Australian Broadcasting Corporation v O'Neill

[2005] HCATrans 1029

[2005] HCATrans 1029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H2 of 2005

B e t w e e n -

AUSTRALIAN BROADCASTING CORPORATION

Applicant

and

JAMES RYAN O’NEILL

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 DECEMBER 2005, AT 9.46 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON, QC:   May it please the Court, I appear with my learned friend, MR J.M. HORTON, for the applicant.  (instructed by Murdoch Clarke)

MR P.W. TREE, SC:   May it please the Court, I appear with my learned friend, MR J.E. GREEN, for the respondent.  (instructed by Hobart Community Legal Service)

GLEESON CJ:   Mr Tree, we thought it would be convenient to hear from you first.

MR TREE:   Thank you, your Honours.  Your Honours, this is an interesting application because it involves the interface between tort, equity and criminal law and, hence, necessarily it involves interesting questions for determination.  Indeed, it involves conflicting rights, and particularly your Honours would be conscious that it involves potentially conflicting rights to reputation.  It involves a right to free speech on the part of media outlets and individuals.  It involves the right of free and general discussion of public matters and ‑ ‑ ‑

GLEESON CJ:   You are for the respondent, are you not?

MR TREE:   Yes, I am, your Honour, and I am not trying to sell the application to your Honours.  I am trying to identify that there are strengths to it, but then identify why it is that this is not the appropriate vehicle for those strengths to be ‑ ‑ ‑

GLEESON CJ:   I think we are conscious of the strengths.  Why do you not come to your best point?

MR TREE:   Thank you, your Honours.  I wanted to remind your Honours that the way in which this comes to the Court is by virtue of an interlocutory injunction that was granted and then reviewed in the Full Court which, as your Honours would be cognisant from the decision of Justice Blow, involved two potential areas of review, firstly, whether there was an injustice that was brought by virtue of the exercise of the discretion – and that does not seem to be an issue ventilated in this application – and secondly, there was the question as to whether or not there was an error of principle.

Now, the argument that deals with error of principle really seems to come down to the question of whether there was sufficient weight identified as being appropriate to attach to the question of free speech.  That seems to be where the question of principle is said to be articulated.

GUMMOW J:   Now, is there any advertence at any time in this to Lange?

MR TREE:   No, your Honours, there does not seem to have been any substantial discussion of that at either level below.

GUMMOW J:   You say no substantial discussion.

MR TREE:   In fact, I am told there is none at all.  I thought that there was a passing reference to it in I thought it may have been Justice Slicer’s dissenting judgment in the court below, but I may stand to be corrected on that.

GLEESON CJ:   Can I just clear up one question of fact.  I am not suggesting anything turns on it, but I just want to be clear in my own mind.  When was the death penalty abolished in Tasmania?

MR TREE:   I am told 20 or 30 years ago.  I was not in practice.

GLEESON CJ:   There was no death penalty available when your client was sentenced?

MR TREE:   Not that I am aware of, your Honours, no.

GLEESON CJ:   Thank you.  I was just concerned to ensure that the case of Dugan v Mirror Newspapers was not engaged.

MR TREE:   Not that I am aware of, your Honours.  I am told that there was no risk of death penalty in the case that this arises from.

GLEESON CJ:   Thank you.

MR TREE:   Your Honours, I was moving to the point to say that the argument that is identified by the applicant here, we say, properly construed is a question simply that there ought be some rule as to the weight to be given to the right of free speech.  Now, that was clearly identified by the Full Court below and hence it could not be said that their articulation of the principles involved error.

Can I remind your Honours that in fact there may have been some slight change in the position identified by the applicant.  Can I take your Honours, please, to page 43 of the application book, paragraph 68 of the decision of Justice Blow, with whom Justice Evans agreed.  Paragraph 68 reads:

Counsel for the appellant did not contend that the rigid approach should be preferred to the flexible one.  In fact Mr Whitington SC submitted that there was no error in the following paragraph of the reasons of the learned primary judge –

and whilst I will not stay to take your Honours through that in detail, your Honours will see it refers to the two principal authorities, most notably those of Justice Hunt in Scientology and Chappell, and continues to say:

a number of English cases in support of the proposition that the power to grant an interlocutory injunction to restrain an allegedly defamatory publication should be exercised with great caution, only in very clear cases and usually not in cases where the defendant asserts that it has good defences.  But as was made very clear by ‑ ‑ ‑

GLEESON CJ:   May I interrupt you to say that last rider is particularly important, is it not, where a defendant justifies?

MR TREE:   Yes, your Honour.

GLEESON CJ:   There is a defence of justification in this case, is there not?

MR TREE:   It is asserted, your Honour, yes.

GLEESON CJ:   Pleaded.

MR TREE:   That was so, yes.

GLEESON CJ:   Does that mean that in this case the defendant is, according to its pleadings, undertaking to set out to prove that your client is responsible for the deaths of the Beaumont children?

MR TREE:   As I understand it, that is the task that they have embarked upon, at least in the pleadings.

GLEESON CJ:   Yes.

MR TREE:   I was then just going to remind your Honours that Justice Blow remarked that:

However, whilst acknowledging that some flexibility of approach is sometimes appropriate, the submissions of the appellant were largely consistent with the rigid principles that emerge from the English authorities.

So the point that I am making is that, as I say in paragraph 2 of the summary of argument, although there is in the appropriate case a special leave question that does need determination – and that is made clear from Justice Blow’s reasons themselves – this is not the appropriate vehicle because it appears as though neither party is asserting that the rigid approach as prevails in Queensland, and arguably Western Australia, is the proper one.

So that really you have before you two parties who contend for the same principle and insofar as there is a difference between them, it is a difference as to what weight should be accorded to the question of free speech.  Now, that is why we say this is not the appropriate vehicle for the determination of what is no doubt a proper special leave point.  I am conscious, your Honours, that even though neither party contends for the rigid approach, that would not stop this Court from dealing with it or, indeed, preferring an approach other than those two proffered by the authorities.

GLEESON CJ:   One of the difficulties about prior restraint in the area of defamation, which is really identified by that principle you referred to on the top of page 44, is that there are all sorts of unresolved issues in the case at the time the injunction is sought, in this case an issue of justification which in Tasmania involves truth and public benefit, I think.

MR TREE:   That is so.

GLEESON CJ:   So that the judge who grants the injunction to restrain the publication is, by hypothesis, doing so without having addressed that issue at all.

MR TREE:   Other than adverting to it as a pleaded defence, yes that is so, your Honour.

GLEESON CJ:   Other than knowing it exists.

MR TREE:   Yes.

GLEESON CJ:   If you apply the principle set out on the top of page 44, that is “exercised with great caution, only in very clear cases and usually not in cases where the defendant asserts that it has good defences”, how does that produce a result in your favour in the circumstances of this case?

MR TREE:   It does so, your Honours, because of the extraordinary circumstances of this case.  We do not say that that principle does not apply.  We say that notwithstanding the weight which that articulation commands, there are circumstances of such extraordinary moment in this case that notwithstanding the strength of that proposition it was appropriate for the grant of the injunction, and I refer to those ‑ ‑ ‑

GLEESON CJ:   What are those circumstances?

MR TREE:   They are set out in the summary of argument at application book page 71, where your Honours will see under the heading “Alternative scenarios”, there are a number of factors which are proffered as leading to, we say, an inevitable determination in favour of the respondent even if the rigid approach were to apply and even on the most severe reading of the flexible approach.

In a nutshell, it really comes down to this.  To have the imputations that this broadcast would carry with them in the public domain prior to any trial would subvert the prospects of Mr O’Neill ever being able to have a fair trial in relation to any criminal matter that may be ultimately alleged against him, and that is really to do nothing more than subvert the interests of justice of a fair trial under the guise of free speech.  So what we ‑ ‑ ‑

GLEESON CJ:   What is your client’s current custodial status?

MR TREE:   I understand that he is still in custody in Tasmania.

GLEESON CJ:   But serving a life sentence?

MR TREE:   Yes.  He has not been resentenced that I am aware of, your Honours.

GLEESON CJ:   Under your legislation does life mean life?

MR TREE:   Yes, although I understand that there is the prospect of an application to resentence by virtue of recent – when I say recent, in the last five years or so – statutory provisions.

GLEESON CJ:   Thank you.

MR TREE:   So there is a substantial prospect if these matters are ventilated that any criminal trial involving the respondent would be thwarted by virtue of no doubt the extraordinary publicity which the series of allegations which are apparently made in the broadcast against him would carry with them.

Now, your Honours would be conscious that it would not necessarily be the case - in fact it would probably be unlikely the case - that Tasmania would be the venue for any criminal trial in relation to the Beaumont children, although one does not know the facts as to exactly where any criminal activity is said to have occurred, but certainly this is a case which has some potential national significance, and of course given the prominence of the Beaumont children’s disappearance all those years ago would inevitably carry with it a vast degree of public interest in the broadcast.

So for those reasons we say that this is an extraordinary case.  Under the guise of free speech one is potentially undermining the prospects of a fair criminal trial, and that is the extraordinary circumstance which ought motivate a court dealing with this application at any level to recognise that it is nigh inevitable that the application for the injunction was an appropriate one and ought to have been acceded to.

There is the subsidiary question, and that is whether it would be possible for a fair jury trial of this action to proceed after the broadcast had been made, but that of course does not loom as large as the prospects of a criminal trial not being able to proceed fairly, and I do not suggest for a moment that it should have an identical weight.  But that is why we say, even given the strength of the articulation in the cases that support both the flexible and the rigid approach, that this is one of those cases that would fit within the exceptions anyway.

Your Honours, I am conscious that I have moved some little way from the summary of argument, but I did wish to ‑ ‑ ‑

GLEESON CJ:   We have read the summary of argument.

MR TREE:   Yes, thank you, your Honours.  There is only one other matter that I wish to address your Honours in relation to, and that is the question of costs, but it may well that that is a submission that can await your Honours’ determination in relation to the application generally.

GLEESON CJ:   You say whatever you want to say about costs.

MR TREE:   Your Honours will be conscious that in the summary of argument there is a special order that is sought in relation to costs.  Your Honours will no doubt be cognisant of the fact that there is inevitably a disparity of resources between the parties to this litigation.  The applicant seeks to have the benefit of an order in its favour in circumstances where it is clearly the better resourced of the two parties.  In those circumstances alone, it would incline this Court, in my submission, to look very carefully at the need to have that imbalance redressed so as any point that is allowed to be raised on appeal can be properly argued, and properly resourced by the parties.

If that is not enough, then we say that clearly this is an issue which is of general interest to the applicant and, although it is not strictly a test case, it is akin to that and it would seem unlikely that the applicant would be

pursuing this application and this appeal simply in relation to this issue.  It could just as easily have devoted its resources to going to trial if it was motivated only to overturn the result of this case.  So it appears as though there is likely to have been some broader purpose identified by the applicant as justifying this application.

Therefore, in those circumstances we contend that it is appropriate for both of those reasons that the applicant, in the event that the application is granted, pay the respondent’s costs in any event and, further, that it undertake not to disturb the cost orders in the court below.  Those are the reasons that we advance in support of that proposition.  Unless there is anything further, your Honour, those are the submissions on behalf of the respondent.

GLEESON CJ:   Thank you, Mr Tree.  Yes, Mr Whitington.

MR WHITINGTON:   If the Court pleases, I can be very brief.  First, in relation to the last matter, I am instructed to offer an undertaking in the terms sought in paragraph 15 of the submissions.

GUMMOW J:   That is his costs?

MR WHITINGTON:    Yes, at page 72.  Secondly, this matter does raise very important questions about the appropriate principles to be applied.  My learned friend is correct to say that the majority made reference to what we say are the appropriate principles.  The difficulty, however, is that they came to apply those principles at paragraph 71 on and from that point we say really only made a passing reference to the relevant considerations and did not give them any force.

That, we say, arose from a failure by the majority to appreciate the basis of the old so-called rigid rule approach.  That rigid rule approach was rooted in certain considerations that gave rise to a perceived need for rigid rules.  The fact that the rigid rule approach may have been abrogated has not abrogated the underlying considerations that gave rise to it.  Fundamentally, the most important consideration was the interest of free speech and communication in the community on a matter of public interest.  That issue has not gone away.  The only question is how it should manifest itself in the exercise of a judgment as to whether or not an interlocutory injunction to restrain publication should be given.

GLEESON CJ:   Public interest does not mean public curiosity.

MR WHITINGTON:   No, I accept that, but it means a topic of real moment and proper for public debate.  This publication concerns a topic of real moment for public debate.  It concerns allegations that a man has committed one murder in Tasmania for which he was charged but never ultimately taken to trial, that he has committed other serious crimes of a like nature in Victoria, that there is evidence to suppose he has or may have committed other like crimes in South Australia and Western Australia.  That raises questions of real public interest, whatever the test of public interest.

We say this is not a matter of mere prurience, a matter of a documentary producer seeking to titillate the public.  There are real issues here about the criminal investigation process and the history of crime in this country and that is the reason why my client sees fit to want to ‑ ‑ ‑

GUMMOW J:   We do not seem to have the pleadings in the application book.

MR WHITINGTON:   No, your Honour.  Certainly at the time the matter came before the judge on the original application for injunction there may not have been a statement of claim or, if there was, it had only just been prepared, filed and served.  At the time the matter came before Justice Crawford and then again before the Full Court there was not a filed defence.  There is now a filed defence and the defence of justification is taken in the terms indicated before Justice Crawford and the Full Court that it would be.

GUMMOW J:   …..and public benefit, is that right?

MR WHITINGTON:   Yes, and in relation to the pleaded imputations.  I had not quite apprehended this until my instructing solicitor indicated something to me a moment ago.  It may be that the statement of claim withdraws an allegation of an imputation that the plaintiff murdered the Beaumont children.  I have to clarify that, but what happened at the hearing before Justice Crawford was that the plaintiff had not then seen the film and so there was a suggestion there might be an adjournment while the plaintiff properly cast his imputations, but by agreement between the parties imputations were cast in the form in which the Court sees them in the reasons of Justice Slicer at page 21 of the application book, paragraph 6 of the statement of claim as it was available at that time.  That pleading represented an agreement between the parties reached at the time of the hearing before Justice Crawford as to the relevant ‑ ‑ ‑

GUMMOW J:   Yes, but this is an interlocutory injunction.  I suppose if the pleading foundation changes, that may affect the continuation of the injunction, may it not?

MR WHITINGTON:   That is so, but I do not understand it has changed in any material or substantial sense.

GLEESON CJ:   Paragraph 6(c) remains, does it?

MR WHITINGTON:   It certainly does, yes, and I think paragraph 6(a) certainly remains.  The ABC, on my instructions, proposes to attempt to justify and maintains it can justify at paragraph 6(c), so there is a real point in this application.  There are a number of issues of principle that arise which we address in our written submissions.  While I am dealing with the question of offences can I indicate one.

The majority in the Court of Appeal located the relevance of the availability of cogent defences in the consideration of whether or not there was a prima facie case or a serious issue to be tried.  In other words, they apparently proceeded on the basis that if the defendant could show overwhelmingly that it had defences, the plaintiff would not discharge the onus of showing a prima facie case but if the defendant’s answer fell short of that, the plaintiff would succeed in making out a prima facie case or a serious issue and an injunction should go.

However, the authorities otherwise suggest that the availability of cogent defences based upon substantial material put before the court is relevant also to the balance of convenience and in fact more relevant to the balance of convenience.  That is how it has been approached in a number of cases.  That is, if the defendant can show that it has clear arguable defences, that is a justification in its favour for being allowed to speak freely without restraint prior to trial.

There is another issue of significance and that is that the Court of Appeal seemed to say that the matter involved mere delay to the ABC as if that was not an impairment of the right of free speech.  It is our submission that delay is an impairment to free speech just as much, although not necessarily of equal force, as a final prohibition on a right to publish.  So it is not to the point, we say, that the ABC really cannot show any harm, it just incurs delay, the matter can be resolved finally at trial.

There is also in this case an important issue about reputation.  It was the ABC’s contention that Mr O’Neill had a bad reputation, necessarily so, and that there was not any relevant harm to his reputation, or would not be, or, in any event if there was, it was compensable in damages.  The Full Court seemed to outflank that suggestion by saying, “That’s all very well, Mr O’Neill might have a bad reputation in his present environment amongst those who presently know him but a publication like this might spread, if you like, his negative reputation further to other places where he might want to go in the future.”  We say that that raises a serious question as to what “reputation” means in this context.  For those reasons, we say this is really a very meaty case and an appropriate vehicle for this Court to speak on an issue it has never spoken on before, that is, in what circumstances should an interlocutory injunction go? 

Can I address finally the points that my learned friend made about this being an exceptional matter perhaps in reverse order.  He said that a jury trying the defamation case might in effect be tainted if there was advance publicity.  We say there is nothing in that in that there are many authorities now in Australia that juries properly directed will discount prejudicial material, particularly in criminal trials, and therefore we say a fortiori in this trial, but secondly and in any event, this jury will have to see the film.

GUMMOW J:   How long is the film, by the way?

MR WHITINGTON:   It is 50 minutes.  The jury will have to see the film.  They will have to hear the evidence about the matters in justification.  So we say it is not to the point that there might be publicity in advance of the trial.  Secondly, as to any possible criminal proceedings, we say that is an irrelevant consideration for the purposes of defamation.  It seeks to bring in considerations of suppression orders or possibly even contempt in the shadow of the criminal trial and have them intrude into the law of defamation.

We say that is not an appropriate procedure.  There are other remedies available for an accused person and if the plaintiff wishes to avail himself of them he can.  So for those reasons we say the matter is not only a fit matter but one in which this Court could give the community great assistance.

GLEESON CJ:   Mr Whitington, can I take you back to the matter of costs.

MR WHITINGTON:   Yes.

GLEESON CJ:   I understood you to say at the outset that your client accepted that this would be an appropriate case for making of special orders of the kind asked for on page 72 in paragraph 15.

MR WHITINGTON:   Yes.

GLEESON CJ:   That is the opposite of what is said in the written submissions on behalf of your client.

MR WHITINGTON:   Yes, I accept that, your Honour.  I have since taken instructions on that.

GLEESON CJ:   The appropriate procedure, may I suggest, would have been for your client to file supplementary written submissions so that its attitude on that aspect of the matter was known before the commencement of the argument.

MR WHITINGTON:   Yes, I apologise for that, your Honour, but in any event I am instructed that we can offer that undertaking and I have just got those instructions this morning.  We do that for the obvious reasons.

GLEESON CJ:   Thank you, Mr Whitington.

MR WHITINGTON:   Yes, if the Court pleases.

GLEESON CJ:   Mr Tree, what do you want to say?

MR TREE:   Your Honours, there are two matters I wish to raise by way of reply.  The first is to the matters that have been raised by my learned friend as to the suggestion that the Full Court only took into account the questions of free speech in relation to the serious question to be tried.  Can I remind your Honours at page 40 of the application book at paragraph 58 where in fact in quoting from Justice Ormiston in National Mutual Life Justice Blow specifically identified in the recited paragraph that:

the real question of any application such as this, where the defamatory nature of the words is not disputed, is whether it is ‘just and convenient’ to grant relief, and this is to be determined in particular by what is the balance of convenience and hardship.  It is at this point, in my opinion, that the courts have for 100 years determined that a balance is normally to be struck in favour of the free discussion of matters of public or general interest ‑

So that, although I accept that there is no clear delineation in the judgment of Justice Blow of a consideration of the questions of justification or indeed free speech in relation to both limbs, ie, serious question to be tried and balance of convenience, the statement of principle that is identified by his Honour at page 40 of the application book clearly relates to balance of convenience.

The second matter that I wish to raise by way of reply is that although my friend says that there are avenues of redress available to the respondent in relation to contempt in the event that any criminal proceedings against him are frustrated by virtue of the publication, the difficulty is that of course we are not yet an accused person and may never be an accused person.  So that that argument really puts the cart before the horse.  There is no stay procedure which the respondent could avail himself of nor is there yet any indictment laid before any court in relation to this.

So that that is the very reason why we say that the interest of justice here must be taken into account in a consideration of the balance of convenience at this point, ie, the interlocutory injunction, and that is why we say that although in other circumstances there may be other avenues available to a person such as Mr O’Neill, those do not apply to him in these circumstances.

GUMMOW J:   Can you just assist me in this respect, Mr Tree.  You are familiar with the judgment of Justice Walsh in Stocker?

MR TREE:   Yes.

GUMMOW J:   He traces there very carefully the source of the jurisdiction in New South Wales as it stood in 1962 in these matters.  It is a rather tangled matter.  What is the relevant legislation in Tasmania governing the operations of the Supreme Court in this particular exercise of jurisdiction?

MR TREE:   The Supreme Court Civil Procedure Act 1934, your Honours, contains the relevant statutory provisions.  There also is something in the Supreme Court Rules but the primary statutory power is in the ‑ ‑ ‑

GUMMOW J:   But it has some Judicature Act section, has it? 

MR TREE:   It does, your Honour, yes.

GUMMOW J:   We had better know about that - not right now but in due course, if there is a due course.

MR TREE:   Yes.

GLEESON CJ:   Thank you, Mr Tree.

MR TREE:   Thank you, your Honours.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal on condition that the applicant undertakes to pay the respondent’s costs of the appeal in any event and undertakes not to disturb the costs orders that have been made in the courts below, and the applicant must pay the respondent’s costs of this application.

AT 10.18 AM THE MATTER WAS CONCLUDED