Lange v Australian Broadcasting Corporation

[1996] HCATrans 303

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

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 OCTOBER 1996, AT 11.06 AM

Copyright in the High Court of Australia

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

MR J.J. SPIGELMAN, QC:   If your Honour pleases, I appear with MR S.J. GAGELER, for the defendant.  (instructed by J. Walker, Solicitor for the Australian Broadcasting Corporation)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:   If your Honour please, I appear with my learned friend, MS N.F. MORRIS, for the Attorney-General for the Commonwealth intervening in the same interests as in the Levy matter.  (instructed by the Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria:   If your Honour pleases, I appear on behalf of the Attorney-General for the State of Victoria intervening in support of the plaintiff in this matter.  (instructed by R.C. Beazley, the Victorian Government Solicitor)

MR L.S. KATZ, SC:   If your Honour pleases, as a matter of courtesy, I announce that I represent the Attorney-General for New South Wales who has not made any decision as to whether or not to intervene in the matter.  (instructed by the Crown Solicitor for New South Wales)

HIS HONOUR:   We can almost see you then, Mr Katz.

MR D.F. JACKSON, QC:   If your Honour pleases, I appear with my learned friend, MR M.A. DREYFUS, for the same interests for which I appeared earlier.  (instructed by Freehill Hollingdale & Page)

HIS HONOUR:   Yes.  What other parties will be seeking leave to intervene or to appear amicus?

MR J.R. SACKAR, QC:   If the Court pleases, we will be seeking, that is, Seven Network Limited, will be seeking leave to intervene.  (instructed by Clayton Utz)

HIS HONOUR:   On the same basis?

MR SACKAR:   On the same basis, yes.

MR B.R. McCLINTOCK:   Your Honour, we are, I hate to say it, yet to decide whether we will seek leave to intervene in Lange.  (instructed by Arthur Robinson & Hedderwicks together with Gallagher De Reszke)

HIS HONOUR:   Yes, very well.  The first matter to consider is whether there should be a case stated.

MR REYNOLDS:   Your Honour, I can indicate this much, that so far as it is relevant, the stated case which is the annexure to the summons which we have filed, has been agreed to between the parties subject only to one matter which I will raise in a moment.  In paragraph 5, there is reference to a transcript of the spoken words.  We have an agreed transcript - and I can give your Honour a copy of that if that is convenient?

HIS HONOUR:   You have not agreed?

MR REYNOLDS:   We have agreed a written transcript.  The only issue which is a matter of debate between the parties is as to the questions which your Honour will see conclude the case as we have drafted it.  Your Honour will see that in the stated case drafted by the plaintiff, there are only two questions as there were in Stephens Case.  The defendant suggests that there should be an additional question and their draft of it, which your Honour has probably seen, is in this form:  “Should leave be granted to reopen and reconsider the decisions in Theophanous and Stephens?”  That is the effect of it.  Your Honour, we suggest that that is not an appropriate or necessary question in the stated case, primarily because we suggest that it raises a purely procedural question, not a substantive issue.

Your Honour, so far as I know, over the last 15 years or so, I have tried to look at the cases which have considered reopening and reconsideration of earlier cases and in none of those cases has that question been adopted as part of a stated case.  So we suggest that it is an unusual course and, really, it would be like stating an issue for the Court as to whether or not costs should be awarded.  It is really that kind of procedural question, we suggest.

So, your Honour, as between the parties, there is only that single issue which is a matter which has not been agreed and obviously it is still a matter for the Court, but I can indicate that that is the position as between myself and Mr Spigelman.

HIS HONOUR:   Yes.  I propose to ask Mr Spigelman was there any advantage in a stated case over a demurrer.

MR REYNOLDS:   Is your Honour asking me instead?

HIS HONOUR:   So I will ask you first.

MR REYNOLDS:   Your Honour, your Honour would know that the demurrer is obviously a more technical procedure and there is less latitude for the parties in argument and there have been some cases which have gone off on procedural technicalities where a demurrer has been filed.  We would prefer this course for other reasons, because there has been some amendment in this document to some of the matters which are to be found in the pleading and it is really, your Honour, only on this basis, that there is a little extra degree of flexibility introduced into the case.  Also because it may be difficult to put the tape before the Court on a demurrer is another reason why we chose a stated case.  It is actually not part of a pleading and it may be that your Honours would want to look at certainly segments of the tape, whereas if it were a demurrer, your Honours would be confined purely to the pleading probably.  So it is really just that little extra degree of flexibility in the procedure.

HIS HONOUR:   Yes, I daresay I have never understood what the extra degree of flexibility is, but perhaps you could inform me, Mr Reynolds.

MR REYNOLDS:   Your Honour, really only this, that in looking briefly at the demurrer procedure I saw the list of cases in the notations that various technical arguments had led to the argument going off and for our part we decided that we would not run that risk and really that there was ample precedent in the precise context of the consideration of these two issues, namely, the constitutional defence and the common law defence, are by reason of Stephens’ Case.  So it is really in a sense that the procedure we are suggesting received the Court’s imprimatur in Stephens, that we assumed, perhaps wrongly, that that is the procedure which would be preferred by the Court on this occasion also.  Your Honour, I appreciate that I am not really advancing the science on demurrers, but really our position is as I have stated it.

HIS HONOUR:   Yes, very well.  Thank you, Mr Reynolds.  Do you have anything to say about the time for the listing of the case?

MR REYNOLDS:   Your Honour, for our part we would prefer March.  I understand that Mr Spigelman would prefer February.

HIS HONOUR:   Yes, very well, we will hear what Mr Spigelman has to say.

MR REYNOLDS:   Your Honour, there is nothing else that I wanted to raise except this, that if there are going to be written submissions filed by a large number of would-be interveners or amici, regardless of whether or not those parties, as I will call them, are granted a right of intervention or a grant to appear as amici, there is going to be cost occasioned to my client by reason of his lawyers having to read, digest and deal with all of the written submissions filed not only in this case, but also in the Levy Case.  Your Honour, I would ask for an order that the costs occasioned to my client by the filing of written submissions by would-be interveners and amici in both matters be paid by those would-be interveners and amici in any event.  In other words it may be that your Honours do not allow these various would-be interveners and amici to make submissions at all at the ultimte hearing of this matter, but there would still be costs occasioned to my client by reason of them filing and serving written submissions, and that is the reason that I ask for that particular costs order.

HIS HONOUR:   Who applied for the order for removal under section 40?

MR REYNOLDS:   We did, your Honour; Mr Lange did.

HIS HONOUR:   Had you not done so, would you have been exposed to the same risks?

MR REYNOLDS:   I do not quite follow what your Honour is putting to me.

HIS HONOUR:   If this matter had remained in the Supreme Court of New South Wales, would you have had any basis on which you could claim such an order for costs?

MR REYNOLDS:   If the matter had remained in the Supreme Court of New South Wales probably all these parties would not have wanted to intervene, but if they had wanted to intervene I would have asked for the same order.

HIS HONOUR:   Yes.  As this is a directions hearing only, I do not propose to make any order at this stage, but you having intimated that that will be your application, those who seek leave to intervene or appear as amici are put on notice of the intention.

MR REYNOLDS:   Your Honour, they are the only matters I wanted to raise.

HIS HONOUR:   Yes.  Mr Spigelman?

MR SPIGELMAN:   Your Honour, as to the directions that your Honour has already made in Levy, we have no difficulty with fitting an identical set of directions which would put our submissions in on, I think, 29 November.

HIS HONOUR:   Yes.

MR SPIGELMAN:   As to the question of stated case or demurrer, either is a convenient course.  The question that we seek to add to the document is perhaps not part of the stated case but should be separately identified at least as a question reserved under section 18 of the Judiciary Act.  It can be either and we think it is an appropriate question for your Honour to reserve to the Full Court.  Our interest is to separately identify it as a separate question and that is the one, “Should leave be granted?”  It is a question of leave ever since Evda Nominees and we think it ought to be separately identified in the circumstances of this case.  Obviously it is there anyway but this may be more an issue of form than substance as to whether or not your Honour were to adopt that procedure.  As to the date for hearing, as indicated our preference is for March but obviously we will go along with the Court.

HIS HONOUR:   Your preference is for March?

MR SPIGELMAN:   I am sorry, for February rather than March, but we will obviously go along with what the Court determines having in mind the expressions of views of all parties.  Plainly, the two cases have to be heard, perhaps not together but one after the other.

HIS HONOUR:   Yes.  There is no specific reason why it should be February, from your point of view, rather than March?

MR SPIGELMAN:   No, none from the point of view of the prejudice of my client or anything like that.

HIS HONOUR:   It seems that the consensus is March so it will have to be March.

MR SPIGELMAN:   If your Honour pleases.

HIS HONOUR:   The problem about March, if we have the two cases together, is that we will have no more than five days for it.

MR SPIGELMAN:   I would have thought that is adequate myself, your Honour.

HIS HONOUR:   Yes, I would have thought it is adequate also but it may be necessary to consider the question of the allocation of time for oral argument after the receipt of the written submissions in which case the directions hearing can be adjourned generally and if need be can be brought on or alternatively, parties might be minded to make submissions in writing which would save any further appearances.

MR SPIGELMAN:   Your Honour, there may be, if the matter is in March, that some kind of directions hearing in early February could be appropriate for that purpose if the parties are ‑ ‑ ‑

HIS HONOUR:   Yes, it may be.  That will depend, I think, very much on the written submissions that are received.  I might indicate, Mr Spigelman, that I do not propose to state, as a separate question, the question that you have suggested.  It does not seem to be to be necessary to do so and that the questions that are raised in the stated case should suffice for the purpose of considering that issue.

MR SPIGELMAN:   If your Honour pleases.

HIS HONOUR:   Is there anything further?

MR SPIGELMAN:   No.

HIS HONOUR:   Is there anything that any of the parties who are entitled, as of right, to appear as interveners, or who are seeking leave to intervene, wish to add in relation to the timetable, or any other arrangements in respect of the Lange matter?

MR GRIFFITH:   Your Honour, might I inquire whether the parties might assume that the cases could be heard together, rather than consecutively or, if consecutively, in what order?

HIS HONOUR:   Is there some submission that ought to be considered in the - - -

MR GRIFFITH:   Your Honour, it is a matter of coming to the Court in the week, your Honour, if one knows they are going to be heard together, well then, one just has one set of submissions and I would have thought it would be shorter, your Honour, and it is not very difficult then to distribute the issues if the plaintiffs go first, as it were, whatever, your Honour.  So, you have parties in the same interests doing their cases on really the same issue, so that I would have thought a concurrent hearing would be more efficient, your Honour.

HIS HONOUR:   It is a little difficult to say without seeing the actual submissions that are made, whether efficiency would be served in one way or the other, Mr Solicitor.

MR GRIFFITH:   Yes.

HIS HONOUR:   Which perhaps indicates the desirability of a further directions hearing ‑ ‑ ‑

MR GRIFFITH:   Yes, your Honour, it probably would, your Honour, because absent a direction, we would try and only have one set of submissions as an intervener, your Honour, and just adopt them in the other case but, it may well be that in February we will have a clearer view on that.

HIS HONOUR:   Yes, but in terms of the preparation of the submissions, they are going to have to be done before Christmas anyhow.

MR GRIFFITH:   The written ones; there is no problem, your Honour, but the oral submissions, your Honout - be the shorter if we only delivered one set, but we could adapt, your Honour, but it may be that all the parties could be more efficient if they, in February, had some idea as to how the week was going to be ‑ ‑ ‑

HIS HONOUR:   Can I suggest that this might be a matter which the parties themselves would do well to discuss amongst themselves, in order to see what, in their view, might be the most efficient way of dealing with it.  But one can see, readily, that there may be problems for the respective plaintiffs in the actions, because of the possible elongation of the matter by reason of a combined hearing.

MR GRIFFITH:   Well, your Honour, we would defer to the parties’ decision on that.  They are the parties, your Honour, and, as an intervener, we must fall into their views.

HIS HONOUR:   Yes.  Perhaps I should hear what the parties have to say about that aspect next.  Did you want to say something, Mr Solicitor? 

MR GRAHAM:   I just wish to raise the same matter as my learned friend, the Solicitor for the Commonwealth, did, namely, the question of either a combined hearing or sequential hearings.  It is very difficult at this stage to see which of those courses would best serve the interests of the parties and most assist the Court.  Perhaps it should be deferred until the written submissions have been provided.

HIS HONOUR:   Yes.

MR GRAHAM:   May I just add this observation?  We would support the use of a case stated in the Lange matter rather than a demurrer, for the reasons my learned friend, Mr Reynolds, mentioned.

HIS HONOUR:   This remains as a mystery to me, but still.

MR GRAHAM:   Well, there may be - there is another mystery, your Honour, and that is whether the demurrer procedure is open when a case has been removed.

HIS HONOUR:   That is an interesting problem.

MR GRAHAM:   An interesting question - - -

HIS HONOUR:   Yes, it is.

MR GRAHAM:   - - - of which I do not wish to take your Honour’s time up with.

HIS HONOUR:   Mr Castan.

MR A.R. CASTAN:   Could I just indicate, your Honour, that there is probably an advantage in planning for a further directions hearing, even if it is the case that that becomes the opportunity for counsel to get together.  Your Honour’s suggestion, of course, that counsel discuss it is well taken, but sometimes the mind is concentrated by the necessity to come here and meet and appear before your Honour for the purpose of working out what should happen - - -

HIS HONOUR:   Yes.

MR CASTAN:    - - - on the relevant date in March.  So that, proceeding on the basis that there will be a hearing in February is probably useful for all parties.

HIS HONOUR:   Yes.  Would you be available to appear for a day in February, Mr Castan?

MR CASTAN:   Yes, I would.  That could be arranged.

HIS HONOUR:   What do you have to say, Mr Reynolds?

MR REYNOLDS:   On the question of whether or not the hearing should be consecutive or heard together?

HIS HONOUR:   Yes.

MR REYNOLDS:   Your Honour, we would like the opportunity of thinking that through.  At the moment, for what it is worth, I think we would probably incline towards the view that they should be heard consecutively, if only because it is easy to envisage that the Levy matter possibly may result in leave perhaps not being granted, and then it may be that that would shorten the week.  But, your Honour, I would like to think through that.  We do not have a view at this stage.

HIS HONOUR:   Yes.

MR REYNOLDS:   But certainly we would be in a position to indicate that at the next directions hearing.

HIS HONOUR:   Yes.  Mr Spigelman?

MR SPIGELMAN:   Your Honour, at this moment we would incline to the consecutive view.  We do not exactly know whether the rest of Levy is intended to be argued.  I did not get the impression, from reading the transcript, that Mr Graham had finished his submissions and what your Honour has - - -

HIS HONOUR:   No, I do not think Mr Graham had finished his submissions.

MR SPIGELMAN:   And, then, Mr Castan has a reply.  And there are a range of issues there that really do not arise.  Now, we do not know what your Honour’s intention is as to whether those matters are to be argued during the course of this sitting.

HIS HONOUR:   Yes.

MR SPIGELMAN:   Obviously, on the other hand, there are matters of qualified privilege that arise in Lange, and which are of considerable significance and do not overlap at all apparently.

HIS HONOUR:   Yes.  Mr Spigelman, before you leave, what do you say about a further directions hearing in February?

MR SPIGELMAN:   I raised that possibility.

HIS HONOUR:   Yes.  You are content with that?

MR SPIGELMAN:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.  Are there any submissions that any party or applicant for intervention wishes to make in relation to the Lange matter?

MR JACKSON:   One very brief matter, your Honour.  We, of course, are in the hands of the parties in the Court as to the procedure that the Court adopts.  We would seek, however, in the Lange Case, as one of the bases for, I suppose in a sense, our intervention but also in relation to the question of reopening, to still seek to argue that the case is an inappropriate vehicle for reopening the matters, and may I simply mention that.

HIS HONOUR:   Yes.  Can I take it that that can be canvassed adequately in your written submissions?

MR JACKSON:   Of course, your Honour, yes.

HIS HONOUR:   Mr Spigelman, would you be in a position to prepare a draft minute of order for me to initial and place with the papers to found the formal order of the Court in the same way that the Solicitor for Victoria proposes to do in the first matter? 

MR SPIGELMAN:   If your Honour pleases.

HIS HONOUR:   If I could have that tomorrow it would be helpful.  The timetable then will be the same timetable as in relation to the first matter.

MR SPIGELMAN:   With respect to the actual order, does your Honour propose to make an order listing the matter on that date in March that your Honour mentioned?

HIS HONOUR:   I think there is no reason, so far as I know, why the matter should not be listed on that first day, and it will be listed for 3 March.  There is no reason why both matters cannot be listed for 3 March but whether they are heard at the same time will depend upon the further consideration of the matter at the February directions hearing.

MR SPIGELMAN:   For purposes of the short minutes, does your Honour have a date for a possible directions hearing?

HIS HONOUR:   No.  I think if you make that simply in the month of February and that will be on a date to be advised by the Registry who will be in touch with counsel and will endeavour to find a suitable date which might at least meet the convenience of the majority, if not all parties.

MR SPIGELMAN:   If your Honour pleases.

HIS HONOUR:   Any other matters in relation to that?  Thank you for your attendance this morning.

AT 11.27 AM THE MATTER WAS ADJOURNED