Jeff Manny v Warwick Shiels

[2013] HCASL 132

JEFF MANNY

v

WARWICK SHIELS

[2013] HCASL 132
C3/2012

1. The respondent commenced proceedings against the applicant in 2005 alleging that he had been defamed by the applicant in a letter published to the Australian Federal Police ("the AFP").  The respondent obtained the letter as a result of a subpoena answered by the AFP in another proceeding.

2. In the Supreme Court of the Australian Capital Territory, the applicant claimed the letter was subject to an implied undertaking that, having been disclosed in the litigious process, it was to be used only for the purpose of the particular action, and claimed that the letter was protected by both absolute and qualified privilege.  Gray J granted the respondent leave to use the letter on the ground that there were special circumstances.  He found that the letter conveyed defamatory imputations and rejected the applicant's defence of absolute privilege under Mann v O'Neill[1], and qualified privilege on the ground that the applicant was actuated by malice, and found for the respondent in the defamation proceedings.

   [1] (1997) 191 CLR 204; [1997] HCA 28.

3. The applicant appealed to the Court of Appeal (Refshauge, Burns and Marshall JJ), which dismissed the appeal.  The Court of Appeal upheld the finding of the trial judge that there were special circumstances warranting leave to use the letter.  It further held that it should follow Mann v O'Neill in dismissing the claim for absolute privilege, and agreed with the trial judge's conclusions on qualified privilege.

4. The applicant now seeks special leave to appeal to the High Court.  The amended application raises several grounds which, in substance, rely on the same complaints advanced before the Court of Appeal.  The applicant also makes unparticularised allegations of bias on the part of Burns J sitting on the Court of Appeal.

5. The applicant has not demonstrated any error of principle in the approach taken by the Court of Appeal to any of the issues.  In particular, the applicant offers no compelling reason to revisit the observations in Mann v O'Neill. Further, the applicant's claims of bias have no merit.  An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  The applicant requires an enlargement of time of two days within which to file his application.  An enlargement of time should be granted, but special leave to appeal should be refused.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
14 August 2013 S.J. Gageler