Levy v State of Vic
[1997] HCATrans 25
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M42 of 1995
B e t w e e n -
LAURENCE NATHAN LEVY
Plaintiff
and
THE STATE OF VICTORIA
First Defendant
JOHN THOMAS GATES ROBINSON
Second Defendant
ROBERT BRIAN WILBY
Third Defendant
Office of the Registry
Sydney No S109 of 1996
B e t w e e n -
DAVID RUSSELL LANGE
Plaintiff
and
AUSTRALIAN BROADCASTING CORPORATION
Defendant
Directions hearing
BRENNAN CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 7 FEBRUARY 1997, AT 9.34 AM
(Continued from 1/10/96)
Copyright in the High Court of Australia
_________________
MR A.R. CASTAN, QC: May it please the Court I appear with my learned friend, MR G.J. McEWEN, for the plaintiff, Levy. (instructed by Garland Hawthorn Brahe)
MR G. O’L. REYNOLDS: If the Court pleases, I appear on behalf of the plaintiff, Mr Lange. (instructed by Phillips Fox)
MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: If the Court pleases, I appear for the defendant in the Levy matter. (instructed by the Victorian Government Solicitor)
MR J.J. SPIGELMAN, QC: May it please the Court, I appear with my learned friend, MR S.J. GAGELER, on behalf of the Australian Broadcasting Commission in the matter of Lange and seek to intervene on behalf of the Australian Broadcasting Corporation in the Levy matter. (instructed by Judith Walker, Australian Broadcasting Commission)
MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: May it please the Court, I appear with my learned friend, MR G. R. KENNETT, intervening on behalf of the Attorney-General for the Commonwealth. (instructed by the Australian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I intervene on behalf of the Attorney‑General for the State of Western Australia (instructed by the Crown Solicitor for Western Australia) and intervene on behalf of the Attorney-General for the Northern Territory. (instructed by the Solicitor for the Northern Territory)
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MR J. GILL, intervening on behalf of the Attorney-General for the State of South Australia. (instructed by the Crown Solicitor for South Australia)
MR L.S. KATZ, SC, Acting Solicitor-General for the State of New South Wales: May it please the Court, I intervene on behalf of the Attorney‑General for the State of New South Wales. (instructed by the Crown Solicitor for New South Wales)
MR R.W. CAMPBELL: May it please the Court, I intervene on behalf of the State of Queensland. (instructed by the Crown Solicitor for Queensland)
MR D.F. JACKSON, QC: May it please the Court, I appear with my learned friend, MR M.A. DREYFUS, seeking leave to intervene on behalf of John Fairfax Publications Pty Limited, David Syme & Co Limited, Illawarra Newspapers Holdings Pty Limited, Newcastle Newspapers Pty Limited, Fairfax Community Newspapers Pty Limited and West Australian Newspapers Limited. (instructed by Freehill Hollingdale & Page)
MR W.H. NICHOLAS, QC: May it please the Court, I appear with my learned friend, MR B.R. McCLINTOCK SC, seeking leave to intervene on behalf of Nationwide News Pty Ltd. (instructed by Gallagher de Reszke)
MR R.A. FINKELSTEIN, QC: If the Court pleases, I appear with my learned friend, MR B.R. McCLINTOCK, SC, seeking leave to intervene on behalf of The Herald and Weekly Times Limited. (instructed by Arthur Robinson & Hedderwicks)
MR J. GLEESON: May it please the Court, I seek leave to intervene on behalf of the Seven Network Limited. (instructed by Clayton Utz)
MR G.J. WILLIAMS: May it please the Court, I seek leave to appear as amicus curiae on behalf of the Media, Entertainment and Arts Alliance. (instructed by the Public Interest Advocacy Centre)
MR D.E. FLINT: Your Honours, I seek leave to appear as amicus curiae on behalf of the Australian Press Council. (of the Australian Press Council)
HIS HONOUR: Yes, Mr Castan, I think I can take it that appearances are as in accordance with the Court notice. Mr Solicitor.
MR GRAHAM: If the Court pleases, I having been on my feet when the matter was last before the Court, perhaps I might make some observations to the Court in relation to how these two matters might usefully or best proceed before the Full Court. Firstly, could I say that so far as the interveners are concerned - those applying for leave to intervene - we do not oppose their applications for leave to intervene, but will, in a moment, say something as to appropriate directions which we submit might properly be made in relation to those applicants.
Perhaps the first question that falls for consideration this morning, your Honour, is whether both cases should be heard together, or one after the other. I detect there is a consensus that, at least so far as the questions concerning Theophanous and Stephens are concerned, that both cases be heard together for the purposes of arguing all the matters arising under that heading.
HIS HONOUR: Mr Solicitor, although you say you offer no opposition to the leave being given to interveners, do you raise a question of jurisdiction?
MR GRAHAM: As to whether the Court can entertain the application and grant it?
HIS HONOUR: Yes.
MR GRAHAM: Your Honour, I had not been instructed to raise any such question and have not, I confess, given attention to it.
HIS HONOUR: I thought your submissions raised that question.
MR GRAHAM: We do say in paragraph 1, your Honour, that the applicants must satisfy the Court that it has jurisdiction to grant leave.
HIS HONOUR: That is so.
MR GRAHAM: But we did not seek to be heard on that issue, but if the Court would be assisted ‑ ‑ ‑
HIS HONOUR: A tantalising invitation for the Court to consider it.
MR GRAHAM: It simply seemed to be a matter that our concession could not cure and if there was a problem, it needed to be resolved. Having been instructed not to oppose the application, we did not see it to be our proper position to raise a jurisdictional point, but if the Court would be assisted by argument on that issue, we would certainly take it up and provide the Court with that assistance.
HIS HONOUR: Yes. It is not a question that ought - I should not say that it will not delay the Court at all, it may be a question of great importance in relation to both interveners and amici, so that if some thought has been given at all to the question, it would be of some assistance to have written submissions directed to it even if there is no opposition to the applications that are made, but that is a matter for the respective Solicitors, I think, to consider.
MR GRAHAM: That will certainly be taken up, your Honour, in an appropriate way. We do not perceive that there is a problem so far as a grant of leave to appear as amicus curiae is concerned, but if others take a different view, perhaps that can be investigated as well.
HIS HONOUR: Yes.
MR GRAHAM: It is certainly a situation that has not, to my knowledge, arisen before this Court either in relation to intervention or in relation to amicus curiae. So it does deserve some consideration. I just mention, your Honour, that the question of hearing both cases concurrently, at least in so far as there are matters common to them both, that in turn suggests that we should flag at least the question of how the balance of the Levy Case should be disposed of after the Full Court has dealt with the concurrent aspects of the Lange and Levy matters.
My learned friend, Mr Castan, and I take the view at the moment that it would be desirable that those outstanding matters in Levy be stood over pending the Full Court’s disposition of the Theophanous and Stephens aspects. It is easy to say that at this stage, your Honour, but it may not turn out that way after argument is heard and the issues are more fully analysed, but that is how the matter presents to us at the moment.
Your Honour, could I say something in relation to the matters of time. My estimate is that the defendants in the Levy matter would need about a day for their arguments on the matters on Theophanous and Stephens. That is, perhaps, at the outer end but we would anticipate that, perhaps, the bulk of the argument on that side of the record would be presented by the State of Victoria and its co‑defendants with, perhaps, less time being required by Mr Reynolds in the interests of Mr Lange. We would perceive that there would be need for the two of us to have the better part of two days for our submissions.
Could I then mention something in relation to the applications for leave to intervene, and the written materials which have been provided to the Court in support of those applications for leave to intervene. Your Honour will have noted that the material provided is bulky to the point of prolixity, and, we would submit, it is also very repetitive. We would respectfully suggest that this matter ought to be looked at again with a view to reduction of that material to a more manageable size. One is tempted to refer to the rule in the United States Supreme Court whereby amici curiae are confined to arguments not exceeding three pages. It would be certainly helpful to us and, we would submit, to the Court if the material in relation to both leave to intervene and the substantive aspects of the case which the applicants for leave to intervene wish to put forward perhaps could be combined into a single submission rather than have the bulk that is presently provided to the Court. Perhaps we would respectfully submit also that there being, I think, either eight or nine applicants for leave to intervene,,
some limitation should be imposed as to the time and number of counsel to be heard.
Putting that to one side, your Honour, my learned friend, Mr Castan, was good enough to prepare a proposed sequence of counsel’s addresses for
the hearing of the two cases, and my learned friend, Mr Spigelman, has done likewise. Mr Castan’s programme, I understand, was provided to the Registry, and your Honour may have it - a document of one and a half pages length.
BRENNAN CJ: I have seen it. I shall see if I can find it.
MR GRAHAM: Yes. Perhaps it would be useful if my learned friend, Mr Spigelman, provided his programme, as well, to the Court. It has been circulated.
BRENNAN CJ: Yes, I have Mr Castan’s document here, but what submissions do you have to - Mr Spigelman has an alternative one.
MR GRAHAM: If I can hand a copy to your Honour’s associate or tipstaff? On a very brief perusal they appear to be the same in substance. There may be some small differences but each of them is prepared on the assumption that both cases would be heard together, so that I and Mr Reynolds would go first and second, followed by the interveners who support us. Applicants for leave to intervene would follow on both programmes.
BRENNAN CJ: Mr Solicitor, before we get to the order in which submissions will be entertained with respect to the merits of the application to reopen Theophanous and Stephens, and indeed the merits of the issues in those cases, there is this first question of interveners and amici, perhaps. It will be a question for the Court to consider whether it has any jurisdiction to allow interveners to appear as interveners, other than those who have a statutory right of intervention and, if so, what procedures should be adopted with respect to them. It seems to me that that is a preliminary question, or at least a question which should be first addressed by the Court so that the sequence of submissions thereafter could be determined.
It would be of assistance, I think, to know which, if any, of the solicitors, or of the parties, are minded to make any submissions as to the jurisdiction of the Court to admit interveners in this situation, or to oppose the applications that are made. I understand in your case you will consider the question of jurisdiction and you will have no positive opposition to offer if jurisdiction exists.
MR GRAHAM: That is correct, your Honour.
BRENNAN CJ: Perhaps I should hear from other parties in these two proceedings as to whether they have any submissions on that subject and from the Solicitors to see whether they have any submissions to make with respect to the question of jurisdiction.
MR GRAHAM: If your Honour pleases.
BRENNAN CJ: Mr Castan.
MR CASTAN: We have no opposition to the applications for intervention and obviously we would be concerned to assist the Court by such submissions as might be made on the question of jurisdiction, but that would not be moving from a starting point of seeking to contend for an absence of jurisdiction in the sense of protecting a position that is resisting the interveners. So our position is not to be opposed to intervention, but given that ‑ ‑ ‑
BRENNAN CJ: Do you expect to make any submissions with respect to jurisdiction?
MR CASTAN: I think the answer to that question is that I would not expect to be making any such submissions, your Honour, but I should qualify that by saying that given that the issue has been raised and the way it has been raised, notwithstanding our absence of any opposition to interveners, if it is of assistance to the Court and it is a question which is coming up for consideration perhaps without the benefit of earlier consideration by the Court, we would obviously be concerned to look at the issue and provide assistance to the Court if that is going to ensure that the matter is properly considered.
For instance, there may be a position where there is, in effect, no contesting party on the issue of jurisdiction and only those seeking to argue that there is jurisdiction and in so far as a court is inevitably fully assisted only by someone presenting such matters as can be put to the contrary, we would be, of course, willing to provide that assistance, but it is not our position to oppose intervention.
HIS HONOUR: Yes, very well. Mr Reynolds, I think.
MR REYNOLDS: Your Honour, we do not take any jurisdictional point, but there are two matters that I wanted to raise in relation to the media interveners. The first is that your Honour will have seen that there is quite a large volume of evidence which has been filed by them. So far as that evidence goes to demonstrating an interest sufficient to ground a right to intervene, we have nothing to say. What my client is concerned about is that there is some evidence directed to what I will call the reliance issue. By that I mean that the media interveners have said in their affidavit material that in various ways they have relied upon the existence of the constitutional defence articulated in Theophanous.
I also understand from their submissions and in particular from a remark Mr McClintock made on the last time the matter was before the Court that the media interveners wish that material to be part of the material which is evidentially before the Court on the question of whether the Court ought to overrule Theophanous and also on the antecedent issue of whether leave to reopen that decision should be granted. We are concerned about the status of that evidence. In particular we would want to object to it and, although it is obviously very unusual in a case of this kind, we may wish to reserve a right to cross‑examine the deponents on that particular item of evidence. It does create a difficulty for my client if that material is to go in without at least some contest from him. That is the first matter I wanted to raise.
The second matter that I wanted to raise is a matter that I flagged on the last occasion, which is a question of costs. I will not take up much time, your Honour, but all I wanted to say was that we submit that it would be appropriate that if the media interveners are made amici, granted a right of intervention or otherwise are able to put material before the Court, because my client has been put to the cost of having his lawyers read all of this affidavit material and all of the submissions, that an undertaking ought be extracted by the Court from each of those media interveners to pay my client’s costs and I guess the ABC’s - the costs of their invention in any event. So they are the two issues that we want to raise in relation to the media interveners. In short, the status of the evidential material and, secondly, the question of an undertaking by them as to costs.
HIS HONOUR: As to that material on which you think there may be some desire to cross‑examination - “reliance” you call it.
MR REYNOLDS Yes, your Honour.
HIS HONOUR: How do you distinguish that from the basis on which the claim for status as an intervener is based?
MR REYNOLDS It may be that the evidence in a very general form is put in to show that the media knew of this defence and in a general way will ground their right to intervene. In that sense, if the evidence is confined in its application to that issue, then we do not have a problem with it. But if it is going to be used and the Court is going to resort to it on the question of whether leave ought be granted to reopen the decision and further down the line if that leave is granted on the issue of whether or not Theophanous should be overruled, then we do wish to draw a distinction between that and the notion of evidence going to interest, because obviously it is a matter which would prejudice my client in seeking to have that decision overruled.
As your Honour could imagine, given that much of the material has been deposed to by journalists, there are quite a few questions which could be asked on that issue. The difficulty is if it all goes in without any opposition, that is fine on the question of interest from our point of view but it is not fine from our point of view on the substantive questions, if I can put it that way.
HIS HONOUR: Yes, I am not sure that I understand the distinction that you are seeking to draw but at all events I take your point about the ‑ ‑ ‑
MR REYNOLDS Your Honour, one is on whether or not they are allowed to sit here; the other is whether or not the Court takes account of their material evidentially to down my client on the substantive questions. That is we say what the distinction is.
HIS HONOUR: Yes.
MR REYNOLDS: If the Court is going to look to that evidence and say to my client in the judgments, “Mr Lange, this Court is not going to overrule Theophanous because there is evidence before the Court that various media companies and their journalists, et cetera, have relied upon the existence of this decision”, then my client will want to oppose and clarify the status of that evidence; in particular, to suggest to the journalists what they were entitled to rely upon, which may of course be a matter of law.
At the end of the day, your Honour, we will be submitting that everyone in the community is in one sense entitled to rely upon the rationaes of Theophanous and Stephens, so that that concession may assist your Honour to some degree, But what we say is that they are not entitled to take various dicta in the case and rely upon those dicta as authoritative. So that at the end of the day it may be that the Court decides that ultimately this is an issue of law, not of fact, and that the issue disappears and that,
with respect, is a solution which appeals to my client because it avoids procedural difficulties. But we did want to flag it because your Honour can see how it may be a problem for Mr Lange on the substantive questions. Your Honour, those are the only ‑ ‑ ‑
HIS HONOUR: Yes. It may be that that would arise at some stage later than the question of the granting or refusal of the application for leave to intervene.
MR REYNOLDS: Yes, your Honour.
HIS HONOUR: Now, let me get it clear. What do you say as to the jurisdiction to allow intervention?
MR REYNOLDS: We have no submissions to make, your Honour.
HIS HONOUR: No submissions on it.
MR REYNOLDS: It may be that, like Mr Castan, if there is no proper contradictor, that we volunteer some brief submission, but that is the only caveat, your Honour.
HIS HONOUR: Yes, thank you.
MR CASTAN: Would your Honour permit me to intervene simply to say that I omitted to mention that we would respectfully adopt the submission that has just been made by my learned friend concerning the undertaking as to costs which are incurred by the intervention and would respectfully seek to be included in any such order or undertaking if the Court is of the view that that is an appropriate order to make.
HIS HONOUR: Yes. Mr Spigelman.
MR SPIGELMAN: Your Honour, the ABC is both a party and an applicant for intervention, but that was a precautionary application, as I indicated on the last occasion, and we will not be pressing it on the assumption the matters are proceeding in the way they appear to be together. But on the question of jurisdiction, we will have no submissions to make. Obviously, on an amicus basis, we would be prepared to do so, but in this matter the Court does not seem to be bereft of friends.
HIS HONOUR: Thank you, Mr Spigelman. Are there any of the Solicitors who would wish to make any submission on the question of jurisdiction? Mr Solicitor for South Australia.
MR SELWAY: Your Honour, we have put in to the Court an outline of submissions in respect of this directions hearing which deals in part with what we say are the principles for granting leave to intervene and that goes, if you like, to the discretion of the Court rather than jurisdiction. If I could just say, I would be surprised if South Australia would wish to put a submission to the Court that this Court did not have the jurisdiction to hear an intervener, but we will probably put a submission to the Court as to the principles that should be applied by the Court in determining whether to grant leave, and those principles will be paragraphs 2, 3 and 4 of that outline.
HIS HONOUR: Yes. These have been provided, I take it, to those who are seeking leave to intervene, Mr Solicitor?
MR SELWAY: As we understand it, your Honour. I am not sure that we know all the parties but all those we know we have provided that submission to.
HIS HONOUR: You can do a check‑list on those who are appearing here today, perhaps.
MR SELWAY: I will do that, your Honour.
HIS HONOUR: Thank you, Mr Solicitor. Are there any other Solicitors who would foresee the prospect of there making submissions, either on the question of jurisdiction or on the question of the exercise of the discretion, if any? In the light of that I take it that all those who are seeking leave to intervene will contend for jurisdiction to do so. Yes, Mr Jackson?
MR JACKSON: Your Honour, it is really just this: as I would understand the position, if the argument against the existence of jurisdiction, or the matter in which the Court would need to be satisfied were this, namely that the Court’s function in the exercise of judicial power is to decide issues between the parties, then an argument dealing with that might well have the consequence, of course, that if that is the ambit of the judicial power then Parliament might not be able to legislate to allow any person not a party to have a right to intervene, and that might affect the position of the Solicitor‑General.
HIS HONOUR: Quite; and it may also raise the question of whether notices under section 78B should be given on that point.
MR JACKSON: Your Honour, I was intending to do that, but giving a kind of oral notice now.
HIS HONOUR: Yes, thank you. It seems to me that there would be some advantage in dealing with the question of jurisdiction and the exercise of discretion as the first matter on the agenda in these proceedings. In that case, Mr Solicitor for Victoria, what, the applicants for leave to intervene not commence the proceedings.
MR GRAHAM: Your Honour, that appears to be the logical first step.
HIS HONOUR: Yes. Now, it is a question of seeing in what form those submissions will be made and in what time they will be made. I think I shall call on those parties first.
MR GRAHAM: Yes. Perhaps if I could just mention one particular matter, your Honour. There may be a subsidiary question in that part of the case concerning the admissibility of evidence which might need to be particularly addressed as well. It is one thing for there to be evidence in support of an application for leave to intervene to demonstrate an interest for that application, but perhaps there is another thing as to whether evidence is admissible in support of the question of whether the Court dealing with a matter of law should or should not reinvestigate a previous decision of its own and whether it should or should not allow that previous decision to stand. The status of evidence on those latter points may be quite different from the question of evidence in support of interest. I think it was the point that my learned friend, Mr Reynolds, was making but it is a significant difference when one reflects on it.
HIS HONOUR: Yes. That is why it seemed to me that that would arise only on the substantive question and not on the procedural question of the admissibility or the status of the interveners.
MR GRAHAM: That is right, your Honour, with respect.
HIS HONOUR: Yes.
MR SPIGELMAN: Your Honour, could we just be heard further on what your Honour ‑ ‑ ‑
HIS HONOUR: Yes, Mr Spigelman.
MR SPIGELMAN: Your Honour indicated that by reason of the nature of the issue on intervention that it may be proper to have that as the first issue
in any hearing. We would submit that because all of the applications for intervention are coupled, as I understand it - I have not checked all of them - with an application in the alternative to be heard as amicus that the issue could be determined, as it were, at the end of jurisdiction because it may not have the same impact on the course of the trial, namely, it would make a lot of sense if everybody was to be, as it were, sent away, but the question of amicus is a little different. I appreciate what your Honour said that the question of discretion would be heard at the same time as the question of jurisdiction and that may encompass any application for it being heard as amicus, but because of the alternative bases it could be done, as it were, at the end rather than at the beginning.
HIS HONOUR: At the end of what?
MR SPIGELMAN: In accordance with the time table that we have both handed up, namely, that people address on all issues, including the question of intervention in the way they have done - in the order that we suggested.
HIS HONOUR: Yes.
MR SPIGELMAN: That would have the media interveners at the end, if your Honour pleases.
HIS HONOUR: Yes. As to those applicants for leave to intervene, is there any agreement amongst counsel as to the order in which they should be presented? If so, whoever is first on the list could he please come forward.
MR JACKSON Your Honour, we are first on the list and I think we were the first to apply for leave to intervene.
HIS HONOUR: Yes.
MR JACKSON We have, in fact, discussed amongst ourselves today the courses that might be taken. Your Honour, I do not know that it is possible to say that we are all in agreement about what should happen but we would estimate that - I am sorry, your Honour, I am putting it badly. What I am seeking to say is this: the course that I would seek to advocate is the one that my learned friend Mr Spigelman just put to your Honour, and that is the course B, that the intervener or the applicants for intervention come at the end of the case, as it were, and in those circumstances your Honour would appreciate that the arguments that our side would seek to be supporting are arguments that would have been put, I suppose, in large measure by Mr Spigelman, for example, and of course also by Mr Castan, both of whom would have addressed immediately before us. So that means that there is some abbreviation in terms of time.
HIS HONOUR: Yes, but the problem about that, Mr Jackson, is that there are extensive written submissions which have been filed in accordance with directions by those seeking leave to intervene.
MR JACKSON Yes, your Honour.
HIS HONOUR: So the question for the Court to consider is whether those matters themselves - that is the written submissions - should be taken into account in determining the substantive issues in the case.
MR JACKSON Yes.
HIS HONOUR: That, with respect, seems to me to suggest that there is a dichotomy between the written submissions and the oral submissions which may not be realistic and there is a distinct and important question to determine as to either jurisdiction or procedure in relation to applications to intervene in this Court.
MR JACKSON: Your Honour, I would not disagree with the last matter your Honour has put to me, with respect, but the question which does arise is what is the best time at which to determine that and, your Honour, the position that will obtain no doubt is that there is an application for leave to reopen Theophanous and Stephens. That is brought by parties in two of the proceedings and there are those who have a right to intervene, as the matter presently stands, on those issues and they, with perhaps one or two complications, support that approach.
If those parties are heard first, no difficulty, with one perhaps matter arises to that point. The next thing of course is that then those arguing against that proposition are heard and it is at that point that, from our point of view, we would seek to intervene in support of those who have argued just before us. The material upon which we would seek to rely is material which - and, your Honour, I cannot say I have checked every paragraph of it again in the light of what has just been said by Mr Reynolds - is material in support of the application for leave to intervene and material which, in our case, in a fairly non-contentious way, suggests that the degree of reliance that in fact has been placed upon a decision of the Court. That is a matter commonly used before the Court, and what we would suggest that one would not think goes much beyond what one would expect from parties in the position that we are in to do.
HIS HONOUR: What would be the disadvantage in listing the question first of applications for leave to intervene and then, after the Court has had the opportunity to consider that, perhaps to rule on it, perhaps not, then proceeding with the hearing of the matter, bringing in the applicants leave to intervene if that application is granted at the heel of the hunt.
MR JACKSON: Your Honour, what it means is, if the Court does not rule on the question at the start then, of course, one’s argument is in two parts. I could not object to that, your Honour, and no doubt there would not be much duplication brought about by that, possibly some. But your Honour, a difficulty with it is that in dealing with the question of the exercise of the Court’s discretion, assuming there be a discretion, to allow intervention, that is the point at which it is really necessary to go to some degree to matters going to, say, the importance of the decision, the considerations militating against reopening, as matters which do cast some light upon the appropriateness of granting leave to intervene to the particular parties. So that, your Honour, one cannot deal with the question of granting leave to intervene, at least in our submission, as a question entirely discrete from, in terms of the arguments in support of it, the other issues such as the issue of the propriety of reopening and the ultimate decision in the matter, to some degree the latter.
HIS HONOUR: Yes.
MR JACKSON: Your Honour, all I am seeking to say is there is a considerable degree of overlapping of at least the application for leave to intervene on the one hand and, on the other hand, the considerations militating in favour of, or against, reopening. Now, your Honour, the other thing I think your Honour said was that a possibility might be that the decision was made at the start. Well, if the decision was made at the start and one is allowed to intervene, so be it. If it is made against us, so be it, your Honour. But if, as may be the case, the Court does not arrive at a concluded view at that point - and that may well be the case if there is a jurisdictional issue involved - then, your Honour, what has really happened is the case has simply been divided up into two parts, with the possibility of some duplication.
HIS HONOUR: Yes. It does, however, avoid any possibility of the difficulty that Mr Reynolds has raised affecting the question of whether or not leave should be given to intervene.
MR JACKSON: Your Honour, it is a question whether that issue ultimately has anything in it.
HIS HONOUR: Yes.
MR JACKSON: Your Honour asked me had there been a discussion about is it possible to deal with the position of interveners by one arguing, for example, or something like that. Your Honour, I think the answer is no, because there are some different aspects. But, your Honour, we have discussed the matter and the people seeking leave to intervene would take every possible step to avoid repetition.
HIS HONOUR: Mr Jackson, as at present advice - and I will hear whatever else is said by those who are seeking leave to intervene - my present inclination is to have the divided hearing, as it were, on that subject. But I would have thought that, at least in relation to the principal matters for submission, that is, if leave to intervene were granted and the interveners then were heard, there would be something to be said for, as it were, selecting one of your number to present the main argument.
There is a massive degree of duplication in the submissions that have been made by those who are seeking leave to intervene and I would have thought that rather than have time allocated equitably between each of them, there would be something to be said for allocating a block of time to somebody who would start off the argument, with a lesser time to the others.
MR JACKSON: Your Honour, we have discussed that aspect. One of the applicants for leave to intervene, the Media Entertainment Alliance, has a separate point that in effect would take - I think the estimate is about an hour. But, your Honour, subject to that, might we suggest that there simply be, if there is to be an allocation of time, an allocation of time to those seeking leave to intervene without seeking to cut up the time amongst them, because we could do that ourselves.
HIS HONOUR: That is quite agreeable, provided those who are seeking leave to intervene are agreeable to it, but I take it they are?
MR JACKSON: Yes, your Honour, that is as I understand the position to be.
HIS HONOUR: Thank you, Mr Jackson. Yes, Mr Williams.
MR WILLIAMS: Your Honour, Mr Jackson is correct in that inrepresenting the Media Entertainment and Arts Alliance, we would see our interests as being somewhat different from those of the other media proprietors. However, we might be able to subsume of our arguments on the point of jurisdiction within those of the other parties. However, we would seek to put some separate submissions on the merits of our intervention on the basis that we have a separate interest and, indeed, in some circumstances in the context of these matters there may even be conflict between, say, the members of my client and those of the other media proprietors.
We would also seek some different allocation of time in putting the substantive issues, should it come to that, in that in our submissions we do put quite a different argument from that of the media proprietors, particularly on the point of substance as to whether there might be some form of State action doctrine in Australia which, reading the submissions of the other media proprietors, does not seem to have been canvassed in anywhere near the same detail. So, if as present advised it went forward with one day perhaps at the beginning, we would seek some extra time, though, as has been put forward by Mr Jackson, we would also submit that many of the issues associated with putting forward the argument as to intervention, particularly as to the merits, would be similar or at least perhaps directly linked to arguments as to reopening and that there may be some duplication if that course was adopted.
HIS HONOUR: What do you say about the allocation of time on the preliminary question, if I can call it that, of jurisdiction and discretion?
MR WILLIAMS: We would need to have some discussions with the other interveners, but if we had one hour that would certainly enable us to put our different arguments.
HIS HONOUR: I am sure it would.
MR WILLIAMS: If we had one hour, your Honour, that would certainly be sufficient, but if we can reach some agreement, we would be able to put our separate arguments perhaps in half an hour and if we were, therefore, able to have perhaps another 45 minutes if we were given leave to intervene at the end of the hearing, that in totality would be all that we would need.
HIS HONOUR: Yes. Well, that seems a very optimistic estimate. The written submissions already are quite extensive and the need for repetition of those submissions or the extensive citation of authority which is already noted would not be necessary, but, however, I hear what you have to say.
MR WILLIAMS: That is correct, your Honour, and we would simply base our allocation of time on the point that we would like to put quite a novel argument to the Court based upon the State action doctrine. We
would also point out that in our submissions we do make extensive use of overseas authority which either applies or refers to exactly the same issues used in the Theophanous Case and, again, your Honour, we would seek some time to put those submissions given that they do not seek to be thoroughly canvassed in the submissions either of the parties or of the other interveners and we would use that to our support our attempt to gain an amicus or intervention leave.
HIS HONOUR: Yes, thank you. Could I ask whether there are any other applicants for leave to intervene who wish to make any submissions as to the division of the matter into the jurisdictional and discretionary questions and the question of the main issues. Now, that being so, I will indicate that the directions will have that division between them so that the proceedings will commence with an application for leave with the applications for leave to intervene, followed by those who might have jurisdictional questions to raise and who might be minded to make submissions as to the exercise of a discretion to admit. In the light of that intimation, could I have some submissions from those who are seeking leave to intervene, other than Mr Williams, as to the block of time that would be necessary for the making of oral submissions. Mr Jackson.
MR JACKSON: Could I suggest two hours.
HIS HONOUR: Yes. Mr Williams, you want how long?
MR WILLIAMS: Could we have half an hour.
HIS HONOUR: Mr Solicitor for Victoria, are you likely to require any length of time? I know it is hard for you to say at this stage.
MR GRAHAM: It is difficult, your Honour. I would desire to seek instructions and to reflect upon the form in which the submissions we make to the Court would take. I would certainly be reluctant to decline what could be characterised as a request by the Court for assistance and to become the contradictor and if perhaps we can at least provide some submissions to the Court which will be of assistance by providing a countervailing view, I will seek instructions to enable me to do that.
HIS HONOUR: Yes.
MR GRAHAM: I am conscious of the fact that my learned friend, the Solicitor for the Commonwealth, does not appear to wish to participate in this part of the case, although one would have thought that it was a matter of concern to all Solicitors-General.
HIS HONOUR: I propose to call on the Solicitor for the Commonwealth to inquire whether he has any submissions that are likely to be made with respect to jurisdiction if not discretion.
MR GRAHAM: Yes. Your Honour, may I perhaps, your Honour having used the word “tantalising” earlier this morning, touch upon the tantalising point about the conferral of a statutory right to intervene. We had not anticipated that that aspect of the matter would need to be canvassed in the context of this case. I am thinking in terms of the provisions of section 78A of the Judiciary Act. We do not apprehend that it will be necessary to examine that section for the purposes of determining the jurisdictional matter which arises on application for leave to intervene.
HIS HONOUR: Mr Castan, have you got any submissions as to how long you may wish to take?
MR CASTAN: If we became a contradictor one could imagine that it would be perhaps two hours; but I would not anticipate that we would become a contradictor unless there was no other contradictor.
HIS HONOUR: Yes, thank you.
MR CASTAN: So, if my learned friend the Solicitor for Victoria takes on that role we will not be participating in that part of the case, your Honour.
HIS HONOUR: Mr Reynolds, I take it you are uncertain also as to the time you might take, if any.
MR REYNOLDS Yes, your Honour, but I can hazard a guess that we may want half an hour to direct submissions confined probably to the issue of whether the media are interveners or amici, whatever they are, can adduce evidence which is, as it were, part of the lis before the Court. I may want to put a submission on that in line with what I have already said.
HIS HONOUR: That may arise on a question of admissibility of evidence on the principal argument if they are given leave.
MR REYNOLDS Yes, your Honour.
HIS HONOUR: Yes, thank you. Mr Solicitor for South Australia, are you likely to take any time beyond that which might be taken by a perusal of your notes or argument?
MR SELWAY: If we did, your Honour, if would only be five minutes or something like it. I would expect that a perusal of our written argument would be all that we would wish.
HIS HONOUR: Yes, thank you. Mr Solicitor for the Commonwealth, are you likely to make any submissions on the question of jurisdiction?
MR GRIFFITH: No, your Honour, but we would say that Mr Jackson has no standing to raise the issue of the statutory right of States and the Commonwealth to intervene under the Judiciary Act provisions.
HIS HONOUR: Yes, quite. I think the appropriate allocations of time in respect of the question of interventions would be two hours for those who are seeking leave to intervene other than the Media Entertainment Alliance. Twenty minutes for the Media and Entertainment Alliance and 40 minutes for those who would be minded to raise any question of jurisdiction or to make any submissions with respect to the exercise of discretion. That last mentioned time, however, being subject to amendment if, on consideration of the matters, there are issues of greater moment than are presently foreseen. If any of those who are minded to raise questions of jurisdiction or discretion wish to do so as matters of considerable substance, it would be necessary for them to make application not less than 14 days before the hearing date for any variation of this proposed timetable.
That raises the question of whether there should be any further written submissions on the question of jurisdiction or the exercise of discretion. One such submission has been received from the Solicitor‑General for South Australia but with respect to the question of discretion only. I would ask that any who are minded to make any submissions with respect to jurisdiction by way of raising the question, either as a contra dicta or by way of assistance to the Court, should make their written submissions available not less than 21 days before the date set for the hearing of the case. That will allow some consideration then to be given to whether or not there is going to be any amendment to the oral time that has been allocated.
In relation to the applications for leave to intervene, any submissions which should be made by any of those parties with respect to jurisdiction or any additional submissions that might be made with respect to the exercise of discretion, should be made within 14 days prior to the hearing of the application.
MR GRAHAM: I think there is a difficulty about the 21 day time limit, your Honour, mentioned. I think ‑ ‑ ‑
HIS HONOUR: Is that so?
MR GRAHAM: I think it would expire on Monday.
HIS HONOUR: Is it as close as that?
MR GRAHAM: I fear so, your Honour.
HIS HONOUR: Yes. Well, in that case, obviously ‑ ‑ ‑
MR GRAHAM: Perhaps I am more conscious of these things than others.
HIS HONOUR: Yes, you are quite right, thank you.
MR GRAHAM: I think the case starts three weeks on Monday.
HIS HONOUR: Then I think where I said “21” read “14”; where I said “14” read “7”.
MR GRAHAM: If your Honour pleases.
HIS HONOUR: As to the order in which the proceedings should be conducted, the proposal that Victoria should commence, followed then, I think, by Mr Lange - is that correct, Mr Solicitor?
MR GRAHAM: Yes, it is, your Honour.
HIS HONOUR: How long would you expect to take, Mr Solicitor, in relation to the Theophanous and Stephens questions?
MR GRAHAM: We had thought a day, your Honour.
HIS HONOUR: A day. Mr Reynolds?
MR REYNOLDS: Your Honour will recall from the two questions stated that my client has to make submissions on two issues; first of all, what I will call the constitutional defence and, secondly, the common law defence. Your Honour, we would ask for a day, but I shall try and curtail that.
HIS HONOUR: Yes. Now, there is a problem that arises in your case as well as to the non‑reliance on particular paragraphs of the defence by the ABC.
MR REYNOLDS: Yes, your Honour. Your Honour will have seen that there has been an affidavit filed and no notice of motion. I will explain that in a moment. What has happened is that most of the media interveners, if I can call them that, have abandoned the ABC, effectively, on its argument that the constitutional defence extends to criticism of New Zealand members of Parliament.
HIS HONOUR: I have read the affidavit, Mr Reynolds.
MR REYNOLDS: Perhaps conveniently from the affidavit, if your Honour compares the form of the defence as it previously read, your Honour will see we ‑ ‑ ‑
HIS HONOUR: Have particulars been provided of subparagraph (i)?
MR REYNOLDS: No, your Honour. We would say that particulars have already been provided in that when your Honour looks at the defence, certainly as it formerly stood, it is particularised first of all in paragraphs (ii) and (iii) and then (ii), (iii) and (iv), so that there is no need for that. So that if, as we say, we are presenting our argument on the basis of the case as stated by your Honour, there is no need to seek particulars because they have already been provided. But if the ABC is permitted, as they say they are, to abandon the remaining paragraphs, then that does leave the remaining single paragraph without particulars.
What we are proposing to do as a matter of practicality is this, your Honour, that we will seek particulars of subparagraph (i), whilst still preserving our position that we are entitled to present our argument on the basis of the case as originally stated.
HIS HONOUR: Well, one question that this touches, of course, is whether this is an appropriate vehicle for considering the question of Theophanous and Stephens, because it may be arguable that the circumstances of the case are such that Theophanous and Stephens has no application to it, which is, I understood, one of your arguments.
MR REYNOLDS: Yes, your Honour, and my client does not want to dissuade the Court from any reason from supporting the answer that he wants to the first question as stated. In other words, he is quite content to have the Court hold the defence bad in law because it extends to New Zealand, full stop, and no necessity to consider the anterior question of whether the Theophanous defence is good law. That is correct, your Honour.
HIS HONOUR: Yes. I think perhaps I should hear Mr Spigelman on this question before going further on the allocation of times.
MR SPIGELMAN: Your Honour, the three matters that were raised in those paragraphs, two of which were abandoned in the submissions, reflect, in precise terms the three separate matters in the question in Theophanous.
There is absolutely no way that the second and third were ever particulars of the first; they were, in precise terms, substituting the word “New Zealand” for “Australia,” the words of the precise question answered in Theophanous. They were each alternatives. All that has happened is that we have abandoned two of the three alternatives we pleaded. In accordance with the Rules of the Supreme Court, we gave particulars of qualified privilege, which the Supreme Court requires; we gave no particulars of the allegation in paragraph 8 of the stated case. I am not quite sure if your Honour is looking at the statement of claim or the stated case. They are reflected in paragraph 10, I think, of the statement of claim, and paragraph 8 of the stated case, as I recall.
HIS HONOUR: Yes. Now, looking at paragraph 10, omitting (a)(ii) and (iii) and (b)(ii) and (iii), “The freedom which is contended for is a freedom in the course of discussion of government and political matters”. Is that intended to mean a discussion of matters which relate to the government and politics of any country, or any subject of government and politics?
MR SPIGELMAN: We have addressed this matter at paragraphs 58 and following of our written submissions. We concede completely that the Court can distinguish Theophanous by reason of the nature of the subject matter. But in paragraph 58 and following, we put the submissions we make as to why the matters of discussion about New Zealand are, in fact, the subject of permissible and protected political discussion in Australia. So, my friend’s affidavit proceeded on the false premise that we had narrowed, in some way, the issues before the Court by removing the question of the scope of the protection. Paragraphs 58 through to 65 of our submissions make it clear that we accept that that is a live issue under paragraph (a).
BRENNAN CJ: In other words, it is a question of construing Theophanous in order to determine what the scope of the political and governmental discussion is.
MR SPIGELMAN: It is possible for the Court to ‑ ‑ ‑
BRENNAN CJ: That is, discussion in Australia of matters which are governmental or political.
MR SPIGELMAN: Yes, for the two reasons we advanced; namely, the subject matter of Australia’s relations with New Zealand is the subject of political decision within Australia, and experience of political matters in New Zealand can inform debate within Australia. They are the alternative ways we put it, but the issue has not been changed. All we have abandoned is an alternative way of putting it.
BRENNAN CJ: So far as the factual foundation for this submission is concerned, I take it that there is no departure from that which was first pleaded in relation to the subject matter that was the subject matter of the publication complained of.
MR SPIGELMAN: No. All we have done is said there are three alternative ways Theophanous says you have a constitutional defence. We now rely only on one of them.
BRENNAN CJ: Yes. So, the discussion of the matter which was published by the defendant is a discussion which comes within the Theophanous protection.
MR SPIGELMAN: That is what we submit. But we acknowledge the Court could distinguish Theophanous by making a decision about whether that submission is correct and not deal with the question of reopening by distinguishing Theophanous and say political discussion does not extend in the way we have submitted it does. In our submission, there is no question of an amendment, either of the pleadings or of the stated case. What we had were three alternative ways in which the constitutional protection was formulated in Theophanous, and we now rely on only one of them. But in no respect have we changed, we think, the issues before the Court.
BRENNAN CJ: Am I right in saying that you treat your paragraphs in the statement of claim as alternative formulations of the rule, or the principle which was stated in Theophanous?
MR SPIGELMAN: We pleaded in accordance with the precise tripartite answer to the question that the Court gave in Theophanous; namely, each of those paragraphs, (a), (b) and (c), are precisely reflective of (a), (b) and (c) in the question that was actually answered in Theophanous.
BRENNAN CJ: And so, Mr Reynolds still has the task ahead of him, if he chooses to take it, to argue that Theophanous has no application to the present case.
MR SPIGELMAN: As is plain from our written submissions; namely, we indicate that in that passage I have taken your Honour to.
BRENNAN CJ: Mr Reynolds, does that alter the time which you are likely to want?
MR REYNOLDS: Your Honour, can I just respond to that first? First of all, we suggest this is an amendment, and the reason that your Honour can tell that it is is that if paragraphs (a)(ii), (iii) and (b)(ii), (iii) and (iv) are deleted, your Honour simply has two averments that it is in the course of discussion of government and political matters. Now, I if that is the case, the pleading just reads like a nonsense; that is, it just says the same thing twice.
The other thing is that, as my friend said, this is a form of qualified privilege. In the Supreme Court he was obliged to particularise it. We have assumed that this pleading is the defence, as particularised in accordance with the rules. That is why we say that subparagraphs (ii) and following ought to be treated as particulars. The other thing I wanted to say is this, your Honour ‑ ‑ ‑
BRENNAN CJ: Now, I understand (ii) and (iii) from paragraph (b) have been deleted, but not (iv), is that correct? (iv) has gone also?
MR REYNOLDS: Well, there has been a recent amendment further to the submissions by the ABC to drop (iv) out as well. One might well ask, what is paragraph (b) doing in their now? It says - it is in the course of discussion ‑ ‑ ‑
BRENNAN CJ: No doubt you will be asking that question.
MR REYNOLDS: Your Honour, the other thing is this, that if your Honour goes to paragraph 11 of the stated case, there are subjects of public interest which are pleaded in relation to the common law qualified privilege defence. It is on page 67 of the Case Stated Book.
BRENNAN CJ: Yes, paragraph 11.
MR REYNOLDS: It may be convenient for those to be treated, if my friend is going to provide particulars of the averment in paragraph (i), for
those particulars to be treated as the particulars of paragraph (i), rather than leave a pleading which, on its face, does not mention New Zealand at all. My client is taking a pleading point and, because there is no reference to New Zealand in the pleading, it is, on one view, very difficult to assert that the pleading is bad in that it includes New Zealand matters. If paragraph 11 was to be treated as the particulars of the averment in paragraphs 8(a)(i) and (b)(i), that may get around the procedural problem.
BRENNAN CJ: Mr Reynolds, I do not think that I am in a position, at this stage, to deal with the form of the pleadings. If that was a subject of importance preliminary to the determination of this matter, it would be necessary for a separate application to be made. It is, perhaps, open to you to seek particulars, which Mr Spigelman may choose to give. If not, then the remedy must be in your hands.
MR REYNOLDS All right, your Honour.
HIS HONOUR: Thank you. The intervening States in support of the submissions of Victoria and Mr Lange, is there any agreement as to the order in which they should appear - I am sorry, Commonwealth and States - and what times are likely to be needed? Mr Solicitor for the Commonwealth?
MR GRIFFITH: Your Honour, there seems to be a choice of whether the Commonwealth should as intervener go first, as it usually does, or whether, your Honour, because the Commonwealth argues that Theophanous and Stephens should be reopened and overall but, nonetheless, the same result should obtain by reworking the common law defence. It may be that the order proposed in Mr Spigelman’s short minutes of order that were handed up, your Honour, would be appropriate. So that, your Honour, we would be quite content to go after Queensland, South Australia and Western Australia.
HIS HONOUR: Yes.
MR GRIFFITH: So far as time is concerned, your Honour, our submissions were of course filed before the new practice direction and is some 52 pages. In as much as leave might be required, your Honour, we ask for leave that they stand as our submissions.
HIS HONOUR: I do not think you need any leave in relation to that. These submissions were filed before the new practice directions came in, but that is something we can consider after we have disposed of these arguments, I think.
MR GRIFFITH: If your Honour pleases. Your Honour, they are our full submissions and we would request no more than two hours to deal with them. Your Honour, I have not discussed matters with the States because really their interests are separate from us, your Honour. We argue same result, different means, and we do not detect that we have States other than New South Wales with us on the fall-back position on that.
HIS HONOUR: Yes, thank you. Perhaps, looking at the order that Mr Spigelman has suggested then, I should call next on Mr Campbell for Queensland.
MR CAMPBELL: If your Honour pleases, Queensland itself would take no more than 10 to 15 minutes and by consensus with the learned Solicitors for Western Australia and South Australia probably no more than an hour with all the intervening States which would be supporting the defendant in the proceedings.
HIS HONOUR: I am sorry, would you say that again.
MR CAMPBELL: No more than an hour for all the intervening States which would be supporting Victoria in this particular matter.
HIS HONOUR: I see. So Queensland, South Australia and Western Australia together would be an hour, is that right?
MR CAMPBELL: A period of that order, yes.
HIS HONOUR: Yes, thank you, Mr Campbell.
MR CAMPBELL: As your Honour pleases.
HIS HONOUR: I take it you agree with that, Mr Solicitor for South Australia and Western Australia? Yes. New South Wales, yes, Mr Katz
MR KATZ: Your Honour will be aware that alone among the intervening Attorneys the Attorney‑General for New South Wales submits that the judgments in Theophanous and Stephens should be maintained, so that we are in a somewhat different position than all of the other Attorneys. The question of time, with respect, appears to me to involve the Court’s decision on an antecedent question, and that is this: my learned friend, Mr Graham, said that he and my learned friend, Mr Castan, had reached agreement as to what was to be done with the balance of the Levy Case apart from the Theophanous and Stephens aspect of the matter. I take a different view than they about what ought to be done with the balance of the Levy matter. Would your Honour hear me on that now?
HIS HONOUR: Yes.
MR KATZ: When the Levy matter was argued as a matter of substance before the Court on 6 August 1996 and my learned friend, Mr Graham, rose to his feet to begin the defendants’ submissions there was then discussion about the question of reopening, and in the transcript at page 92 your Honour said this to my learned friend, Mr Graham:
if, whatever might be the view taken as to the scope or operation of the two cases, this case falls outside it, the problem of reconsidering those cases may not arise. That raises another problem about the application for leave to reopen.
Your Honour, my client’s position is that whatever view may be taken as to the scope or operation of Theophanous and Stephens, Levy’s Case does fall outside it. In those circumstances it will be my submission that Levy is not an appropriate vehicle to reconsider the correctness of Theophanous and Stephens. In order to be satisfied as to that Your Honours must hear the balance of the argument in Levy’s Case, in my submission. If that course is taken I would require more time than if my submissions were directed solely to the question of the correctness of Theophanous and Stephens.
In my submission, the appropriate course is for the Court to hear the balance of the Levy matter before deciding the question of reopening. In my submission, the Court after hearing the balance of the matter will be satisfied that Levy is not an appropriate vehicle. Your Honour, I will be making the same submission about Lange’s Case but no question arises there of a necessity to inquiry into other issues in the same way as, in my submission, it does in Levy’s Case. So that without knowing how the Court proposes to proceed with respect to the balance of Levy I am in a difficulty as to the estimate of time.
HIS HONOUR: Clarify for me, if you would, the submissions on behalf of the Attorney, as I understand it, say, first, that Theophanous and Stephens should not be reopened.
MR KATZ: Reopened, yes.
HIS HONOUR: And then the argument in support of that is simply that Theophanous and Stephens does not apply to either of these cases.
MR KATZ: Well, yes.
HIS HONOUR: Are there any other submissions that are intended to be made on behalf of the Attorney?
MR KATZ: Yes, there would be a submission - I am sorry, I do not have a copy of my own submissions with me at the lectern, but there is a reference to the question of prospective overruling, which finds some place in quite a number of the submissions. I think, with respect, probably the language “prospective overruling” might not have been appropriate. Perhaps that more appropriate language ought to have been whether or not any reversal of Theophanous and Stephens ought to operate in a fully retroactive way.
HIS HONOUR: Yes.
MR KATZ: So it very much depends on how things fall out, but certainly one of the applicants for discretionary participation in the proceedings has made a submission as to the absence of power in the Court to reverse decisions other than fully retroactively. I would wish to be heard on the question of the power of the Court to reverse Theophanous and Stephens, if it should do so, other than fully retroactively.
HIS HONOUR: Yes, I understood that that was another issue that was intended to be raised, but are there any arguments which are intended to be put in support of the correctness of Theophanous and Stephens, assuming that they did have some application to these cases?
MR KATZ: None that would take any time, your Honour.
HIS HONOUR: Yes, very well.
MR KATZ: The burden of my song is that properly construed the cases do not have the reach which is suggested for them, for instance, by the applicants for discretionary participation. Once that is recognised they are seen not to assist respectively the plaintiff in Levy and the defendant in the Lange matter. So I would want to devote some time to seeking to support my submission as to the true meaning of the two cases, some time to the question of the power of the Court to overrule the cases if it should to do so other than fully retroactively. So those are two matters I would wish to deal with in any event and then depending on the attitude of the Court to the question of the balance of Levy, I would wish to be heard, and no doubt if your Honour took the view that it was appropriate to deal with the matter in that way, my learned friend,Mr Graham, would wish to be heard on the balance of Levy
HIS HONOUR: Yes, and assuming that you were heard on all of those matters, how long would you require?
MR KATZ: I would think three hours, your Honour.
HIS HONOUR: Do you see any difficulty about your being heard at the time or in the slot which has been allocated in this suggestion from Mr Spigelman?
MR KATZ: In Mr Spigelman’s document. It appears to me to be the fairest place for me to be in the circumstances because it will give those who follow me whom I ultimately support an opportunity to contradict me.
HIS HONOUR: Yes, very well. Thank you, Mr Katz.
MR KATZ: If your Honour pleases.
HIS HONOUR: Mr Spigelman.
MR SPIGELMAN: We have indicated on the list that we would seek one day.
HIS HONOUR: You would take a day.
MR SPIGELMAN: As we understand it, being four and a half hours.
HIS HONOUR: Mr Castan.
MR CASTAN: Your Honour, on the assumption that - leaving aside what has been put by my learned friend, Mr Katz, for the moment, on the assumption we were going forward on the basis that we were dealing in substance with Theophanous and Stephens issues, we would anticipate two hours. If what has been foreshadowed by my learned friend, Mr Katz, were to be adopted, what is entailed in that, it would seem, is the necessity to have as a second preliminary issue before the whole argument on reopening and the substance of Theophanous and Stephens if leave is granted, the conclusion of the rest of the argument in the Levy Case, the conclusion of my learned friend, Mr Graham’s argument in that case which had not really commenced, and then the reply, only then would, according to the way in which my learned friend, Mr Katz, has put it, would one be in a position to make that sort of judgment.
If that is the route we are going down, and the whole of Levy, including all of the rest of the argument might be put in it is to be canvassed, then I suspect the time estimate my learned friend, the Solicitor for Victoria has given, and certainly my time estimate would be entirely different, and the sequence would be entirely different. For that reason that we have foreshadowed the putting over of those issues. It just seemed to us impractical to try and ‑ ‑ ‑
HIS HONOUR: What is the time limit which you would require on that footing?
MR CASTAN: On that footing?
HIS HONOUR: Yes.
MR CASTAN: Including reply which would follow.
HIS HONOUR: Yes; that is dealing with Theophanous and reply.
MR CASTAN: No, it is Theophanous and reply, assuming that my learned friend, Mr Graham, the Solicitor for Victoria, has completed the whole of his argument.
HIS HONOUR: Deal with him separately. How long will you take?
MR CASTAN: A day, your Honour.
HIS HONOUR: Yes, very well, thank you. Mr Jackson, in relation to the interveners other than MEAA.
MR JACKSON: Your Honour, on the assumption that there had been the earlier argument, I would expect myself to take, for example, an hour or a little less, but with the other interveners altogether, if I could make an estimate, your Honour, perhaps two hours, two and a half hours.
HIS HONOUR: Two and a half hours altogether.
MR JACKSON: Your Honour, that is my estimate. It is an arbitrary thing.
HIS HONOUR: What I am thinking is, if it is a block allocation, is that the time which is sought to be divided.
MR JACKSON: Your Honour, that is the time I would suggest, if I may.
HIS HONOUR: Yes, thank you. Mr Williams.
MR WILLIAMS: Your Honour, again we would seek not to be included within a block of time that might be given to the other media proprietors. We would seek a separate allocation of perhaps 45 minutes if the Court wished to hear our argument on the State action doctrine. Otherwise, we could put our arguments in 30 minutes.
HIS HONOUR: Yes, thank you. There would, of course, have to be replies on the Theophanous issue from Victoria and Mr Lange. Mr Solicitor, I suppose it is difficult for you to say at this stage how long you would want in reply?
MR GRAHAM: Your Honour, we would certainly like part of the last day which sounds like we would be reaching.
HIS HONOUR: We will have to add all this up and see what goes.
MR GRAHAM: The last day I took to be the Friday of the first week in March, your Honour. It seemed likely that we would go beyond four days in the light of what has been suggested to your Honour this morning.
HIS HONOUR: Yes. What do you say about the question that has been raised by Mr Katz?
MR GRAHAM: Yes, your Honour, I was going to seek to be heard on that point. My estimate of a day might be a little ambitious in the light of what was said, and certainly in the light of what my learned friend, Mr Castan, said in response to it. Your Honour will recall the course of events before the Court when the matter was previously being heard, and we had prepared submissions on the basis that leaving aside Theophanous and Stephens altogether, that we were able to succeed, and that part of the argument was not developed, and we would anticipate perhaps another two hours in order to do justice to that.
There is a dilemma, your Honour. It was perceived on that previous occasion as to which part of this case logically should be dealt with first by the Court, but as matters now stand, it would seem that the Theophanous and Stephens matters have to be argued out even if in the end in the Levy Case they do not ultimately call for decision. We would seek perhaps a day plus a further two hours if the whole of our case is to be argued in a single session.
HIS HONOUR: Yes, and you would want some time in reply?
MR GRAHAM: And some time in reply, your Honour.
HIS HONOUR: Yes, and I take it, Mr Reynolds, you would want some time in reply?
MR REYNOLDS: Yes, your Honour, I could not provide any better estimate.
HIS HONOUR: There is also an application for leave to be admitted as an amicus on the part of the Press Council, I think. Mr Flint.
MR FLINT: The Press Council does not seek to intervene, but merely to be recognised as amicus, and as amicus, not to make any oral submissions but to be available in such ways as the Court may wish to assist the Court.
HIS HONOUR: Yes, thank you very much, Mr Flint. It is a question then for the Court to exercise its discretion as to whether it will have reference to the written submissions and whether it would seek any further assistance from the Australian Press Council.
It seems to be desirable to allocate times in a way which, in a sense, can be the most pessimistic; that is to say, that all applications for leave to intervene will be granted and that the parties would wish to take the times that they have mentioned in their submissions. It is now a question of seeing how that fits in to the time that is available to the Court. It may be desirable, I think, if we adjourn briefly in order to do that, but I would like to mention one other matter, and that is the question of written submissions in relation to the question of jurisdiction and discretion to admit interveners and, in particular, whether those who are seeking leave to intervene might put into a separate document, in as brief a form as possible, the argument in favour of the existence of jurisdiction, and in favour of the discretion to admit those respective applicants as interveners. I have in mind that those written submissions should be available 14 days before the hearing. Perhaps I could call first of all on Mr Williams. Do you see any difficulty with that?
MR WILLIAMS: No, your Honour.
HIS HONOUR: Mr Gleeson.
MR GLEESON: Your Honour, in terms of the date, I think your Honour earlier directed similar submissions seven days before - - -
HIS HONOUR: Yes, very well, seven, thank you.
MR GLEESON: The only other matter, your Honour, is that the endeavour would be that five interests join in producing one document. Could there be a permission for any truly separate matters upon which unanimity cannot be reached to be added at the end of that document with the appropriate author or client identified?
HIS HONOUR: Yes, certainly. It would obviously be of assistance if it could be reduced into one document. I have no guarantee, of course, that that can be done. So all I could say is, by all means, let it be done in one document with supplementary documents. If that cannot be done, it will have to be done as separate documents.
MR GLEESON: If your Honour pleases.
HIS HONOUR: Mr McClintock for Nationwide News. Mr Nicholas, yes.
MR NICHOLAS:Your Honour, we have no difficulty with, if I may so, Mr Gleeson’s suggestionfor seven days.
HIS HONOUR: Yes, thank you. Mr Finkelstein.
MR FINKELSTEIN: No difficulty with that, your Honour.
HIS HONOUR: Mr Jackson.
MR JACKSON: We are in the same position.
HIS HONOUR: Have I covered all the applicants for leave to intervene in those inquiries? Yes, Mr Solicitor.
MR GRAHAM: Your Honour, I am a little unclear in my mind as a result of what just happened as to whether any submissions contradicting the existence of jurisdiction should precede or follow submissions by the applicants pursuant to the direction your Honour just gave. I think the position was that any such contradicting submissions would be provided 14 days before the hearing commenced, that is to say, by Monday week, and that the submissions in support of jurisdiction would be Monday fortnight. I just wish to make it certain that that was the ‑ ‑ ‑
HIS HONOUR: Yes. Do you see any difficult in that?
MR GRAHAM: No, I do not, your Honour.
HIS HONOUR: Very well, thank you. Before I adjourn in order to allocate these times, is there any other matter on which directions are required or requested? Then I will adjourn briefly in order to consider what times might be allocated.
AT 11.00 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.19 AM:
HIS HONOUR: The times that have been discussed this morning I think probably demand some rescheduling of the Court’s lists of cases for hearing in the March sittings, so that the times that I am about to mention will run over until the second week of the sittings, that is, the Monday. Before determining those times, does that change in the allocated dates occasion any difficulty for any of the parties?
MR SPIGELMAN: Yes, it does, your Honour, in my case I must say. I would not be able to represent the ABC on Monday by reason of a statutory appointment. It would not be a problem for the ABC if the matters associated with the balance of Levy were to be dealt with at that point.
HIS HONOUR: I think that is the situation. My present proposal is that you would be finished at 3.45 pm on the Thursday, but the interveners, that is Mr Jackson and the other interveners, would be heard on the Monday morning.
MR SPIGELMAN: I do not anticipate any difficulty, your Honour. I will not be present, but there are two juniors.
HIS HONOUR: You will be sadly missed, Mr Spigelman.
MR SPIGELMAN: If your Honour pleases. Your Honour will have me the next morning.
HIS HONOUR: The times that I am about to mention are the times which I think would represent, if leave to intervene is given, an appropriate allocation of times to which I would invite all counsel to adhere with some strictness and, indeed, in the hope that there might be an abbreviation of the times that have been allocated. In some instances, as you will note, it has been not possible to allocate the full amount of time that has been sought. I think it might be easier if I were to start referring to the times as of the days on which the Court will be sitting to hear these matters.
Monday, 3 March at 10.15, applications for leave to intervene by parties other than Media Entertainment Alliance; 12.15, Media Entertainment Alliance; 12.35, respondents to the applications for leave to intervene or the parties who are seeking to make submissions with respect to jurisdiction or a discretion to intervene. At 2.45, Victoria would commence its submissions, which would then take it to 12.45 on the following day, that is, Tuesday, 4 March. That is an allocation of four hours.
Next would be heard Mr Lange’s counsel, again for four hours, from 2.15 on Tuesday, 4 March to 12.15 on Wednesday, 5 March; followed by the Commonwealth for one and a half hours from 12.15 until 3.15 that afternoon. At 3.15 to 4.15, Queensland, South Australia and Western Australia would be heard. On Thursday, 6 March at 10.15, New South Wales would be heard; at 11.15 the Australian Broadcasting Commission for three hours to 3.45 pm that day. At 3.45 pm, Mr Levy’s counsel would be heard for a period of four hours terminating at 3.15 on Friday, 7 March.
No time is allocated in respect of the period from 3.15 to 4.15 on Friday, 7 March. On Monday, 10 March, the interveners, if leave is given, would be heard from 10.15 to 12.45 and the Media and Entertainment Alliance from 2.15 to 2.45, followed by replies by counsel on behalf of Lange and Victoria.
There is one other matter that I would mention, and that is, on the question of prospective overruling, if I have understood the written submissions correctly, there are some parties who have not sought to make any submissions on that question. Mr Castan, are you likely to be making any submissions on that question?
MR CASTAN: No, your Honour.
HIS HONOUR: Mr Solicitor for South Australia?
MR SELWAY: No, your Honour.
HIS HONOUR: Mr Campbell.
MR CAMPBELL: No, your Honour.
HIS HONOUR: And Channel Seven. Is that yours, Mr Gleeson?
MR GLEESON: At the present, no, your Honour.
HIS HONOUR: I think you might have something to say about that, Mr Spigelman?
MR SPIGELMAN: No, we make no submissions.
HIS HONOUR: Very well. Yes, Mr Solicitor.
MR GRIFFITH: Your Honour, in respect of overrulings, the submission of the Commonwealth would be if that is seen by the Court to raise as an issue, it should be set down for separate hearing.
HIS HONOUR: The question of prospective overruling?
MR GRIFFITH: Yes, your Honour, after the judgment of the Court otherwise.
HIS HONOUR: Could I have that submission fleshed out a little?
MR GRIFFITH: Your Honour, firstly, it would seem to be a constitutional issue, whether or not the Constitution does authorise the exercise of Chapter III power to embrace a concept of propective overruling. It would seem, so far as exercise of Chapter III power is concerned in Australia, to be a reverse of what we say is a constitutional approach which has proceeded for some 96 years. Your Honour, occasionally, prospective overruling has been flagged, particularly in written submissions filed by the former Solicitor-General for New South Wales, and the Court hitherto has not had to grapple with those issues.
It has always seemed to the Commonwealth, your Honour, that such an important issue should be dealt with as a specific issue when it truly arises for consideration by the Court as an important constitutional matter. One only has to have reference to the controversy, your Honour, which is current and even more inflamed of late in the various judgments in the United States Supreme Court to see the sort of issues which are embraced in that short expression, your Honour, and it seems to us, your Honour, quite clear that it is not possible in the course of the arguments and the time limits and the allocations to date, for those issues to be brought and argued before the Court with the necessary care and attention which would be required.
At the moment, your Honour, it would seem that no 78B notice has been given, but that is perhaps just a procedural point. But our submission is that all pointers are that if that is a matter which the Court in its deliberations regards as a relevant issue in this case that matter should have been dealt with by the Court bringing the matter on again for argument on that issue, but it is not something we would submit, your Honour, which can be done en passant.
HIS HONOUR: Yes. I did not apprehend that from the written submissions of the Commonwealth. Have I not read them ‑ ‑ ‑
MR GRIFFITH: Your Honour, perhaps because of the fact that our written submissions were filed early in November and we did not see it as an identified issue. Indeed, even this morning until your Honour mentioned prospective overruling we still had not seen it as coming up that way but that is how we do see it and we regard that as a significant constitutional matter which, whatever parties are there, would involve the Court perhaps in three or four days.
HIS HONOUR: Yes.
MR GRIFFITH: So our submission would be, your Honour, it should be held over. We would be happy to renew this before the Full Bench but that is our approach.
HIS HONOUR: Yes, of course. I understand that. I think there are two questions that arise, of course. One is whether there is a necessity for a 78B notice in relation to these matters and ‑ ‑ ‑
MR GRIFFITH: Your Honour, we do not want to give it because we say it should not be raised.
HIS HONOUR: I appreciate that. I am just looking to see whether any of the parties are interested in giving it. I think none of the parties is interested in giving it. Is that correct?
MR GRIFFITH: If the interveners say they are, your Honour, we have got a double problem about what is there for ‑ ‑ ‑
HIS HONOUR: Yes, I appreciate that.
MR GRIFFITH: So we would not even ask them, your Honour.
HIS HONOUR: No, I can understand that, but it is correct that none of the parties wish to give a 78B notice on the question of power to prospectively overrule. That is right, Mr Solicitor?
MR GRAHAM: That is so, your Honour.
HIS HONOUR: Mr Reynolds?
MR REYNOLDS: Yes, your Honour.
HIS HONOUR: That is so, is it not, Mr Spigelman?
MR SPIGELMAN: Yes, your Honour.
HIS HONOUR: Mr Castan?
MR CASTAN: We do not seek it, your Honour.
HIS HONOUR: Yes.
MR GRIFFITH: That is that out of the way, your Honour, so perhaps that is the second point out of the way unless the Court of its own motion wishes to raise it and then we would say it was appropriate for separate hearing.
HIS HONOUR: Yes. Thank you.
MR CASTAN: Could I seek clarification, your Honour, on one matter?
HIS HONOUR: Yes.
MR CASTAN: There was a question of whether what I will call the other issues or the other matters in the Levy Case were or were not to be encompassed in the arguments in this hearing as planned and in the times as allocated and it was not entirely clear to us whether your Honour had acceded to the view that those issues should stand over or whether your Honour had assumed that my learned friend, the Solicitor for Victoria, would be, in effect, apart from anything to do with reopening and in addition to that, continuing the whole ‑ ‑ ‑
HIS HONOUR: Yes. The time which I have allocated is on the footing that the Court would require the matters which have thus far not been discussed in Levy to be discussed in Levy. That is the basis on which I have allocated the time and for that reason your time has been extended beyond the minimal time that you had required, but whether or not that is the
appropriate course is a matter which the Court itself may have to decide, particularly in the light of the submissions that Mr Katz will be minded to make. I would have thought that the appropriate thing, if I might say so, for Mr Katz to do is to flag with a little more fullness than his present submissions do the question of the necessity for the arguments in Levy to be completed in order that the question of the application of Theophanous and Stephens to the case can be considered and then the Court can at the opening of the proceedings give an indication to you as to whether or not that is the course which should be followed.
MR CASTAN: Yes, your Honour. I am indebted to your Honour for that.
HIS HONOUR: Yes. Do you see any difficulty with that, Mr Katz?
MR KATZ: No, I do not, your Honour, and I am happy to do that. May I say something about the question of prospective overruling though?
HIS HONOUR: You can be heard at this stage at all events.
MR KATZ: Yes. One of the matters upon which we would wish to rely against the reopening of the cases is the question of reliance on the earlier decisions, a matter which has already been discussed. That is a matter which loses its significance in the scheme of things if the Court has the power to overrule Theophanous and Stephens other than fully retroactively and is minded to do so. That has the effect that the question of reopening cannot be considered in isolation from the question of the power of the Court to overrule other than fully retroactively. With respect, that is as I see the position. So, if any question of prospective overruling is to be taboo during the course of the proceedings beginning on 3 March, there may be some artificiality about the Court’s approach to the question of reopening so far as reliance on the earlier decisions is concerned. If your Honour pleases.
HIS HONOUR: Yes, I appreciate that those matters are related in the way in which you have put them, but that does not mean that the issue of prospective overruling will necessarily be determined or heard in the course of a hearing of this matter.
MR KATZ: If your Honour pleases.
HIS HONOUR: Mr Solicitor?
MR GRAHAM: Your Honour, if I may just return to the matter that my learned friend Mr Castan raised a moment ago, perhaps I could make this submission. If it appears that the argument follows the course that we
would be presenting the whole of our arguments both on the Theophanous and Stephens matters and the balance of our case as a single argument, it might be necessary to review the four hours allocated to the State of Victoria, given that it might be just not possible to do justice to all aspects of the case in that time, but it is not really either possible to predict whether we would need the further time to present the balance of the argument. So perhaps I could simply reserve myself the right to apply for some further time if the need arises as the argument develops.
HIS HONOUR: Yes. Any party or person who has the right to be heard in these proceedings to whom time has been allocated is, of course, in the hands of the Court so far as the time is concerned. If applications are to be made for an extension of time, they should be made in precisely those terms at an appropriate time to the Court. If they are not made then it is to be expected that counsel will terminate at the expiration of the time specified.
MR GRAHAM: Yes, I was very conscious of that, your Honour, when I say what I just said. If your Honour pleases.
HIS HONOUR: Yes, thank you, Mr Solicitor. Now, there is one final matter and that is that there are some of the submissions which have been filed which are extremely lengthy, and no doubt helpful, but I have in mind, for example, I think it is Herald and Weekly Times. It runs to 55 pages. That does not really give the Court an opportunity as the matter proceeds to look at the submissions and to get an immediate impression of what might follow by way of oral argument. It would, therefore, be of assistance if those parties who seek to be heard orally would make some brief statement of their position in writing and have that available before the hearing so that the Court can see as each counsel rises to his or her feet what the issue is that is about to be addressed orally. Are there any other matters? Mr Finkelstein.
MR FINKELSTEIN: Thank you, your Honour. Just raising the question of prospectivity, our written submissions deal with that question in a little detail and we are not in a position to give notices to anybody yet because of our peculiar position and we will not have a position or we might never have a position but, if we do, we will not have a position until the hearing commences. It is just not clear to us at the moment whether your Honour is mindful to say whether the prospectivity issue is likely or unlikely to be dealt with at the substantive hearing or likely or unlikely to be deferred to a later time in accordance with the Solicitor for the Commonwealth’s request.
HIS HONOUR: I am not in a position to give any indication about that, Mr Finkelstein. One can see for the reasons that Mr Katz adumbrated that
on the question of whether or not Theophanous and Stephens should be revisited the question of the power of the Court to overrule prospectively might be raised by one or other of the parties. If that should be raised then no doubt the issue is, as it were, in the ring, but how far it is allowed to go into the ring is a matter entirely for the Court in the course of the hearing.
MR FINKELSTEIN: Yes, your Honour. Really the purpose for the question was to determine in relation to the last issue about preparing the summary of position whether prospectivity should be included in that if a party thinks it is appropriate to do so.
HIS HONOUR: I think that is a matter which in a very real sense is a matter for counsel’s discretion.
MR FINKELSTEIN: Yes, your Honour. Thank you.
HIS HONOUR: Are there any other matters? In that case I will adjourn.
AT 11.37 AM THE MATTER WAS CONCLUDED
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Procedure
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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