Daily Examiner Pty Ltd v Mundine & Anor; Brown v Mundine & Anor

[2012] HCATrans 362

[2012] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S198 of 2012

B e t w e e n -

DAILY EXAMINER PTY LTD

Applicant

and

LANA MUNDINE

First Respondent

AVERY BROWN

Second Respondent

Office of the Registry
  Sydney  No S199 of 2012

B e t w e e n -

AVERY BROWN

Applicant

and

LANA MUNDINE

First Respondent

DAILY EXAMINER PTY LTD

Second Respondent

Applications for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2012, AT 12.29 PM

Copyright in the High Court of Australia

___________________

MR G.O’L. REYNOLDS, SC:   May it please the Court, in the first matter I appear for the applicant with my learned friend, MS G.R. RUBAGOTTI.  (instructed by Banki Haddock Fiora)

MR B.R. McCLINTOCK, SC:   In the second matter, if it please your Honours, I appear for the applicant with my learned friend, MS P.M. WASS, and we are the respondent in the first matter as well.  (instructed by Holding Redlich Lawyers)

MR T. MOLOMBY, SC:   If it please the Court, I appear for the first respondent in both matters and my learned friend, MR R.K.M. RASMUSSEN, appears with me.  (instructed by Slater & Gordon Lawyers)

KIEFEL J:   Yes, Mr Reynolds.

MR REYNOLDS:   Before I begin my 20 minutes, your Honours, there is an affidavit I need formally to read by my instructing solicitor, Bruce Norman Burke, which I understand is not objected to.  It is dated 12 December 2012.  May I treat that as read?

KIEFEL J:   Yes, that goes to the question of what was argued in the Court of Appeal?

MR REYNOLDS:   Yes.  Your Honours, I submit that this case raises several important issues.  The first that I wish to deal with, the first issue is the judgment of Justice McHugh in the Stephens Case and the holding by him in that case is set out neatly at application book page 180 at line 45 where your Honours will see that his Honour said that, “[I]t is now appropriate . . . to declare that it” was an occasion “of qualified privilege” if there was a communication:

made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers.

Further up the page at line 35 he also stated that the publisher “of a newspaper” as here “or a radio or a television station” has an “ancillary privilege” “when it publishes statements made by a third person pursuant to or in discharge of” their “interest or duty”.  Now, we submit that the correctness of this principle as stated in Stephens is a matter of substantial importance, a matter of practical significance and it may apply in a large number of cases.  The requirements of the defence, as Justice McHugh there states them, are all made out here.  There is no factual issue, we submit, which would arise.

GAGELER J:   Now, you say that statement survives Lange, do you?

MR REYNOLDS:   We do, and if I can deal with that, because it is put against us that sub silentio there is an implied sort of override of that statement?  We submit, with respect, that that is unsustainable and that is one of the reasons we brought the book of authorities to try and demonstrate that.  All that was said, relevantly, and this is what my learned friend relies upon in the Lange Case, and this is at page 556 of Lange at about point 7, is that:

some of the expressions and reasoning in the various judgments . . . should be further considered –

Now, I am sure your Honour Justice Gageler will remember the precise point that was raised relevantly in Lange and I can approach that by taking your Honour back to Theophanous at page 140.  This is in the book at page 96.  About a third of the way down the page there was a statement by the Chief Justice and Justices Toohey and Gaudron, paraphrasing it, that if the publication was simply a matter of political discussion – this is the important words at point 6:

It follows that the discussion of political matters is an occasion of qualified privilege.

Without any requirement of reasonableness and in these very broad terms ‑ and your Honours will also probably remember that there is a very broad definition of political discussion on page 124 of the report at about point 3 ‑ now that made that a very, very broad defence, and what was happening was that all of the media companies were picking up that defence and pleading it.  That is what the ABC did and their defence is set out at page 522 of the report of Lange at about point 3 where they say this is political discussion therefore ipso facto it is an occasion of qualified privilege.

Now that is the point that was – or one of two points, the other is not relevant to this application – that was the subject of decision in Lange.  There is nothing in Lange that touches expressly, or we would submit impliedly, this statement of Justice McHugh in the case of Stephens.  It is a case ‑ ‑ ‑

GAGELER J:   In the same case of Stephens Justice Brennan took the view that reasonableness was part of the defence, did he not?

MR REYNOLDS:   Your Honour, I am afraid, is stretching my recollection a bit, but if I can just pick up that point?  They accepted, and Justice McHugh was in what I might call a conservative minority in Stephens, not in the majority, that there were exceptional circumstances where there would be a defence of qualified privilege at common law, even without a requirement of reasonableness and that sits in the middle of that discussion that Justice McHugh says, and here is what I would suggest is a general occasion of qualified privilege for general discussion in the media.  Now, there is nothing obviously in terms in Lange which deals with this ‑ ‑ ‑

KIEFEL J:   Justice Gageler is correct, is he not, in the sense that Lange held that the common law needed to adapt?  The common law defence of qualified privilege should adapt to the statutory requirement of reasonableness.

MR REYNOLDS:   Not to affect occasions of privilege which would otherwise come within the duty interest situation.  The best example of that is Roberts v Bass, which was how to vote cards where they said there was no requirement of reasonableness because duty and interest was established at common law.  The point is simply that the holding in Lange, and they said this in the judgment, does not affect occasions of qualified privilege at common law if you can otherwise establish the requisite duty and interest.  So we would submit, with respect, and we would invite my learned friend since he has got the judgment, to take your Honours to it due course and show how it is that that judgment somehow sub silentio managed to overrule this statement of principle.  There is another aspect to this and that is that ‑ ‑ ‑

GAGELER J:   What are you calling the statement of principle that is being overruled?

MR REYNOLDS:   The statement I took your Honours to from Justice McHugh.

GAGELER J:   In a dissenting judgment?

MR REYNOLDS:   Yes, your Honour, but it is simply a holding that in that situation there is the requisite duty or interest on the part of the publisher and the requisite interest on the part of the general public to receive that matter.  This case is also stronger in at least three respects, we submit, than the statement of principle referred to by Justice McHugh.  The first is that this is simply generalised discussion, it does not name anybody and, we submit, that is an important factor.  More importantly, we submit that it also comes within – and this is the second and third points we would raise – additionally two statements of principle in the Comalco Case.

Your Honours will have seen from the application book at page 179 at line 43 that there was a finding by the jury in this case that “There is a mental health crisis in the Clarence Valley”.  Now, in the application book at page 182 at line 40 we refer to the judgment of Justice Pincus in the Comalco Case who said:

“where [as here] there is a current national, or even local, crisis, publication of material designed to inform the public, or a section of it –

I underline those words –

of matter which it is reasonably thought to be essential that they know may well be held protected by privilege.”

So there is that crisis aspect.  Then further up the page there is also the judgment of Justice Smithers, this is at line 35 on page 182 in the Comalco Case, where he said that:

“the treatment of Aborigines by Australian authorities and white Australians is a matter of public interest” . . . added that this issue “touches the conscience of all” and was “inevitably a matter of public concern” . . . “any publication genuinely for the purpose of satisfying the public need for information on a subject of that kind is a privileged publication”.

So there is a triple overlay here, we would submit.  There are the requirements that Justice McHugh set out, there is then the crisis situation Justice Pincus said would of itself give an occasion of qualified privilege and there is a further statement by Justice Smithers about Aborigines and the relevant authorities.

So when one goes back to the fundamental test at common law about whether there is a duty or interest on the part of a publisher to publish and an interest on the part of the recipients to get the information, we submit that it comes clearly within all three of these categories, or put perhaps more appropriately, that when one looks at all of the relevant circumstances that the relevant duty and interest are clearly established.

KIEFEL J:   Your alternative approach, the alternative to taking up Justice McHugh’s approach in Stephens, is to look to UK authority?

MR REYNOLDS:   That is right, this is the fall‑back submission, I have given our first three arguments.  In a sense your Honour, with respect, is precisely correct on what the axis of this argument is going to be and your Honour, Justice Gageler, has already raised this with me and that is, well, might we not be looking at a super added requirement of reasonableness here to ‑ ‑ ‑

KIEFEL J:   That arises, in particular, from Reynolds Case [2001] 2 AC 127.

MR REYNOLDS:   I agree, this Court may well look at these principles and say, no, we disagree.  We think ‑ ‑ ‑

KIEFEL J:   If that be the case do you not have the difficulty that the primary judge has made a finding against you in that regard?

MR REYNOLDS:   Can I come to that in a moment, your Honour, and I will deal with that if necessary at whatever length your Honour wants to hear?  We would submit that regardless of that one still needs to deal with these first three points, which do not have any requirement of reasonableness and that we are entitled to leave on those three bases.  There is no factual dispute and if your Honours did not grant leave on the additional matters then we would simply be out of Court if it was a requirement of reasonableness.  That is the first thing that I would say.

More importantly, to cut to the chase, the Reynolds decision is a matter which of itself, we would submit, is manifestly an issue which would warrant special leave, certainly in an appropriate case.  The Court of Appeal in the Vilo decision has said it is a matter for this Court, and as your Honours will have seen from the submissions, every other jurisdiction has considered that issue and I submit that it is an appropriate case to deal with that.  There is another aspect that perhaps is of even more significance, which we have referred to in our submissions, and that is the question of the scope of the Lange defence and, in particular, the scope of the first limb of the Lange test.

The second limb is about reasonableness which is not, we submit, any different from responsibility or responsible publication, which is the test in the House of Lords.  In the House of Lords the first issue is, is it a matter of public interest.  Now, we submit there is a live issue about whether the first limb of the Lange test would go that wide and that your Honours are going to need to examine the test of what is political discussion within the first limb in order to determine that.  If that is an issue which arises, we submit that makes this a very important case indeed for two reasons.  First of all, because of the dilation my friends would suggest in the Lange test and about what its scope is – the Lange defence, I should say – and perhaps even more importantly from the Court’s point of view what is the test of political discussion within the first limb?

Now, your Honours will have seen that we have referred at application book page 184 at line 22 to the statements made by Justices Mason, Toohey and Gaudron in the Theophanous Case where they said that “political discussion”:

covers “all speech relevant to the development of public opinion on the whole range of issues which an intelligent person should think about”.

We footnoted Hogan v Hinch where the Chief Justice said – that is Chief Justice French that:

“[t]he range of matters that may be characterised as “governmental and political matters” for the purpose of the implied freedom is broad.  They are not limited to matters concerning the current functioning of government.  They arguably include social and economic features of Australian society ‑

et cetera.  Interestingly, in the Wotton Case recently decided ‑ which is the third case in our book ‑ this Court, we submit, said something apropos the first test which is important in two respects.  First of all, it creeps closer, we suggest, to what might be called a matter of public interest test.  That is to be found in the report at page 253 in the second column at letter C where, embracing submissions made by your Honour Justice Gageler in that case, the Court held that:

The public discussion of matters relating to Aboriginal and Indigenous affairs, including perceived or alleged injustices, involves communication . . . about government and political matters –

Now, we say two things about that.  First of all, that is creeping towards the situation of a broader test of what is political, and the second is it is obvious that prima facie that discussion of what comes within the first limb is relevant in this case because that is exactly what we are talking about, that is, matters relating to Aboriginal and indigenous affairs.

KIEFEL J:   I am conscious of your time.  I think you do perhaps need to deal with the fact that the Court of Appeal refused an extension of time.

MR REYNOLDS:   Your Honour, can I say a lot of things about that and this is, in effect, a series of points as to how I would attack that finding, if your Honours granted leave, that is, the refusal?  The first, as your Honours will have seen, we refer to section 37 of the Judiciary Act which gives your Honours power to grant the extension of time and then hear the appeal, so there is no jurisdictional problem of that kind.  The first is it was a key aspect of the exercise of discretion by the Court of Appeal that they found the arguments put to them on my client’s behalf were utterly without merit.

Now, if your Honours were to grant leave and obviously a fortiori hold that the defences were good that would radically change the substratum of the exercise of discretion.  It would mean where the Court of Appeal found that we had little or, indeed, no merit that this Court if it found that there was substantial merit that would completely alter the balance in terms of prejudice; that is the first thing.  I make a number of other points about that.  There is reference to a prejudice to Ms Mundine in having the time extension, and we submit that there was none.  Next, there has been no reference to the fact that Ms Mundine is currently getting nearly 10 per cent interest on her judgment which protects her and, indeed, most people would think that was an excellent rate of return in the current environment.

Next, it was asserted that this case turned completely on its facts; that is at 168, line 40.  We submit that, with respect, that cannot be right in relation to Justice McHugh or in relation to the holdings in the two Comalco judgments.  Next, it was said at page 168 at line 38 that there was no matter of general principle and that was a reason why discretion should be exercised against us.  We submit that there are many reasons why there are multiple matters of general principle here.  Next, there was reference to Ms Mundine’s stress and anxiety but there was no evidence of that.

Next, it was said that Ms Mundine had limited means, extraordinarily, we would say, because she was – and this is at page 167, line 21 – an Aboriginal person.  We submit that there was no evidence of that.  We submit generally that there was no cross‑examination of the solicitor making any criticism as to his explanation of the delays.  It was a simple lawyer’s error, and over all of that we submit that the exercise of discretion was manifestly wrong and unreasonable.  This case was purely and simply an error by the lawyers then involved who did not realise that they had a right of appeal rather than simply making an application for leave.

Now, I have hurried through that deliberately because we submit that one can really tape to every factor that is referred to on this exercise of discretion, but critically your Honours would not grant leave in this case in any event unless your Honours thought it was pretty strongly arguable, and secondly, it raises important issues.  If that is the case, as I say, that altogether alters the balance on the exercise of discretion because the Court of Appeal found that in the balance that the arguments put to them on my client’s behalf were worth nothing, so if we alter that equation I submit that is enough for a re‑exercise of discretion on the time extension.

Your Honours, I think I am getting close to the end of my time.  I am anxious to deal with any issues that may remain.  If I can say just something about reasonableness?  That does not arise in relation to Justice McHugh in Stephens or on the two Comalco decisions.  We submit – and that is part of reading this affidavit – that the Court of Appeal really only focused on two or three things on reasonableness.  We submit they needed to consider all of the matters that are in Mr Burke’s affidavit, and there are dozens of those things, and there is simply no adequate assessment of that.

My learned friend, Mr Molomby, this is at application book page 193, points to four matters which he said were not proved to be true.  That is really the only matter he raised on the question of whether the test of responsibility was satisfied, and we submit that is not the test.  The question is, as we have put in those submissions annexed to the affidavit, was there a reasonable basis for these things, not whether or not they were true.  So, your Honours, in short, we would submit there are at least six points that are

of very grave importance that warrant a grant of special leave.  Certainly, on the first three no suggestion can even be made that it is an inappropriate vehicle, and as to the balance I submit that we have a strong argument on reasonableness on the facts which I respectfully submit has not yet been dealt with.  Unless there is anything else, your Honours, those are my submissions.

KIEFEL J:   Yes, thank you.  Mr McClintock.

MR McCLINTOCK:   Thank you, your Honour.  Your Honours, we would identify three errors in the judgment of the Court of Appeal below.  Two of them have been dealt with by my learned friend, Mr Reynolds, and I will avoid trying to repeat what he said about them.  The three errors, your Honours, are these.  The first one, which he has not identified or dealt with, is how the Court of Appeal actually dealt with the issue of common law qualified privilege.  The second, of course, is the error – how the misstatement, or misunderstanding we would say it is, of how long he dealt with Stephens, and the third, of course, is reasonableness.

I do want to say something about the second issue, how long he dealt with Stephens.  First, can I come to deal with the common law qualified privilege, because that is the real reason my client failed in this matter?  The Court of Appeal actually found or came very close to finding that Mr Brown had an interest to make the publication, and for reasons that are probably obvious but I am going to expand on them, he did.  The reason why he failed was that the Court of Appeal found – and this appears at pages 146 and 148 of the application book in paragraphs 103 and 108 – is because their Honours thought that the width of the publication was too broad to support the privilege.  That can be seen in paragraph 103 where they say:

The focus then becomes whether Mr Brown and the newspaper had a duty or interest to publish the matter complained of, and whether the community at large in the Clarence Valley (and those 1,000 or so readers beyond) had a reciprocal duty or interest to receive it.

Your Honours, at page 148 your Honours will see there at paragraph 108:

While it may be accepted that the problems of Aboriginal mental health and Aboriginal criminality were important topics in the Clarence Valley area, the appellants had no duty to attack the professional reputation of Ms Mundine and publish any such attack to their readership of more than 11,000 persons, more than 1,000 of whom lived outside the Clarence Valley.

Could I pause there and say this?  Mr Brown, my client, who was as the facts show an Aboriginal field worker, an Aboriginal elder, an employee of the Aboriginal Legal Service, was raising without any doubt an aspect, a small aspect perhaps, of what is probably the most significant matter in Australian society now and in Australian history, that is our treatment of Aboriginal Australians.

The actual specific issue he was raising was, of course, the treatment of mentally ill Aboriginals in the legal system in the Tweed area.  In relation to his interest ‑ and this is a matter that is significant in fact, in relation also, may I say, to reasonableness when it comes to that ‑ who could be better placed than the man to raise these issues, the man who knew what the effects were from seeing the effects on mentally ill Aboriginals in the cells below the Grafton courthouse probably every day of the week?  There can be no question, I would suggest, your Honours, that every citizen in Australia and therefore every citizen in the Tweed area, and including the thousand people outside the Tweed area, had an interest in knowing about those matters.

That is in fact, frankly, your Honours, in my submission, there can be no rational argument to the contrary.  Those are the matters he was dealing with, supported, as my learned friend, Mr Reynolds, pointed out to your Honours, by the finding made by the jury that there was actually a crisis in Aboriginal mental health issues in the Tweed.  As I have said to your Honours, who could be better placed to complain or raise those matters of real public concern than my client, and that is what he was doing.  That is the reason, from his position and his special knowledge of the circumstances in question, that he had an interest, or perhaps even a duty, a social duty, to raise those matters to better the people of whom he was a member.

On the other hand, if one looks at it reciprocally, the reciprocal interest, he was seeking to better his people by rectifying the mental health problems in that area.  How does one do that?  The only way one can do that is by persuading other members of our community that this is something that should be taken into account in their actions, whether they be voting or in themselves agitating.  That is the reason why every recipient of this material had an interest in receiving it.  It is not to be answered, as the Court of Appeal did, by saying that because there was an attack or an imputation defamatory of the plaintiff, the respondent, first respondent, found by the jury that that deprives it of the privilege.

She was a worker in a particular Aboriginal service deliverer, the Aboriginal Health Service, and to say, as their Honours did in paragraph 108, that he had no duty to attack the professional reputation of Ms Mundine does not answer the proposition that the readers had an interest because there was a mental health crisis, because my client knew about it, because he was an Aboriginal and because he wanted to change it.  Those are the reasons why there was, in my respectful submission, a clear occasion of qualified privilege at common law, given the fundamental importance of this matter to our society.

That was the error, and may I say, these matters were put both at trial by my learned junior and in the Court of Appeal by my learned junior, and their Honours did not deal with them.  This was, in my submission, a clear occasion of qualified privilege.  That of itself, in my submission, would warrant a grant of special leave.  Their Honours fell into error in finding against my client, and may I say this?  This does not in any way affect the position of the newspaper, different issues arise there; we are talking here about a man with the interest that I have specified.  That is the reason, in my submission, your Honours, the principal reason why the Court of Appeal erred in this case.

The second reason flows from that first reason and picks up what my learned friend, Mr Reynolds, said about Lange.  What their Honours did – and this, in my respectful submission, must be wrong – is they found that every occasion of political speech can only be defended on a qualified privilege basis if it is reasonable.  That is not what was said in Lange.  Lange, as we say in our submissions, is a very confined decision.  It does not in any way, we would say, detract from the statements of principle of common law qualified privilege in Theophanous and Stephens.

May I say in response to your Honour Justice Gageler’s question to Mr Reynolds about Justice Brennan in Stephens, his Honour did not say that reasonableness was a requirement of the defence in Stephens?  It appears at page 251 of the judgment, but there was no discussion in that case by his Honour of reasonableness.  The significant thing that Lange stands for is that the stand‑alone guarantee of freedom of speech that some people had perceived in Theophanous and Stephens, principally from the judgments of Sir Anthony Mason and Justices Toohey and Gaudron, does not exist.

Going further, when one looks at what their Honours who comprise the plurality in Roberts v Bass said in relation to Lange, the first question always to be answered – and this is something that Lange and Stephens leaves untouched – is this an occasion of qualified privilege, regardless of any political speech, constitutional questions?  That is the reason why in Roberts v Bass, as Mr Reynolds said, that was an occasion of qualified privilege at common law with no requirement of reasonableness.  One can think of many other examples.  There is a case that is not on our list of authorities in the Court of Appeal in New South Wales, Fraser v Holmes, where it was an election pamphlet being handed out during the course of the State election before last.  Again, an occasion of qualified privilege at common law, targeted to members of a specific occupation, nurses.

Your Honours, that is what should be said about Lange.  When one looks at what Justices Brennan and McHugh said in Stephens about the common law defence and the extension they gave it, in our submission, there is nothing in Lange that even comes close to doing what their Honours said here, that is, positively curtailing the words.  As we point out in our submissions, in Lange, which of course, was one judgment, at the critical part of the judgment their Honours quote with approval, plainly with approval, what Mr Justice McHugh had said in Stephens and, with respect, that is a very peculiar way of overruling or curtailing someone.  I can take your Honours to it, but it is referred to in our reply submissions, your Honour, at pages 233 to 234 where we set out the summary of what actually occurred in the two cases in question.

If I could just take your Honours to that briefly just to show what we say?  If your Honours look at paragraph 7, your Honours will see the quote from Sir Anthony Mason and Justices Toohey and Gaudron in Theophanous, and the underlined last sentence which says:

It follows the discussion of political matters is an occasion of qualified privilege.

Now, if your Honours then look down the page your Honours will see there we quote Justice Brennan in Stephens and make the point that it was consistent with Justice McHugh where he said:

In principle, an occasion of qualified privilege may arise where there is a need to inform the public in order to allow the public to perform its own proper functions, as perceived in “the varying conditions of society”.

I will not read the rest of the passage to your Honour, but what my client said here falls very well within those words, your Honours.

GAGELER J:   Do you say that those words are picked up in Lange?

MR McCLINTOCK:   They were certainly not modified in Lange, your Honour.  Justice McHugh’s words were picked up in Lange, and quoted by Lange – I will just find the passage, your Honour.  One has to say, your Honour, that Justice McHugh was, as one knows, a member of ‑ my learned friend reminds me it is page 570, your Honour, of Lange, and your Honours will see there at that page the quote which we rely upon from Justice McHugh.  I will not read it to your Honours, but once again your Honours will see at the very last line on page 570 where his Honour said:

Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information.

Your Honours, Lange is one of the most misunderstood cases in the canon.  Trial judges say to you all the time, but it is political speech and you were not reasonable.  The answer to that question should be, so what?  The question is, was it otherwise an occasion of qualified privilege?  Here, for the reasons I have given to your Honours, it is at least strongly arguable, sufficient to warrant a grant of special leave, because of the position of my client and the things he was talking about that it was clearly so.

KIEFEL J:   What do you say about the question of delay and how the Court of Appeal dealt with it?

MR McCLINTOCK:   Your Honour, it is clear if your Honours look at page 168 of the application book, and paragraphs 160 to 161, that if their Honours had thought that my client had a viable qualified privileged defence that they would have granted leave.  That is clear from paragraph 161 on page 168.

KIEFEL J:   Well, it is true that their Honours balanced factors, but paragraph 158 refers to delay being egregious, and prejudice being occasioned to the plaintiff.  I mean, they are very strong factors.

MR McCLINTOCK:   I accept that, your Honour.  We said in our written submissions the procedural history in this matter is unfortunate.  It is, there is no question about that.

KIEFEL J:   What their Honours are really saying about their view of the substance of the legal argument is that it was not sufficient to outweigh what they had there identified as strong factors.

MR McCLINTOCK:   We would say, your Honour, that if they had come to the conclusion that we say they should have come to about the merit of the defence they could not and would not have dealt with the matter in the way they did.  That is the reason why they took so long to deal and deal comprehensively with the common law qualified privilege.  May I also say, your Honour, that there is a number of factors in paragraph 161 that were not matters raised by my client?  Your Honour will see in the middle of the paragraph it says:

Further, it is significant, in our view, that the appellants seek to advance a new case on appeal.

That was a matter only applicable to the newspaper, not to my client.  My client’s position about this has been consistent throughout, that this is an occasion of qualified privilege because of his position and the nature of what he was talking about.

Could I say also in relation to reasonableness very briefly that no one seems to have considered my client’s position separately from that of the newspaper?  He was not the newspaper.  There are criticisms made in the judgment about failure to check sources and so on, but my client was the source, and it is an exercise in fatuity to talk about him checking with himself in relation to that.  I do not want to say anything further about reasonableness other than to point that matter out, but the factors that detracted from the reasonableness of the newspaper do not detract from the factors that affect the reasonableness of my client’s conduct.

Your Honours, those are the matters that I wish to raise.  In my submission, there is a very significant matter that arises here.  It is twofold; the question of qualified privilege in this kind of situation, which is by no means unknown and, second, what the proper place of Lange is in the canon of Australian jurisprudence.  In our submission, it has been misunderstood by the court below and should be corrected.  Your Honour, those are my submissions.  I do not think I have gone over time, but I have gone past one o’clock for which I apologise.

KIEFEL J:   Thank you, Mr McClintock.  We will not need to trouble you, Mr Molomby.

We are not satisfied that these matters are suitable vehicles for the arguments sought to be advanced in relation to the defence of qualified privilege, assuming that they have merit.  In particular, the appellants face the hurdle of overcoming the discretionary refusal of extension of time by the Court of Appeal principally on the basis that the delay was egregious and occasioned prejudice.  We are not satisfied that the applicants have sufficient prospects of success on that question.  Special leave is refused with costs.

The Court will now adjourn until 2.00 pm.

AT 1.07 PM THE MATTERS WERE CONCLUDED