Hellaby v The State Bank of South Australia

[1993] HCATrans 71

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A24 of 1992

B e t w e e n -

DAVID HELLABY

Applicant

and

THE STATE BANK OF SOUTH

AUSTRALIA

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 1993, AT 9.30 AM

Copyright in the High Court of Australia

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MR J.R. SACKAR, QC: If the Court pleases, in that matter, I

appear with my learned friend, MR A.R. HARRIS, for

the applicant. (instructed by Lawson Downs)

MR T.A. GRAY, QC:  May it please the Court, I appear with my

learned friend, MR N.J.T. SWAN, for the respondent.

(instructed by Finlaysons)

DEANE J: Yes, Mr Sackar?

MR SACKAR:	If the Court pleases, I have prepared a short outline which is a slight expansion only on the
applications book affidavit. Subject to one or two matters I wish to put orally, I would be content otherwise to rely upon the outline.
DEANE J:	Mr Sackar, in relation to your first point, you

may pay some attention to the question whether the

rule was within the section in any event, because,

if you were to fail on that the appeal would fail

eventually.

MR SACKAR:	There is no point going to ..... Your Honour, if I may then proceed, I propose to do that precisely.
The question of whether the doctrine of
proportionality or concept of proportionality
applies is really a secondary issue.

The short reason, Your Honour - and I cannot

put it any higher than this, it is either right or

it is wrong - as to why the rule falls outside, is

that the words of the provision which are in the

appeal book at page 10, relevantly, extracted in

the Chief Justice's judgment, are for regulating the pleading practice and procedure of the Court

et cetera.

Now, I have got to show there was an error.

The error, we suggest, is this: that a rule which

requires no more than the real possibility that

rather, so as to provide thereafter for general	litigation might ensue is an insufficient - or,
discovery - is disproportionate to that purpose.
That may seem a very high hurdle to jump over, but
what we say is this.

We say it really does not relate to the

regulation of pleading practice and procedure.	The
question is, perhaps whether it relates
sufficiently to the initiating of actions.	The

argument clearly can be put against me, of course

it does. We say that the width of the rule, as I

have said, whereby the party is not required to

indicate the cause of action - although the rule

does involve a notion of relevance - likelihood,

namely real possibility, is all that is required as

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the threshold to lead to the potential order for

general discovery.

Now, it really does amount to this, we say,

that it could be used - and perhaps quite

legitimately and for good reason, but it could be

used - as a process to obtain general discovery to

work out whether you had a good case or not. We

say that is too wide, and would be disproportionate

to this purpose. It certainly turns upon, however,

I accept, the word "initiating". That is our short point on the rule.

Perhaps I can leave the notion of

proportionality only to say this, that

Justices Matheson and Bollen seemed not to consider

it, although to be fair, they did agree with the

reasons given by the Chief Justice. He, on the

other hand, considered it but dealt with it on a

slightly different basis.

May I move to the newspaper rule point, if

Your Honours please. We say the error here is that

no member of the court considered the concept of

effective remedy and, at page 357 of Cojuangco,

which is in our booklet I think we have provided to

the Court - - -

DEANE J: Yes, we have that.

MR SACKAR:  May I just take up the reading from about a

third of the way down the page. It is the last

sentence in the first full paragraph:

What an applicant must show is that the order

sought is necessary in the interests of
justice; in other words, the making of the

order is necessary to provide him with an

effective remedy in respect of the actionable

wrong of which he complains.

This is not a case about the identification of a

source for the purposes of commencing proceedings.

This is a case about the enhancement of the plaintiff's evidentiary basis, the evidentiary

basis upon which he seeks to bring his case. And

at appeal book 20, His Honour the Chief Justice

correctly summarizes the relevant passage of

Mr Johnson's affidavit, he was the managing

director of the State Bank, and at line 4

His Honour commences:

An affidavit made by the plaintiff's

Group Managing Director, Mr Johnson, states that he knows of no foundation for the reports

and believes them to be false. It states that

the Auditor-General has informed Mr Johnson

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that "neither he or his people had leaked any

information that could be the basis of the"

reports. It states that the business of the

bank has been damaged. It further states that

"on the information presently available it

appears that the articles have been written

with malice but it would require full
discovery of all documents relevant to that

issue to properly consider such issue".

We say that if this principle, which in certain

circumstances protects confidences, is as espoused

by the High Court in Cojuangco, it could not be

suggested, with respect, that it was necessary in the interests of justice to find out how good the

plaintiff's case was because he is not deprived

here of an effective remedy. He knows everybody,

we say, that he wants to sue, and as I have said

now, monotonously perhaps, he does not, at least in

the materials as we understand it, indicates he

wants to sue the source. That was not the basis

upon which the application was made for the
disclosure of source. It was merely made to find

out the quality of the evidence that might be

available on the issue of malice.

Now we say that what effective remedy means,

when properly understood, is giving a plaintiff

proper opportunity to sue the target against whom

he believes he has his best prospects, and the

question in Cojuangco was if Mr Cojuangco was

denied access to the source he would be confronted

with a newspaper who would otherwise, or might

otherwise, have a solid defence pursuant to

section 22 of the Defamation Act.

So what we say "effective revenue" means in

this context is simply identifying sufficiently

those targets which the plaintiff believes have

wronged him, rather that the confidence should not

be exposed merely for the plaintiff to determine

how strong or how weak his case might be on the On the evidence as found by the Chief Justice

evidence.

the plaintiff has all the material we say he

requires to make a decision.	He wants to sue an
injurious falsehood.	He believes the material is
false and there is a basis for that.	He says that

his client has suffered damage, and he says that on

the materials he has there appears to be malice,
but he wants to consider by way of general

discovery how good the evidence of malice is.

We say in the circumstances that the necessity

in the interests of justice as explained by this

Court, really does mean that that is a factor which

Hellaby 12/3/93

should be taken into account when one exercises this type of discretion. We say, with respect, this Court did not take those factors into account.

The next question is: is it the sole

consideration, the notion of effective remedy? Is

it a necessary consideration, or is it no

consideration at all? So we say the point that

really does arise here is the question of the

relevance, the prominence, of the notion of

effective remedy. And if our submission is right

and "effective remedy" is either the sole

consideration or a necessary consideration, we say

it has not been taken into account. It was

material, and there would therefore be an error in

the exercise of discretion. That is not enough, I

accept. But we do say that there were a number of

other questions left open. Indeed, the precise

formulation of the test on one view might be said

to be a matter left open by the Court in Cojuangco,

and we say it does raise matters of significance

and importance sufficient to warrant the grant of

leave.

DAWSON J:  You are trying to restrict what was said in

Cojuangco quite considerably, are you not?

MR SACKAR:  One interpretation of what I say would amount to

restriction if "effective remedy", for example,

meant merely the identification of the wrongdoers

or the targets.

DAWSON J:  I rather thought you were saying that, or

something like it.

MR SACKAR:  I am trying to say that, yes, but the question

is whether I can and whether Your Honours are

sufficiently interested to consider the matter

further.	They are my submissions, if Your Honour
pleases.

DEANE J: Thank you, Mr Sackar. The Court need not trouble

you, Mr Gray. The Court considers that the actual

decision of the Full Court of the Supreme Court of South Australia dismissing the appeal in this case

is not attended by sufficient doubt to warrant a

grant of special leave to appeal. In that regard,
the Court considers that r. 60.0l(l)(b) of the

South Australian Rules of Court is within the rule-

making power conferred bys. 72 of the Supreme

Court Act and that it would be unnecessary, in any

appeal, to consider the effect of sub-s. 72(4).

Accordingly, the application for special

leave to appeal is refused.

Hellaby	12/3/93
MR GRAY:	If the Court pleases, an application is made for

costs.

MR SACKAR:  I cannot resist it, Your Honour.

DEANE J: The application for special leave to appeal is

refused with costs.

AT 9.44 AM THE MATTER WAS ADJOURNED SINE DIE

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