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

C2T2/l/SDL

12/5/88

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)

C2T2/l/SDL

12/5/88

Fairfax(3)
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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading John Fairfax & Sons Limited & Anor v Conjuanco

Details

AGLC: John Fairfax & Sons Limited & Anor v Conjuanco [1988] HCATrans 91
Case: [1988] HCATrans 91
Decision Date

CaseChat Overview and Summary

The case of John Fairfax & Sons Limited & Anor v Conjuanco was heard in the High Court of Australia. The dispute concerned an application made by the respondent, Mr. Conjuanco, for an order requiring the appellant, John Fairfax & Sons Limited, to disclose the identity of the author of an article published in one of its newspapers.

The central legal issue before the High Court was the proper application of rules, specifically Part 3 of the Rules of the Supreme Court of New South Wales, which governs orders for the discovery of the identity of newspaper article authors. The court was required to consider whether a "special circumstances" exception applied to such orders and, if so, what constituted such circumstances, drawing upon historical legislative provisions and case law from both Australia and England.

The court's reasoning, as indicated by the submissions, involved an examination of the historical development of rules allowing for the identification of anonymous authors, including provisions that predated the Defamation Act 1974. The submissions highlighted that while historically courts referred to a "special circumstances" exception, the precise nature of these circumstances remained elusive in case law. The court also considered the procedural aspects, noting that applications under these rules are typically made ex parte, but that in this instance, notice was given due to the perceived importance of the matter, leading to a specific test formulated by the judge of first instance that placed the onus of proof on the respondent.

Orders