Dow Jones & Co Inc v Gutnick

[2001] HCATrans 503

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M99 of 2001

B e t w e e n -

DOW JONES & COMPANY, INC

Applicant

and

JOSEPH GUTNICK

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2001, AT 9.31 AM

Copyright in the High Court of Australia

MR G.R. ROBERTSON, QC:   Your Honours, I appear with MR T.F. ROBERTSON, SC, for the applicant.  (instructed by Gilbert & Tobin)

MR J.L. SHER, QC:   If the Court pleases, I appear with my learned friend, MR M.F. WHEELAHAN, for the respondent.  (instructed by Schetzer Brott & Appel)

GLEESON CJ:   Yes, Mr Robertson.

MR ROBERTSON:   Your Honours, of course, we represent an American corporation that is seeking to have its article tried in America by American law, but the Australian public importance is nonetheless, we would urge, considerable because the ruling affects Australian publishers, most of whom have their newspapers and magazines on web sites, and if the common law is as the courts below have held, then they too would be liable to be hauled into courts in Singapore, Malaysia, wherever, if they publish material about politicians, public figures and the like in other countries.  So, what is sauce for the American goose in this case is sauce for the Australian gander and that, we say, provides one aspect of Australian public importance. 

Another, of course, is the fact that we have suggestions here that the liability in Australian jurisdictions might be avoided by, first of all, not taking subscriptions from Australian addresses and by erecting what is called a firewall or an electronic barrier.  Your Honours, we say that would not be fully effective in any event but would, of course, impact on the right of Australians to receive information which is available to the rest of the world, a kind of reverse Spycatcher effect.  That does, we say, also attract an Australian public importance in the High Court taking this case and dealing authoritatively with the question, if it be – and this is the consequence of the ruling below - that when information is uploaded on the Internet it may found actions throughout the world in all of 191 jurisdictions with very different laws of civil, and indeed criminal, liability and defamation.

GLEESON CJ:   Mr Robertson, on page 175 of the application book in your draft notice of appeal, ground 3(a), as I would understand it, refers to the point that you have been addressing so far.

MR ROBERTSON:   Yes.

GLEESON CJ:   I would like to understand a little better than I do at the moment the relationship between that point and the other matters involved in the case. 

MR ROBERTSON:   Yes.  Your Honour, the relationship is this:  the ruling that the place of publication is wherever downloading occurs was taken by the judge, and indeed by the Court of Appeal, to provide the lex loci delicti.  It was assumed in the courts below - and the Supreme Court of Victoria simply assumed this - that the place of the commission of this tort was decided by the place of publication.  We say that is wrong and is the clearest error that emerges from the decisions in the court below.

HAYNE J:   If it is wrong, as you assert it to be, does that inevitably unravel all of the bases for the orders that were made below?

MR ROBERTSON:   Yes, it does, in our submission.  It certainly puts us in a very much stronger position on the forum non conveniens argument because it means we are in a strong position to say that Victoria is a clearly inappropriate forum if the law that applies to this trial is New Jersey law.

HAYNE J:   But does it inevitably mean that the discretion that was exercised below has miscarried if you are right on this first point?

MR ROBERTSON:   Yes, it does because it goes to jurisdiction.  We would urge that the fundamental error in the courts below was, in having allocated the place of publication to Victoria, saying that settled automatically the question of the lex loci delicti.

GLEESON CJ:   That is really paragraphs (b) and (c).

MR ROBERTSON:   Yes, it is.

GLEESON CJ:   Now, if the points involved in paragraphs (a), (b) and (c) were resolved in your favour, that would mean the matter would have to go back to the Supreme Court of Victoria to re‑exercise a discretion?

MR ROBERTSON:   Yes, it would.  It would be remitted.

GLEESON CJ:   Sometimes we grant special leave to appeal limited to certain grounds, and some of the grounds that appear in this notice of appeal, subject to anything that is said to the contrary, do not quite achieve the same level of importance as what appears in paragraphs (a), (b) and (c).  I wondered if you had addressed your mind to the possibility of limiting the grounds.

MR ROBERTSON:   I have.  I wonder could I show you one ground that would be important if the matter was remitted, and I can do it very simply by inviting your Honours to take the applicant’s book of authorities and look at one passage from Voth at page 62 because what is of some interest and importance is that the last paragraph – it is page 560 of the judgment – the High Court referred to the Spiliada approach and said that:

if Spiliada were to enunciate a principle which commanded general acceptance among other countries, it would obviously be desirable in the interests of international comity that this Court . . . should adopt a uniform approach.

But, here in 1990, that international common law consensus did not exist.  In particular you can see at the bottom, “the Supreme Court of Canada has not” pronounced.

GLEESON CJ:   We have looked again at that in other cases.

MR ROBERTSON:   Yes, but it has, of course, been in Henry but if your Honours would just look at one passage in the case of Airbus which is at 170, you will see how the position now stands in Lord Goff’s speech.  It is at page 170E where he sets out the acceptance of the Spiliada principle:

widely accepted throughout the common law world – notably in New Zealand; in Australia, though in a modified form (see Voth ‑ ‑ ‑

HAYNE J:   His Lordship perhaps might be thought to have somewhat understated the position when he refers to it as “a modified form of Spiliada”.

MR ROBERTSON:   Yes.  It nonetheless ‑ ‑ ‑

HAYNE J:   Others might describe it as radically different.

MR ROBERTSON:   If it is different, it certainly is, though Spiliada is said to be helpful.  Then, in Canada, the 1993 case of Amchem, in India and even in Japan.  So, I simply flag that since the Victorian rule is different, and one judge in the Eagle v Delta Haze Case said, “Well, maybe, the Victorian rule allows the Spiliada test”, but the High Court may feel that given that it presaged in Voth the possibility of adopting Spiliada, if Spiliada was the test adopted in the common law world, which it was not in 1990, that that is a matter which might also be appropriate for consideration.

GLEESON CJ:   I should have asked Justice Hayne this but I will ask you:  are the rules of court in Victoria made by the judges of the Supreme Court, as they are in New South Wales?

MR ROBERTSON:   I am told they are.

GLEESON CJ:   And they can amend them?

MR ROBERTSON:   Yes.  So that is all I say on that point.  The only other point that may interest the Court is the fact that two members of the Court in Chakravati indicated that the common sting approach to libel, the so‑called “Polly Peck” plea, was in breach of fundamental rules of pleading.  The other Judges in that case did not indicate a view on that and that has led to very disparate approaches in courts in Queensland, Western Australia, the ACT and Victoria, and your Honours may feel that in view of, I suppose, the second limb of 35A, that that point maybe worth deciding authoritatively ‑ ‑ ‑

HAYNE J:   Which of your grounds would be the one that would cause that to come before us?

MR ROBERTSON:  I am told (k).  That raises the issue of whether, in fact, and to what extent because Victoria has adopted the line that a very, very modified form of Polly Peck is still permissible.

HAYNE J:   Would that arise most conveniently at this point of the litigation or would it be better, if we get over these jurisdictional questions, to have it then arise at some later point of the litigation?  Why deal with it now?

MR ROBERTSON:   We say it would be convenient because, in order to decide where the main evidence was coming from, it was necessary for the court to make a ruling on the proposed Polly Peck plea because that affected the factor that the court had to consider of where most of the evidence came from.  If we were entitled to any form of common sting meaning, that would mean overwhelmingly that the evidence would come from America.  If we were not entitled, that meant that while much of the evidence would come from America, a higher proportion of it would come from Victoria.  So that was the basis upon which the judge dealt with the issue of whether Polly Peck pleadings, common sting pleadings, were still permissible after Chakravati.  So, your Honours, they are the two, as it were, subsidiary issues that would nonetheless perhaps be appropriate for authoritative determination.

GLEESON CJ:   Does the application book contain your application to Justice Hedigan?

MR ROBERTSON:   Justice Hedigan does set out the Polly Peck, the common sting plea, in his judgment - no, it does not.

GLEESON CJ:   Yes, I have been looking at the early part of his judgment, trying to find where he summarises the nature of the proceedings before him.

MR ROBERTSON:   It was a forum non conveniens ‑ ‑ ‑

GLEESON CJ:   The application was an application to set aside service of process.

MR ROBERTSON:   Set aside the service that had been served on the defendant without leave overseas.

GLEESON CJ:   So, it was an application under the Rules of the Supreme Court of Victoria to set aside ‑ ‑ ‑

HAYNE J:   It is page 84, paragraph 6:

The defendant was served in the United States with the original proceedings and has made application to this Court to stay or dismiss the proceedings on a number of bases.

MR ROBERTSON:   That is right.  I am obliged.

GLEESON CJ:   It is a bit difficult to tell this without looking at the originating process, but are the grounds on which the application to stay or dismiss was made such that if you were to succeed on your point about place of publication and place of commission of the tort, assuming they are different points, you would still be at risk of failure on other grounds?

MR ROBERTSON:   It would depend.  We would certainly succeed on 7.01(i).  There would then come the question of whether 7.01(j) brought us in.  We say 7.01(j) refers to a foreign tort and the application was not made on the basis that this was a foreign tort.

HAYNE J:   7.01(j) being damage in respect of a tort committed outside.

MR ROBERTSON:   Committed outside or “occurring anywhere”, is the language.  We would be, of course, brought in.  It is a very short point as to the construction of (j).  But if the tort was not committed in Victoria, our case will be on all fours with Voth and we say that we would be entitled to succeed on the forum application.  It is a short point on the construction of (j).

GLEESON CJ:   Did Justice Hedigan deal with that point or did he find it unnecessary to come to it?

MR ROBERTSON:   I do not think he did deal with it.

GLEESON CJ:   He would have been inconsistent with the basis on which he ‑ ‑ ‑

MR ROBERTSON:   I think he did say in terms that both limbs were made out but I do not think he dealt with the argument as to the meaning of (j).

The response to our point that it was a plain error to assume that the place of publication was the lex loci delicti is answered by the respondents by saying that Voth is distinguishable but Voth does deal with libel and the position at page 568.  Looking at Voth at page 568, which is at page 66 of the applicant’s book, one sees that the conclusion in the penultimate paragraph some 10 lines from the bottom is that:

in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.

We say that on the Internet publication, looking as one is required to by the Distillers test to the whole series of events that gives rise to the complaint in asking where is the substantial event that the complaint is directed to under the control of the defendant, where is the last act of the defendant, the writing, preparation and research for this article all took place in New York.  The article was then sent by computer to New Jersey and put on the servers and made available for publication in New Jersey, that being the place of the last act of the defendant or, if you will, the last act of the defendant being the passive release of the electronic data in response to the electronic messenger sent from Victoria by the Victorian user’s computer, the last act which gives the substantial complaint is committed in America.

Indeed, there is factual basis for this because several days after the article was uploaded, the plaintiff instructed his American attorneys, New York attorneys, to write a letter before action, written in New York to the defendant’s attorneys in New York, threatening action in New York unless it was taken down from the Internet.  So, both conceptually and evidentially, the last act within the defendant’s control that gives the cause of complaint in relation to this Internet publication is an American act.  I do not know whether your Honours have seen the postscript to Berezovsky, the decision in the House of Lords which is at page 94 of the applicant’s book, but your Honours will see there the “Postscript on the Internet”.  This was a case primarily concerned with print publication but the plaintiff’s did rely, at (h) to (j) at page 94, on the fact that it was also available to be read online.

During the course of interesting arguments it became clear that there is not the necessary evidence to consider this important issue satisfactorily and the issues that were argued there were similar - in fact some of them identical - to the issues that were argued before Mr Justice Hedigan.  So, it was a matter which has - the House of Lords declined to comment on them because they lack the expert evidence.  Here we do have very full expert statements as to the reality of the Internet.  There is also, I can tell your Honours, a case in England which is proceeding to the House of Lords which invites the court, in effect, to disapply the multiple publication rule that comes from the Duke of Brunswick’s Case in favour of a single publication rule for Internet publication.  That case – the judgment in the English Court of Appeal last week – said that the common law was too entrenched in the Duke of Brunswick’s Case to allow that but the House of Lords may, when invited, take a different view.

GLEESON CJ:   Thank you, Mr Robertson.  Yes, Mr Sher.

MR SHER:   If I could take your Honours firstly to the provisions of the rules themselves, which is at page 152 of our book of authorities, which denies the correctness and my learned friend’s assertion about subrule (j) being concerned only with foreign torts.  Your Honours will see order 7.01, subparagraphs (i) and (j) are on page 152, and subparagraphs (i) and (j) were both relied on and both referred to in the judgment.  I will take your Honours to it in a moment.

HAYNE J:   What follows from the point you now make that (j) applies to torts wherever occurring?

MR SHER:   It follows from that that the proposition of my learned friend, that the tort has to be a foreign tort, is not correct.

GLEESON CJ:   No, I thought his point was that Justice Hedigan dealt with the matter, that is, dealt with his application for a stay or dismissal on the basis that it was (i) that was relevant and did not have to decide it on the basis of (j).

MR SHER:   No, that is not correct.  Can I take your Honour ‑ ‑ ‑

GLEESON CJ:   Where do we find him dealing with (j), Mr Sher?

MR SHER:   Can I take your Honours to the judgment at page 125 of the application book.  It is page 44 of the judgment at the top of the page:

The endorsement referred to the two relevant provision of Rule 7.01(i), that is (i) and (j).  On either basis, as I find, the proceedings was founded on a tort committed within Victoria and alternatively the proceeding is brought in respect of damage suffered wholly or partly in Victoria caused by a tortious act and omission occurring in New Jersey.

So, even accepting my learned friend’s proposition it was a New Jersey tort, his Honour was against them on the forum non conveniens argument.  It is important to note, with respect, your Honours, that the plaintiff did not complain and does not complain of damage to his Victorian reputation, which is a suggestion made by my learned friends.  He complained of damage to his reputation in Victoria and the part of the publication on which he relied, in line with Templeton v Jones, was a peculiarly Victorian matter.

HAYNE J:   What do you say the consequence would be if Mr Robertson’s argument about place of commission of the tort were right?

MR SHER:   The matter would still be tried in Victoria, and it clear that ‑ ‑ ‑

HAYNE J:   That may be the end result.  What would be the consequence about the exercise of any discretion that has occurred by Justice Hedigan?  Would it have to go back for re‑exercise?

MR SHER:   No, because his Honour has considered it, as that short passage I have just taken your Honours to makes clear.  He has made the assumption that the tort occurred in New Jersey.

GLEESON CJ:   Where do we find him exercising his discretion on the assumption that it is paragraph (j) that is relevant?  I am trying to understand ‑ ‑ ‑

MR SHER:   I do not think his Honour has.  I think his Honour has made it clear that on either or both bases he has exercised his discretion.

GLEESON CJ:   You mean he regarded it as immaterial to the exercise of his discretion whether the tort was committed in Victoria?

MR SHER:   In effect, that is what the passage on this page makes clear, that he is ‑ ‑ ‑

GLEESON CJ:   That would be an unorthodox approach to the exercise of discretion, would it not, that it was immaterial where the tort was committed?

MR SHER:   No, perhaps I should not have agreed with your Honour the Chief Justice’s proposition about it being immaterial.  His Honour did not use any such expression.  What his Honour made clear in this passage is that whether or not the tort was committed in New Jersey, because of subparagraph (j) he would exercise his discretion in favour of a Victorian trial.

GLEESON CJ:   What he says is that subparagraph (j) would itself found jurisdiction, but there would still remain the question of the discretion to stay or dismiss the proceedings.  Where do we find him dealing with that discretionary issue on the basis that it is paragraph (j) that is relevant?

MR SHER:   Had I known I was going to be asked that question before I started, your Honours, I might have been able to answer it more quickly than I now can.

GLEESON CJ:   I will tell you why I am asking the question, Mr Sher.  I am trying to find out what would be the consequence of success on the part of the applicant on the argument about the place of publication and the place of commission of the tort.  You seem to have demonstrated from page 125 that even so, paragraph (j) would found jurisdiction but there still remains the question whether if Justice Hedigan, for example, had come to the conclusion that it was only paragraph (j) that was the basis of jurisdiction, he would have exercised his discretion in the same way in relation to the forum non‑conveniens argument.

MR SHER:   Your Honour, I cannot point immediately to a passage in the judgment but the whole flavour of the judgment, in our submission, is to that effect.  Of course, there is a premise upon which the question is based and that is there is some merit in this point, which of course is a matter we would strenuously contest.

GLEESON CJ:   That is the basis on which you succeeded in the Court of Appeal of Victoria.

MR SHER:   There were other matters as well but if this is going to become critical, I would ask for some time to check the judgment, your Honours, because it is not a matter that I expected to actually have to point to a particular passage in the judgment.  We found page 125 fairly quickly.

GLEESON CJ:   What do you say about that, Mr Robertson?  Mr Sher would like us to put this matter No 3 in the list.

MR ROBERTSON:   I would have no objection, of course, if that were the case.  I would, however, point to the fact that he has, at 3 AB – it is at page 5 of his pleading – not alleged a foreign tort, he alleges publication in Victoria, and so we would get summary judgment.

MR SHER:   Well, I am not sure about that.  Could I mention a few other matters?  I assume your Honours will give me a little time?

GLEESON CJ:   Yes.

MR SHER:   Could I mention a few other matters then, so I only need come back on this question.  Justice Hayne raised the question whether it is an appropriate time to deal with this Polly Peck issue.  It is not, in our respectful submission.  There has, in fact, been a defence delivered and ‑ ‑ ‑

GLEESON CJ:   We do not need to hear you on this.

MR SHER:   There was another matter that was raised.  Perhaps I will say nothing further at this stage, your Honours, and if we could have a few moments.

GLEESON CJ:   There are two things you might look at and they are closely related.  One is the question of the way in which Justice Hedigan’s discretion would have been exercised, if it appears from his judgment, had the only foundation of jurisdiction been paragraph (j).  At the same time you might talk to your opponents about the manner in which we could limit a grant of special leave to appeal if we were minded to grant leave in relation to his first two points, that is to say, where publication took place and where the tort was committed.

MR SHER:   Could I just mention before we adjourn one other matter which we were going to rely upon which we submit is a very good reason not to grant special leave at all, and it is this.  This is a trial issue, the place where publication takes place.  The plaintiff has alleged publication in Victoria, only in Victoria, said only in respect of Victoria, and that will be tried and determined at trial.

HAYNE J:   No doubt it will but the point about place of publication is raised, is it not, on the motion to set aside service?  They say no tort in this jurisdiction.

MR SHER:   Our point simply, your Honours, is that it is not appropriate to grant special leave when, if this point ever becomes a point of importance – and, in our respectful submission, it is not at the moment - it can be dealt with on appeal from a trial which is what normally would follow.  The consequence ‑ ‑ ‑

GLEESON CJ:   Is all the evidence relating to that point on?

MR SHER:   There is no real contest, your Honour.  It was downloaded in Victoria‑ not all the evidence because, obviously, witnesses will be called who downloaded it but ‑ ‑ ‑

HAYNE J:   There really is no contest, is there, Mr Sher?

MR SHER:   There is no contest, no.  There is no contest that it was downloaded by important people - there was a concession and admission of fact made in Victoria - so that it would be filling out the detail.  As a trial issue, in our respectful submission, it should not be the subject matter for a special leave grant.

GLEESON CJ:   We will resume hearing this matter after we have dealt with matter No 3.

MR SHER:   Thank you, if your Honours please.

AT 10.01 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.05 AM:

GLEESON CJ:   Yes, Mr Sher.

MR SHER:   I am indebted to your Honours.  In substance Justice Hedigan did deal with the question of damages.  Can I take your Honours to the application book and firstly to paragraph 127 of the judgment at page 153.  Your Honours will there see that his Honour said, and this is dealing with forum:

In the first place, the publication of the claimed defamatory statement was in Victoria, where it was downloaded and where the print publication was also sold.  Second, the plaintiff is a resident of Victoria, has his business headquarters here, his family here, his social and business life here, and seeks to have his Victorian reputation vindicated by the courts of the State in which he lives.  Third, the plaintiff is indifferent to the other substantial parts of the article and desires only that the attack on his reputation in Victoria as a money‑launderer should be repelled and his reputation re‑established.  Fourth, the plaintiff has undertaken to sue in no other place in respect of the matters which found his own proceeding.  This undertaking destroys at a stroke the defendant’s claim that New Jersey is to be the preferred jurisdiction because of its capacity to award worldwide global damages.

So, his Honour is having regard to the issue of damages there, and then at page ‑ ‑ ‑

HAYNE J:   Just before you leave this page, Mr Sher, paragraph 127, I would read that as his Honour taking into account in the exercise of the discretion the first element, namely, his conclusion about place of publication.

MR SHER:   I agree, your Honour, but ‑ ‑ ‑

HAYNE J:   Does it not follow that if his Honour were wrong in that view, as the applicant now contends, that the discretion would fall for re‑exercise?

MR SHER:   Yes, but there are two criteria that ought to be satisfied before this Court granted special leave.  The first one would be that the discretion had, in fact, miscarried because an error of law was made and we contend there is no error of law and, indeed, in our submission, it is not even faintly arguable that his Honour got the law right in relation to the place of publication.  Secondly, if we are wrong about that, then the Court would have to be satisfied before it intervened that the discretion, if it took into account publication elsewhere, would have resulted in a different decision.

GLEESON CJ:   Mr Sher, there is another aspect, is there not?  Even if upon reconsideration of this matter a judge in the Supreme Court of Victoria came to the conclusion that the only basis of jurisdiction was paragraph (j), that this was truly an exercise of long arm jurisdiction but that even so the action should be permitted to proceed in Victoria, it would still be significant, would it not, to the way in which the action would proceed in Victoria and to the resolution of the matter in the Supreme Court of Victoria, if it were the case that publication had occurred in New Jersey, I think it is, and that that was the law of the place where the tort had been committed?

MR SHER:   What your Honour the Chief Justice has just said is undoubtedly correct, so that drives us back to the question of whether the substantive point, not the question of discretion, is a point that is worthy of the attention of this Court.

GLEESON CJ:   Which is the point you won on in the Court of Appeal.

MR SHER:   Yes, and, with respect, your Honours, it is, in our respectful submission, a decision which is clearly right and this Court should not interfere to hold up the trial of a defamation proceeding because somebody wants to continue to argue a point that they have failed on in this country twice and where people have failed on it throughout the English‑speaking world.  It is the law in Canada, the United Kingdom, Hong Kong - there is a decision from Hong Kong - and other places in which the view that publication takes place where the alleged defamatory publication is comprehended is, in our respectful submission, clear law and has been for 400 years.

GLEESON CJ:   Is there a Western Australian decision on this?  We had an application ‑ ‑ ‑

MR SHER:   No, it is not on the point, your Honour, it is a Polly Peck issue and I think your Honour the Chief Justice was on the special leave application.

GLEESON CJ:   Yes, I just had it in the back of my mind and I cannot now remember what exactly it was about.

MR SHER:   It is not this point, your Honour.  I would like to persuade your Honours that in substance his Honour has really taken - the fact that damages are sought in Victoria and only in Victoria was a critical feature of his Honour’s decision that appears from page 155, paragraphs 129 to 131.  In particular, your Honours will see in paragraph 130 that in weighing up the question of forum and convenient forum, his Honour emphasised the fact in line 35 that the plaintiff was “disclaiming any form of damages in any other place”, so his Honour was clearly contemplating damages limited to the State of Victoria.

It really comes to this, your Honours, that unless your Honours are satisfied – and, in our respectful submission, your Honours should not be satisfied - that there is some merit in this point about publication, then, your Honours ‑ ‑ ‑

HAYNE J:   Or that there is merit in this Court finally resolving it once and for all in Australia, because at the moment all we have is a refusal of leave by the Court of Appeal in a very brief judgment.

MR SHER:   That is really all the applicants have got going for them, in our respectful submission, and the answer we give is this.  This point is a trial point.  It will be either won or lost at trial.  If the defendants lose this point at trial they can appeal.  The court can then authoritatively determine the issue, but it should not hold up the hearing of a defamation proceeding where the very essence of the case is to vindicate a person’s reputation in his home State as soon as possible.

GLEESON CJ:   Assuming a trial proceeds in Victoria, this point is fairly basic to the way the trial will be conducted, is it not?

MR SHER:   Yes, and one could assume, and indeed, invite this Court to assume, it be conducted in accordance with Justice Hedigan’s decision because the Court of Appeal refused leave to appeal, so they will get ‑ ‑ ‑

HAYNE J:   What do you do when the other side seeks to tender evidence of foreign law?

MR SHER:   We object to it and the judge rules it out.

HAYNE J:   And the judge says, “Consonant with what has been said, no, you can’t lead it”.  The case wends its way through the appellate system repeatedly.  Not terribly satisfactory.

MR SHER:   It might be said against us that the shortest route might be to, as it were, tap the mat now and let the matter be decided now rather than whenever it finally winds it way to the High Court from an appeal.

HAYNE J:   You have had your time to do the negotiating, Mr Sher.

MR SHER:   We oppose the grant of special leave for the reasons we have given.  If your Honours are against us on this matter, we have had a discussion between ourselves about what grounds of appeal probably cover the point.

GLEESON CJ:   What is the page, Mr Sher?

MR SHER:   The grounds of appeal are set out at page 175.  It is agreed that the point, that is the substantive point and the discretion point, would be picked up at grounds of appeal 3(a), (b) ‑ ‑ ‑

HAYNE J:   Why should we take on (b)(ii)?  We have got under reservation Zhang’s Case, which may ‑ ‑ ‑

MR SHER:   You do not have to persuade me, your Honour, if that is what your Honour is attempting to do.

HAYNE J:   It may or may not resolve questions of the conflicts rules to be applied.  You say 3(a), (b) ‑ ‑ ‑

MR SHER:   The other two subparagraphs are (g)(ii) to (iv).  That takes up the ‑ ‑ ‑

GLEESON CJ:   That is g(ii), (iii) and (iv)?

MR SHER:   Yes, your Honour, and paragraph (o)(ii), which takes up the discretion point.  The other matter that I would like to draw to your Honours’ attention is that we have foreshadowed in our written submissions that the applicant being a foreign corporation, it should provide security for costs if this matter is to go forward.

GLEESON CJ:   Is that a matter for us to concern ourselves with?

MR SHER:   It is a question ‑ ‑ ‑

HAYNE J:   His Honour speaks for himself.  I rather suspect it will be a matter for me as a single Justice.

MR SHER:   Yes, there are two ways of dealing with it.  One is now, another is in Melbourne before Justice Hayne, when we can catch him.

GLEESON CJ:   That second one sounds most attractive.

MR SHER:   Irresistible, one would have thought.  As long as we are not prejudiced in relation to such an application, I mention it now.  The case that your Honour the Chief Justice was referring to is the Buddhist Society of Western Australia v Bristile, in which leave to appeal was sought from a decision of the Supreme Court of Western Australia, Full Court.  I have a copy of the Full Court judgment.

GLEESON CJ:   Do not worry, I am just happy to hear that it was not inconsistent with these decisions.

MR SHER:   Yes, if the Court pleases.

GLEESON CJ:   Mr Robertson, is there anything you want to add?

MR ROBERTSON:   No, we have agreed the matters ‑ ‑ ‑

GLEESON CJ:   Could I just direct your attention to ground 3(b)(ii).

MR ROBERTSON:   It is the substantive law point.  I understand the Court is going to deal with this question in Zhang, but we say that it is necessary because that does raise the lex loci delicti directly.

GLEESON CJ:   Yes, thank you.  Mr Robertson, we are minded to make a grant of special leave limited to those grounds, unless there is anything you want to put to us.

MR ROBERTSON:   The only other matter was security, and my junior will deal with that.

MR SHER:   It is not being dealt with now.

MR ROBERTSON:   You are not going to deal with that; I am sorry.

GLEESON CJ:   That can be dealt with as a practice matter in Victoria.

In this matter there will be a grant of special leave to appeal, limited to grounds 3(a) and (b), (g)(ii), (iii) and (iv), and (o)(ii). 

We will adjourn to reconstitute.

AT 11.17 AM THE MATTER WAS CONCLUDED