Howell v Haines

[1997] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S205 of 1996

B e t w e e n -

PHILIP ANDREW KENT HOWELL

Applicant

and

JOHN EDWARD HAINES

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 JUNE 1997, AT 2.51 PM

Copyright in the High Court of Australia

MR P. HOWELL in person.

MR R.J. POWELL:   May it please the Court, I appear with my learned friend, MR E.G. ROMANIUK, for the respondent.  (instructed by Patrick A. Bolster & Son)

GAUDRON J:   Yes, Mr Howell.

MR HOWELL:   Your Honours, three special leave points are raised by this matter.  The first two allege procedural irregularities and how the Court of Appeal dealt with the rehearing.  The third point may be termed “a general administration of justice point” and it is on that aspect that I wish to focus today.

GAUDRON J:   Have you not got a more immediate and arguable point, namely, that common law qualified privilege should have been considered?

McHUGH J:   There is a plain misdirection by both the trial judge and the Court of Appeal in respect of common law qualified privilege, is there not?  If you look at page 22 of the book, the offence of common law qualified privilege failed because you were alleged not to have “acted reasonably”.  Well, “reasonableness” has got nothing at all to do with common law qualified privilege, the occasion of qualified privilege.

MR HOWELL:   That is correct according to the traditional formulations, unless one sees “reasonableness” as somehow implied in the occasions - in defining the occasions when the privilege arises.  However, there was the other point that Justice Dunford and the Court of Appeal indicated, that the duty and interest component of the defence was not satisfied but, on that, I submit they are plainly - - -

GAUDRON J:   That would seem to be in conflict with what was said in Theophanous.

McHUGH J:   Unqualified privilege, that is quite apart from the constitutional defence, and this Court held that everybody has an interest sufficient for this purpose of qualified privilege and Justice Brennan and myself said the same thing in Stephens.  That being so, you would certainly seem to have a strongly arguable case that the Court of Appeal misdirected itself on the question of qualified privilege, and the trial judge as well.  Then that leaves the question of malice.

MR HOWELL:   Yes, your Honour, in which, I contend, the court has failed to make an independent assessment of the whole of the evidence and has, in fact, declined to consider roughly half the appeal grounds which were placed before it.

GAUDRON J:   That is perhaps not your strongest point, really, is it?  I mean, in this sense, that you challenge a number of factual findings, whereas, it is really the inference that is properly to be drawn from those findings that should be an issue.

MR HOWELL:   It is the inferences which - - -

McHUGH J:   I mean, having regard to the finding of honesty of belief made in your favour, then the question is whether assessing all the political background and toing and froing, whether the court should have found that you did not exercise the assumed occasion for the purpose for which it was given.  So, that is an evaluation of the evidence.  It is how you draw inferences from all those surrounding facts.  The fact that you had made a complaint to the secretary of the party and you had made complaints here.  It is a question of looking at the whole situation.

MR HOWELL:   Yes, your Honour, it is my submission that the ultimate facts found have been incorrectly found and the court has misdirected itself in that regard.

McHUGH J:   I do not think this is a case you would have much prospect of getting special leave on in the terms of examining credibility issues, as to whether the judge should have found that the plaintiff was honest or dishonest on a justification issue but it does seem to me that there are some important questions raised under qualified privilege and malice issues.

MR HOWELL:   Could I address your Honour on that justification point?  The point there, the special leave point raised, is that the Court of Appeal has declined to consider a submission made which was to the effect that the trial judge had palpably misused the advantage his conduct at the trial gave him.  Now, it is apparent from the authorities how difficult it is to overturn a demeanour based finding and your Honour has made some reference to that today.  However, it is nevertheless the duty of the Court of Appeal to properly consider a submission when a submission to that effect is made and, in my submission - - -

McHUGH J:   I know, but I think that is a very difficult path for you.  I have read every line of this application book, some of it more than once.  The Court of Appeal may not have dealt with it to your satisfaction but I think it is very difficult to say that they did not consider your arguments other than that the trial judge had failed to take advantage of the opportunity that he had.  There are a lot of things that, reading the papers, one would tend to perhaps be a little sceptical about, but he was there, he saw the witnesses, he made the findings.

MR HOWELL:   Yes, but, your Honour, in particular, he made one finding while under what I would contend to be a misapprehension as to the significance of certain evidence which was exhibit 10, the trial note, and it is - - -

GAUDRON J:   This Court does not take on cases to review the evidence to make - we do not take on cases to make factual findings.

MR HOWELL:   That is not the special leave point that is raised, I take your Honour’s point.

GAUDRON J:   You could talk yourself out of any prospect of special leave if you invite this Court to get involved in the factual issues and the factual findings.

MR HOWELL:   Your Honour, I am not, obviously, going to do that.  I would merely - - -

McHUGH J:   The other thing, Mr Howell, is that if the Court did grant you special leave, in this particular area you might be well advised to get some experienced member of the Bar, experienced in defamation actions, to appear for you.  It is a difficult area of law.

GUMMOW J:   Lawyers should never act for themselves in simple cases.  This is a very complicated one.  These legal issues are very complicated, Mr Howell.

MR HOWELL:   Yes, I am aware of that, your Honour, and I gave the matter some consideration before acting for myself.

GAUDRON J:   Well, what about further consideration as to what should happen in the future.  I mean, this Court exists, really, to settle the law for the whole of Australia.  It is an important point and if special leave were granted to you, it would be because of its importance to the law of Australia.

MR HOWELL:   Yes, but, your Honour, I do not think you could make a grant conditional upon - - -

GAUDRON J:   I am not suggesting that one would do that.  I am just asking have you given it further consideration?  There seems reason to suspect, from a review of the application book and from some of the matters said today, that some issues have not been grasped in the course of this litigation.  The proper import of them has not been grasped.

MR HOWELL:   I would agree, perhaps not on which issues not being grasped, but I would point out the draft notice of appeal does raise the common law qualified privilege point.

McHUGH J:   It does, but the point that Justice Gaudron and I put to you at the beginning does not seem to me to appear anywhere in your submissions, nor in your notice of appeal as such and, yet, as someone who has had some experience in this field, it was the first thing that hit me when I read - I got to page 22 of the book and it just seemed to me immediately there was an error on the part of the trial judge.

MR HOWELL:   Your Honour, I would have thought that the point was raised adequately in the appeal grounds in section B but if your Honour is of that view, I cannot submit anything further.

GAUDRON J:   That is not quite the point.  The point is to impress upon you that these are complex issues which perhaps have not had the attention they deserve up to this point and the question is whether it is not in everybody’s interests that they do get the attention they deserve and that some attempt be made to get the assistance of a person expert in this area.

MR HOWELL:   That is a matter on which I would have to consider further, your Honour, after today’s decision.

McHUGH J:   You have to get special leave first, that is the first thing.

MR HOWELL:   Yes.  I am not prepared to undertake to instruct somebody to act on my behalf if that is the condition of special leave being granted.  I think that would be an unreasonable requirement of the Bench to ask for.

McHUGH J:   It may not necessarily be unreasonable at all, Mr Howell.  After all, we do not give special leave simply because there may have been error in the court below.  This Court is not a general appellate court.  It sits to declare the law for the nation and it can only take on a certain number of cases each year and it will want to take on cases that it thinks will be properly and fully argued so that every possible aspect of the case will be brought to the attention of the Judges.  If there appeared to be a point that may not be well argued, it may well be proper for this Court to refuse leave on that particular ground.  That is not to say that we would do it.  There is an argument against what I was just putting to you.

MR HOWELL:   Your Honour, you have me at a disadvantage in that I am not, I suppose, willing to concede that my conduct of the litigation so far ‑ ‑ ‑

McHUGH J:   No, no.

GUMMOW J:   It is not being put to by criticism, it is being put - - -

GAUDRON J:   No, no, it is that you are putting yourself at a disadvantage.  The Court is trying to impress upon you that you are putting yourself at a disadvantage.

GUMMOW J:   You want (a), to get special leave and (b), win the appeal.

MR HOWELL:   Yes, your Honour.

GUMMOW J:   What is being put to you is designed to assist that course for you, if that is the course that otherwise is proper to take, and the Bar Association has special schemes and arrangements for the provision of counsel in this sort of case.

McHUGH J:   And you have to remember this, that even when special leave is granted, it could be revoked.

MR HOWELL:   Yes, I am familiar with that.

McHUGH J:   If, for instance, you were conducting the case yourself and the stage was reached where the Court thought the point was not being clarified or that there were problems about it, there is always a possibility that it would be revoked.  I do not suggest for a moment it would be but these are things that you have to bear in mind.

MR HOWELL:   Yes, your Honour, I will consider those remarks.  Is there any other point of the matters raised in the application book which - - -

GAUDRON J:   Yes, there are some which do seem to be not reasonably arguable.  It does not seem likely that the matter can proceed on a fair comment basis, for example, does it?

MR HOWELL:   Well, my reply says all I need to say on that, I think, your Honour, that I contend that that point is still arguable.  It was not something which need to be gone into at great length if special leave was otherwise thought to be appropriate.

GAUDRON J:   It is really because the Court is not going - as we have pointed out to you in the course of your argument, this is not a Court of general appellate review.  The Court does not sit to take on cases just for general review.  It sits to entertain them because they are important questions of law.  It appears that there are important questions of law here but they do not relate either to fair comment, justification or the factual findings.

MR HOWELL:   Well, your Honour, I do not wish to be heard any further on that point.  I take it your Honours need to restrict the grounds of appeal in many applications in which leave is granted.  Is there anything further your Honours wish to - - -

GAUDRON J:   No, thank you.  Mr Powell.

MR POWELL:   Your Honours, in fairness to the trial judge and the Court of Appeal, the hearings below involved an enormous number of contested factual matters and the issue of the common law qualified privilege, in our view or in my recollection, was not argued before the Court of Appeal and certainly - - -

GAUDRON J:   It was pleaded, was it not?

MR POWELL:   Your Honour, everything was pleaded.

GAUDRON J:   And it was in the notice of appeal to the Court of Appeal.

MR POWELL:   Yes, your Honour.

GAUDRON J:   And it is a glaringly obvious point, is it not?

MR POWELL:   Your Honour, what I am saying is that the whole of the law of defamation was to be considered by the trial judge.  The applicant made no concessions.  Everything was reargued before the Court of Appeal including quantum and what Mr Howell was asking the Court of Appeal to do was a very - as appears in his application here - onerous task.  The Court of Appeal - - -

GAUDRON J:   Which is perhaps why it is now necessary or it is now in his interests that some other course be taken but it is a glaringly obvious point, is it not?

MR POWELL:   Yes, your Honour, but I will come back to that, if I may, and malice.  What I would say, your Honour, is although the applicant is a litigant in person, he is a solicitor and it cannot be said he has not had the opportunity to get advice as to who he should be represented by.  He should be able to advise himself.  He ran the hearing for five days before the trial judge and for a day and a half before the Court of Appeal.

McHUGH J:   Yes.  Well, you have to concentrate on these errors because qualified privilege defence at common law, having regard to what was said in Theophanous, having regard to what was said in Stephens, and the arguable error that appears at 22 and I think at 145, or 121 and 122 in the Court of Appeal’s judgment, does raise some important questions about freedom of speech, particularly in relation to political matters, and I am leaving aside the constitutional defence.

MR POWELL:   Yes, your Honour.  What we would say is that this is not an appropriate vehicle because, on the facts, we suggest it is likely that there will be sufficient for the Court to infer that malice was able to be found by the trial judge and the Court of Appeal and therefore although there- - -

GAUDRON J:   It is not “was able to be”, I mean, that is not the question so much, is it?  It is the proper inference to be drawn in the face of a finding of honesty.

MR POWELL:   Your Honour, we would say it was a proper inference to be drawn because of the findings, for example, which appear at 130 of the application book.  This appears in the judgment of the Court of Appeal.  At about line 25, you will see, your Honours, that it is said that the applicant “agreed that he was taking the role of prosecutor”.  The point that we made, your Honour, was that the applicant did not say, “Well, at the time I published the second publication or the first publication, I believed what I said was true.  Given what I know now, I don’t say it’s true any longer”, he pressed the truth of the allegations before the court and again before the Court of Appeal and, as I apprehend it, still does.  He had his inquiry before the court.  He called a large number of witnesses.  Witnesses that he called were found, in the case of Mr Wilde, not to be credible, otherwise they were not helpful to the case that he tried to make out.  He has not been able to suggest any consideration being given for the purchase of the unit under value.  He has seen - - -

GAUDRON J:   That really raises quite a number of questions as to what is the real nature of malice in relation to common law qualified privilege.

McHUGH J:   And particularly in a political context such as this.  Even if there is ill will among politicians, that a court is entitled to be satisfied to the requisite standard that the occasion was abused.

MR POWELL:   Your Honours, the matters that the court took into account after the publication included the fact that after the candidate was deselected, Mr Howell was the source of an article to the Sydney Morning Herald which raised the issue again, and the court also took into account his behaviour prior to the publication of the first article which was found not to be reasonable for a large number of reasons, your Honour, including the fact that he relied on someone, Mr Wilde, who he did not trust.  He made no inquiries before publishing of the respondent or the other person who may have been able to assist Mr Fayad.

McHUGH J:   Had not the respondent already put forward a view at that stage?

MR POWELL:   Your Honour, the respondent had been approached by Mr Wilde in the June of the relevant year - I think it was 1990 - but he had not been approached by the applicant.  The first approach the applicant made to the respondent was at the meeting of 14 August 1990.  Now, it was found by the court below and the Court of Appeal that was another example of it being quite unreasonable to publish the article without having sought an explanation himself.

McHUGH J:   But “unreasonableness” is not the test.

MR POWELL:   No, your Honour, but these matters which are also unreasonable are matters that can also be examples of facts which will tend to infer malice:  his conduct in publishing the matter and then what he did subsequent to the publication.  Your Honour, even the terms of the publications themselves, although I understand it being put strongly now that he ought to be allowed to appeal on comment, but the terms of the second publication, they are matters that can be - - -

McHUGH J:   He puts his case strongly and he refers to a lot of evidence but arguably this is what qualified privilege is there for, that even though people are even wrong-headed, as long as they hold their opinions honestly they are entitled to put their view, particularly in relation to political matters.

MR POWELL:   Yes, your Honour, but having put his view, having put it on several occasions in writing and to different sources, even on 9 November - and it is not a publication we complain of as a publication - he is having - sorry, I withdraw that.  An apology was sought.  He did not apologise; he continued to press the matter and he still presses the matter, your Honour.  The respondent, in the face of that, was faced with the choice of having the applicant repeat the charge that he was involved in bribery or corrupt over and over again and he is repeating it, your Honours, today.  Now, in all those circumstances - - -

GAUDRON J:   I do not think you can correctly say he is repeating it today.  He seeks special leave today.

MR POWELL:   As I understand it, your Honour, Mr Howell is not saying that he now accepts that it might be erroneous.

GAUDRON J:   It is not an occasion for him to do that.  He is seeking special leave to establish that he has a defence to what was said.

McHUGH J:   And the fact that he holds opinions strongly today, notwithstanding the opinions of the Supreme Court or the Court of Appeal, does not prove very much.  It might prove he is wrong.  It might even prove he is wrong-headed.  It does not mean that he abused the occasion of qualified privilege which the law arguably gave to him.

MR POWELL:   Your Honour, one of the other things that the court took into account was that both in relation to the respondent and other said to be right wing members of the party, letters were written by Mr Howell which were to the effect that, “You resign or face an inquiry”, and this conflicted with his stated motive which was to see an inquiry conducted or an investigation conducted and avoid electoral harm to the ALP.  The other thing that was taken into account, your Honour - and this is at 130, line 40 and following  - was that he:

said that if, following the second publication, the organisational wing of the ALP and the ICAC had had a full hearing and decided that the respondent had done nothing improper, he would not agree with their findings.

He subsequently publishes the letter on 9 November 1990 in which he says, “I have further facts”.  Your Honours, we saw no further facts at the hearing.  The only fact the applicant had then and which he has today is that on the face of it the respondent paid about $30,000 less than a valuer and ‑ ‑ ‑

GAUDRON J:   I do not think we are really into the question of justification, are we?

MR POWELL:   No, your Honour, but the finding of the court was that what he wanted was an inquiry that found the respondent guilty and he would accept no other inquiry and that, with respect, was the effect of his evidence.  If it had gone to ICAC and they had had a full hearing and decided that the respondent had done nothing improper, he would not agree with their finding.

GAUDRON J:   So what follows from that?

MR POWELL:   Your Honour, what follows from that, that his predominant motive was to see the respondent found guilty, not to see an investigation conducted into whether or not the respondent was guilty.

GAUDRON J:   For my part, I am not too sure of the relevance of either motive.  The question must be whether the communication was made for a purpose for which the privilege exists or for the purpose for which the privilege exists.

MR POWELL:   Your Honour, we say that the dominant purpose was to injure the respondent and the right wing of the party and there was sufficient evidence for the trial judge to further - - -

GAUDRON J:   There is no precise finding to that effect though, was there?

McHUGH J:   I think there was.  I think the trial judge - - -

MR POWELL:   Your Honour, at page 23 of the application book and following, the trial judge deals with malice and halfway down that page he recites, “The defendant claimed.....motive” and then on the top of the next page, 24, he says:

The defendant wanted more than an investigation, he wanted the plaintiff dumped as candidate.....he only wanted an investigation that found the plaintiff guilty, no other investigation would do.

And his Honour recites a number of facts and then at 35 - including complaints about other people including, your Honours, I should say, to Ms Harrison and Mr Ziolkowski; again, which was in terms, “Resign or there will be an inquiry instituted into” their alleged fixing their addresses or putting down forwarding addresses.  But it was not, “I want an inquiry because I allege you’ve done the wrong thing”, it is, “Resign or there will be an inquiry.”  Having set out all those matters, his Honour says:

On the whole of the evidence, I am satisfied that the defendant was motivated by malice in the sense of an improper purpose -

and then he sets out what the purpose is.  Your Honours, all I can say is there was an awful lot of evidence before the court.

McHUGH J:   It is a question of evaluating it in a political context.  You may well be right ultimately; the question is whether the case - it is obviously sufficiently important.  The question is whether, in addition to that, there is at least a strongly arguable case that the decisions below are wrong.

MR POWELL:   Your Honour, in our submission - - -

McHUGH J:   This is not the appeal.

MR POWELL:   Yes, your Honour.  On that point I am saying, in our submission, with respect, the applicant will have a hard job, on appeal, dealing with the facts which were brought before the court below and therefore, although the point on common law qualified privilege may be of general interest, in our submission, this is not a suitable vehicle because ‑ ‑ ‑

GAUDRON J:   There is some difficulty though, is there not, with adjusting the finding of intention to harm, as it were, with the finding that the applicant honestly believed the allegation he made?  In a political context there arises a particular difficulty, does there not?

MR POWELL:   Your Honour, the applicant may well have and has perhaps a genuine belief that all members of the right wing of the ALP are corrupt.

McHUGH J:   But let me give you an illustration from another area.  Supposing a person believes passionately that somebody has sexually assaulted a child and that person, the complainant, goes to the police - may absolutely hate the person they suspect and think is guilty of the offence.  It does not mean, because they complain to the police, that the purpose has been abused.  There is a very high onus on a plaintiff in a situation like that to say, “Well, you’ve made the charge to the police and although you passionately believed it, your defence of qualified privilege fails because you wanted me punished.”

MR POWELL:   Your Honour, it went further than actually having the respondent published, it was an inquiry that wanted the respondent found guilty.  The applicant stood to benefit.  The applicant, your Honour, had reached a written agreement with Mr Wilde whereby the respondent was dropped as a candidate and Mr Wilde was successful and the applicant would have the run of the successful Mr Wilde’s office and have some chance himself of advancement.  So, it went beyond the actual personal dislike of the respondent.  There was some advantage for the defendant.  Again, your Honours, that was all canvassed by the trial judge.  I understand what you say, your Honours.  My point, I suppose, is a simple one and that is we - - -

McHUGH J:   You say the facts are so clear that you must succeed.

MR POWELL:   We are saying that we think we are very strong on the facts and although, on an appeal, the Court will have the opportunity to say something about common law qualified privilege - - -

McHUGH J:   Not merely common law qualified privilege, but in relation to the use of malice in a political context.

MR POWELL:   Yes, and we are submitting, your Honour, that at the end of the day your Honours might find that this is a very strong case which perhaps makes the point that it has to be a very strong case and that will be of cold comfort to the applicant.

McHUGH J:   The applicant will be paying the costs on those bases.  He knows the risks.

MR POWELL:   Your Honour, the only other point, if I may make, is that Theophanous was not pleaded at the trial and we rely on what the Court of Appeal says about that.

GAUDRON J:   But there is an aspect to Theophanous that has been overlooked in the sense of the extended nature, if you like, of qualified privilege or the interest, reciprocity.

McHUGH J:   Yes, in Theophanous the majority said that the law of qualified privilege had changed as well.

MR POWELL:   Yes, your Honour.  Your Honours, I do not think I can add anything else.  Perhaps if I can conclude by saying that certainly the trial was run on the basis that these allegations were true and that is what the

plaintiff and applicant here set out to prove and that is what took up most of the time both before the trial judge and the Court of Appeal.

GAUDRON J:   Thank you.  Yes, Mr Howell.

MR HOWELL:   Your Honours, I would not concede that my friend has correctly recorded the evidence that was before the court and some of the matters to which he has just referred on the issue of malice but it is a complaint I also have about each of the judgments in the case.

Could I perhaps draw attention to one of the letters to which he referred which is at 132, lines 25 to 45, which was a letter from myself to Mr Ziolkowski and Ms Harrison, which contains in the second paragraph the words:

In the event of it becoming necessary for us to refer the allegations about John Haines.....to the Independent Commission Against Corruption, this serious breach of the electoral laws will be included with the information given to the Commission.

That has been interpreted to date as a threat that unless this particular person resigned from - - -

GAUDRON J:   I do not think you do your case a lot of good by going to the detail, Mr Howell.  I mean, it has to be seen as a point of legal principle or nothing, really.

MR HOWELL:   Very well.  I was addressing only the points whether the facts were so clear on the issue of malice that it was no longer a suitable vehicle, but if I need not address your Honours I will not take further time.

GAUDRON J:   It is a matter for you whether you wish to.

MR HOWELL:   Your Honour, it is my contention that the inference which is sought to be drawn from that letter does not flow from the wording of that letter but in fact the court has jumped to several assumptions in the absence of any adequate evidence or adequate opportunity of myself to lead evidence as to the true circumstances surrounding that letter.  That is my contention in relation to a number of the factual matters which underpin the finding of ultimate fact on malice.  Perhaps I will leave my submission there, your Honour.

GAUDRON J:   Thank you.  Mr Howell, we wish to be sure:  have you argued all the matters that you wish to raise and to draw our attention to?

MR HOWELL:   Well, yes, they are adequately summarised in the written submissions.

GAUDRON J:   Yes, thank you.  We will take a short adjournment.

AT 3.28 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.31 PM:

GAUDRON J:   There are a number of important issues raised by this application.  Ultimately, however, those issues must be determined into context in which there is dispute as to the facts and as to the findings properly to be made and inferences to be drawn from the evidence.  In these circumstances, this is not an appropriate case for the grant of special leave.

MR POWELL:   I ask for costs.

MR HOWELL:   I do not wish to be heard.

GAUDRON J:   The application will be dismissed with costs.

AT 3.32 PM THE MATTER WAS CONCLUDED