John Fairfax & Sons Limited & Anor v Conjuanco

[1988] HCATrans 91

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll3 of 1987

B e t w e e n -

JOHN FAIRFAX & SONS LIMITED

and PETER HASTINGS

Appellants

and

EDUARDO MURPHY COJUANGCO

Respondent

MASON CJ

WILSON J

DEANE J
TOOHEY J

GAUDRON J

Fairfax(3)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 MAY 1988, AT 10.19 AM

Copyright in the High Court of Australia

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MR A.M. GLEESON, QC:  May it please the Court, in this matter

I appear with my learned friends, MR W.H. NICHOLAS, QC

and MR S.D. RARES, for the appellant. (instructed

by Mallesons Stephen Jaques)

MR T.E.F. HUGgES, QC:  May it please the Court, I appear with

my learned friends, MR J.R. SACKAR, QC and

:t-1R G.O'L.REYNOLDS for the respondent. (instructed

by Baker & gcRenzie)

MASON CJ:	Yes, Mr Gleeson.
MR GLEESON:	Your Honours, I hand up an outline of argument

for the appellant. Your Honours, in an endeavour
to permit concentration of the argument in relation

to the central issues we have taken, perhaps,

a slightly unusual course that I have foreshadowed

to my learned friend, of preparing a two-page

document headed, "References to background materials".

May I hand that up.

MASON CJ:  Yes.

MR GLEESON: It is a document that simply contains references

to statutes and cases that might be of interest
to the Court but that are not seen as being likely

to be of central importance to the argument of

either side. If I may simply take a few minutes

to comment on those.

First of all, contrary to what I told the Court on the special leave application in this matter, Part 3 is not unique to New South Wales

and there are provisions in the rules of the Federal

Court and the Supreme Court Rules in other States which are to similar effect.

Paragraph 2 of this document refers to some

interesting legislation which existed in New South

Wales since before 1912 but is not reproduced

in the DEFAMATION ACT 1974. The report of the

Law Reform Commission on defamation says that

that was because of the existence of Part 3 of

the Rules of the Supreme Court of New South Wales

which came into force in 1972. That was legislation

under which the court had power to order a newspaper

~roprietor to identify the writer of an article

1n a newspaper.

(Continued on page 3)

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MR GLEESON (continuing): It is somewhat different from the

issue that is involved in the present case but it

may be regarded as a coinate matter and there

developed in New South Wales a stream of cases or

authority on that particular provision which was the subject, for example, of a brief note in the Australian Law Journal. Perhaps I could hand up

to Your Honours copies of that Australian Law

Journal note. There was a case in the High Court

on that legislation which was HOLLINGSWORTH V HEWITT,

(1911) 13 CLR 20. It is a very brief case in which

the High Court referred to the need for what it called

special circumstances before an order would be made

under this section. The interest in this article

is in the sort of circumstances that were treated

as being special circumstances to justify the making

of an order on page 266. One situation that was

treated as giving rise to special circumstances was

where a newspaper proprietor was not worth powder

and shot and the other was where there was evidence

that an anonymous campaign against the plaintiff

was being conducted in more than one newspaper.

I simply mention that because, as Your Honours

will see in due course, there is a lot of discussion

in cases on the newspaper rule as to whether it is

subject to a special circumstances exception and

what those special circumstances might be.

Lord Salmon in the House of Lords in the BRITISH

STEEL case said that,although the courts have been

talking about a special circumstances exception for

a hundred years in England, they have never identified

a special circumstance and the only one he could think

of was treason or the security of the State and the
Court of Appeal in New Zealand said that it was time

for the courts to get rid of the special circumstances

qualification.

We refer in paragraph 3 to the practice and

procedure that applies in New South Wales under

matter is discussed at length in the case of	Part 3 of the Rules of the Supreme Court. That	STEWART V MILLER there referred to. For present
purposes, what is perhaps of most importance is
that, in the ordinary course, applications for orders
under Part 3 are made ex parte. The unusual
procedure that was adopted in the present case of
giving the journalists and the newspaper notice of
the application was taken by Mr Justice Hunt because
of what he regarded as the importance of the matter.
However, having done that, Mr Justice Hunt then formulated a test to be applied to the application
of Part 3 in a case such as the present which puts the onus of proof on the respondent. That might be
thought to be an unusual standard to apply in
relation to matters that are dealt with ex parte.

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MR GLEESON (continuing):  Then the cases on section 22 are

collected in the two authorities referred to in

paragraph 4 of this document. In paragraph 5

and paragraph 6 we have simply given Your Honours

references to the leading cases on the newspaper rule

and to a debate that goes on as to whether the

newspaper rule is a rule of practice or the rule of

law. I will be giving Your Honours reference to one

of the United States authorities referred to. That is the deci.siorr

in ZERILLI V SMITH. I should say, however, that we

do not suggest that it is easy to apply United States
authority in this context because of the considerations

referred to in paragraph 7(a), and we also refer,

in paragraph 8 to the fact that there seems to be a straight

conflict of authority in Canada in relation to the

newspaper rule.	Those are background or peripheral
matters, however.

Your Honours, the proceedings in the present case

were commenced by the summons which appears at page 1

of the appeal book and the relief sought is that an
associate editor of the Fairfax company, named

Peter Hastings, attend to be examined in relation to

the identity and description of certain persons that

he referred to in an article that he wrote which

named Mr Cojuangco, and also there was an order for

the production of documents sought. The article

that gave rise to the application appears at page 7

of the appeal book. It is not entirely easy to read,

Your Honours, and we have blown up copies if they are

desired.	The relevant paragraphs are reproduced in
the judgments of the courts below.	There are two

paragraphs that refer to Mr Cojuangco. In the front

page, which is on the left-hand side of page 7, the

front page article, it is said:

President Ferdinand Marcos and his close cronies have "squandered" up to US$9 billion of the nation's US$26 billion foreign debt,

a senior American bank official and prominent

local businessmen have alleged. (Continued on page 5)

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MR GLEESON:  In the middle paragraph, at line 10 on page 7

it says, following a paragraph talking about graft

and corruption in Indonesia and Thailand:

One of the leading local US banks

maintains that of the Philippines' $US26 billion

foreign debt, the President and close "cronies"

like coconut king Eduardo Cojuangco, and sugar

baron Roberto Benedicto, not to mention the

First Lady, have totally squandered $US9 billion

of it.

And the application, in substance, was an application to

compel disclosure of the identity of the senior

American bank official and the prominent local businesmen.

Your Honours, the terms of Part 3 under which the

application was made out is set out at page 71 of the

appeal book, where it is said that:

(1) Where, on application by any person, it

appears to the Court that -

(a) the applicant, having made reasonable

inquiries, is unable to ascertain the

identity of a person for the purpose of

commencing proceedings against that person

or is unable to ascertain the description

of any person sufficiently for that purpose;

and

(b)	some person has or may have knowledge of
facts, or has or may have in his possession, custody or power any document or thing, tending to assist in the ascertainment of the identity or description of the person

concerned,

the Court may order that person -

(c) to attend

and be examined and produce documents.

It is to be observed that Part 3 is expressed

in entirely general terms and has got nothing in

particular in its terms to do with matters of defamation.

Your Honours, the evidence in .support of the

application in thep:-esent case, in our respectful

submission, was remarkable for its bareness.

(Continued on page 6)

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MR GLEESON (continuing): All that happened, by way of evidence,

was that the applicant's solicitor informed the

e~urt by affidavit and in cross-examination that

the application would like to find out the name of the

senior American bank official and prominent local

business men so that he could give consideration

to whether or not he would sue them. That was the

beginning and end of the evidence. The affidavit

is at page 4 of the appeal book, and the relevant

evidence is at page 5. I should add, of course, the evidence established additional matters such as there had been a refusal to disclose the sources prior to

the application being made. The evidence said that

the solicitor:

had been directed by the Applicant -

this is page 5 line 25, he -

had been directed by the Applicant to commence

appropriate proceedings for the purpose of
ascertaining the identity of the persons and/or
entities responsible for or involved in the
publication of Annexure A, with the purpose of

determining the appropriate legal action that

may be taken against such persons or entities.

And in oral evidence on page 16 in-chief, the

applicant's solicitor said at line 35 that his
instructions were:

that if the application is successful, the applicant's position is that he intends to

institute proceedings in the Supreme Court

of New South Wales against the persons named

subject to a consideration of their identities

and in the context of his overallposition.

And that was repeated on the top of page 17 at line 5;
he wanted to consider his position, and he said,

again, on page 18 that he was keeping his whole

position open; he had not decided whether he wanted

to sue anybody; he had not decided whether he wanted

to sue the newspaper or the newspaper's informants, or

allo.r some of them. He wanted the information so

that he could make up his mind about that.

(Continued on page 7)

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Fairfax(3)
MR GLEESON (continuing): There was no evidence apart from

the bare fact and terms of the published matter
going to the merits of either the claim that the

applicant might have or the defence that the

newspaper or the informants might have. Indeed,

by the time the application came on or at the time
the application came on and, for that matter, to
this time, there has never been any formulation
by the applicant of what he says are the
defamatory imputations contained in the article.

Presumably, they are not limited to a contention

that he is spendthrift.

MASON CJ: What is the importance of the scanty nature of

the evidence in support of the.application?

MR GLEESON: Twofold, Your Honour. If the newspaper rule

were applicable or anything like the newspaper

rule were applicable and if there be a special

circumstances qualification to the newspaper rule
then the extraordinary thing about the present
case is its sheer ordinariness. All that happened

in the present case was that a person who claimed

to have been defamed by a newspaper article came

to the court and said, "I have been defamed, I

want to find out who the newspaper's sources of

information are so that I can consider whether

I want to sue them".

There was nothing in the least bit unusual

1n the facts of the present case, stripped of course
of colourful but irrelevant detail concerning the

circumstance that the applicant came from the

Philippines and that the informants were Philippine

people and so forth. Nobody has ever suggest that

that kind of colourful detail is relevant to the merits of this application. So it was simply a.

case of a person saying, "I've been defamed in

a newspaper, I want to know the newpaper's sources

of information so that I might consider whether

I want to sue them."

Whatever might be thought to have constituted

special circumstances in the past in relation to

the newspaper rul~ and none have been identified

in England over 100 years, that situation, in our

respectful submission, would never have constituted

special circumstances. The second aspect of relevance

of the paucity of the evidence was the approach

that Mr Justice Hunt took that was approved by

the Court of Appeal of making a decision as to the strength or weakness of a possible defence

under section 22 of the DEFAMATION ACT.

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DEANE J:  What you say is not quite adequate in terms

of special circumstances, is i½ in that here
the point is made by reference to the standing
of the anonymous informant? That is not an ordinary
case where the writer of the article says: "The

coconut king" or "Xis coconut king and has done

this". The point is it is a leading local bank

that says it.

MR GLEESON: Yes. Well, that is relevant, mostly, to the

point I am coming to; the section 22 defence.

Mr Justice Hunt said that the proper thing for

a court to do in a case like this is to consider

the strength of a section 22 defence that a newspaper

might have because what Mr Justice Hunt said in

the present case was that although the newspaper

rule is not applicable the considerations of public

policy which led to the introduction of the newspaper

rule stand and are to be considered and the test

to be applied is whether or not the applicant has

shown that it is necessary for him to have this

information.

He said the thing that demonstrates in the

present case that it is necessary for the applicant

to have the information he seeks is the possibility
of a defence under section 22 being raised by the
newspaper which produces the result that the liability

of the newspaper is not co-extensive with the liability

of the informant. That, in a nutshell, was

His Honour's process of reasoning. And the significance

of the paucity of the factual information that
he had before him is, in our respectful submission,
the inappropriateness and, indeed, the impossibility
of embarking upon that kind of inquiry in the absence

of evidence.

It may be possible to look at a newspaper

article and say, on the face of it, a section 22

defence would be hopeless but it could never be

on the face of it, a section 22 defence would be	possible to look at a newspaper article and say,	likely to succeed because that could never appear
from the face of the article.

(Continued on page 9)

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MR GLEESON (continuing): That, no doubt, is what prompts

my learned friends to file their notice of contention

to the effect that Mr Justice Hunt applied the wrong

test but that is the test that His Honour applied

means that in an application that is usually made ex parte, an order will be made unless the newspaper proves that an action against it would

and the test that was approved in the Court of

succeed. In other words, the onus is on the

respondent to prove that it has a hopeless case

and, if it can prove that, then the applicant will

not be entitled to his order.

Now, Your Honours, if, of course, the newspaper

rule is regarded as applicable to Part 3 then, in

our respectful submission, the reasoning of

Mr Justice Hunt and the Court of Appeal must fall

to the ground because, in our submission, no one

would ever have considered this case to have involved

special circumstances within the meaning of the

newspaper rule and I will take Your Honours to the

discussion of what might constitute special

circumstances.

MASON CJ: Mr Gleeson, can I interrupt you. You did refer to

a notice of contention that has been filed by your

opponents.

MR GLEESON: Well, we have received it, Your Honour, yes.

MASON CJ: Well, you may have received it but, for our part,

we seem to be in ignorance of it.

MR GLEESON:	I see.
MR HUGHES:	I have it here, Your Honour.

MASON CJ: Yes, well, I do not know whether it is material

for us to have it at this stage.	I was just
concerned to know whether there was something

missing from the materials that we have.

MR HUGHES: Well, I am afraid there is because this was a

decision taken late, Your Honours, and I would

ask the Court's leave to file the notice of

contention in Court. My learned friends have no

objection, I understand.

MASON CJ: Is that so, Mr Gleeson?

MR GLEESON: That is so, yes.

MASON CJ: Yes, you have leave to file it in Court.

MR HUGHES: If Your Honour pleases. I hand up six copies.

MASON CJ:	Thank you.	Yes, Mr Gleeson.
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MR GLEESON:  Your Honours, the first submission that we

make which is the subject of paragraph (a) of

our three submitted errors on the part of

Mr Justice Hunt is that the newspaper rule does

apply to applications under Part 3 where the case

is a defamation case. If I may adopt a submission

that was put by counsel in an English case on

our list of authorities: "Discovery, like all

equitable remedies, is discretionary but that

does not mean that it is arbitrary and, over a

long period of time, the Courts have developed

rules relating to the making of orders for discovery

and interrogatories."

This case raises at the outset a question

of the relationship between those rules and Part 3.

The rule I have particularly in mind is the rule

ca 11 ed the "Newpa per Rule'' and if I could take

Your Honours to the leading authorities which

identify that rule, and deal with a question of

any qualifications or exceptions to it. Could

I go first to BRITISH STEEL CORPORATION V GRANADA

TELEVISION LIMITED, (1981) AC 1096. In the judgment of Lord Denning in the Court of Appeal, at page 1128,

there is a convenient summary of the rule in question.

Under the heading , "The Cases in England",

His Lordship says:

For well over 100 years it has been

a settled rule that, when a plaintiff sues

a newspaper for damages for libel, the newspaper

will not be compelled to disclose its source

of information: at any rate in answer to

interro~atories administered in interlocutory

proceedings before trial.	We have looked
at all the reported cases -

and some of them are listed.

Sometimes this is put as a rule of practice -

on the ground that it is not necessary at

the ienterlocutory stage to discover the

name of the informant. At other times it

is put as a rule of law - on the ground
that the plaintiff has an adequate remedy

in damages against the newspaper and that

it is not in the public interest that the

name of the informant should be disclosed -

else the sources of information would dry
up. But, whichever way it is put, the court
has never in any of our cases compelled a
newspaper to disclose the name of its informant.

And that is the point that Lord Salmon makes -

never ever. And, in the speech of Lord Salmon,

at page 1124, a dissenting speech - I should add,

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BRITISH STEEL was not a defamation case.	BRITISH
STEEL was a case where an attempt was made,

unsuccessfully, to extend the newspaper rule to

an attempt by the British Steel Corporation to

find out who had disclosed confidential information -

that is information confidential to British Steel

Corporation - to the newspaper or publisher, in order to prevent the breach of confidence that

existed between the British Steel Corporation

and its employee. By majority the House of Lords

held that the newspaper rule applied to libel

cases and did not extend to this case. The dissentient

was Lord Salmon, and at page 1184, His Lordship

discussed the newspaper rule. The introductory

paragraphs on page 1184 dealt with some general

considerations of public policy and I go more

particularly to the discussion of the rule at

the bottom of page 1187.

(Continued on page 12)

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MR GLEESON (continuing): His Lordship then talked about

the nature of the issue and said:

In McGUINESS v ATTORNEY-GENERAL OF VICTORIA

Dixon J. said:

"But although all authority is against

the existence of any rule of evidence

under which an editor or journalist is

protected when called as a witness on the

trial of an action from the necessity of

deposing to the source of the information

contained in his publication ... yet a special

exception is made in favour of publishers,

proprietors and editors of newspapers as

defendants in actions of libel from the

general rule that discovery by affidavit

of documents and answer to interrogatories

must be made of all relevant matters. By

a long line of cases a practice is recognised

of refusing to compel such a defendant to

disclose the name of the writer of an

article complained of as a libel or of the

sources of information he has relied upon."

I do not think that when Dixon J. referred to

the necessity of a witness when giving evidence

deposing to the source of the information, he

meant that there was any such necessity unless

the identity of the source was plainly relevant

to an issue in the case in question.

I recognise that the long line of cases

recited by my noble and learned friend

Lord Fraser of Tullbelton which laid down

"the newspaper rule" that the press cannot

be obliged to disclose its source of information

on discovery were all cases of libel. This, I

think, is because the vast majority of the

litigation in which the press has ever been
concerned consists of libel actions.	I cannot

imagine any reason why the newspaper rule should

be confined to libel actions.

Now, that is an important point of departure between

His Lordship and the majority.

MASON CJ:	Mr Gleeson, is there any significance in the description in the passa3e quoted from the judgment
of Mr Justice Dixon that it refers to "in favour
of publishers, proprietors and editors of newspapers",
without any reference to journalists?

MR GLEESON:  I do not think so, Your Honour. I think it has

been extended to journalists too, but I will come to that if I may.

MASON CJ: Yes.

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MR GLEESON: 

Mr Justice Hunt mentioned that and pointed

out, I think, that it does extend to journalists,
but that is, His Honour said, not usually of

practical importance.  I think he had financial

considerations in mind.

DEANE J: And if proceedings had been commenced here,

and interrogatories had been directed to that first

paragraph asking who was the senior American bank

official, and who are the prominent local businessmen,

would the newspaper rule have applied to that?

MR GLEESON: Emphatically yes, Your Honour.

DEANE J: It is not asking who are the sources of information;

it is asking who you are referring to.

MR GLEESON:  Yes.

DEANE J: It would, would it?

MR GLEESON:	Yes, Your Honour. They certainly could not have found this information out, in our respectful
submission, if they had commenced an action against
us, even though, of course, it would be very relevant.
And that is the whole strength of the newspaper rule:
everybody accepts that this information is relevant.
DEANE J:	I can follow it,when a journalist writes something,

in terms of asking who his sources are. It does not

appear obvious to me that it is the same when the

journalist alleges that somebody has said something
that precludes his being asked who he is referring

to.

MR GLEESON:  We submit it does. And part of the strength

and pervasiveness of the newspaper rule is that the

courts have said that until trial - and that is an

important qualification - until trial, this
information, although possibly of vital relevance

and importance to the plaintiff, cannot be elicited.

Of course, the newspaper rule is only a rule of

postponement. When it comes to the conduct of the

trial, the newspaper is going to have to make up

its mind whether it desires to pursue certain defences

which might necessitate it disclosing its sources.

Everybody agrees in the present case that if this

action goes to trial, and a section 22 defence is
pursued, the newspaper will have to disclose its

sources.

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DEANE J:  I will not delay you - I do not know that you are

quite appreciating what I am asking you. I mean,

the senior American bank official and the prominent

local businessmen may or may not be the sources.

I mean, the journalist may have picked q:, a fourth hand

more, he could refuse to answer interrogatories	rumour, and it just seems to me to be strange that, without
directed to know what he was talking about.

MR GLEESON:  Well, we would submit that that is the rule, and

I will seek to demonstrate it by references to later

cases about the rule, Your Honour. But since

Your Honour raises that point, I perhaps should also

point out it is of some, al though not central, relevance

to our argument, tha_t if you look at this article, it

is far from clear that those people are the sources

of what might be called the main defamatory imputations

that it might be speculated might be taken from the

article. That was the point of my connnent earlier,

that presumably Mr Cojuansco is not complaining about

being called "spendthrift."

Those people are said to be sources of information

that he squandered money.

DEANE J:  Well, could you, on your approach, be asked, "What is

the leading local US bank referred to in the article?"

Or are you entitled to keep that to yourself, too?

MR GLEESON:  Yes, we would submit so, but not, of course, at the

trial. If Mr Hastings goes into the witness box at

the trial, he has to answer all relevant questions.

DEANE J:	No, I was directing the question to interrogatories
before the trial.
MR GLEESON:	Yes. Well, I will bear Your Honour's questions in

mind when I come to the expositions of the rule in

these cases. Perhaps I can pass over those parts of

Lord Salmon's judgment, where he deals with the

question of whether this is confined to libel cases,

because undoubtedly ours is a libel case, as
BRITISH STEEL was not.	Then there is a reference to
the New Zealand case.	Now, it should be noted that

the New Zealand decision came in between the judgment

of the Court of Appeal in BRITISH STEEL and the

judgment of the House of Lords in BRITISH STEEL.

At thetop of 1189, Lord Salmon says:

Lord Denni~g very carefully examined the cases

in England and in the United States of America relevant

to the question - ought Granada to disclose their

source of information?

Save for GARLAND V TORRE -

a United States case -

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which, in my view, is hardly relevant,

I agree with those cases ..... and from which

Lord Denning drew a principle with most of which I respectfully agree and wish to recite.

"After studying the cases it seems to me

that the courts are reaching towards this

principle. The public has a right of access to

information which is of public concern and of

which the public ought to know. The newspapers

are the agents, so to speak, of the public to

collect that information and tell the public

of it. In support of this right of access, the

the newspapers shoyld not in general be compelled

to disclose their sources of information. Neither

by means of discovery before trial. Nor by

questions or cross-examination at the trial."

(I would add'save in exceptional circumstances'.)

"Nor by subpoena. The reason is because, if

they were compelled to disclose their sources,

they would soon be bereft of information which

they ought to have. Their sources would dry up.

Wrongdoing would not be disclosed. Charlatans

would not be exposed. Unfairness would go

unremedied. Misdeeds" (and I would add 'serious

faults and 'mistakes') "in the corridors of power -

in companies or in government departments - would

never be known. Investigative journalism has
proved itself as a valuable adjunct of the

freedom of the press .... It should not be unduly

hampered or restricted by the law. Much of the

information gathered by the press has been imparted

to the informant in confidence. He is guilty of

a breach of confidence in telling it to the press.

But this is not a reason why his name should be

disclosed. Otherwise much information, that

ought to be made public, will never be made known.

Likewise with documents. They may infringe

copyright. But that is no reason for compelling

their disclosure, if by so doing it would mean

disclosing the name of the informant. In all

these cases the plaintiff has his remedy in damages against the

newspaper - or sometimes an injunction: and that

should suf £ice. It may be for libel. It may be for

breach of copyright.	It may be for infringement of
privacy ...	So let the plaintiff sue the newspaper:

without getting the name of their informant."

(Continued on page 16)

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MR GLEESON (continuing):  I pause there to say that

proposition, "let the plaintiff sue the newspaper",

which has been established for a long time, has

always been made subject to this qualification of	exceptional circumstances, although nobody said
what an exceptional circumstance might be, but I should remind Your Honours of a practical consequence
of it. Nobody has ever thought to say, although this
might be an important practical consideration,
"I don't want to sue the newspapers because they
are powerful litigants who will defend my case with
all their resources. I want to sue the individual
who told the newspapers something about me." The
courts have always said - and this is the basis of the entrenched rule - the newspapers take responsibility for what they publish and you have a remedy against
the newspapers. You should sue the newspapers.
Now, Lord Salmon goes on:

My Lords, I have no doubt that the words

"the public has a right of access to
information which is of public concern and

of which the public ought to know" do not

embrace any information which may be of

interest to the public, but are confined

to information which it is in the public

interest to make known.

ATTORNEY-GENERAL V CLOUGH and MULHOLLAND are

the only two cases in which the press has ever

been ordered by our courts to name its source

of information; and this was in order to

protect the security of the State.

Lord Radcliffe who was Chairman of the

Tribunal -

they, by the way, were not newspaper rule cases.

They were witnesses in inquiries refusing to answer

questions.

Lord Radcliffe who was Chairman of the

Tribunal of Inquiry stated on behalf of

himself and his two colleagues that it
was imperative for the safety of the state
that the press should disclose the

identity of its informants.

These cases which have nothing to do with

discovery, arose out of the Vassall Tribunal
of Inquiry in 1963 under the TRIBUNALS OF

INQUIRY (EVIDENCE) ACT 1921. The Report of

the Royal Commission on Tribunals of Inquiry

dated November 1, 1966, recommended in
paragraph 27 that inquiries under the Act

of 1921 should be confined to "matters of

vital public importance concerning which

there is something in the nature of a
nation-wide crisis of confidence." The

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report, which was later agreed by the
government, cited the Vassall Inquiry as

being a typical example of such a case.

Sir John Hobson stated, correctly, in the

CLOUGH case that this inquiry was set up,

amongst other things, "to deal with the

safety and security of the state -

and I will not go on with the details.

There was a nation-wide crisis of confidence

about these matters. It is certainly not

surprising that the courts considered

that the man who had informed the journalists

of what they had reported in the press would

probably be able to give and, if so, ought

to have given the tribunal evidence about

the matters to which I have referred; and

therefore the journalists should have given
the tribunal their informant's name.

In the MULHOLLAND case, Lord Denning said - and then he went on to the special circumstances of

that case. If I could then pass over His Lordship's

discussion of whether the newspaper rule applied to the

circumstances of a case like BRITISH STEEL where

somebody was seeking to vindicate his own rights of

confidentiality and was not a libel case,, to

His Lordship's conclusions on page 1195. He said:

My Lords, it is, I imagine, apparent from what

I have said that I have the misfortune to

disagree with your Lordships. The immunity of the press to reveal its sources of information

save in exceptional circumstances is in the

public interest, and has been so accepted by

the courts for so long that I consider it is

wrong now to sweep this immunity away. The

press has been deprived of this immunity only

twice ..... And the exceptional circumstances

of the nation required that the press's source	in each of those cases were that the security
of information must be revealed. Certainly no
such circumstances appear in the present case. always be the only special cirC'UillS~es but it is the
onlv one which has been effective until now. J . -
fureover, .there ara no circumstances in this case which
have ever before deprived or ever should deprive
the press, by discovery, of its imrunity against revealing its sources of information in relation to ma.tters of great public inportance. The freedom of the press depends upon
this :inm.m.ity. Were it to disappear so -would the sources
from which its information is obtained; and the public
be deprived of nuch of the information to which the
public of a free nation is entitled.

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MASON CJ:	Now, you are asking us to accept this approach.
MR GLEESON:	Yes.

MASON CJ: That means, does it, that the newspaper rule would

apply, not merely to interlocutory proceedings in

defamation actions, but it would apply at the trial

itself?

MR GLEESON:  No, we do not ask that.

MASON CJ: Well, does that not appear from the passage quoted

from Lord Denning's judgment at page 1189?

MR GLEESON:  Lord Denning took a different approach again,

Your Honour. He would have engaged in a balancing

exercise in which he judged the responsibility of the behaviour of the press. That was rejected by all the members of the House of Lords and by the

Court of Appeal of New Zealand and Lord Salmon was,

in our respectful submission, talking of the newspaper

rule which always did only apply up until the trial and it is to be borne in mind that the way in which

the matter arises at the trial is that the newspaper

then is, in effect, put to its election. It cannot

continue to maintain the immunity if it goes into

evidence on issues to which the question of the

identity of the sources becomes relevant.

On page 1195, at line D, Lord Salmon used the expression "by discovery" which, in our respectful

submission, is an accurate qualification of the

principle that he was denunciating and an accurate

reflection of the nature and history of the newspaper

rule.

DEANE J:	Does that mean that if, on the trial, it conducts its case by selecting witnesses who do not know that
the - - -
MR GLEESON: It cannot run its defence. The point is,

Your Honour, that it cannot run its section 22

defence without disclosing its sources of information.
It was because and only because of the potentiality of a section 22 defence that Mr Justice Hunt allowed this

application but he pointed out that it was agreed

before him and is evident that a section 22 defence

cannot get off the ground.

DEANE J:	I was not thinking about this case. What I was asking you is, does that mean that if by the trial
it can select witnesses who do not know the answers to the questions, it still can avoid disclosing?
I mean, the immunity continues throughout.
MR GLEESON:	It is not a question of immunity at that stage,

Your Honour. If the newspaper cares to fight the

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case with one arm tied behind its back, it might

be able to achieve the result that it does not,

in fact, disclose its sources of information.

DEANE J: What if the plaintiff calls the journalist? Can he

ask him?

MR GLEESON:  At the trial, it would have to be relevant to an

issue.

DEANE J:	Yes, well, I appreciate tha~ but what if the plaintiff calls the journalist and says, "Tell me, who are your
sources"?
MR GLEESON:	There would be an objection and the judge would

then rule on evidence and the judge would then say
to counsel for the newspaper, "Are you pursuing a

defence under section 22"?

DEANE J:	But why would it not go to damages if, for example,
the answer to the question were, "I had no sources
at all.  I simply made it up".
MR GLEESON:	It could not go to - it is not punitive damages, Your Honour.
DEANE J:	It could go to any issue with malice.

MR GLEESON: Well, Your Honour, if it went to a relevant issue,

then the question would be admissible.	The newspaper
rule never touched that.	It only ever was a rule of
postponement.

DEANE J: Yes. That was all I was asking.

MR GLEESON: 

Now, Your Honours, Lord Fraser's speech commanded

a majority in BRITISH STEEL and perhaps I should give
a reference to the reasoning of His Lordship on the

question cf the applicability of the newspaper rule

and its inapplicability to the case of BRITISH STEEL.

On page 1197, at line E - - -

DEANE J: Just taking you back a moment, it would go to damages

here, also, Mr Gleeson.

MR GLEESON:  Then, if it went to damages and were relevant,

it would be admissible, Your Honour, and the

newspaper rule never touched that.

(Continued on page 20)

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MR GLEESON (continuing): At page 1197, line E,

paragraph 1, His Lordship said:

The rule applied only to libel

actions.

And the case of BRITISH STEEL was not a case of

libel. Then he said:

The rule applied only at the interlocutory stage of discovery.

And then he said, in point 3 on page 1198, that

the rule had been displaced in England in 1949

by the Rules of the Supreme Court. Perhaps I should

hand to Your Honours copies of the Rules of the

Supreme Court to which reference is there made.

The relevant rule provides:

In an action for libel or slander where

the defendant pleads that the words or matters

complained of are fair comment on a matter

of public interest or were published on a
privileged occasion, no interrogatories as
to the defendant's sources of information

or grounds of belief shall be allowed.

That is the rule that His Lordship was referring
to and the point that His Lordship was making is, of course, that it is not confined to newspapers. That rule applies in relation to defendants in

libel actions, whether they be newspapers or not.

Then His Lordship says, on point 4:

The limits of the rule are uncertain.

And explains the reasons for that. And says:

I would be reluctant to support a rule whose

boundaries are so ill defined.

And then, on point 5, His Lordship says:

The rule has repeatedly been said to

be subject to possible exceptions although

there seems to be no reported case in England

where the exception has been held to apply.

Indeed in the -

New Zealand case -

Woodhouse J thought that the rule should now

be regarded as absolute. But the Scottish

case of CUNNINGHAM V DUNCAN AND JAMIESON

seems to be an example of such an exception.

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The newspaper rule was not mentioned by name in the judgments, and as a matter of

procedure it could not be exactly applied
in Scotland, but the rule was in effect

recognised bX Lord Mure who said, at p. 338,

there was a 'general rule ... that the editor

of a newspaper, where he takes the responsibility
for anonymous correspondence published in

his paper, is not bound to disclose the author".

Nevertheless, in the special circumstances

of that case, the court allowed a diligence

to recover, before the trial, the manuscripts

of letters to a newspaper. The special

circumstances were that, according to the

pursuer's averments, the letters, which had

been published under pseudonyms and appears

to have been written by members of the public,

had really been written or procured to be

written by the publishers of the newspaper

as part of a systematic plan to discredit

the pursuer. If the newspaper rule were
otherwise applicable, I think the circumstances
of this present appeal might well be within

the exception -

Your Honours, it is important to notice that nowhere

in this decision do Their Lordships cast doubt

upon the correctness of the decision of the·

New Zealand Court of Appeal except in relation

to that subject-matter of the exception. And may

I now take Your Honours to the decision of the

New Zealand Court of Appeal which is a decision

that, in our respectful submission, this Court

ought to follow and apply. That is the decision

in BROADCASTING CORPORATION OF NEW ZEALAND V ALEX

HARVEY INDUSTRIES LIMITED, (1980) 1 NZLR 163.

That was a libel case, as this is a libel case.

If I could read the headnote:

(Continued on page 22)

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MR GLEESON (continuing):

The plaintiff companies sued the Broadcasting

Corporation for, inter alia, defamation and

slander of goods -

There had been a programme criticizing the quality

of some roof tiles. It was not a very red-blooded

libel case but that is what it was.	There was
an attempt to obtain discovery:

Held: It is a long-standing rule that a defendant

at the pre-trial stage of an action for libel published in a newspaper should not be forced

to disclose his source of information. The

rule applies not only to the press but to

the broadcasting services as well. The

overriding justification for the rule is the

public interest in the dissemination of informaion.

The rule is not confined to interrogatories;

and it applies in an action for slander of

goods.

And this is the point we seek to emphasize:

It is not a matter of satisfying the Court

that the public interest would be advanced

in the particular case. The rule is one to

be applied by the Courts as a matter of course

except where special circumstances are

established warranting a departure from it.

The whole point of it is that it is a rule.	Now,
Mr Justice Woodhouse at page 165 said:

The claim to avoid disclosure is not based upon any issue of privilege or upon

arguments that there is a judicial discretion

which should be exercised in favour of the

Corporation. Instead it relies upon what

may conveniently be described as the newspaper	rule. It is claimed as a long-standing rule
or practice, even a principle of law, since it has always been observed, that the proprietors of newspapers will not be compelled to discover the source of information of an alleged libel.
The second step in the argument is that the
rule is said to apply to the production of
documents as well as to interrogatories.
Third, that the principle must be just as applicable in the case of radio or television broadcasts as to the press. Fourth, that
the principle applies to all information published by the media concerned or, in any event, that the particular broadcast under

C2Tl6/l/AC	22	12/5/88
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review is within the ambit of the rule. Fifth,

that the rule must sensibly have the same

purpose and force in the case of actions for

slander of goods as where defamation in the

narrow sense has been alleged. And finally

that even if it may be that in some exceptional

circumstances a case could be taken out of

the rule there is nothing in the present

situation that could do that.

And the judge at first instance accepted all but the final two parts of that submission.

The rule or principle that the defendant

in an action for libel published in a newspaper
would not be forced to disclose his source
of information -

now, to answer Your Honour the Chief Justice's

question: if that formulation is accurate it would

cover a journalist -

was described as long ago as 1888 as a "tolerably

settled practice never to o~der production"

of documents in such cases: per Lindley LJ

in HENNESSY V WRIGHT (nO 2) 24 QBD 445, 449.

A few years later Lord Esher MR spoke of the

practice as one that had been followed "for

a long series of years" prior to 1888:

HOPE V BRASH (1897) 2 QB 188, 191. And it

has been applied consistently ever since then,

both to attemps to obtain disclosure by the
use of interrogatories and by the production

of documents as the last mentioned case shows -

and then there is a reference to a New Zealand

rule of court.

In the present case counsel has not wished

to answer these arguments on the basis that

there may be a judicial discretion associated

leave the point for consideration on some

future occasion. I would remark, however,

that if the immunity is not founded upon
discretion (and in the absence of privilege)
it certainly becomes rather difficult to

detect the basis upon which it was thought
originally that the rule could operate.

Perhar,s it is enough to accept that it has

been 'carved out of the general field of
relevance" ..... In any event there can be no

doubt that the principle has been accepted

by the Courts for more than a century and

with that R 163 ..... and for that reason I

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despite occasional reference to exceptional
circumstances as a possible reason for

departing from it there appears to be no

reported case where that has happened.

Furthermore I am satisfied that it is well

settled that the principle as it has been applied is one that relates to discovery generally.

(Continued on page 25)

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MR GLEESON (continuing):  Then he referred to some New Zealand

cases and agreed with what Mr Justice Cooke had

said:

In my opinion Holland J was quite right in

the present case when he held that the newspaper

rule does indeed extend to the inspection

of documents.

Then there was a question as to whether it applies

to broadcast services:

On behalf of the plaintiff companies

Mr Thomas has accepted that the newspaper

rule does apply to the news services of the

broadcasters but he claims that it is restricted
..... to what he has described as "public • If

news or news items -

and then that submission is elaborated. There

is an interesting sentence on line 26 on page 166:

Nor is it desirable to enable plaintiffs

at the interlocutory stage of proceedings
to "delve around" for other targets.

That is one of the considerations that His Honour had in mind and he says, at the bottom of page 166:

The fifth point concerns the fact that 1n

the present action there is a claim based

upon slander of goods in addition to the

claim for defamation. Does the newspaper

rule apply to the one cause of action as

well as the other? The answer is to be found,

in my opinion, upon the general purpose of

the rule, based as it is on public interest

rather than the private purposes of the news

media. And I do not think there can be any

reason of public policy or of logic or of

fairness for drawing a distinction. The

rule itself is not really concerned with

the form of litigation but with supporting
a proper flow of information for use by the

news media. In saying that I do not overlook

the decision a few days ago of the Court

of Appeal in England where in an action that

did not plead defamation the disclosure of
the identity of an informant was ordered.

Then His Honour went on to consider BRITISH STEEL

and MULHOLLAND and, at the bottom of page 167, says:

I return to the defamation and slander

of goods causes of action in the present

case -

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and refers to some particulars of those and, at

the bottom of page 167, in the last sentence on
the page, says:

The remaining issue is whether the rule is subject to a qualification on grounds of

special circumstances and if so whether special

circumstances actually arise in the present
case as Holland J thought.

Then he refers to the reference of the trial judge to special circumstances and the matters that

were there thought to be special circumstances.

At line 33, His Honour says:

Despite the references in the cases concerning
the possible exception that might need to

be made for something unusual or special

there can be no doubt of the strength of

this rule in practice. It has been applied

consistently in the face of every argument

in case after case. So with respect to the

contrary view of Holland JI cannot accept
either of the matters he mentioned as something

that would justify the order he made. And, at line 50, His Honour says:

For the purpose of considering whether the foregoing matters may amount to special

circumstances I have assumed that such a

reason may still exist for ordering discovery

in a situation where the general principle

would otherwise apply. Of course there are

references to the exception in the cases

as I have said. But during all the time

that has passed since such a reservation

was first mentioned in HOPE V BRASH it is

significant that there appears to be only

one reported case where a specific claim

of special circumstances has ever received

judicial attention; and then it was put

aside in favour of application of the rule.

His Honour then refers to LYLE-SAMUEL V ODHAMS

and the ar~uments that were advanced in that case and

then, at line 31, says:

(Continued on page 27)

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MR GLEESON (continuing):

It will be seen that for more than a

century there has been an opportunity to find

some kind of special reason as justification

for failing to act on the newspaper rule.

During that long period none has ever been

acted upon nor has any real category of case

been suggested as likely to occur. However,

the initial caution which prompted the

qualification in the early references to the

rule still leaves an area of uncertainty

despite the lack of any practical need for it.

The fact has caused the problem that has arisen

in the present instance. It is a rule which
applies only up to the actual trial of an action

and in my opinion the time must now be close if

it has not already arrived for the Courts to put

an end to any lingering uncertainty and hold

that the testing period, already one hundred years

or more, has more than spent itself; that the

rule itself should be regarded as absolute. In

any event it must now be obvious that it there

are exceptions they will be rare indeed.

MASON CJ:	Youat"e asking us to adopt that?
MR GLEESON:	We ask Your Honours to adopt that or, alternatively,

to say that if there are special circumstances, the
bare facts of the present case and the sheer

ordinariness of the circumstances of the present case

came nowhere near them. It is in that connection

that we rely upon the way the evidence was presented
to Mr Justice Hunt.

That proposition of Mr Justice Woodhouse, I have to say, is not supported or embraced by the

remaining two judgments in the Court of Appeal in

New Zealand. It may be that special circumstances

might include the sort of considerations that were

referred to in that article in the Australian Law

Journal concerning the approach that the courts used

to take prior to 1974 to applications under section 11

of the 1912 DEFAMATION ACT.

The impecunious newspaper proprietor is not

unkown in this country. Indeed, the newspaper

proprietor who flaunts his lack of resources is

not necessarily unknown in this country. Similarly,

the case of evidence to the effect that a campaign

is being conducted in a series of newspapers is

something that might be considered as a special

circumstance. But all that there was by way of

special circumstance in the present case was that

the plaintiff said to the Court, "I might want to sue

the people who told Mr Hastings what he wrote in that

article, and I notice that in section 22 of the

DEFAMATION ACT there is the potentiality of a defence

C2Tl8/l/JM	27	12/5/88
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that would not be available to the sources. And

I'm entitled to an order." That is the way the

case was presented to the judge below.

MASON CJ:  Can I ask you this question: was the rationale given

in these recent cases -GRANADA and BRITISH BROADCASTING

CORPORATION - namely, free flow of information, the

rationale that was originally assigned for this rule

when it came into existence over a hundred years ago?

MR GLEESON:  The rationale seems to have been teased out

in some of the later cases. It was very early
established, I think, in the first case that discussed

the rationale of the rule, it was one of the reasons

given and that, I think, was either HOPE V BRASH,

or ADAM V FISHER. I think the answer to that question

might lie in the succeeding judgments in this case

too, but I will have those two cases checked.

The way the recognition of the rule developed

in appellate courts in England seemed to be by

members of appellate courts informing one another of

what the rule was in practice. The first case in

the line of cases referred to is HENNESSY V WRIGHT,

where the Governor of Mauritus sued the editor of,

I think it was, the Times newspaper for libel. One

of the judges in the Court of Appeal was familiar with

the practice and informed the other judges in the Court of Appeal of the practice. That is the way

it developed. The reasons for it were then called

into question and this reference to free flow of

information was one of the earliest reasons advanced.

MASON CJ: It just seems a little curious that if that is

the true rationale of the rule, a matter of such

high public importance, that the rule none t;he less

very confined in its operation, that is, to interlocutory

proceedings in defamation actions.

MR GLEESON:  Yes. It may be that the confinement of the rule

is because it is such a special exception to the general

notion that what is relevant ought to be able to be

the subject of interrogatories and discovery.

(Continued on page 29')

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:i:-'1R GLEESON (continuing): It is awkward to try and apply

United States' reasoning because of the first

amendment. The other thing that ought to be

said is that, as a matter of practice, as

Lord Salmon, I think, indicates in his speech,

whilst the High Court made clear in McGUINNESS'

case that the rule is confined to interlocutory

matters - and I will take Your Honours to that when

I finish the New Zealand case - it has not been

applied at the actual hearing or at inquiries,

for example, where disclosure of sources of

information might become relevant. That is not

to say, however, that judges do not take

considerable care to avoid the issue arising in

practice and people do not lightly at inquiries

or at hearings get involved in possible disputes
about this matter because, to use Mr Justice Hunt's

expression in his judgment below, those disputes

sometimes have what he called ugly consequences.

Now, in the United States,a different kind

of exercise is taken and that seems to run through

to the actual trial of the action. There, of

course, because of their system of pretrial

depositions, people find themselves giving evidence

relevant to the hearing at what we would call an

interlocutory stage.

If I could go to Mr Justice Richardson's

judgment, he, at page 170, describes the newspaper

rule and at page 171, line 12 says:

It is not necessary to refer in detail to

all the later cases in which the newspaper

rule has been invoked. It is sufficient to

say that there is a substantial stream of

authority in which there has been no

challenge to the existence of the rule

recognised in HENNESSY V WRIGHT and HOPE V

BRASH, although there have been some various

views as to its rationale.

There is, of course, a series of cases in

New South Wales in the New South Wales Court of

Appeal, the latest of which, I think, is a case of

WRAN V AUSTRALIAN BROADCASTING CORPORATION which

discussed the rule in detail and then he refers

to the line of cases in New Zealand and at page 172,

line 15, says:

Fourth, the newspaper rule is firmly

grounded in public policy considerations.

Although it has been said in some of the

cases that a plaintiff who has his action

against the news media should not be allowed

to delve round to see who else he can sue .....

C2Tl9/l/SH	29	12/5/88
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think, be the public interest in the	the overriding justification must, I
dissemination of information. This public policy basis for the rule has
been put in various ways. In McGUINNESS's
case Dixon J said:

"The foundation of the rule is the

special position of those publishing and

conducting newspapers, who accept

responsibility for and are liable in
respect of the matter contained in their

journals, and the desirability of protecting	those who contribute to their columns from the
consequences of unnecessary disclosure of
their identity".

And then, at line 43:

The reasons for the rule are not found

simply in the needs of particular litigants. The broader purpose is to encourage the flow

of information to the public and thereby

facilitate free trade in ideas. That flow

is dependent on the reporting of matters of

public interest to the news media. The rule

promotes this end by holding out to news-

gatherers and contributors of information to

the news media the assurance that, unless and

until a matter goes to trial and in the setting

of the trial itself, identification of the
source of the news media's information will

not ordinarily be compelled.

(Continued on page 31)

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MR GLEESON (continuing): That is simply a recognition of the

proposition that although we tend to think of the
problem - by we, I just mean people - tend to think

of the problem sometimes in terms of the question of

whether the press deserves its freedom, but the

question is whether we deserve. a free press.

GAUDRON J: Is there not, though, some.thing of a two-edged

sword about that, if you base the rule on the free

flow of information, because the effect of it is to

stop, at least, the information sought to be ascertained

by the application?

MR GLEESON:  Yes. Well, I will come next to show that the

rule has been said by the High Court to be a rule

that exists and it has been applied and, of course,

is applied corrnnonly and as a matter of practice in

New South Wales. Mr Justice Hunt said, in the present

case, that it was no part of his purpose to overthrow

the newspaper rule; he said he had neither the power

nor the inclination to do so. He simply took the

approach that it did not apply to Part 3.

Mr Justice McMullin, on page 175, said:

The principles upon which the news media may

refuse to disclose sources of information were,

until recently at least, well settled. (The

recent judgment of ..... BRITISH STEEL ..... may have

thrown doubts upon them.)

And he refers to that later:

The history of the matter was discussed by

Dixon Jin McGUINNESS ..... The law was faced

at a comparatively early stage of the growth of the:rules of evidence with the question of

how to resolve the inevitable conflict

between the necessity to discover the truth

in the interests of justice on the one hand

and the obligation on the other of secrecy

or confidence which an individual called upon

to testify may in good faith have undertaken
to a party or other person.	The matter was

decided against journalists and the categories of privilege were kept within strict confines.

Consequently Dixon J was able to say that,

except in a few relations where paramount

considerations of general policy required, and

the relationship of journalist and informant

was not one of them, an inflexible rule was

established that no obligation of honour, no
duties of non-disclosure arising from the nature
of a pursuit or calling could stand in the way
of the imperative necessity of revealing

the truth in the witness box.

I pause there to say that it is important to bear in

mind, as a matter of history, that this principle was

C2T20/l/VH	31	12/5/88
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established,as His Honour says, at the time the

very rules of evidence themselves were being

established, and that reference to obligations of

honour is of very considerable historical importance.

There was for a long time an argument that no court

would permit a person to be asked a question in the
witness box where the answer to that question would

involve him in a breach of honour. And it was in

the case of the DUCHESS OF KINGSTON that that was

held not to be a rule of evidence. Then, under

the heading, "The newspaper rule," His Honour says:

But to that principle the law has long admitted

a special exception in favour of publishers,

proprietors and editors of newspapers, where

they are sued for defamation, by providing in
their favour an exception from the general

rule that a party to a suit must make discovery

of and produce for inspection all documents

relevant to the action and answer all relevant

interrogatories.

And then the history of the rule is referred to and

some criticisms and possible refinements are

referred to. On page 180, there is an important

stated principle, which we seek to have this Court

adopt. It is in His Honour's connnentary on the reasoning

process of Lord Denning in BRITISH STEEL.	His Honour
says:

But with great respect to the Master of the

Rolls, there are statements in his judgment

which could be taken to run counter to the

long established principle that a newspaper is not,

on discovery and inspection of documents, save

in exceptional circumstances, obliged to disclose its sour~es of information. It is not a question of weighing the measure of public interest in

each case. It is presumed, and for years has

been presumed, for the purposes of the newspaper

rule, that the public interest is served by

maintaining the free flow of information;

otherwise the sources of information will dry up.

Public interest is not to be examined afresh in each case.

(Continued on page 33)

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MR GLEESON (continuing): That, of course, is the

fundamental departure between the approach that

Mr Justice Hunt took and the approach that was

urged upon him. Mr Justice Hunt took the approach

that whilst he, said the newspaper rule did not

apply to applications under Part 3, yet he was

perfectly well aware of the existence of the rule

and of the fact that there were considerations of policy

behind the rule and he would take those considerations

into account for himself and weigh them afresh

as simply one or more of the circumstances of the

particular case.

TOOHEY J: Mr Gleeson, what is not clear to me at the moment

is this: a 1 though you have invited us to adopt the approach

taken by Mr Justice Woodhouse and you have referred

to the exception of exceptional circumstances,

is that a matter that featured at all before

Justice Hunt?

MR GLEESON: It was central to Mr Justice Hunt in this respect,

Your Honour, and in this respect only: His Honour

said he was not applying the newspaper rule but

he took the view that the decision in BRITISH STEEL

V GRANADA, which of course we say was not about

libel at all, was authority for the proposition

that the correct approach to take to an application

under Part 3, at least against a newspaper, is

to require the applicant to show what His Honour

called "necessity'. And His Honour found the

necessity in the existence of the possibility of

a section 22 defence.

The test that His Honour posed and with which

my learned friends have a quarrel is formulated

by His Honour at page 35, line 24, where His Honour

said:

In the context of the present case, the

applicant must establish that he cannot obtain

the relief to which he is or may be entitled

in relation to the publication in New South

Wales of the statements which I earlier quoted

unless the respondents are compelled to disclose

the sources of the journalist's information - So that was like a special circumstance, if that be

the appropriate expression but, of course, His Honour
never suggested that the facts of the present case

would have amounted to special circumstances within

the meaning of the newspaper rule. But he erected

this test and then he answered the test by saying

because from a reading of the article it looks

as though there might be a likelihood of a section 22

defence being raised then that test that His Honour

formulated at page 35 had been satisfied without

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a word of evidence before him as to the facts or

circumstances that might be relevant to that

section 22 defence except what appeared on the

face of the article itself and in a circumstance

where His Honour actually said, "In a case like

this the newspaper carries the onus of proving

that it has no defence under section 22".

I come to His Honour's process of reasoning

and an examination of the steps in that in a moment

but in McGUINNESS V ATTORNEY-GENERAL OF VICTORIA

the newspaper rule was discussed by this Court. That was a case about an attempt on the part of

a journalist to refuse to answer a relevant question

before a commission of inquiry, an attempt that

failed. At page 87 - - -

WILSON J:	What volume, Mr Gleeson?
MR GLEESON:	I am sorry, Your Honours, 63 CLR 73,

McGUINNESS V ATTORNEY-GENERAL OF VICTORIA.

MASON CJ:	Thank you.
MR GLEESON:	At page 87, about two-thirds of the way down

the page, Mr Justice Rich said:

But hitherto no one has entertained a claim

that courts should not be allowed to know

what a journalist has discovered. It is true

that in the process of interrogatories and

discovery of documents before the trial of

an action of libel, courts of common law have

exercised a statutory discretion as to what

they shall allow by refusing to compel a
newspaper defendant to say who wrote the libel

or where the newspaper got the information

on which the libel is founded. But that depends

on special considerations affecting liability

for defamation and the discretionary nature

of discovery.

And at page 92, Mr Justice Starke said:

(Continued on page 35)

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MR GLEESON (continuing):

Apart from statutory provision, the

press, in courts of law, has no greater and

no less privilege than every subject of the

King. But in actions against newspapers

or trade periodicals the rule of practice
in the King's Bench Division is to refuse
to compel the defendant to disclose the names
of the writer of an article or the source

of the newspaper's information ..... It is

a rule founded, I apprehend, upon convenience

and to limit fishing and oppresive inquiries.

And the rule is not confined to actions against newspapers ..... But the application of the

rule must depend upon the circumstances of

the case and the discretion of the judge

or other authority.

Then Mr Justice Dixon dealt with the rule on

page 104.	He makes reference to the journalist.
He says:

But although all authority is against

the existence of any rule of evidence under

which an editor or journalist is protected

when called as a witness on the trial of

an action from the necessity of deposing

to the source of the information contained

in his publication or to statements made

in confidence to him in the exercise of his

calling, yet a special exception. is made in

favour of publishers, proprietors and editors
of newspapers as defendants in actions of
libel from the general rule that discovery

by affidavit of documents and answer to

interrogatories must be made of all relevant

matters.

By a long line of cases a practice is

recognized of refusing to compel such a defendant

to disclose the name of the writer of an

article complained of as a libel or of the

sources of information he has relied upon.

The foundation of the rule is the special

position of those publishing and conducting

newspapers, who accept responsiblity for
and are liable in respect of the matter contained

in their journals, and the desirability of
protecting those who contribute to their

columns from the consequences of unnecessary

disclosure of their identity. The cases

are collected in LYLE-SAMUEL V ODHAMS LTD

and SOUTH SUBURBAN CO-OPERATIVE SOCIETY LTD

V ORUM, which are the latest authorities

upon the application of the rule.

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The appellant stands upon these decisions

and says that they disclose a development

which, in reason and logic, should not stop

at discovery, but should supply a general

justification for withholding the names of

contributors and the sources of information

at all stages of any legal proceeding.

So, really, McGUINNESS is an unsuccessful attempt

to extend the rule into the area that Your Honour

the Chief Justice pointed out to me a little earlier

and it is authority against the extension of the

rule into that area. Indeed, the actual decision

in McGUINNESS's case is that the rule does not

extend beyond the area of discovery and interrogatories

into the conduct of the actual trial.

Your Honours, could I give a brief reference

to what seems to be one of the latest in the United

States authorities on the matter without suggesting that they are directly applicable. This contains

a convenient summary of some of the other cases.

It is ZERILLI V SMITH, 656 F 2d 705. It was a

decision of the United States Court of Appeals

of the district of Columbia circuit and, under

the heading, "The Reporter's Privilege", on

page 710, reference is made to the cases about

compelling disclosure of the identity of confidential

sources and the first amendment.

(Continued on page 37)

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MASON CJ:  Mr Gleeson, before you go on with the reference

to that decision, could I take you back to sentence at the bottom of page 104 going over to

page 105 where His Honour says:

It "rests not on a principle of privilege

but on the limitations of discovery", to
quote a comment of Professor Wigmore, who
expresses himself somewhat strongly against
the pretensions to a privilege on the part

of journalists.

Now, does not that indicate that, according to

His Honour at least, the newspaper rule would have no application beyond discovery; would not apply

to an application of this kind under Part 3?

MR GLEESON: Well, this is an application for discovery,

Your Honour, in our respectful submission. This

is an application for discovery and interrogatories

before an action is commenced.

MASON CJ:  But not in an action between the parties.

MR GLEESON:  That is so, not in a current action. Now, of

course, His Honour did not have to consider, because

there were no rules of court in force relating
to discovery before action or interrogatories before

action, whether the newspaper rule would apply

to discovery before action or interrogatories before

action in a libel case.

The House of Lords in BRITISH STEEL, dealing

with a bill of discovery which is not, in our

respectful submission, relevantly different from

the procedure established by Part 3, although it

is not identical - The House of Lords said, by

a majority, the newspaper rule does not apply to

a bill of discovery where no action has been commenced in a case that is not a libel case.

But what we are dealing with here is an action

for pre-trial discovery as under a bill of discovery,
or under Part 3 of the rules, in a libel case.

And, in our respectful submission, the newspaper

rul~ which is a rule about discovery, is applicable.

The alternative submission, of course, that

we make is - - -

DEANE J:	What do you mean when you say "in a libel case 1'?
MR GLEESON:	The only complaint that this man has is that

he has been defamed. In BRITISH STEEL V GRANADA

the facts -

DEANE J:  By whom though?

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MR GLEESON:  He has been defamed by the newspaper and by

the persons who communicated information to the

newspaper.

DEANE J:  What, he has alleged that your client has defamed

him, has he? I mean it brings us back to the point

I raised with you at the beginning: looking at

the front page paragraph I would have thought if

he sought legal advice he would be told, "Well,

now if you want to vindicate your reputation, it

may well be the newspaper is not the person to

sue because if these things are said about you,

a public figure in the Philippines, it is quite

likely that the truth or falsity of them will not
really be involved in proceedings against the

newspaper".

MR GLEESON:  Well, it would be necessarily involved in a

section 22 defence because the Privy Council in

AUSTIN V MIRROR NEWSPAPERS has said that a very

important question in a section 22 defence is

whether or not what has been published about the

plaintiff is untrue and if a newspaper publishes,

about a plaintiff, something which is untrue,

particularly something hard-hitting, then the

question of what conduct on the part of the newspaper

will be held to have been reasonable is affected

by that.

DEANE J:	But you see, if you look at that first paragraph
the newspaper has very carefully not made the
allegation in it. What it has said is: "People

• II II 1 d • b k" II 1 d • b • II

are saying , ea 1ng an , ea 1ng us1nessmen.

Well, now, whatever the House of Lords may have

said in AUSTIN it is not apparent to me that if

leading banks and leading businessmen were saying

that about a leading local public figure that the

newspaper is liable in defamation unless it can

prove what they were saying was true.

(Continued on page 39)

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MR GLEESON:  This, of course, raises one of the difficulties

about the way the application was presented to

Mr Justice Hunt. The applicant did not even frame the

imputations which he claimed constituted the defamation

of him.

DEANE J: Except his letter to your client seems to indicate that

his complaint is against the people who said it, rather

than against your client for publishing the fact that

there was discussion.

MR GLEESON:	Your Honour, I think in the - I just want to check on the evidence - that he said he was keeping his rights
of action open against everybody. There was no disclaimer of his intention to sue the newspaper.
Indeed - I just asked Mr Nicholas to turn that up. It
is my understanding that the matter was dealt with by Mr Justice Hunt and conducted before him on the basis
that there was certainly no disclaimer by the applicant of any intention to sue the newspaper, but
I will see if I can turn up the detail of that, if I may.
DEANE J:	What I had in mind was on page 9 where it seemed, as I
read it, he was making it fairly clear that he wanted
to sue the people making the allegations, rather than your client for reporting that the allegations were
being made.
MR GLEESON:	It is the last part of what Your Honour says that

I am balking at, respectfully, at the moment. Of

course, in the context of this application, he did not need the information to sue my client, and his demand for the information would not have been based

upon a proposition that he needed it to sue the

newspaper.	Your Honours, Mr Hughes has offered me some
some help.

DEANE J:  Mr Gleeson, if you and Mr Hughes are agreed that my

question is misconceived, you need not answer it.

MR GLEESON:  No. Neither of us were present at earlier stages

of these proceedings, but it is our understanding that

the question of whether Mr Cojuangco might waive his

rights of action against the newspapers was dealt with

before Mr Justice Hunt and there was no such waiver -

at page 51 of his reasons for judgment. On page 17

at line 4 the solicitor said that the plaintiff wished

to consider what he called "his entire position".

Now, Your Honours, on page 712 - - -

DEANE J:  I will not take time, but this is operating in my mind

in this case. That does not really answer the problem

and if, for example, it emerged that your client had

no information, obviously his appropriate course of

action would be against your client.

MR GLEESON:  I think what I say in relation to the second and

third errors may touch the point that Your Honour is

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now putting to me, and may I come back to deal with it

in that connection. On page 712 in the American case,

referring to the process they go through in America,

in the right-hand column under paragraph (2),

His Honour says:

In general, when striking the balance between

the civil litigant's interest in compelled

disclosure and the public interest in protecting

a newspaper's confidential sources, we will be

mindful of the preferred position of the First
Amendment and the importance of a vigorous press.

Efforts will be taken to minimize impingement upon the reporter's ability to gather news.

Thus in the ordinary case the civil litigant's

interest in disclosure should yield to the

journalist's privilege. Indeed, if the

privilege does not prevail in all but the most

exceptional cases, its value will be substantially

diminished.

Now, it is .that sentence. to which we draw attention.

The courts have repeatedly said, "Unless this is

confined at least to very exceptional cases the
advantage of the rule disappears", and similarly, if

Q{le can consider for a moment, the interaction between

Part 3 and the newspaper rule in what I might call

orthodox discovery proceedings - the operation of the

newspaper rule in orthodox discovery proceedings is

practically worthless if, having no more evidence than

appears in a case such as the present, a person who

has been defamed by a newspaper can make an application,

indeed an ex parte application, to a judge and say,

"I want to find out who his sources of information

were so that I may consider suing them too".

(Continued on page 41)

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MR GLEESON (continuing):  One thing that the courts have

said over and over again in relation to the newspaper

rule is that plaintiffs ought not to be permitted to

search around for possible defendants and they have

said over and over again the remedy against the

newspaper ought to be sufficient. Now,

Mr Justice Mahoney in the Court of Appeal said

people might like to sue the original source of

the information or misinformation against them.

A man might feel better if he can sue the American banker than John Fairfax but that is what the courts have consistently refused to permit and that is what

the courts have consistently denied when they have

said the right to sue the newspaper ought to be,

save in exceptional circumstances, sufficient.

Mr Justice Hunt, taking a different approach

to the question in his own test, adopted the same

approach ultimately in a different way.

Could I then come to the approach - but just

before I do there is one submission we should make

about BRITISH STEEL and ALEX HARVEY. A question

arises whether the decision of the House of Lords

is inconsistent with the decision of the Court

of Appeal of New Zealand. It is certainly a

possible point of view, we would submit, that they

are not inconsistent; that the explanation or the

resolution of the different results in those two

cases is that ALEX HARVEY was a case where all that

the plaintiff was complaining about was libel

whereas BRITISH STEEL was a case where the plaintiff

was not complaining about libel at all. The other

ground of distinction that we would mention is that,

in terms of exceptional circumstances, BRITISH STEEL

was a case where it was not only a question of the

confidentiality that existed between the newspaper

and it sources of information. What was being

vindicated was the confidentiality that existed

between BRITISH STEEL and its employees.

Now, Your Honours, in our outline of argument

in paragraph 3 we endeavour to sunnnarize the submissions

that we make about the reasoning of Mr Justice Hunt on

this first point; that is, concerning the newspaper

rule. Could I then come to what we submit is the

second error in His Honour's process of reasoning

and, in this regard, it is necessary to follow

through in some detail His Honour's reasoning,

although we have endeavoured to set out the steps

in paragraph 4(a) in our outline of argument.

On page 35, at line 23, expressing what he

considered to be the principles to be extracted from

the BRITISH STEEL case, His Honour said:

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In the context of the present case, the applicant must establish that he cannot

obtain the relief to which he is or may be

entitled in relation to the publication in

New South Wales of the statements which I

earlier quoted unless the respondents are

compelled to disclose the sources of the

journalist's information - in other words,

that he cannot obtain that relief unless

he is able to sue those informants.

Now, by relief His Honour meant, as we would

understand it, damages, an award of damages. On

page 39, at line 16, His Honour then turned to the

matter of statutory qualified privilege and perhaps

I should pause to say that His Honour sunm1arizes the

basis upon which Mr Shand put the application for

Mr Cojuangco in the following way: there was no

attempt made to prove by evidence any particular

special facts or circumstances. Rather, what was put was, that from the face of the article itself it appeared that there was the likelihood of a

successful defence under section 22.

(Continued on page 43)

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MR GLEESON (continuing):  I come later to the precise content

of that word "likelihood II in this connection, and

that for that reason, the foundation of the

considerations behind the newspaper rule, which,

even if not directly applicable were to be borne

in mind, disappeared because, so the argument ran

and so His Honour Mr Justice Hunt's reasoning runs,

because one of the foundations of the newspaper rule

was that the liability of the newspaper is

coextensive with the liability of the informant

and because of the existence of section 22, and

the likelihood of a successful defence under
section 22, so His Honour held, in the present case
the liability of the newspaper was not coextensive

with the liability of the informant and therefore

for that reason the applicant had satisfied the test

formulated by His Honour on page 35 at line 23.

Now, on page 39, His Honour deals with section 22

of the DEFAMATION ACT and, could I ask Your Honours

to look at the terms of section 22 of the DEFAMATION ACT?

That is a provision that was inserted into the

New South Wales law in 1974 and, Your Honours, I make

an assertion of fact which, I am told by those with

me who know more about this than I do, is true and I asked
my friend about it yesterday to see if he would check

up, and those with him are very experienced too.

It is the common wisdom here that there has only ever

been one case in which a newspaper has successfully defended a libel action on the basis of section 22. That is the case of BARBARO, referred to in

Mr Justice Hunt's judgment and, whilst I will not

go to the detail of it, what Mr Justice Hunt's

judgment says about BARBARO is this: in BARBARO's

case, the journalist made the report in question as

a result of seeing the plaintiff interviewed on

television and hearing the plaintiff admit the

matters which the journalist alleged against him.

Now that case is currently on appeal, but that

is the sole case in which the conduct of a television station

has been held to satisfy the requirements of section 22.

Now, Your Honours, section 22 provides:

Where, in respect of matter published to any

person -

(a) the recipient has an interest or an apparent

interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving to him information on that subject; and

(c) the conduct of the publisher in publishing

that matter is reasonable in the circumstances,

there is a defence of qualified privilege for that

publication.

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Now, we have given Your Honours references to

AUSTIN and MOROSI, and I will not take Your Honours

to those cases in detail. But in substance, the

view is taken that if untrue matter has been published

by a newspaper of a plaintiff and the information

that was published came from a third party, then the

fact that the matter is untrue and hard hitting and

the more hard hitting it is, the higher is the

standard, is relevant to the test of reasonableness,

and so you have got to judge the issue of reasonableness

in the light of what was published, including whether

it was true and whether it was hurtful, and you have

got to look at the conduct of the newspaper in the

light of what checks and investigations it made,

bearing in mind that the more damaging the matter you
publish about somebody, the higher is the obligation

to make checks and inquiries.

(Continued on page 45)

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DEANE J:  But it is really a different issue, though, is

it not? I mean, assume, for example, newspaper A

publishes an article on its front page which

says the Premier of a particular S~ate - no,

the Treasurer of a particular State is a thief

and embezzler. If the Treasurer sues that newspaper,
the issue is obvious. But if in the context of that

being published newspaper B publishes, "Serious

allegations have been made against the Treasurer

by newspaper A. Obviously it is a matter that must

cause concern, and they should be resolved." A
defamation action against newspaper Bis, on its

face, concerned with different matters.

Well, now here, what this newspaper has

published is that leading banks and businessmen in

the Philippines have made serious allegations against

a leading citizen of that country. I see he is called

"ambassador". I am sorry to keep coming back to it,

but it seems to me that an action against your

newspaper for reporting that those serious allegations

have been raised in another country raises different

issues to an action against the people who made the

allegations and assert their truth.

MR GLEESON:  Your Honour, that, with respect, has always been

true. There is an added element that I can add to

complicate the matter that has been recognized by

the judges that have enunciated and applied the

newspaper rule from the very first case in which it

was ever applied. In HENNESSY V WRIGHT, the very

first reported case in which the newspaper rule

was applied, added to what Your Honour has just

said the judge pointed out, that the issues of

malice are necessarily different in those two

actions.

When a person has an action against a newspaper and a question arises, or might arise, of suing the

newspaper's informant, the important issue of malice

as a matter of fact may operate very differently in

both cases. 1880 and they have said, "That doesn't matter; that The Courts have recognized this since is the strength of the newspaper rule."

The considerations that Your Honour raises

with me have been present to the minds of the judges

who have applied the newspaper rule all the time

and from the beginning.

DEANE J: That may be an answer to the applicability of the

newspaper rule. It seems to me, though, that

to say that does not remove the relevance of the

distinction in the issues, and possibly indicates
that Mr Justice Hunt fastened on a much narrower

distinction than is in fact the case.

MR GLEESON:  May I deal with his process of reasoning and

then seek to answer Your Honour's question to me?

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Having posed the test at page 35, that I mentioned

at line 23, His Honour then took the next step at

page 39, at line 17, referring to the availability

of a section 22 defence. Then on page 40,

commencing with the first line on the page, His Honour

gave an exposition of the way in which section 22
operates. That was his next step. Then, on page 49,
at the beginning of the page, His Honour said:

I turn then to make that assessment of the newspaper's likelihood of success in

establishing a defence of statutory qualified privilege if it is sued. On the face of it,

the article published by the respondents is

a serious discussion of a matter of international

significance and as such appears to relate to an

issue inwhich there is a legitimate interest

held by the public here in Australia. The

allegations concerning the applicant appear to

be directly relevant to the issue of corruption

in the Philippines with which the article deals

and were thus published in the course of giving

information to the public on that particular

subject. If, -

and I underline that word -

therefore, the newspaper were able to show that

the allegations concerning the applicant

accurately reproduced the information given to

the journalist by his informants and that the

position, standing, character and opportunities
of knowledge of those informants as perceived

by the journalist himself were in fact - as

their descriptions in the article suggest that
they were - such as to make his belief in the

truth of that information a reasonable one,

it seems to me that (subject only to malice,

about which the evidence is silent and which

appears to be unlikely) the newspaper's conduct

to be reasonable in the circumstances and that	in publishing the article is likely to be held
it would have available to it a very strong
defence -

(Continued on page 47)

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MR GLEESON (continuing):  Now, that sentence begins with the

word "If". The next step in the process of reasoning

appears on page 50 at line 18.

Because of the likelihood of a successful

defence of statutory qualified privilege

in this particular case, I am not satisfied

that the applicant is likely to obtain the

relief to which he is or may be entitled.

So, we begin with the proposition that the applicant

has to establish that he is not likely to obtain

the relief to which he is entitled. The matter

that is regarded as being relevant, and the only

matter that is regarded as being relevant to that,

is the possibility of a defence under section 22.

It is then observed that if certain conditions

are met, a defence under section 22 _Mould succeed

and then, in the absence of any evidence, except

what appears on the face of the article, the

conclusion is drawn that there is a likelihood - now, whether that means "probability" or not was

debated in the Court of Appeal - there is a likelihood

that that defence will be made out.

GAUDRON J: Although expressed as "If" and "because of the

likelihood", was His Honour doing anything more

there than presuming your client - or perhaps

I should say your "clients" - to be honest and

professional?

MR GLEESON:  He was presuming, for example, that the allegations

accurately reproduced the information.

GAUDRON J: That is right, being honest and professional.

MR GLEESON:  Yes.

GAUDRON J:  Was he in effect doing more than that?

MR GLEESON: If he is saying, "You are hoist with your

own petard, you cannot come to this Court and

claim that you are not honest or not professional",

that is a possible process of reasoning.

GAUDRON J: No, is it not the other way around? The applicant

comes; he does not bring any evidence to suggest

that your clients have been malicious, dishonest,

unprofessional, inaccurate; why should His Honour

not make the presumption in your client's favour

of all those things?

MR GLEESON:  Your Honour, the whole thing is extraordinary.

We only get into this area if we make the assumption

that it is appropriate in an application which

would usually be ex parte, under Part 3, for the

trial judge to engage in the kind of speculation

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about the possibility of, success of a defence under

section 22 that was engaged in in the present case.

Of course it is paradoxical. In order to resist the

application we have to either abandon our section 22

defence or prove that it is no good or, alternatively,

they have to prove that our conduct is such that

we do have a good section 22 defence. It is an

extraordinary situation for both parties and that

is why we say it is a situation that should not

have arisen at all. His Honour should never
have got into this area of speculating and having

a kind of pre-trial, even pre-action, adjudication

upon the apparent possibility of success of a

defence under section 22.

Could I come again to ask Your Honours also to consider the actual terms of the particular

article in question. As has been made clear

to us, the burden of the complaint of

Mr Cojuangco is highly unlikely to be that he

is careless with money and yet the attribution

of observations by the senior American bank official

and the prominent local businessmen appearing

from the article is limited to that. If this

article carries an allegation or imputation of

corruption against Mr Cojuangco, on the face of

the article, it is not something that came from

the senior American bank official or the prominent

local businessmen.

That again adds to the awkwardness of the

exercise mentioned by Your Honour Justice Gaudron.

DEANE J:	The allegation is not that he has been careless
with money. It is that he has squandered somebody
else's money.

(Continued on page 49)

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MR GLEESON: Unfortunately, nobody has told us what the

imputations are. Of course, it is the imputations

that constitute the defamation.

DEANE J: 

I do not think you would really need to be told

that it is alleged you squandered somebody else's

money, would you?

MR GLEESON: 

Your Honour, we only draw attention to the fact

that there are not even any imputations formulated
to add to the unreality of the exercise that
Mr Justice Hunt regarded as appropriate in the

case of an application such as this. The practical

consequence of His Honour's process of reasoning

is that in order to resist an application under

Part 3 a newspaper must either abandon a section 22

defence or demonstrate by evidence or argument

that if sued it would not have a defence under

section 22.

All this in a context where if the newspaper

wants to pursue a section 22 defence at the trial
it is going to have to reveal its sources. In
the ordinary case there could be no suggestion

that a limitation of actions period would expire

before the hearing against the newspaper. If the

newspaper is sued and desires to raise a defence

under section 22 then, inevitably, it is going

to have tell Mr Cojuangco who the people referred

to in the article are and he will have his opportunity

to sue them then.

And that is part of what has been involved 1n the past in the statements by courts that it

is sufficient, at least for the purposes of

determinin~ what should happen up until the trial
of the action against the newspaper - it is sufficient
to leave the plaintiff to his remedy against the

newspaper in a context of considering matters of

public interest and public policy which work the

other way. That is the compromise, if one likes,

that has been worked out by the courts.

Mr Justice Glass, with whose judgment the

president agreed, in substance simply said that

he perceived no error of principle in the approach

taken by Mr Justice Hunt and, at page 73, line 3,

he attributed to Mr Justice Hunt a process of reasoning

which inc 1 uded the proposition that:

The newspaper rule is not in terms applicable

to an application for preliminary discovery
but is existence should carry great weight
in the exercise of the judicial discretion -

If the existence of the newspaper rule carried great weight in the exercise of the judicial discretion

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it is important to bear in mind that the result

that is now produced is the very opposite of the

newspaper rule. Far from being the position that

a person who wants to find out the sources of the

newspaper has to show special circumstances, the

newspaper now, in relation to applications under

Part 3, has to demonstrate that it does not have available to it any defence which is not also
available to the informant.

The approach taken by Mr Justice Hunt of

speculating from the face of the article as to

the possibility of success on the part of the

newspaper is directly contrary to the approach

of Lord Justice Banks in LYLE-SAMUEL V ODHAMS LIMITED,

(1920) 1 KB 135. At pages 142 and 143 - perhaps

I should go back to the headnote of the case first

at page 135:

In an action of libel against the

proprietors and publishers of a newspaper in respect of matter appearing therein at

a time when the plaintiff was a candidate

for Parliament, the defendants pleaded fair

comment. The matter complained of consisted

largely of an attack on the private character

of the plaintiff, suggesting that he was unfit

to be elected a member of Parliament. The

plaintiff applied for leave to administer

to the defendants interrogatories asking in

substance what information the defendants

had before publishing the words complained

of and from whom they obtained the information.

The plaintiff gave an undertaking that, if

the names of the informants were disclosed,

he would not bring any action against them.

The judge in chambers disallowed that part of the -

interrogatories and there was an appeal which was

dismissed. (Continued on page 51)

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MR GLEESON (continuing):  On page 142, Lord Justice Banks

discussed the reason for the rule and said:

Mr Hogg put forward a somewhat different reason

for the rule. As I understand him, his suggestion

is this - that the foundation of the rule

is that it is or may be in the public interest

that newspapers should be at liberty freely

to criticise the conduct and private character

of individuals, but only in cases where such

conduct and character affect their fitness

for some public position; and, assuming that
to be the foundation of the rule, he went

on to contend that special circumstances must

exist where it is shown that the case is

not covered by that ground, and that the present

case is not so covered because the Court can

see, on reading the alleged libel, that it

is an attack on the private character and

private life of the plaintiff, entirely

unwarranted from any point of view of the

desirability of publishing statements in the

public interest.

Whether that criticism of the language of the alleged libel is or is not justified

depends upon the meaning which is placed upon

the language used. It is true that by an

innuendo the plaintiff suggests that the language

complained of means that he was an unscrupulous

and dishonest adventurer who married his first wife solely for her money, and that he tricked

her out of her mone½ and by his conduct drove

her insane. But it is not for this Court

to decide an issue which is one for the jury

to decide, nor can we say that special circumstances

exist in the present case for not applying

the well-established exception. I am unable

to accept Mr Hogg's suggestion as to what

constitutes special circumstances, or to agree

one. Mr Field suggested another test as to	that the test which he suggests is the correct
what constitutes special circumstances, his
suggestion being that special circumstances
exist when the Court is satisfied by perusal
of the libel that the defendant may have gone
to an unreliable source for the information.

Now, that is something very close to the obverse of the test that Mr Justice Hunt applied in the

present case.

DEANE J:  One problem with all this is whereas Mr Justice Dixon

referred to it as a rule of practice, in effect,

these all speak of it the way you would speak of

a principle of law.

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MR GLEESON: It has been said to be a principle of law.

DEANE J: Well, now, if it is a principle of law, how could

the judges of the supreme court abolish it through

a rule of court?

MR GLEESON:  They could not. They would simply make a rule

of court that would operate subject to the rule
of law - yes. Your Honour, we have given in that

list of background references that we handed up -

DEANE J:	Yes, I noticed that.
MR GLEESON:	And the courts have been moving towards hardening

it into a rule of law and that is, of course, what

the New Zealand court does. His Honour says:

I fail to see how the Court can ascertain

by perusal of the libel that in this particular
case the defendants may have gone to an
unreliable source. They may or may not; it

is not for me to say what the libel means -

and so forth.	Now, as I say, what Mr Justice Hunt
said:	"On the face of the libel here these people

seem to have gone to a reliable source." Well,

it may be that all American bankers are reliable

people. Perhaps one might admit of the possibility

that all American bankers are not all reliable

people but it is a very strange exercis~ as

Lord Justice Banks said, to try and work that out.

MASON CJ:  I notice that Lord Justice Banks says the rule

is "confined to cases in which the defendant

pleads either privilege or fair comment".

MR GLEESON:  Because it would not otherwise be relevant,

Your Honour.

MASON CJ: That is accepted, is it, in all the cases if it is

so confined?

MR GLEESON:  As I understand it, yes. It is the fact that

the defendant pleads privilege or fair comment

that makes it relevant.

(Continued on page 53)

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MR GLEESON (continuing):  Now, Mr Justice Mahoney said a

little more of his own about his approach to the

discretionary matter, although not differing from

the principles applied by Mr Justice Hunt but at

page 84, at line 30, His Honour said:

It would, in my opinion, have been open

to His Honour to find, in terms, that a

successful defence was probably available in

the sense that, if the facts remained as they

were before him and the defence were pleaded

and prosecuted, it was more likely than not

that the plaintiff's action would be defeated.

Now, that cannot literally be correct. If the facts

had remained as they were before Mr Justice Hunt, the

defence would have been bound to fail because the

facts, as they were before Mr Justice Hunt, did not

identification of the sources or any evidence at all include any evidence from the journalist, any

as to the reasonableness of the newspaper's conduct.

It would have been literally impossible for the

newspaper to have succeeded on a section 22 defence

if the facts had remained as they were so what

His Honour Mr Justice Mahoney must have been talking about was speculation on his part from the face of

the libel as to the sort of evidence that he expected

the newspaper might have been able to lead or that

one might infer that the newspaper might be able to

lead. His Honour came back to that same expression

on page 85, at line 20, where he said - and I think there is a typographical error on line 20. I think where the word "evidence" second appears it should

mean "defence":

As I have said, it could be found on the

evidence that the (defence) would probably

succeed if it were pleaded and if the facts

remained as they were before His Honour.

Now, with great respect, that just cannot be right.

His Honour had no facts before him except the article.

Now, the third error that we seek to attribute

to His Honour is, really, possibly only a subheading

of the second error but it relates to a matter that

has been raised by Your Honour Mr Justice Deane with

me on a number of occasions and it was of fundamental

importance to the reasoning process of Mr Justice Hunt

and he referred to it time and time again in his

judgment and we have given some instances in

paragraph 5(a). Over and over again, His Honour said

the foundation of the newspaper rule is the assumption

that the liability of the newspaper is coextensive

with the liability of its informant.

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Now, in our respectful submission, none

of the cases say that and it is obviously incorrect

that the liability of the newspaper would normally

be coextensive with the liability of its informant.

If we could give Your Honours a reference, firs~ to

HENNESSY V WRIGHT which is reported as a note in

(1888) 24 QBD 445. On the bottom of the left-hand

column on page 447 and over to the top of the

right-hand column, Lord Esher said:

Now with regard to collllD.ents made by a

writer, that privilege (in the sense in which

the word is ordinarily used) is destroyed if the writer who makes the collllD.ent is actuated by malice, is, in my opinion, beyond the

possibility of discussion. It has been so

held in express terms by this Court, and I

believe it has always been so held. And the

reason is, that, in order to substantiate a

claim to privilege, the defendant must shew

not only that what he has done was done on a

privileged occasion, but also that re has used

his privilege rightly, for, if the privilege

is abused for the purpose of personal vengeance,
it has been frequently held that, although the

occasion may be privileged, the defendant is

not privileged -

and so on.

But to shew that the persons who informed the defendant were malicious does not carry the

case any further. What must be shewn is, that

the defendant was malicious, and to shew that

his informants were malicious is not evidence

that he was malicious.

Now, in this, which is the very first reported case in

which the newspaper rule was applied, the possibility

of the existence of malice in the informant and absence

of malice in the publisher, was expressly discussed and	rejected as being a sufficient reason to require the
newspaper to give its sources of information.

(Continued on page 55)

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GAUDRON J:  Mr Gleeson, I have some difficulty with that, because

when the application is made in the context of current

libel proceedings by way of application for discovery

or interrogatories, it must be assumed, I would suggest,

that the purpose of the application is for the purpose

of conducting the proceedings. There is a different

purpose evident in the present application. Now,

when you accept that the purpose is different, that

discussion about malice that you have just referred

us to is really a discussion about relevance and

if it is seen in that context it may be that the

foundation of the newspaper rule was simply one of the

irrelevance of the material on the asserted ground.

MR GLEESON:  We accept what Your Honour says, with respect,

subject to this qualification: first of all, in a
number of cases on the newspaper rule, the possibility
of the plaintiff obtaining or using the information
to sue the informant is expressly adverted to and
discussed, and the newspaper rule has been applied in

the face of undertakings by applicants not to sue

the informant. But the particular use that we seek

to make of this discussion is to show that it is wrong

to say, as Mr Justice Hunt said, that it has always

been fundamental to the application of the newspaper

rule that the rights against the newspaper are

coextensive with the rights against the informant.

It is that point.

GAUDRON J:	Thank you, yes, I understand.
MR GLEESON:	The point is made again in an amusingly expressed

judgment in HARLE V CATHERALL, (1866) 14 TLR 801-, _

where again it is shown that early on this difference
was recognized, or this discrepancy, if I can use that

expression, was recognized. If I could hand up copies
of that. Baron Martin, on page 801, dealing with the

conduct of an editor, said:

The first question was whether the correspondence

which appeared in the paper was a libel at all -

and that is for the jury. Then he dealt with that
matter.	Then he said, further down the page, towards

the middle:

A libel had been defined to be a publication

without justification or lawful excuse, which

was calculated to injured -

and refers to that definition and talked about what-

the jury had to do that, and then said:

Now they must ask themselves whether such

statements as were contained in that letter

were injuries to a public man. His impression

was that the document was a libellous one;

but the defence was that the paper containing

the letter was a privileged publication; and

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that if a person put himself forward as

a public man for a public office, every one

had a right to comment on the man's fitness

for the office which he held; and that so

long as the critic confined himself to comments

on the man's fitness or unfitness for office,

the coments were not actionable, and the

publication containing them was excusable from

action. The real case was whether the

Hexham Courant was a publication of that

character or not. He knew no limit himself

to comments on a man who claimed a public
office, except it were malice. If a person

thought fit to publish what he knew to be false

in regard to a man, then the privilege of comment

in a journal ceased to protect him and he

became responsible for what he published.

There was, however, in this case some difficulty,

but he was not aware that the difficult point

had been directly raised. If this action had

been brought against the writer of the letter
of March 21, and it had been proved that the
paving and draining of the plaintiff's
premises had not been done at the public expense,
then he (the learned judge) should have had no

doubt from the evidence of that being a

malicious statement, and it would take away

the cha~acter of privilege ..... But the action had

been brought against three gentlemen whom they

did not know were cognisant of the question.

Mr Catherall did not know Mr Harle nor his

concerns -

and he deals with the facts -

It struck him (the learned judge) that if a

newspaper editor or proprietor published a document

which contained a false statement of a particular

fact in regard to a person mentioned in the document,

and if it turned out that the statement was false,

and that it was published without taking any pains	to establish its truth, that would be a malicious
publication.

(Continued on page 57)

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MR GLEESON (continuing):

Therefore, he told him that it seemed to him that if a fact was published in a newspaper

and the editor took no pains to ascertain

its truth, the jury must decide on its nature

when submitted to them. If a man thought

fit to bring an action for libel against

the proprietor of a newspaper, no blame attached

to him; and again, when a man went to an

editor to ask for the name of an anonymous
correspondent, no blame attached to the editor
for refusing to give the name. Indeed, an

editor would almost be made to do so.

So, it has long been recognized that the right

against a newspaper is not coextensive with the

right against an informant and we submit that

the fact that a plaintiff's motive is to identify

a source who might be malicious whereas the newspaper

is not, has been consisently rejected as a reason

for departing from the newspaper rule. Could

I give Your Honours a reference to GEORGIUS V

THE VICE CHANCELLOR AND DELEGATES OF THE PRESS

OF OXFORD UNIVERSITY, (1949) 1 KB 729 at 733.

Mr Justice Hunt cited this passage as supporting

his views, if I could just read the passage.

Perhaps I should go back to the headnote:

In an action for damages for an alleged libel,

contained in the preface to Crockford's Clerical

Directory, an annual publication, the defence

was that of fair comment contained in the

"rolled-up" plea. The plaintiff applied

for leave to administer the following

interrogatory to the defendants: "From whom

did you obtain the information?" The master

and, then, the judge in chambers refused

leave.

Lord Justice Denning, at the bottom of page 732,

said: 

There is a rule of practice in these courts that such an interrogatory is not

allowed in the case of newspapers, except

in special circumstances. That is a rule

of practice which has become so well

established that this court might interfere,

if it were not observed. Apart from the
case of newspapers, there is no rule of

practice either way. There is no rule that

such an interrogatory should be allowed,

or, conversely, should not be allowed. It

is a matter for the discretion of the judge.

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Then he deals with what had happened in the present

case:

The only ground on which the court could

interfere would be if there was some manifest
injustice caused by the way in which the

judge exercised his discretion. Speaking

for myself, looking at this case apart

altogether from any rule of practice as to

newspapers, I see no injustice whatsoever

in what the judge has done. The defendants

have to prove the facts stated to be true,

and the comment to be fair. If the comment

objectively considered, is fair comment,

that is if it is fair when considered without

regard to the name of the informant, what

is the plaintiff's real object in administering

this interrogatory? He seeks tor.rove the

comment to be unfair by saying:  'Well, although

objectively considered it is fair, I want
to find out the name of the contributor so
as to show that he personally may have been

actuated by malice, because he may have had

some personal spite a~ainst me." I see no

reason why the plaintiff should be assisted

in doing that. If the facts are true and

the comment, objectively considered, is fair,

he has not much to complain about. His only

other object in administering the interrogatory
would be to find out the name of the contributor

so as to sue him also. But that is not necessary in order to do justice. If he has been libelled,

his remedy against the publishers should

be sufficient.

DEANE J: Mr Gleeson, is there anything in any of these

cases which deals with the question whether the

refusal of a newspaper to let somebody it has

defamed know the source of its information, goes

to damages?

MR GLEESON:  I will take some advice on that, Your Honour.

Mr Nicholas says that there is nothing in the cases that would suggest that that would go to

damages.

(Continued on page 59)

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DEANE J:	One would think it should.
MR GLEESON:	Perhaps we can look at that over the luncheon

adjournment.

DEANE J:  If the newspaper publishes the allegation and then

prevents the person that it has defamed from

challenging the truth of the source, as it were, I

would have thought it was highly relevant.

MR GLEESON:  Your Honour, we would submit that it would be odd

if there is a rule of public policy of sufficient strength to produce the consequence that litigants in defamation cases cannot obtain relevant information

at the stage of discovery and interrogatories on

grounds of public policy, if that public policy

exists it - - -

DEANE J:  No, that is not it. It is that the courts will not

order. There is no rule of public policy that stops

a newspaper that has defamed somebody from telling the

person defamed who it is that is responsible for it.

MR GLEESON:  I take Your Honour's point. Your Honours will

find a discussion in Mr Justice Hunt's judgment that

I have not thought it necessary to go to, of an

interesting and difficult question as to how these

rules apply where the sources are not confidential.

One of the interesting features about the newspaper

rule is that it is not limited to cases where the

source is confidential.

GAUDRON J:  Whilst you are interrupted, Mr Gleeson, could I

take you back to your statement that the rule

operates to prevent disclosure of relevant information.

Now, I would have thought that the passage in

GEORGIUS, to which you have just taken us, was, in essence, a statement that the question of the

identity of the authorities was irrelevant to the

''rolled-up"· plea, that being a plea of truth and fair

c01mnent.

MR GLEESON:	Yes, I accept that.
GAUDRON J:	Now, you have earlier told us that it was the existence of a plea of fair co1l1Illent or - as I understood
you, and perhaps I understood you incorrectly - or of
qualified privilege that made the question of the
identity of the informant relevant.  Now, I am
wondering how it is, in the light of the passage to
which you have just taken us, that the plea of fair
co1l1Illent makes it relevant, and I am ~dering also - and
it perhaps is just an indication of my lack of
familiarity with the area - how it is that the defence
of qualified privilege makes the identity of the informsnt relevant. For my part, I do not imrediately see that those defences do make
that ma.terial relevant to the conduct of the libel litigation in mich the application for discovery or interrogatories is made.
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MR GLEESON: If I could give a partial answer to Your Honour

now and this will be by no means a complete answer:

in relation to the issue of qualified privilege,

it has been said in commentary on section 22 that

it substitutes reasonableness for the test of duty or reciprocal duty and interest. It may be that -

and, of course, information which is reported in

a newspaper may not, on its face, come from any

particular source at all although one presumes

that much of what appears in a newspaper comes

from some source. It might be editorial comment

or other matter.

It is suggested to me that the precise answer

to Your Honour's question is dealt with in the

judgment of Lord Justice Banks in LYLE-SAMUEL V

ODHAMS LIMITED, (1920) 1 KB 135, at page 140.

In the second paragraph it is said:

It is well established that in an action

of libel against an individual - apart from
any question of a newspaper - who pleads

fair comment, it is permissible to interrogate

him on both those matters -

and those matters are references back to the first

paragraph -

for the purpose of ascertaining whether or not his comment was justifiable or whether

he may not have been actuated by malice.

And malice would also defeat a defence of qualified

privilege.

That is the general rule. But it is also

well-established, at any rate so far as this

Court is concerned, that there is an exception

to that rule in the case of newspapers.

(Continued on page 61)

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GAUDRON J: Well, thank you, for that. But, in so far as

that passage suggests that you may resort to the

identity of the informants on a question of

justifiability of the comment, I simply do not

understand that. Firstly, that seems to be at

odds with what you have read to us from GEORGIUS.

Secondly, it has never been a question, so far as

I understand it, whether a comment is justifiable.

The question in relation to comment is whether it

is fair. The question of whether it is fair is

whether it is an opinion that could be held on

the basis of facts stated in the article, or on

the basis of facts notorious to the readers of the

article. I just simply do not see that that comment

has any real meaning.

As to malice, it may be relevant to establish

malice, I suppose. But the question of malice was

really whether the opinion was held, I think.

MR GLEESON:	Your Honour, the newspaper rule would have no work to do at all and would be non-existent if
there were no circumstances in a defamation against
a newspaper in which questions of information and sources were not relevant, because by hypothesis one may only have discovery and interrogatories upon
relevant matters.

GAUDRON J: Yes, I accept that. That is why I had wondered

about the rule itself. What precisely in defamation

matters is the identity of informants relevant to?
It seems to me that it may be relevant from the
plaintiff's prospective - and you have got to look at
it from the plaintiff's prospective - to negative
absence of malice, to establish malice. I am not
too sure where the onus is now said to lie in

relation to malice.

(Continued on page 62)

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MR GLEESON:  There is no doubt that it is at least relevant

to section.

GAUDRON J:	Yes, but that is a fairly new development in the law of defamation. I am going back to the
origins. If it is only relevant on the question
of malice in terms of defamation actions prior to the statutory defence now adverted to, then did the rule actually have any affect other than
to say: "You really do not need that information
at the present time." If you could ascertain it all
in cross-examination you achieve all that you would
need in terms of the proper conduct of your case.
MR GLEESON:	But, Your Honour, the newspapers never give

any undertaking to call the journalist.

GAUDRON J:	No, but then the newspapers may not establish their defence if there is - - -
MR GLEESON:	Yes, but one assumes there is a defence to which

this is relevant. Unless there is a defence - - -

GAUDRON J: Yes, well, I am wondering if there is any defence

at all to which it is relevant. I can understand

that it may be relevant on the question of malice,

goodwill or the like, but I am just wondering how

it becomes relevant to a defence.

MR GLEESON:  I may have to make a more complete answer to

Your Honour later but our proposition is, simply,

that all of these cases have proceeded upon the

basis that the interrogatories sought to be

administered were relevant. If it were otherwise

there would be no occasion to apply any newspaper

rule at all and the reason for my reference to

the word "relevance" is simply to underline the

force of the newspaper rule which is that it is

a rule whic~ where it operates, operates to deprive

plaintiffs of information that may be important

and relevant to them and that can only be because

the courts do that in recognition of what they

regard as some public policy. Evidently they have

said so in a situation where they are compromising

or dealing with competing considerations.

Now, Your Honours, if I may summarize what

we say about the judgments, or about what occurred

in the present case. We emphasize, what I have

called, the bareness of the facts in the present

case and we submit that the newspaper rule applies

to applications made under Part 3 in relation to

a complaint of defamation.

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MR GLEESON (continuing): That is to say, the newspaper rule

applies in cases where the applicant claims to

have been defamed and the action he desires to

bring is an action for defamation.

Our primary submission is that in such cases the newspaper rule is a rule of law and is absolute.

Alternatively, we submit that if it is a rule

that is subject to a qualification expressed in

terms of special circumstances the facts, as put
before the judge in the present case, came nowhere

near establishing the sort of special circumstances

that are speculated about as being possible

qualifications to the newspaper rule.

Even if all the foregoing propositions are rejecced, we submit that on the bare facts of

a case such as the present, there is no sufficient

justification for requiring a newspaper to disclose

what were agreed for the purposes of the argument

to be confidential sources of information.

Those are our submissions.

MASON CJ: Thank you, Mr Gleeson. Yes, Mr Hughes?

MR HUGHES: First of all, Your Honours, may I hand up our

outline.

MASON CJ:  Yes. We might adjourn now and resume at 2 o'clock

and we will take the opportunity of reading your

outline in the meantime.

AT 12.44 PM LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2.03 PM:

MASON CJ:	Yes, Mr Hughes.
MR HUGHES:	Your Honours, as will appear from the first and

second paragraphs of our outline, we meet or

endeavour to meet head on the proposition which

is central to my learned friend's argument in this

appeal, the proposition, that is, that the

newspaper rule ought to be translated and embedded

in Part 3. May I, first of all, say something
about Part 3: as it appears in the rules at the
present time, it is not in its original form.

In its original form, there was a requirement which

is noted at the head of the note to rule 3 in the practice

book, there was a requirement that the applicant

for an order under Part 3 had to disclose a prima

facie case for relief.

That requirement was, as Your Honours will

see from the present form of the rule, eliminated

and it was eliminated following a decision of

Master Cantor in 1976 to which I will simply give

Your Honours a reference without reading it and the case was TAYLOR V OBSORNE, (1973) NSWLR 52.

If Your Honours wish to see the rule in its

pristine form, it is set out in Mastor Cantor's

judgment and I have copies of that case to hand

up - I will merely hand them up, I will not read

from the judgment.

I should also, perhaps, at the outset, refer

Your Honours to the expressed aspirations of the framers of Part 3. It was the child of the seventh report of the Law Reform Commission of New South

Wales which is on our list of authorities and we would suggest that it is legitimate to look at

the relevant part of that report which is at

page 19, of course permitted under section 34 of

the INTERPRETATION ACT of 1987 of New South Wales. (Continued on page 65)

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MR HUGHES (continuing): The Law Reform Conunission had this

to say at page 19:

This Part is new. It would introduce

a sununary procedure for what might have
formerly been obtained by suit for discovery.

See, for example, ORR V DIAPER, (1876) 4 Ch D 92).

This is not to say that we envisage that the

scope of Part 3 will be limited to the present

scope of a suit for discovery:  we should expect

that Part 3 will stand on its own feet and will

not be construed in the light of the old law of
discovery.

Nor, we would add, Your Honours, in the light of the newspaper rule. I will not read the rest but simply ask Your Honours to consider it if Your Honours may

find it useful.

It is necessary, in our submission, to understand

the very limited ambit of the newspaper rule. It is a

rule that grew up in rather curious circumstances and

with differing and shifting attempts to rationalize it

in the very restricted field of pre-.trial discovery,

including interrogatories, in a pending libel action.

It was never more than a rule of practice. The

clearest expression of the view or views that it was

no more than a rule of practice is to be found in

McGUINNESS' case, in this Court, where all the

learned Justices said that it was a rule of practice.

First of all, the judgment of Sir John Latham at

page 85, referring to the cases, said:

They establish only a general rule of practice

in relation to such matters.

Sir George Rich, at page 87, says, just below the

middle of the page:

It is true that in the process of interrogatories

and discovery of documents before the trial of an

action of libel, courts of common law have

exercised a statutory discretion as to what they

shall allow by refusing -

and so on.

(Continued on page 66)

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MR HUGHES (continuing):  So Sir George Rich put it on the

basis of a statutory discretion, presumably under

the Rules of the Supreme Court of Judicature.

Sir Hayden Starke refers to it at page 92 as

a rule of practice in the Kings Bench division.

Sir Owen Dixon refers to it as a practice at page 104,

and Sir Edward McTiernan at page 107 refers to it

in like terms - "it is a rule of practice",

His Honour said.

So, given that it is a rule that grew up and was applied in relation to what was essentially a

matter of practice and procedure, given that it is

no more than a discretionary rule, it is not possible
now, in the light of what was said in McGUINNESS

particularly, to elevate this rule of practice into

a rule of law. Now, the next thing I should

mention, and it is perhaps appropriate to do so in

the context of the first two submissions in our

outline, is that it is wholly inappropriate, in our

respectful submission, to invoke a couple of lines from

the reasons for judgment of His Honour Mr Justice Woodhouse

in the Court of Appeal in New Zealand, a couple of lines
in which, picking up a thread of thought expressed by

Lord Denning, His Honour said that a prospective

plaintiff should not be allowed to delve around for

another target.

To attempt to apply that proposition in this

area of discourse is to ignore the elementary fact

that this rule in Part 3 has been propounded so as

to enable, and for the purposes of enabling, a

prospective plaintiff to delve aroun~ the rule gives

the prospective plaintiff a spade. Next I should

say something briefly about my learned friend's

assertion that the prospective plaintiff here, the

respondent, came to the supreme court with a cupboard

that was, in the evidentiary sense, somewhat bare.

It was not as bare, we submit, Your Honours, as all

that, and if taunts are to be made, however politely,

about the alleged bareness of our cupboard, one could

respond in kind by pointing to the rather curious	feature of the present appellant 1 s presentation
of their case in the supreme court before
Mr Justice Hunt where they did not condescend to
tell His Honour whether they were going to use, or
attempt to use, or raise, a defence under section 22
of the DEFAMATION ACT.

(Continued on page 67)

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MR HUGHES (continuing):  My learned friend has, as indeed

he needs must, criticized Mr Justice Hunt's judgment

on the basis that he injected into this case the

concept of necessity, the test of necessity. That

criticism, with very great respect, might be thought

to lie somewhat easily in the mouth of a party who

raised that very proposition in aid of their own

case. The respondents did that, as will appear

from Mr Justice Hunt's listing of the several

submissions advanced in opposition at first instance

to. the making of an order. That is at page 25 of

the appeal book, and the proposition is proposition (c).

So, if it be right to say that Mr Justice Hunt went

off on a false trail, one knows from his judgment at

least who laid the trail.

Now, as to the allegedly bare facts, the

first striking thing about this case, Your Honours,

is the nature of the article itself. Your Honours

may not have observed that at page 7 of the appeal

book what appears at first sight to be something which is composite and on one page,was in truth

published, set out on two pages of the newspaper.

The left-hand column on the page is that which

was published - I think I am right in saying - on

the front page of the newspaper. Those responsible

for editing this newspaper no doubt thought it was

appropriate to use one of the a·rts or artif.ices
appertaining to investigative journalism, namely,

to titillate the readers by giving a front page

lead-in to the main article which appears in one

of the later pages. It is a very striking piece

of titillation. It is striking, at least in this

respect, Your Honours, that it lifts the veil

of disclosure to a degree by referring, no doubt

for the purpose - and we do not suggest at this

stage because we cannot suggest at this stage that

it was an illegitimate purpose - of giving an

air of authenticity to what was said in the article.

(Continued on page 68)

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MR HUGHES (continuing):  And they go so far as to give a

partial description of their sources but there

apparently the veil drops and the sources are

described, as Your Honours will see, in terms

calculated, in the sense of likely and, perhaps,

also in the sense of intende~ to give readers the

impression that these sources are authentic.

And then there is another factor, which is

one element in the evidentiary cupboard and that

is the extremely grave nature of the libel on its

face. My learned friends can rest assured that

our complaint is not merely that Mr Cojuangco was

wasteful with money but, as one of Your Honours

said this morning, our basic complaint is that

it says that he is a grafter and a corrupter and has misappropriated public money. So that is an

element in the situation. And the~ my learned

friend made no express reference to this, it is
perhaps relevant we suggest to bear in mind that

in his judgment Mr Justice Hunt itemized the

several concessions that were made. His Honour

did that at page 22, line 7. His Honour says:

It is conceded by the respondents that the

applicant has established:
(1) that he has a cause of action in defamation
against those persons who gave information

to Mr Hastings, at least sufficiently so to

make it proper - other issues to one side -

that preliminary discovery should be ordered
in the interests of justice.

That is a very large concession and, in our submission, it is, once one appreciates the limited

nature of the newspaper rule, a concession that

should be decisive in this case. The next concession

is that we had "made reasonable inquiries"; the

third was that we had been unable to ascertain

the identity of these informants; the fourth, that: that the respondents -

as obviously is the case -

have knowledge of facts which will identify

those persons -

and the fifth, that they will not disclose the

sources "without an order for preliminary discovery".

(Continued on page 69)

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MR HUGHES (continuing): Another feature in the case which

any court would be entitled to take into account

in forming a judgment as to what is the exercise

under Part 3, is that the respondents relied for	of a sound discretionary judgment in an application
the claim of confidentiality upon a statement
to that effect in a letter that they wrote to
my instructing solicitors. As we have pointed
out, and I do not want to go over the ground
unnecessarily, in one of the paragraphs of our
outline, any responsible journalist carrying in
his head the sort of information that is requisite for him to ply, to practice his profession competently
would know in this day and age that the law gives
journalists no absolute immunity against the
disclosure of their sources. At best it is a
qualified immunity. It would have been interesting
to say the least, Your Honours may think, if the
journalist, the associate editor, Mr Peter Hastings,
the author of this article, had without naming his source chosen, as he could have, to tell the court whether he gave any and if so what assurance of confidentiality and if he did, whether it was
a qualified one or not.

It is with a consideration like that in mind

that I was tempted to say a few moments ago that
the taunt about a bare evidentiary cupboard can

be thrown at the other side in this case perhaps

with more certain aim than any attempt to throw

it in the opposite direction.

The other additional facts which, perhaps,

mesh in with the gravity of the libel, are facts

to which I think Your Honour Mr Justice Deane

referred this morning. There is evidence in the

case that the plaintiff is a prominent citizen

of the Philippines - he certainly was at the time

when the libel was published, he held an

ambassadorial rank - and there is further the

fact which my learned friend appeared to take

some pains to down play in an early part of his

submissions, the fact that the learned primary judge made a specific finding of fact, which I

think is at page 25, that the appellant's present

intention was to sue the journalist's informants

in the supreme court.

When one puts all those facts alongside the

reticence of the defendants in this case, on the

points which I have mentioned, it cannot be said

that this was a case which was short of relevant

facts, and probably was long on facts in the sense that

at a stage such as was reached before Mr Justice Hunt, just

about everything was put before the C)urt that in a practical
sense could be put before the court, bearing upon the

appropriateness of making an order under Part 3.

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MR HUGHES (continuing): As I said at the outset of my

submissions to Your Honours, the centre-piece,
the corner-stone of my learned friend's argument

in this appeal is the proposition that one must

translate the newspaper rule and embed it into

Part 3. We would simply say that the more

appropriate approach to the relationship, if any,

between the newspaper rule and Part 3 is an approach

which runs along this line: first of all, one
sees that Part 3 provided at the time when it was

brought into the rule book what, for New South

Wales, was a novel remedy, a new remedy; the second

step, we suggest, is that one sees that it was

a remedy expressed in general terms nd, therefore,

one would deduce that it was intended to confer

a plenary discretionary power.

If the framers of the rules had wished to

import the newspaper rule as a fixed element into
the administration of Part 3, surely they would

have said so rather than leave it to a process

of, really, no more than speculative inference.

But as for the newspaper rule itself, Your Honours,

a brief survey of its history will show that it
rests on foundations that can at best be described

as no more than shaky. My learned friends have given Your Honours a reference to the cases and

I will not take up the time of the Court by doing

any more by way of analysis of them than to

endeavour to distil or outline the steps, and

the progress, if one can call it progress, of the

administration of the rule.

First of all, it seems to have been propounded,

as one would gather from HENNESSY V WRIGHT, on

the ground that to require discovery or interrogatories

to be given or answered respectively in a pending

action was to embark into a field of irrelevance.

That view did not seem to obtain for long and it

is not difficult to perceive why it did not obtain

for long. It came to be perceived that, for example,

interrogatories designed to elicit the identity

of the source of the newspaper story could go to

malice for the purposes of defeating a defence

of qualified privilege or, more importantly, in

the case of newspapers, because qualified privilege

in those days before one had statutory qualified

privilege was virtually never available; probably

the only exception was ADAM V WARD, the case of the person attacked in the House of Commons who responded by making a speech outside.

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MR HUGHES (continuing):  So, it was perceived that the sort

of information sought to be elicited by the

interrogatories as to a source was relevant or

could be relevant on the pleadings and then the

next development seems to have been, "Oh well, if

it is relevant, we will not allow these
interrogatories as a matter of discretion because

to do so might upset the sources and the free flow of information will dry up". Well, as Your Honour

Justice Gaudron pointed out this morning - and

Your Honour was really foreshadowing something we

tried to say in our outline - there is a paradox

in that. It seems paradoxical and incongruous for

someone to invoke, as a protection, the idea that

the free flow of information must remain undisturbed

when, in a case like this, they go to the brink of

describing therature of the sources and will not

allow the information to flow any further unless

the Court orders them so. That seems paradoxical,

in our submission.

That there was disquiet and unease, Your Honours,

about the appropriateness of administering this rule or

continuing to administer it, is demonstrated very

vividly in the judgment of Lord Justice Scrutton

in LYLE-SAMUEL V ODHAMS, (1921) 1 KB 135. It is on my learned friend's list and I think it is on

ours. To save time, I will not read the passage

which starts at page 143 and continues to the end

of a very short judgment but the learned Lord

Justice demonstrated succinctly just why

interrogatories designed to obtain identification

of an informant were relevant in cases where fair

comment or privilege were pleaded and went on to

say that the newspaper rule, in effect, has no

logical foundation and that he applied it, feeling

himself bound by the previous decisions, whatever

his view might have been had he approached the

question unfettered by authority. So, there is

an expression of disquiet by a very great judge. (Continued on page 72)

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MR HUGHES (continuing):  The importance of McGUINNESS' case

in this area of discourse is so obvious, in my

respectful submission, as not to need exemplification,
except to say this: that it is a case in which this

Court was asked to translate the newspaper rule and

elevate it to the status of a principle of journalistic

immunity and,without any hesitation,unanimously

declined to do so.

My learned friend, in the main part of his

argument, is asking this Court now to embody, or

to elevate, the newspaper rule in a foreign

environment - in a new and foreign environment,

to the status of a rule of law. Both principle

and authority are against doing that.

Much has been said by my learned friend,

in his submissions, about the error that he

attributes to Mr Justice Hunt, the error being

His Honour's search for an answer to the question by speculative means, whether it was necessary

in the interests of justice to make an order under

Part 3. Facing Your Honours -as respondents are

wont to do from time to time,-with our feet as

firmly as possible on the ground and looking two

ways at the same time, we seek to hold the order

made in the Court below by alternative approaches.

First, that His Honour and the Court of Appeal were

correct in the view to which they came, that it was

in a practical sense necessary in the interests of

justice that we should have the names of these

informants because both those courts, doing the

best they could with such information as was

available to them, and being in a practical sense

all the information that could be available, were
entitled to take the view that it was likely in

the sense that there was a real chance - and that

is the legitimate meaning of "likely" in this area

of discourse - that if the newspaper and Mr Hastings

raised a defence under section 22, that defence

would prevail.	I do not want to add to what I
have said in our outiine.
Both courts below were entitled to take the

view: here was a respectable newspaper publishing

this article, written by its associate editor. It

was not to be assumed, and it would be unfair to

assume, that what was said about sources, and what

was said in the article,was just a figment of

Mr Hastings' imagination.

(Continued on page 73)

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MR HUGHES (continuing):  And that was a factor which was

subliminally, at least, entitled to be considered

by both courts below in deciding whether it was

appropriate to exercise the power conferred by

Part 3. As I say, it would have been very unfair

to take any other view - at this stage of the case,

I add. Things may turn out differently in another

environment when the action is on the way and fought

out but that is for another day.

Now, if the newspaper had said, as it was

fully entitled to do because it raised this concept
of "necessary in the interests of justice" - if

the newspaper had said, "Forget section 22, we

are not going to raise it", that would have provided,

we said in our outline, a probably impregnable

answer to an application for an order under Part 3.

Maybe "probably" is going too far. If so, it was

a possibly impregnable answer to a claim under

Part 3. I made a brief submission as to what we

say "likely" means in this context; as to that

we rely, gratefully and respectfully, on what

Mr Justice Mahoney had to say in the Court of Appeal at pages 82 to 86 of the appeal book.

I mentioned the criticism made by

Lord Justice Scrutton when His Lordship, regretfully,

applied the newspaper rule in LYLE-SAMUEL V ODHAMS PRESS;

there is an interesting footnote in the second

edition of Spencer Bower's book on Actionable Defamation,

which is on our list, and the footnote is at page 413

and the author said:

It should be noted here that, notwithstanding

the firm refusal of the Courts to recognize

any distinction in principle between a defaming

journalist and any other defamer, an utterly

illogical practice -

and he italicizes the word "practice" -

in favour of newspapers had been allowed to

crystallize into a positive rule of the K.B.D.

..... the rule -

that in the absence of special circumstances,

a newspaper proprietor cannot be compelled

to disclose the names of his informants in

a case where any other defamer would be

compellable to do so. This practice rule

was countenanced, for no assigned, or assignable,

reason by the C.A. in HENNESSY V WRIGHT -

and two other cases cited -

and, in a still more recent case, LYLE-SAMUEL V OLDHAMS LTD,

(1920) 1 K.B. 135, the C.A. has reluctantly professed

itself unable to disestablish it after its thirty years

existence.

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MR HUGHES (continuing):  Your Honours, in another environment

where a fresher look can be taken, with respect,

we say that it is time to disestablish the rule

anyway.

MASON CJ: Notwithstanding its acceptance by this Court in

McGUINNESS?

MR HUGHES:	As a rule of practice, but it is not necessary for our argument to go that far. It would be my submission, in response to Your Honour
the Chief Justice, that in McGUINNESS' case the
Court was not giving a judicial blessing to the
newspaper rule; it had to deal with the rule because
it was the foundation of the attempt to elevate
it into a rule of law but it would be fair to say,
in my respectful submission, that nowhere in the
judgments does one find an express approval of
the newspaper rule, nothing more than an acceptance of its existence as being the foundation upon which the forensic attempt was made to lift Mr McGuinness' case to the required level.

Your Honours, the other matters we wish to

say which relate to the notice of contention have

really been said in our outline, in paragraphs 8,

9 and 10, and we would say that in the context

of this novel rule, the rule of a kind that has

not fallen to be considered on the level of an

ultimate Court of Appeal hitherto, it is inappropriate

to confine the operation of the rule within narrow
confines of either an absolute or a discretionary

kind founded upon the rule that has grown up in

other surroundings in a very narrow and limited

field. And at the end of the day the appropriate

approach for a court which is asked to make an

order or consider making an order under Part 3

is to say whether, in all the circumstances, it
is just that an order be made. And one of the

most important circumstances, we would submit,

is one that I have not yet mentioned but was mentioned

in the course of discussion this morning and that

is that a plaintiff who is grievously defamed or defamed at all, as a result of the republication

in hearsay form of material given to the publisher

by other parties, is entitled to seek his vindication

against any of the wrongdoers concerned.

(Continued on page 75)

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MR HUGHES (continuing): In that connection, we would give

Your Honours a reference to the judgment of

Sir Victor Windeyer in UREN V JOHN FAIRFAX,

(1965-1966) 117 CLR 111 at page 151. At that

page, His Honour analysed what a claim for damages

for defamation is essentially all about from the

plaintiff's viewpoint. His Honour said this,

down towards the bottom of the page:

First, the satisfaction that the plaintiff

gets is that the defendant has been made

to pay for what he did. Guineas got from

the defendant jingle more pleasantly than

would those given by a sympathetic friend.

Or, one might add, by a non-malicious newspaper

publisher. The only other consideration I would

ask the Court to bear in mind is this: discovery

and interrogatories in aid of ascertaining the

identity of an informant of a source for the purpose
of cormnencing proceedings against that source, if

identified in the process of discovery, would be

a wholly improper use of the weapon of discovery.

It is elementary that one cannot invoke the

processes of discovery for the purpose of using

the information you get on discovery in the action

as a foundation for bringing another action.

(Continued on page 76)

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MR HUGHES (continuing):  So that in comparing the newspaper

rule with Part 3 one is comparing two things

that are essentially unalike and that is perhaps

an important distinguishing feature. Here the

rule-makers, probably perceiving that because of the

proper limitations .upon the use of information

obtained under discovery processes, will prevent

the plaintiff from reaching his ultimate target,

have propounded Part 3, and it would be, one would

venture to submit, anomolous if, at the end of the

day, after bringing an action against the newspaper,

and Mr Hastings, and going to a hearing, we could

probably find out,if the defendants go into evidence,

who the sources were and then connnence an action,
because there is nothing to stop us raising an

action on the basis of evidence given in open court.

We are, nevertheless, to be precluded by the

imbedding of the newspaper rule in Part 3, from

finding out the relevant information at a time which

will enable Mr Cojuangco, or those advising him, to make a sensible choice whether to sue the newspaper

and Mr Hastings alone, or the informants as well,
and the latter course, of course, is what the learned

primary judge has found that the prospective plaintiff,

Mr Cojuangco, wants to do. So that by construing

Part 3 in the sense that it gives a plenary and

unfettered discretion, unfettered in the sense that

it is confined by no imposition of the newspaper rule,

one is, we would submit, reaching a connnon sense

solution which is more apt to lead to justice being

done in individual cases than any arbitrary

importation of the newspaper rule in Part 3. Those

are the submissions we wish to put to the Court.

GAUDRON J:  Could I ask you a question, Mr Hughes?

Is it relevant in terms of a general discretion to take into account that you are looking at, on its face, a situation in which the informants are probably not residents of Australia, would be amenable to the jurisdiction presumably, or in the

general run of events, in the exercise of a

discretionary jurisdiction and that there may be

special - it may be that they are not even amenable,

that they have not connnitted any civil wrong, for

example, in the Philippines? Is it not relevant to

have regard to those matters in discretion, although,

of course, I acknowledgethat they have not formed any

real part of this case to date.

(Continued on page 77)

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MR HUGHES:  In our respectful submission, it would be wrong

to take those matters into account for these

reasons. First, the question is whether the

informants, if they can be uncovered, have

co!Illllitted a tort, the tort of defamation within

the jurisdiction of the Supreme Court of

New South Wales. That they have done if liability can be sheeted home to them as republishers of the

article in the Sydney Morning Herald.

Mr Justice Hunt has dealt in detail with that point

and we would not wish to depart, in any respect,

in our argument from what His Honour has said.

His Honour has correctly stated the principle of

liability of a republisher, relying on old cases

such as SPATE V GOSNEY. His judgment on that point

is not challenged by the appellants and, as to the

second point, the fact, if it be a fact, that these

informants may have conmi.tted no tort under Philippine

law is irrelevant to the question whether they have
co!Illllitted a tort under New South Wales law.

Thirdly, we would say that there is no problem about service out of the jurisdiction upon these

informants if action is brought against them because

the rules of court expressly - it is Part 10, I

think - - -

GAUDRON J: That is on the assumption of a tort co!Illllitted in

New South Wales.

MR HUGHES:	Yes, a tort conmtltted in New South Wales but if it can be shown that they imparted - yes, indeed, they
are out of the jurisdiction but the evidence, for the purposes of getting leave to serve out of the jurisdiction, discloses the co!Illllission of a tort in
New South Wales by republication. In other words,
by imparting the information to Mr Hastings in the
presumed knowledge that what was imparted would be
republished by the journalist in some newspaper,
as the newspaper and Mr Hastings, for that publication.
they are making themselves liable to the same extent
I hope that deals with Your Honour's question.

GAUDRON J: Yes.

(Continued on page 78)

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MR HUGHES:  And the relevant rule is Part 10, rule l(l)(d),

service out may be allowed:

where the proceedings are founded on a tort

committed in the State;

If the Court pleases.

MASON CJ:  Thank you, Mr Hughes. Yes, Mr Gleeson.

MR GLEESON:	Your Honours, could I first deal with two matters raised by Justice Gaudron, one in the course of
my argument in-chief and the one just mentioned
by way of question to my learned friend. The only
thing I would want to add to what Mr Hughes said
by way of response to the question that was asked
of me, that is, how is the identity of sources of information relevant at common law in a defamation
action where there has been a defence of qualified
privilege or fair comment is this: it is common
ground between us and it is recognized in the cases
that it goes to the issue of malice which is
relevant in both of those cases.
In the case of qualified privilege, 1n our submission, it goes even further. Could I seek
to illustrate the point by taking what is often
given as the simplest example of the way in which
a defence of qualified privilege works. Suppose
there is a report made by an auditor to the shareholders of a company and the report says,
"It has been brought to my notice that the directors
have misappropriated moneys of the company." That
sort of thing is usually regarded as a classic
illustration of the operation of the defence of qualified privileg~ based on the notion that the
auditor had a duty to say what he did and that
made it an occasion of qualified privilege because
he had an obligation and what he said did not go beyond the scope of his obligation.

Question: "Who told you that?" That question,

in our respectful submission, would be relevant
to the question - or may be relevant to the question

whether an auditor had a duty to convey the

information. If the source of the information

that the directors had been misappropriating the

company's funds was some disgruntled former employee

who had a well-known grievance against the directors,

that might go to the question whether the auditor

had a duty to convey the information.

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MR GLEESON (continuing); The question "Precisely what did

he tell you?" might also be relevant because that

would enable a comparison to be made between what

was published and what the original information
was. Those questions would go to the issue of

whether the matter was published on an occasion

of qualified privilege. So, it goes beyond

malice, in our respectful submission.

GAUDRON J: 

Thank you.

MR GLEESON: 

The second matter relates to the feature of

the present case that Your Honour raised at the
conclusion of my learned friend's address, and

that is - - -

GAUDRON J: That is only in the context of a general

discretion which Mr Hughes now advances.

MR GLEESON:  Yes, quite. May I say that when it is said

that that issue was not raised in the courts below

by us - that is, the factual circumstances that

Your Honour has mentioned - this is a new point

that my learned friend has taken in his notice of

contention. It was not argued in the courts below.

We are not in a position - I have checked this with

Mr Nicholas - to say to the Court that the case would have been conducted differently in terms of evidence,

and so forth, if this point had been raised below.

So, we take no objection to the notice of contention

being filed.

But, the sort of consideration that Your Honour

mentions might be relevant if there is this general

discretion,and another related consideration,if there

is this general discretion is the following~ because

that aspect of the facts of the present case points

up the practical considerations that underly the

sort of dispute that is here being conducted, and

perhaps even the practical considerations that

underly the newspaper rule, where it does undoubtedly

operate.

in McGUINESS' case what he meant by "considerations Mr Justice Starke did not really explain

of convenience" and one wonders if one of the things that he had in mind was the importance of postponing

as long as possible,in the hope that it might go

away all together, the point of having to force

a journalist to disclose his sources, with all the

consequences that that might have, not only for

the journalist, but the sources.

(Continued on page 80)

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MR GLEESON (continuing): If all that is necessary in order

to obtain an order under Part 3, is for someone

to say, "I want to consider the question of whether

I might sue these people in New South Wales",

it is not irrelevant to bear in mind that our

newspapers contain a good deal of information

about foreign affairs and foreign matters and

it may be that in terms of the flow of information

in this country, if a person can obtain almost

as of course an order from the Supreme Court of

New South Wales requiring identification of sources

of information just by saying, truthfully, "I

want to sue them", or, "consider suing them",

the practical consequences of that might be far

reaching.

The courts are alive to these practicalities.

Lord Justice Donovan in ATTORNEY-GENERAL V MULHOLLAND,

dealt not with the question of the application

of the newspaper rule at the interlocutory stage

but the further question that I mentioned in-chief

of forcing journalists to answer questions even

at the actual trial - and I gave Your Honours

a reference to the way American courts deal with

that problem - courts do try to stall that point

off as long as they possibly can and, in

ATTORNEY-GENERAL V MULHOLLAND, (1963) 2 QB 477,

Lord Justice Donovan added some observations going

to this question of what happens at the actual

trial itself. At page 492, His Lordship said:

I add a few words only about the need for

some residual discretion in the court of

trial in a case where a journalist is asked

in the course of the trial for the source

of his information. While the journalist has no privilege entitling him as of right

to refuse to disclose the source, so I think
the interrogator has no absolute right to

require such disclosure. In the first place

at all; in the second place it ought to

the question has to be relevant to be admissible

be one the answer to which will serve a useful

purpose in relation to the proceedings in

hand - I prefer that expression to the term

"necessary." . Both these matters are for

the consideration and, if need be, the decision

of the judge. And over and above these two

requirements, there may be other considerations,

impossible to define in advance, but arising
out of the infinite variety of fact and

circumstance which a court encounters, which

may lead a judge to conclude that more harm

than good would result from compelling a

dislosure or punishing a refusal to answer.

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MR GLEESON (continuing):  Your Honours, I am not here to try

and establish or make good what is sometimes called

as a pretension to journalists' privilege, or some

kind of privilege from answering questions, but I do

want to point out that there are practical problems

about requiring journalists to disclose their sources

of information to whichixhe courts have been very

sensitive and to which the courts still are sensitive

as a matter of practice, and that is relevant to the

construction of Part 3. As Mr Justice Mahoney

observed in the Court of Appeal, in the end it may be

that this comes down to a question of the

construction of Part 3 of the Supreme Court Rules

and the question of construction of the rules that

arises is whether or not Part 3 is intended to operate

subject to or entirely independently of the newspaper rule, or whether there is some intermediate position.

There are really those three possibilities.

DEANE J:  Mr Gleeson, was Part 3 introduced by an ordinary

rule of court, or is there some legislative direct

basis for it?

MR GLEESON:  We understand it came in with all the rules of

court. I am open to correction on that.

MR HUGHES:	It was originally as a schedule to the Act.
MR GLEESON:	A schedule to the Act, but then it has been

altered. There was originally a schedule to the Act.

DEANE J:  Which means originally it had a direct statutory

basis.

MR GLEESON:	Yes.
DEANE J:	And was not a rule made by the judges of the supreme
court.
MR GLEESON:	That appears to be correct, and then it was amended,

I would understand, by the judges of the supreme court.

DEANE J:  That was what I thought, but I was just looking and I

could not find it.

MR GLEESON:  Yes.

If it is to be approached as a question of the construction of Part 3, and there are those three

possibilities that I mentioned, my learned friend

pointed out that the authors of Part 3 could have
expressly included the newspaper rule, if they had

wanted to make it subject to the newspaper rule, but

we would make the observation in response to that that

you would not assume that the authors of Part 3 were not aware of the existence of the newspaper rule and

when they introduced a general rule on the subject-matter of

discovery and they knew that there -was this rule, whether you call

it a rule of practice or a rule of law, as v.e ,;.;ould have it,

if they had intended to exclude Part 3 they would have

done so.

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MR GLEESON (continuing):  They knew at the time Part 3 was

brought into operation that there was this

long-established, entrenched rule either of practice

or law relating to discovery against newspapers.

And it is difficult to imagine, in our respectful

submission, that they would have intended it to
suffer the same fat~ as has been predicted for

the doctrine of consideration, and go down by a

side wind.

If Part 3 means what my learned friend says

it means, particularly in his new point, then what

has happened is that the newspaper rule has no

practical utility or operation, or very little

practical utility or operation, at all. Any person

can, almost as a matter of course, come and say to the court: "I am entitled to select amongst the possible defendants that I might have in an

action for defamation and I want to choose the

one from whom a verdict will give me the greatest

feeling of satisfaction". And if that approach

is right and that submission is accepted then the

interests of justice would dictate that he be told

the name of the newspaper's source of information

and that is a very, very low standard for somebody

to have to achieve in an application under Part 3.

It is to be borne in mind that there is nothing

in the Rules of the Supreme Court relating to

discovery in interrogatories that mention newspapers

or the newspaper rule. The newspaper rule is enforced

by the Supreme Court of New South Wales in relation

to interlocutory procedures of discovery and

interrogatories in a situation where there is no

mention of it in the rules and if there is no mention

of the newspaper rule in the general rules relating

to discovery in interrogatories and no mention

of the rule in Part 3 as a matter of construction,

in our respectful submission, the more natural

course to pursue would be to treat them all as

subject to the newspaper rule. Now, on the question of whether the newspaper

rule is a rule of practice or a rule of law I should

give Your Honours a particular reference to what

the Lord Chief Justice said in ATTORNEY-GENERAL V CLOUGH,

(1963) 1 QB 773. At page 790, referring to the

matter as one of historical development, and in

a judgment delivered 23 years after McGUINNESS,

the Lord Chief Justice said:

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MR GLEESON (continuing):

It -

that is, the newspaper rule -

has, however, now become, as is pointed out,

not merely a rule of practice but a rule of

law -

And that is the way	the Court of Appeal in
New Zealand approached it too.	They said it is a

matter of historical development so that this is a

rule of practice of the Queen's Bench Division.

MASON CJ: Whereabouts is this, Mr Gleeson?

MR GLEESON:  Page 790.

MASON CJ: Whereabouts on the page?

MR GLEESON:	The third line.
MASON CJ:	The third line, yes, I see.
MR GLEESON:	We are talking about a rule of practice of the

Queen's Bench Di vision and here is the .

Lord Chief Justice saying in 1963, "Our rule has

now become a rule of law". So, it may be that

back in 1940 it was appropriate for the High Court

to regard this as a rule of practice and it is not

inconsistent with that for the Court of Appeal in

New Zealand in 1980 or 1981, or this Court in 1988,

to say that it has become a rule of law.

MASON CJ:  But it has been such a well-entrenched and

long-established rule,whether it is of law or

practice, that, as a matter of construction of

Part 3, in our respectful submission, it is a little

difficult to believe that it was simply ignored by

the framers of Part 3 if it was intended to be

rendered of very little practical utility.

DEANE J: You have probably dealt with this but is the rule,

as you formulate it, restricted to confidential

sources of information?

MR GLEESON:	No, no it is not.
DEANE J:	It would be easier to justify in terms of
Lord Salmon's principles if it were restricted to
confidential sources of information.

MR GLEESON: Subject to this qualification, - Mr Justice Runt

did have an interesting discussion of this - but

subject to this qualification, Your Honour - I do

not know much myself about the way in which journalists

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communicate with people but it is one thing to say

to somebody, "I promise you that what you tell me

will go no further" and that establishes a clear

basis of confidence but people often conrrnunicate

with other people on an understanding that that

is the case.

(Continued on page 85 )

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DEANE J:  But the defendant could still allege that it was

from a source which it regards as confidential.

MR GLEESON:	Yes.
DEANE J:	I mean, assume that Mr Hastings' source of

information was the front page of some newspaper

published in some city in the Philippines, on

what earthly basis can it be said that the plaintiff

should not be entitled to find out?

MR GLEESON:	The attitude the courts seem to have taken - - -
DEANE J:	I might say, that is obviously by the way here in

that the 1e~ter does assert it was given in

confidence.

MR GLEESON: It goes further than that, Your Honour.

DEANE J:	Do not go to it, I have got it here.
MR GLEESON:	On page 29,at line 25,there is an observation

that my learned friend must have overlooked when

he was criticizing us for failing to call evidence

basis that the respondent's claim of confidentiality

from Mr Hastings to make this claim for confidentiality.

has been established.

But, to come back to Your Honour's point,

once one accepts that from time to time newspapers

really do have sources, and that unexpected

consequences might flow if people can easily find
out the identity of those sources, then the

courts seem to have adopted a practical approach of putting off the evil day, in the hope that it

will never come.

DEANE J: Really, all I am putting to you is if the

justification of the rule is the high notions of

why should not a defendant who wants to claim freedom of the press and freedom of information,	advantage of it at least be required to say what
you say your client said on page 13 of the appeal
book in the fourth paragraph of that letter?

"'". .. (Continued on page 86)

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MR GLEESON: I, with respect, accept that but, of course, the

.	other thing that one has to bear in mind in a
case such as the present: it might be argued, why should not an applicant who wants to get the source at least have to put on an affidavit in
which he says, "Those things are not true". There

was not any evidence before Mr Justice Hunt that

anything that appeared in this article was tm.true and if one is to adopt the approach of taking the

article at its face value and assuming that

Mr Hastings is a responsible journalist and made

proper checks of of his informa.t:wn, is it asking too
much to expect that the applicant's solicitor

will put on an affidavit saying, "My instructions

are that this is false".

DEANE J: That really diverts the point my question was

concerned with and that is, it seems to me, if

the rule is stated in terms that apply indifferently

to confidential and completely non-confidential

information, it is harder to justify it by reference

to notions of free speech or what-have-you, and

it becomes far more readily seen as simply a rule

of practice )r convenience or something like

that, as Justice Gaudron suggested earlier.

MR GLEESON:  Yes. Of course, if it is a rule for convenience

one the,1 has to identify what the convenience

is. One of the aspects of the rule that we emphasize

is that which has been pointed out by my learned

friend, Mr Hughes. This rule has been questioned

and the need for the rule and the justification

for the rule has been called in question many

times. People are alive to the practical

implications of it and of departing from it .

Your Honour Mr Justice Mason asked whether the privilege extends to journalists and I do

not think I gave a complete answer to that question.

That matter was specifically considered in the

case of LAWSON V ODHAMS PRESS, (1949) 1 KB 129

and is dealt with at pages 136 and 137.

DEANE J: It is also dealt with in Lord Fraser's speech

in the GRANADA case, as well.

MR GLEESON:  Yes.

(Continued on page 87)

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MR GLEESON (continuing):  I mentioned in-chief what this

Court had said in HOLLINGSWORTH V HEWITT,

13 CLR 20, about cognate legislation and if it

is a question of construction of Part 3 in relation

to my learned friend's point that it does not
expressly exclude the use of the rule. Perhaps

I should take the Court, briefly, to HOLLINGSWORTH

V HEWITT. This was cognate legislation intended

in a more limited way to achieve much the same

result as Part 9 but expressly dealing with the

subject of newspapers and section 11, the relevant

section, is referred to at the bottom of page 20:

"The proprietor of any newspaper may upon

the written request of any person who has

commenced an action in respect of any

defamatory article, letter, report, or writing
in any newspaper, supply to such person
affected thereby the name and address of the
person who supplied such article, letter,

report, or writing to such newspaper and in

default of compliance with such request any

person affected thereby may apply to a Judge

of the Supreme Court who may if he sees fit,

after hearing such proprietor, direct that

such name and address be so supplied."

At least that provided for the proprietor to be
heard which Part 3 does not and then

Chief Justice Griffith, at page 22, said:

That raises a question of considerable interest

and importance which, however, it is not

necessary to determine, as, in my opinion,

the plaintiff's application to the learned

Judge was rightly refused. A plaintiff is

not entitled as of course to be supplied by the proprietor of a newspaper with the name

and address of the writer of an article under

sec 11 of the DEFAMATION (AMENDMENT) ACT.

Some positive reason must be adduced in support

of the application;

And in the Australian Law Journal article

in 9 ALJ that I referred to in-chief, the kind

of reason that was taken as a sufficient reason

is referred to, a newspaper proprietor who is not

worth powder and shot and the case of a malicious

campaign being conducted against a person by somebody

who is going around from newspaper to newspaper

trying to get them to publish things.

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MR GLEESON (continuing): Now, there is not anything in

section 11 that refers to the newspaper rule and

for that matter, there is nothing in

HOLLINGSWORTH V HEWITT or the other cases on

section 11 that actually refer to the newspaper

rule. But section 11 was construed by this Court

as subject to an implicit qualification that is

very much like the newspaper rule and if it is

a question of construction of Part 9 then, in our

respectful submission, what I might call the

wide-open approach for which my learned friend

contends in this Court, which was not the approach

contended for in the courts below, is not appropriate.

I should, Your Honours, put into perspective

our respectful criticism of the necessity test
of Mr Justice Hunt. It is true that the argument

was put as a number of cumulative, or alternative,

arguments before him that there was no necessity

for this order to be made. Our complaint about

Mr Justice Hunt's approach is ·twofoid j first of

all, that he substituted the necessity test for

what we say is the proper test related to the

newspaper rule, what we would call the special

circumstances test; and, second, that accepting

his formulation of the necessity test, the way

he applied in practise, particularly involving

this exercise of speculation as to the likely outcome

of a section 22 defence was inappropriate and

erroneous. Those are our submissions, Your Honour.

MASON CJ:  Thank you, Mr Gleeson. Yes, Mr Hughes.

MR HUGHES:  Could I just say something on my learned friend's

reference, Your Honours, to the ATTORNEY-GENERAL

V CLOUGH. My learned friend cited a statement

by Lord Chief Justice Parker in the third line

of page 790. His Lordship said:

It has, however, now become, as is pointed

out, not merely a rule of practice but a rule

of law.

That can only be a reference, we would suggest,

to a rather bald and unadorned submission in argument

reported at page 783 - just below the top of the page counsel said:

It is conceded that McGUINNESS V

ATTORNEY-GENERAL OF VICTORIA is against the

respondent, but it is submitted that it is

wrong and ought not to be followed.

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MR HUGHES (continuing):  Then going back to the Lord Chief Justice,

Your Honours will notice that in the last complete

paragraph on page 790 His Lordship said:

So far as the legal principle is concerned, I adopt

entirely what was said by the High Court

as recently as 1940, because in Australia

and Ireland, I think, this matter has arisen.

In adopting what was said in McGUINNESS, the learned

Lord Chief Justice might be seen to be saying

something slightly inconsistent with what he said

at the top of the page.

MASON CJ:  Yes. Thank you, Mr Hughes. The Court will

consider its decision in this matter.

AT 3.22 PM THE MATTER WAS ADJOURNED SINE DIE

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