Australian Broadcasting Corporation v O'Neill
[2006] HCATrans 152
[2006] HCATrans 152
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Hobart No H1 of 2006
B e t w e e n -
AUSTRALIAN BROADCASTING CORPORATION
Appellant
and
JAMES RYAN O’NEILL
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT HOBART ON TUESDAY, 21 MARCH 2006, AT 10.17 AM
Copyright in the High Court of Australia
MR R.J. WHITINGTON, QC: May it please the Court, I appear for the appellant with my learned friend, MR A.T.S. DAWSON. (instructed by ABC Legal Services)
MR P.W. TREE, SC: If it please the Court, I appear for the respondent, together with my learned friend, MR J.E. GREEN. (instructed by Hobart Community Legal Service)
GLEESON CJ: Yes, Mr Whitington.
MR WHITINGTON: May it please the Court, might I briefly make one or two observations about the background to this appeal. The respondent commenced proceedings on 15 April 2005 for an injunction to restrain the appellant from televising a documentary film called The Fisherman. At the same time the respondent sought an interlocutory injunction to restrain publication until further order. The Court has that application in the first volume of the appeal books at page 5.
GUMMOW J: Now, in your statement of claim you do seek a final injunction as well, do you not, page 4?
MR WHITINGTON: Yes, that is right. That is the respondent’s statement of claim, your Honour, and they do seek a final injunction. I would ask the Court to bear in mind that this is the amended statement of claim. It was filed in February of this year but the amendment is to paragraph 6. It is not significant. It simply broke the imputations down into further separate imputations, if you like. In substance, it was the same. But the critical point I want to make about the statement of claim is that a statement of claim was not filed until 2 May 2005 and, therefore, there was no statement of claim before his Honour Justice Crawford when he heard the matter on 20 and 21 April. Now, the Court has our defence to the statement of claim in volume 2.
KIRBY J: You did not tender the videotape of the program, I gather, before Justice Crawford?
MR WHITINGTON: No, and that is a significant matter, if your Honour pleases.
KIRBY J: It certainly is.
MR WHITINGTON: It affects a number of aspects of ‑ ‑ ‑
KIRBY J: How did his Honour proceed as to the content of the program without the original?
MR WHITINGTON: There were two affidavits that purported to describe relevant contents of the film and imputations which might arise. Perhaps if the Court would start at volume 1 of the appeal books, page 17, the Court has the affidavit of Mr Barber, who is the Director of Prisons in Tasmania, and was at the relevant time. Could I take the Court to paragraph 11 first of all. Now, he said that he saw the film at the Hobart Film Festival and that Festival took place, I think, on an unidentified date in January 2005. He then went on to say that:
In my opinion the film implied that Mr O’Neill was a serial killer of children and a suspect in the murder of the Beaumont children in South Australia.
That second sentence was rejected by his Honour. His Honour declined to receive that into evidence. The Court has that at appeal book 74 to 75.
KIRBY J: That is to say from the words “In my opinion”?
MR WHITINGTON: That is right, yes, and the Court might see some darkened highlighting that has come out in the copying. That is to indicate that was rejected.
HEYDON J: Not read.
MR WHITINGTON: Not read, yes. Then paragraph 12 he said, “I became concerned about the effect” and so on. That also was not read. His Honour rejected that as irrelevant. The Court has that at page 75, line 10. Could I then come back to the affidavit of Mr O’Neill himself? That is at page 7. First of all, paragraph 9, at page 8, his Honour did not treat as read the words in that sentence starting “and I was informed”. Then, critically, paragraphs 13, 14 and 15 ‑ ‑ ‑
KIRBY J: I gather that Mr O’Neill has not himself seen the film, or had not at the time the matter was before Justice Crawford?
MR WHITINGTON: That is right. His Honour, on the opposition of the other defendants, rejected paragraphs 13, 14 and 15 on the basis that no source for the hearsay information was identified as required by the Rules. The Court will see that at appeal book 77. But the Court might note the terms of paragraph 14, what Mr O’Neill sought to get in, and then if the Court would come to page 59 I think it is, there is a memo of agreed imputations.
GLEESON CJ: Mr Whitington, there were three defendants in the proceedings before the primary judge.
MR WHITINGTON: Yes.
GLEESON CJ: What happened to the second defendant and the third defendant?
MR WHITINGTON: Your Honour, they were commonly represented. I understand they are associated. They were represented before Justice Crawford at first instance. We appealed and joined them as respondents to the appeal and they did not appear – I think that is my recollection – and they have taken no further part in the proceedings.
GLEESON CJ: The matter has never been published by your client, has it?
MR WHITINGTON: There is no evidence before the Court that it has been published by my client.
GLEESON CJ: On page 4 of the appeal book, the claims in the amended statement of claim appear.
MR WHITINGTON: Yes.
GLEESON CJ: On the assumption that the defamatory matter has never been published by your client as distinct from the other defendants, are the claims in paragraphs (a) and (b) in the alternative? If one is successful in getting an injunction to restrain the publication of defamatory matter that has never been published by the defendant, how do questions of damages arise?
MR WHITINGTON: They cannot, your Honour.
KIRBY J: Except that the defendant made the film and the film was published in the film festival.
MR WHITINGTON: The second defendant made the film with the assistance of funding from the Film Finance Corporation. My client, the ABC, did not have an involvement in the making or financing of the film.
GLEESON CJ: That is why I asked you the question whether your client has ever published the defamatory matter. If the answer is that your client has never published the defamatory matter and if an injunction is obtained to restrain your client from ever publishing the matter, how does any question of damages arise?
MR WHITINGTON: It does not, your Honour. Now, can I come back to your Honour’s question as to the matter of fact. There was no evidence put before the Court at any stage that my client has ever published the film and that is the way in which the matter proceeded.
KIRBY J: No evidence that your client was in any way involved in sponsoring the film or that its support or promise or indication that it might broadcast the film did not affect the Film Corporation or the other defendants?
MR WHITINGTON: Well, the Court has the licence agreement in the book at page 27 and I perhaps will not stay ‑ ‑ ‑
KIRBY J: It is not uncommon for private venturers to make films on an understanding that they will be broadcast for a fee which will be substantial. I am not saying that happened here, but what does the licence agreement say?
MR WHITINGTON: Well, the licence agreement provides that copyright belongs to the producer, which is the second defendant, and to the Film Finance Corporation in the indicated proportions.
KIRBY J: Was this made after the film was complete?
MR WHITINGTON: No, this was made before the film was complete.
KIRBY J: Quite. This is not an unusual arrangement. The ABC is a sponsor of a film and has an interest in its production.
MR WHITINGTON: It certainly anticipated its production and it anticipated that, pursuant to its licence right, it would broadcast the film on television.
GLEESON CJ: There is no doubt, is there, that your client intends to publish the matter if free to do so?
MR WHITINGTON: No doubt at all.
GLEESON CJ: That is what the whole action has assumed.
MR WHITINGTON: Precisely.
GLEESON CJ: But my question is, if the plaintiff is successful in obtaining a permanent injunction preventing your client from ever publishing the matter, how does any question of damages arise?
MR WHITINGTON: It does not, your Honour.
KIRBY J: Well, you say that, but if you are a sponsor of the film in anticipation that it will be broadcast in the ordinary way, then at least arguably you are responsible for the consequences of it.
MR WHITINGTON: Your Honour, the essence of the tort of ‑ ‑ ‑
KIRBY J: I am not saying that would ultimately be determined, but I am just not inclined to accept that you are off the hook of damages immediately.
MR WHITINGTON: Well, I had not assumed that I would have to debate it. I must say, I have taken a fairly simplistic view that the essence of defamation is publication. The allegation of publication against us is that we have published at the film festival, which we deny. There are no particulars of that and it is certainly not suggested in the statement of claim that we have published by in some way taking a licence over the film which will permit us in due course to publish on free to air television.
KIRBY J: That would surely be a matter of fact in the trial of a defamation action against you.
MR WHITINGTON: Well, it goes to the question of what amounts to publication in the law of defamation ‑ ‑ ‑
KIRBY J: Anyway, it is not what we are meant to decide in this case, which is injunctive power.
MR WHITINGTON: No, but subject to that issue, then there would be no damages. Now, can I come back to your Honour the Chief Justice’s inquiry because I want to answer it as definitely as I can. I have made the same inquiries your Honour has in the course of the last day. As I say, there has never been any evidence that the ABC published the film at all but, as I am instructed, it appears it may have published the film some time in April to certain newspapers with a view to indicating what was to be on television. Now, I do not have firm instructions about that. If the Court would wish me, I will obtain firm instructions and put a memorandum forward so that the Court can have the position fully laid out, but from our point of view the matter turns on what was before the court at all times below ‑ ‑ ‑
GLEESON CJ: So far as the evidence showed before the primary judge and before the Full Court, there was no evidence of publication by client.
MR WHITINGTON: Yes, that is quite so, subject to Justice Kirby’s point, and I must say I had always treated the licence agreement as not disclosing any basis for an assertion of publication by our client at the film festival.
GLEESON CJ: I presume the licence agreement was tendered as evidence of threat.
MR WHITINGTON: We tendered it, your Honour. We tendered it to show the extent of our involvement in the film and really to demonstrate that we did intend to publish.
GLEESON CJ: There is no doubt, as I understand it, that there is a threat to publish.
MR WHITINGTON: That is right, and at the time of the hearing on 20 April it had been announced that we had intended to publish, first of all, on 24 April and then later again on 28 April.
GLEESON CJ: The existence of a threat is usually the most elementary foundation requirement of an injunction.
MR WHITINGTON: Yes, and we have always apprehended this as a quia timet injunction from our point of view. It may be seen differently from the plaintiff since the plaintiff asserts that we have published at the film festival, but that is denied. So from our point of view it is a case of an application for an injunction to restrain an apprehended threat, or an apprehended publication, not a repetition or continuance of publication.
KIRBY J: Now, a factor that weighed with Justice Slicer was that the plaintiff had rights to damages. Is what you are saying that so far as your client is concerned that was an irrelevant consideration?
MR WHITINGTON: No.
KIRBY J: What, you say he does have rights to damages against you as an alternative and that that is an adequate remedy?
MR WHITINGTON: Yes, we do, but we say that in the event that there is no interlocutory injunction and the matter can be published before trial and at that point then there would have been a publication, arguably there would have been damages.
KIRBY J: It seemed a rather weak proposition in this case given, as Justice Blow said, that if ever there was a case where damages would not really be an adequate repair, this was it. I mean, what is a prisoner in prison on a life sentence going to have the resource or the inclination to sue people for damages? It seems very unlikely.
MR WHITINGTON: Well, he has commenced the proceeding on that footing and one must treat him as intending it seriously and intending to prosecute it to conclusion.
KIRBY J: That is alternative to his claim for the injunction.
MR WHITINGTON: It is, but to answer both propositions from your Honour Justice Kirby and from the Chief Justice, it works this way. If there is an interlocutory injunction that restrains us up to trial and then a permit injunction goes, there will be no damage. If, on the other hand, there is no permit injunction – perhaps I have been too quick to answer your Honour the Chief Justice’s question. I suppose it is possible that the interlocutory injunction might restrain publication up to trial.
KIRBY J: I wondered if you would see that point.
MR WHITINGTON: Yes. Well, I am a little slower than others. So the interlocutory injunction might restrain the matter up to trial, then the court might find that the article is defamatory and indefensible but nonetheless in its discretion to decide that a permanent injunction should not go and then endeavour to assess damages for some kind of future publication, although how it might do that I do not know.
GLEESON CJ: I was wondering what are the principles according to which, in an action for defamation, a permanent injunction is granted rather than an award of damages, because if by hypothesis the defendant has never published the defamatory matter, no question of damages arises.
MR WHITINGTON: No question of an assessment of damages to that point. If then the court in its discretion – and the authorities do say that the grant of a permanent injunction is discretionary, as I understand it, on broad – I will say general principles for the time being, akin to equitable principles. If the court were to say that the matter is defamatory but nonetheless it will not be restrained for various reasons, it might leave open the spectre of (a) publication and (b) damage, which would then raise the question whether there should be an assessment and, if so, when and how.
GLEESON CJ: I realise we are concerned with an interlocutory injunction, but where can we most conveniently find the principles or a statement of the principles relating to the grant of a permanent injunction instead of damages?
MR WHITINGTON: Will your Honour let me take that on board?
GLEESON CJ: Certainly.
MR WHITINGTON: Immediately, Gatley, the 10th edition, springs to mind.
GLEESON CJ: You can give us a note at the conclusion of the argument if you prefer.
MR WHITINGTON: Yes. I think it is dealt with in Gatley and also in Gillooly. The Australian textbook on the law of damages has a treatment on the point but I will give the Court a note afterwards, if the Court pleases.
GUMMOW J: You were going to take us to the defence. We will need to know ‑ ‑ ‑
MR WHITINGTON: Yes, before I do that could I take the Court to page 59 in volume 1. The Court there has a note in my learned friend Mr Green’s hand of the imputations. They are numbered out of sequence, 1 3 and 2.
KIRBY J: This is Mr Tree’s writing, is it?
MR WHITINGTON: Mr Green’s, I think. Mr Green appeared at the hearing at first instance.
KIRBY J: Was it ever typed up? It is hard to read.
MR WHITINGTON: Can I read it out for the transcript:
1.That James Ryan O’Neill is a suspect in the disappearance of the Beaumont children.
At the bottom:
2.That James Ryan O’Neill is a suspect in the murder of the Beaumont children.
3. That James Ryan O’Neill was –
it says “was” but I think one can read that fairly as “is” –
a multiple killer of children.
Now, they are the three imputations that the matter went forward on. My client conceded that they were capable of arising for the purpose of the argument but, as your Honour Justice Kirby has pointed out, the film did not ever go into evidence.
Now, can I just interpolate a digressionary point here. The judge at first instance when he made an order made an order that went beyond these imputations. He made an order restraining the publication of imputations going to actual conduct or actual guilt in respect of points 1 and 3. As I understand it, it is conceded by the other side that the order could never have been made in those terms and went beyond the agreed imputations and that, therefore, if the Court is with us ‑ ‑ ‑
GUMMOW J: Where do we see the order?
MR WHITINGTON: Page 214 in volume 2. The Court will see the inclusion of the words “was responsible for” in addition to “is suspected of being”.
KIRBY J: Most of these cases involve the primary judge seeing the matter complained of, or at the very least seeing a transcript of the matter complained of. Was it ever explained why Justice Crawford did not have the matter complained of?
MR WHITINGTON: The matter came on with some urgency and it was dealt with on the basis of urgency. I have taken the Court to the affidavits that the plaintiff relied on below.
KIRBY J: That is the plaintiff but ‑ ‑ ‑
MR WHITINGTON: Yes. Well, for our part, when the plaintiff suggested that the matter would have to be adjourned while he put on some evidence to prove content and imputation, we did not wish to see the time wasted and so we said we were prepared to see whether we could agree imputations that were capable of arising. There was a discussion about that and that led to page 59, but we were never called upon to produce the film or a transcript and were not at any time ‑ ‑ ‑
KIRBY J: I see. In view of page 59, you would presumably agree that the imputations which you concede arise out of the matter complained of are of the gravest and most damaging kind?
MR WHITINGTON: Yes.
KIRBY J: It is hard to imagine anything that would be graver or more serious to say of another human being and citizen.
MR WHITINGTON: They are certainly very grave. Can I say we conceded they were capable of arising; we did not actually go the next step and say they arose in fact, but that is not relevant for present purposes. We accept they are of extreme gravity. Justice Gummow has asked me to locate our defence. We also say in our defence ‑ ‑ ‑
GUMMOW J: Page 273. Firstly, you denied that you had published at the film festival. That is paragraph 5.
MR WHITINGTON: Could I ask your Honour perhaps to go to 280 because I am not quite sure how 273 got in. That is the original defence. At 280 there is the amended defence to the amended statement of claim and I would want to take the Court to that. I am sorry, your Honour, I think it follows the same scheme. I interrupted your Honour.
GUMMOW J: Yes, it does, I think.
KIRBY J: So we are starting with some of the gravest allegations you can make against another person.
MR WHITINGTON: Yes.
KIRBY J: And we are starting in a society where normally allegations of that kind are placed in the hands of public authorities who consider them and exercise their powers and discretions and normally decide whether or not to place them before a court and a jury.
MR WHITINGTON: Yes, they are allegations of criminal conduct.
KIRBY J: And, indeed, there is the old law of misprision of felony which requires you, these being felonies, to bring them to the notice of public authorities if you have evidence of such serious crimes.
MR WHITINGTON: Yes, and there is evidence before the Court that they have been brought ‑ ‑ ‑
KIRBY J: And that in this country we normally try people in courts, not on television.
MR WHITINGTON: Yes, and we accept that the allegation of trial by media has been made against us by Justice Crawford, although ‑ ‑ ‑
KIRBY J: They are the starting points really, are they not?
MR WHITINGTON: They are some of the starting points.
KIRBY J: They seem to be conceded by you.
MR WHITINGTON: Yes, but there are other relevant starting points. It is a matter of context of course. That is not the complete picture, we would say. There are other elements to the picture that need to be brought out. One is that we say we can justify. It is said an imputation arises that the respondent is a multiple killer. Our learned friends, I think, want to be semantic about it and say “multiple” means more than two, where we have said “multiple” simply means more than one. We put in evidence two confessions by the respondent to two killings. We understand that he will dispute those confessions, but we had a basis in justification for that. There is also a reference in the film that we propose to justify, and that this comes out of paragraph 3(h), that the plaintiff was involved in another murder.
KIRBY J: Which page are we on?
MR WHITINGTON: Page 282.
HEYDON J: What you have to justify is the imputations on paragraph 6, page 3. Where does (h) on 282 fit into that, “multiple killer of children”?
MR WHITINGTON: I am sorry, your Honour, I did not ‑ ‑ ‑
HEYDON J: Do you say that (h) on page 282 comes in because if “multiple” means more than two, you have Wilson, Smith ‑ ‑ ‑
MR WHITINGTON: We say “multiple” means more than one.
HEYDON J: All right, but you are trying to have three here and the third one is the boy near Johanna River.
MR WHITINGTON: Yes, and we claim that we can adduce relevant evidence that goes to that allegation. The imputations as phrased by the plaintiff are of course in the passive voice and they are very open ended. The plaintiff – and he is stuck with those for these purposes and was on the applications below – simply says that he is a suspect in two particular ways. He has not said suspected by whom. He has not alleged in a way which is common that he has conducted himself in any particular way so as to give rise to suspicion. He has gone forward with the bare and wide allegation in the passive voice that he is a suspect. I accept what your Honour Justice Kirby puts to me that allegations of criminal conduct will generally be referred to enforcement authorities.
KIRBY J: Could I just ask you, because neither you nor I come originally from Code States, at some stage could you have a look in the Criminal Code (Tas) as to whether there is a crime of misprision of felony and whether the old common law of misprision of felony still applies in this State?
MR WHITINGTON: Yes, certainly, but can I say incidentally in response to that, your Honour, that there is evidence that the Police Commissioner of Tasmania is seized of the allegations. Indeed, there is evidence that he was quite vociferous in his response in the public press about the allegations.
KIRBY J: Is that before us? Is that on the record or not?
MR WHITINGTON: Yes. It was before you for sufficient purposes ‑ ‑ ‑
GLEESON CJ: It would be the Police Commissioner of South Australia who would be slightly more relevant, would it not?
MR WHITINGTON: But there is also evidence that the relevant person within the police force of South Australia is on notice as well. I think his name was a Detective Woite and there are newspaper reports attributing to him the statement that he is aware of the allegations that, I think, Mr O’Neill has been interviewed and for his part he does not consider Mr O’Neill a suspect in the Beaumont children murders.
GLEESON CJ: This evidence that is the subject of the film has been assembled by the third defendant, has it not?
MR WHITINGTON: Meaning the newspaper articles?
GLEESON CJ: Is the third defendant the source of the matter that is to be published in this film?
MR WHITINGTON: I see. I am sorry, I misunderstood. Yes, your Honour.
GLEESON CJ: Is this matter assembled on the assumption that the third defendant knows something that the police do not know?
MR WHITINGTON: I would think I would have to say it is assembled on the assumption that certainly at the time he assembled it the police did not know all that he knew.
GLEESON CJ: It is just that we seem to have a curious situation that might be relevant to the issues we have to look at, that the authorities responsible for prosecuting the respondent for these crimes are aware of the allegations against him and have at least so far decided not to prosecute him.
MR WHITINGTON: Yes, I think your Honour is right. I leave to one side – there are, I think, 12 outstanding charges in Victoria in relation to the abduction and assault of the boys where Mr O’Neill was charged and granted bail and then left the State never to return.
GLEESON CJ: But these imputations are all concerned with homicide.
MR WHITINGTON: They are. They are concerned with homicide and with the Beaumont children. I will try not to speak out of school here because I have actually read the transcript of the film. I think the answer to your Honour’s question though, as fairly as I can give it, is that Mr Davie claims to have uncovered facts which he understands were not previously known to police, but he has had communications with the police, as I apprehend it, over some, if not all, of those facts and, in addition, the film has now been published and the material in the film – when I say published, published at the film festival – the material was given a degree of currency and, amongst other things, there is evidence that the South Australian police were consulted after that publication and commented on the material in the film.
GLEESON CJ: What, if any, evidence was there before the primary judge or the Full Court justifying a conclusion one way or the other as to the present intention of the prosecuting authorities to prosecute the respondent in relation to the matters the subject of these imputations?
MR WHITINGTON: In relation to the second Tasmanian murder, Bruce Colin Wilson, who was murdered in April 1975 – I will have to turn it up, but somewhere there is reference to the fact that – and I think it is in one of the newspaper articles – that when the trial of Mr O’Neill for the first murder of the boy, Ricky Smith, went ahead and he was convicted – in those days he was convicted and sentenced to life and life meant life and still does in his case – the authorities decided not to prosecute the second charge. In relation to the Beaumont children, there is a statement attributed to a South Australian policeman that he has considered the material and does not consider Mr O’Neill a suspect.
KIRBY J: That includes Mr Davie’s material, does it?
MR WHITINGTON: Yes, that is what I mean. He has considered, as I understand it, the material assembled by Mr Davie in the film and, notwithstanding that material, he does not consider him a suspect. Just to make that good, if I could go to page 202 in the second appeal book. It starts at line 30. There is a reference to Superintendent Peter Woite who is from SAPOL, South Australian Police Force, and he suggests that he does not treat the man as a suspect. Yes, here it is. If the Court goes to 203 in the same article, at line 25 or thereabouts, Mr McCreadie, who was an arresting detective in 1975 and is now the Commissioner of Tasmanian Police, is reported as having:
told the Herald Sun there was ample evidence O’Neill also killed Tasmanian boy Bruce Colin Wilson, 9, in 1975, but authorities had decided to proceed only on the charge of murdering 14‑year‑old Ricky Smith.
“There is no issue he did the second one. There was a full confession and he took us to the body,” he said.
Then the Court has those confessions – I might just indicate that to the Court – at page 172 and following. Now, the statement at 172, I can tell the Court, relates to Ricky Smith. The boy’s murder was the subject of a trial. Then at 175 – can I undertake to the Court to provide a better copy? Part of the top line has been copied off. This is a further interview and confession by Mr O’Neill in relation to Ricky Smith conducted on 2 May 1975. Then if the Court goes to 179, this is an interview conducted the day before, 1 May 1975, in relation to the death of Bruce Wilson, then 9 years old, who died a week before, on 26 April 1975. That is the confession that Commissioner McCreadie was referring to in the passage that I took the Court to in the article at page 203, lines 25 and 27.
KIRBY J: Is that the subject of part of the proposed broadcast, that is to say the second killing which is referred to on these pages 173 to 179?
MR WHITINGTON: Yes.
KIRBY J: So the additional matter is the matter relating to the Beaumont children?
MR WHITINGTON: For the purpose of the imputations, yes, although multiple killings is open ended, so it is not confined to these two killings. There is also material going to a third murder committed in the 1960s and that is the matter the subject of the plea in justification at page 282, Part B, paragraph 3(h).
Now, can I then move to the matter of jurisdiction. On the application for special leave your Honour Justice Gummow raised with my learned friend the matter of jurisdiction and suggested that on any appeal, if there was one, he should address the Court on jurisdiction. Can I, in anticipation of what he might say, endeavour to lay out some of the considerations we say that go to jurisdiction? First of all, the starting point is the Supreme Court Civil Procedure Act 1932.
KIRBY J: Is that really the starting point, or is the starting point the statute or royal charter that established the Supreme Court of Tasmania?
MR WHITINGTON: Well, I think this Act really was in substitution of earlier Acts.
KIRBY J: We would have to trace the – I mean, was this originally created as a royal court or was it created under the Australian Courts Act? Maybe you cannot answer that now, but at some time I would like the route of title back.
MR WHITINGTON: Yes. Well, I will address that. I heard Justice Crennan this morning say that the Supreme Court was the first Supreme Court in South Australia established in 1828. That must have been under an imperial Act.
KIRBY J: Of 1824, the same Act that established the Supreme Court of New South Wales a couple of weeks later.
MR WHITINGTON: I think that is right, yes.
KIRBY J: Or there was the Charter of Justice in New South Wales of 1824.
MR WHITINGTON: Well, we will provide the Court with a short memorandum tracing the route of title, so to speak, but certainly this Court in Lenah Game Meats saw the starting point for a consideration of the interlocutory injunction power as the 1932 statute in section 11(12).
KIRBY J: That may well be correct and I believe I also referred to that in Lenah.
MR WHITINGTON: Your Honour did.
KIRBY J: But if this is a court established out of the royal prerogative or even under an Imperial Act which creates it as a Supreme Court, then on the face of things, and as a Supreme Court under the Australian Constitution, all of these point to a very, very large power.
MR WHITINGTON: Yes, and I have attended to what your Honour said about that in Lenah Game Meats in relation to this very section and that is a matter that I will have to take into account. Can I indicate that we have provided the Court with some volumes comprising cases on our list of authorities not in the Commonwealth Law Reports and one or two other cases we want to refer to and then all the cases our learned friends wanted before the Court. There are three volumes in all per Judge.
I wonder whether it is convenient if we pass those up now because they include the – I am told they might be on the Bench with your Honours or behind your Honours. If they are, could I ask the Judges be provided with the second volume and at tab 34 the Court has the Supreme Court Civil Procedure Act. This is the Act that this Court in Lenah Game Meats by way of shorthand called the Supreme Court Act 1932. So it is that Act.
GUMMOW J: You have to start with the Common Law Procedure Act, do you not ‑ ‑ ‑
MR WHITINGTON: I am coming to that, your Honour.
GUMMOW J: ‑ ‑ ‑ which was repealed, but repealed in a particular fashion set out in section 2 of the 1932 Act.
MR WHITINGTON: Yes, the Common Law Procedure Act 1855, and I think, indeed, there was one the year before, were both repealed, but it appears that section 2 intends to keep them in operation – I am sorry, intends to not derogate from the jurisdiction of the court which it possessed under those Acts. One sees that in subsection ‑ ‑ ‑
KIRBY J: Just so that I know where we are steering, what is the proposition you are going to lead us to by the examination of these statutes? Are you contesting the power of the Supreme Court, the jurisdiction and power to grant an interlocutory injunction against the publication of the broadcast in this case?
MR WHITINGTON: We did not below challenge jurisdiction ‑ ‑ ‑
KIRBY J: Or power?
MR WHITINGTON: ‑ ‑ ‑ or power – but I appreciate immediately it is not open to the parties by consent to purport to confer jurisdiction on ‑ ‑ ‑
GUMMOW J: The point is it has a different route to the ordinary equitable jurisdiction to grant injunctions.
MR WHITINGTON: That is right.
GUMMOW J: It comes out of statute.
MR WHITINGTON: That is right.
GUMMOW J: It comes out of British statute of 1850s.
MR WHITINGTON: 1854, the Common Law Procedure Act.
GUMMOW J: Yes, section 79 to 82 of the Common Law Procedure Act 1854. So it comes out of statute.
MR WHITINGTON: Yes.
GUMMOW J: It has always been treated as a somewhat different species of injunction, and that is your point.
MR WHITINGTON: Yes, that is right, and I am advancing there slowly, perhaps at a snail’s pace, and I apologise for that.
KIRBY J: I wonder if that survives the creation of the Commonwealth of Australia, the establishment of the judicature and the creation of the Supreme Courts as constitutionally recognised in our Constitution.
MR WHITINGTON: Well, your Honour thought not in Lenah Game Meats, as I apprehend your Honour’s reasons. I took as my starting point section 11(12) and then the question is, what is the content of that section, and there are diverging views and possibly there are ‑ ‑ ‑
GUMMOW J: They are not divergent views. It was settled in Lenah. We really cannot go over every case again. That is why we decide cases, so we do not have to do them again.
MR WHITINGTON: Yes. Well, of course, Lenah established that the section did not create any freestanding injunction power.
KIRBY J: Lenah was not concerned with a defamation. That was conceded in Lenah.
MR WHITINGTON: That is right, but the principal point in Lenah was that the interlocutory injunction power in section 11(12) did not extend to a power to grant freestanding injunctions where there was no legal or equitable right capable of enforcement in a final judgment and we ‑ ‑ ‑
GUMMOW J: The problem does not arise here because your opponent seeks a final injunction, as the Chief Justice was debating with you earlier this morning.
MR WHITINGTON: Yes. Well, if that is so, I will move on. I thought there was a distinction that might possibly be open under Lenah and that is this. On one view Lenah did not finally decide the Stocker v McElhinney question.
GUMMOW J: That is right, because that has a different route.
MR WHITINGTON: That is right.
GUMMOW J: The route is found through the 1855 Act in Tasmania through section 2 in the special form of repeal of the 1932 Act.
MR WHITINGTON: Well, that is the point I am trying to make, your Honour, and the point about that then for this case is that the Common Law Procedure Act 1854 by section 79 only permitted the court to make injunctions, including it seems, according to Justice Walsh in Stocker, interlocutory injunctions to restrain the continuance or repetition of a defamation. If in this case there is no evidence of any prior publication by us at the time of the interlocutory injunction, the question arises, is there any power to make a quia timet order?
Now, as to that, the authors of Meagher, Gummow & Lehane, the 4th edition, say that there is no power to make an order quia timet, but it seems to me that was not the question primarily addressed in Lenah Game Meats, although there is an important passage in Lenah Game Meats which may address that. Can I make this point. The very narrow view is that the Judicature Act, section 25(8), which is the section we are dealing with, did not extend the common law power to grant an injunction.
GUMMOW J: There is no common law power to grant an injunction in defamation.
MR WHITINGTON: I am sorry, I meant under the Common Law Procedure Act – did not extend that power and that is the narrow view. If it did not extend it, then there was not and remains no power to grant a quia timet injunction.
KIRBY J: That would be an extraordinary result that a Supreme Court of this country has no power to grant an interlocutory injunction to restrain a pending broadcast that did irreparable harm. I mean, you just have to say it to realise that that cannot be the law of Australia. I do not care what statutes of the British Parliament in the 1800s might suggest so. Our Supreme Courts are in the Federal Constitution.
MR WHITINGTON: The position is cured in New South Wales by section 66 of the Supreme Court Act. The question is whether there is any counterpart in Tasmania. There is no counterpart in the Supreme Court Civil Procedure Act (Tas), but we rightly or wrongly below focused on the Supreme Court Rules and if the Court would turn up volume 2, tab 36, we have extracted the index to the Rules and then the relevant rule which is, we consider, rule 443. It should have a number in the top, an Internet print number, page 160 of 350. Do your Honours have rule 443?
GLEESON CJ: Where should that be, behind what?
MR WHITINGTON: It should be, your Honour, at tab 36 in volume 2 and there should be a table of contents at the front and then ‑ ‑ ‑
GLEESON CJ: It is the last sheet in tab 36.
MR WHITINGTON: Yes, I am sorry, thank you. It is rule 443.
KIRBY J: These rules are made under?
MR WHITINGTON: Under the Supreme Court Civil Procedure Act and in particular under section 197, and the Court will find that in the bundle of materials we have provided.
KIRBY J: Anyway, there is no question as to the validity of the rule, or is there?
MR WHITINGTON: None has been raised. We note the terms of the rule‑making power, 197(1).
GUMMOW J: Well, I want to find section 197 first. Whereabouts is it?
MR WHITINGTON: If your Honour would go, please, to tab – I am sorry, I apologise, I thought we had included more of the Supreme Court Act. We have not.
GUMMOW J: That is what I thought.
MR WHITINGTON: Can I pass up a copy and perhaps also my copy and it is section 197, and I can pass up another copy if that would help.
GUMMOW J: It says:
the judges of the Supreme Court, or a majority of them, may make Rules of Court, not inconsistent with this Act for carrying this Act into effect ‑ ‑ ‑
MR WHITINGTON: Yes, I appreciate that but ‑ ‑ ‑
GUMMOW J: Not surprising it says that.
MR WHITINGTON: Then we come to rule 443 which must be read against that.
GUMMOW J: Yes, that is right. It does not say you just have to claim an injunction.
MR WHITINGTON: It does say in any proceeding in which an injunction is claimed and the Court has in the book, at our learned friend’s request, at tab 35 the provision of section 63 of the Common Law Procedure Act and I want to draw the Court’s attention to a material difference. Section 63 is at tab 35 in the Common Law Procedure Act (No 2) (Tas). It starts:
In all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may, in like case and manner as hereinbefore provided with respect to mandamus ‑ ‑ ‑
KIRBY J: I am sorry, which section of the Act?
MR WHITINGTON: Section 63, your Honour.
KIRBY J: Yes, I have it.
MR WHITINGTON: Can I tell your Honour that this is copied from section 79 of the Common Law Procedure Act (1854) (Imp) and I think in identical fashion, but if there are any differences, they are not material. If I read on:
claim a writ of injunction against the repetition or continuance of such breach of contract, or other injury, or the committal of any breach of contract –
et cetera – I do not need to read on. Now, the authors of Meagher, Gummow & Lehane make ‑ ‑ ‑
GUMMOW J: Just forget about the textbook for a minute. Section 63 is talking about final injunction.
MR WHITINGTON: Precisely, yes.
GUMMOW J: You get to interlocutory injunctions by section 66, do you not?
MR WHITINGTON: Yes.
GUMMOW J: Which was section 82 of the 1854 Act.
MR WHITINGTON: That is right, although they are I think ex parte injunctions and presumably interlocutory. But even then it is confined to repetition or continuance, and the position has been put in some of the writings that therefore the Common Law Procedure Act (Imp) did not permit a quia timet injunction. Now, I was seeking to draw a contrast between that language in the introductory words and the language of rule 443 which does not depend upon there being a case of breach of contract or other injury, and so on. It simply says:
In any proceeding in which an injunction is claimed, the Court or a judge, on the application of a party may before or after judgment, may grant an injunction . . .
(b) to restrain any other party from committing any injury –
et cetera.
GLEESON CJ: This seems to come down to a very narrow factual point. If, as you mentioned earlier, the ABC showed this film to some journalists, then it published the matter.
MR WHITINGTON: Yes.
GLEESON CJ: And when it showed it to everybody in Australia it was simply repeating a publication.
MR WHITINGTON: That would be so, but I felt bound to take the Court through these provisions to lay out the significance of them.
GLEESON CJ: What is the state of the evidence about the film having been shown to some journalists?
MR WHITINGTON: There is no evidence. As I say, I have taken instructions on that point as late as yesterday, and that is when I was told it may be the case that for the purpose of promotions in newspapers it was shown a little before 24 April when it was intended that it go on air.
GLEESON CJ: That seems to suggest that if your opponents were to fail on this particular point, it would be very easily remedied by a bit of evidence.
MR WHITINGTON: That may be so, and that is why I have taken the precaution of getting instructions on it and I have put it before the Court, so the Court can understand that while we are here at least addressing the issue of injunction in what we consider to be a fairly disciplined and precise way, we do appreciate there is a factual issue at the bottom and we wanted the Court to understand the implications. Now, can I then ‑ ‑ ‑
KIRBY J: Of course we cannot receive additional evidence in addition to the record according to the doctrine of the Court.
MR WHITINGTON: That is right.
KIRBY J: But I suppose if it is common ground that we should proceed on this basis, for my own part I would have no trouble with doing that, and I think it is very proper of you as a governmental litigant to make the position clear to us.
MR WHITINGTON: Well, would the Court give me leave to file a memorandum confirming what my client says is the position?
GUMMOW J: It depends on whether it is an agreed fact.
GLEESON CJ: If it is common ground.
MR WHITINGTON: If it is common ground, yes.
GLEESON CJ: Because, if this were a problem, your opponents would be just back before a judge of the Supreme Court of Tasmania tomorrow morning seeking another injunction.
MR WHITINGTON: That is right, and perhaps in the meantime seeking discovery and other things. I think it still behoves me to lay out what we consider to be the jurisdictional strictures. Broadly, as we understand it, there are three approaches that may be adopted towards the interpretation of section 11(12). There is what I might call the narrow or the strict view that the Judicature Act section, relevantly section 25(8) in England or section 11(12) here ‑ ‑ ‑
KIRBY J: Could you just tell me where 11(12) is, because we should start by focusing on the words. Do we have that in this bundle?
MR WHITINGTON: Tab 34, your Honour, in the second volume.
KIRBY J: Well, mine runs out at 11(3) and Justice Heydon’s runs out - we hope we have not been discriminated against.
MR WHITINGTON: Not by my client, your Honour – discrimination free.
KIRBY J: Because the first duty is to concentrate on the words of Parliament, not to be looking first at what lots of judges have said. It is difficult to deal with your submission without the text of section 11 subsection ‑ ‑ ‑
HEYDON J: It is actually found on page 19 of your written submissions.
MR WHITINGTON: Yes, I apologise for that. It must be a printing error. Yes, it is in our written submissions at the end on page 19, paragraph 92. I was going to put to the Court there are three possible approaches to the interpretation of a section such as this. One is a view that says the section only addressed procedural issues and did not confer any jurisdiction on the Court to grant an injunction where no jurisdiction existed before. That is a view put in the case of North London Railway v The Great Northern Railway Co (1883) 11 QBD 30 at page 36 in the reasons of Lord Justice Brett. I will not take the Court to it now, but that is reproduced as case 45 in volume 3.
KIRBY J: That would not seem to conform with the general principle - I think it is in Knight Shipping and other cases - that where statutory jurisdiction is conferred on a superior court, it is normal to read it in the most ample way given (a) that such courts have to deal with a whole myriad of cases and (b) that you can trust such courts to exercise the jurisdictional power correctly. That seems a rather old-fashioned approach to the interpretation of the power.
MR WHITINGTON: Well, perhaps I can do it hierarchically. The intermediate view might be that the section conferred an enhanced power to grant an injunction where it was just and convenient to do so, but only where it was in aid of a recognised and enforceable legal or equitable right. Now, that is the position that Lord Justice Cotton put in the North London Railway Case at pages 39 to 40 and that, as I understand it, is the view propounded by your Honours Justice Gummow and Justice Hayne in Lenah Game Meats 208 CLR 199 ‑ ‑ ‑
GUMMOW J: Justice Gaudron and the Chief Justice said something about it too.
MR WHITINGTON: Yes.
GLEESON CJ: I thought that was actually decided in Lenah. What Lenah did, as was mentioned earlier, was to reject a proposition that you can get an interlocutory injunction in a case where you cannot make a showing of a claim of entitlement, a claim of legal or equitable right.
MR WHITINGTON: Quite so, your Honour, and I accept that, and ‑ ‑ ‑
GLEESON CJ: Whatever that expression “freestanding” claimed on injunction meant, it was something along the lines that I just mentioned – rejected in Lenah.
MR WHITINGTON: Yes, but there is a ‑ ‑ ‑
GLEESON CJ: Which arises out of the nature of an interlocutory order.
MR WHITINGTON: Yes. Well, I do not want to be tedious about it, but there is a slightly deeper and more subtle point here, and that is that in defamation cases it has been said that even though it might be argued that there is a legal right to reputation which is capable of enforcement, nonetheless no quia timet injunction could go under the Judicature Act because none could go under the Common Law Procedure Act. So that is the most strict view and that is the one that is advanced for instance in the textbook Meagher, Gummow & Lehane and I might just give the Court a reference to the fourth edition at paragraph 21130, page 727 and ‑ ‑ ‑
KIRBY J: That is the first of the views you have indicated?
MR WHITINGTON: Yes.
KIRBY J: The third is that you have just looked at the statute and it is a grant in general terms to a superior court and should not be cut down by judicial glosses?
MR WHITINGTON: Yes, and that is ‑ ‑ ‑
KIRBY J: Because it comes from the people in Parliament?
MR WHITINGTON: Yes, and that is a view that your Honour put ‑ ‑ ‑
KIRBY J: That would be the view I would favour unless it is required of me otherwise in Lenah Game Meats.
MR WHITINGTON: Yes, and so they are the three possibilities. I was going to put to the Court that the first and narrow possibility is supported by the authors of Meagher, Gummow & Lehane by a reference to a dictum of Chief Justice Dixon in Mayfair Trading Co v Dreyer 101 CLR 428 at 454.
GLEESON CJ: But if as a fact it appears that there has already been some, albeit minor, publication - and publication to a group of journalists is not necessarily self‑evidently minor in this case – then does that point remain of any significance?
MR WHITINGTON: No.
GUMMOW J: It would seem to me to be beating a straw man to death.
KIRBY J: I think, in fairness, you are dealing with matters that were raised in the special leave, as you understood it, that you are seeking to lay out.
MR WHITINGTON: Yes. I am trying to lay out the complete jurisdictional foundation, but I do appreciate that if the facts are as I have been instructed they may be, then the point becomes idle because on either contention there is – well, on the respondent’s contention there would be jurisdiction and we would concede that, but I am making the point that the case did not proceed below that way.
GLEESON CJ: Well, now, I think it is common ground that an interlocutory order is an order that takes the form of an order that is going to last until the final order.
MR WHITINGTON: Yes.
GLEESON CJ: That is why they are sometimes called interim - that is the nature of interlocutory relief - and I think it is also common ground that, on any view of the matter, there are special difficulties about interlocutory or interim relief when you are dealing with defamation, and that is what this case is all about, is it not?
MR WHITINGTON: Exactly, yes. Can I come to that? I will move on and ‑ ‑ ‑
GLEESON CJ: One of the difficulties being that by hypothesis there are all sorts of issues unresolved at the time you come to consider the making of an interlocutory order.
MR WHITINGTON: Yes, and there is an approach in England which stems from the cases of Coulson v Coulson and Bonnard v Perryman that we refer to in our submissions, which is still the approach in England and is also the approach in New Zealand that applies certain strict and rigid rules.
GLEESON CJ: What are the most recent two cases, one in England and one in New Zealand, where we can find that?
MR WHITINGTON: The one in New Zealand is a case called TV 3, if I can just turn that up. The one in England is a case Greene v Associated Newspapers Ltd ‑ ‑ ‑
KIRBY J: Just before we start looking at the cases, as we will have to do, can I raise the irksome question as to whether the statutory foundation in England and in New Zealand was the same as the statutory foundation which you have introduced us to, because this Court has said in many, many cases in recent years that you have to start with the written law, the statute, and just on the face of the written law, subject to the qualification that may have been in introduced in Lenah, it is in the widest possible terms rather similar to Dr Spry’s text. It just addresses the attention to questions of justice and convenience and therefore that is the starting point, is it not?
MR WHITINGTON: Yes, and ‑ ‑ ‑
KIRBY J: That is not a surprising starting point, given the vast range of circumstances in which injunctions, permanent and interlocutory, can be sought from a superior court of record and a Supreme Court of a State.
MR WHITINGTON: Certainly, your Honour, as I understand it, the statutory jurisdictional foundation in England is for all intents and purposes the same as the one we are dealing with here, but there has been subsequently the intrusion of the Human Rights Act pursuant to the European obligations. In Greene the Court of Appeal applied the conventional English approach, which is very stringent against the grant of injunctions, and then concluded there was nothing contrary to the Human Rights Act in that approach and, indeed, it was consistent with the ‑ ‑ ‑
GUMMOW J: It is paragraph 57 of Greene, is it not?
MR WHITINGTON: Yes.
GUMMOW J: Which is the same thing Justice Walsh was saying in New South Wales – page 990.
MR WHITINGTON: Yes, it is.
GLEESON CJ: Now, I think you were going to tell me the name of a New Zealand case that I asked you for.
MR WHITINGTON: The New Zealand case, your Honour, is TV3 Network Services Ltd v Fahey.
GUMMOW J: Is that not a privacy case?
MR WHITINGTON: Privacy was raised but the court dealt with defamation separately from privacy and then said the Privacy Act did not affect their approach to defamatory relief.
GLEESON CJ: Could you give a reference to the New Zealand case?
MR WHITINGTON: I am sorry, your Honour, [1999] 2 NZLR 129 and can I tell the Court that we have included it in the copied bundle at volume two, case 30.
GLEESON CJ: Thank you.
GUMMOW J: The reference to Justice Walsh was to Stocker [1961] NSWR 1043, which is behind tab 27.
MR WHITINGTON: Yes, that is Stocker (No 2) and that is the one, yes, and the relevant passage in his ‑ ‑ ‑
KIRBY J: Can I just ask you again to pause. If we look at the statutory foundation, there is no suggestion in the statutory foundation of a differential rule for defamation and other cases or a special rule for defamation. The statute is in general terms. So that what you are suggesting is that, having regard to the case law, you import into the statute in this category of cases a particular interpretation of the generality which has been recognised through the cases in England, New Zealand and New South Wales that there is a special way of approaching defamation cases because of the free speech consideration. Is that it?
MR WHITINGTON: Yes, it is.
GUMMOW J: Not just free speech. It is the significance of the jury. It goes back to Fox’s Libel Act, does it not?
MR WHITINGTON: That is right, and we address that in our outline. Perhaps if I can just take the Court to our written outline ‑ ‑ ‑
GUMMOW J: It is not new either. It was taken up by Lord Cottenham in a case called Fleming v Newton (1848) 9 ER 797 at 803.
KIRBY J: We are dealing with an Australian context and in some jurisdictions in Australia, including your own, as I understand it, jury trial of defamation cases is not a common thing.
MR WHITINGTON: That is right.
GUMMOW J: If there are some States that choose to abrogate the wisdom of Fox’s Libel Act and take away the people’s protection of it, so be it, but it has not happened in Tasmania, has it?
MR WHITINGTON: No. There are still jury trials in Tasmania.
KIRBY J: It may be that under the new Defamation Act I think there is provision for jury trial throughout the nation, again, in defamation cases.
MR WHITINGTON: I think two States have opted out – or one State and one Territory. South Australia has opted out and I think the Australian Capital Territory has opted out.
KIRBY J: Of the whole scheme or only out of the jury trial?
MR WHITINGTON: No, out of the jury trial requirement. But it is necessary to advert to the historical background, which we seek to do in our written submissions at paragraph 13 through to 17, for this reason, that equity, it seems, would not grant an injunction to restrain a libel and for a number of reasons, but one of them was that Fox’s Libel Act, which, as I understand it, addressed criminal libel only but was then seen to embrace civil libel, meant that libel action should be tried before a jury. That I think was a vestige of the days when judges were not to be trusted with matters like libel actions and ‑ ‑ ‑
GUMMOW J: It is not just a question of being trusted.
KIRBY J: It is what is said on paragraph 57, to which you addressed us in Greene, the jury was the constitutional tribunal of fact and it was not so much a matter of trust, it was that that is how it was done.
MR WHITINGTON: Although the history of Fox’s Libel Act, as I recall it, is that it was introduced, albeit perhaps a century after the real concern was evident, because it was thought judges in libel cases might be the subject of influence and therefore a question of ‑ ‑ ‑
KIRBY J: Influence or attitude, perhaps.
MR WHITINGTON: ‑ ‑ ‑ or attitude perhaps – and the question of defamation or no and justification ought to be left to one’s peers but that ‑ ‑ ‑
GUMMOW J: Here there is a defence of truth and public benefit, is there not, in Tasmania?
MR WHITINGTON: Yes.
GUMMOW J: It is pleaded here.
MR WHITINGTON: It is pleaded here, yes. Those considerations appear to inform both equity’s approach and hands off attitude towards injunctions of libel and, as well, informed the approach of the courts after the Judicature Act in libel actions. It started with Coulson v Coulson and then it comes to Bonnard v Perryman. Perhaps I should take the Court to that latter case so the Court can see how the Court of Appeal dealt with it. It is in volume 1 of the books at tab 4.
KIRBY J: Of course, Dr Spry is critical of this approach of what he says is glossing the generality of the words of the Statute which reflect the generality of the considerations of equity.
MR WHITINGTON: Yes.
KIRBY J: Justice Blow cited that long passage from Dr Spry and he was not alone in citing it. It was cited in the Victorian courts.
MR WHITINGTON: There is a lurking problem here that I am coming to and that is that originally the injunction jurisdiction that was opened up under the Common Law Procedure Act was on the common law side, although it is said that there were no injunctions granted prior to the Judicature Act. After the Judicature Act, of course law and equity are administered by the same courts, but nonetheless the common law approach, if you like, flowed through in New South Wales prior to its Judicature Act type legislation and flowed through to the decision of Justice Walsh in Stocker v McElhinney and then into the decision of Justice Hunt in Church of Scientology, which is probably the leading decision. That approach ordained a fairly strict and rigid rule approach.
In essence, there were there rules. The plaintiff, to get an injunction, had to show these things. They had to show that the publication was unarguably defamatory or, as it is put because of its jury heritage, that a verdict of the jury that it was not defamatory would be set aside as unreasonable. In other words, it had to be plainly defamatory. Then also – and this is part of the jury heritage – the plaintiff had to show that there were no defences. The onus of persuasion borne by the plaintiff there varies and the question of how evidence is to be brought in and tested on that also varies in the cases, but that was generally the second strict rule. The third strict rule was that if damages were an adequate remedy, an injunction would not go.
GUMMOW J: Are there still exemplary damages in Tasmania in defamation cases?
MR WHITINGTON: I think there are, yes, and I was going to say I think they were sought here, but I will double check that.
GLEESON CJ: I notice from the headnote in Bonnard v Perryman that you referred us to that it says:
An interlocutory injunction ought not to be granted when the Defendant swears that he will be able to justify the libel ‑ ‑ ‑
MR WHITINGTON: Yes.
GLEESON CJ: When the Court considers the availability of defences or possible defences in an interlocutory application in a matter of defamation, what sort of questions and standard of proof arise in relation, for example, to justification? Does some representative of the ABC have to swear that it believes the ABC will be able to prove that Mr O’Neill murdered the Beaumont children?
MR WHITINGTON: I think it was in Coulson, approved in Bonnard, the defendant simply swore that he intended and could justify at trial. That was the starting point in this line of authorities. The cases have expanded the requirement somewhat and have said that it is a kind of open‑ended requirement. So, for instance, in Stocker before Justice Walsh the plaintiffs there put on positive evidence that they could demonstrate that imputations were not true. They were imputations of financial insolvency and sexual misbehaviour. They swore and put on evidence that they could demonstrate they were not true. The defendant put on no evidence in response.
GLEESON CJ: What has the ABC or any representative of the ABC put its oath to in this matter?
MR WHITINGTON: As I understand it, what happened was that we indicated from the Bar table that we would justify the imputations claimed.
GLEESON CJ: Attempt to justify.
MR WHITINGTON: Attempt to – intended and proposed to. Whether we would succeed is another matter.
GLEESON CJ: You mean you told the judge that you intended to set out to prove that the respondent murdered the Beaumont children?
MR WHITINGTON: No, because you see that was not one of the imputations before his Honour.
GLEESON CJ: That is why I want to be clear about what you said you intended to do.
MR WHITINGTON: What we said we intended to do was this – and just confining it to justification at the moment – was justify the imputation that the respondent was a multiple killer.
GLEESON CJ: You mean intended to seek to justify?
MR WHITINGTON: Yes. We had an intention to do that and with that intention we convey that we had material that we intended to adduce which we said we anticipated would make that defence.
GLEESON CJ: Somewhere along the line the requirement referred to in the headnote of Bonnard v Perryman that the defendant must swear “that he will be able to justify the libel” must have been watered down considerably.
MR WHITINGTON: Your Honour, it has been both watered down and both watered up, if I can put it that way. Justice Hunt in the Church of Scientology attends to this point and says in some cases, particularly where matters come on in circumstances of urgency, it may be enough for the defendant to say from the Bar table that they intend to justify. In other cases an affidavit stating they intend and propose to justify is enough.
GLEESON CJ: What about a case where the prosecuting authorities have considered the material relied upon in support of an imputation that a person is a multiple murderer and the prosecuting authorities have decided not to prosecute? What then does a defendant publisher who pleads justification have to do to resist an interlocutory injunction?
MR WHITINGTON: As I say, it has been said in the cases that the test is flexible but either say from the Bar table or say on oath that they have material which is capable of making up the allegation, or possibly even go further, depending on what the plaintiff puts on, and put on positive evidence that tends to establish on the balance of probabilities the truth of that imputation.
HAYNE J: The answer in fact made in Bonnard v Perryman is at 287, is it not, halfway down the page.
MR WHITINGTON: Yes. Justice Kay was unimpressed by the bare nature of that affidavit but the majority found it acceptable and ‑ ‑ ‑
KIRBY J: Here, not only did you not put on such an affidavit, but you did not even tender the matter complained of.
MR WHITINGTON: More to the other party though. I do not want to be repetitive about that, but the plaintiff did not tender the matter complained of but ‑ ‑ ‑
KIRBY J: He would not have it. The plaintiff would not have it.
MR WHITINGTON: Well, he could have called for it or he could have put on evidence from people who had seen it in an acceptable form saying what was in it but ‑ ‑ ‑
KIRBY J: Anyway, we have the agreed imputations which are of a grave character.
MR WHITINGTON: Yes, but you see the defendants did put on – and I think it was actually the other defendants did put on the confessions I have taken the Court to – we did, I am sorry. So there were confessions in relation to two murders. Can I remind the Court where they are? Page 172, I think, and following.
KIRBY J: Yes, we have been through those this morning.
MR WHITINGTON: So we put those on and it has always been our contention that “multiple” means more than one. We know our learned friends say for some reason “multiple” means more than two, but I also believe it was said from the Bar table that we intended to justify in terms of the plea in Part B, paragraph 3(h), I think it is, the murder at Johanna Creek.
KIRBY J: You say that follows a practice which Justice Hunt approved in Church of Scientology?
MR WHITINGTON: Yes, and I should see if I can find that passage.
HAYNE J: Just before you leave Bonnard v Perryman, the proposition adopted by the majority of the court is that at 284, is it not, at about point 7 of the page? The propositions are put negatively. They decide the first that:
the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them –
assumedly not before the court –
the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable.
They then go on to questions of general character.
MR WHITINGTON: Yes. That is, of course, dealing with – your Honour’s focus did draw my attention to the element of the matter which goes to defences. In the quotation above from Coulson v Coulson there was emphasis also on the libellous or the defamatory nature of the material.
HAYNE J: I understand that, but the question of justification was dealt with negatively by saying, “We cannot be sure that justification would be found to be wholly unfounded”.
MR WHITINGTON: I agree, your Honour, yes. That, as I understand it, is harking back to the considerations in the jury system which invoked equity’s restraint historically. That is that libel actions traditionally, conventionally were matters for juries and the explanation for this restraint has a number of bases. One is that the court simply should not interfere in what would be a jury function. Another is that the court might be seen to be pre‑empting or prejudging the jury decision.
GLEESON CJ: One of the problems is that propositions of fact or discretionary considerations masquerade as principles of law. Look at page 285, at the statement of the conclusion in this case:
Upon the whole we think . . . that it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial -
Now, I suppose you can call that a rule of law if you want to but it looks like a statement in general terms of a discretionary consideration about justice and convenience, and it is when wise statements of discretionary principle like commonsense statements of fact are then taken up in later judgments as rules of law that the problem arises, is it not?
MR WHITINGTON: Rightly or wrongly, we adopted that kind of approach in the Full Court ‑ ‑ ‑
GLEESON CJ: You may ultimately be right.
MR WHITINGTON: We adopt your Honour’s kind of approach, with respect. In the Full Court we were confronted by two bodies of authorities, one that starts with Coulson and Bonnard and creates a set of rigid rules, and one sees them best expressed in Justice Hunt’s decision in Scientology and they are still applicable in England and New Zealand. But then there is a shift in the landscape, in New South Wales, for instance, in Chappell’s Case where Justice Hunt was confronted with a case where he clearly thought an injunction should go but if he applied the rigid rules ‑ as they had been developed, including by him – he would not have granted an injunction. That is because the first so‑called rigid rule he articulated was that the matter be manifestly defamatory, or put in jury terms, that if a jury found it was not defamatory the verdict would be set aside as unreasonable.
On that test, Mr Chappell, the plaintiff, could not have made out a case for an injunction, but his Honour thought that an injunction should go, so he then moved to what we consider to be a slightly different position, a position first formulated in Australia, probably in the National Mutual Case by Justice Ormiston, the year before in Victoria, which has since been adopted in South Australia in the Jakudo Case but not adopted apparently in Western Australia or Queensland of treating the rules as no more than guidelines.
GLEESON CJ: There may be not much to be gained by formulating a series of discretionary considerations and then attaching to them an adjective like “rigid” or “flexible” where what is going on is that the courts are wrestling with a problem that arises out of the nature of interlocutory relief in the context of a defamation case giving rise to issues of freedom of speech, issues of jury resolution, of questions and issues arising out of a multiplicity of unresolved defences at the time you are making the order.
In the present case, does not the central discretionary problem arise from the circumstance that you have a threat to publish imputations on a matter of public interest ‑ the identity of the murderer of the Beaumont children and others, put them to one side for the moment – where the prosecuting authorities are in possession of the information and have decided not to prosecute and the plaintiff is somebody who has been in prison for a long time and is likely to remain there. Now, that bare statement of the facts gives rise to quite a number of quite difficult discretionary problems.
MR WHITINGTON: Yes.
GLEESON CJ: But are you going to resolve the problems by putting an adjective like “flexible” or “rigid” on the considerations that you will need to pay attention to?
MR WHITINGTON: We say, no, your Honour, and what your Honour has put to me is how we approached the matter certainly in the Full Court, and I have only used the labels “rigid rules” and “flexible approach” as labels as convenient shorthand to elucidate the argument, but it is clear that the so‑called rigid rule approach does appear to incorporate some rigid rules or preconditions and if it is applied, as it was for instance by Justice Hunt in Scientology, it will lead to the result that an injunction cannot go if the plaintiff cannot meet the preconditions.
Now, what your Honour has articulated really represents the shift from that kind of approach to the approach one sees in Chappell, in National Mutual in Victoria and in Jakudo in South Australia where all the factors are seen as factors relevant to the exercise of discretion as to what is, if you like, just and convenient, and with respect ‑ ‑ ‑
KIRBY J: The majority in the Full Court took the view that the “so‑called flexible approach” was the correct approach, did they not?
MR WHITINGTON: Yes, and in part that was because we attempt to articulate a view along those lines, and I hesitate to say, in similar terms to what has fallen from the Chief Justice, but certainly we were struggling to convey that notion. But the one thing we did want to say was that under that approach in defamation the consideration of freedom of speech is given very special consideration or weight.
KIRBY J: Just let me pause to understand. I do not understand the respondent to be putting the “so‑called rigid approach”?
MR WHITINGTON: No.
KIRBY J: So there is furious agreement at the Bar table between both of you that insofar as some States in Australia think that there is this set of rules that that is not the approach that either of you are urging on the Court?
MR WHITINGTON: We did not urge that below and we do not urge it here.
KIRBY J: No, I realise that, and that agreement is more consonant with the way this Court has been emphasising in recent years you go back to the statute. The statute is expressed in broad terms and to accept factors as matters that you have to perhaps go through in your mind is one thing, but to impose rules on the statute where the statute is in general and broad terms is really not consistent with the general principle of interpreting statutes, particularly where they are giving powers to a superior court and a constitutional court like the Supreme Court.
MR WHITINGTON: Certainly the outcome of that analysis is where we get, subject to this that there is, as I said earlier, a kind of lurking theoretical question about the role of equity here and whether one simply says we are in the area of injunctions now and all injunctions are to be regarded now as part of equitable doctrine, and one applies ‑ ‑ ‑
KIRBY J: But it is granted by statute. It will take into account the equitable history and so on but they are now rooted in the statute.
MR WHITINGTON: They are, but there is a whole body of learning that informs the statutory jurisdiction which has sprung from equity and it has produced ‑ ‑ ‑
KIRBY J: Anyway, we have reached a point where there seems to be a consensus with which, for the reasons the Chief Justice has indicated, seems manifestly sensible and insofar as some Australian States seem to think otherwise well maybe this case will clarify that point, but when we come to the actual facts of the case you say the starting point of the exercise of the power is freedom of expression and caution in prejudging what would ultimately be judged in most parts of Australia by a jury?
MR WHITINGTON: Yes. We say that we have now arrived at the critical question in this appeal. As your Honour has put to me a lot of what we have traversed up to this point is common ground, more or less, but the critical question then is in following the approach adumbrated by the Chief Justice if that is to be followed, what weight is to be given to the right of an individual to speak freely – and I use “right” ‑ ‑ ‑
KIRBY J: You know that in the international human rights instruments and all the statements of it, it is balanced. It is the right of free speech but there is also the right to be free from attacks on your reputation and honour.
MR WHITINGTON: Quite so.
KIRBY J: Americans tend to think, because of the language of their First Amendment and the way the jurisprudence is developed, that free speech trumps virtually everything, but that is a bit of an overstatement, but they have a very particular view, but most of the rest of the world realises that there is the balance that is expressed in the human rights instruments and in the case law of this country and England.
MR WHITINGTON: We say, with respect, that that balance is sought to be made good in the law of defamation as well, that it seeks a balance between protecting the right to reputation and protecting freedom of speech, both from the individual’s point of view and from the perspective of the community, but we are here dealing with a particular aspect of the law of defamation, that is, the ability to enjoin somebody from speaking before there has been any trial, and that is the critical ‑ ‑ ‑
KIRBY J: The other way of putting it, the other side of the coin, is the ability to enjoin a major national broadcaster from speaking before there has been a trial of the person who will be accused by that broadcaster and thereby (a) effectively tried for the entirety of the people, or who watch the program, and (b) suffer the disadvantage of the contamination of the pool of jurors who might potentially have to pass on the matter and see where for him a prisoner in a cell for his life is not really going to be in a very good position to vindicate himself by a damages action.
MR WHITINGTON: There are three separate considerations there which we say ought to be unravelled and dealt with separately. There may never be charges in a case such as this, there may never be charges, and does it mean because there may never be charges, for instance, if the police or the authorities decided not to prosecute for the second murder to which the man confessed, does it mean that can never be the subject of public description, comment or debate. We accept that the man is a prisoner, and as I understand it, he is on a true life sentence, and unless he applies to be resentenced under the Tasmanian resentencing legislation he is not eligible for parole despite some of the references in the papers to potential application for parole, so he is in a particularly vulnerable position. We accept that as well.
GLEESON CJ: Does the evidence show why he has not been prosecuted for the murder of the second child?
MR WHITINGTON: I know the reason, I am just trying to see if it is – the reason is because he was sentenced to life for the first charge, as I understand it.
GLEESON CJ: Yes, I am not entirely sure I follow that. Do you mean that the prosecuting authorities have taken and publicly expressed the view that because he has been convicted of one murder and will spend the rest of his life in prison for that murder there is no public interest in prosecuting him for the second murder, even though he has confessed to it? Is that it?
MR WHITINGTON: That may not be a good reason, but I think that is how it is portrayed by Mr McCreadie in one of his ‑ ‑ ‑
GLEESON CJ: I am just interested in what the evidence is, that is all.
MR WHITINGTON: There is almost no evidence, your Honour. It comes from a statement by Mr McCreadie, the Police Commissioner, and reported in a newspaper article which was put in for interlocutory purposes, and I think the best I can do for present purposes is page 203. That does not finally answer your Honour’s question because it ‑ ‑ ‑
GLEESON CJ: No. It may raise somewhat different considerations from the matter relating to the Beaumont children and the other matters. Suppose you had found in Australia a very elderly man who was alleged by a media organisation to have been guilty of war crimes in another country a long time ago, and suppose the prosecuting authorities publicly said, “We are aware of all the information available to the media organisation but we do not intend to prosecute that man because we do not think he can get a fair trial at his age and this far removed in time and place from the events that happened”?
MR WHITINGTON: In another country, your Honour?
GLEESON CJ: In another country, but he is here, and then suppose the media organisation published a program or an article imputing to him all these war crimes. What would be the relevance to an application for injunctive relief, either interlocutory or permanent, of the consideration that we knew he was never going to come up for trial?
MR WHITINGTON: That was a point I meant to answer in respect of Justice Kirby’s question to me as well, and I am sorry I did not answer it. If somebody is going to come up for trial, issues of contempt may intrude and there for coherence of law we would say that the question of publication or no would be decided by reference to the law of contempt and not by reference to the law of defamation. This is somewhat how we put it below.
But if there was no prospect of a trial, that is, if the desired publication was not in the shadow of any criminal prosecution, then no issue of contempt would arise, and then we would say the law of defamation should be allowed do its work and on an application for an interlocutory injunction restrain any publication prior to trial. We would say the community interest in freedom of speech, at least on matters of public interest or public concern, not mere matters of morbid or prurient curiosity, should be given if not full reign then very heavy weight.
GLEESON CJ: In relation to the matter of the Beaumont children, is the fact that the prosecuting authorities know as much as you know and have decided that it does not make out a case against the respondent, an argument in your favour or against you?
MR WHITINGTON: With respect, I think it is probably neutral, your Honour. If they did know and had decided to prosecute then we would say the law of contempt would kick in, so to speak, and if there was any risk of contempt or indeed in South Australia if there was any risk of contempt the law of contempt would take over, or in South Australia the suppression order proceedings would take over under the Evidence Act. If there is no present intention of prosecuting we would say why is it not a fit matter to agitate and one must test it against the imputation. The imputation is a suspicion.
Now, in this case, the plaintiff has not, as I say, formulated his imputation in any closely confined way. It is in the passive voice and it does not identify the source of suspicion, and that may have some relevance to an answer to your Honour’s question, but otherwise I would say that to say on the basis you intend to justify that somebody suspected of a crime where the authorities do not intend to take action can be justified as free speech in the community on a matter of public interest or concern ‑ ‑ ‑
KIRBY J: You do not, in your written submissions, embrace the notion that some people are libel free, in other words, that they are a free go in any case.
MR WHITINGTON: There is that American motion of being libel free – I have forgotten quite how they put it – “libel proof”, I think are their words. We do not embrace that, no.
KIRBY J: But you seem to be getting close to it if your notion is, “Well, he’s in prison for life”. That in this case means the term of his natural life. Given the confession you have taken us to that would be very relevant to a parole decision if he were reclassified, that is very likely to be permanently in prison, and therefore that you can say this because there is not going to be another trial, in all probability, on the present premises.
MR WHITINGTON: But that does not make him libel free. First of all, we are not really talking about whether people are libel free at this stage. There will be a trial and the respondent can have his day in court and decide whether this material is libellous or not. At the moment the question is, should we be allowed to publish ahead of a trial. As to the fact that he is in prison, we say that should not impair our right to speak freely and to inform the community if we are in a relevant area. If we were dealing with matters such as those in Chappell which his Honour Justice Hunt regarded as mere matters of prurient curiosity, then it would be different.
KIRBY J: I see that a constitutional point was disclaimed by analogy to Lenah and other cases. Can it be said that the issues of vigilance to unsolved crimes, particularly vigilance to the murder of children and so on, are matters that fall into the protection of the constitutional principle? You do not advance that point.
MR WHITINGTON: We have not advanced that, your Honour, for two reasons, I will be frank. First, my client has taken the view so far that it does not have a Lange defence. For better or worse, that is the view it has taken so far. Secondly, in any event, the point was not taken below and on appeal it was thought that without the proper material the foundation for a Lange defence in the film, it was a pointless exercise to seek to agitate it.
KIRBY J: In this spirit of frankness, you will understand at least that some decision‑makers will be concerned, whether they express it or not, at the possibility that this country will go down the track of the United States, partly because of the First Amendment, and substitute trial by media for trial in the courts and with the discretions and examination and careful and painstaking consideration by public authorities. Have there been any cases of which judicial notice could be taken that illustrate the fact that prosecuting authorities and others, being only human, can sometimes make mistakes and media attention to cases has led, in Australia, to matters then proceeding to public investigation and trial. Have we had any such cases of which you are aware? I cannot call any to mind.
MR WHITINGTON: The one that springs to mind in my home jurisdiction, your Honour, is the Nemer Case but that was to do with sentencing and there a person pleaded guilty to an assault with a firearm and there was a media outcry over the sentence and that led to the government, anyway, coming in over the top of the DPP to bring an appeal against the sentence, so that is one.
KIRBY J: It might not be a particularly good example.
CRENNAN J: On a slightly different tack, what about the ability of prosecutors to change their minds so that the position would be, would it not, that not just there may never be charges laid but rather that there was a possibility that charges would be laid?
MR WHITINGTON: I agree with that. With respect, your Honour, it is an abstract possibility and we say that that tells in favour of free communication rather than against it because ‑ ‑ ‑
CRENNAN J: But what about the ultimate prejudice though that might result in relation to a trial?
MR WHITINGTON: That is where the law of contempt, I say, cuts in and coherence of law would require that to be addressed through the law of contempt or, in South Australia, under the suppression order regime. There are a number of authorities in this Court, and I cannot remember them now ‑ ‑ ‑
CRENNAN J: Hinch’s Case.
MR WHITINGTON: Yes, there is Hinch’s Case certainly but there are other authorities where this Court has said that juries are capable of being directed to put out of their mind prejudicial material. We would say that if there was discussion and debate and that provoked prosecution no doubt one matter the prosecution would take into account would be the capacity to conduct a fair trial because they might expect they would be faced with an application for a permanent stay.
Secondly, if they chose to prosecute they would have regard to the authorities that say that juries can be directed to put out of their mind prejudicial material, and do. One case I have in mind is the decision of Chief Justice Spigelman in John Fairfax v District Court a couple of years ago where he goes into those authorities at length. That might be a somewhat controversial proposition in fact but certainly the last word, as I understand it from this Court, is that juries can be directed. I think those cases that I have in mind were in the context of appeals against convictions based upon pre‑trial publicity as opposed to contempt cases or applications for stay in advance of a trial because of pre-trial publicity, but, nonetheless, we would say the principle holds good.
GLEESON CJ: There are some people who would be virtually immune from prosecution if you did not accept the fact that jurors can be instructed to put things out of their minds.
MR WHITINGTON: And so, just as we do not say that this respondent is libel proof, nor do we say that he is a defamation-free zone, that is that nothing can be said about him - that is the other side of the coin. One side is you can say anything without libelling him, the other side of the coin is you cannot say anything simply because he is a prisoner and we go further in saying nor should a discussion be closed down because he might subsequently find himself open to later prosecutions based upon the material. We accept there is a balance but our fundamental proposition about that is that that balance is worked out in the law through the law of contempt and suppression, not through the law of defamation.
KIRBY J: But where there is a balance, conventional principles suggest that appeal courts have to be rather careful in interfering with the decision of the judge who is entrusted with the balance unless some error of principle is shown and, in this case, however expressed, the judge had before him extremely grave imputations including imputations of murder of children which have been the subject, apparently, of investigation and consideration by the relevant public authorities without any prosecution and, therefore, the case is really of the gravest kind and the damage to any residual reputation of the respondent is very, very large and, therefore, the judge starts in a case where, unless an injunction could be granted in this case, it is very difficult to conceive of any case where an injunction against publication is available. In a sense, you are then propounding in Australia a proposition that if the matter is of public interest and if free speech on the matter is involved it will always trump even the gravest of allegations and that is why this is really a case that tests the balance.
MR WHITINGTON: We do not say it will always trump, your Honour, but we do say that it is a predominant consideration which must be weighed and the critical error, at first instance and in the Court of Appeal, was to treat freedom of speech as one only of many factors to be weighed in the balance.
GUMMOW J: I want to be clear about this. Can we just look at your notice of appeal on page 247?
MR WHITINGTON: Yes.
GUMMOW J: When you say:
The Full Court erred in applying the principles -
are the “principles” there referred to the “principles”, to use that word, to be drawn from cases like Chappell, in your ground 2. In other words, you do not advocate the approach in New Zealand and the United Kingdom.
MR WHITINGTON: No, your Honour, we did not advocate that.
GUMMOW J: You do not advocate it now.
MR WHITINGTON: No.
GUMMOW J: And then you say in ground 2:
erred in the application of that approach by not giving appropriate weight -
and you seem to be saying “appropriate” means predominant.
MR WHITINGTON: Yes, we do say that and we say that is how freedom of speech is worked through on an application for an interlocutory injunction.
GUMMOW J: What would we do then, send it back, would we?
MR WHITINGTON: I guess there are two answers to that. If the Court is with us and the Court finds that the Full Court misapprehended the principles, the Court could state those principles and then it may have to be sent back for a fresh exercise of the discretion.
GUMMOW J: You keep sliding between principle and appropriate weight, you see, that is what is worrying me. You are really in House v The King territory, are you not?
KIRBY J: And that was very important to Justice Blow.
MR WHITINGTON: Yes, we may be in House v The King territory but one has to identify the relevant consideration and then ‑ ‑ ‑
GUMMOW J: Hence your idea of predominant weight.
MR WHITINGTON: That is right. One has to identify the relevant consideration and then the weight it ought to be accorded and if, in a case such as this, freedom of speech is a relevant principle and ‑ ‑ ‑
GUMMOW J: No one denies that.
MR WHITINGTON: And if then it has to be given special weight, as we contend, then we say that there is a House v The King error in failing to attend sufficiently or properly to the consideration.
GUMMOW J: Where did Justice Blow deal with it?
KIRBY J: In the second paragraph he says that you either have to show “wrong principle” or it “works a substantial injustice” and you disclaim substantial injustice so that we are in the wrong principle area.
GUMMOW J: The second paragraph is not consistent with what you just agreed with me. The second paragraph is not House v The King territory. The principle comes from Chappell and the principle carries within it a number of factors. How they play between themselves, you say, then gives rise to a House v The King problem because of the predominance. Is that right?
MR WHITINGTON: Yes.
GUMMOW J: Okay. Where did Justice Blow deal with this question of predominant importance that you say he should have dealt with?
MR WHITINGTON: In a number of places ‑ ‑ ‑
KIRBY J: He refers to Chappell in paragraph 59.
MR WHITINGTON: Yes, 59 ‑ ‑ ‑
GUMMOW J: Paragraph 67 says we are all being flexible, which is the usual escape from rigor in this age. Where did he get to anything approaching a found firm footing?
MR WHITINGTON: Paragraph 72 is most clearly where we say he erred in this respect.
GUMMOW J: Thank you.
MR WHITINGTON: He is referring back to the way in which Justice Crawford weighed up all the factors and he is basically saying he gave, if you like, passing acknowledgment to all relevant factors including the restraint of discussion in the media of matters of public interest and he concludes by saying:
In my view he considered the relevant factors weighing for and against the granting of an injunction. In my view he did not thereby apply a wrong principle.
HAYNE J: But one of the factors he considered is the few words before that sentence, “freedom of the press”, free speech, in effect. You say that is a dominant consideration.
MR WHITINGTON: Yes, and you see the same thing in the third line but we say that is to misapprehend the approach in Chappell which talks about the overriding principle of free speech.
GUMMOW J: Where does it actually say that in Chappell? We have to be clear about this. We are going down by concession, down this path and I want to know what it is.
MR WHITINGTON: It is volume 1, case 9.
GUMMOW J: Yes, (1988) 14NSWLR 153. Which particular passage?
MR WHITINGTON: If the Court would come first of all to page 161, his Honour goes to National Mutual and then he says below that:
I agree. There are no decisions of courts above me in the judicial hierarchy of this country which require me, rightly or wrongly, to apply Lord Esher’s “rules” as rigid rules of practice ‑ ‑ ‑
GUMMOW J: We know all that. Where is this predominance?
MR WHITINGTON: In a number of places. It starts at 164A to B ‑ ‑ ‑
KIRBY J: It is at the bottom of 163, he says the reasons for caution are that it:
involves an interference with an important right of the defendant, that of his freedom of speech, which is necessarily interfered with -
That is self‑evident. Where does he say that that is predominant and always is greater than the freedom to be safe in your honour and reputation?
MR WHITINGTON: I think one gathers that from that whole paragraph, A through to C.
GUMMOW J: We are back in exceptional cautions.
MR WHITINGTON: Yes, one tends to get a merging.
GUMMOW J: I thought we were 100 years ago.
GLEESON CJ: The principle is stated, in a sentence, is it not:
A free and general discussion of public matters is fundamental to a democratic society.
Then he refers later to that as an “overriding principle”, does he not?
MR WHITINGTON: Which he discussed in Scientology, yes. And then if the Court goes to page 171D – can I say that up to this point his Honour appears to say he would have granted an injunction ‑ ‑ ‑
GUMMOW J: As Justice Hayne points out, it is really lines 4, 5, 6 on page 164, “independent and overriding”.
MR WHITINGTON: That is right.
GUMMOW J: Your complaint is that there is no reference to that in the Full Court majority.
MR WHITINGTON: That is right, and he comes back to that at 171, D to E and he concludes that on that independent basis he would grant an injunction as well in that ‑ ‑ ‑
GUMMOW J: Page 171E?
MR WHITINGTON: D to E your Honour.
KIRBY J: These are not statements that were binding on the Full Court, nor are they binding on us. You are urging them on us, therefore we ultimately have to go back to the issue of principle. Why, as a matter of principle, should one adopt such a statement, first, because of the general discretion which exists in the statute law of this State; second, because it is inconsistent with international human rights and other principle which reflects that both of them are very important rights of all individuals, freedom of speech and freedom of expression, but also freedom of honour and reputation; and, thirdly, that in large media corporations, effectively, it embraces a principle that you make the decision and, therefore, it is a self‑fulfilling statement in every case that you create the independent and overriding principle and courts cannot do anything about it, in practice. That would not be a very balanced principle to embrace.
MR WHITINGTON: That is the question in this case.
KIRBY J: Exactly.
HAYNE J: But I would understand your proposition to come to this, be it right or wrong, that the public interest in free speech trumps the private interest to reputation at the interlocutory stage where you cannot know which way the action will fall out.
MR WHITINGTON: That is right.
HAYNE J: That seems to be the bottom line to your argument, is it not?
MR WHITINGTON: It is, and the price for that may be some damage to the plaintiff in the interim and it may be necessary to have an urgent trial.
HAYNE J: It may assume remedial completeness in defamation which, given that defamation sounds in money, may itself be something that a priori is not self‑evident.
MR WHITINGTON: I accept what your Honour says to me, except that the doctrine in the law of defamation is that damages are the appropriate remedy by and large and that damages are intended to be a vindication and a salve and to restore reputation and so on and the verdict restores reputation.
GLEESON CJ: The way the English courts put it – I know you do not accept the rigidity of their approach, but they make the same point slightly differently, do they not, simply by saying at an interlocutory stage that by hypothesis you do not know whether publication of the matter will infringe a right of the plaintiff. That is the significance of the fact that by hypothesis you are dealing with an application for interlocutory relief.
MR WHITINGTON: Yes.
KIRBY J: But to call a person a mass murderer and the murderer of three, I think it was, children, who has never been discovered, is a very self‑evident serious, horrible defamation and damage to his reputation and honour.
MR WHITINGTON: But the question remains: how does one weigh that? The abstract question still remains that until the trial one does not know whether that is true.
GLEESON CJ: Until the trial you do not know whether publication of the defamatory matter is an infringement of his right.
MR WHITINGTON: That is right.
HAYNE J: There is a further element, I think, underpinning your submissions, which is that the question of interference with the processes of criminal justice is to be regarded as wholly coped with by the law of contempt.
MR WHITINGTON: Yes, or in certain States suppression orders.
HAYNE J: Statutory supplementation of it.
MR WHITINGTON: Yes.
KIRBY J: This is to really narrow down the availability of interlocutory injunctions and it is also effectively to dispossess vulnerable people such as you have conceded the respondent to be because he is a person who is in prison and who is not apparently going to be tried on the criminal charges, and therefore there is not going to be much motivation in anybody else except himself to bring contempt proceedings. Contempt of what proceedings? The public authorities have apparently decided not to prosecute.
MR WHITINGTON: We would say in those circumstances there is no scope for contempt proceedings because there is no proceeding ‑ ‑ ‑
KIRBY J: That sounds like libel-free, which you disclaim, which I would disclaim because it is contrary to the notion of equality before the law.
MR WHITINGTON: With respect, your Honour, we would say that it may not assist to point to the particular and peculiar circumstances of this respondent to say he is in prison and therefore highly vulnerable. We concede all of that, but there is still a question of principle here. One tests it, we say, without saying you have a peculiar case where the respondent is in no way able to answer at trial. That itself begs an assumption. He may be able to answer at trial. One should not assume that his vulnerability is such that he will not be able to acquit himself at trial.
There is an allied point here that your Honour raised with me about damage to his reputation. We have another fundamental plank in our approach, and that is to say that in this case the man’s reputation was so tainted that – and it was conceded by his counsel at first instance that he had a very bad reputation and that he had a bad reputation for two reasons: because of his conviction and because of the publicity generated by the film festival, and that was conceded to answer his adverse reputation. So the question in this case is: is there any conceivable damage to reputation that ought to be defended?
KIRBY J: That sounds like libel-free. He was convicted of one murder and apparently on the face of his confession before a trial. One could say he confessed to another murder, but that does not mean that large media organisations can traduce him for every unsolved murder in the country or even for some of them.
MR WHITINGTON: No, and we do not seek to, and we certainly have not done that and the imputations make it clear we have not, but ‑ ‑ ‑
KIRBY J: Do not forget there is always a bit of an interest in a lot of people to solve a murder. It is a natural thing that puzzles and distresses a society.
MR WHITINGTON: Yes. Your Honour, can I come back to this fundamental point. In a sense certain people are libel-free in the law of defamation. If somebody has a seriously adverse reputation and a defamatory statement is made about them in the field or generally to the same effect as that reputation, then the law assesses that at trial in mitigation of damages. That is, if you do not have a reputation, you cannot suffer a detriment to your reputation that sounds in damages.
GLEESON CJ: There are many people in Australia, no doubt, who have never heard of the respondent and amongst those people he has no reputation.
MR WHITINGTON: Precisely.
GLEESON CJ: Presumably all or almost all of the people who have ever heard of the respondent are people for whom he has the reputation of being a child murderer.
MR WHITINGTON: That is right. There were suggestions put on his behalf below that he might want to go to other places where he is not known. We say that is beside the point because – that is when he is released, if he is released, and this publicity might go ahead of him. As to that, we say if he is not known there, he does not have a reputation. It cannot be a matter of damaging his reputation.
GLEESON CJ: But we are not dealing here with a case, are we, of someone who says, “Look, I want to go and make a new life for myself in a peaceful community in rural Western Australia and this is going to cause me terrible hardship”? That is not what this case is about, is it?
MR WHITINGTON: No, it is not. This case is about a man in prison in circumstances where he is likely to stay in prison who has a reputation as a convicted child murderer.
KIRBY J: That is sounding awfully like libel-free and that is just fundamentally inconsistent with the notion that everyone in Australia is equal before the law. He may not have much residual reputation but he does not have the reputation of being the unresolved murderer of the Beaumont children.
MR WHITINGTON: We have not called him the murderer of the Beaumont children; we have said he is a suspect. Your Honour, I repeat that this submission could be made at his trial.
HEYDON J: You may not have but the pleader of paragraph 6(c) of the amended statement of claim says:
that the Plaintiff was responsible for the murder of the Beaumont children.
MR WHITINGTON: Yes, and that is outside the agreed imputation. That is one of the points I raised right at the outset. We do not seek to justify that. If the Court reads closely our plea in justification, we do not seek to justify those extended meanings.
KIRBY J: That would be available for the proof of malice if it becomes relevant.
MR WHITINGTON: Yes.
KIRBY J: That you pleaded it.
MR WHITINGTON: No, this is – we do not plead that, you see. I think Justice Heydon is drawing attention to the fact that the plaintiff pleads out imputations beyond the agreed imputations.
KIRBY J: I see.
MR WHITINGTON: As to those that go beyond those we agree were capable of arising, we do not plead truth. We deny that they are capable of arising and in fact we deny they do arise.
HEYDON J: What is the point of the defence which says:
The Plaintiff was in South Australia in 1966 when the Beaumont children disappeared but when questioned about the matter by Gordon Davie stated that he could not have committed the crime because he was in Melbourne when the Beaumont children disappeared.
Is that trying to answer the imputation that goes beyond the three agreed ones?
MR WHITINGTON: No, your Honour, that is attempting to justify the imputation that he is a suspect in the disappearance of the Beaumont children and that is put as, if you like, a basis for the suspicion and it is put that way because, as I recall it, we will seek to show that Mr O’Neill denied that he had ever been to Adelaide, including at the time of the disappearance of the Beaumont children, but it can be shown he was in South Australia or Adelaide – I have forgotten which – at the relevant time. So that is sought to be alleged as a particular in support of the truth of the imputation that he is a suspect. Can I come back to Justice Kirby’s point.
GUMMOW J: Before you do that, looking at page 248, the orders you seek are masterly in their capacity. You want an order “that the appeal to the Full Court be allowed with costs.” Then what?
MR WHITINGTON: Can I take the Court to – we have an application ‑ ‑ ‑
GUMMOW J: What do you want us to do if we uphold your appeal?
MR WHITINGTON: If the Court agrees with us that ‑ ‑ ‑
GUMMOW J: Immediately discharge the injunction?
MR WHITINGTON: Yes.
GLEESON CJ: Where do we find the terms of the injunction?
MR WHITINGTON: At page 214.
GUMMOW J: It is a fairly wobbly injunction anyway.
MR WHITINGTON: Yes.
GLEESON CJ: It lasts until judgment or earlier order.
MR WHITINGTON: Yes, so it is truly an interlocutory injunction.
GLEESON CJ: Yes, that is what interlocutory injunctions are. That is why the reference in the statute to interlocutory injunction imports a number of considerations of the kind that we have been talking about.
MR WHITINGTON: Yes. Can I draw attention to the fact that we have an application to amend the notice of appeal.
GLEESON CJ: Is that opposed, Mr Tree?
MR TREE: No, your Honour.
GLEESON CJ: Your opponent says that is not opposed.
MR WHITINGTON: No, not opposed.
GLEESON CJ: Yes, you have that leave.
KIRBY J: You were put on conditions as to costs, were you not?
MR WHITINGTON: We have already given an undertaking as to costs.
KIRBY J: Page 266.
MR WHITINGTON: The amended notice of appeal takes that into account at page 270. We do press the point that at trial we could assert in mitigation of damages that a plaintiff has no relevant reputation and therefore would sustain no damage and be awarded no damages. If that is to say that that particular plaintiff is libel-proof in that context, then so be it, but while ‑ ‑ ‑
KIRBY J: So, if a person is convicted of one grave offence, it can be alleged by your client and others in the media to be guilty of any serious offence at all because he has no reputation left.
MR WHITINGTON: That raises the question whether the imputation is in the same field as the reputation. Here we say that relevantly the imputations are in the same field.
KIRBY J: So, if he is convicted of murdering a child, he is thereafter able to be accused without any remedy in defamation of the murder of any child anywhere at any time.
MR WHITINGTON: Not necessarily but he will have ‑ ‑ ‑
HAYNE J: This just shows the emptiness of the content of the expression “libel-proof or libel-free”, does it not? It may or may not be a convenient tag to apply to a particular set of results achieved but it is a term of no content, at least as far as I am concerned.
MR WHITINGTON: It is an issue for trial. If it is found that he suffered no damage to his reputation, so be it. Of course, a plaintiff will have to adduce evidence of reputation. In certain cases his reputation can be presumed but not in this case, so it would be very difficult for the plaintiff to establish, and easy for the defendant to establish, that there was no material damage to his reputation.
GLEESON CJ: Somebody might accuse one of the convicted Snowtown murderers of cheating at cards and that might be defamatory publication that could not be justified; unlikely to lead to a litigious outcome.
MR WHITINGTON: Yes. I think I have covered the ground I wanted to cover. In certain areas our points are made more fully in the written submissions.
GLEESON CJ: Thank you, Mr Whitington. Yes, Mr Tree.
MR TREE: Your Honours, I wanted to commence in much the same way as Justice Blow in the Full Court commenced, and that is by considering the nature of the task that the appeal court was engaged in in reviewing Justice Crawford’s order. Your Honours will be aware that Justice Blow referred to three cases, the earliest of which being De Mestre v A.D. Hunter Pty Ltd, copies of which I hand up for your Honours. Although your Honour Justice Gummow has raised the prospect of House v The King, your Honours will see that in this decision of the ‑ ‑ ‑
GUMMOW J: That could obviously only be by analogy.
MR TREE: That is so, your Honour, yes. Of course, these line of cases are more specific in the sense that they are germane specifically to applications for an interlocutory injunction and the process of an appellate court that is reviewing such an order. I wanted to ‑ ‑ ‑
KIRBY J: What is the proposition you are advancing now?
MR TREE: The proposition is that in the case of an interlocutory injunction, there must be either clear error of principle or serious injustice, the exact principle that Justice Blow articulates.
GUMMOW J: Your opponent says there was an error.
MR TREE: I understand that but, with respect, the error comes down only to the attribution of weight that was given to free speech. That is the error that he asserts.
GUMMOW J: Yes, he says there is a principle – he calls it a principle – of predominance.
MR TREE: Quite so.
GUMMOW J: …..Justice Hunt’s judgment which has its affinities actually with other earlier authorities.
MR TREE: Yes, your Honour, but, with respect, the notion of predominance is simply an attribution of weight, and weight in the context of an interlocutory injunction review is unlikely to be a clear error of principle. If your Honours look at the decision of the New South Wales Full Court at page 146, second column, I do not stay to read all of the paragraph but the paragraph commencing at the top of the second column:
Although the statutory provisions referred to above confer upon this court full power to make such interlocutory order as it thinks fit, that power should, consistently with the principles established by the authorities, be exercised with considerable care and caution. An interlocutory order for an injunction is a matter of practice and procedure . . . and, in such a case, an appellate court should not, in my view, interfere with the exercise by the judge at first instance of his discretionary power unless a clear case has been made out that he has acted on some wrong principle or has made an order which works a substantial injustice to one of the parties.
That is the start of that articulation of principle. Justice Blow correctly identifies that it is then picked up by Justice Brennan as his Honour then was in the Federal Court in Victorian Egg Marketing Board – I do not need to take your Honours to that – sitting, I should say, as one of two members of a Full Court – and most recently by the Full Court of the Supreme Court of this State in Australian Postal Corporation v Gray, that do nothing more than simply restate that statement of principle starting in the New South Wales Full Court.
So that really there is – I will not say glib – but there is a relatively simple way in which this appeal can be disposed of and that is to say that the attribution of weight is not a clear error of principle or, to put it the other way round, a failure to attach sufficient weight is not a clear error of principle. That is really, upon final analysis, what the appellant’s complaint is here, that there was a failure to accord it predominant governing primary weight and that is what it ought to have been given.
KIRBY J: Do I understand that you contest the so‑called principle, but you say that, insofar as there is some guideline or approach of giving predominance to freedom of expression, that the way in which Justice Blow referred to it in his references to free speech sufficiently acknowledged the importance of that? But are you contesting that there is this predominance principle or not?
MR TREE: Your Honour, we say that the ultimate question is always under the statute what is just and convenient. That is a matter of plain statutory language. Now, ordinarily free speech will be given great weight because of the importance that that right has in our society, but it is an error, we say, to then go on and identify in advance what weight it will carry in each individual case. We say that it is unhelpful to attach terms such as “dominant” and “overriding” and so forth. It ultimately comes down to a question of what is just and convenient.
GUMMOW J: You do not accept Chappell, do you, in that respect, those passages in Chappell?
MR TREE: We do not accept that ‑ ‑ ‑
GUMMOW J: I am not saying you should. I just want to be clear what the issues are.
MR TREE: Quite so, your Honour is correct. We do not accept that there is some – I do not want to use the word “trump card”, but that there is no primacy that in all cases ought be given to the right to free speech. It is a matter of exercise of the discretion in each case as to what is just and convenient. One can say confidently that free speech is important and that it would ordinarily be given great weight, but it must vary from case to case. Indeed, one can identify a spectrum, an entire array of cases, from the very weak to the very strong, and in those circumstances it is always going to depend upon the instant facts of the instant case. One cannot anticipate in advance exactly what weight should be given to something in every circumstance.
KIRBY J: After lunch, would it be convenient to tell us whether in other States the so‑called “predominance” principle has been embraced in other courts?
MR TREE: I will do that, your Honour, yes.
GLEESON CJ: Is that a convenient time?
MR TREE: It is, your Honour, yes.
GLEESON CJ: We will adjourn until 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
GLEESON CJ: Yes, Mr Tree.
MR TREE: Thank you, your Honour. Just before we broke for lunch your Honour Justice Kirby asked me to identify the way in which the weight to be given to free speech has been dealt with in other Australian jurisdictions. I wanted to take your Honours firstly to Marsden v Amalgamated Television Services. That is in volume 2, tab 21 of your Honours’ authorities. That is a decision of the New South Wales Court of Appeal and I have checked – it appears as though your Honours have exactly the same copy as I have. It is on page 6, albeit apparently at pages 13 and 14 of the unreported decision. About midway down page 6 your Honours will see the heading “RESTRAINT OF THREATENED DEFAMATION” and your Honours will see there is initially a reference to Chappell v Channel Nine. There is then reference to the earlier decision of Scientology v Reader’s Digest and the second‑last paragraph on that page 6 their Honours say this:
In our opinion that is a correct statement of the legal position, subject to a possible qualification with which Hunt J dealt in the latter part of his reasons in Chappell.
The possible qualification is that the position as stated by Hunt J in the quoted passage has less absolute effect than would appear from a literal reading. That is, it may be that it does not impose rigid rules on courts (although there is considerable earlier authority for this) but rather states powerful considerations which courts must take into account, in exercising their discretion in cases of the present kind, in granting interlocutory injunctions otherwise in the same way as interlocutory injunctions are generally dealt with. Hunt J favoured the latter view.
KIRBY J: That fits in with what the Chief Justice was saying earlier, that we just have this tendency to elevate powerful considerations into rigid principles.
MR TREE: Quite so, and “powerful consideration” is exactly the term that we would use to describe free speech. Now, true it is, over the page, their Honours do cite with approval, a little under halfway down that page, the passage which your Honours were at just prior to lunch which uses the word “overriding”. Your Honours will see that is immediately prior to where the unreported page 16 would arise. But if your Honours look at what commences at the top of that page, your Honours will get a context of what the Court of Appeal was saying, or at least perhaps thinking:
If the more flexible view of Hunt J is the proper one to follow, as we are inclined to think it is, we would agree with the way he said it should be applied, which appears from what he said, when, after disagreeing with the rigid view, he continued –
So that their Honours are expressly adopting that passage, but then if your Honours look after the excerpt of that case your Honours will see that what the court says is this:
The present case seems to us very clearly to be one in which the court should give considerable weight to the considerations referred to by Hunt J in the above passages.
Again, inconsistent with there being some primacy or paramountcy adopted by that consideration.
KIRBY J: You see just above that the passage which appears to be – is it a quote? It says:
That is what I described as the independent and overriding principle, and which I discussed . . . A free and general discussion of public matters is fundamental to a democratic society.”
MR TREE: That is so.
KIRBY J: Now, is a protection of the honour and reputation of individuals fundamental to a democratic society, or do we not worry so much about that?
MR TREE: No, your Honour, it is fundamental too.
GLEESON CJ: Was this a case in which the imputation against the plaintiff was that he was a paedophile?
MR TREE: I think that is so, your Honour.
GLEESON CJ: I am looking at page 2.
MR TREE: I think the word was “pederast”, but I think they are interchangeable.
GLEESON CJ: Well, I am just looking at the words in inverted commas on page 2, about a third of the way down the page.
MR TREE: Yes, that seems to be right, your Honour. Now, I am sure there is no need to remind your Honour Justice Gummow that in fact there were two special leave applications from the Marsden matter and, in fact, your Honour dealt with, at the same as disposing with those special leave applications, an application for an injunction. I should say that I have examined both your Honour’s reasons for dismissing the injunction and refusing to grant special leave and I have examined the transcript of it. Although your Honour on one view may have been inviting challenge to the statement of principle in Marsden, it does not appear as though your Honour, in fact, made any statement of principle during the course of dismissing the – or refusing to grant special leave.
GLEESON CJ: Why would that not have been a stronger case for the plaintiff than the present case?
MR TREE: It may well have been, your Honour, but it comes down to the question of the primary court’s weighing of relevant factors and that must be in the unique context of each particular set of facts. I certainly concede that it is almost inelegant to be comparing grievous allegations to figure out a hierarchy for them, but one could readily conceive that some allegations are more grievous than others.
GLEESON CJ: That was a practising solicitor of whom the imputation was made that he was a paedophile and injunctive relief was refused. This is a case of a person serving a life sentence for murder to whom an injunction was granted.
MR TREE: Yes, I understand that, your Honour, but, with respect, it is difficult to elucidate principle merely by comparing facts.
GLEESON CJ: Sure.
MR TREE: But I accept what your Honour says. One could characterise that as a clearer case.
GLEESON CJ: But it is a case that shows the weight or the power that was given to the consideration of free speech in the actual making of the decision, is it not?
MR TREE: Yes, and in the unique facts of that case where there was an immediacy to the public interest in relation to the proposed publication, ie, related to current or at least relatively recent events and it had to do with the conduct of a person, if not in public office, then certainly in part in the public eye.
KIRBY J: They did not allege against the appellant in that case that he was a multiple murderer.
MR TREE: Well, that is why I was being a little cautious in rapidly embracing the idea of comparing the relative significance of grievous crime. I accept what your Honour Justice Kirby says, that one could construe taking a human life as more grievous than a pederast, but it is very difficult to make any objective determination as to the heinousness of them compared to each other.
I then wanted to take your Honours to the Victorian Full Court’s decision in National Mutual v GTV. That is at tab 23 of volume 2. The report contains both the first instance reasons of Justice Ormiston and the decision of the Full Court. The Full Court at page 764, line 14 commences its discussion and their Honours said this:
In our opinion, the correct approach in Victoria to an application to restrain publication or republication of defamatory matter is, and always has been, to make the broad enquiries traditionally made by a court of equity, viz. – whether there is a substantial question to be investigated at the trial, and whether the balance of convenience, sometimes called the balance of justice, favours the grant of an injunction. In other words, the principles applicable are those which are applicable to all applications for interlocutory injunctions, and a recent statement of the general principles is to be found in Murphy v. Lush (1986) 65 A.L.R. 651, at p. 653; 60 A.L.J.R. 523, at p. 524. In the case of an application to restrain a libel, however, the very great importance which our society and our law have always accorded to what is called free speech, means that equity exercises great care in granting injunctive relief and does so only where it is very clear that it should be granted. It has been said in high places, and said on high authority from the Bench, that it is by no means rarely a benefit to society that a hurtful truth be published. It has been felt, we think, that it is usually better that some plaintiffs should suffer some untrue libels for which damages will be paid than that members of the community generally, including the so‑called news media, should suffer restraint of free speech . . . When the court enjoins, it must be extremely clear that no unacceptable repression is taking place. It has thus been laid down that it is only in a clear case that the court will intervene by injunction.
Their Honours go on to talk in the following paragraph by reference to the statutory phrase “just and convenient”, which of course is central to the submissions we advance, and over the page cite an aspect from Chappell which your Honours will see in the third‑last line, commencing line 8:
those ‘rules’ as laying down no more than prima facie tests which must be adapted to the broad principles which have always governed the grant of equitable relief.
Now, I next want to take up at line 21 where the Full Court said this:
We would therefore agree with Mr. Sher’s arguments to the extent that there may be and doubtless will be cases where the conduct of the author of the proposed defamation, or other circumstances, have been such as to constitute a clear case for an injunction. We agree, however, with Ormiston J. that this is not such a case. When such a case appears, as well it may some day when the shield of “free speech” is claimed for an irresponsible and dishonest and mischievous “trial by media”, it will be clear enough and the court will intervene. Even in the absence of statutes such as the one now in force in New South Wales, the “media” must recognise that it cannot defame at will, inside or outside a “trial by media”, safe in the knowledge that the courts retain no discretion to restrain, or in the belief that the courts will not ever exercise the power. But to attempt to lay down any rule by which such cases will be recognised would be mischievous itself, as well as contrary to equitable principles.
Now, we say that that is quite inconsistent with any notion of overriding in the sense of paramount in the sense of always must be given primacy to.
I should say that there was at least an application for an interlocutory injunction from this Court arising out of that litigation. Your Honours will see at volume 3, tab 52, the report of the Court. It is unnecessary to take your Honours to it, but there is a report in relation to the injunction that was sought. There does not appear to be any statement of relevant principle that would assist the Court in this occasion. I simply draw your Honours’ attention to it, that there was litigation in this Court that ensued from the Full Court.
On this Australian tour, I wanted to then take your Honours to South Australia where the authority, as your Honours would be aware, is Jakudo. That is at volume 1, tab 15 of your Honour’s authorities. I wanted to commence at page 442 in the decision of the Chief Justice. Halfway down the page his Honour said this:
The grant of an interlocutory injunction, in my opinion, involves the application of equitable principles that are the same in all cases. The grant of interlocutory injunctions in respect of defamatory material is not the subject of principles unique to that area of the law. In all cases the ultimate issue is whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted, and has shown that the balance of convenience favours the granting of an injunction . . .
The reason why interlocutory injunctions are rarely granted in respect of defamatory material is, as Ormiston J pointed out in the case just cited, that the courts have recognised the substantial public interest in the free discussion of matters of public or general interest. That means that when the balance of convenience comes to be weighed, the public interest in free discussion of matters of public or general interest weighs heavily against the grant of an injunction. Particularly will this be so if the defendant puts forward material which shows that there are reasonable grounds to think that a defence of justification may succeed. In that respect I accept what was said by Walsh J in his frequently cited judgment in Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541. When the real issue is not whether the words are defamatory, but that of justification, the plaintiff will have shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief. But, if there are reasonable grounds to suppose that a defence of justification may succeed that, coupled with the substantial public interest in the free discussion of matters of public and general interest, will usually mean that the balance of convenience is in favour of the refusal of a grant of an injunction.
GLEESON CJ: Of course, one thing that has to be borne in mind in relation to the balance of convenience and that is probably the clearest illustration of the fact that you cannot just look at the words of the statute without an understanding of equitable principle is the fact that balance of convenience considerations are usually engaged in the context of a plaintiff who is required to give an undertaking as to damages.
MR TREE: Yes.
GLEESON CJ: Now, there is not anything in the statute about undertaking as to damages as far as I know.
MR TREE: No.
GLEESON CJ: Your client gave an undertaking as to damages in the present case.
MR TREE: I believe so, your Honour. Your Honours, I then wanted to simply draw your Honours’ attention to the following paragraph in Jakudo as well where Chief Justice Doyle expressed agreement with Justice Ormiston in National Mutual Life and said that:
a bare assertion by the defendant that it intends to plead justification and prove the truth of its allegations will not necessarily suffice to resist an injunction.
Now, that is not relevant to where we presently are in the argument, but I draw your Honours’ attention to that in relation to matters that I will address a little later.
Now, the position in Queensland is somewhat unclear. The Court of Appeal dealt with this issue in ABC v Hanson. That is at volume 1 of your Honours’ authorities, tab 2. Now, on page 3 of the copy that is in your Honours’ papers, at the bottom of that page, Chief Justice de Jersey says this at point 7:
The learned Chamber Judge was referred to Shiel v. Transmedia Production Pty Ltd [1987] 1 Qd.R 199 where the Full Court followed the approach of Mr Justice Walsh in Stocker v. McElhinney (1961) 79 Weekly Notes NSW 541 at 543 with relation to the granting of interlocutory injunctions to restrain defamation particularly his propositions 2, 3 and 4 –
and I do not stay to read those. His Honour referred to some departure from the rigidity of that approach evident through recent New South Wales cases. His Honour then refers to Chappell v Channel Nine and then refers to Marsden v Amalgamated Television. At the bottom of that page, having dealt with the arguments that were pressed, the court said this:
There is no need to revisit the current applicability of the approach endorsed in Shiel. While there is much to commend the slight relaxation suggested in Chappell [and] Marsden, Shiel states the law in Queensland. But in the end, while the learned Judge expressed himself in his judgment as dealing with whether the publication was capable of being defamatory his other observations during argument indicate his view that they were clearly defamatory –
et cetera. So that the position in relation to the Queensland Court of Appeal is unclear ‑ ‑ ‑
GLEESON CJ: There was an unsuccessful application for special leave to appeal to this Court in that case.
MR TREE: There was. The transcript of that is at tab 1 and your Honours will see that in the course of the exchange Justice McHugh, at page 3 at about point 1, said:
But is there any question of principle that really arises in this case? The relevant principles are those set out by Justice Walsh in Stocker v McElhinney. Could this Court do any more than say that, in the circumstances of this case, the interlocutory injunction should not have been ordered or made?
Now, that does seem, we concede, at least some endorsement of the rigid approach. Now, so far as our researchers have been able to identify, that is the only occasion on which this Court has spoken of the issue presently under consideration. I am unaware of any application for special leave that ensued from Jakudo.
GLEESON CJ: Mr Tree, in the last two or three years there have been a number of English cases in the Court of Appeal in the House of Lords in which injunctive relief has been sought in cases alleged to involve breach of confidence or breach of privacy.
MR TREE: Yes.
GLEESON CJ: Where do we find the most recent statement of the principles relating to granting interlocutory injunctions in cases of that kind?
MR TREE: I think I am correct in saying in Greene, the case my friend handed up this morning.
GLEESON CJ: Thank you.
MR TREE: I wanted to take your Honours to that and it is convenient to do so now because ‑ ‑ ‑
KIRBY J: Have you finished your tour of Australia?
MR TREE: I only had Western Australia to go, your Honours, but I am happy to say that ‑ ‑ ‑
KIRBY J: Could you just give a note on the case?
MR TREE: Yes, certainly, your Honours. The relevant decision is Lovell v Lewandowski [1987] WAR 81– in fact, I might stay to complete the tour and then go to England in a moment, but it is Lovell v Lewandowski, that is in volume 2 of your Honours’ authorities, tab 20. This was a decision again of the Full Court of Western Australia and Justices Kennedy and Olney were in the majority. Justice Wallace was dissenting as to the result, but I wanted to take your Honours to Justice Kennedy at page 90.
Lovell v Lewandowski, of course predated National Mutual, Justice Ormiston’s decision which could be seen as the genesis of the so‑called flexible approach, but at page 90 at about point 4 your Honours will see that Justice Kennedy cites a passage from Dr Spry’s book, the 3rd edition, which seems to be the passage which has appealed to subsequent judicial minds, and having talked about or having at least repeated what Dr Spry has said, says at the top of page 91 – perhaps a little pessimistically:
Nevertheless, it does appear that the position with respect to the grant or refusal of interlocutory injunctions in defamation actions is exceptional and it is clearly too late now to suggest otherwise in this Court.
So that there appears to be some resignation to the rigid approach. Your Honour the Chief Justice a few moments ago posed a question in relation to the United Kingdom. There are, as your Honour has correctly identified, a number of recent decisions in that jurisdiction, most intriguingly a decision of the House of Lords which is referred to in Greene and the relevant excerpt is set out in full. I wanted to take your Honours to page 991 of Greene where your Honours have the benefit of the Court of Appeal interpreting what the House of Lords meant in what was then a very recent decision. I wanted to start at paragraph 60:
As Justice Fulford observed . . . in Cream Holdings Ltd v Banerjee [2003] Ch 650, the majority of this court took it for granted that the rule in Bonnard v Perryman was still good law notwithstanding the enactment of section 12 of the Human Rights Act 1998, and although the House of Lords differed from their approach to the meaning of section 12, it did not advert to this aspect of the matter at all. That case was concerned with an entirely different subject matter (the protection of confidential information) –
which brings in your Honour the Chief Justice’s question –
As Lord Nicholls observed . . . “Confidentiality, once breached, is lost for ever”, so that the granting or withholding of a pre‑trial injunction is of critical importance to a claimant. But before explaining what the word “likely” meant in the context of section 12(3) he said, at para 15:
“When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘serious question to be tried’ or a ‘real prospect’ of success at the trial.”
KIRBY J: That concern must have related to the standards of publication of News of the World.
MR TREE: In fact, I should take your Honours, even if only just out of fun, to the introductory ‑ ‑ ‑
GLEESON CJ: Before you do, you might read the first sentence of the next paragraph.
MR TREE: Quite so, your Honour, yes, that is why I was taking your Honours to it:
This has got nothing at all to do with practice in defamation cases, where as we have observed the American Cyanamid guidelines are not applied.
So that is why I say your Honours have the benefit of the Court of Appeal interpreting the House of Lords’ statement of the application of Cyanamid principles and it seems as though there is an emphatic rejection that the House of Lords was intending to articulate the application of Cyanamid to defamation cases.
I only wanted to draw your Honours’ attention to the introductory words of Lord Justice Brooke at page 977 which perhaps have an echo of truth:
In this country we have a free press. Our press is free to get things right and it is free to get things wrong. It is free to write after the manner of Milton, and it is free to write in a manner that would make Milton turn in his grave.
So certainly there seem to be matters of concern in relation to freedom of the press and freedom of reputation which are common to both countries.
Your Honours, we say that those authorities – the authorities in the Australian jurisdiction that we have just taken your Honours to – make it clear that there is no principle of overriding or paramount importance in relation to free speech, that what there is is an acknowledgment that the right to free discussion of matters of public interest ought be given great weight and ordinarily will be given great weight; but there is no support for the notion that it is some paramount consideration or that it in some way assumes a primacy over other considerations.
GLEESON CJ: The imputations you sue on include imputations that your client is suspected of the murder of the Beaumont children.
MR TREE: Yes.
GLEESON CJ: Suspected by whom, anyone – Mr Davie, for example?
MR TREE: There is force in my friend’s criticism that the imputation is passive. There is force in that.
GLEESON CJ: Will the defendant justify the imputation if they demonstrate that Mr Davie suspects your client of being the killer of the Beaumont children?
MR TREE: We would contend that “suspected” ought be articulated in the notion of – suspected by responsible authority.
GLEESON CJ: All responsible authority or any responsible authority?
MR TREE: A responsible authority.
GLEESON CJ: So if he could in fact bring along one person who is in a position of responsibility and that person says, “I suspect him of being the murderer of the Beaumont children”, that will prove the truth of the imputation?
MR TREE: If that were the imputation at trial that were left, yes.
HEYDON J: But would it not be suspected by the authorities charged with finding out who is responsible for the disappearance of the Beaumont children, the South Australian police ‑ ‑ ‑
MR TREE: Yes, that would be a more appropriate articulation of the imputation, your Honour, yes.
GLEESON CJ: But is it the imputation you are suing on?
MR TREE: That is as I would understand the imputation, your Honour, yes, but I accept that at the moment it is subject to criticism because of the way in which it is cast, I accept that.
GLEESON CJ: It is no small matter because what is currently restrained is the publication of any imputation by the defendant that your client is suspected by anybody of being the murderer of the Beaumont children, is it not?
MR TREE: Yes, your Honour, as I understand the way in which the case was fought before Justice Crawford it was essentially on that basis. I do not suggest for a moment that that is the proper way in which the imputation would go to trial.
GLEESON CJ: One of the reasons courts take so much care, to the surprise of some people, about being precise about the imputation in a defamation action is that it is only when you have the imputation framed precisely that you know what the defendant has to defend?
MR TREE: Yes.
KIRBY J: But it could not in its context mean a person in a mental hospital?
MR TREE: No.
GLEESON CJ: It could mean Mr Davie, could it not?
MR TREE: In the way in which it is presently cast it could perhaps be construed in that way but I would ‑ ‑ ‑
KIRBY J: Who is Mr Davie?
GLEESON CJ: A detective, is he not?
MR TREE: Retired detective, so I am told, and so the evidence discloses. I accept that at trial it is unlikely that the imputation is going to continue as it is presently loosely cast, I accept that.
GUMMOW J: You should not hang onto your injunction.
CRENNAN J: Because how would you judge whether there has been a contempt in respect of the injunction?
MR TREE: I daresay those are practical considerations, your Honours, but the reality is ‑ ‑ ‑
GUMMOW J: They are important considerations and they are not diminished by the pejorative “practical”.
MR TREE: No, I accept that, your Honour, but with respect, there are three imputations which have been agreed by the parties as arising out of it and the suspicion imputations relate only to two ‑ ‑ ‑
GLEESON CJ: And the other one all turns upon whether “multiple” means two or more than two.
MR TREE: Yes, that is so, your Honour. There is a debate between the parties as to what “multiple” means, whether it means the ordinary meaning of that word or whether there is some special meaning in the imputation.
GLEESON CJ: If “multiple” means more than one, there is not much question about the truth of the imputation, is there?
MR TREE: It is not that there is not much question about the truth. It might be that there was at least some evidence before the primary judge which at a preliminary level demonstrated evidence from which you could infer that there had been a second murder, ie, the confession to the other child’s murder.
GLEESON CJ: Is it the case that as far as the evidence goes the only reason your client has not been prosecuted for that second murder is that the authorities have taken the view that because he has been found guilty of one murder and sentenced to imprisonment for the whole of his life that is enough?
MR TREE: The evidence does not speak loudly as to what it was that motivated the authorities not to proceed, your Honour. It may be that that was it, as odd as that might be in modern criminal context, your Honours must remember, of course, that this is in the 1970s – in the mid‑1970s, and prosecuting authorities may exercise discretions differently nowadays.
GLEESON CJ: That seems to produce the consequence on analysis that we have three imputations, two of which suffer from this difficulty about the reference to suspicion being in the passive voice and one of which all turns upon whether “multiple” means more than one or more than two.
KIRBY J: That is not quite right. The first imputation is not in the passive voice. It is a noun - “is a suspect”.
GLEESON CJ: Suspected by whom, that is the problem, is it not?
KIRBY J: It is a question of the context, in the context. The fact that it is a neighbour up the street would not really be defamatory. I mean who cares if the neighbour up the street thinks that. It is a question of what is the imputation in the broadcast which is that he is a suspect. That, at least arguably, connotes a suspect of those whose suspicion is relevant, namely the authorities.
MR TREE: Yes. I would respectfully adopt that, your Honour.
GUMMOW J: Well, this order on page 214:
any part of the documentary known as “The Fisherman” –
You cannot frame an injunction like that – I suppose you can but you should not. Is it in evidence, is it an exhibit?
MR TREE: No, your Honour, it was neither tendered nor a transcript of it tendered. Your Honour will see that there was in evidence ‑ ‑ ‑
GUMMOW J: It is not the way these things should be done.
MR TREE: With respect, the Full Court and this Court is concerned with ascertaining clear error of principle and there is no challenge that is raised either at this level or at an intermediate level about that language that was adopted by reference to “The Fisherman”.
GLEESON CJ: The problem is that in this area of the law principles are often tested by reference to the form of relief that can be granted.
MR TREE: Yes, I understand ‑ ‑ ‑
GLEESON CJ: There is a relationship that I think you are currently being asked about between the principles that courts are to apply when making orders for prior restraint of publication of material, and the actual form of orders that they make.
MR TREE: Yes. Certainly there needs to be precision, clarity and moreover the actual form of the order must accord with the minimum amount of equity necessary to protect reputation and achieve free speech. If that is the source of concern for your Honours, I accept that, and it may well be that ‑ ‑ ‑
GUMMOW J: It is an injunction framed in terms of conceded ambiguity. No one knows what “multiple killer” means at the moment, no one knows what “suspected” means. You say it may go to trial in some other – touched up in some way or other.
GLEESON CJ: Would it be a contravention of this injunction if the ABC published a documentary that said that your client had signed a confession to the killing of the Wilson child? Would that put the ABC in contempt of court?
MR TREE: As I stand here, I do not believe so, your Honour, because it would neither impute nor imply anything in relation to the Beaumont children or that he is a multiple killer of children, on our characterisation of “multiple” meaning more than ‑ ‑ ‑
GUMMOW J: On your characterisation?
MR TREE: Yes.
GUMMOW J: All right.
MR TREE: I am not sure that I can really assist your Honours with redrafting the terms of the injunction.
GUMMOW J: I am not inviting you to.
MR TREE: It is there and we are – well, at least the respondent is stuck with it in its terms.
GUMMOW J: It shows the dangers that flow from a too “flexible” approach to this very important and careful jurisdiction.
MR TREE: With respect, it may not show the difficulties associated with the flexible approach. It shows the care which needs to be taken with casting orders. Your Honour, the alternative, of course, is to impose some rigid approach which, whilst it has the benefit of clear articulation, may not have the benefit of producing a just outcome in relation to the protection of reputation. That is the difficulty with the rigid approach.
GUMMOW J: Your colleague abandons that – the ABC seems to have abandoned that.
MR TREE: That is so, your Honour, but of course ‑ ‑ ‑
GUMMOW J: If they want to wash away a hundred years that is their business.
MR TREE: We are acutely conscious of the fact that merely because the parties choose not to ventilate that as an issue does not proscribe your Honours from articulating the law as this Court sees it.
Your Honours, the advantages of the ordinary approach of courts to injunctions have been set out in our written submissions and I simply remind your Honours that they are set out at paragraphs 19 to 23 inclusive, and those are the arguments that we advance as to why it is that the Beecham principles can sufficiently accommodate free speech, and that there is no need for any rigid imposition of principle over the top of it, nor is there any need for there to be some articulation of paramountcy or primacy or governing considerations. There is simply no need for it. The ordinary weighing of considerations ‑ ‑ ‑
GUMMOW J: Well, Beecham talks about “serious question”, does it not, rather than “prima facie case”?
MR TREE: In fact I think your Honours will see it talks about “prima facie case”, and in fact it is Murphy v Lush that talks about “serious question”. I may be mistaken as to that. I think “serious question” first comes in the American Cyanamid Case.
GUMMOW J: Yes, the American Cyanamid talks about “serious question”.
MR TREE: But Beecham, with respect, was prior to ‑ ‑ ‑
GUMMOW J: Yes, Beecham talked about “prima facie case”.
MR TREE: Yes. So far as I know the only articulation of this Court other than as individual judges that talks about “serious question” is Murphy v Lush.
GLEESON CJ: But are there not a number of cases in which judges have said, what constitutes a serious question to be tried or sufficient colour of right, or a showing – to use an American expression – will depend upon the context?
MR TREE: Yes.
GLEESON CJ: And indeed, what is a sufficient showing – to use that Americanism again – might be interrelated with considerations of balance of convenience?
MR TREE: Quite so, and my friends clearly articulate that and we do not disagree with that, but freedom of speech informs the degree to which there needs to be proof of a serious question or prima facie case, whichever be the articulation, and of course it clearly informs the balance of convenience. We do not disagree with that.
GLEESON CJ: All in a context where there has as yet been no decision as to whether or not the plaintiff’s rights have been infringed?
MR TREE: Yes, but also in the context that it was not merely a claim for damages that is sought but also injunctions to restrain the publication ever, and that is an important fact, we contend.
GLEESON CJ: Presumably, if you succeed at trial in getting your permanent injunction, no question of damages will arise?
MR TREE: Assuming that there has been no prior publication by the ABC, that is right. If there has been prior publication then there still will be the prospect of damages.
KIRBY J: Well, we were told this morning that it was accepted that there was prior publication. We are going to get a memorandum to that effect.
MR TREE: Yes. I am told that – I notice the piece of paper is floating around ‑ ‑ ‑
KIRBY J: It may have been a limited publication but a publication to a group of journalists is normally not limited in its ultimate outcome.
MR TREE: That is so. One assumes it was not intended to be confidential and not thereafter referred to.
GLEESON CJ: What is it that is restraining those journalists from republishing?
MR TREE: In respect of individual non-ABC journalists ‑ assuming, of course, the ABC did not show it to their own journalists - very little, your Honour.
GLEESON CJ: As I understand it, the substance of this documentary has already been published but you say it is only in southern Tasmania or something like that.
MR TREE: That is so. There has been a showing of it to a presumably limited audience at a film festival and there has been some agitation of issues in media in the south of the State.
GLEESON CJ: When you say only in southern Tasmania, that includes Hobart, does it not?
MR TREE: It does, your Honour. Yes.
GLEESON CJ: So, anybody in Hobart who was so minded could have attended the Hobart Film Festival and seen the subject matter of this broadcast?
MR TREE: Yes.
KIRBY J: Presumably anybody who reads the Internet tomorrow will have access to the publication of this Court’s transcript.
MR TREE: Yes. Your Honour, there was a suppression order made by the primary judge in relation to the publication of material that was tendered before the court including – a general suppression order, as I understand it.
GLEESON CJ: We are presumably not setting out to protect – well, are we protecting the respondent’s reputation amongst people who do not know him or know of him?
MR TREE: In part.
GLEESON CJ: At the moment he has no such reputation?
MR TREE: He has no reputation as a suspect of the Beaumont children, their disappearance.
GLEESON CJ: I understand that.
MR TREE: Yes. For those who do not know him he has no reputation. Your Honour is quite correct.
GLEESON CJ: And for those who do know him he is a convicted child murderer sentenced to life imprisonment.
MR TREE: Yes.
GLEESON CJ: I would like to be clear as to what it is we are protecting.
MR TREE: The injunction is protecting his reputation amongst those who know him from further damage and necessarily it also protects him from going into a negative reputation with those who do not know him.
GUMMOW J: It is really a confidential information case of a strange nature actually. You want to keep this quiet?
KIRBY J: You do not want to have your client called a multiple child murderer or suspect of multiple child murders.
GUMMOW J: Keep it quiet in the sense that it does not get to people who do not already know him.
KIRBY J: Until he is so found by a jury in a court of law.
MR TREE: That is so, your Honour. We say that this is not one of those cases where there is immediacy to the allegations. This relates to ancient conduct. That, in itself ‑ ‑ ‑
GUMMOW J: You would have real trouble with a confidential information case ‑ ‑ ‑
MR TREE: I am sure we would, your Honour.
GUMMOW J: It arises from ‑ ‑ ‑
MR TREE: I am sure it would be difficult to assert that we were coming with clean hands, your Honour.
HAYNE J: What does the age of the events have to do with anything given the nature of the subject matter?
MR TREE: Well, with respect, whilst the killing of a child will always be a grave matter, the fact that it is not in the context of an event that happened yesterday or in respect of someone who is at large in a community now, factors that are relevant to whether the public interest in being informed ought be outweighed on the particular facts. It simply says that if this was a matter that was an event that had allegedly happened yesterday and in respect to a man who was free in the community, clearly different considerations may arise.
GLEESON CJ: But this is one of Australia’s most notorious unsolved crimes.
MR TREE: Yes, but with respect, the allegation or the imputation is only that he is suspected - not that he has done it. So then you have to balance what is the benefit to the community of having publicity given to suspicion, suspicion which has not been acted upon by the relevant prosecuting authorities.
GLEESON CJ: Well, let us have it out on the table. Let us suppose that they had simply said there is a notorious unsolved crime in South Australia. A man who is suspected of it, Mr O’Neill, is at present serving a life sentence in Tasmania for the murder of another child and the prosecuting authorities do not think they have sufficient information to charge him with these murders.
MR TREE: Yes.
GLEESON CJ: Suppose it had been put as bluntly as that, how would you approach the considerations of public interest, free speech and individual reputation in that situation?
MR TREE: With a 40‑year delay between the commission of the ‑ ‑ ‑
HAYNE J: You speak of delay. Yes, time has elapsed. I know that. But delay is not to be applied as some pejorative unless sub silentio you are downplaying the worth of the alleged victims.
MR TREE: No, with respect, your Honour. If prosecuting authorities for many years have been aware of the suspected involvement of this man and have done nothing, then the lapse of time is a significant fact. It becomes stale material. Now, I am not sure that I am now at the moment answering your Honour the Chief Justice’s observation or question.
GLEESON CJ: No, I understand your answer. Thank you, Mr Tree.
MR TREE: Your Honours, there is no point attempting to hide from the fact that the conduct that is asserted that this man has engaged in is amongst the worst in the calendar of crimes. There is nothing that can be said to derogate from the significance of the asserted crimes but, with respect, that does work the other way. That makes it one of the worst accusations that has been levelled against someone and that in itself is a relevant consideration, we say, in relation to weighing the balance of convenience.
GUMMOW J: On this serious question of prima facie case it is worth having a look at Beecham actually, 118 CLR at 622, the joint judgment, one suspects written by Sir Frank Kitto, middle of the page, first question:
whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief –
This is the important part:
How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks.
MR TREE: Yes, your Honour.
GUMMOW J: That seems to me all you can say. It is a lot. It is all encapsulated in that pithy statement.
MR TREE: Yes. The only gloss that ‑ ‑ ‑
GUMMOW J: There is an academic game that goes on about serious questions in prima facie cases.
MR TREE: With respect, your Honour, the word I just used was “gloss” and that is exactly what it is. It is the same principle ‑ ‑ ‑
GUMMOW J: That helps explain why these defamation cases do have a special character about them because of the nature of the right involved and of the practical consequences of the interlocutory order.
MR TREE: Yes. But, with respect, your Honour ‑ ‑ ‑
HAYNE J: The difficulty of demonstrating likelihood of success because of the issues that are necessarily involved in all save the very clearest of defamation cases.
KIRBY J: But those cases wrap up in themselves the antithesis that has to be resolved, freedom of the press and of speech and the entitlement of people to be protected in their honour and reputation.
MR TREE: Yes.Your Honours, with respect, this debate is in the context of what are the principles, not how they ought be weighed. The principles, we respectfully say, are adequately identified by saying that there are matters which need to be taken into account and identifying that free speech ought be given great weight in the ordinary run of cases. With respect, to point then to difficult cases in which the weighing of the balance will be difficult or controversial does not, with respect, assist in the articulation of principle. It is the principle which ought govern their application, not vice versa.
KIRBY J: I realise that the appellant does not rely on the constitutional free speech cases, so‑called free speech, but the common law develops in the context of constitutional law and statute law and given that this Court, including in Lange and other cases has developed and expressed a constitutional principle which, it is probably fair to say, is more protective of free speech and freedom of the press in matters to which it applies, it does suggest that the common law of Australia has advanced if not to the point that the United States jurisprudence has embraced, at least to a point where there is a greater sensitivity to the importance to our form of society in the federal Constitution, representative democracy of free expression.
MR TREE: Yes.
KIRBY J: Therefore, we do not come upon this problem now without regard to the constitutional principle.
MR TREE: Yes.
KIRBY J: It is a matter that has to be expressed in an Australian context in a way that will be consistent with that particular category of the balance between free expression and individual rights which has embraced a greater sensitivity to the expression in constitutionally protected speech of a more vigilant kind. Now, what is the relevance of that for a case such as the present? I am not trying to lead you into a full debate about the Constitution.
MR TREE: No.
KIRBY J: It is, as it were, part of the jigsaw.
MR TREE: It is, because it will inform the ambit of common law protection that would or that should apply to cases such as this. I accept that the constitutional ‑ ‑ ‑
KIRBY J: There is something to that effect in Lange that the common law cannot in Australia develop in a way that is inconsistent with the constitutional principle.
MR TREE: That is lopsided, that is so, your Honour, yes. Moreover in Lange there is also the advertence by the Court to the fact that one of the considerations is also the development of mass media and the way in which it develops into the future, so that it cannot be an area that is stagnant because of the nature of communication – the nature of communication, the nature of developing political considerations. I am not sure that I am necessarily ideally grappling with your Honour’s concerns, but we certainly accept that the principles articulated in Lange are of some assistance in gauging the way in which the common law should develop.
KIRBY J: They do, however, tend to give greater weight to the special category of the importance of free expression in Australia beyond that which was expressed before the free speech cases came on the scene.
MR TREE: Well, certainly there is an identified area of constitutional protection and certainly that has caused a growth, if one can use that term to describe the development of the common law which mirrored it.
KIRBY J: All I am saying, Mr Tree, is that it would appear, at least conceptually, to be a bit odd to have that principle of constitutional law and then for the common law in non‑constitutional cases to embrace a different principle. I mean, it could be done. You could say we are just very protective of constitutional free speech in matters of politics and economics and therefore they are in a special class and we leave them alone and they are dealt with on that basis. I suppose that is what you submit, but it is an odd way to develop the law of – the balance between free speech and reputation in this country.
MR TREE: No, I would respectfully accept that and indeed Lange says that, that the two should be developing hand in hand, if I read the decision correctly, and that seems to be the position articulated by this Court, that the constitutional protection informs the common law protection.
I then wanted to briefly remind your Honours of paragraphs 32 and following up to 38 at page 7 of the summary of argument which sets out what it is said to be the considerations which here outbalanced the consideration of freedom of speech in this case. I do not stay to take your Honours through them in detail. Suffice to say that this was not a case where there was no countervailing consideration. It was a case where there were substantial and numerous countervailing considerations. So it is not the case that there was some clear failure to give weight to freedom of speech here; simply that there were other factors which in the course of the exercise of the discretion were balanced with the freedom of speech.
Your Honours, my friends do not seem to have identified, at least orally, much argument in relation to ground 3 of the appeal and hence it is probably unnecessary for me to develop orally the material that is at paragraphs 39 to 45 of the summary of argument, but I did wish to spend a moment reminding your Honours that there is a line of authority which is referred to at paragraph 42 which talk about the public benefit in effectively raking up old matters. That line of authority has consistently spoken ‑ ‑ ‑
KIRBY J: I think this is a rather weak line of argument, if I can say so, Mr Tree. I think the Chief Justice has put his finger on this, and Justice Hayne. The fact that it is old merely adds to the puzzlement of an unsolved murder so that it does not really remove it from matters which otherwise are of legitimate public discussion and consideration. After all, human beings can make mistakes. Prosecutors, police and others can fail to be diligent and fail to investigate properly, and that is at least a possible argument for saying that in such matters it is a legitimate consideration in a society such as ours for a broadcaster to place material before the public so that they can make their own judgments about it.
MR TREE: I accept that this is quite different to the cheating at poker suggestion in relation to the Snowtown murders. This is of a different character, I accept that, and public interest will necessarily depend upon the context of the communication or the content of the proposed communication.
Your Honours, the only remaining matter that I wanted to provide some oral submissions in relation to is the question of the degree of proof which the Court ought have before it before accepting that the attempt at justification is sufficiently made out to not grant an injunction or to refuse to grant an injunction. Now, your Honours will remember I took your Honours to a couple of passages – I think the clearest was in Jakudo which talks about how it is that a court must be satisfied and that mere assertion may not necessarily be enough.
Whilst we do not say that there is any clear rule as to the degree of proof which needs to be obtained in any particular case, we do say that it will depend upon the particular allegation involved and the gravity of it. So that if it were merely cheating at cards, perhaps it would be sufficient to assert it from the Bar table that it was true and for the public benefit. For a more heinous matter it may be that there is need to go on oath. But, with respect, for a claim that someone is a multiple killer and suspected of the Beaumont murders requires something more than an assertion from the Bar table.
Whilst we do not say there is any clear threshold that needs to be achieved in every case, in this case we say that clearly there is a need for something more than an assertion from the Bar table that at trial there is an intention to prove truth and public benefit. This was a case in which clearly there needed to be evidence placed before the court.
KIRBY J: We, of course, are not sitting here to exercise this as if it is at first instance. We are sitting here as the final court to review what the Court of Appeal has done.
MR TREE: Yes.
KIRBY J: Now, the nominated ground of error is the ground of the failure of the majority in the Court of Appeal to give due weight to the free speech, a consideration. Are there any other passages in the opinion of Justice Blow that you would point to to indicate that according to the non‑special principle that you embrace that Justice Blow adequately did direct his attention to free speech, or is there something in Justice Slicer’s dissenting opinion that indicates where his Honour felt that an error had been made in the weight and consideration given to that factor?
MR TREE: Well, certainly in the case of Justice Blow there is two things. There is firstly an extensive discussion of the relevant authorities. That commences at pages 15 of the Full Court’s decision and following. So there is clear advertence to the importance of free speech as identified in those authorities. What then occurs is his Honour descends to discussing in detail individual grounds and at paragraph 72 his Honour identifies the reasoning that he distils in relation to ground 1 and why it is not made out. So, although it is correct to say that his reasoning is in paragraph 72, it is also in the preceding paragraphs which deal in detail with the relevant authorities, all of which identify the importance of free speech in varying phrases.
KIRBY J: Well, 53 is an important one in that respect where he is recounting that ever since the 19th century certain matters have been given weight:
The special practices adopted in such cases result from the need to protect freedom of speech and freedom of the press –
Now, does he ever say that he does not accept those special practices? He then goes on to identify the two lines of authority which he describes as “inflexible” and “flexible”, embraces the flexible but he does not, I think, ever suggest that those considerations are not very important considerations.
MR TREE: No, quite so, your Honour.
KIRBY J: I mean, it would be hard for a judge in Australia to say otherwise.
MR TREE: Quite so. So that there is no statement in which he says there should not be great weight given to the consideration of free speech. He does not say that.
KIRBY J: What was the error that Justice Slicer felt authorised him to set aside the decision and orders of Justice Crawford?
MR TREE: It is a little difficult to identify. It certainly was not a rejection of the rigid approach. It seems to be more founded in perhaps the weighing of the weight to be given to free speech. His Honour does not approach it in the same way as Justice Blow does.
KIRBY J: Justice Slicer does say at paragraph 38 that in his opinion, though it is not the only consideration, “it remains a compelling factor”.
MR TREE: Yes.
KIRBY J: So he does seem to accept the compelling quality of that factor in the equation.
MR TREE: Yes, your Honour.
KIRBY J: Therefore the fundamental basis of his reasoning appears to embrace the submission that has been put to us by the appellant. “Compelling” is a strong word.
MR TREE: It may be that there is a difference of that kind between Justice Slicer and Justice Blow. Certainly the word “compelling” does carry with it a notion of paramountcy or primacy.
KIRBY J: So is that the issue of law that is presented to us? Given the language of the statute, given the elaboration of the cases and the point we have reached in Australia with the different opinions, the question is whether the primary judge erred, as Justice Slicer felt he had but the majority felt he had not, in failing to elevate freedom of the press and freedom of speech to a compelling or decisive factor.
MR TREE: Yes, that appears to be the difference at the Bar table between the parties. My friend says it ought ordinarily, I think he would say, to make allowance for exceptional cases, be effectively a trump card. That one only needs to assert or perhaps in some cases prove an entitlement and that itself would be sufficient then to displace all other countervailing considerations.
KIRBY J: Well, Justice Slicer specifically denies that it is a trump card, but he says it still remains a compelling factor.
MR TREE: We certainly do not distance ourselves from the notion of “compelling”. It is a factor to which great weight needs to be given. But to then try and elevate it to some consideration which outweighs all others except in exceptional circumstances is to give it a role which is inconsistent with the balancing process of interlocutory injunctions, particularly in the nature of restraint or prior restraint of defamation.
KIRBY J: What if one were to say free speech and free expression are compelling factors but so also is the protection of honour and reputation? Where does that leave the balance to be struck?
MR TREE: It leaves the balance to be struck by weighing those factors rather than giving one in advance some pre-eminence, and that is the approach which we urge is the proper principled approach.
KIRBY J: What do you say about the contention that your client had no reputation to lose?
MR TREE: We say that, even notwithstanding the fact that he was a child killer, he still had reputation to lose. He would be thought worse of if he were a multiple killer. He would be thought worse of if he was identified as a suspect of the Beaumont children. He still had reputation to lose.
GLEESON CJ: I think this was raised at the special leave application, but what was the statute in Tasmania that took away the disqualification upon convicted felons of suing?
MR TREE: That was a matter that was raised in the court below. I do not have that readily to hand, I am afraid, your Honour.
KIRBY J: It is at the beginning of Justice Blow’s reasons, I think ‑ ‑ ‑
MR TREE: It is the Prisoners (Removal of Civil Disabilities) Act, I am told, your Honour.
KIRBY J: Or it might be Justice Slicer’s reasons.
MR TREE: It was a matter that was raised, as I recollect it, at the start of ‑ ‑ ‑
GUMMOW J: Page 222, line 25.
MR TREE: Yes, your Honour is quite correct.
GUMMOW J: He needed leave.
MR TREE: Yes, that is so. Unless there is anything further, your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Tree. Yes, Mr Whitington.
MR WHITINGTON: Can I be very brief. In relation to the errors identified by Justice Slicer, we would also draw attention to paragraph 34. That is the first matter. Secondly, my learned friend said that there needed to be evidence of truth below and there was not. As I am instructed, that point was not taken in those terms below but, in any event, there was evidence. My client tendered the confessions and the other defendant tendered the newspaper articles, and there is an express finding by Justice Crawford at page 211, paragraph 24, that the defences of truth could be made out, paragraph 24 starting near the end:
Obviously there will be little difficulty in proving that the plaintiff is suspected –
and so on. No doubt his Honour there was attending to the very broad nature of the imputation and the fact that it was cast in the passive voice.
HEYDON J: You say that the newspapers go to the question of being suspected, do you? I could be wrong about this, but I got the impression the newspapers were tendered to show that the reputation was either non‑existent or fragile.
MR WHITINGTON: I think that is strictly so, your Honour, and there was a concession made by the plaintiff’s counsel at first instance that the newspaper articles had affected his reputation. The Court knows that in an ordinary defamation matter at trial, it is not enough to tender evidence of somebody else’s statement about the plaintiff; what is necessary is evidence of reputation. But here one can infer from this material evidence about reputation at trial. In addition, we rely, as I understand it, on this material as going to justification as well.
HEYDON J: But how can it?
MR WHITINGTON: Then my learned friend in paragraph – I am sorry, your Honour, I did not ‑ ‑ ‑
HEYDON J: How can it go to justification?
MR WHITINGTON: How can it?
HEYDON J: If it is tendered only to show an absence of reputation, how can it go to prove the truth of the facts asserted, which is what you would have to do to establish justification? I appreciate you have two confessions which, though attacked, there was no evidence to challenge their voluntariness or anything like that. But how can the newspaper articles go to justification?
MR WHITINGTON: I would have to concede that if they were tendered for a limited purpose and that was made express and they were not available to be put to any other use, then that other use would be denied. Certainly his Honour does not appear to have treated them as so confined because of that passage I took the Court to in his reasons at paragraph 24.
HEYDON J: Mr Gunson on page 126 tendered some more articles on the second day of the hearing. He said he did so in line 17:
receive it on the basis I have given it to you.
On the previous page he said:
those articles clearly show that all of the defamatory imputations have previously been published and are in the public domain –
That seems to be a limitation to that point.
MR WHITINGTON: I think I am bound to say if they were received only for a limited purpose, then they may not be capable of being put to some wider use. The only question here really is whether the ABC asserts on some tenable or credible basis that it intends to and is capable of adducing evidence to prove the suspicion. We would say in the circumstances of this case it would be really unsound to receive the material and shut out the ABC from relying on it as doing no more than indicating that it had a basis for proving a suspicion in due course.
In any event, if we are forced back to excluding that evidence, I simply make the point that it was not put to us in the circumstance of this injunction that we had not followed some appropriate course. We consented to a procedure being adopted whereby the capacity of imputations to arise was agreed so that the matter could proceed expeditiously ahead of our intended broadcast date. We say it does not now ‑ ‑ ‑
KIRBY J: Can you give me an idea of a case – this is to test the trump proposition – where an interlocutory injunction could be issued against your client where you had decided that it was in the public interest that it be broadcast? If Marsden and this case do not qualify, what is a case that does?
MR WHITINGTON: That qualifies for an injunction?
KIRBY J: What, because he was a cricketer?
GLEESON CJ: Because the matter was private. That is the basis on which Justice Hunt, extraordinarily for Justice Hunt if I may say so, granted prior restraint in that case because there was gossip about alleged sexual activities of a celebrity.
MR WHITINGTON: And perhaps extraordinarily for Justice Hunt, he had a change of mind as well and he was perhaps forced into a change of heart in relation to his approach by the ‑ ‑ ‑
KIRBY J: No, he was doing what a judge should do, which is to consider principles when he has a new factual problem where the principles do not appear to fit very well.
MR WHITINGTON: I think it is fair to say Justice Hunt had a very strong prior attachment and commitment to the strict Stocker approach, but I think what influenced him in Chappell was, with respect, the matter the Chief Justice has adverted to. That is, it was salacious material which had no public interest element at all and it was advanced by Channel Nine on the basis that they were showing what a yellow rag the Truth was. It was a story put forward under the guise of showing that the Truth newspaper had a practice in effect of defaming people.
I think they interviewed for the program the editor of the Truth who said, “We’ve done this on a number of other occasions and this is our practice”. So his Honour found that the purported public interest component of the program was spurious and there could only be a morbid or prurient public interest in it. For that reason he saw no public interest element justifying the injunction.
KIRBY J: So revelation of rumours about a cricketer’s sexual life is deserving of the prior restraint but allegations of a prisoner being suspected of multiple murders is not?
MR WHITINGTON: Yes, because I would say that ‑ ‑ ‑
KIRBY J: That seems to be falling into the error of elevating cricketers into a special category.
MR WHITINGTON: Certainly we just elevated one particular cricketer over ‑ ‑ ‑
KIRBY J: I mean, I am not saying that Australians do not sometimes do that.
MR WHITINGTON: But the question is why we have elevated the cricketer over the prisoner in this case. The reason that has been done we say is a matter of principle.
GLEESON CJ: Cricketers as a class tend to have better reputations than prisoners.
MR WHITINGTON: Yes, that is one aspect.
KIRBY J: Yes, but prisoners are individuals entitled to their human dignity and human rights and protection of the law.
MR WHITINGTON: That is so, but we would respectfully submit that offending certainly at a serious level is always a matter that in the loose sense is in the public domain, is always a matter of public interest. The private affairs of individuals which do not have any bearing upon their public roles, as Justice Hunt said in Chappell, is not a matter in the public interest in the wider sense as he was analysing that concept for the purpose of injunctions.
We would say that about any public figure. The fact that you are a public figure like Mr Chappell does not make you fair game. On the other hand, if you commit murder, then you must expect public exposure. It is not a matter of elevating one case over the other; it is a matter of identifying the principle. The principle, we say, is that there can be a public interest component. That of course is informed by the concept of freedom of speech, both from the point of view of the individual who is wanting to speak and the point of view of the community who has the benefit of information in debate that ensues.
That brings me to say my learned friend was wont to say that our argument in that respect was not addressing any matter of principle. That is almost a semantic point, with respect. His argument appeared to proceed along these lines, that we are in the area of injunction. There are really three rules or principles for the grant of an injunction. They go to the prima facie case, the issue of adequacy of damages and the issue of the balance of convenience, and after that all else is weight. So, when we identify another relevant matter, he says ex hypothesi it cannot be principle, it has to be weight. We say that is a semantic argument and when viewed properly to explore ‑ ‑ ‑
KIRBY J: He is really just criticising your submission that it is a principle. He says it is a factor, it has importance, it has great importance, it has weight, but it is a mistake to elevate it into a legal principle. That is what Dr Spry said and it was what the Chief Justice was suggesting earlier today was the mistake of common lawyers getting their hands on broad discretions and equitable principles and trying to force them into the boxes of particular rules which common lawyers love to have.
MR WHITINGTON: I thought, with respect, the Chief Justice’s point was that to allow principle to be ossified as rules is to really destroy the discretion but that nonetheless principles which inform the grant of injunctions in this area do not stop with the three limbs of Beecham or American Cyanamid.
KIRBY J: Do you look at Canadian cases here? I suppose they are affected by the Charter now?
MR WHITINGTON: They are. We can give the Court references if need be. We have had regard to the Canadian textbook, Brown on Defamation, and we can provide the Court with extracts from that if that would be of assistance.
GLEESON CJ: You can do that within seven days.
MR WHITINGTON: Yes. Can I briefly refer to my learned friend’s written submissions at paragraph 42. Can I very briefly say the cases he refers to are clearly distinguishable. Channel Seven v Draper was a suppression order case under the South Australian regime where the majority introduced contempt considerations into the law of suppression orders and Justice Besanko said in dissent impermissibly so, but that really is of no assistance here.
As to Cohen, the passage my learned friend refers to comes from Justice Taylor in dissent and we say that the majority assists us. As to Howden v Truth, my learned friend cites a passage from Justice Evatt’s reasons in the High Court but he makes a critical distinction at page 430, halfway down the page, where he says that delay or staleness about raising a matter may be relevant if a person has been tried and convicted. To go back over a trial and conviction may not be in the public interest. That says nothing about the case where there has not been a trial at all. Donkin is an old Queensland case that really has no bearing on this.
Can I just make one very final point in response to something the Chief Justice raised with my learned friend. That was about the currency of circulation of the allegations in the media. We are not entirely sure on what basis it is said that the media publicity in Tasmania would be confined to southern Tasmania. But in any event, there is one matter I wanted to inform the Court of in that context and that is that we did take out an application late last year to lift the injunction. The court declined to hear it, as I understand it, because this matter was before the High Court. The basis of that application was publicity in the Melbourne Age which was also available on the internet and still is available on the internet. I am sorry, it has gone now.
GLEESON CJ: Just before you conclude, have you made any advance on the question of agreeing on that fact that we discussed this morning?
MR WHITINGTON: I think the answer is no, but we will do that very shortly.
GLEESON CJ: If that can be done within seven days also and give us a note one way or the other on whether there is agreement about that.
MR WHITINGTON: Yes, certainly, your Honour.
KIRBY J: Could I ask do you agree that you have to establish either that the primary judge acted on a wrong principle or made an order which works a substantial injustice to you? That is how Justice Blow begins his reasons.
MR WHITINGTON: Yes, I think that ‑ ‑ ‑
KIRBY J: You only rely on the first part, the wrong principle, is that correct?
MR WHITINGTON: That is where we put our primary weight, but we would say it is an injustice to us to be kept out of our right to speak freely and we do say in our written submissions that speech delayed is speech denied, so an injunction in those circumstances is unjust.
KIRBY J: Do you agree that, leaving that question aside, in terms of the wrong principle, that unless you can establish a distinct, special or compelling principle of freedom of the press and freedom of speech that the wrong principle on which you have hung your hat has not been made out in this case?
MR WHITINGTON: I think I am bound to say that is right. That said, it must be seen in the context of defamation and interlocutory injunctions to restrain defamation.
KIRBY J: What do you say about the suggestion that yes, freedom of speech and freedom of the press are distinctive and compelling principles but so is protection of honour and reputation in a society such as ours?
MR WHITINGTON: If that were so, there would not be the line of special defamation cases that there is because every defamation ‑ ‑ ‑
KIRBY J: Forget those. We are now looking at this as a matter of concept and principle in this Court.
MR WHITINGTON: That may be so, but the fact that there is a long line of defamation cases either in the so‑called rigid rule line here and elsewhere or in the flexible approach line saying that only in special cases would an injunction be granted, or an injunction should only be granted with special care, indicates that there is a special consideration that arises in defamation cases, and that is always against the background of the implicit right to reputation. So when that is appreciated, it is clear that there is, if not a rule, then a very strong principle that the balance clearly favours publication over reputation except ‑ ‑ ‑
KIRBY J: But surely it depends on the particular case.
MR WHITINGTON: Where the desire to speak is on a matter of public interest or concern. If the desire to speak, the claim to free speech, is in an area of purely salacious material involving an individual in a way that has no effect upon their public persona or behaviour, then it is a different case. But we say that the principle of free speech and the community interest in freedom of speech is given real point in the context of an issue which is of public interest or concern. That is how Chief Justice Doyle put it in Jakudo’s Case. If the Court pleases.
GLEESON CJ: Thank you, Mr Whitington. We will reserve our decision in this matter and we will adjourn for five minutes in order to enable people to rearrange their papers for the next case.
AT 3.45 PM THE MATTER WAS ADJOURNED
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