Australian Postal Corporation v Gray and Morgan
[1989] TASSC 66
•23 November 1989
Serial No 66/1989
List "A"
CITATION: Australian Postal Corporation v Gray and Morgan [1989] TASSC 66; A66/1989
PARTIES: AUSTRALIAN POSTAL CORPORATION
v
GRAY
MORGAN
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 40/1989
DELIVERED ON: 23 November 1989
DELIVERED AT: Hobart
JUDGMENT OF: Neasey, Nettlefold and Wright JJ
Judgment Number: A66/1989
Number of paragraphs: 42
Serial No 66/1989
List "A"
File No FCA 40/1989
AUSTRALIAN POSTAL CORPORATION v GRAY and MORGAN
REASONS FOR JUDGMENT FULL COURT
NEASEY J
NETTLEFOLD J
WRIGHT J
23 November 1989
Order of the Court
Appeal dismissed.
Serial No 66/1989
List "A"
File No FCA 40/1989
AUSTRALIAN POSTAL CORPORATION v GRAY and MORGAN
REASONS FOR JUDGMENT FULL COURT
NEASEY J
23 November 1989
The Court has before it an appeal by the Australian Postal Corporation ("the Corporation") against an interlocutory injunction granted by Cox J against the Corporation on 7 April 1989. The injunction in the material part was in the following terms:
"1 That the (Corporation) be restrained from knowingly delivering, exhibiting or causing to be read or exhibited letters written by the second–named defendant and dated the 20th day of March, 1989, addressed 'Dear Citizen of Tasmania' and the 14th day of April 1988 addressed to the Honourable Nick Evers the Minister for Public Administration pending trial.
2 That the (Corporation) be restrained from delivering envelopes addressed 'To the Householder' that might hereafter be delivered to it by the second–named Defendant for distribution in the State of Tasmania."
The application for interlocutory injunction was made in an action commenced on the same day, 7 April 1989, by the respondents Gray and Morgan against the appellant Corporation. The statement of claim alleged in substance that on or about 20 March 1989, one William J Kirk had placed with the Corporation for distribution through its postal service 3975 envelopes addressed "To the Householder", with a direction or request to the Corporation that it distribute these envelopes by means of the postal service to households on the West and North West Coasts of Tasmania and in other centres of the State. It was further alleged that prior to 30 March the Corporation had distributed 2995 of these envelopes through the postal service at a time when the Corporation was unaware of the contents of the envelopes; and that on or about 30 March 1989 the Corporation first became aware of the contents. Having that knowledge, it thereafter distributed the remainder of the envelopes in its possession. It was further pleaded that these envelopes contained a second letter, dated 14 April 1988, signed by the said Mr Kirk and addressed to the Honourable Nick Evers, then Tasmanian Minister for Public Administration. The statement of claim further alleged that these letters were defamatory of the respondents in this action. The said Mr Kirk was already the subject of an interlocutory injunction made by Cox J on 4 April 1989, in another action in which he was co–defendant with Australian Postal Corporation and the two respondents were plaintiffs.
There was evidence before the learned judge on the hearing of the interlocutory application that the said Mr Kirk had by letter addressed to Mr Evers since the making of that interlocutory injunction against him expressed the intention of continuing to distribute letters of a similar kind by post to addressees in various parts of the State. There was also evidence before his Honour confirming the above–mentioned allegations made in the statement of claim. It is common ground for the purposes of this appeal that the material contained in the letters which had been delivered by the Corporation did contain matter defamatory of the respondents, and also that the further letters which Mr Kirk had threatened to distribute by post would be expected to contain defamatory matter of a similar kind.
The application for interlocutory injunction came before Cox J late in the afternoon of 7 April last. Counsel for both sides were represented at the hearing. The application was based upon ss6, 7 and 8 of the Defamation Act 1957 of Tasmania, which sections provide:–
"6 — A person who, by words either spoken or intended to be read, or by signs or visible representations, publishes a defamatory imputation concerning another person, defames that other person.
7 — For the purposes of this Act, publication is –
(a)in the case of words spoken, the speaking of those words in the hearing of a person other than the person defamed; or
(b)in the case of other defamatory matter, the delivery, reading, or exhibition of it, or the causing of it to be delivered, read, or exhibited, or the communication, in any other manner, of its contents or any part thereof to a person other than the person defamed, if the person making the publication knows, or has the opportunity of knowing, the contents or nature of the document or other thing containing the defamatory matter.
8 — It is unlawful to publish defamatory matter unless the publication thereof is protected, justified, or excused by law."
There was evidence before the judge that the respondents had written by their solicitors to the Corporation before the hearing asking for an assurance that the material in question would not be distributed by post, and that the Corporation had replied through the Australian Government Solicitor that such an assurance could not be given. Counsel for the applicants submitted that there was clear evidence that the relevant material was defamatory, and ample ground for granting the injunction because the defendant Kirk had exhibited the clearest intention of distributing it in quantity by post if the Corporation were not restrained from achieving that objective for him. Counsel for the respondent Corporation did not argue that the material was not defamatory, and the learned judge accepted that it was. Both parties and his Honour also proceeded upon the assumption that distribution by post would amount to delivering the material or causing it to be delivered, within the meaning of s7(b) of the Defamation Act.
The sole ground upon which counsel for the corporation opposed the grant of the interlocutory injunction was that the operation of ss6, 7 and 8 of the Defamation Act of Tasmania would, if the court acted in pursuance of them and its general power to grant equitable remedies by enjoining the Postal Corporation from delivering the defendant Kirk's written material, be inconsistent with a law of the Commonwealth within the meaning of s109 of the Commonwealth Constitution, and be invalid to the extent of the inconsistency. Such invalidity would deprive the court of the power to grant the injunction sought, according to this submission.
His Honour after consideration of the arguments granted the interlocutory injunction in the terms earlier set out. The Corporation appealed upon a number of grounds, but on the hearing of the appeal confined itself to the first of them. The substance of this ground was that the judge had erred in making the order he did because he had no power to make any order restraining the Corporation from carrying out its duty of delivering the mail in accordance with the Postal Services Act 1975, in that the Defamation Act 1957 purports, in its operation in the circumstances of this case, to make unlawful the delivery of mail by the Corporation, and to that extent is inconsistent with the Postal Services Act 1975 and the regulations made thereunder, and invalid by reason of s109 of the Constitution. That is to say, the appeal was argued before this Court on the sole ground of alleged inconsistency. I am not, however, persuaded that it is open to us to decide the appeal on that ground.
It is important to consider the reasoning upon which Cox J granted the interlocutory injunction. In giving his reasons, his Honour said first that he had no doubt that prima facie the material in question was defamatory, and that its distribution to other persons ought to be restrained until further order by an appropriate injunction. He then said that he was not persuaded that ss6 to 8 of the Defamation Act were in any way inconsistent with any of the provisions of the Postal Act 1975 of the Commonwealth, and that only s104 of the latter Act needed further mention from him. After dealing briefly with the arguments relating to that section, and holding that it had no application to the issues before him, his Honour then said:–
"Accordingly, in my view, there is no obligation upon me to take the steps predicated by Section 78B of the Judiciary Act 1903. However, if I am wrong about that, sub–section (5) of that Section preserves the right of the Court, without delay, to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature where the Court thinks it necessary in the interests of justice to do so. As that in fact is my opinion, I feel obliged to hear and determine the application as an interlocutory matter, and having heard it I now rule that the relief sought in substance should be granted."
In giving those reasons it is clear the learned judge held, first, that in his view there was no substance in the inconsistency argument, and therefore he was under no obligation to put in hand the steps contemplated by s78B of the Judiciary Act 1903 of the Commonwealth; but, second, if he was wrong about that (by which he meant, if he should be wrong in thinking there was no inconsistency in the relevant sense, and if contrary to his view the cause before him did or might involve a matter arising under the Constitution or involving its interpretation), nevertheless s78B(5) preserved his right in a proper case to grant urgent interlocutory relief at once, without putting those steps in motion. Third, his Honour said that he was of opinion that the interests of justice required him to grant such interlocutory relief urgently, and he would do so in reliance upon his interpretation of s78B(5).
In referring thus to s78B of the Judiciary Act his Honour had in mind the provisions of that section which require, in substance, that whenever in courts which include a State court a pending cause "involves a matter arising under the Constitution or involving its interpretation", it is the duty of the court not to proceed in the cause until it is satisfied that notice of the cause has been given to the Attorneys–General of the Commonwealth and of the States, and a reasonable time has elapsed for questions of intervention in the proceedings or removal of the cause into the High Court to have been considered.
Section 78B(5) of the Judiciary Act, to which his Honour adverted, provides:–
"(5) Nothing in sub–section (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so."
There is no doubt that subs78B(5) preserved the learned judge's power, in so far as he had such power aliunde the provisions of that subsection to hear and determine the application and to grant the urgent interlocutory relief sought, if the interests of justice required that course; without staying the further hearing of the application until the necessary notices had been given and time had elapsed. The only remaining question then is whether his Honour was entitled to grant the interlocutory injunction even though a question of law remained outstanding, which if answered in one way would have deprived him of jurisdiction to make the order – namely whether the effect of s109 of the Constitution was to render ss6, 7 and 8 of the Defamation Act invalid on the ground of inconsistency with the Postal Services Act. This question was not involved in the notice of appeal, but the point was raised by the court during the hearing of the appeal, and counsel were given an adjournment in order to be able to present argument upon it. They did so at a later date. This was the only point argued by way of challenge to the interlocutory injunction, other than the inconsistency matter raised by ground 1. In particular the appellant did not contend that the respondents had not 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", or that apart from the question of inconsistency it would be unjust to grant the injunction – see Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 33 F.L.R. 294, per Brennan J at p311.
There is ample authority that an interlocutory injunction may be granted in order to preserve the status quo if justice in the circumstances requires it, notwithstanding that an outstanding question of law remains unanswered. The House of Lords so stated in American Cyanamid Co v Ethicon Ltd [1975] AC 396. Lord Diplock, with whose judgment all the other members of the House agreed, said:
"It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations."
The High Court of Australia also held to this effect in Cohen v Peko–Wallsend Ltd (1986) 61 ALJR 57. There the respondent had obtained an interlocutory injunction from a judge of the Federal Court, in a case in which the Government of the Commonwealth had applied for listing in the World Heritage list for some land in the Northern Territory known as Kakadu Stage II, ordering the applicants to inform the World Heritage Committee of certain information concerning the application. The respondent company had applied for this injunction on the ground that it had mining interests in the area which were liable to be extinguished if the application succeeded, and that it had been denied natural justice, and that the Commonwealth's action was unreasonable. Gibbs CJ, Mason and Wilson JJ. in a joint judgment said:
"The questions raised by these arguments are complex and profound and have ramifications far beyond the confines of the present case. The principles which govern the question whether and when a person affected by an exercise of the prerogative is entitled to natural justice or judicial review are in a developing state, and the result of applying those principles to the present case is far from clear. The construction of the Convention presents difficulties which it would be wrong to attempt to resolve without first inquiring whether there are available aids to interpretation, such as travaux preparatoires, which ought to be considered. It is not right to say that it is always the duty of the Court on an interlocutory application to decide a question of law upon which the decision of the case depends. No doubt if the question is one susceptible of resolution without further evidence, and the urgency of the matter does not render it impracticable to give proper consideration to the question, the desirable course will be to decide it. Ultimately, however, the course which the Court takes lies within its discretion. It cannot be doubted that Beaumont J was justified in refraining from attempting finally to resolve the questions of law in the present case.
Obviously there are serious and important questions to be tried in the proceedings. In those circumstances it became necessary for Beaumont J to consider whether the balance of convenience favoured the grant or refusal of an interlocutory injunction. It is quite impossible to say that his Honour could not reasonably have reached the conclusion that on the balance of convenience an injunction should be granted." – ibid, at pp58–59.
In Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (supra), the following is a passage from the judgment of Brennan J (at pp 312–313):
"If the applicant's entitlement to relief depends upon his making good a proposition of law, the judge does not finally decide whether the proposition be right or wrong, but only whether the proposition is sufficiently arguable to show that the applicant has a fair chance of success at the hearing."
His Honour referred in support to the judgment of Dixon AJ, as he was then, in Attorney–General (Ex rel Lumley) and Lumley v T S Gill & Son Pty Ltd [1926] VLR 414.
Other courts have held to the same effect, in Nuhan Ltd v Jewel Super Fund [1980] 2 NSWLR 304, per McLelland J at p 309; Hortico (Australia) Pty Ltd [1985] NSWLR 545, per Young J at p549; Kolback Securities v Epoch Mining NL (1987) 8 NSWLR 533, per McLelland J at p 535. See also, Meagher, Gummow and Lehane, Equity Doctrines and Remedies 2nd ed., pp 569, 570; N.R. Burns, Injunctions – A Practical Handbook, p11. Powell J of the New South Wales Supreme Court has held to the contrary in Karaguleski v Vasil Bros & Co Ltd (1981) NSWLR 267 at p269, and Kurt Keller v BMW Australia (1984) NSWLR 353 at p369; but the balance of authority is very much the other way.
Accordingly, Cox J was not obliged to decide the inconsistency question before granting the interlocutory injunction. This Court should hold that his exercise of discretion to grant the interlocutory order should not be interfered with, since no clear case (nor indeed any case) has been made out that he acted on some wrong principle or made an order which works a substantial injustice to one of the parties. This latter is the test which an appellate court should apply in an appeal against an interlocutory injunction – De Mestre v AD Hunter Pty Ltd (1952) 77 WN (NSW) 143 at p146; Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (supra) per Brennan J at pp 311, 312. At this stage we cannot decide the substantive question of constitutional law, even though the respondent Corporation would wish us to do so. The appeal should be dismissed.
List "A"
File No FCA 40/1989
AUSTRALIAN POSTAL CORPORATION v GRAY and MORGAN
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
23 November 1989
I have read the reasons for judgment of Neasey J I agree with them and with the order which he proposes.
List "A"
File No FCA 40/1989
AUSTRALIAN POSTAL CORPORATION v GRAY and MORGAN
REASONS FOR JUDGMENT FULL COURT
WRIGHT J J
23 November 1989
An interlocutory injunction having been granted by Cox J restraining the appellant from distributing material allegedly defamatory of the respondents, the appellant now seeks to persuade this Court that the order should be dissolved.
There were numerous grounds set forth in the Notice of Appeal but all except ground 1 were abandoned.
Ground 1 reads as follows:
"His Honour erred in and acted contrary to law in granting the orders in that he had no power to make any order restraining the Appellant from carrying out its duties of delivering the mail in accordance with the Postal Services Act 1975 in that the Defamation Act 1957 purports to make unlawful the delivery of mail by the Appellant and to that extent is inconsistent with the Postal Services Act 1975 and the regulations made thereunder and to that extent is involved by reason of Section 109 of the Constitution".
For the purpose of his submission to us, counsel for the appellant expressly conceded that the material complained of by the respondents was defamatory. He argued however that no action could be maintained against the appellant for publishing such defamatory material by delivery (as provided by the Defamation Act 1957, s7) because such a consequence would produce an inconsistency between that Act and the Postal Services Act 1975.
His argument thus attacked the jurisdictional foundation upon which the interlocutory injunction was based.
It was conceded that this issue could have been tested in other ways. For example, the constitutional point could have been raised by one of the procedures available in lieu of demurrer provided for in Rules of the Supreme Court, O.28. If this had been done a much better opportunity for mature deliberation would have been provided to the judge considering the point at first instance than was afforded to him at the hearing of the application for an interlocutory injunction and this Court would have had the advantage, no doubt, of written reasons for judgment upon the matter before considering the case on appeal.
Having chosen an appeal against the making of the interlocutory order as the vehicle for its challenge, the appellant, whilst possibly securing a more expeditious ruling upon the constitutional issue, has an initial hurdle to surmount in that this Court must be persuaded that it is appropriate to decide that issue at this stage of proceedings.
My learned brother Neasey J has very helpfully referred to many authorities dealing with the approach which may be adopted by an appellate court upon an appeal from the making of an interlocutory injunction, but I am unable to share his conclusion that it is not open to this Court to decide the present appeal on the constitutional ground.
Having regard to the essential nature of the appellant's argument I think it is virtually immaterial what reasons Cox J may have assigned for proceeding to hear and determine the application for an interlocutory injunction. It was suggested by the respondents that s78B of the Judiciary Act provides some independent basis for the granting of urgent interlocutory relief, but I am unable to accept this. In my view, s78B is merely a provision which preserves to a court before which a constitutional issue has arisen for determination, such powers as it would otherwise have to grant interlocutory relief. In other words, in those cases where the Attorney–General would have to be given notice before the matter could proceed, an exception is made to the embargo upon further proceedings where urgent interlocutory relief is required. Section 78B(5) does not clear away the constitutional impediment if it exists or enable it to be ignored simply because the procedure is interlocutory. Section 78B(5) gives the court no enhanced jurisdiction but deals only with procedural matters (North London Railway Co v Great Northern Railway Co (1883) 11 QBD 30 (CA) per Brett LJ at p36 and Colten LJ at p39).
If it can be shown that a law pursuant to which a State court would normally have jurisdiction is inconsistent with a relevant Federal Law, the foundation for exercising the power may not exist in a particular case. This of course does not render s78B(5) otiose because a pending cause which "involves a matter arising under the Constitution or involving its interpretation" is not necessarily placed in terminal jeopardy by the resolution of the constitutional issue in a particular way.
Furthermore, it is not always possible to resolve that matter as a question of law or as a question of law and uncontested fact, so it may be that the court will not be able to resolve the constitutional issue until findings of fact have been made at trial. Therefore it seems to me that s78B(5) and Cox J's reliance upon it presents no barrier to our determining the inconsistency point upon this appeal in view of the appellant's concession as to the defamatory nature of the relevant material.
Whether we should do so is no doubt another question. I am mindful of the views expressed by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at p177 and Cohen v Peko–Wallsend Ltd (1986) 61 ALJR 57. However for the following reasons I think that it is desirable that we should make the determination sought in the present case. In the first place the constitutional point was fully argued by both parties. The preliminary issue as to whether this Court should entertain the appeal in the absence of demonstrable error by Cox J was initially raised from the bench. It formed no part of the case or the written submissions of either party. Secondly, a resolution of the constitutional point can be achieved on the undisputed material before us without the necessity for findings of fact to be made in respect of contested facts. Thirdly, if the appellant's point is successful it will substantially dispose of the whole action against it with a consequent saving in costs to both parties. Finally, there is no apparent injustice to either party in taking such a course.
Analogous reasons have persuaded courts of first instance to determine contested legal issues at an interlocutory stage in the past, (see for example Kurt Keller v BMW Australia (1984) 1 NSWLR 353 at p369, (Powell J); Hortico (Aust) v Energy Equipment Co (Aust) (1985) 1 NSWLR 545 at p549, (Young J) and Kolback Securities v Epoch Mining NL (1987) 8 NSWLR 533 at p535), and here, where the absence of an element of urgency does not render it impracticable to give proper consideration to the constitutional question I think that an a fortiori case for our resolution of the matter is made out.
I therefore turn to consider the appellant's argument. It is said that there is both a direct inconsistency between the two Acts and also that the Commonwealth Act manifests an intent to cover the field thus creating an indirect inconsistency.
The argument that there is a direct inconsistency between the Commonwealth and State Acts may be dealt with shortly. It was claimed that a direct collision between the requirements of each piece of legislation was to be found in that on the one hand the Commonwealth Act requires the Corporation to deliver all postal articles entrusted to it (with certain irrelevant exceptions) whereas the State Act renders such an activity tortious and therefore unlawful if the article in question is found to be defamatory. It may be that this argument should be regarded as referring to a "Commonwealth permits; State prohibits" type of inconsistency if one is attracted by the classification made by Professor Lane ("A Manual of Constitutional Law", P H Lane 4th Edn p432).
Counsel for the appellant expressly declined to broaden his argument so as to claim inconsistency between the Postal Services Act 1975 and the Supreme Court Civil Procedure Act 1931 and its provisions which enable the granting of an interlocutory injunction in aid of civil litigation.
The argument advanced must therefore proceed beyond the mere contention that an injunction by this Court cannot lawfully prevent delivery of particular items of mail; it must (and does) go to the extent of claiming that in knowingly delivering defamatory material by mail the Corporation is not actionable at the suit of the defamed individual.
There is plainly no express provision in the Postal Services Act 1975 which goes to the extent of conferring such immunity from civil suit upon the Corporation. Nor is there any provision which suggests or implies that in carrying out its statutory obligation to deliver postal articles the Corporation can commit a civil wrong with impunity. It is normally assumed that when authority is given to a public body to perform some administrative function authorised by statute, there is no intention to interfere with private rights unless the power conferred is expressed in such a way as to make interference unavoidable, Metropolitan Asylum District v Hill (1881) 6 App Cas 193 is a case illustrative of this principle.
The appellant's contention if correct, has startling implications. It means that Commonwealth Statutory corporations, if invested with specific powers by the legislation creating them, may rely on these powers as justification for the commission of tortious acts unless such activities have been proscribed by the Act itself or, presumably, by some other Commonwealth law.
In my opinion, such a proposition is unsound in accordance with general rules of statutory construction and constitutional principle and also with the inconsistency doctrine under s109 as developed and explained by the High Court.
The appellant points out that the Postal Services Act 1975 (Cwth) imposes restrictions upon persons as to the manner in which they may use the mail. For example, persons shall not post dangerous, offensive, filthy or noxious material (s.97), explosive devices (s100), hoax explosives (s100A) or narcotic substances (s100B). Additionally the Regulations provide that the Corporation may, under certain circumstances, open the mail or remove from circulation, any articles which are morally offensive. It is said that the existence of these specific proscriptions on the one hand, coupled with the Corporation's own very limited powers to interfere with the mail suggests that apart from action taken to enforce or comply with these specific rules, mail, once posted, must proceed unimpeded and without delay to its intended destination.
It seems to me that this argument ignores the plain fact that the provisions creating the prohibitions mentioned above also create statutory offences punishable by fine or imprisonment. They are not concerned with rights or remedies of civil parties. Similarly, those provisions which deal with the investigative and administrative powers of the Corporation to examine and withhold postal articles do not concern themselves with whether or not the Corporation may become liable as a tortfeasor in a civil action. I find no additional support for the appellant's case in the fact that the Post and Telegraphic Services Act 1901, by ss43 and 107, empowered the Postmaster General to destroy libellous material and also made it an offence to transmit such material through the post. Indeed, I think it may well be said, that whichever test of inconsistency one is looking at, the Commonwealth Parliament's withdrawal of these provisions from the legislative scheme when the Postal Services Act 1975 was enacted, indicates firstly, that an attempt to avoid conflict with State defamation laws was in purview and secondly, that the "field" of the Commonwealth legislation was deliberately restricted so as not to entrench upon the area of civil wrongs normally dealt with by State law.
The "cover the field" test of inconsistency as formulated by Dixon J (as he then was) in Ex parte McLean (1930) 43 CLR 472 was in the following terms:
"Inconsistency depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing a particular conduct or matter to which its attention is directed. When a Federal law discloses such an intention it is inconsistent with it for the State law to govern the same conduct or matter."
The Postal Services Act 1975 is described as "An Act relating to the provision of Postal Services within Australia and between Australia and places outside Australia." It deals with the establishment, functions and powers of the Australian Postal Corporation, the payment of postal charges and the carriage of mail. The constitution of the Corporation, its staffing and its financial structure are also dealt with. As already mentioned, specific offences are created. By Law and Regulation making powers are also provided for. There can be no doubt that the Act deals extensively or exhaustively with all these matters and, as illustrated by DAO v Australian Postal Commissioner (1987) 162 CLR 317, there can be no doubt that in the area or field of employment of Corporation staff, the Postal Services Act 1975 was intended by the Commonwealth to enable the Corporation to operate unfettered by general restrictions imposed by State laws. I can see no direct analogy between that case and this, however. Neither the Postal Services Act 1975 nor the Regulations made thereunder touch upon the civil liability of the Corporation, either in general terms or in respect of particular cases. Accordingly, I am unable to see that the field covered by the Commonwealth Act encroaches into the area dealt with in the Defamation Act 1957 (Tas).
To achieve the result desired by the appellant it seems to me that the type of argument specifically rejected by Taylor J at p39 and Windeyer J at p51 in Airlines of New South Wales Pty Ltd v New South Wales (1963–64) 113 CLR 1, must be adopted. The Commonwealth Act contains nothing which suggests that it confers an absolute right or positive authority upon the Corporation to deliver postal articles immune from or exempt from compliance with State laws of any kind. Nor in my opinion, does it purport to lay down the whole legislative framework within which the activity of providing postal services is to be carried on. "It is intended to operate within the setting of other laws with which" the Corporation "will be required to comply". (See Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 at pp57–58 per Wilson, Deane and Dawson JJ. See also Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128.
In my opinion, the appeal fails and should be dismissed.
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