Appo v Courier Mail

[2001] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B15 of 2001

B e t w e e n -

ALLAN KEITH APPO

Applicant

and

THE COURIER MAIL, THE DAILY TELEGRAPH, THE ADELAIDE ADVERTISER and THE NORTHERN TERRITORY NEWS

Respondents

Application to enter a conditional appearance pursuant to Order 11 rule 4

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 17 MAY, 2001, AT 10.55 AM

Copyright in the High Court of Australia

MS D.C. SPENCE:   I appear for Queensland Newspapers Pty Limited and the Advertiser Newspapers Limited and Nationwide News Pty Limited.  (instructed by Thynne and Macartney).  But not for the Daily Telegraph, as it were.

HIS HONOUR:   The Daily Telegraph is a News Corporation publication, is it not?

MS SPENCE:   Yes.  Well, I am not appearing for - - -

HIS HONOUR:   All right, thank you.

MR S.D. JONES:   Just to clarify my standing, Mr Appo is the plaintiff.  I have no legal training ‑ ‑ ‑

HIS HONOUR:   But you want to speak for him; is that right?

MR JONES:   Yes, your Honour.

HIS HONOUR:   Do you have any problem with that, Ms Spence?

MS SPENCE:   No, your Honour.

HIS HONOUR:   All right.  So I will give you leave to speak for Mr Appo, Mr Jones.

MR JONES:   Thank you, your Honour.

HIS HONOUR:   Now, Ms Spence, this is your application for leave to enter a conditional appearance; is that so?

MS SPENCE:   That is so.

HIS HONOUR:   And you want to issue a conditional appearance because the named defendants do not, in fact, exist as legal personalities; is that right?

MS SPENCE:   Yes.  I have tried to explain that to Mr Jones, but that is so.

HIS HONOUR:   What is the rule in relation to conditional appearances?

MS SPENCE:   It is Order 11 rule 4.

HIS HONOUR:   Yes, thank you, Ms Spence.  Mr Jones, let me try to explain something to you.  You want to make an application for an adjournment, is that right ‑ ‑ ‑

MR JONES:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ because Mr Appo has not had time to prepare himself?  Now, there are really two matters that you should have to take into account, or Mr Appo should consider.  The first is, as Ms Spence has said, she does not need to have given you notice of this application.  She can make an application herself on behalf of her clients.

MR JONES:   We realise that, your Honour.

HIS HONOUR:   But the application is only to get on the record, in order to enable Ms Spence’s clients to argue at a later time that Mr Appo’s proceedings are misconceived.

MR JONES:   We realise that, your Honour.

HIS HONOUR:   You realise that.

MR JONES:   The thing that concerns us is that, as the writs were served on the four defendants no later – the last one was on 6 April.

HIS HONOUR:   Yes.

MR JONES:   Now, according to the writ, they had 21 days to put in an appearance.  They did not put in an appearance within that time ‑ ‑ ‑

HIS HONOUR:   Let me explain to you why they did not, Mr Jones.  They did not put in an appearance because at law they do not exist, or this is what they say, and I rather think they may turn out to be right about this.  I am just trying to assist you about this.  I am not saying The Courier Mail does not exist or the other newspapers that you have named, or Mr Appo has named, do not exist, but they are not what we call legal personalties.  Now, the law recognises as legal personalities what we call natural persons, and we are all natural persons, you, Ms Spence, myself, so that if you name a natural person, you can sue a natural person.

Then the law recognises legal personalities such as companies or corporations.  Now, The Courier Mail and The Advertiser and the other paper are not legal personalities.  They are no doubt owned and published by legal personalities, companies, but you cannot sue the newspaper, or this is the argument, and I have to tell you I think it is almost certainly likely to be correct.  You cannot sue a newspaper.  You have to sue the owner of the newspaper.

MR JONES:   Well, that most probably is as you say, your Honour, is correct.  The point is that we are saying is that the time limit of the 21 days to put in an appearance or, as order ‑ ‑ ‑

HIS HONOUR:   Yes, but you do not get to the stage of having to put in an appearance unless you exist as a legal personality.  Now, The Courier Mail could not put in an appearance because it does not exist as a legal personality.

MR JONES:   The thing that we are objecting to, your Honour, and why we want the adjournment is in the summons, which we only just received a little while ago, the main arguments to – as is fairly well outlined and about what you just said about the defendants’ non‑entities, that may be so, but we feel that that question should be argued at a later time.

HIS HONOUR:   And it will be.  It will be.

MR JONES:   Yes, sure, yes.

HIS HONOUR:   If I uphold Ms Spence’s application today, all that that does is get her clients on the record.  It does not mean that I decide today – that does not mean that I will decide today that Mr Appo’s case cannot proceed.

MR JONES:   Yes, your Honour.

HIS HONOUR:   That will be decided at another time.  Ms Spence is not going to argue that today.  All she wants to argue today is that her clients be given an opportunity to get on the record so that at some later time they can argue that.

MR JONES:   We realise that, your Honour, because we have this rather urgent discussion with our barrister in Melbourne on this point.  She was to come up today because we were only notified only a couple of days ago this summons had been lodged and after studying Order 11 rule 4(c):

to the service of the writ or other process or of a notice of the writ or other process, he may, before the time limited for appearance has expired –

and that is what we are getting at, they did not apply for this conditional appearance before the 21 days limit.  They applied after 21 days, so we feel that their application for a conditional appearance is out of time also, but that does not under rule – as our solicitors in Melbourne say, that does not stop the defendants from putting in their defence when we apply for a hearing for a judgment because Mr Appo, because of the seriousness of the

nature, he has now flown his daughter over, arranged to fly his daughter over from the USA and it is so serious that this defamation case was put on the web site right across the world.

His daughter was in the armed forces and then she has been now subject to an inquiry, extensive inquiry, by ASIO to doubt her truthfulness because she is – on the start, Mr Appo has all the documents.  So we have arranged now, at his expense, to fly her and her family over so that we can get the application in for the hearing of judgment on 9 July.  Now, we would have given the defence ample opportunity to prepare their defence and, of course, under Order 11, 21, even if there is no appearances by the defendants, that gives them the opportunity – you still put in the defence at the time of the judgment.

HIS HONOUR:   Let me explain something to you, Mr Jones.  At the moment there is no defendant.

MR JONES:   We realise that, your Honour.

HIS HONOUR:   Because the defendant does not exist, which raises – I will just raise something with Ms Spence, if I may.  The rule says, “Where a defendant desires to object”.

MS SPENCE:   Yes.  Well, because it was a plaintiff in person my clients took the view that they should not simply ignore the matter but ‑ ‑ ‑

HIS HONOUR:   As you might have been entitled to do.

MS SPENCE:   As we would be entitled to, but we felt that because the plaintiff was in person, that given the difficulties that we have had this morning trying to convince the defendants that we were trying to be helpful rather than anything – the plaintiffs that we were trying to be helpful rather than anything else, perhaps we should just withdraw our application and ‑ ‑ ‑

HIS HONOUR:   The other point is – I mean, I wonder whether perhaps the appropriate application might not be an application to become a party.  But why should you do that?  That may well be your attitude.

MS SPENCE:   No, that is – well, no, we would not bring that application to be a party because the way the written statement of claim are framed, not only is there a defect in the title of the parties sought to be sued, if it could be put as likely as that, but there are also difficulties in the way that the pleadings framed otherwise in attracting the original jurisdiction, so ‑ ‑ ‑

HIS HONOUR:   I noticed that myself.  Thank you, Ms Spence.  I should have mentioned at the outset, Mr Jones, I do not think it is a matter that should disqualify my, but my son is a journalist employed by The Courier Mail.  I should tell both parties that.  No doubt Ms Spence knows it, but you may or may not be aware of that.  I do not think it should disqualify me but ‑ ‑ ‑

MR JONES:   Your Honour, the only thing that we were worried about was – we did discuss this at great length with our barrister in Melbourne only the day before yesterday.  The thing that we were worried about that, if we just did not turn up for this ex parte hearing – and we realise there are provisions for an ex parte hearing, providing it is done, the application for it was well within the 21 days ‑ ‑ ‑

HIS HONOUR:   I understand your point.

MR JONES:   That is okay.  So because really eventually when we do apply for a hearing for judgment the defence will certainly have all the reasons why The Courier is not an entity and all those questions and arguments will be actually addressed and argued there, but because we have been working on – when we knew that they had put in an appearance, well, we then started working on our application for the – application for a judgment and this is rather complex and very complicated and we expect that we would be prepared to put in an application by about mid‑July.  So there is plenty of notice for the defence now to – because we will give them plenty of notice on what is all about and ‑ ‑ ‑

HIS HONOUR:   All right, thank you.

MS SPENCE:   Your Honour, perhaps we could shorten this.  We will simply withdraw our application because we are not getting anywhere by it.

HIS HONOUR:   No, no.  Well, yes.  I do not know whether I would have jurisdiction ‑ ‑ ‑

MS SPENCE:   Jurisdiction, yes.  Well, we ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ in view of the form of the order.  I have not a concluded view on it, Ms Spence, but, all right, thank you.  I take it you withdraw?

MS SPENCE:   Yes, thank you.

HIS HONOUR:   Now, that means nothing will happen today, but I am just going to say a couple of things to you, Mr Jones.

MR JONES:   Yes, your Honour.

HIS HONOUR:   I am not deciding anything, but I should tell you that you have a couple of very serious problems in the way in which the proceedings are framed; a couple of very serious problems.  There may be other problems, but two immediately appear.  One is the one we have been discussing today.  The Courier Mail does not exist as a legal personality.  You cannot sue The Courier Mail unless there is something that I do not know about.  There is a very serious problem you might have there, so you might have to put that in order.

Another problem which is apparent is that I think that you are probably in the wrong jurisdiction.  Mr Appo’s purported to bring the case in the High Court under, I assume, what is called the diversity jurisdiction, that is, an action between the residents of different States.  For a start, you do not have a resident.  The Courier Mail is not a resident.  But, secondly, there are quite a lot of cases in this Court that say corporations or companies are not residents.  So you are not in the right jurisdiction in all probability.  I am only mentioning these matters to you for your assistance.

MR JONES:   We appreciate it very much, your Honour, because ‑ ‑ ‑

HIS HONOUR:   And all of these matters are going to have to be put in order and even if you did have a case which was within the diversity jurisdiction of the High Court, the current practice – and I am not saying it is an invariable practice, but it is almost invariable certainly – is for this Court to remit a trial to another court and if it were a defamation action, it is highly likely that – I might hear argument on it, but if it came to me, it is highly likely – not invariably so, but highly likely – that I would remit it to the Supreme Court of Queensland.  But I am not making any decisions.  I am just telling you ‑ ‑ ‑

MR JONES:   Well, your Honour – I am glad, but the fact is ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ some matters which you should perhaps look at.

MR JONES:   In fact, Mr Appo and I really appreciate this guidance in this matter and rest assured we will be conveying these problems to our barrister in Melbourne because it is obvious that there is a few defects that we have to answer, or at risk.

HIS HONOUR:   I think that you may have some problems, Mr Jones.

MR JONES:   Yes.  Well, thank you very much, your Honour.  We really appreciate that.

HIS HONOUR:   All right.  Well, there is nothing further then, is there, Ms Spence?

MS SPENCE:   There is nothing further, your Honour.

HIS HONOUR:   All right.  Thank you.  You are excused.  Well, I simply make an order that ‑ ‑ ‑

MS SPENCE:   The application is dismissed and no order for costs.

HIS HONOUR:   ‑ ‑ ‑ the application is dismissed and no order as to costs.  I think that is ‑ ‑ ‑

MR JONES:   No, we are…..seeking costs, your Honour.  In fact, we appreciate the advice.

HIS HONOUR:   All right.  Well, thank you, Mr Jones.  You are excused.

AT 11.12 AM THE MATTER WAS CONCLUDED