Age Company Pty Ltd & Ors v Liu
[2016] HCATrans 306
[2016] HCATrans 306
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S160 of 2016
B e t w e e n -
THE AGE COMPANY PTY LTD ACN 004 262 702
First Applicant
RICHARD BAKER
Second Applicant
PHILLIP DORLING
Third Applicant
NICK McKENZIE
Fourth Applicant
and
HELEN LIU
Respondent
Application for special leave to appeal
FRENCH CJ
BELL J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 16 DECEMBER 2016, AT 11.30 AM
Copyright in the High Court of Australia
_____________________
MR G.O’L. REYNOLDS SC: If the Court pleases, I appear for the applicants with my learned friend, MR D.P. HUME. (instructed by Minter Ellison Lawyers)
MR B.R. McCLINTOCK, SC: If the Court pleases, I appear with my learned friend, MS G.R. RUBAGOTTI, for the respondent. (instructed by Kennedys)
FRENCH CJ: Thank you. Yes, Mr Reynolds.
MR REYNOLDS: Your Honours, can I structure my submissions this morning by focusing on the five mandatory factors in section 35A of the Judiciary Act. What I would like to start with is the issue of differences of opinion between courts, which in this case are twofold: first of all, differences of opinion within the New South Wales Court of Appeal, and second of all, differences of opinion between different courts.
I submit that those differences arise on four significant issues. The first is whether disclosure of sources can be ordered to assist the plaintiff in a defamation case to try to improve his or her case against a newspaper – that is, an extant offender on damages. Your Honours will have seen from our submissions that the authorities are one way on this, in our favour. This is in our submissions at paragraphs 45 to 48, the decision of Justice Chernov in Victoria in Lew, following the United Kingdom Court of Appeal in Maxwell’s Case.
In this case, the Court of Appeal judges all took the opposite view and that was a critical finding on the issue of finding error by the primary judge. In the submissions from the respondent, there has not been any attempt to attack the reasoning of Justice Chernov or the Court of Appeal in Maxwell. We assert that those decisions are clearly right and that, indeed, to try and use preliminary discovery against the newspaper to try to improve your case against the newspaper we submit is an improper purpose. There is a clear conflict here between the Court of Appeal on the one hand and the Victorian courts and the UK Court of Appeal on the other.
FRENCH CJ: It is not just proving a case against the newspaper, is it? It is nailing the lie. That is one of the arguments put against you.
MR REYNOLDS: I understand that, your Honour, but I am focusing on whether there is an error on the question of getting preliminary discovery to improve your case on damages, aggravated or otherwise, against an extant defendant. It is not appropriate, on the authorities, to use preliminary discovery for that purpose.
The second issue I want to have a look at is the meaning of “effective remedy against the newspaper”. That is a phrase which your Honours will recall comes from this Court’s decision in Cojuangco and particularly at page 357 – I will not go to the judgment – where it is stated that the Court will refuse preliminary discovery if the applicant has an effective remedy against the newspaper.
That obviously raises the issue of what is the test. The High Court in Cojuangco, this Court confirmed the view of the primary judge in that case. In the Court of Appeal in that case the Court said that the test applied by the primary judge was what we have called the “no less effective remedy test” – that is, whether the remedy against the newspaper is no less effective than that against the source.
They also said that the primary judge was correct in determining that issue by weighing up the relative prospects of success in defamation on the one hand against the newspaper and on the other hand against the source. In that case, as frequently happens, that was resolved by looking at whether there were defences available to the newspaper that would not be available to the source. In that case, it is qualified privilege.
That approach was also adopted by the Victorian Court of Appeal in the Guide Dogs Case. It is a corollary of that test – and this is where the difficulties arise in a practical sense – that if the newspaper drops its qualified privilege defences, then it will have less defences for the same article than the sources do. Therefore, there is an effective remedy against the newspaper or at least one that is in fact not just no less effective than the one against the source but actually better because there are three less defences as here.
Not surprisingly, in this case Justice McCallum applied this no less effective remedy test or interpretation – that is at paragraphs 47 and 50 of the judgment – but some reason which is not clear from the judgment, the Court of Appeal in this case have simply not applied that test, notwithstanding that it is established, I submit, by the earlier decision of the Court of Appeal in Cojuangco, which was affirmed and said to be correct in principle by this Court and, for that matter, by the Guide Dogs decision. So your Honours can see, just pausing there, that there are a lot of conflicts between a lot of decisions and we submit including a decision of this Court. The third issue is a matter or practical ‑ ‑ ‑
KEANE J: Mr Reynolds, I know you are taking us through these points in order but can I just ask you? These points you are raising, or that were raised in this application, they are points that could have been raised the first time around, had your client then taken the position that it took after losing on the first round. So that when one considers taking this case, one must consider whether it is a suitable vehicle in all the circumstances, and it is very different to ignore the circumstance that here we are, six years on from when the matter was commenced, in circumstances where these points could have been but were not taken first time around and are now being sought to be agitated.
MR REYNOLDS: Your Honour, can I respond to that? We have set out in our submissions the various practical problems that arise from giving an undertaking at the initial point about not pleading qualified privilege. We set them out in four paragraphs and there has not been any response to it. That is the first thing. Second of all, these issues that I am going through did not arise the first time around at all. The reason is that these issues only really arise when an undertaking not to plead qualified privilege is given.
KEANE J: Quite. That is because your client has changed its position in relation to this. It has changed its position in relation to the defences it wishes to run.
MR REYNOLDS: Well, your Honour, that also raises another issue of conflict between the authorities because my client, not surprisingly, was running from the template in Cojuangco and what happened in that case is that no undertaking was given all the way up to the High Court where the appeal ran – it was not just a special leave – then it went down to first instance. The undertaking still was not given. A further undertaking was given on appeal to the Court of Appeal and then a third undertaking was given during the hearing and at that point the undertaking was accepted. That is a far more severe case than this one.
KEANE J: That is a great illustration of the halcyon days of pre Aon when these exquisite tactical dances were regarded as necessary for the administration of justice. Those days are gone. JL Holdings v The State of Queensland has been overruled.
MR REYNOLDS: Well, can I say two things about that? First of all, that does raise in turn a question of principle in relation to the way disclosure of sources is dealt with. Second of all, could I go back to the point I made earlier, and that is that there are immense difficulties of a practical kind which we have set out and which have not been responded to about giving an undertaking first up. One of the reasons is, sure, you can give the undertaking first up not to plead qualified privilege, but if you do that the effect will be that you will not be ordered to provide disclosure of the sources but you will have lost all your qualified privilege defences.
So if this approach below is right, it means that the first thing every would‑be plaintiff will do is they will kick off a preliminary discovery case against the newspaper before they commence proceedings, get them to drop their qualified privilege defence because they have to do it straightaway and then, having forced them to drop all their qualified privilege defences, then they will commence proceedings against it. That is the practical difficulty.
The other problem is that if you have other arguments, as we did here such as the constitutional point and such as the fact that the conditions precedent to the exercise of the discretion had not been satisfied, then you are not going to be able to run those points adequately if you have also given that undertaking. Why? Because if you give the undertaking you are certain to win and even if you would have won on appeal on the other points you would be without remedy.
That is at the root and that is a quick summary of the practical difficulties which the respondent just has not locked onto. It is not just, “slather and lack, you should have done it earlier,” which is the approach that we see here. It is much more complex than that and again, I repeat, there has not been an attempt to lock horns with those difficulties.
BELL J: At the outset – that is, on the first occasion before Justice McCallum, did Justice McCallum raise with you the question of whether there might be an undertaking in relation to qualified privilege?
MR REYNOLDS: Yes, your Honour, and my ‑ ‑ ‑
BELL J: And as an alternative that was not embraced?
MR REYNOLDS: Well, it was not, and in terms of a conditional undertakings, that is another problem we point to about the difficulty about of drafting a condition which would enable one to hang on to other grounds of appeal – for example, going to other arguments such as the conditions precedent to the exercise of the discretion. There is a very real practical difficulty here.
BELL J: Resulting in, at the practical level, interlocutory squirmishes that run for four, five, six, eight years?
MR REYNOLDS: Your Honour, none of that delay has been the fault of my client. We did not run the last appeal, for example. We won before Justice McCallum who was found not to have erred on her discretion on this so‑called re‑litigation issue. So that is another response I have due on the justice ‑ ‑ ‑
KEANE J: Except that her Honour was concerned with it in a different context from the context in which we are seized of it. Our concern is that we are being asked to grant special leave and we look at the question in a broader way with a concerned eye towards the notion that we would be accepting that it is appropriate to engage in this tactical approach of taking things as far as you can before you lose on a matter of practice and procedure, although I know that you are giving away a substantive defence, but pursuing a tactical or a strategic approach to the point where you lose and then you start again. You are asking the Court to sanction that.
MR REYNOLDS: Your Honour, my clients had at least these two Victorian Court of Appeal and New South Wales Court of Appeal decisions which said that that was okay and they are following that. I have also said there are practical reasons why that has to be the approach they take. I have indicated that and there has not been any response to it.
In terms of any question of principle as to whether those decisions earlier are wrong, I submit that that is the sort of issue which this Court would need to look at and it provides an issue which your Honours should deal with, particularly in the light of these earlier decisions that validated the approach which my clients have taken in this case.
I am running out of time, your Honours, but the other issues on which there are conflicts – and I do not have time to go through this – are whether disclosure can be avoided by relinquishing qualified privilege, again there is a conflict in the Court of Appeal authorities on that, and whether the newspaper must relinquish qualified privilege at the outset or whether it can do so at a later stage. Your Honours have heard that in the second Cojuangco case that was permitted even at the last point, and I repeat on the issue of discretion as to relitigation no error was found in the primary judge’s approach.
Your Honours, just pausing there, there are at least those four conflicts in the authorities. There are also, I submit, other important questions of law which would be likely to arise if this Court granted leave. We have set these out in our submissions. Since I have been answering a lot of questions, could I deal with those briefly?
FRENCH CJ: Well, it happens at special leaves.
MR REYNOLDS: Unfortunately, your Honours, the best laid plans in chambers about submissions often –
FRENCH CJ: Best not to delay them. Go on with your points.
MR REYNOLDS: The four issues I want to emphasise here are, first of all, we have mentioned the different approach that is now taken in the UK which we have called the multifactorial balancing test, which is different from this notion of necessary in the interests of justice or effective remedy. Things have moved on there. The original tests in Cojuangco were derived from the English decisions and the English decisions have now moved on, although their context I agree is slightly different.
The second issue of importance, though, is the scope of the newspaper rule. We have mentioned decisions overseas, and I will not go through those, where they have now effectively held that this is a form of privilege, albeit a qualified one. Now, the possibility of this Court taking that approach, I submit, is made greater by the fact that this is a case where the implied freedom is in play because the implied freedom works on political discussion and this is called political discussion.
The point I am making is this. In the Lange case, this Court held that the common law must conform to the freedom and found that the qualified privilege defence, which at common law was that large, was dilated to reflect the operation of the implied freedom. The point I am making is that at the moment the newspaper rule is that large and the operation and the implied freedom on it may be to enlarge it so that it becomes something more like a privilege. If that is the case, then that changes the whole equation on one of these applications.
Closely linked with that is a third point, which I will mention briefly, and that is your Honours have dealt with a lot of cases recently on the implied freedom impacting on the exercise of statutory discretions. Your Honours know there are a number of issues that are raised there, particularly now post‑McCoy the issue of proportionality in the exercise of such discretions is raised. The fourth point is on the issue of proportionality, because we say this is unreasonable in a House v The King sense, we submit that the issue of whether proportionality is relevant to that form of unreasonableness, which is an uncertain question, is also live here.
Your Honours, we also submit that the interests of justice here, the practical difficulties that I have referred to and the conflicts that I have referred to in the authorities also suggest that leave should be granted. Your Honours, I have a little more time, having raced through the matter, and I have dealt with the main points but can I recapitulate a little. Looking at each of these factors, we have conflict with these various authorities in the New South Wales Court of Appeal and in Victoria; we have a number of important issues of law that arise in relation to those conflicts – there are at least four of them; and I have identified another four important questions of law.
There is also, we submit, a case for revisiting these issues and determining these conflicts in accordance with the interests of justice generally and also in relation to this particular case. If I can go back to this issue of nailing the lie, we submit it is not much more than jury address stuff here, but it is linked with the same issue of damages because we are talking about vindication of reputation. That is only relevant in defamation to the issue of damages if there is a slightly different point, and your Honours heard me earlier on the question of whether that is good in law – we submit it clearly is not.
On a slightly different but perhaps related point about suing a chosen defendant, I would make a couple of points. There are a couple of statements, one by Justice Kirby in dissent in Cojuangco [No. 2] and another one by Justice Mahoney that talk about that. But if that is an issue which is going to be raised under this rubric, we submit that is another issue which would warrant special leave – that is, whether the approach in dissent of Justice Kirby is correct on that point, that is the idea that one ought be able to sue one’s chosen defendant. The other problem is that this is not a good vehicle for Ms Liu to run that point for the simple reason that she did not give evidence that she only wanted to sue the source. She has already commenced proceedings against Fairfax.
In my remaining time can I go back into the lion’s den and try to confront the issue which was troubling your Honour Justice Keane. It is fair of my client, I submit, to have adopted the approach that it has given the state of the authorities. It was, as has been pointed out, a party to that original Cojuangco decision and its stance was validated and it has also been followed in the Victorian Court of Appeal.
I know of no decision – no decision has been pointed to – where such an undertaking has not been allowed to be given later on. So if the Court is going to take the step saying, “No, you must make the undertaking at the earliest available stage,” then that is a change of law. My clients have a legitimate expectation that that law would be maintained.
Again I come back to the very real practical problems that arise if a newspaper is, in effect, forced to drop all its qualified privilege defences at the outset if there is a preliminary discovery application. That, I submit, is
most unfair. That is an issue which, I submit, we ought to argue out on an appeal not on a special leave application. If the Court pleases.
FRENCH CJ: Thank you, Mr Reynolds. Yes, Mr McClintock.
MR McCLINTOCK: Your Honours, could I deal with one matter which arose in the course of argument just then? Justice McCallum specifically asked my learned friend’s predecessor at the first hearing of this matter whether they pressed the defence of qualified privilege under the Defamation Act and there was a clear and unequivocal answer given then in 2010 or 2011 that they did.
That remained the position until after this Court had refused special leave and as your Honour Justice Keane says, that cannot stand, in my submission, with modern case management principles that have existed since the Court decided Aon and overruled JL Holdings. That refusal is in fact recorded by her Honour in her Honour’s first judgment, which has not been reproduced in the appeal books. It is [2012] NSWSC 12 and the reference is paragraph 132.
I might say, your Honours, that, for what this is worth, it came as a complete surprise in those circumstances when we found ourselves back before Justice McCallum in December 2013 after this Court refused special leave to be confronted with that undertaking which had been knowingly disclaimed previously. Could I move from that, your Honours, to make some other points which all go to the question of whether this is or is not a suitable vehicle. Firstly, it is a challenge to an exercise of discretion in relation to a matter of practice and procedure – that is, whether a stay should be granted.
The stay application, which came on before Justice McCallum in December 2013, came on after this Court had refused special leave and was based solely on an argument that the circumstances no longer warranted the order for preliminary discovery because of the proffered undertaking in relation to the defence of statutory qualified privilege.
The applicant, The Age, had previously challenged Justice McCallum’s original decision in the Court of Appeal on substantive grounds, including the constitutional ground. The Court of Appeal had rejected that challenge on substantive grounds. The applicant then further challenged that in this Court, again on substantive grounds, including the very same constitutional ground that my learned friend now wishes to raise here.
KEANE J: I think it is a little different. I think there they were challenging the rule on the basis of the implied freedom. Now they are saying that the practice has expanded because of the ‑ ‑ ‑
MR McCLINTOCK: It may be slightly different, your Honour, but there is a very considerable overlap. I well remember Justice Hayne saying to my learned friend’s predecessor, “You are seeking, Mr Blackburn, to constitutionalise the newspaper rule.” My learned friend said something very similar, but the real point is this. These arguments were open to be put at that time when this matter came on for special leave in 2013 and they could have been put to the Court of Appeal and they were not put, and they were not put to this Court. My client was entitled to think, once the special leave application was over, that attempts to agitate the correctness on substantive grounds of the decision before Justice McCallum, were over.
The Court of Appeal had affirmed the order and this Court had refused special leave, but significantly, as I said, none of the matters that are now set out in paragraphs 51 to 58 of my learned friend’s submissions – application book 172 to 174 – were raised in the original proceedings and they all could have been raised then.
It was obviously open to raise the questions about the approach of the Supreme Court of Canada, a decision where I might say their Honours did in fact order disclosure of the sources, they could have raised all of those matters before Justice McCallum, the Court of Appeal and this Court but they did not do so.
The first time those matters have come up is in this special leave application. They could have raised them below, but they did not raise them below. The only issues that were before the Court, Justice McCallum and the Court of Appeal, were what I will call compendiously the abuse of process issue – that is, whether the applicant complied with the principle stated in Aon, whether they complied with the Civil Procedure Act, section 56 and the following sections, and whether in those circumstances they should be permitted to disclaim the defence of qualified privilege. Then the issue was, if so, did my client have an effective remedy?
There was no issue in the Court of Appeal whether the 2013 decision was correct, nor could there have been. Might I also say that there was no issue taken below as to the differences between the various courts that my learned friend now relies upon. The position, your Honours, was this. It is now said that there is a distinction between no less effective remedy and effective remedy. That was a submission never put to the Court of Appeal nor to Justice McCallum. The authorities while cited, such as Guide Dog Owners, were never relied upon for that purpose and one has to say, and in addition may I say that the Court of Appeal decision is an orthodox application of the decision of Cojuangco in this Court.
The argument seems to be, your Honours, that the Court of Appeal should have applied a test of no less effective remedy which the applicant asserts that Justice McCallum applied and that the Court of Appeal erred in applying a different effective remedy test. In my submission, it is impossible to see the distinction and one also has to say that bearing in mind that this is a UCPR 5.2 confers a general discretion, it is difficult to see how this point goes very far. But there are these answers to the proposition as put. First, Justice McCallum did not apply a no less effective remedy test. This can be seen from page 17 of the application book where her Honour, in obedience to Cojuangco, and one can see from the heading on the top of page 17 of the application book:
Is there now an effective remedy?
That was the test her Honour was applying, and it can be seen from looking at the text of her Honour’s judgment. For example, in 45:
The defendants’ submissions addressed at length the content of the notion of “an effective remedy” –
That was the test that her Honour was applying and once again there was no submission put there that there was some distinction. Secondly, your Honour, on that point, it is really a distinction without a difference, in my submission. Thirdly, as I have said to your Honours, the applicant put no argument to the Court of Appeal in the decision from which special leave is now sought that there was a distinction between the two concepts. There was specifically the proposition that is put at paragraph 35 of the applicant’s submissions on application book 171 was never put. That is the proposition – that is this proposition, paragraph 35:
the failure to apply the “no less effective” [remedy] test –
There was no submission put to that effect, and nor was it suggested that the authorities required some different result. I should also point out, just going back to Justice McCallum, that at paragraph 47, which appears on page 44 of the judgment, her Honour indicated that she took them as – I am sorry, your Honours ‑ ‑ ‑
KEANE J: Page 18.
MR McCLINTOCK: Page 18, yes, page 18, treated them as synonymous as, in fact, they are. Your Honours, the effective remedy test is the correct test. It was applied by Justice Beazley at paragraph 9 and Justice McColl at paragraph 220. It is supported by both the authorities relied upon by my learned friend, Cojuangco and the Guide Dog Owners Case. In my submission, the Court of Appeal was correct in the approach it adopted. May I go further and say that the Court of Appeal was correct in its actual factual determination that there was no factual – there was no effective remedy. This is not, and defamation cases rarely are, merely a matter of dollars and cents.
My client was the victim of an extremely serious or extremely serious wrongful conduct. She was accused on the front page of The Age, supported by the documents in question which she has maintained and given evidence on oath and then cross‑examined, were forged. Your Honours will be aware that in the first judgment her Honour Justice McCallum found there was real substance, I am not quoting, but real substance to that allegation, as there was.
What occurred was, of course, there was an attempt by the sources, having forged the documents one presumes, to sell them to The Age. The content of the documents – the ultimate result was that my client was accused on the front page of The Age of paying a bribe to a federal politician. The allegation on her case is false and it is critical to her that she have a chance to demonstrate that falsity.
It is not merely a matter of her achieving more money, although that is a basis upon which the judgment below can be readily supported. It is, in her case, nothing less than an affirmative finding that those documents were forged would be good enough for her. This allegation has caused her both in this country and in China, extraordinary damage. It is inadequate for the newspaper to simply say, well, you have got a claim against us.
I might also say that they do not disclaim a defence of truth, nor do they say that they will not assert in the course of the hearing, the trial, that the documents in question are genuine. They do not do that. I could understand an argument, even though we would not accept it, that if they disclaimed truth, they might have a leg to stand on but they do not do that.
It is quite possible in the circumstances of this case, and Justice McColl relying upon Justice Hunt has indicated this, that the newspaper could tender these documents that it received as PDF attachments to emails from the sources as business records. There my client will be confronted, presumably before a jury, in a case brought against
The Age only on the hypothesis in question, with an argument from The Age that the documents are genuine. There they are members of the jury, they bear her signature. She is left to her bare denial. For the reasons that the Court of Appeal gave, your Honours, that is not, in my submission, a satisfactory situation. It is crucial to her to demonstrate that the documents were forged and that can only be done, in my submission, if the sources are actually identified.
To turn then to the specific reasons given by the Court of Appeal, as to aggravated damages, that is in no sense an insignificant matter. The reason why – or one of the reasons why is that as a result of section 35(2) of the Defamation Act if there is aggravation, the statutory cap on damages does not apply – that is, the statutory cap at the moment is $381,000. One could hardly imagine a better case for aggravated damages. Indeed, in the old days it would have been a classic case for exemplary damages against the sources that the documents in question were forged by them and they knew it. As I said, there could hardly be a better case for aggravated damages.
There is no such case against The Age as things now stand. There is only – that case can only be maintained against the sources. Further, and this is in some ways repetitive of what I have said before – and this is the point Justice McColl relied upon, it is an essential element of vindication that my client be permitted to litigate fully the issue of the forgery – that is, the forgery of the documents that were reproduced in the articles.
Your Honours, there will, of course, also be no doubt arising by way of notice of contention the point – the abuse of process point, as I referred to it earlier. In my submission, your Honour, this is not an appropriate vehicle for special leave and there is no real doubt in the Court of Appeal’s decision, but I add one final thing. This article is a classic example of the concept of fake news. It was found on a lie on forged documents. That phrase “fake news” is to receive some currency as a result of the recent American Presidential election. One would think, apart from anything else, and this was the point that I made to the Court of Appeal, that there is a very high public interest in exposing such fake news and that can be only done by exposing who the sources were. Those are my submissions.
FRENCH CJ: Yes, thank you. Yes, Mr Reynolds.
MR REYNOLDS: Your Honours, can I deal with each of those points one at a time? The first point my friend started with is this issue of qualified privilege and Aon and an exercise of discretion. That was dealt with by the primary judge at paragraphs 24 to 26, where she exercised her discretion and there was no error found in this – I am sorry, pages 24 to 26 of the application book. The Court of Appeal found no error in that. She weighed it all up very carefully.
Next, it is suggested as a matter of discretion, practice and procedure a stay. There are obvious answers to that. It raises clear and obvious issues of legal principle. The same application was made in Cojuangco (No 2) and it raised all sorts of important legal issues, as does the decision of the Court of Appeal in this case raise all sorts of important issues as would any appeal to this Court.
Next, it is asserted that this is the same constitutional point as before. With respect, that is manifest nonsense. This is clearly different. We are not talking here about the validity of the rule. We are talking here about the exercise of discretion and the newspaper rule conforming to the implied freedom. Next, it is asserted that the same arguments would have been open before in the High Court. All the arguments I am putting are going to this question of discretion. Discretion was not argued in this Court before, the issue of validity was. In any event, in the light of this Court’s decision in Cojuangco (No 1) there would have been no point in agitating the issue of discretion at that point.
Next, my learned friend says that we should have raised the approach taken in Canada below. With respect, he cannot be serious. These courts below are bound by the decision of this Court in Cojuangco, it says what the rules are. Only this Court could do what the Canadian courts did. It would involve overruling Cojuangco.
Next, he says this issue of no less effective remedy was not put to the Court of Appeal. That was what the argument centred on – this is paragraphs 47 and 50 of Justice McCallum. Justice McCallum applied that very test and obviously applying that had to look at whether there was co‑extensivity of remedy. That was the test she applied. My learned friend’s next point is that that is not the test she applied. We respectively submit that is manifest nonsense.
Then, he next says there is no difference between the test adopted by the Court of Appeal and the no less effective remedy test. With respect, again, that is not open, that submission. Application of the no less effective remedy test involves looking at the defences available on the one hand or a newspaper on the other hand of the source. If that test is applied and there are less defences available to the newspaper, then disclosure will not be ordered. On the other hand, when you apply this opaque test applied by the Court of Appeal, you do get disclosure. That is the difference, a different result.
Next, my learned friend talks about falsity only being established if the sources are identified. With respect, again, that is manifestly unsustainable. There is no reason why that cannot be proved by this
plaintiff by asserting that particular documents are false and by calling for these documents and calling evidence that they constitute forgeries. Next, my learned friend says that the issue of aggravated damages is significant. Well, it might be. But our point is that the basis upon which the Court of Appeal ordered disclosure was of preliminary discovery of the sources which should be to sue them and, instead, that power was used to bolster the case on damages against an extant defendant. That is contrary to authority and clearly an improper purpose.
As to abuse of process, that is going to be raised on a notice of contention. That raises a significant issue but we point out and it is implicit in my learned friend’s submissions that that was rejected by the Court of Appeal. With all due respect to him, and this has been the same in the written submissions, my learned friend’s submissions manifestly mislead your Honours about the issues in this case. If the Court pleases, those are my submissions.
FRENCH CJ: Yes, thank you.
In the view of the Court, this application arises out of a protracted interlocutory dispute which involves the exercise of discretion and is not a suitable vehicle for the grant of special leave. Special leave will be refused with costs.
The Court will now adjourn to reconstitute.
AT 12.11 PM THE MATTER WAS CONCLUDED
0