Those pesky typos
Wednesday, December 7, 2011
Justinian in Court in the Act, Errors in judgments, High Court

Judges being unkind to each other ... History of poor grammar and typos in judgments ... Forgiveness for some ... Crucifixion for others ... Defamatorium  

Black and/or disabled customers can be "suspicious"The NSW Court of Appeal has delivered a blistering judgment overturning Judge Judith Gibson's findings in a false-imprisonment and defamation case.

It involved our friends at Louis Vuitton, or its watch-making subsidiary, TAG Heuer - see LVMH Watch & Jewellery Australia v Michael Lassanah & Aaron Oddie.   

In 2008 a black American carer, Michael Lassanah, went with his intellectually disabled charge, Aaron Oddie, to look at watches at the company's shop in Pitt Street, Sydney. 

The manager was suspicious and pressed the "hold-up" button to call the police. 

The Gazette of Law & Journalism has much of the details. 

Outside the shop the two men were approached by the wallopers, who made some flat-footed assertions: 

"The manager of the TAG shop said you were intending to steal from the shop. We are stopping you because you guys were in the TAG shop intending to steal. You were intending to steal. Don't go into that shop. You were intending to steal."

In the District Court Judge Gibson found this statement to be defamatory and not protected by qualified privilege. Further, she said it was motivated by malice. 

"The occasion of qualified privilege was lost once the police went from repeating the allegations of the store manager to making allegations, particularly in circumstances where it was, by the time, clear that the store manager's allegations were at best misconceived or at worst mischievous or false." 

She awarded Lassanah damages of $15,000 and Oddie $20,000. 

Justice Paddy Bergin led the charge on appeal. 

She rejected findings that Lsssanah had been bullied, that the occasion of qualified privilege had been "lost" and that there was malice. 

In doing so she referred in her judgment to "grammatical problems [and] grammatical and/or typographical error" in Gibson's judgment. 

For example, Gibson said: 

"The purpose or motive that was foreign to the occasion of qualified privilege was that for a number of reasons, including concern about a respectable member of the public who is threatening to complain, which caused the police to use bullying techniques, namely to order the plaiuntiffs to 'go home'." 

Gibson J: what did she intend?Bergen made play of the fact that this required her to embark on a process of "distilling" or finding out "what her Honour intended".  

Now that the subject has been raised, it's worth mentioning that the Supreme Court has been a little kinder towards its own judges when they make typographical errors - e.g. ABC v Reading [2004] NSWCA 411 at [25].

The most famous example is the statement by Mahoney JA in King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 at 309 that a defendant seeking to establish a defence of unlikelihood of harm under s.13 of the (now repealed) Defamation Act had to negative:

"that there be 'harm' at all."

Beazley JA explained in Jones v Sutton (2004) 61 NSWLR 614 at [23] that Mahoney JA had merely overemphasized the point or, perhaps, omitted to use the word "likely":

"In that passage his Honour was not dealing with the test to be applied for the purposes of s.13 but rather with the extent of the proof required to establish the defence. He pointed out that a defendant bore a significant burden in seeking to do so, in that it was not only great or substantial harm that had to be negatived. It is possible, that in stating that the defendant had to negative "that there be 'harm' at all" his Honour overemphasised the point. It is more likely, however, as submitted by the appellant, that what his Honour meant was that what had to be negatived was that there was 'likely to be harm at all'. His Honour's omission to insert the word "likely" is not an omission of any moment." 

Nothing so forgiving came Judge Gibson's way. 

More recently, in Al-Shennag v Statewide Roads [2010] NSWSC 1412, Simpson J explained away much of the controversy about the qualified privilege defence arising from statements made by the Court of Appeal in general, and Ipp JA inparticular, in Bennette v Cohen [2009] NSWCA 60 at [19].

Simpson J noted kindly that Ipp had made a "typographical" error when he said that there needed to be a "significant" connection between the defamatory material and the protected occasion, saying that what the Ippster had meant to say was "sufficient", not "significant".

Her Honour set out Ipp's "typo", followed by her own explanation, as follows:

[21] "The second statement of principle relied upon by Mr Al-Shennag is derived from the judgment of Ipp JA at [19], where his Honour said:

'Closely allied to the requirement that the occasion must not be used for a purpose foreign to the interest that protects the making of the statement, is the requirement that there be a significant connection between the defamatory material and the privileged occasion: Bashford at [191]–[196], (434–436); Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9 at [73] per McClellan CJ at CL.' 

[22] The reference to a requirement for a 'significant connection' between the defamatory material and the privileged occasion appears to be a typographical error. The term consistently used in reference to the relevance requirement in the authorities, including Bashford at [7], [27], [167], [193] and [197] and Aktas at [41], [72] and [76], is to a requirement for a "sufficient connection" or that the communication be 'sufficiently relevant' or 'sufficiently germane' to the subject matter of the privileged occasion." 

It will be interesting to see if this explanation carries weight when the High Court hears the appeals in Papaconstuntinos v Holmes a Court [2009] NSWSC 903 - see [2011] HCA transcript 235 (September 2, 2011) and Harbour Radio Pty Ltd v Keysar Trad [2011] HCA transcript 234 (September 2, 2011).

These appeals will deal with the "controversy" of the Court of Appeal interpretations of Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 in Bennette v Cohen

"Controversy" is the adjective of choice by Rothman J in Cantwell v Sinclair [2011] NSWSC 1244 at [112] - "a series of cases in which qualified privilege has been a matter of controversy". 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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