AW v Rayney [2011] HCATrans 86 - [2011] HCATrans 86

[2011] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P2 of 2011

B e t w e e n -
AW
Applicant
and
LLOYD PATRICK RAYNEY
Respondent
Application for special leave to appeal

HAYNE J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 8 APRIL 2011, AT 10.59 AM

MR G.T.W. TANNIN, SC: May it please the Court, I appear with my learned friend, MR H.D. LEITH, for the applicant. (instructed by State Solicitor (WA))

MR C.P. SHANAHAN, SC: May it please the Court, I appear on behalf of the respondent. (instructed by D.G. Price & Co)

HAYNE J: Yes. Now, we have your summons, Mr Shanahan, and we have, of course, read the material that has been filed by both sides in respect of that summons. Is there anything you wish to add to what is in those papers?

MR SHANAHAN: Two points, your Honour. The first one is that in the course of the two applications to cancel or vary the Court of Appeal’s orders there were orders made by Justice Buss, and the first one appears at application book page 231, line 10. Your Honours will see that effectively what Justice Buss did was to make a provisional non‑publication order which covered the hearing of that application to cancel or vary. As the respondent understands it, that order remains in force, and indeed the reasons that were given on the subsequent day, 24 September 2010, by the Court of Appeal remain suppressed. There is a further order, your Honours, in respect of the second application to cancel or vary and that appears in much the same terms at page 272 of the application book, also at line 10.

HAYNE J: Well, then, why should we not treat the orders as eventually taken out and as appearing in the application book as the record of the extant orders?

MR SHANAHAN: No reason at all, your Honour, except that the point that I am making is my friends have filed a written outline that says that in the court below the matter was dealt with in open court, and they suggest at paragraph 2 that:

This Honourable Court should not restrict public access to its proceedings by means that the Court of Appeal did not itself adopt.

The point that the respondent makes is what is asked for in the summons of 1 April is simply the same protection that was afforded the respondent in the Court of Appeal below.

HAYNE J: Yes.

MR SHANAHAN: Your Honour, the only other matter that I wanted to raise was the emphasis that my friends put in their submissions on the fact that there is focus on internet publication. The only point that the

respondent makes in that regard is to say that any publication ultimately these days results in internet publication; that is simply the most powerful…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] HCATrans 86
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia by AW against Rayney. The dispute arose from a defamation proceeding initiated by Rayney against AW. The core of the defamation claim related to statements made by AW concerning Rayney's alleged involvement in the disappearance and presumed death of his wife.

The primary legal issue before the High Court was whether the Full Court of the Supreme Court of Western Australia had erred in its decision to grant Rayney leave to appeal against an earlier decision of a single judge of that court. That earlier decision had dismissed Rayney's defamation claim on the grounds that the statements made by AW were not capable of bearing a defamatory meaning.

The High Court considered whether the Full Court had correctly applied the principles governing the grant of leave to appeal, particularly in circumstances where the appeal concerned the proper construction of allegedly defamatory material. The judges noted that the question of whether a statement is capable of a defamatory meaning is a question of law, and that the Full Court was required to determine if the single judge had erred in law in finding that the statements were not capable of bearing a defamatory meaning. The High Court ultimately granted special leave to appeal, indicating that there were arguable grounds for review of the Full Court's decision.

Orders