Bowes v Fehlberg (No 2)
[2001] TASSC 24
•14 March 2001
[2001] TASSC 24
CITATION: Bowes v Fehlberg & Ors (No 2) [2001] TASSC 24
PARTIES: BOWES, John Robert
v
FEHLBERG, Ivan Robertson
AMOS, Julian John
THE AUSTRALIAN BROADCASTING CORPORATION
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 1602/1994
DELIVERED ON: 14 March 2001
DELIVERED AT: Hobart
HEARING DATES: 20 and 23 October 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
Defamation - Statements amounting to defamation - In general - Imputations - Standard by which defamatory meaning determined - Question of law for judge whether words capable of bearing defamatory meaning - Natural and ordinary meaning.
Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, applied.
Bowes v Fehlberg & Ors 53/1997, followed.
Aust Dig Defamation [6]
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Amendments - Amendment of statement of claim - Discretion of court - Whether proposed amendment would be so obviously futile it would be struck out of an original pleading.
Commissioner for Railways v Bielewicz [1963] NSWR 482; Horton v Jones (No 2) (1939) 39 SR (NSW) 305, applied.
Coyne v West Australian Newspapers Ltd (No 1) (1995) 15 WAR 51; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Vasta v Queensland Newspapers Pty Ltd [1991] 2 Qd R 354, referred to.
Bowes v Fehlberg & Ors 53/1997, followed.
Aust Dig Procedure [276]
REPRESENTATION:
Counsel:
Plaintiff/Applicant: P W Tree
Respondent/Defendant Fehlberg: J W Avery
Respondent/Defendant Amos: D F M Zeeman
Respondent/Defendant Australian Broadcasting Corporation: K B Procter
Solicitors:
Plaintiff/Applicant: Hugh Murray
Respondent Defendant Fehlberg: John Avery
Respondent Defendant Amos: Butler McIntyre & Butler
Respondent Defendant Australian Broadcasting Corporation: Murdoch Clarke
Judgment Number: [2001] TASSC 24
Number of Paragraphs: 33
Serial No 24/2001
File No 1602/1994
JOHN ROBERT BOWES v IVAN ROBERTSON FEHLBERG, JULIAN JOHN AMOS and THE AUSTRALIAN BROADCASTING CORPORATION (NO 2)
REASONS FOR JUDGMENT UNDERWOOD J
14 March 2001
Introduction
These proceedings commenced on 22 September 1994 but have since made little progress. In 1997 the plaintiff applied for leave to make substantial amendments to the statement of claim. Crawford J refused to grant leave with respect to the majority of the proposed amendments, but gave leave to make some amendments (Bowes v Fehlberg & Ors 53/1997). However, the plaintiff did not take advantage of the leave that was granted to him, and by virtue of the then Rules of Court, O31, r8, the order giving leave became void.
The plaintiff appealed against the refusal to grant leave. The appeal was dismissed (Bowes v Fehlberg & Ors 43/1998). All the members of the Full Court, of which I was one, were of the view that none of the proposed amendments should have been allowed. However, by a majority, it was held that as there was no cross-appeal, the only order that could be made was an order dismissing the appeal.
Now, almost six years after the writ was filed, there is another application to amend the statement of claim. The proposed statement of claim bears little resemblance to the original statement of claim. Mr Tree, who appeared for the applicant/plaintiff, described the proposed statement of claim as "entirely new ¾with nothing to underline, or rather, it is all underlined". The writ was issued against five defendants but the plaintiff is no longer proceeding against the second and third defendants, Gwendoline Ruth Goodwin ("Goodwin") and Graeme Walter Phillip Stokes ("Stokes").
By way of general description of the proceedings it would be hard to improve on the first three paragraphs of the judgment of Wright J on the appeal from the refusal to grant leave to amend:
"The appellant has sued the three makers of statutory declarations, a Labor Member of the House of Assembly and the Australian Broadcasting Corporation in respect of a series of allegations made in 1994 concerning conversations allegedly occurring between the appellant and the first three respondents relating to the proposed surveillance of a Liberal Member of Parliament.
From the outset, the allegations were confused, imprecise and vague and, if the material contained in the statutory declarations, whether true or false, had not been misunderstood or misinterpreted by the fourth and fifth named respondents, it is likely that nothing would have come of them.
It is plain, however, that, for some reason, the fourth respondent imbued the allegations which had been made with grave and sinister implications, both for the Premier of the day and the appellant, who, at the time, was the Premier's private secretary. This attitude appears to have been fostered and advanced by the fifth respondent's employees who, in discussing the issues on radio and television, used language and presentation techniques which hinted at impropriety, skulduggery and deceit on the part of the appellant and the Premier."
The proposed statement of claim, pars1 - 3
Non-contentiously, the proposed statement of claim pleads:
"1 The plaintiff was the private secretary to the Premier, Ray Groom.
2 The second defendant was a member of the House of Assembly and the Labor Party.
3 That the third defendant was and is a broadcaster.
There is no averment with respect to the position of the first defendant ('Fehlberg')."
The proposed statement of claim, pars4 - 7
Annexed to the statement of claim are nine documents. The first three ("A", "B", and "C") are statutory declarations made on 20 September 1994 by the first defendant ("Fehlberg") and the former defendants Goodwin and Stokes, respectively. In a nutshell, A, B and C, evidence that in January 1993, as a result of "certain observations" by Fehlberg and Stokes, Fehlberg "became concerned about the behaviour of a particular Member of Parliament and its possible adverse effect on the Liberal Party". According to the declarations, Goodwin was the Administration Manager for the Liberal Party in Tasmania and Mr Lister was the State Director. By arrangement made by Goodwin, Fehlberg and Stokes saw Mr Lister and expressed their concerns to him. Later, Fehlberg expressed his concerns to the plaintiff and par4 of A provides, in part:
"I explained my concern to John Bowes and at one stage he responded by saying words to the effect: 'We would like to slide him off the seat' … On or about Wednesday the 21st April, 1993 I again rang John Bowes to express my concern about his failure to arrange such a meeting and he said: 'Is that still going on?' I said would you like us to check to which he responded: 'Yes'."
By par6 of A, Fehlberg deposes that on 27 April 1993, he told the plaintiff:
"… that the particular member of parliament was still engaging in that particular activity to which [the plaintiff] said: 'What on earth is he doing down here ... on a Friday night'. During the course of that discussion, [the plaintiff] said what the Premier really needs is a photograph …. before he can go any further. I said to John Bowes words to the effect: 'You can't do that John' and he then suggested that I could get someone to do it and asked me if I knew someone. I said I had just sold a property for Kevin Pelham and he may be able to do it."
Statutory declaration C deposes that Fehlberg reported the substance of the foregoing to Stokes.
The original statement of claim alleges that by these statutory declarations Fehlberg, Goodwin and Stokes defamed the plaintiff. The application to amend which was determined by Crawford J sought to plead the following false innuendoes arose from statutory declarations A and C, viz:
(a) that the plaintiff wanted a compromising photograph taken of a Member of Parliament;
(b) that the plaintiff wanted covert surveillance undertaken of a Member of Parliament;
(c) that the plaintiff wanted, by covert means, to remove a Member of Parliament from his seat;
(d) that the plaintiff wanted to obtain material in order to blackmail a Member of Parliament;
(e)that the plaintiff was prepared to engage in criminal conduct in order to remove a Member of Parliament.
In the case of Goodwin (declaration B), the proposed amendment sought only to plead false innuendos (a), (b) and (d) above. It was contended by the defendants that the words in A, B and C were incapable of bearing any of the foregoing defamatory innuendoes. With respect to the determination of that issue, Crawford J set out the following statement of the law at 1 - 2, which I gratefully adopt:
"Throughout the proposed statement of claim the defamatory meanings relied upon are said to be the natural and ordinary meanings of the words published. In that circumstance, the test for determining whether the respective publication relied upon bears the defamatory meanings attributed to it, has been stated as whether reasonable persons (Capital and Counties Bank v Henty (1882) LR 7 App Cas 741 per Lord Selbourne at 745) or right - thinking members of society generally (Sim v Stretch (1936) 52 TLR 669 per Lord Atkin at 671) or ordinary persons not avid for scandal (Lewis v Daily Telegraph Ltd [1964] AC 234 per Lord Reid at 260) would understand the published words in a defamatory sense. That question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the defamatory meaning is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a social standard by which to judge the defamatory character of that imputation, being a standard common to society generally. Reader's Digest Services Pty Ltd v Lamb (1981 - 1982) 150 CLR 500 per Brennan J at 505 - 506. They do not however live in ivory towers and are not inhibited by a knowledge of the rules of construction. They can and do read between the lines in the light of their general knowledge and experience of worldly affairs. Lewis v Daily TelegraphLtd (supra) per Lord Reid at 258. It is the broad impression conveyed by the words that has to be considered and not the meaning of each word under analysis. Lord Devlin at 285. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 304. Some amount of loose thinking must be accepted. The ordinary reader does not formulate reasons in his own mind: he gets a general impression. One can expect him to look again before coming to a conclusion and acting on it, but formulated reasons are very often an afterthought. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 per Lord Reid at 1245."
Crawford J held that as neither A, B, nor C spelt out the nature of the behaviour of a certain Member of Parliament, it was impossible to know whether the plaintiff's alleged desire to see the termination of that member's public office and the alleged means of attaining this end were or were not reasonable and justified. He accordingly refused leave to plead those innuendoes. That ruling was upheld by the Full Court.
The present application for leave to amend, by pars4 - 7 simply refers to the existence of, and the contents of A, B and C as facts. There is no longer any allegation that any part of those documents is defamatory of the plaintiff, but I have set out the material in Crawford J's judgment because it is relevant to the present application.
The proposed statement of claim, pars8 and 9
Annexed to the proposed statement of claim are transcripts of 6 broadcasts by the ABC. They are:
| 20.09.94 | Annexure D | TV News. |
| 20.09.94 | Annexure E | 7:30 Report - an interview between Tim Lester ("Lester") and the second defendant ("Amos"). |
| 21.09.94 | Annexure F | 7.30 Report - principally an interview between Lester and Fehlberg with some background. |
| 21.09.94 | Annexure G | Radio interview between Mr Nielsen ("Nielsen") and Amos. |
| 22.09.94 | Annexure H | Radio interview between Terry Long ("Long") and Amos. |
| 22.09.94 | Annexure I | 7:30 Report - principally an interview between Lester and Rick Snell. |
I attach annexures F - I to these reasons for judgment. Consideration of the proposed statement of claim is not assisted by the following:
the fourth page of the transcript of H does not form part of the annexure;
G was broadcast before F; and
throughout the proposed amendments, D - I are sometimes referred to by letter, sometimes referred to as the 1st, 2nd, 3rd and 4th ABC telecast, and the 1st and 2nd ABC broadcast and, with respect to F, G and H, sometimes referred to as the 2nd, 3rd and 4th interview.
Paragraphs 8 and 9 respectively allege that the ABC published in its television news, the words in annexure D and in the following "7.30 Report", the words in annexure E. Annexure D repeats part of Fehlberg's statutory declaration (A) and states that the second defendant ("Amos") was "renew[ing] his call for an inquiry". Annexure E is an interview between Lester and Amos. In the interview, the contents of A are not repeated, apart from a passing reference to "slide him off his seat". The discussion in the interview centres on the need for an inquiry and "a very very serious breech [sic] in terms of the operations of the Premier's Office". The proposed pars8 - 9 do not allege that annexures D and E contain any defamatory material.
The proposed statement of claim, pars10 - 21
Proposed pars10 - 21 refer to four broadcasts by the ABC, the transcripts of which are to be found in F - I inclusive and, with respect to each broadcast, the proposed statement of claim alleges that the ABC broadcast the material of and concerning the plaintiff in his office as private secretary to the then Premier. With respect to each broadcast, the proposed statement of claim pleads the innuendos that arise from the words spoken and alleges that each broadcast was defamatory of the plaintiff.
Upon the application for leave determined by Crawford J, the proposed pleading relied only on false innuendo. Upon the present application the plaintiff seeks to plead true innuendo with respect to some broadcasts and false innuendo with respect to others. Some of the proposed pleadings contain typographical and other errors which Mr Tree sought to correct as the application progressed. I shall deal with this application as if those errors have all been rectified.
With respect to annexure G, the false innuendo sought to be pleaded is that:
"(a)the plaintiff wanted a compromising photograph taken of a duly elected member of the Tasmanian Parliament;
(b)that the plaintiff wanted covert surveillance to be undertaken on a duly elected member of the Tasmania Parliament;
(c)that the matters in (a) and (b) above were inappropriate; and
(d)that the matters referred in (a) and (b) above could be handed to the Director of Public Prosecutions and the police."
It will be seen from annexure G that although there is reference to the contents of A, B and C, the nature of the behaviour of the particular Member of Parliament is not disclosed and the situation remains that without such disclosure, it would be impossible for a reasonable person to determine whether or not the desire to see the termination of that Member's public office and the means (not alleged to be contrary to the law) by which that could be achieved, were or were not reasonable and justified. In the broadcast there is a reference to "allegations that impropriety occurred in the Premier's office" and that a possible option included "handing them [the issues raised by the statutory declarations] now to the Director of Public Prosecutions, handing them to the police …". However, without knowing what the impugned behaviour was, it seems to me that innuendos (a) and (b) cannot arise and in this latter respect, I find myself in respectful disagreement with Crawford J when he said at 12:
"A reasonable person could conclude that the fourth defendant was saying that the plaintiff wanted covert surveillance undertaken of a member of Parliament and wanted a compromising photograph taken of the member. To publish only that the plaintiff wanted those things to occur could not be defamatory of him, but by adding, if he did, that impropriety had occurred in the Premier's Office and that the issue could be handed to the Director of Public Prosecutions and the police, arguably might lead a reasonable person to conclude that imputations (a) and (b) were defamatory of the plaintiff."
Imputations (c) and (d) were not sought to be pleaded upon the application before Crawford J. The question now is whether those imputations are so obviously untenable that to permit the amendment would be an exercise in futility. Imputation (d) is a little difficult to understand. Read literally, the proposal is to plead that the desire to have a compromising photograph taken and the desire for covert surveillance "could" be handed to the Director of Public Prosecutions and the police. This makes no sense and certainly is incapable of being defamatory of the plaintiff. However, even if the plea were that the matters that gave rise to the desire to take such a photograph and to conduct covert surveillance were matters that could be handed to the Director of Public Prosecutions and the police, such innuendo could not be defamatory of the plaintiff for without knowing what those matters were it would be impossible to conclude whether or not handing them to the Director of Public Prosecutions and the police was or was not appropriate or proper. It seems to me that that proposition applies with equal force to both pars(c) and (d).
Issue estoppel
During the course of submissions, Mr Tree submitted that with respect to the words published in G, Crawford J had given leave to amend to plead innuendos (a) and (b) and that matter was res judicata or, by virtue of the principle of issue estoppel, conclusively determined. However, I reject that submission on two bases. Firstly, Crawford J's order ceased to have any effect because the plaintiff did not deliver an amended statement of claim in accordance with the leave given within 14 days of either the order of Crawford J or of the order of the Full Court dismissing the appeal. The order giving leave to amend is void by virtue of the then Rules of Court O31, r8, which provided:
"8 If a party who has obtained an order for leave to amend a pleading delivered by him (not being an order made in the course of a trial which proceeds on the amended pleading) does not amend the same within the time limited for that purpose by the order, or, if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a judge."
Secondly, before the principle of res judicata or issue estoppel has effect, there must be a final judgment. See Bienvenu v Royal Society for Protection of Animals [1967] VR 656; Re Buckley; Ex parte James Hardie & Co Pty Ltd (1976) 27 FLR 496; Wilson v Union Insurance Co (1992) 112 FLR 166. The order of Crawford J was an interlocutory order giving the plaintiff leave to make certain amendments to the statement of claim. At 2 - 3 of his reasons for judgment, his Honour made it perfectly clear that the question of whether, as a matter of law, the pleaded words were capable, in their natural and ordinary meaning, of bearing a defamatory meaning was an issue for the trial judge to determine. As he said at 2, the question for his Honour upon an interlocutory application was whether or not:
"… the imputation contended for is so obviously untenable that it cannot possibly succeed or, to put it differently, is manifestly groundless. Coyne v West Australian Newspapers Ltd (No 1) (1995) 15 WAR 51 at 57; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Vasta v Queensland Newspapers Pty Ltd [1991] 2 Qd R 354 at 358."
In this respect the proceedings before Crawford J were entirely different from the proceedings before his Honour in Downie & Anor v Tasmanian Eye Clinics Pty Ltd & Anor 42/1999. In that case there was a determination of a preliminary point of law pursuant to the then Rules of Court, O28, r2, whether the pleaded words were capable of bearing a defamatory meaning. As his Honour observed at 1, his determination of a preliminary point of law was binding on the trial judge.
With respect to annexure F, the false innuendo sought to be pleaded is:
"(a) that the Plaintiff wanted covert surveillance to be undertaken on a duly elected member of the Tasmanian Parliament namely the Speaker of the House of Assembly, Mr Graeme Page for the purpose of obtaining a compromising photograph of Mr Page with a woman, and
(b) that the plaintiff wanted by the covert means referred to in (a) above to remove Mr Page from his seat in the Tasmanian Parliament."
As can be seen from the transcript of this broadcast, a reasonable person might conclude that the person in the Premier's office was the plaintiff and that the person of whom covert surveillance was sought was indeed Mr Page. Further, a reasonable person could conclude that the plaintiff wanted to remove Mr Page from his seat in Parliament. The proposed innuendos (a) and (b), although worded slightly differently, are in substance the same as innuendos (a), (b) and (c) which were considered by Crawford J on the first application to amend and later by the Full Court. As counsel for the ABC submitted in the Full Court, if those innuendos did not arise from the statements in the statutory declarations, they could not arise from a re-broadcast of them by the ABC. There is nothing in the transcript of broadcast F which affects that proposition. It may be noted in passing that Crawford J held that the contents of the last 31/2 pages of F "were plainly not defamatory of the plaintiff and to include them would be embarrassing". Although those pages are still included, Mr Tree conceded that they should be excised in any event.
With respect to broadcast H, the plaintiff seeks to plead for the first time, the following true innuendos:
"(a)that the plaintiff wanted covert surveillance to be undertaken on a duly elected member of the Tasmanian Parliament namely the Speaker of the House of Assembly, Mr Graeme Page for the purpose of obtaining a compromising photograph of Mr Page with a woman, and
(b)that the plaintiff wanted by the covert means referred to in (a) above to remove Mr Page from his seat in the Tasmanian Parliament;
(c)that the behaviour of the plaintiff was impropriates, (sic) and
(d)that the issue of the behaviour of the plaintiff could be handed by the Premier to the Director of Public Prosecutions and the police."
It can be seen from the transcript of this radio broadcast that the principal allegations of covert surveillance, a covert photograph and wishing to slide Mr Page off his seat are repeated. The only addition to that material is a quote from Goodwin's statutory declaration, "I then received a telephone call from John Bowes during which he told me that he had asked Mr Fehlberg to get a photograph of those particular persons." This quote does no more than repeat one of the principal allegations. The proposed pleading, par17, sets out particulars of the true innuendo. These particulars allege that by broadcast H, the hypothetical listener would have understood the ABC to have intended it to be an adoption, repetition and/or approval of broadcasts F and G. With respect to the latter two broadcasts, the proposed amendment repeats the innuendos earlier pleaded with respect to these two broadcasts. Assuming that a reasonable listener to broadcast H could have understood the ABC to be adopting, repeating and/or approving broadcasts F and G, such repetition and adoption adds nothing to the primary proposition that without knowing what the impugned behaviour was alleged to have been, it would be impossible for the reasonable person to conclude whether or not innuendos particularised in pars(a) - (d), were capable of being defamatory of the plaintiff.
Finally, with respect to broadcast I, the plaintiff again seeks to plead true innuendo. The innuendo sought to be alleged is the same as is sought to be alleged with respect to broadcast H and which I have set out above. With respect to this broadcast, I agree with Crawford J when he said at 21 of his reasons for judgment:
"A reasonable person could conclude from what was said that the plaintiff, who was the Premier's Private Secretary, asked for a photograph of the Speaker of the House of Assembly, Mr Graeme Page, because the Premier said he needed it before he could go any further. A reasonable person could not possibly have concluded from those words that the plaintiff wanted the photograph to be a compromising one, that the plaintiff wanted covert surveillance of the Speaker and that the plaintiff wanted the surveillance undertaken and the photograph obtained in order to remove the Speaker from his seat. A reasonable person could not possibly conclude that the words spoken, in their natural and ordinary meaning, were defamatory of the plaintiff."
At the time of the application to Crawford J the plaintiff relied on false innuendo, but as I have said, the plea this time is true innuendo. The facts and circumstances upon which the plaintiff seeks to rely to establish true innuendo are that a reasonable person would have understood from I that the ABC intended to adopt, repeat and/or approve broadcasts F and G, and also that a substantial number of viewers/listeners would have seen/heard F and G and remembered the gist of those broadcasts. With respect to those broadcasts, the proposed amendment repeats the innuendos earlier pleaded with respect to each of them. Assuming that a reasonable listener could conclude that by broadcast I the ABC intended to repeat and adopt broadcasts F and G, it could be said that that listener could conclude that the plaintiff wanted the photograph to be a compromising one, that the plaintiff wanted covert surveillance of the Speaker and that the plaintiff wanted the surveillance undertaken and the photograph obtained in order to remove the Speaker from his seat. Notwithstanding this, without knowing the nature of the impugned behaviour the reasonable listener would not know whether such conduct was reasonable and appropriate or not. The absence of this key matter affects all the proposed amendments against the ABC.
Should the plaintiff be given leave to plead the proposed innuendos and the related paragraphs against the ABC? As set out earlier, the appropriate principle was expressed by Crawford J viz, leave to amend should be refused if "the imputation contended for is so obviously untenable that it cannot possibly succeed or, to put it differently, is manifestly groundless." In my view, the proposed innuendos are so untenable that to permit them to be made would be an exercise in futility and with respect to the ABC, the application should be dismissed.
The proposed statement of claim, pars22 - 33
These proposed amendments concern Amos. They relate to broadcasts G and H. With respect to each, it is proposed to plead that Amos consented to the broadcasts knowing and intending that the ABC would publish them throughout the State of Tasmania. With respect to broadcast G, the proposed amendment sets out the same false innuendo that is pleaded against the ABC and with respect to broadcast H, the proposed amendment sets out the same true innuendo and the same basis for that innuendo as is pleaded against the ABC. For the reasons already given, I am of the opinion that the proposed innuendos are so untenable that to permit them to be made would be an exercise in futility. With respect to Amos, the application should be dismissed.
The proposed statement of claim pars34 - 39
These paragraphs of the proposed statement of claim contain the only claim against Fehlberg. It relates to broadcast F. Consistent with the general design of the proposed statement of claim, the pleading against the first defendant appears last. It is proposed to plead that Fehlberg consented to the broadcast knowing and intending that the ABC would publish it throughout the State of Tasmania. With respect to this broadcast, the proposed amendment sets out a true innuendo, whereas the proposed plea against the ABC with respect to this broadcast is a false innuendo. The special knowledge firstly pleaded is the first part of broadcast F, being an interview with the Premier and later with Mr Graeme Page. It is pleaded that by this part of the broadcast it was said that the plaintiff wanted covert surveillance undertaken and that by covert means the plaintiff wanted to remove Mr Page from his seat in Parliament. The special knowledge secondly pleaded is broadcast G in which it was said that the behaviour of the plaintiff was inappropriate and the issue of the behaviour could be handed to the police or the Director of Public Prosecutions. It is pleaded that the ordinary listener would conclude that Fehlberg intended to adopt, repeat and/or approve of the part of broadcast F, just referred to, and broadcast G. The innuendo sought to be pleaded against Fehlberg is the same as that sought to be pleaded against the ABC with respect to broadcasts G and pars(c) and (d) with respect to broadcast G. Assuming all the allegations of fact to be established, for the reasons already given, I am of the opinion that all of the proposed innuendos are so untenable that to permit them to be made would be an exercise in futility. With respect to Fehlberg, the application should be dismissed.
It is ordered that the application for leave to amend the statement of claim filed on 26 April 2000 be dismissed.
Annexure "F"
TRANSCRIPT: 7.30 REPORT, ABC TV
SUBJECT: AMOS ALLEGATIONS
DATE: WEDNESDAY, 21 SEPTEMBER, 1994
Tim Lester: Now those claims and counter claims regarding allegations that the Premier's Office requested surveillance of a Liberal MP. Did it happen or was it part of a nasty personal vendetta against the politician. The allegations surfaced in three Statutory Declarations tabled yesterday in State Parliament. In a moment we will be speaking with one of those who makes the allegations, as well as the Private Detective who was hired to keep track of the MP. But what is behind these extraordinary claims. Are you able to tell us when you first heard of this?
Ray Groom: Look that's what Amos would want. That's what Amos would want. The fact is that there is nothing in it. It is complete nonsense, absolute nonsense and that is the situation.
Tim Lester: Surely that could help confirm your letter sent out to news organisations, though that you knew nothing about it. Fundamental to that is when you first heard of the incident.
Ray Groom: Well I heard about it some time ago. One of the journalists sitting here came and raised it with me. I knew about it prior to that and I discussed it with my colleague, the Parliamentary Member who has been mentioned. But the important thing is, there is nothing in it as far as I am concerned and my office is concerned.
Tim Lester: Mr Groom was responding to claims in three Statutory Declarations tabled in Parliament yesterday by the Opposition. In one of them, Real Estate Agent, Ivan Fehlberg, claims that he had spoken to a member of the Premier's staff, John Bowes, about the MP. Among some extraordinary claims is one that John Bowes said to Mr Fehlberg, "what the Premier really needs is a photography before he can go any further". Fehlberg later says he engaged a Private Detective to obtain a photograph as requested for the use of the Premier. The Premier has rejected all these allegations. Mr Groom says his staffer denies ever requested a photograph being taken and his staffer is actually a personal friend of the MP, who was the subject of the vendetta. But a second Statutory Declaration tabled yesterday also claims that John Bowes had requested a photograph of the MP under surveillance. Gwendoline Ruth Goodwin used to be the Administration Manager for the State Liberal Party. She says in her Stat Dec that Mr Fehlberg and another man, Florist Graeme Stokes, told the Director of the Liberal Party, Bob Lister, of their concerns in March last year. She claims that later she subsequently received a phone call from John Bowes, during which he told me that he had asked Mr Fehlberg to get a photograph of those particular persons. "But in any event, I was told by Bob Lister to drop it and the Liberal Party should not be involved". Well Mr Groom said the allegations are false and that they are the result of a personal vendetta against a Liberal colleague.
Ray Groom: (Excerpt from Parliament) Mr Speaker, he knows this matter had its commencement point when a person, who was not a member of Parliament, became obsessed with a young lady he had met, and tracked and harassed and stalked that young woman, incessantly day and night for a long period of time. Subjected her to surveillance, all kinds of harassment and pressures and then there was a vendetta against a member of this house.
Tim Lester: So who was the Liberal MP under surveillance. Well that was Speaker, Graeme Page, who spoke exclusively about it last year, to the 7.30 Report.
Judy Tierney: Mr Page how long have you known you have been under surveillance?
Graeme Page: Oh, I think quite a number of weeks now. I detected that perhaps some emphasis has been turned on to me.
Judy Tierney: What do you mean emphasis turned on to you?
Graeme Page: Well the situation here is that a personal friend, a family friend, someone who I have known for a long time, has been continually followed over the last 12 months and I have suggested on numerous occasions that the person ought to go and talk to the police about it. She was most concerned about that. Now I guess what has happened now is that I have become the prop, or the half‑way house if you like, because I felt that this couldn't be happening. I mean it is like a TV script, you know it is a figment of her imagination. Now quite often of an evening she would phone me and know that I was free, and I said I would have a meal with you. Then to find out that she was in a real state, because she was concerned about the fact that she was continually being phoned and she didn't want to have a relationship if you like, she just wanted to be left alone.
Tim Lester: Mr Fehlberg what contact did you have with the Premier's Office on this issue?
Ivan Fehlberg: The first contact that I had with the Premier's Office was to speak to John Bowes. I explained to John Bowes my concern that was going on with a particular MP. I said I didn't think it was correct for him to act in this way and I didn't think that he should be in that position that he is in. I said that he cross the floor, "yes he certainly did" he said. And as a matter of fact he said "we wouldn't mind sliding him off the seat".
Tim Lester: John Bowes, John Bowes said that to you?
Ivan Fehlberg: That was my first conversation with John Bowes.
Tim Lester: And he was referring to whom?
Ivan Fehlberg: Mr Page.
Tim Lester: Where did the conversation go from there?
Ivan Fehlberg: He was going to get us, which is Graeme Stokes and myself, try to get us an interview with the Premier and he .....
Tim Lester: And did he?
Ivan Fehlberg: No, no.
Tim Lester: How many telephone conversations did you have in all with John Bowes?
Ivan Fehlberg: There would have been several.
Tim Lester: What other important points do you believe were made in those telephone conversations?
Ivan Fehlberg: He said to me "Is this still going on, is this still going on", and I said well I understand it is, do you want us to check? And he said yes.
Tim Lester: When did the question of surveillance come up in your conversation with John Bowes and how?
Ivan Fehlberg: That was on that same phone call. He said to me "what the Premier would really need and we need a photograph, before we can go any further". And I said, I was stunned actually, because I said oh my heavens, I said I couldn't do that. And he said "well may be you could get somebody else to do it". I said well I would have to get somebody who was licensed to do something like that. He said "well do you know anybody" and I said yes I know somebody that I've just had a business deal with, sold his property for him, and I could contact him.
Tim Lester: The question of surveillance was raised by John Bowes and not yourself?
Ivan Fehlberg: Absolutely.
Tim Lester: You organised the security?
Ivan Fehlberg: Yes I went out myself, yes.
Tim Lester: What in the conversation, do you recall, gave you to believe that the Premier was aware of what was going on?
Ivan Fehlberg: Well he asked me, as I said before, for a photograph. And because that's what the Premier needs, before he can go any further. And he gave me to understand all through other phone calls that he had been talking to the Premier and that he was such a busy man.
Tim Lester: Given your recollections, John Bowes, gave you to believe that the Premier knew what was going on?
Ivan Fehlberg: Yes, I felt that way, yes.
Tim Lester: There is nothing specific in what John Bowes said though, that you can point to that proves that?
Ivan Fehlberg: Only that he asked me for a photograph because the Premier would need it before he could go any further.
Tim Lester: Today the Premier has said in Parliament that this started with a man's obsession with a young woman. The man stalked the woman incessantly and subjected her to surveillance and harassment and that man also has a personal vendetta against one of the Premier's colleagues. Are you that man?
Ivan Fehlberg: No I object to that. Strongly object to those accusations and I think if the Premier needs to get to the bottom and the truth of this, we would like to see a public inquiry into this whole affair.
Tim Lester: Do you believe that Ray Groom was referring to you when he made that statement?
Ivan Fehlberg: Well it seems so. I don't really know what was, I can't answer that really.
Tim Lester: Are any of the claims that Ray Groom makes in this statement true?
Ivan Fehlberg: Not to my knowledge, no, no.
Tim Lester: So you didn't stalk any woman?
Ivan Fehlberg: No, I deny that.
Tim Lester: And you didn't subject any woman to surveillance or harassment?
Ivan Fehlberg: No, I didn't.
Tim Lester: The 7.30 Report wants to make it absolutely clear that Mr Fehlberg's claims in no way establish that the Premier did have any knowledge of the alleged conversation between Mr Fehlberg and John Bowes. Well the surveillance of the Speaker of the House, Graeme Page, was carried out by Private Investigator, Kevin Pelham. He spoke of his involvement earlier today with Mike Swinson.
Mike Swinson: Kevin, can you tell me first how you got involved in this affair?
Kevin Pelham: What affair?
Mike Swinson: In this, what is suggested to be a surveillance operation of an MP?
Kevin Pelham: Well my answer to that Mike is I am not prepared to reveal any details or requirements or arrangements with my clients. If a client chooses to reveal details himself, that is his choice and it is not for me to do so. That is instructions from my solicitor, Mr Steven Chopping.
Mike Swinson: But you are not denying that you were involved in what amounted to a surveillance operation?
Kevin Pelham: No I am not denying that.
Mike Swinson: Can you tell me if you had a meeting with your client and another person at some stage, where a phone call was made to the Office of the Premier?
Kevin Pelham: Um, I am not prepared to reveal arrangements between my client and myself.
Mike Swinson: Can you tell me anything about a phone call that you made to verify the instructions that you were given?
Kevin Pelham: After receiving instructions from my client, I tried to ring the Premier. I was unable to contact him and despite my requests, my call was never returned. I had no contact with his staff or his Department.
Mike Swinson: One of these Statutory Declarations we have been given by a man called Graeme Walter Phillip Stokes, says that a Mr Fehlberg, Kevin Pelham and myself discussed this matter that we have been talking about at his premises. During the course of that discussion, Mr Pelham, made a phone call to what I believe was the Premier's Office. "I heard Mr Pelham say words to the effect, I suggest you talk to us as it would be well worth your time. I do not know to whom Mr Pelham was then talking". Can you tell me if that is an accurate recollection of that phone call?
Kevin Pelham: Yes I did make a phone call. I cannot recall who I spoke to. And my words I can recall, is that I mentioned to the person, if they could pass the message to the Premier, that I would like to clarify certain instructions, if they were passed, if that was the case.
Mike Swinson: You didn't ever get a phone call back?
Kevin Pelham: No I did not get a return phone call.
Mike Swinson: Have you been paid for this particular operation?
Kevin Pelham: I've been paid some. A certain amount of money yes.
Mike Swinson: Has your entire bill been paid?
Kevin Pelham: Well that's been my client and myself.
Mike Swinson: Are you happy with the relationship between yourself and your client?
Kevin Pelham: Well I have had no problems with my relationship with my clients.
Mike Swinson: Were you surprised at the nature of this request?
Kevin Pelham: Uh, yes.
Mike Swinson: I am just trying to get an understanding of whether this was beyond the normal work that a security operation like yours is involved in?
Kevin Pelham: No, it is. I have got to state this. I am not prepared to reveal arrangements between my clients and myself.
Mike Swinson: But you were surprised by the nature of this operation?
Kevin Pelham: In the beginning yes.
Mike Swinson: Nothing else you can tell me at all?
Kevin Pelham: No.
Mike Swinson: You can't tell me whether or not these people were, what these people wanted a photograph for me?
Kevin Pelham: No, I've mentioned I am not prepared to reveal arrangements between my client and myself.
Mike Swinson: All right, can you tell me if you were asked to get a photograph?
Kevin Pelham: I've got to repeat, I'm not prepared to disclose the deal.
Mike Swinson: Can you deny that you were asked to get a photograph?
Kevin Pelham: No.
Tim Lester: And that's all we have time for tonight.
Annexure "G"
TRANSCRIPT: Drive Time, ABC Radio
GUEST: Julian Amos ‑ Labor MP.
SUBJECT: Allegations by Amos
DATE: Wednesday, 21 September, 1994
Chris Neilson: According to Denison Labor MHA, Dr Julian Amos, State Premier Groom has failed in his duty to ensure that all allegations of impropriety against his office were properly investigated. He said Mr Groom was employing tried and true Liberal tactics to deflect attention away from the substance of the allegations. And Dr Amos has accused the Premier of shooting the messenger rather than addressing the allegations. We have Dr Amos on the line right now, good evening to you.
Julian Amos: Good afternoon.
Chris Neilson: Can you outline what is alleged to have happened?
Julian Amos: The allegations contained in the statutory declarations which I tabled in Parliament yesterday suggest the Premier's Office was involved in a move to carry out a covert surveillance on a Liberal MP with the view of obtaining information and a photograph of that MP, for whatever purpose.
Chris Neilson: You can't be more specific, what the photograph was for.
Julian Amos: Well I can't because I didn't order it. I wasn't in a position to determine why the photograph was sought, if indeed it was sought and that's a question you really have to ask of those who are making the allegations and those who are in the Premier's Office.
Chris Neilson: What's to be gained from this issue seeing the light of day, why have you decided to run with the issue?
Julian Amos: The issue goes to the heart of good Government. If the allegations are true it means that there has been an effort to carry out a covert surveillance on another MP and I believe that is a matter that required airing and I think it's a matter that requires resolution. I have called all the way through this only for the Premier to give an assurance that an investigation has or will be established, independent to go to the source of these allegations and determine the veracity or otherwise of them.
Chris Neilson: Do you have access to information that gives you a solid basis to work on?
Julian Amos: I have statutory declarations. They would appear to me to be solid enough for the matter to be aired. This is not idle rumour, statutory declarations are legal documents and as such they have the force of law.
Chris Neilson: The Premier has accused you of mud slinging and carrying out a vendetta. They're strong claims he's using to refute your allegations and he refutes them very strongly.
Julian Amos: And he may well do so but the point is who's throwing the mud? If he says that of me, does that mean that I'm throwing the mud or he's throwing the mud. All I have done is raised allegations continuing statutory declarations and asked the question of the Premier whether an investigation has or will be conducted to determine the veracity or otherwise of them. I don't believe that is slinging any mud what so ever. That is simply asking a question. It would appear that the person slinging the mud is the Premier, not me.
Chris Neilson: Is it possible that skull duggery has been going on and that the Premier himself genuinely doesn't know about it?
Julian Amos: Well that's a matter for an investigation to determine and in fact it is the only way in which that question can be properly answered. I'm in no position to answer that question, that is why I have asked for an investigation to establish the veracity or otherwise of these allegations. But I say this. The three people that have signed the statutory declarations are doing this with, well I see it to be honourable intent to determine, er, to bring to light the fact that in their view this incident occurred. Now it's up to the Premier to establish an investigation to determine the basis for these allegations and to take the appropriate action.
Chris Neilson: Do you have the full support of the Labor Party in your campaign?
Julian Amos: Of course.
Chris Neilson: The Premier has offered his side of the story this afternoon as we've just heard in some news on this station a few minutes ago, why does it need to go further, what will an investigation achieve?
Julian Amos: Well the investigation will determine whether or not the incident as alleged by those signing the statutory declarations occurred or did not occur. I think it is, if the Premier denies the allegations„ what is the substance, what is the basis of his denial? He must have a reason for denying it.
Chris Neilson: Yes, but he said.
Julian Amos: Well it's all very well for the Premier to say 'I am an honourable person and therefore it would not happen' but these things do happen under the wings of honourable people and he has to ensure that these incidents did not occur in which case he can make the statement that he's carried out an investigation, an independent investigation and found that to be the case, or that they did occur and that he has taken the appropriate action accordingly.
Chris Neilson: H says he's spoken to a staff member who's accused and that staff member has vehemently denied these accusations.
Julian Amos: The questions have been raised in Parliament last week and today and in every instance in which those questions were asked, the Premier did not direct his attention to answering those questions, but instead endeavoured to vilify me. Now, if that is the case, then surely the Premier could say that in Parliament.
Chris Neilson: You look to be a bit up against it in getting an investigation running, how far will you go?
Julian Amos: Well I wouldn't say that at all. I have raised the matters contained in the statutory declarations, this allegations that impropriety occurred in the Premiers Office. If the Premier does not want to take notice of those statutory declarations then there are other forms that I can follow and other ways in which I can address the issue. However, it seems to me the appropriate forum, the Parliament, for me to raise these issues, me being a Parliamentarian.
Chris Neilson: What forms and ways can you follow from here though?
Julian Amos: Well there are a number of options available including for example handing them now to the Director of Public Prosecutions, handing them to the police, there are a number of ways in which this can be handled, but I think its' appropriate for the Premier to make the move because they do reflect on the operations of his office.
Chris Neilson: Dr Julian Amos, thanks for being on the program.
Julian Amos: Thanks Chris.
Annexure "H"
TRANSCRIPT: Terry Long Program, ABC Radio
GUEST: Julian Amos, Labor MHA
SUBJECT: Allegations by Amos
DATE: Thursday, 22 September, 1994
Terry Long : So far, the Premier, Ray Groom, has resisted pressure from the Labor Party for an inquiry into allegations of scull duggery in the Liberal Party. A Labor Member of Parliament, Julian Amos, has tabled in the House of Assembly, a batch of statutory declarations. They cover a range of points, but chief among them is the allegation that a member of the Premier's Staff, John Bowes, asked for evidence in the form of a photograph to be gathered about the personal life of a Liberal Member of Parliament. The other main plank is that Mr Bowes is quoted as saying about the Member of Parliament, "we would like to slide him off his seat." It's acknowledged that the Member of Parliament at the centre of all of this is the Speaker of the House of Assembly, Graeme Page. Julian Amos is in the studio, good morning.
Julian Amos: Morning Terry.
Terry Long: Where will it all go now, will there be an inquiry?
Julian Amos: Well there needs to be an inquiry, right from the outset when the statutory declarations first came into our hands, we felt the only way in which the air could be cleared was to have an independent inquiry to ensure that the allegations were either true or false. If the allegations are true, it goes to the very heart of good Government, if the allegations are false then the Premier has to take the appropriate action.
Terry Long: What would be the terms of reference in an inquiry were you ...
Julian Amos: To determine the veracity or otherwise of the allegations contained in the statutory declarations as it relates to the involvement of the Premier's Office in obtaining or endeavouring to obtain photographic evidence of another Member of Parliament.
Terry Long: Now you know the background, you've talked to the players, you've tabled the statutory declarations, would an inquiry be worth it?
Julian Amos: Well, you say that I know the background, I know the background only so far as I have received statutory declarations. You say I've spoken to the players, I have not spoken to any of the three authors of the statutory declarations, but the important thing is that they are stat decs, I mean they are legal documents and therefore they have to be taken very seriously.
Terry Long: Where did you get them?
Julian Amos: Oh, they came Parliament.
Terry Long: They were just dropped on your desk in your office?
Julian Amos: Well they were given to other members of the Labor Party but in discussions it was thought appropriate and I fully endorse this that the matter be raised in Parliament, I mean if you found out six months down the track that we had these stat decs and did nothing with them, then the first thing you would do is to criticise us for not making them public and not presenting them to the Parliament, so therefore we have acted properly and appropriately in bringing them to the attention of Parliament and seeking an independent inquiry to ensure that the matters are properly investigated.
Terry Long : Given that they are about the Liberal Party, does is surprise you that they were delivered to the Labor Party?
Julian Amos: Well, its obviously a problem, a very serious problem that the Liberal Party has here, but that's of no concern to us really. The three people who made available these stat decs are all connected to the Liberal Party and obviously they have tried to get satisfaction within their ranks, found that they were unable to get that satisfaction and have gone elsewhere.
Terry Long: Ivan Fehlberg, a real estate agent and one of the people mentioned, or who has given a statutory declaration has given one version of events related to this, the Premier has given another, which one do you Believe?
Julian Amos: It's not a matter of what I believe, it's a matter that there is an allegation that is being made and that has to be properly investigated and independently so. May I draw your attention also to not only Mr Felhberg's stat dec, but to Mrs Goodwin's stat dec, which says and if I may quote, "I then received a telephone call from John Bowes during which he told me that he had asked Mr Fehlberg to get a photograph of those particular persons. So it's not just one person against another person, it's a number of people who relating to independent conversations have stated in the stat dec that the photographic evidence was sought from a member of the Premier's Office. Now that's a very serious allegation and it's not good enough for the Premier to try and bluster his way through and to be throwing vitriol and innuendo around at other people. The only way in which this matter can be properly cleared is through an independent investigation. That is what we've been asking for right from the start, that's what we'll continue to seek.
Terry Long : That central quotation about getting a photograph, might not that be open into interpretation too? Might not a person who has been in the Premier's Office, someone approached with allegations about the personal life of a Member of Parliament, might not that person have thought, "oh god, I wish this would go away, how can I defer this person, I know, give us some evidence, give us a photograph, " mightn't there be an interpretation there?
Julian Amos: Well that's a way of looking at it but if you did look at it that way, then you acknowledge that the event occurred and that the conversation occurred. In which case, the Premier's denial that the conversation even occurred means that he has lied to Parliament. Now that is, again, a very serious position so irrespective of how you interpret a conversation that may have occurred, if that conversation did occur, then he cannot deny that it occurred. What has occurred up until now is a total denial of that conversation. Now that in itself is a serious matter and as I say, the only way that this can properly be handled is for an independent investigation. No other course is now available to the Premier to ensure that this matter is finalised.
Terry Long: you acknowledge that the politician we are talking about is actually Graeme Page, the Speaker?
Julian Amos: I have never acknowledged that, but I understand in Parliament yesterday the Premier made that comment and on a television program last night that comment was also made.
Terry Long: What are they?
Julian Amos: Well you may recall in a previous government, a police investigation occurred, initiated by the police, the DPP could initiate an investigation. There are investagatory authorities around that can, of their own volition initiate an investigation. I'm suggesting the proper and appropriate way for the Premier to handle this is to initiate the investigation himself. After all, if what he says is true, then he has nothing to fear from such an investigation and in fact it would be to his benefit so to do.
Terry Long: So it's not the end of it if you don't get an inquiry from the Premier?
Julian Amos: Oh, as I say, the Premier has the option, but it's not the only option available to us.
Terry Long: Julian Amos, thanks very much for talking to us this morning.
Julian Amos: Thanks Terry.
Terry Long: We asked to speak to the Premier, but he was not available to speak on this subject this morning, we also tried to speak to the Speaker of the House of Assembly, Mr Graeme Page, but he hasn't returned our calls.
Annexure "I"
TRANSCRIPT: 7.30 REPORT, ABC TV
SUBJECT: AMOS ALLEGATIONS AND FOI USE
DATE: THURSDAY, 22 SEPTEMBER, 1994
Tim Lester: Now for the MP spy case. The more the Government tries to down play it, the more serious it looks. This morning during Question Time in Parliament, it rushed at an opportunity to poor scorn on its critics, tripped and appears to have injured its credibility. The latest twist to the surveillance sage began last night when Premier, Ray Groom, tuned in as Ivan Fehlberg told the 7.30 Report of his phone calls to the Premier's office.
Extract‑from Previous Night
Tim Lester: What in the conversation do you recall, gave you to believe that the Premier was aware of what was going on?
Ivan Fehlberg: Well he asked me, as I said before, with the, for a photograph and because that's what the Premier needs before he can go any further and he gave me to understand all through other phone calls that he'd been talking to the Premier but he was such a busy man.
Tim Lester: So he was Mr Fehlberg talking to. He claims in a Statutory Declaration that it was the Premier's Private Secretary, John Bowes, and the man Mr Fehlberg was talking about. The one he claimed he was asked to photograph for the Premier, Speaker of the House and long serving Liberal Graeme Page. At the centre of the issue, claims that Mr Fehlberg stalked and harassed a woman friend of Mr Page.
Extract‑from Previous Night
Tim Lester: You didn't stalk any woman?
Ivan Fehlberg: No I deny that.
Tim Lester: And you didn't subject any woman to surveillance or harassment?
Ivan Fehlberg: No I didn't.
Extract from Parliament House
Ray Groom: There is a police file on the matter with a number of documents on that police file and on Wednesday, 26 May 1993, Mr Peter Hill acting for his client, Mr Fehlberg, provided the police with a guarantee that he would no longer annoy, harass or follow the woman concerned or her associates. How could he give that guarantee through his solicitor if he had no involvement at all in following this woman.
Interjections: Here, here. Game, set and match. Game, set and match.
Tim Lester: Game and set maybe, but match, not quite! On an unrelated issue minutes later, the Premier had this to say.
Extract ,from Parliament House
Ray Groom: Mr Speaker, privacy in our State is very much respected and indeed protected.
Tim Lester: Of that, given that the Premier had only a few moments earlier spilt the contents of a person's police file on a matter for which that person was never charged, let alone convicted.
Extract from Parliament House
Ray Groom: After the 7.30 Report last night, I requested that Mr Ames come and see me, the Minister's Senior Private Secretary, to discuss how one could obtain this information properly and lawfully. Mr Ames sought the information and advice from the Acting Commissioner of Police. The advice came back to me, through Mr Ames, that it was lawful and proper to obtain this information under FOI.
Tim Lester: Of course today's events do not really change the position of last night, but Mr Fehlberg's claims in no way establish that the Premier did have any knowledge of any alleged conversation between Mr Fehlberg and John Bowes. Late this afternoon the Premier, the Solicitor General, the Acting Police Commissioner and a Government staffer involved, all released statements on how Ray Groom was provided with information from Mr Fehlberg's police file. The Premier now says he didn't obtain it under Freedom of Information provisions, but was entitled to it in the public interest. He declined to be interviewed. Administrative Law Lecturer, Rick Snell, had this say just after the statements were released. Rick Snell you've seen the four justifications for the release of information this morning, do they justify what happened?
Rick Snell: I don't believe so, to my very grave concerns about the release of this information and the procedures that were used in the release.
Tim Lester: What problems still exist in light of these explanations?
Rick Snell: In light of these explanations, the major problem that exists is just a whole of aspect of an individuals personal police file being release to the Premier of the day, to be then used under Parliamentary privilege to attack that particular individual, with no recourse or defence that the individual can raise.
Tim Lester: So under what circumstances can somebody get into your file, or my file, in a police department and hit us over the head with information when we haven't even been charged with a crime in relation to it.
Rick Snell: The only possibility is an application under the Freedom of Information Act and in that course of events, there is clear statutory safeguards which gives an individual a great degree of time and appeal rights to be able to combat and challenge the decision to police information. In normal circumstances that information would not be released.
Tim Lester: The Premier says FOI wasn't used. At least that's what he says now. Is there any justification for the idea that Departments should exchange information of this type and that that might justify this release.
Rick Snell: I would say not, not in this particular type of information. At the very most what the Deputy Commissioner of Police would have been entitled to do in the proper discharge of his duties, upon an approach from a person such as the Justice Minister's office or the Premier's office, would have been to say yes we confirm or deny that an investigation has been underway. If you seek more information, then please get in contact with us in official hours and with some verification that what type of information you are seeking and we will duly consider this matter and take cool rational advice. What we have here are activities taking place late at night after the 7.30 Report program is screened. People getting in contact with the Deputy Commissioner of Police who makes a rush decision out of the contact of his normal office hours, to release or not to release, the information and it is done very quickly.
Tim Lester: Could it have been done legitimately with Freedom of Information?
Rick Snell: There is a remote possibility that some or all of this information could, over a very long period of time, and we are talking two to three months here, after due processes have been observed, that this information may have finally been released under Freedom of Information.
Tim Lester: Not one night without the person or the subject of the file knowing?
Rick Snell: No certainly not, under the Freedom of Information legislation, and one of the great advantages of that legislation is that the person would have been informed that there had been an inquiry made to release the information. He would have been given an opportunity to put an argument against the release. If the police had then still decided to release the information, he would have had 28 days to carefully consider his position, get legal advice and if the wanted to, challenge the decision, that then would have been looked at by the Commissioner of Police with 14 days to look at that. If the Commissioner of Police had then still decided to release the information to the Premier, he could have then went to the Ombudsman and had all those review rights and even if the Ombudsman decided to release the information, Mr Fehlberg would have been given the opportunity to at least have had his defences prepared.
Tim Lester: What is your wider concern here in relation to what this tells us about the running of our Government?
Rick Snell: My major concern at the moment, is the fear that if you become a critic of the Government, is that the Government will be prepared to use what ever information that they've got from whatever source that they have, to personally attack individuals under the cloak of parliamentary privilege. I saw a press release today showing how one member of the Premier's office is seeking to sue people who bought out the affidavits that were tabled in Parliament. People who sign affidavits and have them tabled in Parliament are not covered by Parliamentary privilege but people such as the Premier using information on a police file, under the cloak of Parliamentary privilege, have got all the protection.
Tim Lester: Finally in a sentence or two, what needs to happen?
Rick Snell: What needs to happen here is I think, an apology to be given to the individual concern that this attack occurred under Parliamentary privilege. I think a public inquiry should be held not only into this particular matter, but into the whole concept of information handling by this particular administration and third that we need to have a careful look at the administration of the police force, that they can feel under such direct pressure, late at night, to concede to providing this information, without carefully and duly considering the matter in the light of day and after a few hours. It wouldn't have mattered to take an extra day or two to have decided after considering all the matters, to release the information if they wanted to.
Tim Lester: Rick Snell, thank you for your time.
Rick Snell: Thank you Tim.
Tim Lester: Administrative Law Lecturer, Rick Snell. And a short time ago, lawyers for Mr John Bowes issued a writ on the 7.30 Report, seeking an injunction on further broadcasts.
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