Bellino v Australian Broadcasting Corporation

[1994] HCATrans 397

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B20 of 1994

B e t w e e n -

.VINCENZO BELLINO

Applicant

and

AUSTRALIAN BROADCASTING

CORPORATION

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 30 JUNE 1994, AT 4.00 PM

Copyright in the High Court of Australia

Bellino.V 1 30/6/94

MR C.E.K. HAMPSON, QC: If it please the Court, I appear

with my learned friend, MR P.O.T. APPLEGARTH for

the applicant. (instructed by Myles Thompso~)

MR R.A. MULHOLLAND, QC: If the Court pleases, I appear with

my learned friend, MR D.K. BODDICE, for the

respondent.	(instructed by Biggs & Biggs Francis &
McGregor)

MR HAMPSON:	If the Court pleases, there are some documents I would like to hand up to the Court. They have
been handed up to the tipstaves already, and there
is an index to them; there are photocopies of the
cases referred to in the outline; legislation referred to in the outline; the amended reply,
which did not find its way into the appeal book;
the trial judge's summary of material complained
of, that is pages 581 to 586 of the transcript,
where His Honour ruled on imputations. I think it
makes it a lot clearer, perhaps, as to what the background of the material was. And, finally, the
passages of the broadcast that the applicant relied
on at trial, and there is a little index to that
volume which contains that material.

If the Court pleases, we have set out, in the

outline and in the summary of the outline, the

matters for which we contend. The case is

concerned, of course, as the Court would have read,

with section 377(8) of the Queensland Criminal
Code, and the first matter really before the trial

page 70 and 71. There were three different

judge was to examine the defendant's particulars.

particulars, and none of them asserted that the

public discussion of the applicant's alleged

conduct was for the public benefit. So, when one

goes to those particulars at 70 and 71 of the

application book - they are quoted there in the

Court will see that (a), (b) and (c), they were:	judgment, I think it was of Mr Justice Davies - the	organised crime and corruption in Queensland
and/or allegations made in relation thereto;
the existence of, and/or protection of, illegal activities, and/or allegations made in
relation thereto; and
trafficking in illegal drugs and/or allegations made in relation thereto.

None of those particulars included any comment on

the appellant's alleged conduct or asserted that

that was for the public benefit. It was not

Bellino.v 2 30/6/94

pleaded in that way, and that appears at the

application book, at pages 80 and 81.

Now, at the background, of course,

Mr Justice Windeyer, in Australian Consolidated

Press Ltd v Uren, said:

When protection is claimed for a defamatory

publication on the ground that it was made in
the course of discussion of a subject under
public discussion and relevant to it, that

subject must necessarily be determined with

some exactness.

Now, the applicant's affairs in this case were not the subject of any current discussion. There had

been one mention of him in Parliament some six

years before. There had been no other public

discussion. The only other mention that he ever

got anywhere were in secret police documents,

police information or intelligence materials. Now,

the trial judge, and it is our complaint that at

the trial he did not determine the subject of the public discussion with any exactitude in deciding the issue which arose for his determination under section 377(8). His Honour spoke generally about

the program being - and I quote from the

application book at page 831:

intended to be a serious contribution to the

ongoing discussion of the subject.

Namely police corruption. In formulating the
question which arose for the jury under

section 377(8) and his directions to the jury on

that issue, and in deciding to withdraw the issues

of relevance and manner and extent for the jury, on

none of those occasions at all did he, with any

exactness, determine which, if any, of the three

particulars that had been given as the subject of

discussion by the defendant was the correct one;

whether they were all correct, and indeed, in his

charge to the jury, he did not prefer one above the

other.

So that was a difficulty that really ran right

throughout the case. Mr Justice Demack said - it

is quoted at page 85 of the application book. The

Court will see that he said:

This appeal, in my opinion, turns on the

question whether it was relevant to the
subjects discussed in "The Moonlight State" -

that is the broadcast in question -

to name -

Bellino.v 3 30/6/94

the plaintiff -

that is the issue which was raised from the

outset in the pleadings and it was the issue

which remained obvious at the end of the

appeal. As it came before the trial Judge, it

was raised as a matter that went to the issue

of the manner and extent of the publication,

i.e. to the issue of good faith. However, it

was a matter for the Judge to determine
whether it was relevant to the discussion of
the subject or subjects of public interest.

Unless it was relevant to that, privilege could not arise.

Now, we respectfully agree that that was the

central kernel in the plaintiff's case; the thing

that kept his counsel - kept making this statement;

kept applying for redirections, kept trying to have

formulated a question in which the issue would be

decided by the jury, whether it was correct to

discuss his affairs in this particular programme,

dealing with whatever the three topics were.

GAUDRON J: That was put both as to the precise topic of

discussion, was it, and as to good faith?

MR HAMPSON:  Yes, Your Honour. In fact, the only time

anything like this had a run, as it were, before

the jury, was quite inappropriately in relation to

the question of public benefit of the discussion.

And I could perhaps just make that out in a

moment - the only place, really, it was not

decided. The trial judge, in relation to the

statutory elements of good faith - it arose the

question, the relevance of the matter - that is the

defamatory imputation, such as the section speaks

about; not just merely the publication into the

Moonlight State, but the defamatory imputations

which the jury found related to the plaintiff, to

the matters found in the privilege, that is to say,

the general topics relied upon by the respondent. Secondly, the manner and extent, that is

whether it was excessive to name the plaintiff in a

publication made to the whole world, and not to

some more limited audience as, for example, if the

television reporter had obtained what he believed
to be evidence implicating the plaintiff, he could

have denounced him, perhaps, and made that

information available to a number of policemen, or

something of that line, but not in a national

telecast.

Now, so far as (a) was concerned, the first

point at which it becomes relevant, namely as to

whether the matter of public discussion in which

Bellino.V 4 30/6/94

the defamatory matters contain, in the course of

whether that was correct or not, was not really

analysed at any length by the trial judge. The

second one, in so far as it then comes to be

discovered again under good faith, which was in

issue, and there, of course, it is said to be one

of the constituents of good faith directly by the

Code as a matter of fact, in this case. It is said

that is a matter of fact. It is clearly a jury

question. His Honour withdrew those aspects of the
matter from the jury's consideration. In a number
of rulings, and the application book shows the

different rulings - there is an index which shows

each one where he - by the time the questions then

came to be set for the jury, His Honour had, in
fact, ruled that there was going to be no evidence

that would go to the jury on good faith other than

whether the reporter had been reckless in his

investigations. That was the only issue that was

going to go to the jury on good faith.

The question of the relevance of the

plaintiff's activities and naming him and so forth,

at the end of this expose of police corruption and

the like, was not adverted to. That was not

allowed to go to the jury, neither as manner extent

or as relevant, even though they were two jury
questions.

His Honour apparently thought that because he had decided that these allegations about the

plaintiff were made in the course of a discussion
of a matter of public interest, being one of the

three, but which one we do not know, of the

particulars of the plaintiff, then that was the end

of the matter so far as the jury was concerned.

So, what happened was that the trial judge directed the jury on the naming issue; the identification of the plaintiff and discussing his affairs, in only

one context, and a context in which it did not

arise, and that was the jury question of fact under

section 377(8), of whether the discussion was for

the public benefit. That is a factual question the jury would have to - and His Honour put that to the

judge and said, "Well now, you have to consider,

was this programme, whichever it was", whatever the

particulars were, "was it for the public benefit
and, in deciding that, you weigh that against the

fact that it would hurt the plaintiff?"

Now, there is no reason anywhere in the

section for just such an exercise and, in fact,

that was common ground in the Court of Appeal. Our

learned friends did not say that His Honour did the

correct thing there at all. So, the only place in

fact where any mention of the plaintiff being

mentioned in the article, and so forth, other than

Bellino.v 30/6/94

there are some innuendoes, imputation, occurred

there and it should not have done so. Now, when

the matter came to the Court of Appeal, the court

will be familiar with the question 3. The

question 3 which was asked of the jury, in fact was

asked in the terms, His Honour said, on page 70,

quoting from Mr Justices Davies' judgment:

I direct you as a matter of law that the

publication of defamatory matter concerning the plaintiff was made in the course of, or for the purposes of discussion of a subject of

public interest.

He did not say what it was, and, of course, that

was - there is something wrong with
Mr Justice Davies' judgment, incidentally, on this,

at page 70, because he said that was never

disputed; we never disputed His Honour's conclusion

on that. Well, that is incorrect, as the judgment

of the other two judges in the Court of Appeal

show, and indeed, it was argued in the appeal and

so forth. So, there is some error in the judgment

there.

But, anyway, that was the position that was

put to the jury in that particular way. So, when
it came to the Court of Appeal, the jury had to
answer, yes. It was a motherhood statement. As
the extracts from the transcript show, counsel for

the plaintiff continually said, "What jury is going

to answer no, in other words, that is not for the

public benefit to have a discussion about the harm

that police corruption could do if it was systemic and deeply ingrained, and so forth?", whatever the

subject happened to be that they would agree with

it.

We would submit that, first of all, the Court

of Appeal should have found that no privilege

occasion arose for the reasons argued on appeal and

accepted by the Chief Justice, namely, that it was

not at all part - there was no public discussion of

the plaintiff's affairs. His activities had never

been part of any public discussion, apart from that

one mention in Parliament so long ago. Then

His Honour the Chief Justice did not go on to consider anything else.

Mr Justice Davies did not examine this

question. He did not really deal with this at all

as to whether or not there was an occasion of

qualified privilege correctly ruled by His Honour,

but in the passage I have already mentioned he

seems to have the view that it was not argued, or
it was accepted that His Honour the trial judge was

correct on that. That is not correct.

Bellino.V 6 30/6/94

Mr Justice Demack, however, did analyse the matter.

He analysed the necessity in that passage that I

have referred to - he said that was really the most

important part of the appeal, but he proceeding to use the judge's function under section 377(8) as a weighing process, to decide whether the matter fell
within - that is to say, the defamatory material,
fell within the publication that was protected.

His Honour looked at that as though it was a matter that had to be weighed in one way or another, and

it is our submission it is clearly not, really.

The cases indicate that what one is looking at is

whether it is sufficiently connected with.

We would submit that it really has to fall

within - in other words, the discussion has to
cover, to be protected, the whole of the defamatory

statements, not just bits of them or not just as,

to use the example that the Chief Justice used,
that in a discussion of a matter of public

interest, the incidence of murder in Queensland, to

put in a statement that, "By the way, A, in fact,

committed murder last year and he has not yet been

charged for it", something of that kind. That is not within the course of, or for the purposes of, as the section requires.

We deal with that at paragraph 16 of the

summary, the analysis of the Court of Appeal. But

even then, the second problem that we complained

about before the Court of Appeal, if the judge

correctly ruled that privilege arose under 377(8),

because the defamatory imputations regarding the

plaintiff were published within the area of

protection, nevertheless there was a relevance area

still for the jury, and we refer to Mackie's case,

for example. Paragraphs 12 and 13 of our summary

deal with the matter in more detail, those

paragraphs give Mackie v Australia Consolidated

Press, and the references to it - could I add one,

in fact? There is a page number left out. One of

the judgments is missed. It should read, "Mackie v

Australian Consolidated Press Ltd, (1974) 1 NSWLR

561 at page 565G, and insert please 575E to F, and

the other one is correct, and Justin v Associated

Newspapers.

So that issue should have gone to the jury,

because it was a matter that the jury were entitled

to pass their judgment on. It is preserved to.them

under the statute, unless, as a matter of law, the

judge could say there is no evidence upon which a

jury properly constructed could reasonably find

that it was other than completely relevant.

Manner and extent was the other matter under

good faith, which was withdrawn from the jury - we

Bellino.V 30/6/94

deal with this in paragraph 17 of our summary - and

the breadth of the publication was very much a live

issue. Mr Justice Davies' judgment refers to the

fact that, in fact, it was not a live issue. That

is said in the judgment, but if the Court looks at

the amended reply in the bundle of documents that we put up, the photocopy is at page 50, the Court

will see that it was, in fact, a live issue, and it

was argued before the Court of Appeal as well as
being a live issue before the trial judge, and

that paragraph 2(b)(v) complains that it was too

extensive a publication, being a national

broadcast.

So the applicant's position throughout was

that if the ABC wanted to air allegations to the

general public, then they were not at liberty to

air allegations about him, identifying and naming

him. Whatever protection may have existed for the

publication of allegations - - -

GAUDRON J: Mr Hampson, could I stop you there. I note your

amended reply but, is it the fact that the trial

was conducted in accordance with the pleadings? I

say that because I noticed several times a
reference to there being only the question of

recklessness in issue.

MR HAMPSON:  No, Your Honour. I do not know that it was in

fact, to be quite frank, conducted in accordance

with the pleadings, because material was let in.

People were not standing on the pleadings and

objecting to evidence that fell without it. But

that question about recklessness, Your Honour,

arises because His Honour upheld a submission made

by counsel for the defendant - His Honour the trial

judge - that there was no evidence of good faith,

of manner of extent, of relevance, or anything

other than recklessness, the supposed recklessness,

which appears - perhaps I should take Your Honour

to it.

GAUDRON J:	I take it you rely on the publication itself as evidence in relation to those facts?
MR HAMPSON:	Yes.

It was an exhibit and, of course, it is difficult because there are some shadowy and

transient different effects in a television

broadcast, as one knows, and it was dealt with as a

ruling that he made, and there were several rulings

in that particular index. I have just asked my

learned junior to find the exact one. It is

page 18 in the application book, and he said, about

half-way down - this is Mr Mulholland:

Your Honour, can I just confirm from

Your Honour's ruling that the aspect of good

Bellino.v 30/6/94

faith that Your Honour proposes to allow to go

to the jury is on the basis of ill will or, as

it is put in the pleading, improper motive.

HIS HONOUR:  Yes, but.

MR MULHOLLAND: That recklessness will be

allowed to go on the basis of the qualities of

research but not otherwise.

HIS HONOUR:	Yes.
MR MULHOLAND:	And Your Honour didn't

specifically say this, but we take it from the

way Your Honour's ruled the manner and extent

will not be allowed.

So that is where I get it from, that only

recklessness was going, and that in the sense of

the adequacy of research for the article. And that

differed from His Honour's earlier view, which

appears at the top of page 3. At that stage his

provisional view was, in fact that manner and

extent should be left to the jury.

So, we always took the view - the plaintiff

always took the view - it was excessive to publish

the allegations about him to a national television

audience, and the result was that the trial

miscarried because no question went to the jury

through which the jury could make a finding as to

this very issue. The point that he was complaining

about - there is the big expose on television, to a

national live audience, "I am a man against whom

you do not plead truth and public benefit; I say I

am quite innocent of these things. My name, I get

identified, I get pulled in, because unfortunately

I have the surname and I am the brother of some

people who have criminal convictions, or criminal

antecedents, and that matter you should not be able

to do", and the first place that should stop, as

the Chief Justice said, to bring him in was not in	the course of the discussion of a matter of public
interest.

In any event, if that were wrong, it had to

come in as a matter for the jury, and it should

have been left to the jury, because they could have

formed a view that what His Honour thought was

quite reasonable arguments as how they should find

the matter, might be completely different from what

a jury might have thought. They might have thought

it was the most extravagant hype, as it were, to

get him in in that way. And, the other point, in

relation to the jurors' affidavits - I think these

matters have all been covered - I see that the

light is on - the other matters have all been

Bellino.V 30/6/94

covered in the argument in the summary. So far as

that part is concerned, we point out that it does

not infri~ge the material in Wigrnore, paragraphs 2,

3, 4, S, at pages 676 and 8. We say that the

jury's - to take evidence from the jury breaches

either the privilege communication rule, or the

power of evidence rule. We say the affidavits in

this case do not do that, neither do they

contradict the answers. They do not say we did not

give the right answers; they say that we believe -

the jurors said, "We believed, in fact, that it was

wrong that, in fact, he was named. It was not

necessary for him to be named at all and he should

not have been named and that is why we wanted to

give him damages."

So the relevance in this particular case only

is confirmatory of it. The jury, in fact, could not find a place to make that particular finding, because they were not given any question which they

could answer. Question 3, once one sees it, quite

clearly was as counsel in the trial has said, was,

as it were, a motherhood issue and could only be

answered yes. The matter is, while we say it is special leave, it is a case clearly that is very

badly miscarried. It should have been a simple

case, but there is a number of important matters in

it and the way the Full Court and the Court of

Appeal's judgment - - -

MASON CJ:	I think this is covered in your materials.
MR HAMPSON:	Yes, I think all the rest is covered.
MASON CJ: Thank you, Mr Hampson. Yes, Mr Mulholland.	We

need not trouble you on the affidavits.

MR MULHOLLAND:  Thank you, Your Honour. Your Honours, at

the trial the arguments of the applicant concerning

the manner and extent and relevance were based on

the identification of the applicant by name in a
context where other persons were not named.	No

member of the Court of Appeal was of the view that

relevance should have been decided by the jury.

The reason why His Honour Justice Davies decided

that it was relevant appears at page 79, where

His Honour said:

As to relevance, the structure of the

programme was to present a chronological

account of allegations of corruption in the

Queensland Police Force, to show the

hierarchical structure of the corruption and

to show, by the example of the Bellinos, how

the structure extended from the Gold Coast
through Brisbane to North Queensland. The

allegation against the appellant was that he

Bellino.V 10 30/6/94

took a leading part in the drug trade and

aspects of police corruption. The question is

not whether it was necessary to name him but

whether it was relevant to do so. As it was

his family which made the connection between

North Queensland and the south it was

relevant. His Honour was entitled to withdraw

that question from the jury.

GAUDRON J: But was he? I mean, His Honour was only

entitled to withdraw it from the jury if there was

no evidence on which they could find it was not

relevant, was he not?

MR MULHOLLAND: That is so, if there was no evidence that

would allow a jury to decide that question the

other way, and we submit, Your Honour, that in

relation to that, once one accepted the subjects,

particularly in relation to the history of it as

presented by His Honour at that point - - -

GAUDRON J: Yes, but that is not the basis on which it went

to the jury either. The basis on which it went to

the jury was not that that was the subject-matter

instruction. It went on the broad general issues.

MR MULHOLLAND:  It went to the jury with His Honour telling

them was the subject were, and those subjects were:

it was never contested by the defendant that those

were the subjects of the programme, and here the

plaintiff sued upon the whole programme,

Your Honour. The approach of His Honour,

Mr Justice Demack, can be seen at page 85, and then

at 89, particularly starting at line 15:

While the allegations in Parliament had been

made years before, the effect of the

references to Bellino both in Parliament and

later was to emphasise that the alleged

corruption was widespread in time and in

region, and was resistant to public exposure.

The other question, so far as the public discussion

was concerned, is a question that was suggested by

the plaintiff himself. The plaintiff sought to

have the question go to the jury, "Was the public
discussion of the plaintiff a matter of public
interest for the public benefit?" rather than, "Was
the public discussion of the subject or subjects
for the public benefit?" Now, while His Honour put

it in the words of the section, His Honour, in

effect, allowed that question to be decided by the

jury and His Honour dealt with this, and it is a

convenient place to refer Your Honours to what

happened, at page 49 - this is on the application

to overturn the jury's verdict - His Honour said,

having referred to the question that was put:

Bellino.v 11 30/6/94

The whole theme of Mr McCreanor's address on

question 3 was that the broadcasting of

Mr Bellino's name in connection with the allegations of corruption in North Queensland

was unjustified when his right to his

reputation was balanced against the public

benefit in having corruption exposed. That is

to say that the public discussion of

Mr Bellino's name in discussing matters of

public interest was not for the public

benefit -

and so on, and he quotes from the last question,

that was the last statement that was made by the

applicant's counsel. So, in effect, the applicant

ended up - although the question did not go in that

way - with precisely what he wanted. And I might

say this was over the objection of the respondent. Instead of asking the question in the words of the

section, His Honour put it to the jury in the way

that had been effectively sought, which was one of

really the two points in contest in the case. respondent's witnesses in the case related to

whether or not inquiries had been made whether

checks had been made. So, His Honour allowed

recklessness to go in the context of whether or not

there had been an improper motive.

The other point that was raised was whether it

was necessary to name, and the way in which, apart

from seeking to rely upon it on relevance and

manner and extent, but not in relation to improper

motive, which is the point that His Honour

Mr Justice Davies makes, apart from that, the

applicant sought to have the question go in that

way, "Was the public discussion of the plaintiff a

matter of public interest for the public benefit?"

But, of course, that was not the question. That

was really one for the jury, because the section

requires that the publication, that is the

defamatory matter, must be for the purposes of, or

in the course of, the discussion of a subject of

public interest, the public discussion of which is

for the public benefit. As we understand our

learned friend's argument, it is that really the

public discussion has to be about the plaintiff's

affairs, but that, with respect, is contrary to the

section. If that were the position - - -

DEANE J:  Who defines the subject?

MR MULHOLLAND: First of all the defendant particularizes

the subject.

DEANE J:  I know the defendant did, and particularized three

extraordinarily wide statements, but is that not

Bellino.V 12 30/6/94

the first question in the case, "What was the

relevant subject?", and was not the relevant

the plaintiff's activities? subject here something which expressly brought in

MR MULHOLLAND: That particular question was not sought, no,

Your Honour. There was never any contest -

DEANE J: Something very close was sought at page 20 of the

application book, in the middle paragraph.

MR MULHOLLAND:  Yes. This occurred after the summing up, of

course, in a situation.where counsel, who then made

this application, had not been there when the

submissions had·been made before the summing up.

DEANE J: Is that not the point though that

Chief Justice Macrossan was making? To change his

example: if you say it is a subject of public

interest whether there is excessive prostitution in

Brisbane, can you, in discussion of that, go round in good faith naming 200 housewives and, provided

it is relevant, to identify 200 housewives as a

topic involved in the subject of too much

prostitution in Brisbane, you have got a qualified

privilege defence?

MR MULHOLLAND:  Your Honour, there would have to be a nexus

between the two.

DEANE J: Would the nexus not be the subject is whether

Mrs Xis a prostitute or, alternatively, whether

the subject is whether there is too much
prostitution in Brisbane, including the activities

of Mrs X?

MR MULHOLLAND:  Your Honour, in looking at that, of course,

the authorities suggested the whole of the

surrounding circumstances have to be considered,

the circumstances in which it was published: when,

why, how and so on.	Now, that sort of example is
not really - can be compared here. Here, it was

quite integral - going back to what His Honour

Justice Davies said in the Court of Appeal, it was

quite integral to the subject that was being

discussed, to discuss the Bellinos as an example of

that protection that was operating.

DEANE J:  I can see the force of that but may that not mean

that the Bellinos should have been spelt out in the

question so that the jury, in answering whether

discussion of the subject was for the public

benefit, could direct their mind to whether the

discussion - including the naming of the plaintiff?

MR MULHOLLAND:  Your Honour, that statement that appears

there which is not - - -

Bellino.V 13 30/6/94

DEANE J:  Mr Mulholland, I am not indicating any view on it,

it just seems to me to be a difficult question.

MR MULHOLLAND:  Yes. Yes, Your Honour. I was going to say,

Your Honour, that when the draft questions were

posed by the plaintiff, '~here was no suggestion

that any question ought to be asked in relation to

the subject; as to whether or not the subjects

or not. raised by the defendant were appropriate subjects

DEANE J:  I see the force of that but at the end of the day

it seems to have been pretty apparent that the

plaintiff was dissatis~ied because the public
benefit. question was left in a way that said

nothing about him.

MR MULHOLLAND:  Your Honour, the plaintiff was really

dissatisfied because he did not have the question

go to the jury which he wanted to go, namely, "Was

the public discussion of the plaintiff a matter of

public interest for the public benefit?" Now,

that, of course, is not the question, if one looks at the particular section of the Code which refers

to this. His Honour put precisely what the section

refers to. But in the end, what the plaintiff got

w.as precisely what he desired in the first place.

While the question did not refer to the plaintiff,

in directing the jury in relation to that question,

His Honour asked the jury to consider the question, on the one hand, of the right to the protection of one's reputation and, on the other hand, the right of the public to know.

GAUDRON J: It seems to me, however, very difficult to

answer that question even as a balancing exercise

unless you have some very clear idea of what the

topic of discussion is.

MR MULHOLLAND:	His Honour did tell the jury during the course of his summing up what the subjects as
particularized by the Crown was.
GAUDRON J:	If you take that, why does there even come a

balancing? If you take them in all their

generality, one would have thought that there

really was not a lot of scope for any balancing

exercise in terms of the public discussion.

MR MULHOLLAND:  There was a balancing exercise in the sense

that if the jury was of the view that it was not

necessary to name the applicant, that is to say -

and this was the whole point of the applicant

below - that he could have been referred to

anonymously was the argument.	He should have been
referred to anonymously.	He should not have been
mentioned by name.	The jury were directed in

Bellino.V 14 30/6/94

virtually the terms that were sought by his

counsel, because if the jury, following

His Honour's direction, was of the view that it was

not necessary to name the plaintiff, then they

would have answered question 3 the other way.

Those are our submissions, Your Honour.

MASON CJ: Yes, Mr Hampson.

MR HAMPSON:  If I could just say one thing. One of the

things, I think, Your Honour may have had in mind

was that very fact, that the applicant, the

plaintiff below, did try to have that question 3

asked in a way that brought him into it, which was

the point I think Your Honour was making, and that,

indeed, appears in paragraph 3.9 of our learned

friends' summary of outline where they say, "As to
question 3, the draft question posed by the
applicant was in these terms: 'Was the public

discussion of the plaintiff a matter of public

interest for tt	~blic benefit?'" That was not
allowed, of co~	the other question 3 was asked.
But had that be	.sked in that form, it would have

allowed the juI;; 1en to have done some balancing exercise or, rea !, they would have had at least

an identificatio: Jf a subject, in our submission,

which would have ~evented the trial from

miscarrying as i: iid.

MASON CJ:  Now, Mr HampSO; your draft notice of appeal

seems to raise c;	inds that go beyond the points
that you have Sf:	tfically argued.  ·

MR HAMPSON:  I think 10 2 11 would have to come - 10

certainly has tc	~me out on what the Court has
said already.

MASON CJ: Yes, and 11 £ ; to go - 11 is only

consequential.	1t about 8? What is 8 directed
to?

MR HAMPSON: 

It is really, I think, another way of trying to

take Mr Justice Windeyer's statement and say if you
are going to take special questions from a jury -
it.is not a special verdict but you are going to

ask them special questions - you have to formulate

those specific questions carefully. That is what

it amounted to, I think. In so far as the majority in the Court of Appeal failed to state that that in

fact was what was not done here.

MASON CJ: In other words, these two grounds, 8 and 9, are

not going beyond anything that you have argued so

far?

MR HAMPSON:  No, they are different aspects or facets, I

think, Your Honour, of what I have submitted here.

Bellino.V 15 30/6/94

MASON CJ:  And otherwise the notice of appeal is intended to

do no more than cover the matters argued?

MR HAMPSON: That is our intention, yes, Your Honour.

MASON CJ: All right. All you need to do then is to re-form

the notice of appeal by excluding 10, the ground

that relates to the affidavit.

MR HAMPSON: That is so, Your Honour.

DEANE J: But once ground 10 disappears, order (a) must

disappear also, must it not?

MR HAMPSON:  Yes, that is so, Your Honour.

DEANE J: There is no way you could get anything other than

a new trial.

MR HAMPSON:  No, that is so. Well, the only way it could

happen - yes, but the difficulty would be, I think

I would have to - there are two steps in that,

Your Honour. The first step would be I could argue

if we succeeded on the first question, the way the

Chief Justice's decision went for argument sake,

there would be no defence then at all open to the

defendant and we could get damages. But they have an appeal in for excessive damages and I apprehend

that in view of more recent decisions of this

Court, decisions which occurred after the hearing

of this case, that that award would not stand. So,

taking the two steps, Your Honour Justice Deane, I

would agree that in a practical sense 11 would have

to go too.

MASON CJ: Very well. There will be a grant of special

leave in this case.

AT 4.42 PM THE MATTER WAS ADJOURNED SINE DIE

Bellino.v 16 30/6/94