HIGH COURT OF AUSTRALIA
BRENNAN CJ,
DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
DAVID RUSSELL LANGE PLAINTIFF
AND
AUSTRALIAN BROADCASTING
CORPORATION DEFENDANT
ORDER
The case stated should be answered as follows:
"1.Q. Is the defence pleaded in par 10 of the Defendant's Amended Defence bad in law?"
A. Yes.
"2.Q. Is the defence pleaded in par 6 of the Defendant's Amended Defence bad in law in respect of the publication complained of in New South Wales?"
A.No. But the particulars given do not bring the publication within that defence.
The matter is remitted to the Supreme Court of New South Wales to proceed therein in accordance with the answers to the questions.
The defendant pay the plaintiff's costs of the proceedings in the High Court including the costs of the removal of the matter under s 40 of the Judiciary Act 1903 (Cth).
The Commonwealth, New South Wales, Queensland, South Australia and Western Australia pay to the plaintiff and to the defendant a proportion of the costs incurred by each of them to be taxed as between party and party in relation to the proceedings in the High Court other than the application to remove the matter under s 40 of the Judiciary Act 1903 (Cth), the proportion to be determined by the taxing officer by reference to the time by which the hearing of the matter before the Full Court was extended by submissions made on behalf of those interveners.
The corporations described as "the Fairfax interests", Nationwide News Pty Ltd, the Herald and Weekly Times Ltd, and the Seven Network Ltd pay to the plaintiff and to the defendant a proportion of the costs incurred by each of them to be taxed as between party and party in relation to the proceedings in the High Court other than the application to remove the matter under s 40 of the Judiciary Act 1903 (Cth), the proportion to be determined by the taxing officer by reference to the time by which the hearing of the matter before the Full Court was extended by submissions made on behalf of those interveners.
Any payment made to the plaintiff pursuant to par 4 or par 5 shall be made in relief of the defendant's obligation under par 3.
8 July 1997
FC 97/021
S 109/1996
Representation:
G O'L Reynolds with A S Bell for the plaintiff (instructed by Phillips Fox)
J J Spigelman QC with M G Sexton and S J Gageler for the defendant (instructed by Judith Walker, Australian Broadcasting Corporation)
Interveners:
G Griffith QC with S G E McLeish and G R Kennett intervening on behalf of the Attorney-General for the Commonwealth (instructed by the Australian Government Solicitor)
P A Keane QC with R W Campbell intervening on behalf of the Attorney-General for the State of Queensland (instructed by the Crown Solicitor for Queensland)
D Graham QC with B J Shaw QC and D G Collins intervening on behalf of the Attorney-General for the State of Victoria (instructed by the…
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- Case
- [1997] HCA 25
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether the Australian Constitution, by establishing a system of representative and responsible government, impliedly protects freedom of communication on government and political matters, and if so, what test should be applied to determine whether a law infringes this implied freedom. Additionally, the Court considered the relationship between the constitutional implication and the common law defence of qualified privilege, and whether the common law and statutory defences were reasonably adapted to protect reputation while accommodating this implied freedom.
The Court reasoned that the system of representative and responsible government established by the Constitution necessitates a freedom of communication on political and governmental matters. This freedom is not absolute but is limited by the need to protect individual reputations. The Court held that a law infringes the implied freedom if it is reasonably appropriate and adapted to serve a legitimate purpose, and its effect on the implied freedom is no more than is necessary to achieve that purpose. In applying this to the defence of qualified privilege, the Court found that the common law defence, as pleaded in paragraph 10 of the ABC's amended defence, was not sufficiently adapted to protect reputation in light of the implied freedom, rendering it bad in law. However, the defence as pleaded in paragraph 6, concerning publications in New South Wales, was not inherently bad, though the particulars provided did not bring the publication within its scope.
The High Court answered the questions in the case stated, finding the defence in paragraph 10 bad in law and the defence in paragraph 6 not bad in law but lacking sufficient particulars for the publication in New South Wales. The matter was remitted to the Supreme Court of New South Wales for further proceedings, and directions were given regarding the costs of the High Court proceedings, including those of interveners.
Orders
Orders of the court
1. The case stated should be answered as follows:
"1. Q. Is the defence pleaded in par 10 of the Defendant's Amended Defence bad in law?"
A. Yes.
"2. Q. Is the defence pleaded in par 6 of the Defendant's Amended Defence bad in law in respect of the publication complained of in New South Wales?"
A. No. But the particulars given do not bring the publication within that defence.
2. The matter is remitted to the Supreme Court of New South Wales to proceed therein in accordance with the answers to the questions.
3. The defendant pay the plaintiff's costs of the proceedings in the High Court including the costs of the removal of the matter under s 40 of the Judiciary Act 1903 (Cth).
4. The Commonwealth, New South Wales, Queensland, South Australia and Western Australia pay to the plaintiff and to the defendant a proportion of the costs incurred by each of them to be taxed as between party and party in relation to the proceedings in the High Court other than the application to remove the matter under s 40 of the Judiciary Act 1903 (Cth), the proportion to be determined by the taxing officer by reference to the time by which the hearing of the matter before the Full Court was extended by submissions made on behalf of those interveners.
5. The corporations described as "the Fairfax interests", Nationwide News Pty Ltd, the Herald and Weekly Times Ltd, and the Seven Network Ltd pay to the plaintiff and to the defendant a proportion of the costs incurred by each of them to be taxed as between party and party in relation to the proceedings in the High Court other than the application to remove the matter under s 40 of the Judiciary Act 1903 (Cth), the proportion to be determined by the taxing officer by reference to the time by which the hearing of the matter before the Full Court was extended by submissions made on behalf of those interveners.
6. Any payment made to the plaintiff pursuant to par 4 or par 5 shall be made in relief of the defendant's obligation under par 3.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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