that it was an error for the learned trial judge to direct the jury as he did, and being unable to accept the reasoning of Jacobs J.A. and Mason J.A. that a new trial would serve no useful purpose (1970) 91 WN (NSW), at p 755 , we are of the opinion that the appeal should be allowed and a new trial ordered. (at p177)

WINDEYER J. The matter published by the respondent in its newspaper was a vigorous, and in parts abusive, criticism of a public performance of "Othello". It was I consider capable of being read as not only disparaging comment on the performance, but, along with that, as an assertion that the appellant had produced the play in a dishonest way, in that he had selfishly and deliberately wasted the talents of other actors in order to enhance his own part by taking attention from them. So read, the words "waste and dishonesty" were a hendiadys. Dishonesty does not necessarily mean cheating or fraud. It may denote other forms of improbity - conduct that is dishonourable because not straightforward but designed to serve an unworthy end. In whatever sense it is used, it is a defamatory word. It is no doubt a judgment upon conduct. It is a judgment that in some contexts is a comment upon facts stated or well known: in other contexts, when the facts on which it is based are not fully stated or known, it is an allegation of a fact. Whether in a given case it is a statement of fact or merely the expression of an opinion, a comment on facts, must depend upon all the circumstances: see Kemsley v. Foot (1952) AC 345 , especially the passage from Odgers on Libel and Slander quoted by Lord Porter (1952) AC, at pp 356-357 . In Jones v. Skelton (1963) 1 WLR 1362, at p 1379; (1963) 3 All ER 952, at p 965 , Lord Morris, delivering the judgment of the Privy Council, said: "If, therefore, words are reasonably capable of being regarded as statements of fact or of being regarded as expressions of opinion, it is for a jury to decide which they are." This Court last year, quoting that, said that "there is, of course, no doubt as to the relevant law": Bamberger v. Mirror Newspapers Ltd. (1969) 43 ALJR 242, at p 243 . (at p177)

2. In my opinion the words "waste and dishonesty" were, in their context and circumstances, reasonably capable of being taken as an allegation of fact. The jury ought not to have been told that they were merely expressions of opinion to be considered by them on that basis only. They should, I consider, have been directed to decide whether they stated a fact or expressed an opinion: and further directed as to the respective consequences (pursuant to ss. 15, 16 and 17 of the Defamation Act, 1958 (N.S.W.)) of their finding either way. I do not think it is necessary to discuss here some other matters that were mentioned in the course of the argument. I therefore merely refer again to the judgment in Jones v. Skelton, where (1963) 1 WLR, at p 1379; (1963) 3 All ER, at pp 964-965 there is a sufficient, as well as authoritative, pronouncement of relevant principle. (at p178)

3. I agree that there should be a new trial. (at p178)

ORDER

Appeal allowed with costs. Order of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeal to that Court be allowed with costs, the verdict for the defendant set aside and that there be a new trial of the action.