Channel Seven Perth Pty Ltd v S (A Company)

[2007] HCATrans 628

[2007] HCATrans 628

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P31 of 2007

B e t w e e n -

CHANNEL SEVEN PERTH PTY LTD

Applicant

and

S (A COMPANY)

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2007, AT 11.28 AM

Copyright in the High Court of Australia

MR S.J. DOYLE:   May it please the Court, I appear with MS C. GALATI for the applicant.  (instructed by Edwards Wallace)

MR R.E. BIRMINGHAM, QC:   May it please the Court, with my learned friend, MR B.R. MOLONY, I appear for the respondent.  (instructed by Su & Co)

GUMMOW J:   Yes, Mr Doyle.

MR DOYLE:   Your Honours, this application for special leave arises out of an application under section 31 of the Surveillance Devices Act seeking an order permitting the publication of a conversation.  The conversation was one between a woman described as “M” in the papers and the general manager of the respondent company in which essentially the general manager informed the woman that her employment had been or was being terminated because she was pregnant.  The test under section 31 involves the court being satisfied whether ‑ ‑ ‑

GUMMOW J:   Where do we see the text of 31?

MR DOYLE:   The text of the ‑ ‑ ‑

GUMMOW J:   Yes, in the book.  It is set out somewhere.

MR DOYLE:   The text of the conversation?

KIRBY J:   Section 31.

MR DOYLE:   Section 31.

GUMMOW J:   Page 26, I think.

MR DOYLE:   Yes.

KIRBY J:   You have at last given us some statutory material.  It is there as well.

MR DOYLE:   Yes. Your Honours will see that in section 31(1) it is in particular the last two lines:

if the judge is satisfied, upon application being made in accordance with section 32, that the publication or communication should be made to protect or further the public interest.

KIRBY J:   It is not only protect, it is to further the public interest.

MR DOYLE:   Protect or further the public interest, yes.

KIRBY J:   And your emphasis would be, would it not, on furthering the public interest in the free expression in modern means of communication and in a matter of general importance concerning not dismissing people because they are pregnant.

MR DOYLE:   Yes.  In my submission, there is an element of protection but the emphasis is probably on furthering in that the public interest, in my submission, is a twofold one here.  First of all, the disclosure of misconduct or a strong case of a breach of the equal opportunity legislation but perhaps, more importantly, informing people and educating people, including the public generally, but particularly including employees and employers, about the rights and freedoms of persons in the positions of M and the general manager here. 

KIRBY J:   It is a classic clash, is it not?  It is a clash between the right which Parliament has respected of privacy and not having people coming along bugging private conversations with you but, on the other hand, where that has been done to use that material to illustrate with greater vividness than would be the case if it were simply cold print or a report, the words of the person involved.

MR DOYLE:   Yes, and I am jumping ahead, but your Honour used the term “vividness”.  In my submission, that is really at the heart of some of the errors we identify here in that the Court of Appeal identified ‑ ‑ ‑

GUMMOW J:   Yes, that is right.  Before we get into the errors, can you just go to page 60 for a minute?  I am just puzzled a little bit as to what it is the parties are at issue.  See paragraph 8 there?

MR DOYLE:   Yes.

GUMMOW J:   This is put against you, I think:

What the Applicant seeks is . . . if any public interest is found in a covertly recorded private conversation, publication must be ordered.

Then one goes over the page to 68 and you say, “This is a straw man” and that is not what you are on about.  Then you go over the page 69.  What then is the special leave point other than the particular exercise of discretion in this particular case?  If there is no construction point, what is the special leave point?

MR DOYLE:   No construction point, but it is what are the principles relevant to the exercise of that discretion and we say if the principles are as applied by the Court of Appeal, then the section is effectively ‑ ‑ ‑

GUMMOW J:   You say the Court of Appeal took into account irrelevant matters?

MR DOYLE:   Yes, and we identify ‑ ‑ ‑

GUMMOW J:   What are they?

MR DOYLE:    ‑ ‑ ‑ three irrelevant matters and one relevant matter that was not taken into account.  The three irrelevant matters are, first of all, that there was a reduction in the public interest in this publication because the story could have been published without using the recorded conversation.  We say if that is irrelevant consideration, that really by itself almost renders the section inutile.  Secondly, we say that an irrelevant consideration was that the conduct here, the conversation itself, was not unlawful.  It was the letter of termination that preceded it by a couple of days. 

So we say there is distinction between conduct which is unlawful in itself and conduct which is really just a subsequent admission.  That is a distinction that if it is one that exists at all, it is irrelevant in this situation where the misconduct is one that the act of termination by itself is neutral.  It only becomes misconduct because of the subjective reasoning of the general manager and that only becomes apparent from the conversation.  So we say that distinction is, if not always irrelevant, certainly in the circumstances of this case.

The third matter which we say is a relevant consideration that was not taken into account was the finding of the Court of Appeal that – and picking up on Justice Kirby’s reference to the vivid nature of the broadcast using this recorded conversation.  So whilst the story might have been able to be published through an alternative means having M perhaps being interviewed on camera rather than using the recorded conversation, there was a finding of the Court of Appeal that using the conversation would have been a more effective means of attracting a greater audience. 

When the public interest is one of educating and informing the public, the capacity of a particular form of broadcast to involve a greater number of people in the debate and therefore informing a greater number of people, in my submission, means that the form of the broadcast is relevant and ought to have been a positive consideration that was taken in account in favour of my client’s application.

KIRBY J:   I may be wrong, but at the moment I am inclined to the view that the fact that you could have done it another way is really not a correct way to approach the exercise of the power here because the whole point is you want to do it in a particular way and therefore you have to ask is that particular way effective, not that you could have done it in some other way.  You are asserting an entitlement in law to do it your way and therefore the fact that you can do it in another way does not seem to me to answer your assertion.  I may be wrong on that, you do not seem to put it that way.  You simply say that the fact that you can do it another way is beside the point because that can always be said.  What I am suggesting is that there is a problem in the respondent asserting that because of the fact that you have to posit that it is done the way you want to do it and then ask whether that is lawful.

MR DOYLE:   We did intend to put it both ways.  Both the consequences of this interpretation would be to render the section inutile because you could always do it another way, but also we certainly embrace what your Honour says.  By analogy, in the defamation context, if one were talking, for example, about the defence of qualified privilege and is a particular broadcast in the public interest, one does not say, “Well, could you have broadcast a story on that same topic without giving rise to an imputation about the plaintiff and so therefore that somehow diminishes the public interest because you could have done it without naming that person”.  The court, to use your Honour’s phrase, posits a particular publication and considers whether or not that particular publication is in the public interest or would ‑ ‑ ‑

GUMMOW J:   What do you say about Justice McLure’s judgment at paragraph 40?  This is what is under debate, I think.  She said:

Another relevant factor is the scope of the publication . . . However, as the primary Judge correctly observed, the appellant could have raised exactly the same issues without instigating the use of covert devices.

What do you then say about the next three sentences which say all this is stimulated not by desire for the public interest but by a desire to attract viewers who like looking at surreptitiously filmed incidents because it is more entertaining ‑ ‑ ‑

MR DOYLE:    We do not for one moment that obviously a commercial organisation ‑ ‑ ‑

GUMMOW J:    ‑ ‑ ‑ and get your client better ratings and better advertising revenue?

MR DOYLE:   Certainly that is a factor from any media outlet’s point of view and we do not shy away from that, but what we say is that is not a relevant consideration to the public interest.  Obviously if there was distortion or sensationalism for the sake of ratings, that would be a relevant matter, but there is no basis for suggesting that it was going to be other than a responsible broadcast here.  More importantly, in my submission, that really ought to have been a positive favour or consideration in this circumstance in that, as Justice McLure says, using this recording has the potential to increase audience numbers and therefore, in my submission, further the public interest in a way that another less interesting broadcast might not.  So where the public interest is to educate people about employers’ and employees’ rights in this situation using a means or a mode of publication that might reach, say, a million people rather than 100,000 people ‑ ‑ ‑

KIRBY J:   Are you sure that was your motivation and it was not just for a little bit of entertainment ‑ ‑ ‑

MR DOYLE:   I have been careful not to use the word ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ somebody’s embarrassment and candid camera as you have ultimately agreed it could be described?

MR DOYLE:   I have been careful not to ‑ ‑ ‑

KIRBY J:   I mean, we have all watched the candid camera programs and had a chuckle, so long as we are not the person who is on the candid camera.

MR DOYLE:   Yes, well, two things.  First of all, I have been careful not to use the word “motivation”.  In fact, I submit that motivation is not relevant.  It is what is the effect and in this form of publication, sure, there will be a private benefit if it attracts greater viewer numbers, but there will be, in my submission, a furthering of the public interest in reaching a greater number of people and broadening the debate to include a greater number of people.

GUMMOW J:   What do you mean by “debate”?

MR DOYLE:   The circumstances here ‑ ‑ ‑

GUMMOW J:   Do you mean talkback radio, do you?

MR DOYLE:   On any forum, whether it is in the lounge room at home amongst people watching the show or even in just the minds of viewers.  Somebody who sees this recording will think, one, form a judgment about whether or not this ought to have been done, two, do the laws that govern the situation, are they adequate or ought they be more stringent, less stringent and encourage debate generally about entitlements of employers and employees.

KIRBY J:   Do we not as a final court have to look at whether or not if we were to grant special leave and uphold your submissions that you do then give a green light to media, so‑called investigative media, sometimes entertainment media, to be tapping people’s private conversations, which you agree is a private conversation, and that then is really destructive of the faith that citizens can have in having conversations with each other without them ending up on the news broadcasts.

MR DOYLE:   Yes.  In my submission, the consequence of allowing the appeal would be to provide the opportunity for broadcasts such as this in limited circumstances but it would not be opening it up to any huge extent in that here we have a fairly unique combination of the two heads of public interest, first of all, a strong case of an unlawful discrimination.  So we have that aspect to it.  But also, this is not, again to use your Honour’s phrase, just a gratuitous chuckle story.  This is one that raises a very serious issue of public importance which is relevant to a vast number of people throughout Australia.  It is not simply one person who has been caught out doing something wrong.  It goes to the heart of women’s rights, pregnant women’s rights, also equal opportunity in the workplace generally, but also informing employers about their entitlements and what is a legitimate and not a legitimate basis for terminating someone’s employment.

KIRBY J:   So your answer to my concern is that there would not be a general green light, it would simply be a matter to be decided in the particular case having regard to the public interest involved in the particular case and that in this case there were special factors of the public interest that were downplayed or even ignored by the Court of Appeal and that that is the sort of error that you want to have corrected?

MR DOYLE:   Yes.

KIRBY J:   And you latch on in your paragraph 8 in the respondent’s submissions conceded the matter involves a question of law of some public importance.  I assume that you are trying to get this up as a sort of test case, is that correct?

MR DOYLE:   Yes.

KIRBY J:   Well, if so, why should you not have to pay the costs of the respondent in any event?  Why should an ordinary citizen be brought up here, or a corporation, in a matter of general importance to media under circumstances where they are at peril as to costs?  You should have to pay the costs, should you not?

MR DOYLE:   Yes.  I do not have ‑ ‑ ‑

GUMMOW J:   Where your clients lost twice already.

MR DOYLE:   Yes.  I mean, I do not have instructions to that point, but I accept the force of ‑ ‑ ‑

GUMMOW J:   Perhaps you better get them.

MR DOYLE:   Shall I do that now or perhaps while my opponent ‑ ‑ ‑

GUMMOW J:   We will take a short adjournment eventually.  The other thing I wanted to ask you about was what order you would seek from us looking at page 46?  Your complaint is that the Court of Appeal in Western Australia erred in its re-exercise of the discretion, is it?

MR DOYLE:   Yes.

GUMMOW J:   So you would be asking us to what?  Send it back to them, to do it ourselves?

MR DOYLE:   Our primary case would be that your Honours on the appeal would have the same information and it would be an easy matter for your Honours to make the positive order that publication be permitted but, in the alternative, we would be content that the matter be sent back below with some guidance from your Honours about the relevant principles and approach to take to the issue of public interest.

GUMMOW J:   That would come down to us expressing a view as to what matters were relevant and what were irrelevant in the exercise of the discretion here, would it not?

MR DOYLE:   Yes, it would.  Certainly commenting upon or holding whether or not some of the matters that were taken into account as being relevant and significantly reducing the public ‑ ‑ ‑

GUMMOW J:   We are not commentariat people.  We make decisions.

MR DOYLE:   Yes.  Your Honour is deciding whether or not in particular the format is that I have identified in the submissions were relevant or irrelevant considerations.

GUMMOW J:   Could you just explain to me what the errors are in Justice McLure’s reasoning at pages 34 and 35 under the heading “Re‑exercise of the discretion” because that is what it will come down to.  We have to be satisfied that the Court of Appeal went wrong there.

MR DOYLE:   Yes, the first two errors in fact appear in paragraph 35 and then they are joined upon in the re-exercise of the discretion, but in paragraph 35 her Honour accepts as two factors together significantly reducing the public interest, one, the fact that the story could have been published without the recording and, secondly, the conversation itself was not illegal.  The illegal act was the letter of termination that came a couple of days earlier.  In my submission, both of those factors are irrelevant considerations.

GUMMOW J:   So she took into account what she should not have taken into account?

MR DOYLE:   Two irrelevant considerations ‑ ‑ ‑

GUMMOW J:   What did she not take into account that she should have taken into account?

MR DOYLE:   There are two factors not taken into account and the first of those is the matter your Honour referred to in paragraph 40, the reference to the capacity of a broadcast using the recording to increase or widen the audience.  In my submission, that ought to have been a factor in favour of an order for publication in that therefore the particular broadcast had the potential to promote or further the public interest in a way that a broadcast without that recording would have. 

The final matter that ought to have been taken into account is that when the irrelevant considerations are taken away, the only countervailing consideration that is left, in my submission, is the general policy or public interest underlying the act being one against the use of covert devices except in certain defined circumstances.  But here we have a finding both at first instance and by the Court of Appeal, or at least not challenged in the Court of Appeal, that the use of the covert device here was not unlawful, that in making the recording M had brought herself within the exceptions under section 5 and section 6 of the Act because she believed it was in her lawful interest to make the recording or, in the alternative, she had reasonable grounds for believing what she was doing in the public interest.

So whilst Justice McLure is correct that there is a general policy underlying the Act, in my submission, it has to be relevant in the circumstances of this case that the Act carves out certain circumstances and this very recording fitted within those circumstances.  So whilst it cannot be ignored, the general policy has a diminished significance, in my submission, in the circumstances of this particular case.

HEYDON J:   But whatever defences she had under sections 5 and 6, what defences did you have under section 9?

MR DOYLE:   They are section 5(2)(d) which permits “the use of a listening device in accordance with Part 5”.  Part 5 includes section 26 which permits the use of a listening device where there is consent by a party, here M, “and there are reasonable grounds for believing that the use of the listening device is in the public interest.”  That defence was held to be made out so that the use was not illegal by M or unlawful by M.  The second defence which was also made out is in section 5(3)(d) where there is consent ‑ ‑ ‑

KIRBY J:   There was no consent in this case, was there?

MR DOYLE:   Consent only needs to be by “a principal party”.  So the consent by M is the consent for the purposes of this subsection and that combined within section 5(3)(d), the use being “reasonably necessary for the protection of the lawful interests of that principal party.”  Again, that judge at first instance in a finding that was not challenged on appeal held that that subsection was also made out.  So M had two defences to her use of the listening device.  In my submission, what that means is, yes, there is a policy underlying the Act to confine the circumstances in which a listening device can be used and/or a covert recording device can be used.  That cannot be ignored but in balancing the competing interests in this case, it has to be a relevant consideration that this particular use is one that falls within the permissible exceptions under the Act. 

HEYDON J:   We are going to be, if special leave is granted, hearing an argument in 2008 about whether a film made in 2005 about a dismissal made in 2005 should be shown and perhaps judgment will be given in 2009.  Perhaps it will be a matter for the Court of Appeal or the Supreme Court to re-examine the matter.  Is this not really rather academic?  Is it really likely or possible that the film will be shown about something that happened five years ago?

MR DOYLE:   In my submission, the film is almost as relevant.  Perhaps the first head of public interest that we identify, namely, the disclosure of inequity has a diminished significance in that proceedings of ‑ ‑ ‑

GUMMOW J:   No, the news will be your success in this Court.  That will be the news.  That will reignite, you hope, some interest in the subject.

MR DOYLE:   Yes, and that is connected to the second head of public interest, which is the one that we rely primarily upon, and that is the furthering of public awareness and debate and understanding about the rights of employees and employers in the workplace.  Now, that remains if not more relevant given the political climate we are in at the moment today than it was three years ago, but certainly just as relevant.  The fact that this particular incident took place two years ago now and probably three years by the time there is any decision or ability to publish the story does not mean that it is still not in the public interest. 

We say also this has a general significance to the operation of this section in Western Australia at the moment.  If the principles are as articulated by the Court of Appeal, then it is going to be either impossible or it is certainly a very rare situation in which there will be a publication order.  So the case retains significance from that point of view.  So that is what we say in response to your Honour’s ‑ ‑ ‑

KIRBY J:   Why did it take long?  I mean, the trial judge heard the matter up to 8 August and delivered his reasons and orders on 10 August 2005.  It seems to have gone into hibernation for a while.

MR DOYLE:   I cannot answer that question.  My friend may be able to assist your Honour.  I can make some inquiries about that.  I am not sure what the delay between the first instance and appeal decisions were in this case, whether it was a ‑ ‑ ‑

KIRBY J:   The Court of Appeal was also pretty prompt in giving its reasons between February 2007 and June 2007.

MR DOYLE:   Yes, I saw that, only a few months.  It seems to have been a delay in having the matter set down.

KIRBY J:   It took two years to get to them.

MR DOYLE:    I am not sure whether there is any culpability on either side for that.  I am not sure what the reason for the delay was.

KIRBY J:   It does not seem to show breathless urgency on your part.

MR DOYLE:   I cannot comment on that.  I do not know the circumstances of the delay.  It is perhaps a matter I can make some inquiries about in the address in reply if it remains relevant.  Unless your Honours have anything further, those are my submissions.

GUMMOW J:   Yes, Mr Doyle.  Thank you.  Yes, Mr Birmingham.

MR BIRMINGHAM:   Thank you, your Honours. 

GUMMOW J:   Just before you start, am I right in thinking that the costs orders were made in the Court of Appeal relating to the Court of Appeal and the primary judge?

MR BIRMINGHAM:   They were.  That was dealt with by way of cross‑appeal.

GUMMOW J:   They are in your favour?

MR BIRMINGHAM:   They were in our favour by way of cross‑appeal.

KIRBY J:   You did not get your costs at the first instance.

GUMMOW J:   You had to cross-appeal.

MR BIRMINGHAM:   We sought leave to – cross-appealed and that was upheld and we got our costs.

GUMMOW J:   Yes, thank you.

MR BIRMINGHAM:   Can I just say, there is a starting point in relation to the facts that needs to be emphasised and that is, whilst the applicant says there is a strong case, the facts upon which the court below heard and determined this matter and exercised their discretion on the benefit of all the material before them are set out in the judgment of the Honourable Justice Le Miere at first instance and the critical aspect in relation to the respondent’s evidence is found at pages 6 and 7 of the papers as to what the general manager was concerned about this young lady who had to go up and down steel stairs working in the metropolitan markets, walking through cool rooms of 1.5 to 3.5 degrees Celsius, up and down these stairs, trolleys and forklifts operating with large loads.  He was:

concerned for her health and safety in performing her work at the company’s premises.  Even before her pregnancy the general manager had observed “M” having difficulty from time to time in climbing the steep stairs.  She appeared to have breathing problems and had experienced occasional blackouts when she was at work.  On one occasion she became so ill while climbing the stairs that she had to hold onto the safety bars –

The general manager then deposed the consequences of his concern coupled with her pregnancy that he felt that it was unsafe for her to be there.  When Justice Le Miere dealt with the material saying there was a strong case, he did it in these terms.  This is at page 12 of the application book:

On the materials before the Court there is a strong case that the company unlawfully discriminated against “M” and contravened s 11 of the Equal Opportunity Act1984 (WA). However, that conclusion is based upon an interpretation of the way the general manager has expressed himself in his affidavit. The respondent company maintains that it did not dismiss “M” on the ground of her pregnancy and did not contravene s 11 of the Equal Opportunity Act1984 (WA). The question is ultimately one of fact that should be determined after a consideration of all the relevant evidence, including any cross‑examination ‑ ‑ ‑

GUMMOW J:   Should it not be determined in proceedings under the Equal Opportunity Act?

MR BIRMINGHAM:   Yes.

GUMMOW J:   Has that ever happened?

MR BIRMINGHAM:   No.

KIRBY J:   But these are the ways in which in our modern community with modern media parables are put before the community and they can be put before the community with a report and somebody’s version, but they, at least arguably, can be put before the community in a very vivid way by the use of the offender’s actual language and expression.  So the question, as it seems to me, you having conceded that the matter does involve a question of law that is of some public importance, is whether or not it is not an appropriate matter for this Court to examine.  You might end up winning, but it is a sort of very modern parable story.

MR BIRMINGHAM:   What the applicant seeks here is to effectively seek the leave of this Honourable Court to be permitted to broadcast the statement as your Honour Justice Heydon has pointed out that took place on 20 July 2005.  The questions that are said to arise on the application are whether in re-exercising the discretion the Court of Appeal below got it wrong when they re-exercised their discretion having found that the judge below had erred.  There is no challenge to their Honours’ findings as to the test to be applied.  There is no question of interpretation.  It is just the question of the application of the principles to the facts and whether or not they took account of irrelevant considerations in doing so.

KIRBY J:   But it is a very modern problem and an important problem in today’s media conscious world of the clash between privacy values, which are respected by Parliament, expressed in the Act, and public communication and enlightenment and persuasion that is also reserved by Parliament in the Act.  The issue is whether it is not appropriate for the final court to have a look at it given that you can see that it is a matter of question of law that is of some public importance.

MR BIRMINGHAM:   That would be so save for this, and that is section 31 – and this part in the Act is unique to Western Australia.  None of the other States have comparable legislation.

KIRBY J:   Now, you are not saying we should not look at it because it is just a Western Australia statute?

MR BIRMINGHAM:   No, I am not saying that.

KIRBY J:   If Justice Callinan were still here he would blanch at that submission.

MR BIRMINGHAM:   But there are other members, with respect, who would say ‑ ‑ ‑

KIRBY J:   We are the Supreme Court for Western Australia too, you know.

MR BIRMINGHAM:   Your Honours, the section is unique and it is unique in the context where the public interest for the purpose of section 31 is in fact defined within that part of the Act in section 24.  So the definition of public interest for the purpose of an application under section 31 is defined.  The scheme of this legislation ‑ ‑ ‑

KIRBY J:   The definition is a bit against you, is it not, because it talks of protecting and furthering the public interest and then there are a number of indicia that are provided, some of which seem to be relevant in this case.  It is arguable.

MR BIRMINGHAM:   Save insofar, your Honour, that, as noted by Justice of Appeal McLure, at paragraph 26, when she looked at this legislation and looked at the scheme, and it is unchallenged here, that it reflects a strong public interest and public policy against the use of covert devices.  In other words, you cannot use covert devices unless criteria are filled.  As her Honour found with reference to the candid camera point, this is a case where the applicant instigated the conversation and indeed in the material before the court below the ‑ ‑ ‑

KIRBY J:   That might have been because the news media organisation said, “We cannot believe that in this modern age an employer is going to say you are pregnant, you are sacked.  We cannot believe it,” and then they went back and recorded it and, lo and behold, it was apparently true.

MR BIRMINGHAM:   With respect, no.  That is the point that Justice McLure picked up.

KIRBY J:   Why should that not all be laid out before the people?

MR BIRMINGHAM:   Why should a private conversation be granted where obtained at an instigation of a commercial television station for presentation to the public at large?  Why should the conversation where the manager in good faith explained to her his concerns about her pregnancy, her general health and well being, how he would assist her finding work elsewhere, but she could not work in this environment?  All of that is not the story that they were looking to put to air.

GUMMOW J:   There is a silent partner in all of this.  We do not know what the current attitude of M is to having her past state of health some years ago turn into a public spectacle.

MR BIRMINGHAM:   At this stage, as I understand it, she has no further role in the matter.

KIRBY J:   She is caught up in a dispute which is put before us as a matter of general importance and there would be at least some in this community, and I might be one of them myself, who would say you are putting the boot on the wrong foot by saying, “Why should it be?”  The question is, “Why shouldn’t it be?”  The Act has said you have to protect privacy, but it is said that there is an exception where it is a matter of furthering the public interest.

MR BIRMINGHAM:   On that principle, with respect, your Honour, a conversation between your Honours in chambers, privately, if it was recorded by one could be on Channel Seven tonight at 6.30 without any recourse because it would no doubt deal with the administration of justice.

KIRBY J:   That might well be a contempt of Court.

MR BIRMINGHAM:   The other participants to that may well have thought that that was a private conversation that ought remain private, as this was where the general manager expressed his very heartfelt concerns and it is important to remember that the court below sees this material and sees the concern in which ‑ ‑ ‑

KIRBY J:   You are only trying to frighten us by saying that they can come into our chambers and record us in our chambers.

MR BIRMINGHAM:   If your Honour pleases, I will own up and say I made the same point below and it may have worked there, but, with respect, no.

KIRBY J:   We have to look at it as a matter of legal principle, and as was put to us by Mr Doyle, it really depends on the particular case that you should not, as it were, have horror nightmares because in the horror nightmare case then there is no doubt where the public interest will lie.

MR BIRMINGHAM:   But looking at this particular case on balancing the interests and whether or not this conversation, this private occasion, should be publicised nationally and in weighing the competing interests between the scheme of the legislation, the extent to which it is a public interest in maintaining the privacy of conversations and not having every conversation made public because one party to it believes it should occur in that way and where a television station has orchestrated her attendance at the office ‑ ‑ ‑

KIRBY J:   I repeat, I would think that that may well have happened in this case because the television station chief of staff said, “I cannot believe that in this day and age somebody is going to sack somebody because they are pregnant”.  It is so offensive to the basic principles of Australian fair go.

MR BIRMINGHAM:   If that was what the tape revealed, I have no doubt that their Honours in the court below would have exercised their discretion differently.  They did not and indeed Justice McLure at paragraph 39 on page 35 found that he did it:

in good faith why her services had been terminated.  Such conduct is to be encouraged rather than discouraged.

Significantly, in the court below they had the benefit of the video which concludes with the young lady saying, as she gets back into the vehicle with the television crew, “I’m not sure that he said it exactly the way you wanted him to”.  It was orchestrated and the general manager expressed his genuine concerns for this young lady and that was recorded.  The court below had the opportunity to take account of that when they did this balancing process.

KIRBY J:   On one view the television station has a genuine concern, not only for this young lady but for all other young ladies in the same position, that we do not in this country sack people because they are pregnant and we want to send out by a parable in the modern electronic form a signal to that effect because that will have far greater impact on learned judgments of the High Court of Australia in the modern age.

MR BIRMINGHAM:   Without doubt, your Honour, save that, that is not this case.  That is the point.  That is not this case and the court below had all of the material before them and they could form that value judgment when they are doing the balancing between the interest in maintaining the privacy of communications and discourse between individuals and that being presented on the air.  At no stage did the applicant seek to ascertain from the respondent whether or not in fact that was the basis.  What they did was sent somebody in there with a camera concealed and she then asked a series of questions and including as to whether or not it was racially based and things such as that, all of these matters, endeavouring to stimulate a story.

That is the concern that was expressed by her Honour Justice McLure and where, if the use of a private camera would enable on any occasion, because it would obviously sensationalise it and heighten the awareness to the issue, then that would justify on any matter of public interest a conversation being recorded.  So long as it is a matter of public interest you can use a covert camera because it stimulates interest and that is the whole point we are saying.  There is a balance.

KIRBY J:   You are very persuasive, Mr Birmingham, and I am very affected by what you say, but can you deny that this is an important question?  I mean, you do not.  You exactly acknowledge it.

MR BIRMINGHAM:   It is an important question but not in this ‑ ‑ ‑

KIRBY J:   It is a very modern question.  It is typical.

MR BIRMINGHAM:   It is an important question that you do not need to display the general manager’s expressions and what he says in July 2005 on national television to make the point.

KIRBY J:   In O’Neill it took even longer, I think, for that case to come to this Court.  These issues are fought as test cases, matters of general principle, the degree to which Australia is an open society, respecting other values but as basically an open society with a free media.

MR BIRMINGHAM:   We do have a free media, but we also have legislation that prohibits the use of certain equipment for the purpose of recording conversations and video images and which society generally has said, “No, we don’t want that”.  As the speeches in relation to this legislation demonstrated, and the court found, is that there is a very strong public interest and public policy against the use of these devices and that had to be balanced and that is what their Honours did below in exercising their judgment.  So that, really, as a matter for special leave, this Court reviewing the way in which the court below approached the evidence before them, their findings being that they were not satisfied on the evidence – I think as Justice McLure says at page 35 at 41:

the evidence falls well short of providing a proper foundation for a conclusion that the proposed publication should be made to protect or further the public interest.

KIRBY J:   But did not her Honour take into account the relevant consideration when she said that it could be produced without this material, it could have been put to air because does not the statute require that you, as it were, assume that this material is put to air and then you see whether that is contrary to public interest.  You do not say, “Well, can they do it some other way?”  Of course they can always do it some other way.  That is an irrelevant consideration.

MR BIRMINGHAM:   With respect, no, because you are looking at whether or not you make an order under section 31 against an Act that specifically has as its legislative purpose to say, “We will not make an order, save for this circumstance”.  The mere fact that it might be of public interest is not enough.  It has to have something else, a countervailing weight, that makes it so important to protect and further that if necessary.  If it is just a matter that can be dealt with in another way, as this could have been – they could have sought to interview the general manager who in his affidavit expressed the same views as he did on the tape.

He did not resile from the position.  He had a genuine concern about the girl’s health and that is what was expressed and that is the point that Appeal Justice McLure has picked up on in saying how he had a genuine concern, that he had – and he expressed it in terms – that he had expressed it in good faith.

KIRBY J:   So the way he exhibits his genuine concern is to sack a pregnant woman.

MR BIRMINGHAM:   Your Honour, with respect, keeps returning to the fact that that is the basis ‑ ‑ ‑

KIRBY J:   A lot of Australians would not like to hear or see that.

MR BIRMINGHAM:   But, with respect, that was not what he said in relation to the grounds, it was about his concern for her safety and her unborn baby.  It was a general concern for her safety and her health.  It was an occupational health and safety matter, not an equal opportunity matter and to say that he had that base - objected to say, “Well, she is pregnant, she goes” that was not the basis.  It was the fact that he was genuinely concerned in the work environment in the markets, forklifts, trolleys, food processing, in and out of cool rooms, steel stairs, all of that happening and indeed in the video that the court had below, as she is leaving she is nearly

run over by a forklift.  They had all of that material.  They exercised their discretion.  It ought not go further.  If the Court pleases.

GUMMOW J:   Yes.  Mr Doyle.

MR DOYLE:   Your Honour, picking up, first of all, on the last point about what the video reveals, what the court at first instance, and it is referred to at appeal book 27, Justice McLure refers to the finding below that there was a finding of “a strong case” of a contravention of the relevant section of the Equal Opportunity Act, in other words, a strong case that that was the reason for the termination.  I accept that there are references to other reasons given in the video, but to the extent that the merits were relevant and were considered, that was the finding of the court at first instance.

In relation to the point – this is Western Australian legislation and I have addressed the significance of it from a Western Australian point of view, but it is not entirely unique, this section.  There are – and I have referred to it in my summary of argument – four equivalent provisions in interstate jurisdictions in South Australia, Victoria, the Northern Territory and the ACT.  They differ to the extent that rather than having to go to court and make application to permit publication they are framed in terms of defences to publications that occur, but they invoke the same concept of public interest and involve the same balancing of interests between public interest in publication, on the one hand, and the public interest against using covert recordings.  So, any decision of this Court on this section will be of significance to at least four States of Australia.

KIRBY J:   But what do you say about the fact that this is now five years since the event, that it is no longer really newsworthy in the way that it was perhaps at the time, that we do not know what M has to say about this and she may not want to have her private life now raked over the coals and you are using this as a means, in effect, of trying the employer for an equal opportunity breach which there are proper tribunals for doing that.

MR DOYLE:   Yes.  At least three points.  First of all, proceedings were brought and have been pursued and were resolved in the Equal Opportunity Tribunal, so that avenue has been pursued.

GUMMOW J:   Exactly.

MR DOYLE:   Secondly, M not only consented to publication, she positively sought out the television station.

KIRBY J:   At the time, but it may be that four years later she is not quite so enthusiastic.

MR DOYLE:   At the moment it is two years later.  I cannot put it into ‑ ‑ ‑

HEYDON J:   Yes, but we have to be realistic, Mr Doyle.  We have to be realistic.

MR DOYLE:   Yes.  I cannot put anything to your Honour about her present attitude other than the circumstances.

GUMMOW J:   What was the date of her dismissal, do you know?

MR DOYLE:   It was 18 July 2005.

GUMMOW J:   Thank you.

MR DOYLE:   The letter she received was 18 July.  I think it was 21 July 2005.

GUMMOW J:   Yes, July.

KIRBY J:   It is her private conversation that is protected by the statute.

MR DOYLE:   Yes, and she, presumably, would be entitled to be heard if there was any concern from her point of view.  But, perhaps a more important point, your Honours, is that the public interest that we rely upon is one that is still relevant and has survived the two years since this recording took place and the debate was to take place, the information that the broadcast is to convey and the public interest it will further is one that is just as relevant today as it was two years ago about informing employers and employees alike about the importance of these issues and where the boundaries are and what is appropriate and what is not appropriate.

There are two further matters, first of all, there is reference in the second reading speech as to the public importance or the public interest in circumscribing the circumstances in which covert recordings can be made, but at the same time there is reference in the same speech as to the fact that Part 5 of this Act which includes the section 31 that we are dealing with here was expressly included late in the piece after representations by media organisations, private investigators and surveillance and insurance agents and the clear intention, both from the fact of the inclusion of section 31 but also the discussion that took place, is that it was intended to have some work to do for the media.

In my submission, if the current Court of Appeal approach is left to stand and to include as a significant consideration reducing the public interest the ability to broadcast some other story that did not use the recording but dealt with the same topic then, in effect, the intention of

Parliament will not be achieved because there will not be publications by media.  It is almost impossible to think of a circumstance in which one could say, “Well, there is no alternative but to use the recording for this broadcast”.

The final matter is, I have obtained some instructions and my client is prepared to meet the costs of an appeal, in any event, if your Honours saw it as appropriate to first of all grant leave but include that as a condition of the grant.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 12.15 SHORT ADJOURNMENT

UPON RESUMING AT 12.21 PM:

GUMMOW J:   What I am about to say represents a view of the majority of the Court.

The events which gave rise to this litigation occurred in 2005.  The applicant has not identified the attitude of the party identified in the litigation as “M” to the broadcasting of her conversation so many years later as would be the case if the applicant were to succeed in the grant of special leave and proceed to ultimate success.

The principal issue for this Court on an appeal would be whether the Western Australian Court of Appeal erred in its re‑exercise of the power conferred by section 31 of the Surveillance Devices Act 1998 (WA). It appears from the submissions that there is not a dispute as to the correct construction of the statute, rather the question would be whether the applicant could demonstrate that the Court of Appeal erred in the view it took and in particular that the Court of Appeal took irrelevant matters into account and did not have regard to relevant matters.

We are not satisfied that there would be a sufficient prospect of success in demonstrating this.  That being so, this would not be an appropriate test case to construe the Western Australian legislation and special leave is refused with costs.

KIRBY J:   I would grant special leave on condition that the applicant pay all of the costs of the respondent.

GUMMOW J:   The Court will adjourn until Tuesday, 6 November in Canberra.

AT 12.24 PM THE MATTER WAS CONCLUDED