Lange v Austraian Broadcasting Corporation

[1996] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S109 of 1996

B e t w e e n -

DAVID RUSSELL LANGE

Applicant

and

AUSTRALIAN BROADCASTING CORPORATION

Respondent

Application for removal pursuant to section 40 of the Judiciary Act 1903

TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 1996, AT 9.32 AM

Copyright in the High Court of Australia

MR G. O’L. REYNOLDS:   May it please the Court, in this application I appear for the applicant.  (instructed by Phillips Fox)

MR M.G. SEXTON:   If the Court pleases, I appear for the respondent.  (instructed by J. O’Sullivan, Australian Broadcasting Corporation)

MR REYNOLDS:   I assume that your Honours are familiar not only with our submissions but also with the relevant portions of the pleadings.

TOOHEY J:   Yes, you may.

MR REYNOLDS:   Your Honours, I submit that this case raises three issues which warrant an order for removal. The first is whether the Constitution by implication provides for a defence to actions for defamation. Secondly, if it does, what is the ambit of that defence and, in particular, does the defence extend to political discussion generally. Thirdly, is the discussion of political matters ipso facto an occasion of qualified privilege at common law.

GAUDRON J:   Do I take it from your first proposition that you wish this Court to depart from what it has held in Theophanous?

MR REYNOLDS:   That is so, your Honour, and I wish to be able to advance a submission that my client should be granted leave to make submissions suggesting that Theophanous should be overruled.

TOOHEY J:   Is that the purpose of the removal?

MR REYNOLDS:   That is, if I might put it this way, your Honour, the central issue that is raised but I respectfully suggest that the other two issues are also important and ought properly be the subject of questions stated for the consideration of the Full Court for this reason, your Honour, that there are obviously two possibilities as to how the Court will determine the matter:  the first is that the Court would affirm the existence of the defence.  If it did, it would then be necessary to consider the ambit of the defence and, in particular, whether it extends to political discussion generally and, further, what the relationship is between the constitutional defence on the one hand and the common law defence on the other.

On the other hand, if the Court rejected the defence and overruled Theophanous, then it would not be necessary obviously to consider the question of ambit but it would still be necessary to consider the question of whether or not the common law defence is as I stated it, for this reason that, as we have said in our submissions, if political discussion of itself is an occasion of qualified privilege at common law, then it is a much easier defence for a defendant to establish than the constitutional defence and, for that matter, far wider for other reasons on one view.

TOOHEY J:   But if an application to reopen Theophanous were rejected, is there any reason why this matter, if removed, would then stay in the High Court?

MR REYNOLDS:   It would all depend how the matter proceeded, your Honour.  Your Honour’s question assumes that there would be an independent application by my client on the issue of whether Theophanous should be reopened.  The other possibility, as your Honour would appreciate, is that an argument could proceed on the basis of, first of all, the application and, second of all, the argument on the substantive matters.  So that it would all really depend upon which way the Court proceeded.

TOOHEY J:   That is perhaps not likely, Mr Reynolds, is it?  At the moment the matter of Levy is before the Court in which an application is on foot for the reconsideration of Theophanous.  Now, are you suggesting that on removal this matter would proceed, as it were, independently of what was happening in Levy?

MR REYNOLDS:   Your Honour, this case raises different issues from Levy and I would respectfully submit that it would be appropriate for the Court to consider both cases together.  The three issues which arise in this case are ‑ ‑ ‑

TOOHEY J:   You mean both cases together on an application for reconsideration of Theophanous?

MR REYNOLDS:   Yes, your Honour, because the essential distinction between these two cases - and we suggest that it is an important distinction ‑ is that Levy involves the invalidating of a regulation. The present case involves a different question, namely whether or not there is a freestanding right or immunity under the Constitution. Now, on one view of things there ‑

GAUDRON J:   Why do you say freestanding? Nobody has ever said there was a freestanding right or immunity. It was said there is an implication to be drawn from the express words of the Constitution.

MR REYNOLDS:   Your Honour, the word “freestanding” is not one of my own or the expression ‑ ‑ ‑

GAUDRON J:   Obviously not.  I ask you why you borrow it. 

MR REYNOLDS:   Your Honour, because it is convenient to my argument.

GAUDRON J:   I do not understand it then.

MR REYNOLDS:   Can I respond to your Honour’s question in this way. At least, I submit, four Judges of this Court have said that there is to be implied from the Constitution a principle of representative democracy.

GAUDRON J:   Yes, I think more than four have said that.

MR REYNOLDS:   And another four Judges have questioned whether or not that implication can be drawn.

GAUDRON J:   Yes, I am aware of that.  I asked you to explain your use of the word “freestanding” which you borrowed, and it being an expression which I do not understand.

MR REYNOLDS:   Can I approach it this way, your Honour.  The first two cases that looked at this implied guarantee, Nationwide News and Australian Capital Television, looked at an argument that legislation should be held to be invalid by reason of their inconsistency with an implied guarantee.  The importance of ‑ ‑ ‑

GUMMOW J:   You are trying to say there is no legislation here that would be affected, that is what it comes to and that is the distinction, is it?

GAUDRON J:   And the common law is in some different position from the statute. Whereas statute laws must conform to the Constitution, the common law has a life beyond it.

MR REYNOLDS:   That is the issue, your Honour, and that is the question which was raised in Theophanous and, I concede, determined against my client.  But that is the essential discrimen, I submit ‑ ‑ ‑

TOOHEY J:   I am not clear what it is that you are seeking to achieve by a removal at this point.  I understand an argument that, perhaps along with Levy, there should be an application for a reconsideration of Theophanous, but at the same time you seem to be suggesting that this matter, if removed to the High Court, would run independently of what is happening in Levy. 

MR REYNOLDS:   The question of procedure would obviously be a matter for the Court, but I respectfully submit that it would be convenient for both matters to run concurrently in much the same way at Theophanous and Stephens did, your Honour, because they are different sides, as I have submitted, of the one coin.  Just as Theophanous raised the Commonwealth aspect and Stephens raised the State aspect, so here we have two independent aspects of the guarantee: one is the invalidity of legislation and the other is the question of a general right or immunity springing direct from the Constitution.

TOOHEY J:   Unless it were convenient, and I am not suggesting for the moment at present that it is not, one argument might simply be that this application should stand over until the outcome of whatever takes place in Levy is known.  On the other hand, if you can persuade us that there is something to be gained by running at least the application for reopening along with Levy, then that gives force to your application.

MR REYNOLDS:   The short answer to your Honour’s question is this, that this Court would have no occasion, because of the issues raised in Levy, to overrule Theophanous.  That is because the only issue raised in that case ‑ and I should tell your Honours I have had a look at the demurrer book ‑ and the only question raised in it is the question of the invalidity of the regulations.  That would mean that there would be no occasion whatsoever, I submit, to overrule the constitutional defence found to exist by this Court in Theophanous.  If the two cases proceeded ‑ ‑ ‑

GUMMOW J:   It is quite possible to decide Levy simply on other grounds, I suppose.

MR REYNOLDS:   Yes, your Honour, and however your Honours decided Levy, there would be no occasion for reviewing the existence or otherwise of the constitutional defence found to exist in Theophanous.  Now it may be, and I concede this, that depending which way the Court went in Levy, it may place a very large question mark against Theophanous.  The problem with the Court bifurcating the two proceedings would be, I respectfully suggest, this, that there may well be a period from now of approximately 15 months before Levy is handed down and then there would be a further delay before the question of the correctness of Theophanous were considered, and in the meantime there is, I respectfully suggest, great uncertainty about what the position is.  It is an uncertainty which, I submit, ought to be resolved because at the moment it is not clear the extent to which political discussion can be the subject of actionable defamation.  Because of the width of the expression “political discussion”, that is, I respectfully submit, an important matter.  Your Honours, it is obviously a matter for the Court as to how the two matters proceed.

GAUDRON J:   There is one thing that concerns me, which is quite separate, and that is this:  you seem not to have moved to strike out the plea or to demur to it.

MR REYNOLDS:   The problem with a strike out, of course, is that my client would have to bite off the General Steel test and at the moment there is a majority of the ‑ ‑ ‑

GAUDRON J:   What about a demurrer?  Did you ever ‑ ‑ ‑

MR REYNOLDS:   That is a possible procedure in this Court, though not of course in the Supreme Court.

GAUDRON J:   Why not?

MR REYNOLDS:   Because there is no demurrer procedure in the Supreme Court, your Honour.

GUMMOW J:   They unwisely abolished it.

MR REYNOLDS:   That may well be so, your Honour, but ‑ ‑ ‑

GAUDRON J:   So what takes its place?

MR REYNOLDS:   Your Honour, there is an argument that there is a procedure under Part 31 of the Rules, but at any event that would be, I submit, an academic argument because the judge would simply say he is bound by Theophanous.

GAUDRON J:   Yes and no.  A plea certainly goes further than Theophanous, on one view, and that has not apparently been put in issue and if the matter were to come to this Court presumably it would come solely by reference to the pleadings and at the end of the day would go back to the Supreme Court.  So there would have to be some procedure.

GUMMOW J:   If it got here.

GAUDRON J:   If it got here, to raise the issue.

MR REYNOLDS:   Your Honour, I should have made it clear that I am suggesting in some form or other those three questions that I attempted to

articulate would be posed for the consideration of the Full Court in exactly the same way as questions were posed in Theophanous and in Stephens.  I am sorry, your Honour, I should have made that clear.

TOOHEY J:   But you might still have to face the possibility that in the event of the reopening of Theophanous being refused, that the matter comes back to the Supreme Court.

MR REYNOLDS:   Again, it would be a matter for your Honours, but I would submit that the second and third questions I mentioned would, of themselves ‑ ‑ ‑

GUMMOW J:   That would have to be faced at the time, I suppose.

MR REYNOLDS:   Yes, your Honour. 

GUMMOW J:   And it could not be anticipated.

MR REYNOLDS:   It would then be a question for the Court as to whether or not it wanted to consider those two issues, given its then stated view as to whether or not it would entertain the submission about the correctness of Theophanous.

TOOHEY J:   Go ahead, Mr Reynolds.  Only go ahead if you have something more to say.

MR REYNOLDS:   Your Honour, there are a number of things I could say further, but we submit that each of those matters is of importance and that there is doubt about them and that this is a convenient vehicle.

TOOHEY J:   Yes, thank you.  Mr Sexton.

MR SEXTON:   Your Honours, I should perhaps begin by saying for the information of the Court - I do not suggest that it has any real bearing on the application ‑ that my client proposes to seek leave from the New South Wales Court of Appeal in relation to his Honour Mr Justice Levine’s judgment refusing the stay application, but that, of course, is on a separate issue.

GAUDRON J:   That does not emerge from the application books, does it?

MR SEXTON:   It does not, your Honour, because the leave application will have to be filed by today week, and it will be filed next week.

GAUDRON J:   I have not got in my book, have I, anything about the application before Justice Levine?

MR SEXTON:   The judgment was handed down last Friday, a week ago, your Honours, and in that judgment his Honour refused an application for a permanent stay ‑ ‑ ‑

GAUDRON J:   Of what?

MR SEXTON:   That we had made, based upon an application for abuse of process.  It is a complicated ‑ ‑ ‑

GAUDRON J:   Yes, but what were you trying to stay; the whole action?

MR SEXTON:   The whole action, your Honour.  That is based upon an argument as to the beginning of proceedings in New Zealand and the beginning of proceedings in the Supreme Court of New South Wales, we say, on essentially the same publication and it is really not a matter that ‑ ‑ ‑

TOOHEY J:   It is not something we need be concerned with.

MR SEXTON:   No, your Honour.

GAUDRON J:   I am not aware of these proceedings, Mr Sexton.  Essentially you are arguing in the Court of Appeal, or about to, that the proceedings are vexatious, in the sense that they duplicate proceedings already on foot, is that right?

MR SEXTON:   That were on foot, yes, your Honour.

GUMMOW J:   When you say “were on foot” ‑ ‑ ‑

MR SEXTON:   They were settled, your Honour.

GUMMOW J:   In New Zealand?

MR SEXTON:   In New Zealand.

GAUDRON J:   Were they against your client?

MR SEXTON:   No, they were against Television New Zealand.

GAUDRON J:   That is a different question, is it not?

MR SEXTON:   Yes.  We would say it is a difficult question and his Honour Mr Justice Levine has ruled in one way and we propose to test that, but it does not go really in any way to the question that is before this Court.

TOOHEY J:   What do you say about the application that is ‑ ‑ ‑

MR SEXTON:   As your Honour will have seen from our written submissions, we oppose the application.  The point of the application, in our submission, is an attempt to reconsider and reopen the decision in Theophanous and my friend, I think, frankly concedes that.  We would say that it is a recent decision of the Court and that it has been relied upon ‑ ‑ ‑

GUMMOW J:   They are arguments against reopening it.  But your client has an enormous interest in getting the air cleared, as it were.

MR SEXTON:   Subject to this, your Honour.  It depends in which way it is cleared.

GUMMOW J:   Of course.

MR SEXTON:   I cannot disagree with your Honour that there is at least one aspect of the decision where there is a degree of uncertainty in terms of the application of common law qualified privilege. 

TOOHEY J:   There is a question, really, as to the scope or the extent of any - the geographical extent, it might be said - of freedom of communication.

MR SEXTON:   In relation to these particular ‑ ‑ ‑

TOOHEY J:   In relation to these proceedings.

MR SEXTON:   Yes.  We have mentioned that in the submissions, your Honour, because although, of course, as your Honours appreciate, we will make a submission ultimately in this case that the defence as it currently exists is available because this was a television programme concerning essentially campaign funding in New Zealand, but we would say it is a neighbouring country with the Westminster system and really this is an issue that arises out of the system of representative government in Australia and it is simply a programme looking at that issue through a New Zealand lens, to put it that way.  So that we would say the defence would certainly be applicable, but no doubt my learned friend will at that time argue to the contrary and there will be a contest about that which raises the

question really of whether this is a good vehicle for the Theophanous issue to be considered, or reconsidered, by the Court.

TOOHEY J:   The application seems to have two aspects:  one is the one to which you have referred, but the other is a wider aspect that Mr Reynolds seems to wish to have considered by the Court independently, or irrespective, of what happens to any application to reopen Theophanous, which raises a question of what is it, should the matter or any aspect of the matter be removed into the High Court.  Or if some aspect is to be removed, should the entire proceeding be removed.

MR SEXTON:   I do not think we could quarrel with that, in a sense, your Honour, that if it could not be separated out, the point of the application is the reconsideration and to some extent it really depends on the Court’s attitude towards that question and to the earlier decision of the Court itself, but what we raise are those two questions.  One is the general question of the fact that it is a recent decision of the Court and while it might be thought that there will always be some uncertainty about the application of the principles because of their relation to individual cases, that it is a recent decision and one which has been relied upon in libel trials in the various States and Territories to date, and there is also the question of the foreign aspect of this case which may give rise to the question of whether it is the best vehicle for reconsidering Theophanous.

So they are the two matters really that we would draw to the Court’s attention when the Court considers the question of how it deals with that previous decision of Theophanous that it has made.

TOOHEY J:   Yes, thank you.

MR SEXTON:   Unless your Honours have any questions, I do not think there is anything that I can really add to that.

TOOHEY J:   Thank you.  Do you want to say anything in response, Mr Reynolds?

TOOHEY J:   There will be an order in terms of paragraph 1 of the motion.

We wish to say two things about that.  One is that it should not be assumed that the removal of the matter into this Court necessarily carries the consequence that it will remain here for determination of every aspect of the proceeding.

The other matter that we mention is that on 1 October the Chief Justice is conducting a directions hearing in respect of the matter of Levy, that is in relation to the application made in Levy for a reopening of Theophanous.  It would, I think, be convenient to the Court if the parties to the present application could approach Registry with a view to having a directions hearing in respect of this matter either concurrently with, or on the same day as, the application in Levy.

Are there any other orders sought?

MR REYNOLDS:   No, your Honour.

TOOHEY J:   We order accordingly.

AT 9.56 AM THE MATTER WAS CONCLUDED