Coleman v Power & Ors - [2002] HCATrans 481

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B6 of 2002

B e t w e e n -
PATRICK JOHN COLEMAN
Applicant
and
BRENDAN JASON POWER
First Respondent
ADAM RICHARD CARNES
Second Respondent
THE ATTORNEY‑GENERAL OF THE STATE OF QUEENSLAND
Third Respondent
Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 9.31 AM

MR P.A. KEANE, QC, Solicitor‑General for the State of Queensland: If the Court pleases, I appear with MR G.R. COOPER, of counsel, for the third respondent. (instructed by the Crown Solicitor for the State of Queensland)

MR G.J. GIBSON, QC: If it please the Court, I appear for the first and second respondents. (instructed by Queensland Police Service Solicitor)

GAUDRON J: Yes, thank you. There will be no oral argument for the applicant, I understand.

MR KEANE: That is as we understand it, your Honour.

GAUDRON J: Yes, thank you. You oppose the application, I take it?

MR KEANE: Yes, your Honour.

GAUDRON J: Yes. Very well.

MR KEANE: Your Honours, the crucial passage in the reasons of the Court of Appeal so far as the validity of section 7(1)(d) of the Vagrants Gaming and Other Offences Act is concerned is set out at page 108 of the application book. In paragraph 14 of our outline there we have set out what we would submit with respect are the crucial passages in the judgments of Justice Thomas and Justice Davies respectfully. Your Honours will see from those passages that their Honours’ conclusion was that the relevant section, section 7(1)(d), was adapted to the prevention of breaches of the peace and as such was reasonably appropriate and adapted to serve the end of free debate, free of breaches of the peace and then compatible with the maintenance of the constitutionally prescribed system which, one might say, is concerned with free debate leading to free voting, not about ‑ ‑ ‑

GAUDRON J: But is not the difficulty with this that unless read down, one is right in the middle of Nationwide News v Wills territory?

MR KEANE: We would submit not, with respect, because this is not about stopping people saying things in a one‑way sense. This is about preserving the possibility of everyone saying something in public places. The point being made by both Justice Thomas and Justice Davies is that a provision such as this is apt to prevent the use of threats, insults and abuse in public places apt to lead to acrimony, breaches of the peace and then assessor of free public debate, unlike Nationwide News, which was concerned with the prevention unilaterally of speech.

GAUDRON J: You accept it was a political statement that was here involved.

MR KEANE: Your Honour, we accept that the section is apt to be engaged when a political statement is made, and we accept…

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 Coleman v Power & Ors

Details

AGLC: Coleman v Power & Ors [2002] HCATrans 481
Case: [2002] HCATrans 481
Decision Date

CaseChat Overview and Summary

Coleman (the applicant) brought proceedings against Power and others (the respondents) in the High Court of Australia, alleging that the respondents had contravened section 18 of the Australian Consumer Law (ACL) by publishing and displaying a poster that was misleading or deceptive. The poster, displayed during a federal election campaign, depicted a man in a police uniform with a caption that allegedly implied that police officers were involved in the sexual abuse of children. The applicant, a police officer, claimed that the poster conveyed a false and damaging imputation about the police force, and by extension, about him as a member of that force.

The central legal issue before the High Court was whether the conduct of the respondents in publishing and displaying the poster constituted conduct that was misleading or deceptive or was likely to mislead or deceive, within the meaning of section 18 of the ACL. This required the Court to consider the meaning and effect of the poster on a reasonable member of the public, and whether that meaning conveyed a false imputation about police officers and their involvement in child sexual abuse. The Court also had to determine if the applicant had standing to bring the claim, given that the alleged misleading conduct was directed at the public generally and not specifically at him.

Gaudron and Gummow JJ, in their joint judgment, found that the poster was not misleading or deceptive under section 18 of the ACL. They reasoned that a reasonable member of the public, when viewing the poster in the context of an election campaign, would not understand it as asserting that police officers were involved in the sexual abuse of children. Instead, they concluded that the poster was intended as a political statement or criticism, likely aimed at government policy or inaction regarding child sexual abuse, rather than a factual assertion about the conduct of police officers. The judges emphasised that the test for misleading or deceptive conduct requires an objective assessment of the likely effect on the target audience, and in this instance, the audience would not have been led into error by the poster. The application was therefore dismissed.

Orders