Louis v C of A

[1998] HCATrans 92

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H2 of 1997

B e t w e e n -

GRAHAM JAMES LOUIS

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE STATE OF TASMANIA

Second Defendant

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 1 APRIL 1998, AT 9.17 AM

Copyright in the High Court of Australia

MR G.J. LOUIS:   Mr Louis appeared in person.

MR P.A. BOWEN:   Your Honour, I appear for the Commonwealth of Australia.  (instructed by the Australian Government Solicitor)

MR D.J. BUGG, QC:   If your Honour pleases, I appear with my learned junior, MRS. J.F. GATES, for the State of Tasmania. (instructed by Director of Public Prosecutions (Tasmania))

HIS HONOUR:   Yours is the first application, I think, Mr Bugg, is it not?

MR BUGG:   Your Honour, I had, in fact, asked the Registry if it was possible for the Commonwealth to go first in the sense that it seemed to me that if the Commonwealth was successful I would not then trouble your Honour in relation to the matter.

HIS HONOUR:   Yes, very well.  Mr Bowen.

MR BOWEN:   Your Honour, I have advanced three grounds for striking out this claim.  I tendered an outline.

HIS HONOUR:   Yes.

MR BOWEN:   I rely firstly on the principle of absolute privilege.  I have referred to Dawkins v Lord Paulet and Chatterton v Secretary of State for India simply to set the scene.

HIS HONOUR:   What is the ground of absolute privilege in this case?

MR BOWEN:   The communication, as you will see from the statement of claim was a communication from the Australian Customs Service which was a service of the Commonwealth of Australia to Tasmania Police.

HIS HONOUR:   Yes.

MR BOWEN:   It was intelligence collected by the Australian Customs Service.  The Australian Customs Service has several functions, one of which is a police-like function, controlling the entry into Australia of prohibited imports, drugs, other activities.  Part of that might be revenue but it is still a police-like function, and as part of that, it collected some information which is as shown as exhibits 1, 2, 3, 4 and 5 on the statement of claim.  It collected that information.  It assessed it.  It created a cover sheet and there are three different reports but it is all essentially playing with the same piece of information.  Then it communicated that information to Tasmania Police and to the Australian Federal Police.  There is material on this in the affidavit of ‑ ‑ ‑

HIS HONOUR:   That is the affidavit.  So it is a question of finding of facts in order to support the plea.

MR BOWEN:   Yes.

HIS HONOUR:   Why should this Court find the facts?

MR BOWEN:   I would say that the information which is in the statement of claim, on its face, would be absolutely privileged because even though I have not been able to find any specific authority for police intelligence being privileged in this  ‑ ‑ ‑

HIS HONOUR:   I doubt whether you will.

MR BOWEN:   I would say that in a ‑ ‑ ‑

HIS HONOUR:   Why should police information be privileged if it is published with malice?

MR BOWEN:   The information in this case is actually, you will see from looking at exhibits 1, 2, 3, 4 and 5, graded as to its authenticity and as to the reliability of the source ‑ ‑ ‑

HIS HONOUR:   That may be evidence as to whether it is published with malice or not, but the question of malice does arise in the event of qualified privilege.

MR BOWEN:   I would say again that the actual - it is important for the police to communicate with other policing authorities no matter what the quality of information is so that other policing authorities can assess that information.

HIS HONOUR:   That may well give rise to a claim for qualified privilege.  In all events, I do not propose to make any findings of fact to support any finding of absolute privilege.  The furthest you could hope on that score is for a remittal to the Supreme Court of Tasmania.  Now, what are your other grounds?

MR BOWEN:   Well the next ground is section 16 of the Customs Administration Act.

HIS HONOUR:   Yes, on subsection (3) you are relying?

MR BOWEN:   Subsection (3).

HIS HONOUR:   Which is obviously an exception to the earlier two subsections.

MR BOWEN:   Yes.

HIS HONOUR:   Well then the first two subsections deal with a prohibition against divulging information.

MR BOWEN:   I would say that it would ‑ ‑ ‑

HIS HONOUR:   Subsection (3) lifts it.

MR BOWEN:   Yes, I would say that that would allow Customs to release the sort of information that is envisaged in that subsection which is information to the police free of any constraints which might otherwise apply which would include defamation.  It would give them permission to release simple police intelligence which, of its nature, must virtually always be defamatory.

HIS HONOUR:   Yes, I note your argument but I construe subsection (3) as being an exception to the previous provisions which create the prohibition and the lifting of the prohibition does not amount to a positive protection of that which is released.  Have you anything further to say in support of that ground?

MR BOWEN:   Well only what I have said in my outline that ‑ ‑ ‑

HIS HONOUR:   Yes.

MR BOWEN:   It would appear to me that - I cannot take that any further.  It is set out in the outline.

HIS HONOUR:   What do you say about the limitation point?

MR BOWEN:   In relation to the limitation point, the cause of action was complete on publication.  I have referred to Grappelli.  The information was apparently released in 1991, therefore the cause of action was complete as far as concerns the Commonwealth in 1991, and there is an exception under the Tasmanian Limitation Act relating to fraud on the part of the defendant in this case.

HIS HONOUR:   How does the Limitation Act apply in relation to the institution of proceedings in this Court?

MR BOWEN:   The action must be grounded.  There must be some limitation somewhere.

HIS HONOUR:   Where?

MR BOWEN:   The jurisdiction ‑ ‑ ‑

HIS HONOUR:   Where?  I mean, the Tasmanian Act does not apply to this Court, does it, of its own force?

MR BOWEN:   No.

HIS HONOUR:   Then what does apply?

MR BOWEN:   I do not have the answer to that.  I believe that the High Court must apply the Tasmanian Act as applying it in the jurisdiction of the action.

HIS HONOUR:   Have you looked at the cases which follow Pedersen v Young 110 CLR?

MR BOWEN:   No, I have not, your Honour.

HIS HONOUR:   I think that might provide you with some answers.  Are there any other grounds now for your application?

MR BOWEN:   No, your Honour.

HIS HONOUR:   Yes, well I do not propose to grant your application but so far as the Commonwealth’s application is concerned, I do propose to remit the matter to the Supreme Court of Tasmania for trial.

MR BOWEN:   Your Honour, in relation to that, I have got no opposition to that course.

HIS HONOUR:   Yes.

MR BOWEN:   I note that Mr Louis has filed an application asking that it be remitted to a court of federal jurisdiction.

HIS HONOUR:   Yes.  I will hear what Mr Louis has to say about that ‑ ‑ ‑

MR BOWEN:   I am happy to defer - - -

HIS HONOUR:    ‑ ‑ ‑but my present inclination is to make an order remitting it to the Supreme Court of Tasmania.  I will hear what Mr Bugg has to say next.

MR BUGG:   Thank you.  Your Honour, I accept that in relation to any issue of limitation there would have to be some finding of facts and Mr Louis alleges in his statement of claim that there have been daily publications since the original alleged date of publication based on the exhibit attached to his statement of claim.  I would not seek to persuade you that your Honour would be in a position to make a finding of fact in relation to that matter.

In so far as the thrust of the State of Tasmania’s application is concerned, your Honour will see that, firstly, it seeks to differentiate between its position and that of the Commonwealth because it contends, based on the material in the affidavit filed in support of the application, that any publication allegedly made by the State through its police service is a separate and unrelated tort alleged against the State as opposed to that of the Commonwealth and I would submit that there is sufficient factual material there for your Honour to make that determination.

The only order which it would seem to me that is available and one which I would not seek to persuade your Honour otherwise from is one remitting this matter to the Supreme Court because my concerns were that the State found itself in the original jurisdiction of the High Court because of an alleged joint tort with the Commonwealth.  I really sought to have these proceedings stayed, that is in this jurisdiction, so that the State could resist any allegation of tort against it in the appropriate jurisdiction relevant for this matter and that is, of course, the Supreme Court of Tasmania.

If your Honour is minded to do that, I would not seek to persuade you through any course other than that in spite of the breadth of the application lodged on behalf of the State.

HIS HONOUR:   The only problem that I see about it so far as the State is concerned is that an order of remitter can probably only be made in respect of an action which this Court has jurisdiction to entertain.  Your application is to set aside the writ on the grounds that the Court has no jurisdiction, so it seems to me that the first question for me to decide is does this Court have any jurisdiction in the matter?

MR BUGG:   Your Honour, I would submit on the material that is contained in the affidavit that it does not.  I would rely upon the rule in Speight v Gosnay, that is, that this is not a republication of material which was within the anticipation of either party and therefore would make the original publisher, the Commonwealth, liable in tort for any subsequent publication made by the State and therefore include the State as a joint tortfeasor.

Based on the material that is contained in Assistant Commissioner Johnston’s affidavit, I would submit that the only factual allegation which the plaintiff makes is limited to the material published to him under the  disclosure referred to in the Assistant Commissioner’s affidavit and that that material has been, since receipt from the Commonwealth, dealt with confidentially and there has been a publication only of Commonwealth material in the way in which I have referred to in the supporting material, that is, through inadvertence to the plaintiff and no other person.  I would submit, therefore, your Honour, that certainly as far as ‑ ‑ ‑

HIS HONOUR:   Why do you say that publication from the Commonwealth to the State authorities would not have been defamatory?

MR BUGG:   I do not suggest, your Honour, that the publication to the State was not outside the scope of a consideration on a factual basis of defamation but what I say is that the plaintiff alleges against the State a publication from the Commonwealth and then a republication by the State of that defamatory material.  The affidavit material says, “No, there has been no publication outside the presentation of the material to the plaintiff in response to his  application which was an inadvertent breach of the restraint that was imposed upon that material when it was first provided to the State by the Commonwealth.”

HIS HONOUR:   What has that got to do with the cause of action?

MR BUGG:   Your Honour, the plaintiff alleges against both the State and Commonwealth a joint and several activity constituting the tort of defamation.  The defendant, on the particulars provided in the statement of claim - and I would ask that your Honour treat the exhibits attached to the statement of claim as the plaintiff’s particulars of publication - has answered those publications in the way in which Assistant Commissioner Johnston contends in his affidavit and that, your Honour, is that the material attached to the affidavit contains State police intelligence which was published on the basis of material gathered by State police and that the Commonwealth material, that is the first three annexures to the statement of claim or exhibits to the statement of claim, was a five-page piece of material which was provided to the plaintiff in September of last year in response to his request for .  If I could take your Honour to that annexure to the affidavit of Assistant Commissioner Johnston ‑ ‑ ‑

HIS HONOUR:   Just a moment until I get it out.

MR BUGG:   It is a letter.

HIS HONOUR:   Yes.

MR BUGG:   If I could take you firstly to the letter that is exhibited to the affidavit, your Honour will see that the author of the letter has written to Mr Louis responding to a request for  access to material.

HIS HONOUR:   Yes.

MR BUGG:   The fifth paragraph, a one-line sentence on the first page says:

I have denied total access to the remaining 5 pages of information.

By way of explanation, on page 2, he says:

My reasons for this decision as required by Section 22 ‑ ‑ ‑

that is the second paragraph on page 2 of the letter -

The five pages that I have totally exempted are exempted pursuant to Section 26 -

He then sets out what section 26 of the State Act is and then says at the penultimate paragraph on page 2:

The five pages that I have exempted pursuant to Section 26 are documents forwarded to Tasmania Police by the Australian Customs Service.

They, of course, your Honour, are linked through the affidavit with the annexures to the statement of claim.  Then turning to page 3 you will see that the author of the letter says that:

In relation to subsection 1(b) I have received written advice from the Australian Customs Service that the information forwarded to Tasmania Police as contained within the five documents was communicated in confidence -

and then goes on to deal with the matter.  What happened, as the Assistant Commissioner deposes to in his affidavit, was that inadvertently the author of that letter, in sending the documentation, had tendered the five additional pages which he had excluded access from Mr Louis.

HIS HONOUR:   Yes.

MR BUGG:   That is the publication, a publication of this material actually to the plaintiff and only in those circumstances and it would certainly be my submission that on that factual material and the other matters deposed to by the Assistant Commissioner, that there has been no joint publication nor has there been any publication by the State, independently of the Commonwealth, of the material forwarded to it by the Commonwealth because of the confidential restrainer that was imposed upon it when the Commonwealth provided it to the State.

HIS HONOUR:   What do you say about the documents which are of State origin?

MR BUGG:   Yes.  I do not have a problem with that, your Honour, because the author of the affidavit says that those documents were compiled from information gathered by the Tasmania Police Force through its intelligence gathering service and its Bureau of Criminal Intelligence and that material, on published by a State agency would clearly - I am not suggesting it is not a tort.  I am not claiming that if the plaintiff can establish a publication of material which has defamed in that it is outside any State privilege or qualified privilege under the Tasmanian Defamation Act then, of course, he has not only a cause of action but an entitlement to damages.

What I am submitting is that he alleges against the Commonwealth and the State a joint activity.  The affidavit seeks to establish that there is no joint activity.  The State freely admits that its police officers have published the three reports which were exhibited to the statement of claim but says, “Look, this is totally separate material”.

HIS HONOUR:   I understand that argument but, even so, would it not be a controversy within the meaning of that term where it is used to describe “matter” in section 75 of the Constitution, a controversy arising from the same basic set of facts?

MR BUGG:   In my submission, no, your Honour, for the reasons that, firstly, if the material that has been published by an agency in Tasmania is solely material gathered against the background of information it has on the plaintiff and then published, it could hardly be said to be a joint publication or a matter arising out of the same set of facts because it is a publication in Tasmania about a person in Tasmania about whom there has been some inquiry by a State agency.

HIS HONOUR:   What about the use made by the recipient of the Commonwealth information to other officers of the Tasmanian force?  I mean, I am conscious of the fact that the statement of claim is singularly lacking in particulars which makes this very difficult but the breadth of the pleading in the statement of claim seems to me to make equally difficult the task of denying the possibility of jurisdiction.

MR BUGG:   Your Honour, the affidavit is couched in the terms in which it is to specifically address those particulars alleged against the second defendant, namely that the allegedly wrongful and defamatory material contained in the particulars and in the documents exhibited, the Commonwealth documents, has not been on passed to State police officers by a State police agency.  In terms of the allegation of publication against the State, the allegation is a publication of a publication to other agencies and the public and there is no evidence before you of an allegation of internal publication constituting an action by the plaintiff.  His allegation is one of publication outside the police department to other agencies, State or federal.

HIS HONOUR:   He may not be able to establish that, of course, but if that is his pleading, does that not give rise to an issue that would have to be determined?

MR BUGG:   On the particulars pleaded in terms of the allegation of joint tort, your Honour - I am really trying to address that one issue - whilst I understand that clearly there are factual matters that have to be determined before there could be any conclusion of the issue at large between the plaintiff and the State of Tasmania, the proposition is that, on the material that he provides by way of particulars and on the response by the second defendant to those particulars in the affidavit of the Assistant Commissioner, there is no evidence of external publication outside Tasmania Police Department or Force.

The factual material established by the affidavit of the Assistant Commissioner, in my submission, indicates that under Speight v Gosnay the matter does not come within any of the three exceptions to a situation where it could be alleged that because the Commonwealth had published the material to the State in the expectation or, it is more probable than not, that the State will on publish it thereby making the Commonwealth liable for that ongoing publication by the State, or potentially liable, I should say, that therefore there has not been a publication which would in any way implicate the Commonwealth and therefore create a joint tort of the type alleged by

the plaintiff in his statement of claim.  He joins the State because he says, “We have jointly defamed him on the basis of material provided to us.”

HIS HONOUR:   Now I understand what your argument is based on the affidavit but when one comes to the question of your conditional appearance in the setting aside of the writ, it seems to me that one does not really get to the affidavit at all.  One looks at the documents to which the objection is taken, which is the originating documents issuing from this Court as a writ and attached statement of claim, and on that basis it may be that there is absolutely no substance in Mr Louis’ claim but, in terms of jurisdiction, it seems to me that it is a very difficult matter to say that there is none.

MR BUGG:   I cannot persuade your Honour outside the scope of the material that is before you and in so far as the application is concerned, your Honour, there is no remitter order sought in terms of that application but I would submit that it is certainly within the scope of your Honour’s jurisdiction to follow the course that you have foreshadowed in so far as the Commonwealth is concerned.

I certainly, as a preliminary point, was concerned on behalf of the State to address the issue that here was a civil matter bringing the State within the original jurisdiction of the High Court because of the joinder of an issue which we joined issue with.  If there has to be a resolution of that factual matter but it can be dealt with within the scope of a more comfortable jurisdiction to deal within - I do not mean that in terms of the presentation of argument but the geographic location of those places we can argue in.

HIS HONOUR:   This Court is not a court that is suited for the hearing of matters at first instance.  It obviously has to be remitted to a court which can.  Have you anything further to add?

MR BUGG:   I have nothing further.

HIS HONOUR:   Yes.  Mr Louis, what do you have to say?

MR LOUIS:   Thank you.  Right, Sir Gerard, I have made an application to the honourable High Court to amend the original statement of claim which I feel has further and better particulars and describes my complaints in a more meaningful way.

HIS HONOUR:   Now Mr Louis, I would not propose to deal with that application.  It seems to me that it is one which ought to be dealt with by the court that will be actually charged with the responsibility of disposing of the matter.

MR LOUIS:   I understand that, your Honour.

HIS HONOUR:   So what do you have to say about the remitter of the matter to the Supreme Court of Tasmania?

MR LOUIS:   Well, Sir Gerard, I brought it on behalf of myself and my wife and daughter, an action against the State of Tasmania over the actions of its police officers in 1992 after criminal charges against myself were dismissed after the police wanted to search my home without a warrant and forced their way into my home.  Unfortunately, your Honour, I complained to the then Director of Public Prosecutions to take action and he became their defence counsel at the civil proceeding which, I believe, was an illegal proceeding which did not conform to the Charter of Justice of Tasmania but I feel that I have to mention this as a matter of relevance to the Director of Public Prosecutions as arguments this morning because the Supreme Court handled the matter for around about five and a half years, your Honour, and the matter was handled in a dishonourable way.

HIS HONOUR:   I do not propose to allow you to proceed to make criticisms of the conduct of litigation which is not before this Court.

MR LOUIS:   I am sorry, Sir Gerard.  I am sorry.

HIS HONOUR:   The question is what is the court which is best suited to dispose of this litigation?  It is the type of litigation which is ordinarily dealt with in a Supreme Court.  There is a Supreme Court available in Tasmania.  A Federal Court is not as easily available in the sense that it does not permanently sit here and it is a court which does not ordinarily deal with the litigation of this kind so, for that reason, it seems to me that the options are very limited as to the court to which it should be remitted and that there is no good reason so far that you have pointed to which would prevent me from remitting it to the Supreme Court of Tasmania.

MR LOUIS:   I would seek, Sir Gerard, that you do make directions in respect of the comments that I have made that I am concerned about getting a fair hearing in the Supreme Court and I will leave the decision to you, Mr Chief Justice, Sir Gerard.

HIS HONOUR:   Yes, very well, Mr Louis, thank you, and I have no doubt that you will get a fair hearing in the Supreme Court of Tasmania. 

I dismiss the summonses of both the Commonwealth and the State.  The State will therefore be required to enter an unconditional appearance and the matter will be remitted to the Supreme Court of Tasmania. However, the substance of the applications which have been argued before me are entirely a matter for the Supreme Court of Tasmania to deal with.  In so ordering, I should say that it seems to me that, on the face of the statement of claim, there is jurisdiction in this Court to entertain the action and for that reason the action is being remitted under section 44 of the Judiciary Act as against the State of Tasmania as well as against the Commonwealth.

I might add that it seems to me that this is a case in which particulars are essential to be developed by the plaintiff in order to identify with some specificity the issues that might arise for trial.  When the particulars of the actual publication relied on and the circumstances of the publications relied on are identified, it may then be possible to argue more meaningfully the issues which have been addressed to me this morning by both the Commonwealth and the State but that will be a matter for the Supreme Court of Tasmania.  The matter is remitted accordingly.

AT 9.47 AM THE MATTER WAS CONCLUDED