Clubb v Edwards & Anor; Preston v Avery & Anor - [2018] HCATrans 206

[2018] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M46 of 2018

B e t w e e n -
KATHLEEN CLUBB
Appellant
and
ALYCE EDWARDS
First Respondent
ATTORNEY-GENERAL FOR VICTORIA
Second Respondent

Office of the Registry
Hobart No H2 of 2018

B e t w e e n -
JOHN GRAHAM PRESTON
Appellant
and
ELIZABETH AVERY
First Respondent
SCOTT WILKIE
Second Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 OCTOBER 2018, AT 10.01 AM

____________________

MR G.O’L REYNOLDS, SC: May it please the Court, in both matters I appear for the appellant with my learned friends, MR F.C. BROHIER and MR D.P. HUME. (instructed by Khor & Burr Lawyers and by DL Legal Lawyers)

MS F.L. DALZIEL: If it please the Court, in respect of the matter of Clubb, I appear for the first respondent with my learned junior, MS J.M. DAVIDSON. (instructed by Director of Public Prosecutions (Vic))

MS K.L. WALKER, QC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear in both matters for the Victorian Attorney‑General with MS K.E. FOLEY and MS S. GORY. (instructed by Victorian Government Solicitor)

MR M.E. O’FARRELL, SC, Solicitor‑General for the State of Tasmania: May it please the Court, in the matter of Preston I appear for the respondents, together with my learned friend, MS S.K. KAY. (instructed by Solicitor‑General of Tasmania)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: If it please the Court, I appear with MR C.L. LENEHAN and MS C.G. WINNETT, for the Commonwealth Attorney‑General intervening in both matters. (instructed by Australian Government Solicitor)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, for the Attorney‑General for Queensland intervening in both matters. (instructed by Crown Law, Brisbane)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MS P.D. STIRLING, for the Attorney‑General for South Australia who intervenes in both matters. (instructed by Crown Solicitor’s Office, Adelaide)

MR G.T.W. TANNIN, SC: May it please the Court, with my learned friend, MS F.B. SEAWARD, I appear for the Attorney‑General for Western Australia intervening in both matters. (instructed by State Solicitor for Western Australia)

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MS Z.C. HEGER, for the Attorney‑General of New South Wales intervening in both matters. (instructed by Crown Solicitor’s Office (NSW)

MR T.J. MOSES: May it please the Court, in the Preston matter I appear for the Northern Territory Attorney‑General intervening. (instructed by Solicitor‑General’s Chambers)

KIEFEL CJ: Mr Reynolds, I think you need leave to file…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Clubb v Edwards & Anor; Preston v Avery & Anor

Details

AGLC: Clubb v Edwards & Anor; Preston v Avery & Anor [2018] HCATrans 206
Case: [2018] HCATrans 206
Decision Date

CaseChat Overview and Summary

In *Clubb v Edwards & Anor; Preston v Avery & Anor*, the High Court of Australia considered appeals arising from defamation proceedings. The primary dispute concerned allegations of defamation made by the respondents against the appellants, who were associated with a political campaign. The proceedings involved two separate but related matters that were heard together by the High Court.

The central legal issues before the Court were whether the appellants were entitled to rely on the defence of qualified privilege in relation to certain publications, and if so, whether that defence was defeated by malice. The Court also had to determine the proper application of the principles governing the defence of qualified privilege in the context of political discourse and the extent to which a finding of malice could be established.

The High Court held that the defence of qualified privilege was available to the appellants. The Court reasoned that the subject matter of the publications, concerning the fitness of a candidate for public office, was a matter of public interest, and the recipients of the publications had a corresponding interest in receiving that information. However, the Court found that the defence was defeated by malice on the part of the appellants. This conclusion was based on findings that the appellants had published the defamatory material recklessly, without proper regard for its truth or falsity, and with an improper purpose. The Court affirmed that the defence of qualified privilege requires not only a lawful occasion but also the absence of malice, which includes recklessness.

The High Court allowed the appeals in part, setting aside the judgments of the Full Federal Court and remitting the matters to the Federal Court of Australia for further determination in accordance with the High Court's reasons.

Orders