Carson & Anor v Rajski

[1989] HCATrans 89

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl of 1989

B e t w e e n -

N.R. CARSON

First Applicant

R.A. STEPHENS & ORS

Second Applicants

and

LESZEK RAJSKI

Respondent

Application for special leave to

appeal

Rajski(3)

BRENNAN J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 APRIL 1989, AT. 4.27 PM

Copyright in the High Court of Australia

SlT 13/1/RB 1 14/4/89

lYlR W.H. NICHOLAS, QC:  If the Court pleases, I appear with

my learned friend, lYlR M.I. BOZIC, for the applicants.

(instructed by Murphy and Moloney)

lYlR G.B. HALL, QC:  And I, with my learned friend, lYlR J. BASTEN,

for the respondent. (instructed by Johnson & Co)

lYlR NICHOLAS:  If Your Honours please, may I proceed on the

basis that Your Honours are familiar with the matter

or does the Court wish me to take you to the - - -?

MASON CJ:  We have read the judgments, yes.

lYlR NICHOLAS: Well then, Your Honours, may I go first perhaps

to the reasons why we would suggest that a question of

importance is raised in this matter? As to that, we

say this, with respect:	that the decision cr the
Court of Appeal was wrong.	It failed to have regard

to the decision of this Court in CALWELL V IPEC

AUSTRALIA LTD, 135 CLR 321, a copy of which we

hand up to the Court.

I do not propose at this stage to take the

Court to the details of the judgments -

the principal judgment, namely, that of Justice Mason

as he then was and Justice Jacobs.	I will come back to
it if it is necessary to do so.	And recognizing, of

course, that it is not sufficient merely to demonstrate

error as we would have it in the judgment of the

Court of Appeal, we would say this: that our case

throws up a problem which we say requires elucidation

from this Court in the way in which CALWELL V IPEC

should be applied. That is demonstrated, we would

say, because the majority judgment in the Court of

Appeal quite plainly, to the extent that it did refer

to CALWELL V IPEC, either ignored it or took the view
that it had no application whatsoever in the construction

of the relevant section of our DEFAMATION ACT.

Mr Justice Mahoney, however, in terms took the

view that the question thrown up in the sections

which fall for construction in CALWELL V IPEC caused,

in his words, "constant difficulty· in application

in arriving at the purpose", the expression which is

used in the section of the Act.

BRENNAN J:  The difficulty about Mr Justice Mahoneyrs judgment

is that it proceeds on the basis that he states at

page 95 artd thae is his assumption: that the statement alone

was relied on by the plaintiff for the purpose of establishing the purpose which the plaintiff had.

lYlR NICHOLAS:	Yes, Your Honour.
BRENNAN J:	Now, one does not know whether that is an accurate statement of not, does one?

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11R NICHOLAS:  If one goes back to the judgment at first instance,

with respect, where the reference to the statement

which the plaintiff introduced for consideration as

raising a triable issue, then His Honour is quite

correct, with respect. There was no suggestion that

there was any other matter that fell for consideration

on this question. And that was what gave rise to the

discussion erroneously, we would say, in the Court of

Appeal as to this question of motive and intention

being relevant for consideration in the context of

this statute as to the matter of purpose.

Your Honours, if we can hand up to you a copy

of the New South Wales DEFAMATION ACT, because it is

with reference to that that we would wish to make our

submissions as to the general purpose.

BRENNAN J:  Mr Nicholas, just so that I can understand this

proposition precisely, is it your argument that

given the facts alleged in the statement of claim

and those alone there is a defence arising under

section 17F?

11R NICHOLAS:	Yes, it is, Your Honour.
BRENNAN J:	So that there is no other fact that is relevant

or admissible?

11R NICHOLAS: That is so, Your Honour.

BRENNAN J:  And it is for that reason that you say it does not

matter that you have not pleaded section 17F?

11R NICHOLAS:  But, Your Honour, we did.

BRENNAN J: Did you?

11R NICHOLAS:  Yes, with respect. Your Honour will remember

that the sequence went this way:  the statement of

claim went on and Your Honour sees that at page 1 of

the book. I need not trouble Your Honour by going to

it. The allegation was made in paragraph 3 of the

statement of claim which is page 1, line 15, that the
letter was published by forwarding it to the
Director of the Legal Aid Commission. So, that

allegation is made and there was no argument about

that.

BRENNAN J: Yes.

11R NICHOLAS:  And the letter itself which is reproduced at

page 6 of the book, with respect, is plain enough in

its terms, we would say. Now, the amended defence

which was the matter ultimately dealt with by

His Honour Mr Justice Hunt in - - -

GAUDRON J:  But that was not-on at the time of the hearing,

was.it?

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MR NICHOLAS:  Yes, it was, with respect.

GAUDRON J: It was?

MR NICHOLAS:	Yes, Your Honour.
BRENNAN J:	I see, it was.
MR NICHOLAS:	Your Honour, Mr Justice Hunt, as well as the

court, took - let me take you to the amended defence

first.

BRENNAN J:  Yes.

MR NICHOLAS:  The procedural matters go this way: the defence,

unamended, begins at page 14,- that was the original

pleading - and at page 15, line 25, the unamended

paragraph 5 raised the defence of "qualified

privilege". And then that defence was amended and

the amended defence may be seen at page 23.	It
begins at page 23.	The relevant pleading is at

page 24, line 13, I think, paragraph 5(a). And that

was the issue which, on our contention, brought

the matter up as being appropriate to be dealt with

in our sununary procedures under the rules of - - -

GAUDRON J: Is that because you say the joinder of issue

says nothing to that plea?

MR NICHOLAS:	That is so, Your Honour; nothing, with great respect in relation - if I may respectfully say
so, there is nothing to join issue on in relation
to that plea if one is contemplating, as one often
does in a defamation matter, matters going to -
that you would normally see in a reply raising
matters of malice, ill will, matters of that sort
and that is because our contention is that it has
always been the law that a question of absolute
privilege and the determination of an occasion of
absolute privilege has got nothing whatever to do
with concepts of motive and intention. Qualified privilege, certainly; the explanation being, of
course, is the privilege in certain occasions is
qualified by reason of the existence of malice
and ill will and so on.

GAUDRON J: Well, may I explore that a little, Mr Nicholas?

MR NICHOLAS:  Yes, Your Honour.

GAUDRON J: Assume a statenEnt of claim which says that "The

defendant"- and we will give the defendant a name of

a prominent politician - "published of and concerning

the plaintiff, the following words and published

them to another" to which you just plead absolute

privilege. Would not the joinder of issue do some

work in that case?

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MR NICHOLAS: Well, Your Honour, it would put in issue the

question of whether or not the occasion was one of

absolute privilege by definition and we would have

to undertake to establish the matters going to the

determination of that question. Now, Your Honours,

we say that what flows quite plainly from CALWELL V

IPEC is that the resolution of that question is one

of law for the judge. Where there are disputed
matters of fact, primary matters of fact, necessary

for the resolution of that question, then it is for

the jury to deal with. And the sort of primary

questions on a question such as that are whether or not the matter was published, the contents of the matter, to whom it went and matters of that

sort, for example, whether the words uttered were
in the course of court proceedings or part of it

or so on.

Now, Your Honour, we say here that it was

alleged by the plaintiff and accepted by us, as

appeared, in turn, from the face of the document,

that the letter was published and sent to the

Director of the Legal Services Organisation. That

goes then to publication. The content of the letter

is the means by which the court in reaching the

decision on this question goes to ascertain whether

or not the requisite purpose is established and

it is for those reasons, 'ilWe would put to you, that

Mr Justice Hunt was quite correct when he said,

"Matters of motive and intent have nothing whatever

to do with the determination of this question.

GAUDRON J:  You have to go so far though in this case, do you

not, to say that having regard to the statement of

claim there is no issue of fact which could ever be

relevant to determine this question.

MR NICHOLAS: Well, which would render it unarguable, yes,

Your Honour, yes, we do. We stand or fall on the

accepted publication of this letter in the terms

in which it is which we say are the primary facts

which then enable the judge, as he is required to do,

to determine whether or not the conditions of the

protection have been fulfilled and that is just

echoing the words in CALWELL, and I will bring the

Court to that in a moment. But if I may complete

what I was going to put, with respect, as to why

we regard it as a matter of importance rather than

just simply saying, "Well, the court was in error

on a construction point". It is really for this:

the New South Wales DEFAMATION ACT 1974 has a

division, Division 3, which Your Honours will find

at page 6, dealing with occasions of absolute

privilege. These, of course, are occasions in
addition to those which the corrnn.on law otherwise
provides because this Act is in addition to the
operation of the conrrnon law in this field except to

the extent where plainly the statute changes that.

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Now, Your Honours will see that under

Division 3, and particularly under section 17A,

there then follow quite a number of provisions.

They are each given headings, you will see:

17A deals with "Matters relating to the Ombudsman"
and by way of example, because the expressions
are substantially similar in many cases - if you

go to subsection (3) you see:

There is a defence of absolute privilege

for a publication to a member of

Parliament for the purposes of section 12(2)

of the OMBUDSMAN ACT 1974 or section 6(2)
of the POLICE REGULATION (ALLEGATIONS OF

MISCONDUCT) ACT 1978.

I cite that by way of example. If you would come to

section 17B, "Matters arising under PRIVACY COMMITTEE ACT 1975", the draftsman has used again substantially

similar expressions to that with which we are

concerned in 17F and if Your Honours follow it

through you see that the defence is provided for:

or the purpose of the execution or

administration of that.Act or, for the

purpose by that Connnittee, by a subconnnittee

of that Connn.ittee -

and so on.

The next provision is section 17BA, "Matters

relating to the Law Reform Connnission", and 17BA(l):

A report published pursuant to section 13(6) of the LAW REFORM COMMISSION ACT 1967 shall,

for the purposes of this Act -

and so on. Section 17BB is the next one, and so it

goes on, with respect, Your Honours.	I will not keep
repeating it.	Really, the expression in
the various sections is substantially the same and

one goes right through on to page 10 to 17J and you

will thus see a succession of statutes or matters

are referred to.

Now, those are in this Act by reason of

amendments which have been introduced from time to

time as appears from page 27 of the DEFAMATION ACT

and there, at that page, is set out a table of Acts

which have introduced amendments to the original

DEFAMATION ACT 1974 from time to time as the

Parliament was attending to the enactment of

cognate legislation on the subject-matter. For

example, when it enacted the LEGAL SERVICES

COMMISSION ACT at the same time it

introduced section 17F into the DEFAMATION ACT. My

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point really is this, that it has become the practice

that where there are statutory bodies or public-interest

bodies operating the Parliament, from time to time, has

taken the view that it is important that communications

to and from those bodies and for the purposes of the

functioning of those bodies should have an absolute

protection and that explains the, perhaps, random

nature of the introduction of these various sections

into this part of the Act and may well explain why

the provisions, if one goes through them line by

line, are not always couched in precisely the same

terms_ but the effect of the section in each case,

we would say is abundantly clear. Thus, the

circumstances in which absolute privilege may be

accorded a publication in the State of New South Wales

by reason of statute seem to address quite a

multitude of situations and seem, in a sense, to

go far beyond what one usually comes up against in

the States where the common law applies or, for that

matter, in the United Kingdom.

Now thus we would say that whilst the Court

of Appeal remains, as we would put it, in error in

its approach to the application of section 17F, thus

it raises the problem which this Court may illuminate

in relation, of course, to the task of a court dealing

with questions arising under any of these like sections

in this Act. It also goes without saying, with respect,

that the flow-over into legislation in other States is

this:  CALWELL V IPEC dealt with the 1958 New South

Wales Code which, of couse, was replaced by the

present New South Wales Act. However, what it has to

say about the relevant provision and the approach of the
court to it applies still, with equal force, to those

States in which the defamation Code still applies,

namely, Queensland, Tasmania and, to a certain extent,

Western Australia. So, the issue of construction under

the CALWELL V IPEC principle is still of very real relevance.

I should bring the Court then to what

Mr Justice Mason had to say in CALWELL V IPEC.	May I
take you first to page - - -

BRENNAN J:  We have read CALWELL V IPEC, Mr Nicholas.

MR NICHOLAS: Well, Your Honours have it.

BRENNAN J: What it comes to is this, is it not, that on the

statement of claim you say that the defence under
17F was established at the same time as the cause of

a.ction under the earlier provisions of the DEFAMATION ACT?

MR NICHOLAS:  Yes. I might have misunderstood Your Honour.

BRENNAN J: In other words, the statement of claim was, in a

sense, demurrable~

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:t1R. NICHOLAS:	Yes.
BRENNAN J:	But there is no other issue of fact to be determined?
:t1R. NICHOLAS:	That is so.
BREN1-TAN J:	Or any other evidence that is admissible?
:t1R. NICHOLAS:	That is so.
BRENNAN J:	And that is the end of the matter.
:t1R. NICHOLAS:	That is the end of the matter.
BRENNAN J:	I take it you would then have something to say about the questions of natural justice?
:t1R. NICHOLAS:	To this extent, with great respect, Your Honour:

it was a matter for the trial judge. At:. the trial he

had before him lengthy submissions on both sides.

The plaintiff in person who, with great respect,

has some considerable experience in appearing for

himself and, in particular, on occasions in relation

to this particular piece of litigation, he presented

his case and oral argument and then the judge, at the

end of the day - and I might say, with respect, the

matter went for several hours on the occasion before
the judge - the opportunity was afforded both parties

to put in written submissions about the matter and

that, in fact, happened.

BRENNAN J: Well, that may be so but on the question of special

leave to this Court, if one looks at the judgments of the Court of Appeal, of the majority, there is a view expressed there which, in essence, is that the judge

did not grant natural justice to the plaintiff in

the action on the hearing of the application which led

to the striking out. Now, is there any reason why

we should grant special leave to entertain that matter

or do you need to entertain that matter?

:t1R. NICHOLAS:  We, with great respect, say we do not need to

entertain that matter at all. First of all, if this

Court deals with the matter the plaintiff, in substance -

we put it this way but I am not putting if offensively,

Your Honour - is denied nothing.	He is denied no
real opportunity.	He had, we would say, as a matter of

fact, opportunity before the judge at first instance

and, of course, ample oppot.tunity in-front before the Court of Appeal. And it was quite plain, at whatever

·level it was decided, the only matter-to be raised for

consideration a·s giving rise to a triable issue of fact

was the statement in the affidavit.

Now, Your Honours, we say this, that if we are

correct in what we are saying where the allegation in

the statement of claim is sufficient to dispose of

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the matter and the case, in truth, is unarguable, there is, as we stand here today, nothing left to deal with if we are correct and thus a question of

natural justice at this stage ought not fall for

consideration at all.

If one says, "Well, the application should

be rejected", one, with great respect, is left with

this situation: the matter then proceeds to trial

and the very question is raised before the trial

judge to deal with it and he will go through the

exercise that now four judges have undertaken. The

only difficulty, I suppose, that a new trial judge

will have is the fact that the Court of Appeal has,

we would say, ruled upon this question in error and

thus the trial judge will be faced with the judgment

of the Court of Appeal indicating to him that he

should entertain evidence on this point or, following

CALWELL V IPEC, and then the matter being taken back up to the Court of Appeal, re-argued there and then

possibly coming back here again on the point.	Thus,
we say, with great respect, that that question
is not appropriate for discussion at this stage.

GAUDRON J:  Could I, in that same area, ask this? Do you go

so far as to say the proceedings in the Court of Appeal

cured the procedural defects in the proceedings

before Mr Justice Hunt?

MR NICHOLAS: Entirely, Your Honour.

GAUDRON J: Well, I would like to know why.

MR NICHOLAS:  Yes. Your Honour, the Court of Appeal, as

Mr Justice Mahoney recognized, had the power to deal with the matter assuming there is nothing more left

and they could and should in the right circumstance

dispose of the matter in the way Mr Justice Mahoney

did. And Mr Justice Mahoney did that because he took

the view on a basis different, I might sa~ from
the view that Mr Justice Hunt formed, but he

took a view that the reference in the affidavit would

carry the matter no further and thus back to the

letter - end of the matter; the court had the power

to do it and it ought to be done.

GAUDRON J: But you do not seek to uphold that view, I take it?

MR NICHOLAS:  I seek to uphold the course that he took. I

do not embrace the line that he took to get there for

the reason, Your Honour, with respect, that he was the

one who said, "Look, I find constant difficulty in
giving effect to CALWELL V IPEC and for me I think

there may be questions of fact from time to time under

section 17F. However, on the material that I have it

can be dealt with." I think that is probably all I

can put on that matter, with respect.

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BRENNAN J:  If there was a curing of the natural justice defect

it must be because before the Court of Appeal there

was a full hearing on the question whether, on the

facts set out in the statement of claim, you were

bound to succeed?

MR NICHOLAS: It was thoroughly ventilated, Your Honour, which

led to the majority's view that we should fail.

GAUDRON J: And it must also be treated as a trial on a

separate issue to sustain the order, in fact - - -?

MR NICHOLAS:  The way it was done?

GAUDRON J: Yes.

MR NICHOLAS:  Yes, and it could only be, with great respect,

when, recongized as such, there was only a separate

issue to deal with.

GAUDRON J:  It is as if you tendered the statement of claim;

sat down; the plaintiff sought to tender evidence;

you objected to it and it was ruled that no evidence

could be tendered. It is as if that had happened.

MR NICHOLAS:  Only to this extent, Your Honour, so that one

is not at odds:  it is not as though the proposal

was for - evidence was put up and peremptorily

despatched. Quite plainly the court and, indeed,

Mr Justice Hunt gave consideration to the matter

which was proposed to be tendered and he referred to

it and dealt with it. It is not as though there was

a knocking at the door and the door remained closed,

with great respect and, indeed, we say that the

Court of Appeal would have proceeded the way

Mr Justice Mahoney did, at least, but for the error

that they made in the fundamental approach to what

they were required to do in relation to the section.

BRENNAN J:  Mr Nicholas, I think we are seized of the points

that you wish to make but I do not find a ready raport

in the draft notice of appeal and, in particular,

on the natural justice questions. Paragraphs (f),

(g) and (h) perhaps fall far short of bringing out

what I understand to be your submission, namely,

that there has been an argt.mEI1t before the Court of

Appeal that really dealt with the problem at issue.

This is a matter of drafting, however, I suppose.

MR NICHOLAS:  We would say it was with great respect, Your Honour.

BRENNAN J: You cauld have a think about that while we are

hearing from Mr Hall, I should think.

MR NICHOLAS: If Your Honour pleases.

MR HALL:  Your Honour, I would put that the questions that you

have asked of my learned friend illustrate, if I may

say - before I start, I might say I came very recently in

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into this matter and I did some written submissions.

Does Your Honours have copies of those?

BRENNAN J: Yes, we do have them but I cannot say that I have

read them. Perhaps Justice Gaudron has but I have

not, Mr Hall. Would you give me a moment?

GAIJORON J: I think even worse, Mr Hall, they were handed tone

and I have not got mine in Court. Is there a spare

copy?

MR HALL:  My friend has - - -

Tl3 GAUDRON J: Thank you.

BRENNAN J: Just give us a moment until we read this, Mr Hall.

MR HALL: Certainly.

BRENNAN J: Yes, thank you, Mr Hall, we have read those notes

now.

MR HALL:  Your Honours, the questions which have fallen from

Your Honours and the manner in which my friend has

dealt with them show, in my submission, or highlight

the problem that arose from the procedural
irregularity with which this process was attended.

And contrary to what my friend put to Your Honours,

I would submit that where you have an unqualified

litigant appearing in person, it behoves a court to be astute to see that procedural forms are followed

in sufficient detail to ensure that the unrepresented

applicant clearly understands what is being put.

Now, with all due respect to my learned friend,

it is not clear, up front, in the decision of the trial

judge that what was being raised was a demurrer as to

the form of pleading; in other words, that the statement

of claim itself disclosed no cause of action. What

happened was a letter was sent a few days before saying	that when this matter came before the court, in effect,
on a mention, an application would be made to strike
the matter out. Now, with respect, Your Honours,
I would put this: There are many members of the bar who would be a bit surprised to get to the-court
after they saw the letter that was sent, and
understand that what was going to be raised was not
a question about the scope of section 17 but a pleading
point, namely, that the statement of claim as set out
did not disclose a cause of action because the two are
quite different.

BRENNAN J:  Mr Hall, if this case turns solely on the procedure

before Mr Justice Hunt, I do not think that we need

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trouble you any further but, and it is a significant

"but", the question is whether, so far as procedure
is concerned, we need to look at what happened before

the Court of Appeal. In other words, was any problem

that there was before Mr Justice Hunt cured by the

argument before the Court of Appeal, if one understands

that that argument turned on the application of

section 17F? Perhaps you could address that point?

MR HALL:  Yes. But, Your Honours, even there, in my submission,

even in the Court of Appeal, the matter was not
primarily approached as a demurrer point on the pleading

as it W'3.S ra.ised in the sense that - you see, if it had been put, even in the Court of Appeal, that the

real question is that the pleading is insufficient,

the issue of law as raised by the pleading is

insufficient, then the present respondent could have
responded to that by, for example, seeking to amend

his statement of claim so as to exclude a section 17E

defence in the way the matter was pleaded or, since

this was technically an application - if one brings

an application saying that no cause of action is

disclosed, a party can, it would seem to me with

respect, adduce evidence if he. says, "There is Qvidence

on which I can rely".

Now, that did not happen in the Court of Appeal.

The matter was just dealt with on the basis of the

decision that had been given in the lower court,	And
the point is that no evidence was really adduced.
There was this reference back picked up in
Mr Justice Hunt's decision to part of an affidavit
but nobody adverted to the question of whether, for example, the statement of claim should be
pleaded differently - amended - so as to raise a

precise allegation that the letter, as written, could

not be,in, the circumstances of the case, a letter

falling within the purpose of section 17E or written

for the purposes covered by section 17E and therefore

not qualified by privilege. The thought was not put

to the - because, you see, if that was pleaded in the

statement of claim, for example, or if that was

clearly raised in the process, either in the lower

court or in the Court of Appeal, then the minds of

those appearing for the respondent here today would

have been directed to the questions of whether there

was any evidence, for example - external evidence -

which could go to show that whatever might be said

to flow from a letter prima facie written on a

solicitor's letterhead, in this particular case,

there was material which would justify a jury coming to

a different conclusion. Now, Your Honours, I cannot - - -

BRENNAN J: If I could just interrupt you for a moment. That

is the point at which I understand Mr Nicholas joins

issue with you. He is saying that once we have a letter

to the connnission in the terms of paragraph 6, there

is no evidence which can be admitted as a matter of law.

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MR HALL:  Your Honour, if I may say so, with respect,

that was not a question addressed by anybody in
any of the courts below. That is a point that

he is raising for the first time today and it

just highlights the fact that this case has

really been a scramble by the defendants - I do

not say this offensively - but to try and shut

the plaintiff out on whatever basis the argument

can be formulated at each stage they were at.

And with the utmost respect to my learned friend -

and I was not there, he was - one draws the

inference that what happened before Mr Justice Hunt

was not a clearly argued matter in which the

parties sat down, argued this side, argued that

side and His Honour reserved, but rather a muddle,

with respect, in which an unrepresented litigant

came along and applied for an adjournment; then

got someone else to come and apply for an

adjournment; then came back and had a go and,

no doubt, His Honour had a bit to say and he

went away and he wrote some submissions.

BRENNAN J:  Mr Hall, I have endeavoured to indicate to you

that we are not presently minded to grant special

leave in relation to the views entertained by the

Court of Appeal with respect to the procedure

followed before Mr Justice Hunt.	We are making no
observations about that.	The problem to which I

invited you to direct your remarks was the problem

of what had happened before the Court of Appeal.
Now, if the issue which is the issue that

Mr Nicholas today identifies as the issue which he wishes to agitate, that is, under section 17F

there is no evidence which is admissible, nothing

further which can be done and, on the face of the

pleading, the plaintiff must fail. If that was in
fact discussed before the Court of Appeal to the

point of judgment, then there is everything to be

said in favour of having it finally resolved.

If, on the other hand, that was not raised, then it

may be necessary for the point to go back in some	fashion so that it can be raised.but then it will
come back again.

MR HALL: Well, the point may not go away, Your Honour,

but my - I am in a little bit of difficulty,

I did not appear before the Court of Appeal so it

is a little hard for me to say what was and was

not raised before them but, in my submission,
there is nothing in the judgments - in any of the
judgments to suggest that the point that my
learned friend elaborated before Your Honours in
the form that he elaborated it was raised before the

Court of Appeal, that is to say, that no evidence could be admissible and, in my submission, that

must be fundamentally unsound.

S1Tl4/3/PLC	13	14/4/89
Rajski(3)

GAUDRON J:  But that point must have been there because

that is the only thing that makes sense of

CALWELL - the references to CALWELL V IPEC, is

it not?

MR HALL:  It may have been there but, Your Honour, there

is a difference between the point that Your Honour's

brother has raised and the point - it is quite

easy to discuss at length CALWELL, and what it

means. It is a different issue to discussing

that in the way this case was pleaded it would be

impossible to tender any evidence because that

is what my friend is really saying.

GAUDRON J:  That is one way of putting it. The other is

that no issue of fact arises or can arise and

another way of putting it, in terms of what you

have just suggested, would be that if you sought

to amend your pleadings in the way you

have just hypothesized, your pleading would become

demurrable.

MR HALL:	It may or may not.
GAUDRON J:	:eot at all· stages it raises the same question,

does it not?

MR HALL:  Yes, I know but the point that I would make in

that regard, with the utmost respect, is that
the present respondent was never given - nor his

legal advisers for that matter - an opportunity

to consider whether that should be done or whether

there should be a reaction to the application.

For example, if it be the fact that affidavits

and other material in this - for example, if it be the fact that

in the various other areas of litigation between

these parties there is other material, it may well be
that that material would be admissible to rebut,

perhaps what might be described as the ordinary

construction of the letter. And that should have

been raised, in my submission, by a proper

su!Illilons saying there was simply no evidence and

asking for a verdict; not someone coming along

and wanting to argue now on an application for

special leave that there is a pleading point in

the nature of a demurrer which would dispose of

the application.

Now, you see, that could not have been argued,

in my submission, in the Court of Appeal because it

is simply not addressed in a very lengthy argument by the majority and what the majority concentrated on was a point of practice and they held that the

point of practice - the majority concentrated on a

point of practice. They said, "Well, look, a proper

application should have been made and also the issue

to be tried should have been properly identified in

accordance with our practice, and it was not, and

therefore the judgment has to be set aside." And

S1Tl4/4/PLC	14	14/4/89
Rajski(3)

that is really the ratio of the decision in the

court below and that really does not raise a

special leave point. It is peculiar to this

case. There is no suggestion that the procedure

followed in this case is a procedure - it is

not suggested that what occurred in this case

is something which commonly occurs or is normally

followed, the procedure was very unusual. And

in so far as the the court, the majority, set

it aside on the basis of the failure to comply
with the procedures, that is a procedural

point peculiar to this case and it does not

raise any special leave point.

Well, Your Honour&, my learned junior

p0ints out that at page 18 of what I understand

to be the Court of Appeal transcript which is not

in the application book, Mr Rajski, in a conversation

with the learned President, said he never

filed an amended reply and the President is quoting

him, apparently:  "You never filed an amended

reply and you say you never did so because you say

when you ultimately got before Mr Justice Hunt

the case was in midstream. You had the rise.

You answered the matter as best you could and you

raised the question that is now canvassed in this

appeal but you never sought to file a formal

amended reply. You did not get to that." "That is

correct except that I did not know I was not

considering at this stage" and then that was

referred to by Mr Justice Hope at page 25 of the

transcript, "It is not a question of evidence.

The question is whether there should be at this stage. There was no reply. It was only raised on the day of the hearing. The only question is

whether it would be possible, having regard to the

terms of the letter for there to be any reply,

is not that the question?" That was a question

addressed to my learned friend and he said, "Yes,

I accept that. That brings us back to the

construction of the section."

Now, Your Honours, my learned friend is trying

to confine this to a point of law about the
construction of the section but I, at this stage,
for an unrepresented defendant, a person who was
unrepresented in the two courts below, would evince
the utmost reluctance to concede that there is a

question of law fit to go forward in the terms

that my friend formulated to Your Honours and

Your Honour put to me for this reason, that I

came very recently into the matter, I do not think

I can say to Your Honours what my instructions are.

It is clear that the matter was inadequately, in my

submission, dealt with in the first court. It is

clear, in my submission, on a construction of the

judgments of the Court of Appeal, that the question

of whether the present respondent could adduce

S1Tl4/5/PLC	15	14/4/89
Rajski(3)

evidence was not really raised in terms that he

addressed on it because it is simply not dealt

with by the majority or even, in my submission,

by Mr Justice Mahoney. Indeed, it is most

significant, in my submission, that Mr Justice Mahoney,

several times in his judgment, refers to the way

the matter was dealt with in the court below.	He
is very careful to found his judgment on what
actually happened in the court below and what

inferences might be drawn on the basis - it seems

to me that there was an inference could be drawn that

no other evidence was available. Well, Your Honours,

as I apprehend it, that is not the case and

certainly this respondent was never given an

opportunity to show that it was not the case.

BRENNAN J:  Mr Hall, if there is a real contest as to whether

problems of natural justice were not cured by the

argument before the Court of Appeal, that could

lead to the view that special leave would be
refused and the parties would be left with the
order of the Court of Appeal. That might, in turn,

lead to applications of a formal kind to put the

application which was intended to be made on some

regular footing, have the documents all prepared

in a satisfactory form and the matter come forward

once more. Now, that would involve additional

cost, of couse.

MR HALL:	I would appreciate that, Your Honour.
BRENNAN J:	Now, the question is whether that is the course

which the parties, in the plural, would wish to

follow.

MR HALL: Your Honour, it is certainly the course I would wish

followed because I frankly am at a disadvantage

today. I have some instructions which lead me to

believe that - in the light of my instructions,

I would object to the matter going forward, if I

may put it that way.

BRENNAN J:  I understand what you say. You do not need to

elaborate on that proposition.

MR HALL:  And I wish to be very cautious with an

unrepresented defendant when I have come in only at

this late stage.

BRENNAN J:  Mr Nicholas, you can see the problem that is - - -

MR NICHOLAS:  I do. Could I take Your Honours back to some

material in the book which I would think throws some

light on this matter.

BRENNAN J:  I am sorry, have you said everything you wish to

say, Mr Hall?

S1Tl4/6/PLC	16	14/4/89
Rajski(3)

MR HALL:  I want to avoid a situation, Your Honours -

there are a couple of other matters I would like
to advert to, Your Honours, in answer to what my

friend put.	My friend put to Your Honours that
the court did not pay regard to CALWELL.	If

Your Honours go to paragraph 6 of my submissions

I have put the reference to CALWELL. With the

utmost respect to my learned friend, in my

submission, Your Honours, it is impossible to say

that the court applied CALWELL in any way which

would raise a special leave point. They did not -

it seems to me with the utmost respect to my

friend - and I have put the references to the

judgment - Their Honours dealt with CALWELL. They

accepted CALWELL and acted upon it. It cannot be

said that they acted._,on it in any way inconsistent

with that decision. And, of course, it has to be

borne in mind that CALWELL actually did not

relate to this particular section but to a defence

of qualified privilege under the old Act in 1958.

When Your Honour Mr Justice Brennan raised

the question of the facts alleged in the statement

of claim, may I draw your attention - even

Mr Justice Mahoney at application book 90, 25,

pointed out the problem raised for him by the

absence of a reply in this particular case. And

it just shows that he was really approaching this

case with some difficulty. And then, if Your Honours

go over the page at 91, about point 3:

What happened during the proceedings

before his Honour is, as I have said, not

clear.

GAUDRON J: Could I ask you this? It is a little bit off

the point, really, Mr Hall, but has any reply

since been filed?

MR HALL: Well, on my instructions, not, Your Honour, but

I only came into the matter two days - I understand

not, Your Honour. It may well be, Your Honours,

that since - as I understand it, Mr Rajski at that
stage was acting on his own and my impression is

that the statement of claim drew its present form

after a session before His Honour who sort of

haggled it down to what he thought - I do not put

this offensively to His Honour - could be pleaded

on the facts as he knew them.

As it appears from one of the judgments

in the Court of Appeal, it is not conceded, if I

may say so, that the amended defence was ever served.

What happened is it seems to have been filed in

court on the very day that the application proceeded

so that in reality the pleading point was never

really adverted to by this litigant at all.

S1Tl4/7/Pi.C	17	14/4/89
Rajski(3)

Now, Your Honours, the only other matter, I

think, that I wanted to - even Mr Justice Mahoney,

at 92, line 2, said:

it will normally be inappropriate to

order summary judgment whether the question

be for the judge or the jury.

Your Honours, I rely on what is written in my

written submissions and we say that no issue of

general importance arises in this case and the
proper course to be followed in this case is for

leave to be refused and for the matter to proceed

in accordance with the orders made in the court

below.

BRENNAN J: Thank you, Mr Hall.

11R NICHOLAS:  Could I deal with the matters, if Your Honours

please, in relation to the conduct of this case?

BRENNAN J: Yes.

11R NICHOLAS:  Would Your Honours go first to page 44 of the

Tl4	book which is part of the judgment of Mr Justice Hunt? I might say, Your Honours, the matter was argued on 2 May and His Honour delivered on Friday, 16 May.
It was a reserve judgment.

At page 44, line 5, His Honour describes

how:

the application has proceeded upon the

basis that the first defendant (Mr Carson)

was responsible for that communication.

The plaintiff argues that the first defendant

did not make that communication "for the

purpose of the execution or administration"

of the LEGAL AID COMMISSION ACT, but rather

that he made it for the purpose of

obstructing and preventing the plaintiff

and his company from pursuing their

rights against the defendants' clients or

of coercing or forcing them to abandon

those rights. The plaintiff relies upon an

affidavit sworn by the first defendant in

one of the numerous proceedings in the

Court of Appeal arising out of the litigation

which the plaintiff has engendered, in
which the first defendant said -

and it is quoted -

This material was not formally tendered at the hearing before me, but the

plaintiff relies upon its mere existence

(which the defendants accept) as denying

SlTlS/1/PLC	18	14/4/89
Rajski(3)

to the defendants the availability

of either sunnnary judgment or a

separate trial. I agree that, if that

material is relevant to the determination
by the jury of an issue of fact in the

case, the defendants' present application

must be rejected.

So, it was then that Dr Rajski introduced this

material on this issue. And at page 52 an

account of what happened on the day is given.

Line 15:

On 2 May, Mr Gullotta of Counsel
appeared on instructions from the plaintiff

which were limited to seeking an

adjournment for 7 to 14 days, upon the

bases that Mr Gruzman QC and he were

considering whether they would appear

for the plaintiff in these proceedings

and that they were then appearing for

the plaintiff in relation to interlocutory

proceedings in another action listed for

hearing on that day (with many others)

in the general call-over before Rogers J

in the Commercial List. That application

was refused by me, but the matter was

stood down to 2 pm on that day to enable

the plaintiff either to appear himself or
to arrange for someone to appear on his

behalf. During the lunch hour, a telephone

call was received by my Associate from the

office of the plaintiff's solicitor asking

(ex parte) for an adjournment until 3 pm.

That application too, was refused.

Shortly after 2 pm, the plaintiff arrived

in-court· and he argued the matter in person.

He was given additional time in which to put further submissions in writing, and

such further submissions have been received

from him. The plaintiff, is, of course -

and I need not trouble Your Honours about that.
:E S'hould say at this. point of time, Your Honours,

we have taken the opportunity of getting the appeal

-09ok - I have not got multiple copies of it but

we would ask of Your Honours if I might hand up

to Your Honours a copy of the appeal book in which

appears Dr Rajski's notice of appeal because the

terms of that document, with respect, are

carefully drafted and raise all of these questions

directly. ·

BRENNAN J: Perhaps you should show Mr Hall.

MR NICHOLAS:  Yes. And it also contains his written

submissions that he handed up to Mr Justice Hunt.

SlT15/2/PLC	19	14/4/89
Rajski(3)

BRENNAN J: While that is being looked at, Mr Nicholas,

the problem really is not so much what happened

before Mr Justice Hunt because you would be hard

put to get special leave to - - -

MR NICHOLAS:	I accept that at once, yes, Your Honour.
BRENNAN J:	- - - override the view of the Court of Appeal

about what happened before Mr Justice Hunt.	It is
a question of what happed before the Court of
Appeal.

MR NICHOLAS:  Could I come to that, with respect, and while

my friend is looking at it, suffice it to say

that -

BRENNAN J: Let Mr Hall have an opportunity - - -

MR NICHOLAS:	I am sorry.
MR HALL:	Your Honour, I do not object to Your Honour seeking

this. There are some matters I would want to say
to Your Honours in relation to it but I do not
object to Your Honours seeing it. It is part of

the record, in a sense.

BRENNAN J: Yes, Mr Nicholas?

MR NICHOLAS:  If Your Honour pleases. Now, may I take the

Court, with respect, to page 66 of the High Court

book and it is a passage from the majority judgment. At

line 25 Their Honours define the issues:

The issue in contest between the

appellant and the respondents upon the

claim by the latter to summary judgment

can be stated quite simply.

And Their Honours indicate that.	On page 67, at the
top, the question is posed:

It is bound to fail as a matter of law,

having regard to s 17F of the DEFAMATION

ACT. The appellant contests this. He

asserts that there are issues of fact

to be tried; that he has summoned a

jury for that purpose; that he is entitled

to have the jury pass upon the disputed

issues of fact; and that it is therefore

not the province of a judge -

and then, Your Honours, the purpose and argument
contended for by the appellant is set out at line 15

and following and I need not trouble Your Honour

with the detail of that. And finally, at page 99

of Mr Justice Mahoney's judgment, he deals with

the issues and concludes, at line 17, Your Honours:

S1Tl5/3/PLC	20	14/4/89
Rajski(3)

If this be so, then it is proper

that the proceedings be brought to an end.

I have considered whether, if there were

irregularities in the procedure adopted

by Hunt J, those irregularities make it

necessary that the parties go through the

procedures again, even though the result

will be as I have said. I accept that

it is important that, where a claim is

to be dismissed summarily, the proper

steps be followed and that they be seen

to be followed. What a judge does in

such a case should be intelligible not

merely to the professionals with whom

primarily he is concerned but also to those

whose confidence in the judicial system

is to be maintained. But, in the present
case, it would, in my opinion, be unjust

to both parties to require them to go

through the regular procedures if the

result to be produced is that to which I

have referred.

And then he goes on to deal with another matter.

All I can say, with great respect to Your Honours, that before •the Court of Appeal, as the appeal book shows,

were Dr Rajski's written submissions before

Mr Justice Hunt. He had, of course, the appeal

and the notice of appeal; the issues raised there

to which you have been referred and we would submit

with great respect that there can be no question

that the issues were fully canvassed during the

hearing before the Court of Appeal and Their Honours

reserved as a reserve judgment and it brings us

here, with respect.	I do not think I can say any more
than that.

BRENNAN J:  We need not trouble you, Mr Hall.

In this matter, a statement of claim was issued

by the plaintiff against the defendants seeking

damages for defamation. The circumstances pleaded

in the statement of claim are such, in the defendants'

submission, as to attract the defence provided for

under section 17F of the DEFAMATION ACT 1974.

The pleadings, as they first stood, were

subsequently amended. The defendants brought an

application, however, before Mr Justice Hunt which

led to the making by His Honour of an order in the

following terms:

Pursuant to part 31, the matter complained

of by the Plaintiff in his further amended

Statement of Claim filed on 11th April 1986

was published under absolute privilege.

SlTlS/4/PLC	21	14/4/89
Raj ski( 3)

Next:

Pursuant to part 31 Rule 6 the entry of

Judgment, in the proceedings, in favour

of the defendants, be by direction.

Next:

The Plaintiff to pay the Defendants'

costs of the action, including the costs
of the application for Judgment and the

costs of having the yet further amended

Statement of Claim filed on the 30th

April 1986 struck out.

That was a judgment for the defendants in the proceedings

and His Honour ordered that the judgment should take

effect on 16th May 1986.

From that judgment the plaintiff appealed to the

Court of Appeal. In the view of their Honours in the

Court of Appeal the proceedings before Mr Justice Hunt

were affected by some procedural irregularities. They

were described in these terms:

The appellant was not on notice of the

precise question which His Honour contemplated

separately and resolving as he did. He was

unrepresented in the substance of the

proceedings. The determination was important

and, as it proved, fatal to his case.

Their Honours went on to consider the course which

His Honour took and said that:

Although His Honour's motive to avoid arid

arguments was laudable, it did not exempt

compliance with the Rules and with the

requirement to give the appellant notice of

the course under contemplation. Only if he

had such notice would the appellant have had

the opportunity of putting his submissions

to the contrary.

As a result of those views, the majority of the court

thought it incumbent upon them to uphold the first

challenge to the order of Mr Justice Hunt. Accordingly,

the judgment of Mr Justice Hunt was set aside;

Mr Justice Mahoney dissenting.

This Court would not be minded to grant an

application for special leave to canvass the findings
of the majority of the Court of Appeal with respect

to the procedural irregularies before Mr Justice Hunt.

The question, however, has taken a somewhat different

shape. It is now said that whatever procedural

irregularities there may have been before

SlTlS/5/PLC	22	14/4/89
Rajski(3)

Mr Justice Hunt, those irregularities were cured

when the matter was argued before the Court of

Criminal Appeal. The notice of appeal drafted by

the plaintiff in the action, that is, the notice of

appeal to the Court of Appeal, is now before us and

certainly contains much which would support the view

that the questions that the defendants now seek to

agitate on appeal to this Court were, in substance,

before the Court of Appeal.

However, looking at the appeal book which

is now before us, it appears that the formal procedures

which are necessary to bring to finality the issues

which might lead to a final judgment in the action,

have still not been taken. In other words, the

procedure that has been followed in the Court of

Appeal was not based upon any of the formal applications that one might have expected to lead to the judgment

that the Court of Appeal was asked to deliver. In

the result, the Court of Appeal sent the matter ba~k.

If we were to grant special leave now to

consider the questions which the defendants wish
to agitate, it would be necessary for us to be

satisfied that whatever defects there were before

Mr Justice Hunt had been cured before the Court of

Appeal. Although there is much to support the view

that those defects were cured, we cannot feel

satisfied in the absence of documentation which might

adequately establish it that that is the case.

In those circumstances, it is necessary, though

it may be regrettable, that the issues which now

appear at first sight to be ready for determination

should have to go back to first instance in order

that the applications might be made in proper form,

producing the issues which are now sought to be

agitated. If the matters do go back, as we think

they must, to a judge of first instance, it will be

open, of course, to the defendants then to make a

fo.1:mal a:pplica"tion under the relevant part of the Rules

to identify the issue which falls for determination

or which they seek to have agitated.

They may apply then for an order of the kind

which Mr Justice Hunt made and which the Court of

Appeal set aside and if, in seeking that order, they

fail to obtain the relief to which they would be
entitled on the contentions that they wish to raise

before this Court, they might have to pursue a further

appeal in order ultimately to bring the matter back.

In that event, it may not be necessary for them to go through the Court of Appeal if the proceedings are in a

satisfactory form to seek special leave to appeal

directly to this Court.

SlTlS/6/PLC	23	14/4/89
Rajski(3)

MR NICHOLAS:  Your Honour, could I put this with great respect:

would this Court entertain our application for an

adjournment to the next sittings of this Court to

enable us the opportunity of putting on the necessary

evidence which the Court presently feels is not before

it to enable it to resolve that question?

BRENNAN J:  No, it is not a question of the evidence that you

might wish to put on, I think, Mr Nicholas.

MR NICHOLAS:	Yes, I see what Your Honour is putting.
BRENNAN J:	I think that when the urocedures that

are followed, whatever they may be, which accord

strictly with the Rules, then the Court

that ultimately sits, if this Court's jurisdiction is

again invoked, can consider once more whether or not
the case in the shape in which it then stands is

ready for the grant of special leave.

MR NICHOLAS:	Yes, I understand, Your Honour.
BRENNAN J:	The only point that I wish to make is that as at

present advised it seems to us that the construction

of section 17F in the context of the facts alleged

in the statement of claim is a question of sufficinet

importance to justify the grant of special leave

but only if and when the state of the pleadings or

application in this case are in such a form as to

ensure that there is no other issue which might arise

for determination.

MR NICHOLAS:	I am grateful to the Court for the guidance.
MR HALL:	Your Hnour, might we han an order for our costs?

BRENNAN J: What do you say about that?

MR NICHOLAS:  I do not think I can say anything about that,

Your Honour.

BRENNAN J:  Yes, very well. The application is refused with

costs.

AT 5.42 PM THE MATTER WAS ADJOURNED SINE DIE

SlTlS/7/PLC	24	14/4/89
Rajski(3)