Mann v O'Neill
[1996] HCATrans 221
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M58 of 1995
B e t w e e n -
ARNOLD MANN
Appellant
and
JAMES JOSEPH O’NEILL
Respondent
BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 7 AUGUST 1996, AT 10.19 AM
Copyright in the High Court of Australia
MR A.R. CASTAN, QC: May it please the Court, I appear with my learned friends, MR M.A. DREYFUS and MS K.M. PETTIGREW, for the appellant. (instructed by Clancy and Triado)
MR S.D. RARES, SC: If the Court pleases, I appear with my learned friends, MR B. HULL and MR G. O’L. REYNOLDS, for the respondent. (instructed by Phillips Fox)
MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR P.D. QUINLAN, on behalf of the Attorney‑General for Western Australia, intervening in support of the respondent. (instructed by the Crown Solicitor for Western Australia)
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If it please the Court, I appear with my learned friend, MS. G.L. EBBECK, for the Attorney-General for South Australia. (instructed by the Crown Solicitor for South Australia) The Attorney‑General for South Australia intervenes only if the issue of Theophanous and whether it should be re‑argued arises. I can tell the Court that we have been informed that that issue is unlikely to arise. If that is the case we will be seeking leave to withdraw, if it please the Court.
BRENNAN CJ: Yes, we will hear from counsel for the appellant and give an intimation then perhaps, Mr Selway.
MR SELWAY: Thank you, your Honour.
MR L.S. KATZ, SC: If the Court pleases, I appear for the Attorney‑General for New South Wales who intervenes in the interest of the respondent. (instructed by the Crown Solicitor for New South Wales)
BRENNAN CJ: Is it limited in the same way as that which Mr Selway has indicated?
MR KATZ: No, it is not, your Honour.
BRENNAN CJ: Yes. Yes, Mr Castan.
MR CASTAN: May I indicate to the Court that the appellant abandons grounds of appeal 1(d) and 2(d) which raise the question of the effect of any implied constitutional freedom of communication in government and political matters in relation to the absolute privilege which is being pleaded here and we will not be seeking to rely on any aspect of the Constitution or of implied immunity or of Theophanous or any aspect of that doctrine whatsoever. I should indicate to the Court that none of those matters were argued below and none of those matters were mentioned or argued on the application for special leave.
BRENNAN CJ: Yes.
MR CASTAN: They were not in the draft notice of appeal that was before the Court on the special leave application; they were introduced first in the notice pursuant to leave.
BRENNAN CJ: Yes, thank you. Mr Solicitor for Western Australia, where does that leave your application for leave to intervene?
MR MEADOWS: May it please the Court, we would seek leave to withdraw in those circumstances.
BRENNAN CJ: Leave to withdraw is given.
MR MEADOWS: If it please the Court.
BRENNAN CJ: And to you, Mr Selway, leave to withdraw is equally given.
MR KATZ: Your Honour, in light of the way in which my learned friend, Mr Castan, has announced his intentions, I would seek leave to withdraw as well.
BRENNAN CJ: I see. Yes, leave to withdraw is given, Mr Katz.
MR KATZ: If your Honour pleases.
BRENNAN CJ: Before the argument commences, I think my brother Kirky has something he wishes to say.
KIRBY J: Before my appointment to this Court, I served as President of the Australian Academy of Forensic Sciences. The appellant, Dr Arnold Mann, is, I believe, a member of that academy, and my recollection is that I saw him on one or two occasions at academy functions. However, our relationship was that of social acquaintance, rather than personal or professional friendship. Also, before my appointment to this Court, Dr Mann wrote to me about this litigation. I do not now have access to his letters to me, which have probably been archived following my retirement from the New South Wales Court of Appeal.
However, on my instructions, all my letters to Dr Mann have been retrieved from the word processor and supplied to the parties by the Registrar to see whether they, or any of them, objected to my participating in the hearing of this appeal. None has objected. For my part, I have not formed any concluded views on the issues of the appeal, which are legal in character and do not involve any issue of credit of the parties. I do not feel embarrassed to participate, or disqualified from participating and, accordingly, I have taken my place on the Bench for the hearing.
BRENNAN CJ: Yes, Mr Castan.
MR CASTAN: May it please the Court, the way in which the matter is put for the appellant is summarised in a summary of contentions which was filed I think last Friday. I trust your Honours each obtained a copy of that document. We seek to now exclude part C of the document which picked up on the now abandoned grounds, so part C can be totally ignored.
It is our respectful submission that the category of absolute privilege attaching to communications, in particular communications which take place in the context of curial proceedings, is a category which reflects ultimately a public policy choice. It has been so expressed and I will take your Honours to some of the references in the authorities that have expressed it in the language of public policy. But there appears to be no decision which actually determines how to precisely characterise a communication from a litigant to the relevant authority - in this case the Attorney‑General and the Minister for Justice - concerning an allegation of incompetency or a complaint about the conduct of a judicial officer.
So that, as the learned judges in the Federal Court put it, in the absence of any existing authority as to whether the complaint arising from conduct in court is to be considered as within the curial process, such that it would be treated as part of the curial process or a consequence of it, in effect equivalent to, say, a notice of appeal which would of course come within the framework of the doctrine of absolute privilege attaching to the contents of a notice of appeal, or whether it is to be treated as looking at the same document as an initiating document because, although it is a concluding document in a sense, a letter of complaint arising from or expressing views about conduct of a curial officer or judicial officer in the curial proceedings, and in this particular case, interestingly, requesting the Attorney‑General to arrange a rehearing because of the claimed or alleged incompetence of the judicial officer - the incapacity, it is put higher than incompetence - the total incapacity of the relevant judicial officer. So it could be regarded from one perspective as, so to speak, the last stage in the curial process or the equivalent of perhaps of a notice of appeal.
BRENNAN CJ: What do you mean “so to speak”?
MR CASTAN: It emanates from, though it is not something that if one looked at the rules of court one could say, “Well, there is the procedure.” One can characterise a notice of appeal and one can say when one is appealing one is entitled to put whatever grounds one seeks to put in relation to an appeal and one can include whatever might be said about the conduct of the court below. The notice of appeal falls clearly within the category of absolute privilege. Here a step is taken directly flowing from the concluded proceedings, in this case in the Magistrates Court. The remedy that is sought is not the remedy that the statute provides. The appeal in the case of the ACT is only available to the Supreme Court of the Australian Capital Territory. There is no intermediate court structure. That is not sought for all sorts of practical reasons. What is sought is a different remedy but one, nevertheless, we would submit, that is available, but, nevertheless, a remedy directly arising from those curial proceedings.
BRENNAN CJ: What is the remedy and how is it available?
MR CASTAN: The remedy that is sought is the removal of the judicial officer and a rehearing.
BRENNAN CJ: How is that available?
MR CASTAN: The removal is available because the magistrate holds office at the pleasure of the Governor‑General in this particular case and the process for the initiation of removal by the Governor‑General, although no formal process is specified, the only proper officer and the only proper channel of communication to bring that about by any person, whether it be the litigant or anybody else who observed that a judicial officer was not competent or behaving in an inappropriate way would be to communicate to the Attorney‑General and the Minister for Justice. There are no structured - there is no such thing as a structured judicial commission in relation to the ACT or elsewhere, as far as we know. There are no channels for a remedy of that kind but, in this particular instance, the magistrate held office at the Governor‑General’s pleasure being a category of special magistrate as distinct from those magistrates which were in a different category under the relevant legislation; those classified as magistrates for the purpose of the legislation as distinct from special magistrates. There are two categories and magistrates under the relevant legislation must retire at 65. Special magistrates have no retiring age but hold office only at the Governor‑General’s pleasure.
No formal process exists for the removal of judges generally, certainly in the ACT and magistrates in particular, but, where a magistrate holds office at the pleasure of the Governor‑General, we would respectfully submit the only proper channel to make representations about the perceived or believed incompetence of a magistrate, or impropriety on the part of a magistrate, be that, is through the federal Attorney‑General. That was the channel of communication that was used in this instance, and a letter to the Minister for Justice. So, that is the only publication that occurred here. It was a publication to the Attorney‑General and a follow‑up letter to the Minister for Justice.
TOOHEY J: Mr Castan, I am not entirely clear. Are you tying the defence of absolute privilege to the proceedings out of which the letter was written, or to the process that might be followed, the letter having been written, or to both?
MR CASTAN: Both, in the alternative. In category A, in our summary, it is the first, the proceedings of which this is a consequential part and, in our submission, in part D, we tie it to what we might call the initiation of the removal process. It is both. Now, we put them in the alternative, or cumulatively, but we say that either way absolute privilege applies.
BRENNAN CJ: You said before there were two aspects of the remedy, removal and rehearing. You have dealt with removal.
MR CASTAN: Yes.
BRENNAN CJ: What about rehearing?
MR CASTAN: I cannot say that there is any process by which the Attorney‑General could provide a rehearing that is provided for by statute. All I point to is that the appellant here, acting in person, sought a rehearing, perhaps believing that the Attorney‑General had that remedy available to him. I do not suggest that I can point to any provision of any legislation or even any common law rule that would enable the Attorney‑General to yield such a result, but the appellant was acting in person and he wrote expressing views about the competence and conduct of the magistrate before whom he had been a litigant and expressed views about the desirability of the consideration for the removal of this magistrate in future cases ‑ apart from anything to do with his own litigation ‑ and also asking for a rehearing.
Now, I cannot answer what the method was by which a rehearing might have been obtained. There may be one that perhaps could be procured but it is difficult to conceive of where it lies and we do not point to any statutory or other provisions that would provide for it. All we point to though is that the nature of the process that was being undertaken partakes as a matter of public policy as precisely that kind of process in respect of which the courts have held public policy requires there be absolute privilege in relation to curial process. If I can deal with that first. I will come later back to the initiation of removal.
TOOHEY J: Could I just ask you this question, Mr Castan. In relation to my earlier question, were both those issues canvassed by the majority or by any of the judges in the Federal Court or were their judgments confined to what I might call your section A argument? I am not asking you to take it to particular passages for the moment, but my recollection of the judgments below is that they focused on the first rather than the second.
MR CASTAN: Yes, I think it is the other way round, if I may say so with respect, your Honour. The bulk of the consideration, certainly by the majority, was of the second, that is to say the question of initiation of process for removal.
TOOHEY J: Yes, that is really what I meant.
MR CASTAN: Yes, and Justice Carr examined the matter from a much broader perspective about the general principles of public policy which leads one to characterise this in a particular way as having about it the aspects that do bring to bear the relevant - or whether or not they do bring to bear as a matter of the public policy which underlies absolute privilege and in examining that he, of course, looked at a curial situation of absolute privilege and whether or not this should be treated as within that public policy concept. In other words, he approached it from a broader perspective rather than a precise analysis of whether this could or could not be characterised as judicial or quasi‑judicial, that is to say the initiation of a removal process.
So there were differing views which perhaps - I cannot assert this - underlie the differing result achieved by the majority as against Justice Carr. It is difficult to say, but certainly his Honour Justice Carr looked at the matter from what I have started off putting, which is what I will call the underlying public policy considerations that lead to there being a concept or an application of the rule of absolute privilege in curial proceedings. So we have those differences and we have then, of course, the difference in result. So we put it on both bases and in what I will call our section B we draw attention to, though it is not necessarily a separate basis of analysis, the existence of the whole body of law of contempt and we draw attention to it because that body of law, we say, provides the answer as a matter of - I cannot put it as a matter of necessary legal inference it provides the answer to why there should be absolute privilege attaching to a complaint of this kind, but it does provide what we would respectfully submit is a cogent reason why there exists a body of what we might term in general protective principles, however widely they may or may not operate in a particular case, which serve the function of ensuring the protection of the courts and while not the private reputation of the judicial officers nevertheless serve the function of the protection that otherwise might be given by an action for defamation.
So, in substance, what we draw attention to here is the absolute immunity from suit that is inherent in what is termed “absolute privilege” and we say the immunity from suit arising out of curial proceedings exists for the most coherent of reasons and, as it was put by this Court in Gibbons v Duffell, a situation where :
a remedy must be denied -
as to the potential plaintiff - in this case the magistrate -
because complete freedom from that suit appears indispensable to the effective performance of judicial, legislative or official functions.
That is the phrase that summarises the kind of principle that was elicited as a basis for the totality of the absolute privilege concept in Gibbons v Duffell That is in the judgment of Chief Justice Gavan Duffy, Justices Rich and Dixon in Gibbons v Duffell 47 CLR 520 at page 528. It is phrase which we respectfully submit provides the underlying rationale:
indispensable to the effective performance of judicial, legislative or official functions.
Now, in our respectful submission - - -
KIRBY J: What would be the process by which you would link this in to the original litigation? So far as the record was concerned, the original case had been concluded - - -
MR CASTAN: Yes.
KIRBY J: - - - orders had been made; end of story. Now, presumably you would be seeking to have the magistrate removed, and you say to have a rehearing. What was the machinery by which that would be done? Would it be on the basis that the original orders were a nullity, or how would you actually get the rehearing?
MR CASTAN: Well, the rehearing, I have to say, we cannot point to any particular process by which the application by the appellant could have been made good.
KIRBY J: Well, if that is so, is not the litigation at a close?
MR CASTAN: The litigation is at a close, but that does not provide an answer to the question of whether the relevant absolute privilege is at a close, if what has taken place is one of those steps following the close of litigation that might properly be contemplated as within the proper course of events. We would distinguish - - -
BRENNAN CJ: What does that mean, Mr Castan?
MR CASTAN: Well, it means that every person should be free, and that, ultimately, we come to public policy. It is desirable that parties should be able to have some channel of communication concerning a concern about whether a judicial officer has acted improperly. There has to be some channel and, in doing that, that is one of the steps flowing from litigation - a person who has been a litigant and who has seen a judicial officer and has formed a view that there is something wrong with this judicial officer. There is a level of incompetence.
BRENNAN CJ: Do you say that that is limited to a person who has been a litigant?
MR CASTAN: No, we would not. We would say that an observer who observed conduct of that kind and who wrote to the Attorney‑General saying - let us assume a court reporter who is frequently in court might be a sufficient example ‑ ‑ ‑
BRENNAN CJ: You say it is not limited to a litigant?
MR CASTAN: Not limited to a litigant.
BRENNAN CJ: Is it limited to conduct of a witness or conduct of a judge? Can it be a conduct of a witness ‑ ‑ ‑
MR CASTAN: I am only talking here about conduct of a judge.
BRENNAN CJ: I know that is all you are talking about but in terms of principle you have linked it back to the 47 CLR case. Are you speaking about comments that are made about the conduct of a witness, for example, prosecute the witness for perjury?
MR CASTAN: Well, it is clear that there are available remedies of various kinds for things which happen in court such as your Honour has said.
BRENNAN CJ: What I am asking you is are you saying that absolute privilege applies to that?
MR CASTAN: No, I do not, your Honour. I do not need to go so far. I confine, for the present purposes, I do not seek to illicit any wider principle than a principle that deals with the situation concerning the conduct of judicial officers and there may be different considerations applicable to the conduct of a witness or conduct of others in court but so far as this arises ‑ ‑ ‑
BRENNAN CJ: What is your general principle that you are trying to express?
MR CASTAN: The general principle is that there must be full and free access to the courts, uninhibited by the threat of legal proceedings.
BRENNAN CJ: Well, there is no doubt about that but we are not talking about access to the courts.
MR CASTAN: Well, in our respectful submission, the underlying principle is exactly the same as the principle that would apply to a notice of appeal albeit this was not a notice of appeal. The principle is the same, in our respectful submission.
BRENNAN CJ: Why?
MR CASTAN: Because it is exactly the same reasons, as we would say, that a person should be protected if they seek to appeal and express views about the competence ‑ ‑ ‑
BRENNAN CJ: But in a notice of appeal you are dealing with the judicial process, you are dealing with the jurisdiction of a court to deal with the grounds of appeal, to strike them out as being vexatious, you can deal with the question of costs. None of that applies in relation to an extrajudicial communication.
MR CASTAN: No, but a communication which is made to the Attorney‑General, to the appropriate channel. It is on the - we are dealing with a communication on an occasion that is the appropriate occasion for that communication. We distinguish, with respect, your Honour, the communication made here from the same litigant, let us say, taking out an advertisement in the newspaper and saying, “Magistrate X or Magistrate Y is incompetent”. We say we are dealing here with the access to the relevant channel of communication which is the only channel of communication to deal with the problem of the alleged incompetence of the judicial officer.
KIRBY J: That is your second basis, you see, where at the moment I think the Court’s questions are directed to your alleged first basis which is that it is somehow still linked in with the litigation. But on your explanation of it, the litigation really has terminated and an extrajudicial or extracurial letter is not going to initiate any fresh process of litigation as between the parties, as distinct from your second ground which is to initiate some sort of disciplinary action against the judicial officer.
MR CASTAN: That is true, your Honour, but in making the public policy decision about whether to treat the writer of the letter as having an absolute immunity from suit. In our respectful submission, when arising out of curial proceedings, albeit proceedings which have themselves concluded, he takes what is in effect the last step. Although it is the first step in the new process - and I will come to that - it is in truth the last step for him because he has no part in any - he does not become party to the new process. For him this is the concluding step in the process.
BRENNAN CJ: But it is not. It gives him no remedy whatsoever. All that it can give him is a sense of vindication by having the magistrate who exercised judicial functions removed from office.
MR CASTAN: Yes.
BRENNAN CJ: That is not in the litigation. The litigation is between the parties.
MR CASTAN: Yes. We put it as a concluding step in the process, albeit not a step that is a step in the litigation. It depends how one views the process that is what I will call the second level, the initiating process - that is to say, the possibility of removal or complaint about a judicial officer. It has, as I started off saying, two aspects. It is the consequence of or it arises from proceedings. One of the things that may occur in proceedings, we can assume - or in fact happened here - is that a litigant comes to the view that there is an incompetent judicial officer. The law provides in varying ways at various levels of the judicial hierarchy for removal. It does not provide specifically for how that removal is to be initiated always but it does provide for removal.
One of the important components of removal would be the knowledge on the part of the relevant officers who have the capacity to initiate it - in this case the Attorney‑General. There may be other kinds of cases at other jurisdictional levels, but there has to be some process by which information is conveyed. That most typically will arise from events which actually occur in court. In our respectful submission, a litigant who is taking what is the only practical step left to him - and there is a practical component to this which I should mention, your Honours. The Magistrates Court jurisdiction is a limited one of small amount and a litigant can be in there as a defendant or as a complainant and the costs may be very small. The costs of appeal may be such as to deter him where he is a litigant in person.
So that the reality of appeal may be such that he comes to the conclusion that is not a realistic alternative. On the other hand, he considers that there is an appropriate step that should be taken, given what he has seen happen in the litigation of which he has been a party and which has left him as a dissatisfied litigant, and so he seeks to notify the relevant authority and only the relevant authority of a problem about the kind of conduct taking place in the Magistrates Court in the Australian Capital Territory.
KIRBY J: Well, I repeat, you seem to glide into the second ground. Now, I see the force of the second ground, but I think it is important to tax - for you to focus on what you say is the end of the process of litigation because as far as I am concerned the litigation appears to have been at an end and a letter of complaint does not affect the parties to the litigation.
MR CASTAN: Can I put the matter this way? It is clear that that is so, the litigation is at an end, but where we are dealing with the category of absolute privilege which itself is said by the courts to reflect a public policy consideration, the preservation of the effective performance of judicial legislative or official functions, the freedom or capacity of a litigant to communicate to the appropriate authorities a concern about the competence of a judicial officer before whom that litigant has been in litigation makes the situation analogous as a matter of public policy to that which occurs in curial proceedings. In other words, this is not just an exercise in defining the curial proceedings and then saying, “Well, there’s the category and you are just outside it because your notice of appeal time’s gone. So the proceedings are concluded, so you’re outside the category, so you’re outside the protection.” That protection exists for a reason. There is a public policy consideration, the preservation of the independence and access to the courts.
In this case, if one looks at the communication there is a public policy reason why such communication should be treated analogously. The public policy reason is that it is highly desirable, we would respectfully submit, that persons who come to that view, litigants who come to that view, and who have been at the receiving end of what they see as the improper or unjust or inappropriate exercise of incompetence on the part of a judicial officer, should have that protection in respect of their communications on the occasion of that communication to the proper officer. We would distinguish that from the case where they make such a communication in some other way where the question of qualified privilege may arise. But where they make the communication to the correct channel, and the only channel that might provide them with at least the satisfaction of having communicated something as a matter of, we would submit, public duty, then, in our respectful submission, the principles which underlie the policy, the public policy that underlies the absolute privilege, the immunity from suit should apply.
BRENNAN CJ: What are those principles? Where do we find them? Can you give us references?
MR CASTAN: I can give your Honours references to the principles in the other contexts and I will take your Honours to those. Can I refer your Honours first to Jamieson v The Queen (1993) 177 CLR 574. That is probably the most convenient way to pick up the principles. That was a case in which this Court dealt with criminal proceedings commenced in New South Wales for attempting by deception to dishonestly obtain financial advantage and the indictment alleged that by serving upon the Government Insurance Office a statement of claim for damages for personal injury which contained false statements of fact, the accused had attempted to dishonestly obtain money by deception.
So the question there focussed on the statement of claim in curial proceedings and whether criminal proceedings could be brought on the basis that there were fraudulent statements in the statement of claim. Can I go to the principles that are expounded at page 582, in the judgment of Justices Deane and Dawson; the joint judgment which formed part of the majority together with your Honour Justice Gaudron in that case. Towards the top of page 582 your Honours will see a reference back to Lord Mansfield:
The general proposition, enunciated by Lord Mansfield in R v Skinner, that “neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office” ‑
We draw attention to the origin of “words spoken in office” ‑
must be qualified by a number of well‑established exceptions. In particular, in so far as criminal proceedings are concerned, it must be qualified as regards substantive administration of justice offences (such as perjury, contempt of court and, depending upon the circumstances, perverting the course of justice) and offences associated therewith (such as conspiracy and attempt). Nonetheless, and not withstanding the submissions of the Crown to the contrary, the proposition as so qualified remains valid as a general statement of common law principle.
It is true that, until recently, there has been a dearth of cases in which common law courts have been called upon to quash a criminal proceeding or conviction by application of the principle. That is not, however, surprising. It could scarcely be expected that prosecuting authorities would institute proceedings in disregard of a general proposition of common law principle which had been enunciated by Lord Mansfield ‑
and so on. And then your Honours go on ‑
As Gaudron J. points out in her judgment in the present appeals, that general principle is sustained by considerations of public policy. The oppressive burden of legal costs already constitutes a formidable deterrent to the citizen of ordinary means who seeks to invoke the jurisdiction of the courts against either an instrumentality of government of a financially powerful corporation or individual. It would constitute a further significant and most undesirable disincentive if, apart from the controls against abuse of process embodied in administration of justice offences and abuse of process proceedings, such a citizen was faced with the potential threat of being subjected to the burden of criminal proceedings, instituted or initiated by such a government instrumentality or financially powerful defendant, in respect of any words which she might use in the ordinary course of such proceedings. In that regard, it is relevant to note that, as the present proceedings against Ms. Brugmans illustrate, the institution of such a criminal prosecution would not necessarily be delayed ‑
and so on. And then, dealing with Lord Mansfield’s proposition:
In so far as it is relevant for the purposed of the present case, and subject to the above‑mentioned qualifications and to any clear statutory provision to the contrary, Lord Mansfield’s proposition prevents words “spoken in office” by a party or her lawyer from being made the basis of civil proceedings for defamation or misrepresentation or of criminal proceedings such as a prosecution for criminal defamation or criminal fraud. In the case of a party or her lawyer, the phrase “words spoken in office” at least encompasses “anything said . . . in the ordinary course of any proceeding in a court of justice”, “although falsely and maliciously and without any reasonable or probable cause”. That being so, the general principle is applicable to assertions contained in a pleading such as a statement of claim, and it has long been recognized that the immunity attaching to words spoken in judicial proceedings extends to words written in the pleadings ‑
What we draw attention to - it is clear, of course, that was the case within the actual brace of curial proceedings strictly defined but what we draw attention to is that the origins of the doctrine relate to words spoken in office and the development of doctrine over the intervening years since 1772 has, of course, seen the refinement of the categories that one tends to look to. It has been put to me by some of your Honours, “Well, is it within the category of the curial proceedings?” or, “Is it in the category of the initiation of some other procedure?” but that, we would respectfully submit, is too narrow a prospective when the origins lie in the concept that the protection exists for words spoken in office and that is consistent.
That notion is reflected, we would respectfully submit, in the general proposition which I opened with, in Gibbons v Duffell of this Court in 1932, that the remedy must be denied because complete freedom from suit appears indispensable to the effective performance of judicial legislative or official functions and ‑ ‑ ‑
KIRBY J: That is the problem I have because at the point at which the letter is written it cannot affect the judicial functions, they are finished.
McHUGH J: Exactly.
MR CASTAN: But the effective performance of judicial function is the future judicial function by this judicial officer. It is the future functioning of the judiciary in the ACT that is at stake here.
KIRBY J: But that is then spoken as a citizen, not as a party. This is the point the Chief Justice made to you earlier.
McHUGH J: What Justice Kirby has just said indicates to me that perhaps you are looking in the wrong direction. Perhaps there is a short answer to what I am going to say to you but I would have thought that a better argument, from your point of view, was that this document would have been the subject of public interest immunity privilege at common law and that where public interest privilege applies to a communication, the communication is also absolutely privilege for the law of defamation. Now, Rogers v Gaming Board (1973) AC, a House of Lords decision, would be some authority for the proposition that this letter to the Attorney‑General would have been the subject of public interest immunity and its production could have been refused by the Attorney on that ground.
Now, if the public interest would prevent its production, if that is accepted, why does it not provide a foothold then for an argument that it is also protected from the law of defamation? At the back of my mind I have got a vague recollection that there is some case in England that deals with the relationship between these two areas. Have you given any consideration to this, Mr Castan?
MR CASTAN: No, I have to confess we have not explored the issue from that different perspective of looking at it ‑ ‑ ‑
McHUGH J: So it looks at it as though the case is over but your client has made a complaint to the Attorney‑General about the conduct of the magistrate and if the Attorney‑General had been asked to produce that document he could, or the Chief Magistrate?
MR CASTAN: Yes, I suppose what we are putting - and I would respectfully adopt that in so far as it provides another answer.
McHUGH J: It may have no legs but it just ‑ ‑ ‑
MR CASTAN: But I cannot assist the Court with any development of that line of argument because we had not looked at it from that lateral perspective of the public interest immunity line and so we have not explored how the authorities might sit in that field. What we were seeking to do was really to draw attention to the broad notion that is embodied both in the origins of the doctrine if one goes back to the 18th century and is reflected in the way in which it was expressed in talking generally about absolute privilege in 1932 in this Court that we are looking to, as it is put, the effective performance of judicial legislative or official functions that that does not just mean that you then have to characterise whether it happened to be in the litigation itself, if you are looking at judicial, or in the carrying out of the official function and then have to get into some fine point of analysis of whether this truly is an initiating document or not an initiating document for a removal process of how you characterise a removal process as judicial or quasi‑judicial because that detailed analysis of categories will not provide you with an answer that is really responsive, we would respectfully submit, to the underlying premise of the doctrine.
The underlying premise of the doctrine is the effective performance of judicial legislative or official functions. One needs to look at whether in truth the effective carrying on of judicial performance necessarily involves providing immunity from suit for those who are in the category of this appellant who make a complaint through the proper channels concerning the competence of a judicial officer. It does not, we would respectfully submit, suffice and, as the passage indicates in Jamieson v The Queen, one needs to pick up, as Justice Gaudron expressed in her judgment and it was adopted by Justices Deane and Dawson, the underlying policy that lies behind the protection.
There is a reason why curial proceedings are protected; there is a reason why communications of officers of state are protected; there is a reason why parliamentary proceedings are protected and one needs to see whether this particular communication, which has so far not been the subject of authority and development of doctrine, falls within the policy, not ‑ ‑ ‑
KIRBY J: I agree we have to look at the policy, but the policy is spoken in the office of a party. An office of a party has concluded unless there is some basis on which you assert that by the letter of removal and removal in some fashion the orders as between the parties will be vacated and a new opportunity given to litigate the matter between the parties.
MR CASTAN: We can only draw on what I will term the analogy. I can only draw it on the analogy with the notice of appeal and we say that, whatever the underlying premise is that would give protection to the same statements, word for word, made in a notice of appeal.
TOOHEY J: The closest the letter seems to get to being an extension of the earlier litigation is the passage on page 9 at line 15, is it not, the:
respectfully request that you order the matter of Purdon and Associates -v- Arnold Mann to be reheard ‑ ‑ ‑
MR CASTAN: Yes, that is what I was referring to earlier, your Honour, and I cannot take the matter further than I have in respect of what kind of rehearing in respect of the proceedings that had already been concluded could be achieved because there is nothing in the nature of the legislation or other principles that would enable him to achieve that end, but in terms of application of the concepts that the Court has spoken of in 1932 and in 1993, what I will call if I may the principle that underlies the concept of absolute privilege, one sees that one can by analogous reasoning treat this kind of communication from a party, an ex‑party, a party in a concluded matter, if you like, as being appropriate to be treated as a matter of policy within the same protection and for the same kind of reasons indispensable to the effective performance of the judicial legislative or official functions.
Now, we would submit that it is a matter of fundamental importance to the proper administration of justice that a person - in this case a litigant - who is of the considered view that a holder of judicial office is incompetent should be free to communicate that concern to an appropriate person immune from suit by the judicial officer complained of.
BRENNAN CJ: Well, there is no doubt, is there, that they are immune from suit if the conditions of qualified privilege are satisfied?
MR CASTAN: No doubt of that, but they are not - - -
BRENNAN CJ: So, we are talking about the case where the conditions of qualified privilege cannot be satisfied?
MR CASTAN: No. Sorry, your Honour, I too readily acceded to your Honour’s proposition. With the greatest of respect, one is not immune from suit when qualified privilege is available; one is only immune from suit when absolute privilege is available. One is subject to suit, and put to examination of motives, and put to examination of questions of interest, and a whole variety of issues, and put to litigation - put to court, and brought to court. May I develop some of the reasons why we would respectfully submit that appropriate - complaints made on an appropriate occasion to proper authorities about judicial officers should be treated as totally immune from suit.
We would firstly put the proposition that it is essential to the protection of the administration of justice that unfitness for office of any judicial officer should be dealt with in whatever way. We put that as a general starting proposition; it should be appropriately dealt with. We secondly submit that it follows that for this reason that various provisions of one sort of another provide for removal from office. In the case of magistrates in the ACT, of this particular category, it is at the Governor‑General’s pleasure. Those of a different category, who are appointed only until age 65, it is for proved incapacity on the motion of the Parliament to the Governor‑General.
Thirdly, it is put that, in the circumstances where what is raised is the concern as to unfitness for office, protection of personal reputation must yield totally to the need for preservation of access to the proper authorities - in this case the Attorney‑General - and we would respectfully submit that it is intolerable that a person drawing the perceived unfitness for office to the attention of the Attorney‑General should be faced with suit at the instance of the judicial officer who has sat in the case about which complaint is made. It leads to a potential unseemly situation, because the next proposition is that if suit is permitted, but subject only to qualified privilege, then there would be a failure - as it is put, adopting words that have been used in a different context - a failure to protect non‑malicious complaints in order to deal with the malicious complaints, and this is a wrong priority in this situation.
Can I just read a passage from Spencer Bower’s Law of Action of a Defamation? I do not think we have provided this to your Honours so - - -
BRENNAN CJ: I must say it appears to me, sitting as a judicial officer, that it seems to me to be a quite understandable priority. I mean, every judicial officer sits to determine proceedings between two parties and, in the ordinary case, one wins and one loses.
MR CASTAN: Yes.
BRENNAN CJ: It is the most natural of human reactions to blame the arbiter for the loss.
MR CASTAN: Yes.
BRENNAN CJ: So, what you are saying is that on any occasion when a losing party chooses to make an allegation against the arbiter, that it is in the public interest that that should be made freely and without recourse.
MR CASTAN: Yes, your Honour, so long as it is made to the proper officer.
BRENNAN CJ: Yes. Does the proposition extend to other officers of State - executive officers, Ministers of the Crown, for example; reports to the Prime Minister about the unfitness of a Minister of the Crown; to the commanding general in relation to officers in the armed forces?
MR CASTAN: We would respectfully submit it would, that if persons make complaint through the proper channels concerning the unfitness for office of relevant officers of State, of Ministers, of the persons administering executive government, that they should be absolutely protected, the interest of good government being that attention should always be drawn to such allegations. It may be, as it is often said, that large numbers of these may finish up the subject of process or they may finish up the subject of no process. It may entirely depend on the circumstances but, as a general principle where we are talking about communication through the proper channels, whatever that may be in the particular case - perhaps the Prime Minister in relation to a Minister - it is highly desirable that there should be that communication unaffected by the potential for a suit in defamation at the instance of a person about whom such things have been said, albeit ‑ ‑ ‑
BRENNAN CJ: In other words, any allegation made against a repository of any governmental power to an authority that has or is believed, I presume on reasonable grounds, to have authority to remove the repository from office is absolutely privileged?
MR CASTAN: Perhaps I do not need to go so far as to make any propositions in relation to officers beyond judicial officers.
BRENNAN CJ: I know you do not for the purposes unless you are trying to establish some principle which covers it.
MR CASTAN: In our respectful submission, the only principle we need to establish is the principle here applicable in relation to the administration of justice. The general way in which it was expressed in the High Court in 1932 suggests that it applied to government generally. Whether or not the principle would extend that far might depend on further analysis and discussion, but I do not seek to put the principle higher than one that deals with judicial officers. One might find that, depending on the particular category of official or officer or person, that there are different kinds of processes and one gets then into the other level of discussion which I was going to come to which is the question of the immunity given to those documents which initiate new process - the converse of the way in which I have been putting it so far, which is to say that a document which initiates a process for the removal of a judicial officer should be treated as the equivalent of a statement of claim.
That is the other side to this. But I was putting what I might term the more general principles and it may be that this converse way of looking at it would provide the answer to some of those governmental cases that your Honour has referred to. In certain instances there are more detailed processes provided for the removal of a governmental officer of various levels in respect of whom it is said there is unfitness for office or inappropriate that they should continue, so different considerations may apply there.
The other consideration that is relevant to judicial officers is that judicial officers, we would respectfully submit, are presumed to be capable of tolerating robust criticism, we say hence the total immunity from suit arising from court proceedings. This is where the analogy is relevant. From the point of view of deciding whether or not it is appropriate that the judicial officer should be able to bring a defamation action at all, it is clear that the judicial officer cannot bring a defamation action in respect of what is said in court, or in the notice of appeal if that had occurred, or in respect of these same words if they had appeared in a notice of appeal.
The underlying concept there is that the judicial officer is assumed to be himself robust and capable of accepting that criticism will come including perhaps harsh, perhaps unwarranted, criticism, perhaps malicious criticism, although we say that is not the case here. But the principle applies to extend to extremely robust criticism.
We respectfully submit by way of analogy to the bar on suit that exists in relation to a judicial officer suing a litigant in defamation for something said in court or in a notice of appeal about the judicial officer; that bar, we would respectfully submit, should equally well be applicable in the circumstance that there is an application to or, communication to, the appropriate authorities for the removal of the judicial officer. The same robustness should be required where the criticism is made on the occasion of a complaint to proper authorities concerning judicial conduct in the course of court proceedings. It is for that reason we make the link. Where the complaint is made about judicial conduct in the course of proceedings, which same judicial conduct could have been complained of in the court or in a notice appearing in some other context, the judicial officer is barred from suit and is expected to live with the damage to reputation if that be the case, or the interest in reputation is not protected and is put to one side.
KIRBY J: It is suggested that there are inhibitions in the nature of the formality of court proceedings, the control by the judicial officer over their conduct, the exposure to cross-examination and questioning that make it much less likely that a person will misbehave or make malicious allegations in the courtroom or get away with it unanswered than in a letter which is written afterwards by a disaffected litigant.
MR CASTAN: In our respectful submission, that is true but it does not answer what is the more appropriate analogy here which is the equivalent, exactly the equivalent, matters contained in a notice of appeal. We refer to it by way of analogy but no control operate in relation to a notice of appeal and the litigant in person may be prone to express notices of appeal in a wide-ranging way which does not accord with the way in which notices of appeal might be drawn by those, perhaps, more experienced in appellate work.
The next proposition we come to underlying this concept of public policy is that it is contrary to the public policy which provides for the immunity from suit arising from proceedings in court that the matters argued in the proceedings, the matters that are actually the content of the court proceedings themselves, should be relitigated in separate proceedings where the judge becomes the plaintiff. This is the other unique feature of a situation where, albeit the proceedings have closed, the judge becomes the plaintiff litigant in proceedings turning on his conduct in the proceedings in which he sat as the judge between the now defendant and another party. That is the difficulty with what occurs if there is not immunity from suit and the issues are then, so to speak, relitigated. Now, what is - - -
BRENNAN CJ: That is not correct, Mr Castan. That is not correct, is it? How would that issue come about? If there is a defence of qualified privilege, how does that issue come about?
MR CASTAN: Questions will arise about the intent of the defendant in the defamation proceedings in order to determine the issue of qualified privilege.
BRENNAN CJ: Good faith of the defendant.
MR CASTAN: Good faith, and that will inevitably involve the events which occurred in the course of the litigation.
BRENNAN CJ: It may involve events but it will not involve any retrial of the issues.
MR CASTAN: In our respectful submission, it certainly will involve a question about the bona fides of the beliefs of the now defendant, the dissatisfied litigant who has sued in defamation, concerning the conduct of the judge. So the conduct of the judge during the trial about which complaint is made and his view about that will be then examined. He recounts in his letters the sequence of events that occurred and he says the judge behaved in this way, in this way and that way “and I came to the conclusion, and I am a doctor,” and so on, “and I came to the conclusion that he may well be suffering from some form of dementia and I concluded that there is a real concern here that he is incompetent.”
Now, if he is sued and he is then put to his good faith - your argument about malice - he will be put to, in effect, justifying the honesty of his belief that the judge behaved in a way which was of that kind. So the judge’s conduct in the case will then be the subject of consideration in another judicial proceeding.
BRENNAN CJ: But it is not a relitigation of the issues.
MR CASTAN: I am sorry, your Honour, perhaps I overstated it. It would be a relitigation of the events which occurred during the course of the litigation. I perhaps overstated it. It certainly would be a relitigation ‑ ‑ ‑
GAUDRON J: A litigation of.
MR CASTAN: Or litigation of - perhaps I have expressed it badly - litigation of that which occurred in the proceedings, including, even more inappropriately - one can conceive of a case, the worst class of case would be where the judicial officer was of a higher level in the hierarchy - let us assume for the purpose of this exercise a Supreme Court judge - and proceedings are brought, say, in the County Court or the District Court before a jury in defamation or, if not requested by the plaintiff, is requested by the defendant, the disaffected litigant, who then before the jury seeks to make out the qualified privilege.
Now, all of this is, we would respectfully submit, not in accordance with the proper administration of justice and good proper public policy. The notion that this would all occur, that that kind of event could occur - there would be either a brother judge or a judge in a different level of the hierarchy - either higher or lower, as the case may be if one applies the principle - giving consideration to those kinds of issues is, we simply say, inappropriate. Now, the reason why we ‑ ‑ ‑
BRENNAN CJ: You say far better that the Attorney‑General do it by himself?
MR CASTAN: No, no, far better that the Attorney‑General receive the material and determine what, if anything, should be done about it, and ‑ we do not know; there may be many, many such disaffected litigants write to Attorneys‑General, or perhaps write to judges, and make complaints of various kinds, but it is not appropriate, we would respectfully submit, that the actions for defamation should be brought by judges arising from those letters, however misconceived, misguided they may be from disaffected, disgruntled litigants. That is not the desirable way of dealing with that problem, whatever the desirable way may be. Another set of litigation in another court examining the good faith of the person who has made the complaint about what happened in court ‑ about his complaints concerning what happened in court ‑ we would respectfully submit is one of the worst possible results that might be brought about in terms of the proper administration of justice.
In effect, in this case, a judge or perhaps a jury might be evaluating the bona fides of this appellant in his belief as to the alleged dementia or incompetence, by reason of advancing disease, of a magistrate, which is entirely inappropriate, we would respectfully submit.
KIRBY J: Is there not a bias of the law against extending the categories of absolute privilege, given that it inhibits the rights of parties from expressing their points of view.
MR CASTAN: Yes, and that was said in a judgment of your Honour and Justice Hope in Rajski v Carson in 1988, that general bias; and again it was expressed in the Victorian case of ‑ ‑ ‑
KIRBY J: I think law reform bodies have taken a similar view when they have had a free rein to do whatever they want, or recommend whatever they want.
MR CASTAN: Yes, and Hercules v Phease is perhaps the next authority that I would seek ‑ it is the most recent reconsideration of this ‑ expressing the same hesitation as your Honour has just mentioned ‑ in 1994.
KIRBY J: What is the foundation for that hesitation? How would you express the foundation for it? What appears from Rajski and from Hercules as the basis for the hesitation? I suppose it is that, historically, there has been this traditional group of well defined areas, and ‑ ‑ ‑
MR CASTAN: If I may say so, it is not quite expressed that way in Rajski. The way in which it is expressed in Rajski is that absolute privilege in defamation can amount to a serious derogation from ordinary civic rights. So that, it is assumed that there is a significant value in the protection of reputation and, therefore, if it is inhibited, as it is in the case of the absolute immunity associated with absolute privilege, then the court should be wary to extend that. Now, we do not resile from that degree of, if I may term it, caution. Rajski is (1988) 15 NSWLR 84, and the relevant passage that deals with, if I might term it, the caution, that your Honour has referred to, is pages 91 to 92.
I was going to take your Honours briefly to the useful consideration of these kinds of issues, which appears in the judgment of his Honour Justice Marks in the Supreme Court of Victoria in Hercules v Phease (1994) 2 VR 411, particularly at 422. That case, of course, concerned the other side of the coin that we have been discussing. It concerned the question of a document which in substance was the initiation of proceedings; the letter of complaint to the Law Institute, concerning the conduct of a solicitor, and then the issue of proceedings for defamation by the solicitor, who responds to the letter of complaint by bringing proceedings concerning the contents of the complaint.
Towards the top of page 422, it is said by his Honour:
No less may be said of the threat of civil proceedings. A client of a solicitor is ordinarily very dependent on what his or her solicitor gives by way of advice, does by way of representation and charges by way of fees. The responsible consideration of complaints with power to investigate them and make rectifying orders are increasingly essential to the maintenance of the credibility of the judicial arm of government.
The concept of “public policy” is no more than the lawyers choice of language to describe what is fundamental to peace, order and good government in a modern democratic society. The policy is ordinarily one which appeals immediately to common sense. The law rarely enters upon a controversial area where public interest might be thought to be finely balanced between conflicting considerations.
The relevant public interest here does not permit of too much disputation. It is to protect the trusting -
in that case the client -
against the trusted.
in that case the solicitor:
It is said, however, that the trusting often leap to wrong conclusions, become irrational and endanger the good reputation of professional persons by making unfounded allegations against them. Litigants, it is said, are bad losers and will unfairly cast blame on their legal advisers rather than on the merits of their case.
One might substitute here for purpose of consideration, blame on the judges:
In the first place, not all unfounded complaints are defamatory. But, in any case, there can be no better safeguard of reputation against unfounded complaints than the existence of a disciplinary tribunal which is capable of exonerating persons against whom unfounded complaints are made.
Moreover, it should not be overlooked that the category of professional persons against whom members of the public need most protection are those who would attempt to “gag” a complainant by the issue of legal proceedings such as those here.
It might fairly be said that only a minority of solicitors complained against would attempt to divert a fair and proper investigation by launching legal proceedings against the complainant. There is little or nothing to fear from unfounded allegations contained in a complaint the function of which is to do no more than trigger a state controlled enquiry where the enquiry guarantees their fair consideration according to law and according to the rules of natural justice and where the investigatory steps for the enquiry are not taken in public. The strong likelihood is that unfounded allegations made only to the institute would never see the light of day if care is exercised by the authorised officer of the institute not to publish the complaint to anyone at the office of the person complained against other than the person himself.
I accept that in Gibbon’s Case and the Royal Aquarium Society.....warnings were justifiably given against extension of absolute privilege.
And that picks up with your Honour Justice Kirby had put to me.
On the other hand, as was emphasised in Dawkins v Lord Rokeby the existence of an Act of Parliament which prescribes the procedure for the hearing of a complaint of the present kind is an important factor in determining whether public policy requires that immunity should be accorded. There are, of course, other important features such as the public interest in the integrity of the legal profession. Dawkins’ Case concerned regulation of the military forces. Here it is the regulation of the legal profession.
In this case, public policy, in my opinion, requires that absolute privilege be accorded to the occasion of the making of a complaint by the respondents.
And he then goes on to set out some of the considerations that are authorised by an Act of Parliament. There is:
a procedure.....formidably elaborate, for the handling of a complaint which......ensure that it will be fairly considered from the point of view not only of the complainant but also......the solicitor.....
3. The powers to investigate.....are conferred on designated persons.....
4. Absolute privilege safeguards a complainant against the use by a solicitor of the processes of a court to dissuade him or her from supporting the continuation of an investigation and possibly a hearing of specified charges;
5. A complaint against a solicitor by a member of the public may be in the interest of other members of the public. It may lead to an investigation which uncovers misconduct concerning others;
6. Letters of complaint, although not necessarily framed in the same way as charges or providing particulars.....is a step which is necessary for the powers of investigation to be exercised;
7. So understood, a complaint is analogous to a writ as a first step leading potentially to a judicial hearing;
8. The regulation of the legal profession.....is an integral part of the judicial arm of government which is dependent for its proper service to the public, not only on the integrity of the courts, but on the integrity of all those who practise before them -
Now, all of those references to the - in that case, the complainant against the person was the solicitor, and the presumably dissatisfied client - perhaps litigant - if it was a litigation matter - similar considerations, in our respectful submission, apply with respect to the judicial officer against whom a complaint is made. Although, there does not exist, certainly in the ACT, and I suspect not in other jurisdictions, the same sophisticated and complex statutory provisions for investigation of complaints against judicial officers.
Nevertheless, the kind of privacy that is referred to, which ensures that the complaint is dealt with properly, is assured where the complaint is made, as in this case, through the proper channels, and is not sought simply to be some generalised publication. And so, it fits within that category. Can I add, as a reason why it is respectfully submitted that absolute privilege should be applied as a matter of public policy, short reference to general terms to the law of contempt?
KIRBY J: Could I just ask you, before you pass off Hercules, can a point of distinction be made between that case, which has some pretty powerful arguments, that they were there dealing with a case where there was a specific Act of Parliament, which in its structure and the nature envisaged that there would be complaints, and that this was one of them?
MR CASTAN: Yes, it did envisage complaints; although, it did not have a set procedure. But in our respectful submission - and it is relied on by his Honour, and we cannot point to an Act of Parliament which provides for a procedure for complaints against judicial officers. It has been said by some commentators that that would be a desirable development in terms of the Australian judiciary, but it does not exist.
KIRBY J: It does exist in New South Wales. The Judicial Commission can deal with complaints.
MR CASTAN: I am sorry, I was not - - -
KIRBY J: It has a hearing system, and it is quite elaborate.
MR CASTAN: I am sorry, your Honour, I withdraw - I was not familiar with it. But certainly there is no such system in the Australian Capital Territory and, in our respectful submission, the principle - the underlying principle remains the same. In fact, given that there is no other avenue, there is no statutory avenue, there is no office set up, there is no equivalent of that commission in New South Wales in the ACT, so the only avenue for those seeking to make - the only proper avenue - one could, of course, go to the media and all sorts of other things one can think of - but the only proper avenue is to go to the Attorney‑General, who, of course, could initiate such steps as would lead to the Governor‑General terminating the commission of the relevant magistrate - the particular class of magistrate being in office - only at the pleasure- - -
TOOHEY J: But is this not the language in part D of your submission rather than part A?
MR CASTAN: Yes, it is. I was perhaps drawn into it by his Honour Justice Kirby. We would put what has been said in Hercules v Phease in support of both. I put it that way because we have argued for what I might term a general public policy principle applicable to this by reason of the consequential effects flowing from the litigation of which the appellant was a party as one side of it. We rely on those public policy considerations there.
We also rely on Hercules v Phease in what I will call the alternate mode of arguing this case, which is to say in any event this was the initiating process for the removal of a magistrate within such proceedings as do exist. There is no detailed statute or other provision other than the relevant provisions of sections 10H to 10L of the relevant statute. The statutory provisions I perhaps should take your Honours to so that your Honours have them accessible. They are set out at page 48 of the book and it may be useful just to briefly ensure that your Honours have them accessible. The provisions which deal with the two categories of magistrate are conveniently set out in the judgment of Justices Beaumont and Ryan. At the bottom of page 48 one sees that in relation to this particular magistrate, he is within the category of a special magistrate dealt with in 10H:
the Governor‑General may appoint such special magistrates.....
Tenure of office
10J. A special magistrate holds office during the pleasure of the Governor‑General.
All it says is “may resign” and his terms are as the Governor‑General determines, so very much in the hands of the Governor‑General, no age limit and “at the pleasure”. Then if we compare that, there are then set out halfway down page 49 the provisions that deal with what are called “magistrates other than special magistrates” or magistrates generally. Of course, there in 10A:
a Magistrate holds office until.....65 -
Once he has attained 65, he cannot be appointed. 10D is relevant:
(1) The Governor‑General may remove a Magistrate from office on an address praying for his removal on the ground of proved misbehaviour or incapacity being presented to the Governor‑General by each House of the Parliament in the same session -
so, clear protection of tenure. I do not need to go further in respect of those provisions. There is no other structural provision that provides a mechanism for removal in respect of those in the class of the special magistrates who hold tenure only at the pleasure of the Governor‑General.
TOOHEY J: Presumably, Mr Castan, the current legislation of the ACT relating to magistrates came into operation after the events in question?
MR CASTAN: Yes, your Honour.
TOOHEY J: I see the writ goes back to 1989.
MR CASTAN: Yes. This case has taken a long time to get here. Perhaps I should just say that in respect of this approach, which is what I will call the converse approach, which is approaching this letter as, in effect, the initiating proceeding of a removal application, which itself would have the protection of absolute privilege, it being new proceedings dealing with the question of whether or not the magistrate should remain in office, and, without going into it in any detail because there is very little on which to draw, there are no statutory provisions and one can only infer that the Attorney‑General on receiving such a complaint would act appropriately in accordance with the rules of natural justice, would investigate the matter properly, would give the magistrate an opportunity to be heard and so on and, therefore, on that basis his Honour Justice Carr dissenting below found that the proceeding was such as to be one that would fall within the category of those which in any event as a fresh proceeding would attract the cover of the immunity of absolute ‑ ‑ ‑
BRENNAN CJ: I take it, Mr Castan, that the Attorney‑General was the relevant Minister administering the Magistrates Court Ordinance 1930. I mean I would assume that but it seems to me to be a relevant proposition to the argument you are putting.
MR CASTAN: Yes, certainly all the way through the Federal Court that has been assumed, your Honour. I cannot put it any higher than that. I have not independently checked but the case has gone forward on the assumption that that was the proper officer below.
On page 93 Justice Carr sets out the reasoning which we would respectfully submit is the appropriate reasoning. I would take your Honours only to the initial part of it rather than endeavouring to deal with the whole, but it is only from pages 90 through to 95 that he analyses this question and he says it is:
almost inconceivable that a tribunal carrying out such a function -
that is the function of determining whether the judicial officer will remain in office -
is not “recognised by law”, being the phrase used by the Court of Exchequer in Dawkins v Lord Rokeby and referred to with approval by Lord Diplock in Trapp v Mackie.
He refers then to domestic tribunals but makes the point:
the House of Lords in that case held that evidence given by a witness in a statutory inquiry into the dismissal of a headmaster was protected by absolute privilege.
And then goes on to say at line 17 and 18:
the practical reality that the Governor‑General will act upon the advice of Cabinet which in turn would doubtless have regard to a report furnished after an inquiry. Without denigrating the importance of ‑ ‑ ‑
GUMMOW J: That is not quite right, is it, Mr Castan? The reference in these sections to the Governor‑General has to be read with section 16A of the Acts Interpretation Act, does it not?
MR CASTAN: Of course, your Honour.
GUMMOW J: That just says acting on the advice of the Executive Council.
MR CASTAN: Yes, but what his Honour has assumed at line ‑ ‑ ‑
GUMMOW J: The connection of all that with the Minister with the responsibility of administering this Ordinance is a little obscure at the moment.
TOOHEY J: Except perhaps if you look at the foot of page 49, which is a reference to section 10D of the Ordinance. There is reference to the Attorney‑General as the Minister who causes a statement to be laid before the House.
MR CASTAN: Yes, 10D(3) refers to the Attorney‑General in the case of removal from office in the case of ‑ ‑ ‑
TOOHEY J: It is a hint as to who the responsible Minister is.
MR CASTAN: It suggests that he is the right person. All we can say, and I do not think it is in issue, that this case has been dealt with with the differing views between the minority and the majority below proceeding on the basis that the Attorney‑General was the right party, but the majority below ‑ ‑ ‑
GUMMOW J: But the relevant power of removal is section 10J, is it not, for a special magistrate? The bottom of page 48.
MR CASTAN: Yes, that is the section I had read just before.
GUMMOW J: Yes.
MR CASTAN: “During the pleasure of the Governor‑General”.
GUMMOW J: Yes.
MR CASTAN: What Justice Carr is, we would respectfully submit, properly inferring, and, we would respectfully submit, the Court should proceed on the assumption that his Honour proceeds at lines 17, 18 and 19 on page 93:
when one considers the practical reality that the Governor‑General will act upon the advice of Cabinet which in turn would doubtless have regard to a report furnished after an inquiry.
One assumes this would not happen in some peremptory way to remove a magistrate from office and, as he puts it, in referring back to the English authorities:
Without denigrating the importance of headmasters, an inquiry which may result in the dismissal of a judicial - - -
GUMMOW J: We are really talking about the executive council acting in a particular way.
MR CASTAN: I am sorry, your Honour.
GUMMOW J: We are talking about the executive council acting in a particular way. Involvement of that with the Cabinet may be another matter.
MR CASTAN: Yes, but that - - -
GUMMOW J: For all I know, the executive council may act entirely on the decision of the responsible Minister, which is simply the Attorney‑General.
MR CASTAN: That is possible, but the assumption that is being made, and I was not intending to make anything about Cabinet - I was rather submitting to this Court that the proper assumption to be made that that advice given to the Governor‑General would be the result of a report furnished after an inquiry. That was the critical element of the inference that his Honour Justice Carr made and that gives rise to the question of an appropriate application to the principles of natural justice and, in our respectful submission, it is clear that they would apply, and he goes on to consider the various components of how that tribunal would operate. Then at page 95 at line 7:
Once such a hearing is identified, the next question (where the narrower public policy ground is being applied) -
that is this alternative way in which we put our argument -
is whether the document upon which the defamation proceedings were based was a document necessary for the initiating of that inquiry. Heerey J. held that it was such a document. I respectfully agree with that conclusion and the reasoning which led to it - which was based, by analogy, on the reasoning in Hercules and in the High Court of Australia decision of Jamieson v The Queen.
We have taken your Honours to those. Now, their Honours in the majority, Justices Beaumont and Ryan, took a different view on a detailed analysis of judicial and quasi-judicial tribunals and we would respectfully submit that the view adopted by Justice Carr and by Justice Heerey below at first instance is the better view on that leg of the case, although for the reasons we have explained there are public policy considerations. Even looking at the matter as an initiating document there are public policy considerations which we have already outlined, which, looking at it as an initiating document equally well lead to the proper conclusion being that this should be regarded as within the category of initiating documents that would properly be subject to the protection of absolute privilege.
The only other thing I would seek to draw your Honours’ attention to is shortly to take your Honours to heading B of our outline of submissions which mentions the law of contempt but perhaps needs no more than for me to say to this Court that it is self‑evident that existence of the law of contempt as a body of law, developed with detailed doctrines in the common law to protect the administration of justice, is also the appropriate remedy, if there be one, required for persons who make statements extracurially or make statements which are so extravagant or so inappropriate that they should be regarded as the subject of some recourse, some punishment, some remedy on the part of the judicial officer.
Now, I appreciate it has been said many times, of course, that contempt is not there to provide protection for the judge or remedy or reward for the judge personally but to protect the administration of justice. Nevertheless, the existence of the whole of the doctrine of contempt and with all of its carefully framed categories, in particular the category of scandalising the court where it is appropriate for that category to be applied, and I do not need to again expand on all that before this Court, but the very existence of that whole doctrine means that it is not as if complaints made in the circumstance of this complaint, which were made in some manner if it might occur, which were so extravagant or so offensive or so inappropriate that something was needed to put a stop to it, ultimately the contempt power is the appropriate power.
Now, whether or not one would then find some category of contempt that would apply to such a complaint is another question but it is in the field of the development of the common law of contempt that this matter should be looked at, we would respectfully submit, rather than in the field of defamation law. It is the law of contempt that is there to say if there was an inappropriate kind of use of a complaints mechanism or inappropriate words being used or conduct in the course of complaint about a judicial officer to such a degree that it was needing to be remedied when the whole of the carefully developed doctrines of contempt would be the appropriate mechanism to provide that remedy, not, in our respectful submission, the law of defamation.
KIRBY J: It seems unlikely that the law of contempt on scandalising the judiciary is about the suffer a reflowering. On the contrary, it seems to be receding.
MR CASTAN: It is said, from time to time, that it is receding but every so often some case seems to arouse the interest and interestingly in the latest edition of Borrie and Lowe, in their analysis of scandalising, it is interesting to observe that Australia seems to win the gold medal in terms of development of the number of cases and the number of instances that are still busy developing the law of scandalising.
KIRBY J: I thought it might have been countries quite close to us but not Australia.
MR CASTAN: That is occurring there but in terms of certainly the reported decisions there is a lot coming from Australia whereas in England it is constantly being said that it is almost in desuetude. Those are the submissions.
KIRBY J: Just before you sit, could I ask you this? You concede that there is no clear authority that answers the problem before the Court but is there any analogous development of principle in other common law countries that we should look at in deciding what is the correct answer here consistent with past authority. There are some references to Canadian authority, I think, in the majority judgment in the Full Court.
MR CASTAN: Yes, the difficulty with that is that it is very, very old. It is 1836.
KIRBY J: Yes.
MR CASTAN: We have been unable to find anything that really provides a useful guide to your Honours in terms of other authority on this particular question. There is one very ancient English case that my learned friends are no doubt going to take your Honours to from what we would say is the time before. There was really a distinction between qualified privilege and absolute privilege which speaks of an attempt to remove a magistrate as having about it some of the components of qualified privilege but it is not really of assistance, we would submit, but we will perhaps leave that to reply and I cannot assist your Honours further with authority from other jurisdictions. If your Honours please.
BRENNAN CJ: Thank you, Mr Castan. Mr Rares.
MR RARES: If your Honours please. The first thing to be noticed in my learned friend’s argument is that while he concentrates on saying this was addressed to the proper authorities, it was sent - each of the two publications was sent to the Chief Magistrate, who could have had no role to play in this alleged inquiry, or appeal, or whatever one might call it. That appears both in the pleading and, as your Honours will see at the foot of pages 44 and 45 in Dr Mann’s copy of the letters.
KIRBY J: Does that give rise to a differentiation between absolute privilege that may have attached to writing to the proper authorities, and a qualified privilege that might attach to writing to the Chief Magistrate?
MR RARES: It may, yes, but there is no doubt that there has been a publication to two people; one of whom no attempt has been made to defend that publication by the absolute privilege, and before Justice Heerey the whole proceedings were dismissed.
BRENNAN CJ: What were the publications relied on in the statement of claim?
MR RARES: To both, I think, your Honours. If your Honours go to ‑ the statement of claim commences on page 6, and in paragraph 3 at line 20 there is an allegation the first letter was published to the Chief Magistrate and, your Honour, paragraph 6A, I think, was added at the hearing, on page 11. That alleges only a publication to the Minister for Justice but, your Honour, it is quite clear from the document itself that it was a copy.
GUMMOW J: There is an allegation in paragraph 3, is there not?
MR RARES: Yes. Paragraph 3 alleges the first letter the first letter was sent to the Attorney, that is the one that starts on page 42, on 20 October, and then the second letter, which was the letter to the Minister for Justice, which seems to be a letter that arises out of a reply to the first letter, as appears at page 45. The copy down the bottom ‑ it says, copy to the Chief Magistrate. I think these pleadings were fixed up at the hearing by the look of them and the pleader has obviously failed to pick that publication up on the second one, but we would submit that nothing should turn on that. It is clear that the publication of the first one went wider than what my learned friend has, all the way along, asserted was the only proper channel. So, he is accepting ‑ he has to accept on the pleading that it has gone wider than need be.
The second thing about it is, of course, that what he is saying is that the real purpose of this letter was to get his rehearing and he has put that on a number of occasions to the court, and how could it have been a proper purpose attracting absolute privilege, that a defamatory letter is written, whose object ‑ or one of whose objects ‑ is to get a rehearing of a case in a way that is just completely beyond any power that the Attorney‑General or the Chief Magistrate could have?
GAUDRON J: That is a matter that goes to qualified privilege perhaps. It really does not go to the legal question or the policy question whether absolute privilege should be extended and, if it is, that is an irrelevant consideration.
MR RARES: It is a question of what the occasion you are giving the absolute privilege to is, your Honour, and part of the conceptualisation is to see exactly what it is that is said to be the privileged occasion. Now, we accept that a complaint to a Minister or another person who you honestly believe is able to give you redress can be the occasion of qualified privilege and that was established in one of the leading authorities on the law of qualified privilege in Harrison v Bush (1855) 5 E&B 344 which we have referred to in paragraph 3 of our submissions, a decision of a strong Court of Queen’s Bench. I think it is also in 119 ER.
I accept, your Honours, that the argument that this was an occasion of absolute privilege does not appear to have been advanced or addressed in that case but it is exactly the same facts as here, in our submission, and it is an authority that has stood for 150 years. It is one in which every one of the defamation textbooks treats this as an occasion of qualified privilege and gives as an example complaints seeking redress from high government officials and, your Honours, what was alleged was that a magistrate had acted improperly in his office inter alia in reading the riot act to quell a riot and caused people to be injured and Mr Bush complained to one of Her Majesty’s Secretaries of State. The facts are set out in the judgment of the Lord Chief Justice, which is the judgment of the Court, starting at 346. At the foot of 348 their Lordships say, about point 6:
During the argument, a legal canon was propounded for our guidance by the plaintiff’s counsel; and this we are willing to adopt, as we think that it is supported by the principles and authorities upon which the doctrine of privileged communications rests. “A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable.” In the present case, little need be said to shew that the communicator had both an interest and a duty in the subject matter of the communication. Assuming that Dr. Harrison had misconducted himself as a magistrate in the manner alleged, all the electors and inhabitants of Frome had suffered a grievance by a magistrate having fomented the riot instead of quelling it, and having endangered instead of protecting life and property within the borough. They have an interest that they may not longer remain subject to the jurisdiction of a magistrate who so violates the law. Again, if Dr. Harrison had so misconducted himself as a magistrate, he had committed an offence; and it was the duty of those who witnessed it to try by all reasonable means in their power that it should be inquired into and punished. “Duty,” in the proposed canon, cannot be confined to legal duties which may be enforced by indictment, action or mandamus, but must include moral and social duties of imperfect obligation.
And their Lordships then consider other remedies. The Court then at page 353 of the Ellis & Blackburn Report at the foot of the page after referring to Entick v Carrington say:
How can it be said that such a functionary has not a corresponding duty, when a memorial such as that which we are considering is presented to him? We conceive that, in the discharge of his duty, he might have caused the inquiry prayed for to have been made; and that, the allegations being duly substantiated and verified, he might have communicated upon the subject with the Lord Chancellor, and done what would have amounted to a recommendation to Her Majesty that the said Dr. Harrison be removed from the commission of the peace.
Considering this as virtually a communication to the Queen through Her Secretary of State, it cannot be doubted that Her Majesty has an interest in the matter; for She is to see that all in authority under Her do their duty, and that justice is duly administered to all Her subjects. We therefore come to the conclusion that this was a privileged communication, and that the verdict ought to be entered for the defendant.
Then their Lordships say that the reason for that is that there was no evidence of malice and at the foot of page 357, having discussed an earlier decision in Fairman v Ives on the previous page, their Lordships say:
The language of Best J in Fairman v Ives is particularly applicable to the present case. “The circumstances under which this letter was sent rendered it a privileged communication. It was an application for the redress of a grievance, made to one of the King’s ministers, who, as the defendant honestly thought, had authority to afford him redress. And this may be done without hazard of an action or prosecution, if the application be made bona fide with a view to obtain redress for some injury received, or to prevent or punish some public abuse.” “Petitions to the King upon matters upon which the Crown cannot directly interfere” “fall within the same rule.”
The same principles may be educed from Toogood v Spyring, Somerville v Hawkins, and other leading cases in which the doctrine of privileged communication is discussed. We think that these authorities considerably outweigh the reasoning of the Court in Blagg v Sturt on the incapacity of the Secretary of State to give redress; and that, as the defendant is found by the jury on reasonable evidence to have presented the memorial to the Secretary of State bona fide for the purpose of obtaining redress, we are bound to say that he is not a libeller, and to give judgment in his favour.
What we submit, your Honour, flows from that case is that this has been a law and a well‑recognised category or head of qualified privilege since this case was decided. Your Honour Justice McHugh refers to it in the discussion of establishing qualified privilege at 348 to 349 in Stephens v West Australian Newspapers in the passage that we have referred to in the submissions.
Your Honours, there are two texts which I should have put on the list of authorities but did not do so that we have referred to in footnote 6 of our submissions. They are Fraser’s Law of Libel and Slander and Halkin and Davis’s Law of Torts in which this head of qualified privilege is referred to. If I may hand up copies.
KIRBY J: What do you say to the suggestion that this was a discussion of the principles before the formulation of what distinguished absolute and qualified privilege?
MR RARES: If your Honour goes to page 355 of that report, there is a discussion of Lake v King which dealt with presentation of a petition to Parliament. It was certainly recognised by then as being absolutely privileged because one had the Bill of Rights in 1688. We would submit that the principles that are developed here are formulating that there is a means of getting redress and they have been applied, in our submission, ever since. The simple fact is that absolute privilege has been confined and deliberately confined to the situations of immunity from what is said or done in legal proceedings per se, statutory or other tribunals recognised by law for that purpose or between high officers of State, and parliamentary privilege. In Gibbons v Duffell the Court looked at this and came to the view that one inclined against extending these categories.
KIRBY J: Where does one find a good historical description of how the privilege emerged and how absolute privilege was distinguished from qualified privilege? Perhaps you can take that on notice if you cannot answer it.
MR RARES: There is a discussion in Gibbons v Duffell in the joint judgment but it is not extensive. It is because absolute privilege has been so confined that the courts have said - and one of the leading authorities is Royal Aquarium and Summer and Wintergarden Society v Parkinson (1892) 1 QB where a strong Court of Appeal looked at the question and came to the view that qualified privilege was the major means of protecting such communications and that absolute privilege did not extend to licensing magistrates in the circumstances of that case, extending a licence to an entertainment - and therefore the magistrate who was sued for saying that the show should not be given a new licence was proved to have looked at some figures that he said were obscene and figures of males and females and it was shown that they could not possibly have been seen by anybody who was honestly looking at this to be such as he described, and therefore he was malicious and therefore he was liable to damages.
Your Honour, what has been asked for here is an absolute privilege to write a letter seeking a rehearing of a proceeding which this litigant lost, and a letter making the most serious allegations about a judicial officer who is said to have no redress.
KIRBY J: Judges have to put up with a lot of nasty things said about them in the course of litigation and in notices of appeal. As it has been said, they have to be robust and have broad shoulders. What is the difference between writing a private letter that might set in train an inquiry?
MR RARES: Indeed, judges have to be robust and for that they are given a privilege. They can be robust in two ways. Firstly, they can freely express their views in court without fear of being made the subject of an action, and when they do that they are on public display. Every member of the public can see what happens in a court of justice and make a fair report about it. That is why there is a privilege to make a fair report, but you cannot make a malicious report. You can defame people in reporting court proceedings or parliamentary proceedings. The law balances these rights of the private interest of the participants in absolutely privileged proceedings in terms of steps taken either extracurially or extra-parliamentary-wise or extra-tribunal-wise and balances these things and says, “Well, you have an absolute privilege in a limited series of situations, otherwise you have a qualified privilege, which, if you abuse the occasion for which the law will give you protection, you become liable to an action.”
We would rely, your Honours, on Gibbons v Duffell because in that case the court really examined the principle in a context that is not exactly analogous and one of the questions that was looked at by two of the Justices at least, was what your Honour Justice McHugh was raising with my learned friend about public interest immunity. That is in 47 CLR. The principles discussed at a passage starting on page 525 in the joint judgment of the Chief Justice and Justices Rich and Dixon, at about point 2, just next to their Honours’ names:
The conclusion that the privilege is absolute and gives an indefeasible immunity assigns it to a category of narrow, although uncertain, limits.
And then their Honours quote from Lord Justice Scrutton in what is quite an amusing judgment in More v Weaver:
“There are a few, not many, cases where untrue communications or statements which are defamatory are by the law of England treated as absolutely privileged, so that, although they are untrue, defamatory and malicious, the law does not allow any action to be brought in reference to them. The reason is that there are certain relations of life in which it is so important that persons engaged in them should be able to speak freely that the law takes the risk of their abusing the occasion and speaking maliciously as well as untruly, and in order that their duties may be carried on freely and without fear of any action being brought against them, it says: ‘We will treat as absolutely privileged any statement made in the performance of those duties’.” (per Lord Justice Scrutton).
McHUGH J: More v Weaver was a case about calling in a loan, was it not?
MR RARES: I think so, but his Lordship talks about judges being able to be malicious in giving judgment or making remarks on the bench and being privileged from any proceedings taken against them but the real principle has to come down to the next sentence, in our submission:
Freedom of utterance has always been considered indispensable to the administration of justice, and, therefore, persons acting judicially, advocates and witnesses alike receive absolute protection for what they say.
Why should somebody who is dissatisfied, where there is no statutory proceeding, no statutory protection just have this indispensable freedom of utterance? My friend says it is connected to the end of the proceedings in some way; proceedings which no longer exist and to which there are no more parties presently constituted. In our submission, that just is an untenable proposition. He has no authority to support it and ‑ ‑ ‑
BRENNAN CJ: Mr Rares, I notice that in the citation from Lord Justice Scrutton, his Lordship has put the absolute privilege on the footing that it is in order that their duties may be carried on freely. Now, one appreciates that in terms of that which happens in court or in Parliament and so forth. Are there any cases in which absolute privilege has been accepted by the common law in which it has not gone at an adjunct to the performance of a public duty?
McHUGH J: Well, More v Weaver itself, the case of solicitor and client, although More v Weaver, I think, was doubted by the House of Lords in Minter v Priest which dealt with the question of solicitor and client privilege but, nevertheless, More v Weaver probably still stands as a decision that there is absolute privilege between solicitor and client.
MR RARES: Yes, because if you open that up, the client could not speak to his solicitor freely and have the benefit of the reason why you have got legal professional privilege.
KIRBY J: If the essence of it is as stated in Gibbons that the reason is that there are certain relations in life and it is so important, et cetera ‑ ‑ ‑
MR RARES: Yes.
KIRBY J: Given the development of society where people now do and may make complaints against judicial officers, if they confine it to the relevant person who can set in train the steps, what is it - one can really reverse your question and say why should that not be one of the positions in life where persons engaged in them should be able to speak freely as a citizen to the relevant Minister of State who could take action?
MR RARES: Well, if it is malicious and it destroys a man or woman’s career, and he or she has got no redress and has simply the cold comfort of being able to say, “Well, I’m a judge, or I’m a judicial officer, and this malicious person has been able to destroy my career through this statement”, one would have thought that there is a very countervailing public interest. I mean, suppose you have got a judge or a magistrate close to retirement has a scandalous allegation made by somebody, but one which requires investigation because it has got some plausibility about it; it is investigated, it is shown to be totally malicious and fabricated. He has got no redress and that is maybe the end of his career, or her career.
KIRBY J: But this is in a private communique. We are not talking here of letters to newspapers or letters to third parties; we are talking about the letter to the relevant high officer of State who has the obligations to sift the wheat from the chaff, the apparently ridiculous from the one that needs inquiry.
MR RARES: I accept that. But take one that is not apparently ridiculous. Take one that looks quite serious: totally malicious, totally untrue, but it looks plausible, and it looks like something that has got to be investigated. What happens then? There is an investigation. If Justice Carr’s analysis is right, it is all in public, people are called as witnesses and, at the end of the day, some inquiry that is not a judicial inquiry - not a court of law - says, “Well, we don’t think this is made out,” or the Executive Council or whatever does not accept it, or Parliament does not accept it.
I mean, one only has to look at the events of the 1980s, when a number of judges, including Justice Murphy, were brought into situations in which their conduct was examined in various stages, and you had people having to give evidence about these things to see how - what an impact it can have on a judicial officer’s career where you have a plausible allegation made. If it is made by a malicious person against whom the officer can take and receive no redress, and perhaps not even get the vindication of a judgment of a court of law, may be something that is much too high a price to pay.
Why is that indispensable? Why is the right of somebody to write a malicious letter an indispensable adjunct of the fact that a person sits in a judicial office? In our submission, it just cannot be right. He is sufficiently protected by the qualified privilege. You see, a fair report of proceedings - suppose you had a discussion - the magistrate falling asleep or appearing to pay no attention to the arguments and the like, a newspaper could report that freely in the press, and it could be drawn to the responsible authority’s attention. Why does Dr Mann, or anyone else, get a special right to come along and say, “Well, I really want to make sure this man is nailed,” and go beyond what is a bona fide use of the occasion. It is.....honestly.
KIRBY J: Well, the answer that is suggested in Hercules is because we place such a high store on the integrity of the legal profession, and why should there be less store on the integrity of the judiciary?
MR RARES: Well, Hercules is a slightly different case because Justice Ormiston said at common law there was no absolute privilege, but because of the structure of the Act and in particular because the complainant was, in effect, treated as a party to the complaint, and I will take your Honours to the passage in a moment, that, in those circumstances, you really had a situation where you could see that the statute itself required an absolute privilege, because there was a tribunal; there was a statutory process to be followed.
We would respectfully seek also to draw your Honours’ attention to what the Court said in Gibbons v Duffell in the joint judgment at 528, after the passage that we have cited in our submissions and that my friends read from, about the functions of the Inspector of Police and judging whether or not the discipline of the police force could survive if absolute privilege were not afforded, and one would submit that a similar policy consideration is apposite here; will public confidence in the administration of justice survive if the citizen continues to have the right that Harrison v Bush said he had, of qualified privilege but not absolute privilege, to make complaints. We would submit that most citizens ‑ people who would wish to make complaints ‑ would be satisfied that a bona fide complaint of theirs would be protected and your Honours will see in Justice Starke’s judgment that his Honour confines the privilege at point 6 to point 8 on 529, his Honour says:
Statements made in Parliament or in the course of judicial proceedings have, no doubt, absolute immunity or privilege, but this immunity has never been extended to statements made to or before administrative bodies, or public officers, whose duty or function is the redressing of public grievances ‑
and this is what we are dealing with here, the grievance of Dr Mann that he did not get satisfaction in the Magistrates Court, and Justice Starke, at the end his Honour’s judgment at 532, at the top of the page, about point 1 to point 2, just before the citation of Dawkins v Lord Poulet, and Justice Evatt in a passage that your Honour Justice Kirby, when President, and Justice Hope cited in Rajski v Carson, at the foot of 534 to the top of 535, and in particular, we would rely on what Justice Evatt says at the bottom of 534, after the quotation from Mr Williams’ article:
Extension of the privilege by reason of analogies to recognised cases is not justified.
And Justice McTiernan is to the same effect. There was a reference in there, I meant to mention to your Honour Justice McHugh ‑ two of the Justices mentioned something about this public interest immunity point on the report ‑ ‑ ‑
GUMMOW J: Well, what is the answer to it?
MR RARES: We would submit that the contents have been revealed and there is no further privilege. Rogers v Gaming Board, I think, was a case in which the document was not produced. There was an objection to production. The document has been revealed. Secondly, copies have been sent to the Chief Magistrate in this case, so that it does not apply - - -
KIRBY J: May that not lead to differential entitlements of the plaintiff? That is to say, a different pleading of a different defence, absolute privilege with respect to the Minister and qualified privilege with respect to letters to the Chief Magistrate.
MR RARES: It may, but it may mean that because you waive - suppose there were an absolute privilege, why could it not be waived by a wider publication than was proper for that privilege, just like qualified privilege exists to report to particular people things in which there is reciprocity of interest and duty, subject to the widening that has happened at common law in the Stephens and Theophanous line. Once you go beyond the occasion of privilege you lose the privilege. You do not just keep it for the limited class. You lose the privilege entirely and, we would submit, that that certainly has to be at least open at the trial to run that point.
BRENNAN CJ: That is what I do not quite understand in relation to this case that you were referring to before, that Justice McHugh referred to. What has privilege from production got to do with absolute privilege in defamation?
MR RARES: We would submit nothing, and the court made a decision in Gibbons v Duffell without deciding this point but it said there was no absolute privilege to prevent the plaintiff suing on the report, and the question of whether or not he could get it produced in the court later on was another question entirely.
BRENNAN CJ: Where production of the documents or the discovery of the communication goes one readily understands the question of whether there is proof of the defamatory matter, publication of the defamatory matter or not.
MR RARES: Yes.
BRENNAN CJ: If the defamatory matter is proved, is there any case which says that given that this document, or whatever it might be, could not be compelled to be produced from the source from which it comes because of privilege from production, therefore, it is absolutely privileged?
MR RARES: I am not aware of any and it would certainly go against all the confidentiality cases where a document loses its confidentiality.
McHUGH J: Is there not a case concerning discovery where a woman’s solicitor handed documents to the press?
KIRBY J: It is Harman.
McHUGH J: I beg your pardon, Harman?
KIRBY J: Harriet Harman.
MR RARES: Harman but that is not then followed by - that is Harman v The Home Office is that what you mean.
McHUGH J: Harman v The Home Office, yes.
MR RARES: They were documents that were - I do not know if that is the one your Honour means. That was the case where a reporter tried to find out what had been read out in court and she handed the documents to the reporter; the solicitor handed the documents to the reporter. Is that what your Honour hand in mind?
McHUGH J: Yes.
MR RARES: I do not think that has really been accepted as authority or the majority speech in the House of Lords has been accepted as authority. I think in Esso Resources v Plowman, the Court said where documents had been read out in Court, they went into the public domain in the judgment of Chief Justice Mason. I think your Honour Justice McHugh and I think Justice Dawson agreed with that. It is in 183 CLR 10.
KIRBY J: Lord Scarman’s dissenting speech was favoured, I think.
MR RARES: I think so. That is right, your Honour.
KIRBY J: It seems an odd result that you can write and complain against the solicitor and pick up absolute privilege but if you want to write against a judicial officer - the answer may be in the statute but it seems, in terms of principle, that a citizen cannot write to a Minister and be completely protected for doing so. That is the only way of putting in train any legitimate action and that the Minister can be trusted to try to act in a discreet and proper way.
MR RARES: Your Honour, obviously each case depends on its own facts but if I can take the Court to the Hercules v Phease (1994) 2 VR 411 because that is obviously important. In that case the statute is set out at 427 in the judgment of Justice Ormiston and your Honours will see in subsection (1):
A person aggrieved by alleged misconduct -
so that you have got the concept of some interest to give standing -
may, within six years.....make a complaint -
and then there are a series of steps that are to be followed in the procedure. So that there is a statutory right to make the complaint. Then his Honour deals with the mechanisms that are applicable and at page 447 at line 15 his Honour says that the proceedings were ones which attracted “absolute privilege”. Your Honours see here all you have got is a mechanism of addressing a grievance to a Minister which may or may not result in anything. In this case there was a statutory procedure laid down to which this person was a party. He was entitled to go to any hearings that were held whereas the rest of the public were excluded.
KIRBY J: In a way it cuts both ways, because the statute had held back from confirming an absolute privilege; whereas, here, it is the common law. We have only got to look at the point of principle and look at the nature of the relationship.
MR RARES: To the extent that it is against us, we would submit that Hercules v Phease would be wrong, for the reasons that we have adumbrated; that if the statute did not give the absolute privilege, then the Parliament can be taken to have not thought that was important. Certainly, we accept what Justice Ormiston says is the common law position. He says on a proper construction of that statute there was absolute privilege. If your Honours goes to the bottom of 47, his Honour, at line 46, says:
But, although the complaint itself is not stated to be the process which necessarily comes before the board or registrar, the complainant has a right to be present at any hearing, as he or she must be given notice of the hearing.....and may not be excluded upon an order of the board that witnesses be ordered out pursuant to -
another section. So that:
Furthermore, I would infer that the complainant not only has a right to be present but is also to be treated as a party.
And so, you have got quite an exceptional situation from that which we have here. At the next paragraph, his Honours says:
If a complainant is a party to the proceeding then, for the purposes of he law of defamation, that person must be granted all the consequential privileges of a party.
So, his Honour’s reasoning was to say, “Look, this man was assimilated to the position of a party in the complaints procedure, and the way he got there was by making the complaint that the Act provided that he could make, and that, therefore, a privilege under that Act applied to the complaint.” But this is very different here. Of course, your Honour, at the foot of the page, his Honour correctly points out:
Nevertheless it is not surprising that the decision was made in those terms for, whatever criticism may be expressed of the rule, qualified privilege was always lost at common law if a complaint was directed to a person who had no relevant corresponding duty or interest to receive it.
And Hebditch v MacIlwaine is referred to. I think your Honour the present Chief Justice in Stephens Case said something similar - I have got a reference somewhere - and that has clearly been the law. So that what we would say is here you have, of course, got the Chief Magistrate, who is not interested, for the relevant purpose of the making of the complaint, because he cannot give any redress. There is just no way that he can do that, and could not have been seen to for the purposes of absolute privilege.
I mean, with qualified privilege, we say that the same considerations apply. But he should lose any - to the extent there might have been an absolute privilege, once he goes beyond publication that privilege affords, he is lost, whether it is absolute or qualified. The reference I was thinking of in Stephens Case is at 182 CLR at page 242 point 10 where your Honour the Chief Justice said that:
And, if the publication is made to protect an interest of the person making the defamatory statement, the publication is protected only if it be made to “a person who, if the defamatory matter be true, may reasonable be expected to be of service in the protection of the interest”.
Your Honours, the law of absolute privilege has really been structured around having a proper channel of communication of a particular kind. So in a court proceeding you have a protection for the publication of matter that is damaging because witnesses cannot be parties and advocates cannot be put into a position where they could be made subject of civil proceedings for damages for things they must speak and that follows from Dawkins v Lord Rokeby in the report in the Exchequer Chamber and you have really got to protect people from the possibility that they could be sued for what they say in court. They are obliged to answer. They have got obligations to do so. Likewise, advocates have to be given a freedom to speak in court in a way that outside of court they could be sued because it is necessary for the administration of justice that that freedom exist and the court is able to control that to some degree.
I think during the discussion your Honour Justice Kirby had with my learned friend your Honour was pointing to that, but in Clyne v The New South Wales Bar Association 104 CLR the Court looked at that and said the courts can control advocates and witnesses to some degree and, therefore, giving them the absolute immunity does not necessarily give a wide light because there are times when things slip out that should not be said, but there is a responsibility that comes with it and you can discipline people within the proceedings and within the law of contempt and the like.
Likewise, in Parliament there are procedures by which scandalous material cannot be allowed out. There are rules and standing orders and the like, but to just let somebody off their own bat make a complaint to something that is not a court - my learned friend was making this analogy that somehow sending a letter was like sending a notice of appeal. If he had put in a notice of appeal he would be within the control of the court and another system but sending a letter is a very different kind of act and, in our submission, does not attract the exceptional and limited privilege.
My learned friend tried to make the point good by referring to the joint judgment in Jamieson, about words spoken in office, and, again, it was words spoken in office in the course of proceedings. What office ‑ what possible connection with proceedings does this have that attracts a privilege of an absolute kind? We have also said in our submissions that one of the reasons that the Court might think absolute privilege ought not to be attracted is that there are a number of areas in which prima face ‑ ‑ ‑
GUMMOW J: Whereabouts is this, Mr Rares?
MR RARES: At paragraph 9, on the top of page 3. There are a number of areas of the law in which malice constitutes a defeasance where it is exceptional. In the area of contempt, for example, a party can criticise, in strong and trenchant language, the administration of justice and what happened at court, criticise a judge, based on what happened in the court ‑ ‑ ‑
GUMMOW J: So, what follows from paragraph 9? What follows from the observation that there are these various torts of which malice is an element?
MR RARES: What we would submit is that, in confining absolute privilege up to now within very limited categories, the courts have taken a clear policy direction in saying that there are some very narrow categories where you just cannot sue, and then there are other categories where there is a prima facie protection that is given to people for being able to say things or do things, but that their state of mind can take away that protection, and it is an important qualification because it is a defence to a contempt case that you honestly believe the criticism you make of the judge, provided, you know, you come within other areas of the law of contempt. We say that when one looks at the definition of malice, it gives a defendant a very wide scope. The plaintiff has got a large hurdle to get across if he is going to prove a letter of this kind is malicious.
So that it is a particular disincentive to taking proceedings but that it is a sufficient check that a plaintiff is stopped by having to get over the hurdle of malice before he can really take these proceedings forward. Hercules v Phease, for example, was just a gag rid case. I mean, the solicitor was simply saying - as soon as he got the second letter from the Law Institute saying, “What’s your answer to the complaint?”, “I’ve started proceedings; you can’t investigate me”. I mean, it was just an abuse of process by the look of it.
I suppose the other thing that we would want to say is that the Attorney‑General did not have to do anything with this letter. It appears that he did not, apart from having the Minister for Justice write back and say something that caused Dr Mann further dissatisfaction. Again, why should there be an absolute privilege to write such a letter? Nothing has to happen to it. It is not an initiation of proceedings because he does not have to act on it.
There would be many cases in which there would be plenty of dissatisfied litigants writing to attorneys or their counterparts saying, “Judge got it wrong; judge was biased; judge was this; judge was that”. In most cases that is water off a duck’s back, but to say the judge has got senile dementia is a pretty strong thing and a matter which - and then to send it to one of his judicial colleagues, the Chief Magistrate, is a matter which gives rise to completely different questions. It purports to be a medical opinion, saying “I’m basing this on my 35 years of medical practice that this man’s got dementia”.
We would submit that there is no sufficient reason in policy and certainly no support in the law for this occasion to be one of absolute privilege. Unless there is anything I can assist the Court with.
KIRBY J: You did not find any other common law authority that will help the Court on this matter?
MR RARES: Apart from what we have referred to in the submissions there are - I think the Canadian case - there are a couple of other cases after that but they are not terribly, if I may say with respect, analytically satisfactory. There are a couple of New Zealand decisions that are very tangential. There is one where Sir Thaddeus McCarthy was sued for giving judgment and leaving a line or a page out of his judgment and, when it got to the Privy Council, the Privy Council reversed the Court of Appeal and then he was sued on the basis of the Privy Council for reversal. It wound up with one of the judges of appeal giving evidence about how the judgment was written and the like, but I do not think it really helps.
I am just reminded of one last thing, your Honours, is that, as my learned friend said on a couple of occasions, the application Dr Mann was making, as is clear from his letter, is that he wants a rehearing of his case and that is not the institution of a process against a magistrate. Now, that is what he was really about, trying to get his rehearing, not making so much a complaint against the judicial officer for some other purpose, although he does mention that in his letter, but if he has got different purposes - if the privilege is to protect him for one purpose, why should it go to protect him for other purposes when he strays beyond that purpose?
BRENNAN CJ: Yes, thank you, Mr Rares. Mr Castan.
MR CASTAN: Your Honours, I would be able to be of more assistance in particular to respond to the matter raised by Justice Kirby concerning authorities from other jurisdictions if the Court was prepared to break at this time, although we are five minutes early. It is simply that there are some materials that have now been provided to me by my learned juniors that would be ‑ ‑ ‑
BRENNAN CJ: No doubt you can give us a note of it after giving a copy to Mr Rares, Mr Castan. Would that be satisfactory?
MR CASTAN: I could do that, although I was hoping to be able to briefly take your Honours to some of them but I am content to deal firstly with other matters ‑ ‑ ‑
BRENNAN CJ: Perhaps we shall adjourn then in that case until a quarter past 2.
MR RARES: There was one case which Mr Katz drew to my attention - if I may with your Honours’ leave: is a decision of the Supreme Court of the United States, McDonald v Smith 86 L Ed 2d 384 and also 472 US 479, in which the court said that the First Amendment right of petitioning the government against grievances was not absolute but was qualified. It does not just go to the constitutional issue, but it goes to the fact that that court held that it was a qualified privilege to seek redress which was subject to ordinary law rather than ‑ ‑ ‑
KIRBY J: Mr Katz elaborated that in his written submission, I think.
MR RARES: Yes, he did, your Honour. I only saw it just before Court.
BRENNAN CJ: Very well, the Court will adjourn until 2.15.
AT 12.42 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
BRENNAN CJ: Yes, Mr Castan.
MR CASTAN: Firstly, in reply, there is one matter that I must raise that is now the subject of, I think, some difference between my learned friends and ourselves. My learned friend put the argument that there was a distinction between the publication of the Chief Magistrate and the publication to the Attorney‑General and the Minister for Justice. That is not a point that was raised in the arguments, as we understand them, that have been made below, certainly not in the Full Federal Court and not in the summary and we understand the position before Justice Heerey was that in the course of the submissions being put by the appellant on his own behalf - he appeared for himself - questions arose as to the circumstances in which the letters were written. As part of his submissions and in response to the exchange with the court, the appellant informed the court that the way it had occurred is that he had rung the office of the Chief Magistrate after the conclusion of the proceedings with which he was dissatisfied inquiring as to how he could make a complaint.
He was told by the Chief Magistrate that he should write to the Attorney‑General and that he should send a copy to the Chief Magistrate as he, the Chief Magistrate, received copies of all complaints about the magistrates and that he, the Chief Magistrate, invariably sent a copy to the magistrate about whom the complaint was made. The appellant, in the course of his submissions, having said that to his Honour, in the presence of counsel for the respondent, then proceeded with the argument. The argument then proceeded upon the assumption that the communication, a copy to the Chief Magistrate, at the Chief Magistrate’s own suggestion, was part of the process of a proper making of a complaint concerning a magistrate. That seems to be supported by page 44, where one sees, at the foot of the letter, the last sentence:
I have spoken about this to the Chief Magistrate, Mr Cahill and he has requested a copy of my letter to you..
That tends to reinforce, in its terms, that he was acting in accordance with the advice given by the Chief Magistrate as to what was the system by which a person complained about a magistrate in the ACT.
KIRBY J: This may explain how it came about but does it affect the legal classification?
MR CASTAN: It does, your Honour, because in the absence of any statutory or other procedure for complaint about a magistrate, the only basis upon which this Court should proceed is that that was the correct procedure, he, having made inquiry about the correct - - -
BRENNAN CJ: Why do you say that?
MR CASTAN: Because, your Honour, this matter has been dealt with on the basis, in effect, of a summary judgment application and it goes forward, in our respectful submission, upon the basis that if - and taking that material as having been stated and accepted, and argument having gone forward by all parties on that basis, there is no rule or law or evidentiary material about what precisely is the correct procedure so the Court cannot proceed on the assumption that forwarding a copy to the Chief Magistrate as instructed by him is not part of the proper procedure for the removal of a magistrate. The instruction was given to do that. This Court should assume that the instruction given by the Chief Magistrate was correct unless there is something inherently about it that demonstrates that it manifestly is wrong or it is contrary to some provision of law that shows that that is not the right procedure notwithstanding what the magistrate said. But it is not the case that there is some other procedure or any procedure laid down, so that addressing the letter in that way at the instruction or on the advice of the Chief Magistrate and in circumstances where the Chief Magistrate says, “I always get copies of letters of complaint,” should be accepted on its face.
Now, further, we say, given that that has been said in open court as part of the process of arguing on a summary judgment application on the pleadings and the case has gone forward on the basis that there is no difference, or, putting it another way, that the communication to the Chief Magistrate is part of that process, the case has gone forward on that basis up until now, this Court should not now entertain a last minute suggestion that somehow that part of the process is not truly part of the correct process, albeit our learned friends do not tell us precisely what would be the correct process, or why. Given that the magistrate gave that advice, that advice should be treated for this purpose as erroneous and this Court should say, “Well, the Chief Magistrate in so giving that advice and the courts below, in proceeding on the assumption that that was part of a process were all in error.” They have not suggested any alternative.
In our respectful submission, it would be not appropriate for this Court to treat that as anything other than the way it has been treated by the courts below, not after argument, but simply on the assumption that that was the correct process, that is what has happened below, and this Court should not now presume to say, “Well, we will work out what might have been some other process that should have been adopted, notwithstanding that that is the process that was advised, that was adopted and on which the courts below have considered this whole question all the way through.”
So that is the basis on which we put the matter and we stress that the respondent here was represented by Mr Rofe, QC and Mr Hull before Justice Heerey when this exchange took place. They were present in court and then proceeded to respond and argue the issues in the way in which they appear to have manifested themselves in the judgments. There is no suggestion of any such distinction being made and my learned friend, Mr Dreyfus, appeared for the appellant in the Full Federal Court and my learned friends, Mr Rofe and Mr Hull, again appeared for the respondent in the Full Federal Court and the matter again, as appears from the judgments, went forward upon the basis that those communications all formed part of the proper communicating through proper and appropriate channels.
Now, in our respectful submission, in those circumstances our learned friends should not be heard to come here and say, “Well, that was all wrong. The court has gone forward and there is now some other basis on which you should proceed.” There is one other matter to which I should draw your attention in that context. No doubt it may be said my learned friend would seek an opportunity to respond to that, that the case of Lincoln v Daniels (1962) 1 QB 237 provides some answer to it. It is a case which we would respectfully submit, if it is otherwise thought to be applicable, simply should not be followed.
It has to do with absolute privilege in relation to a communication sent by the defendant to an action for libel to the secretary of the Bar Council alleging professional misconduct by the plaintiff Queen’s Counsel and ultimately it was held that an inquiry before the Bench of an Inn of Court was a judicial process as to which absolute privilege attached and the Inns of Court should be treated for this purpose as having attached to them the appropriate absolute privilege, but the communication sent to the Bar Council, which was the channel through which one approached the Inns of Court, was not and since this communication had gone to the Bar Council and not to the relevant Bench of an Inn of Court it was not protected by absolute privilege, having gone through the channel, notwithstanding in that case also that the defendant, who had made the complaint, had sought advice from the Bar Council and been told, “You send it to us and we pass it over to the Bench of the relevant Inn of Court.”
Somewhat reluctantly the Court of Appeal held in Lincoln v Daniels that absolute privilege did not apply to the Bar Council but it did apply to the Bench of the Inn of Court, a distinction which we would say, if it be relevant to the current case, simply should not be followed. It reflects an inappropriate way in which to draw distinctions and decide how these important questions should be determined.
Can I now briefly respond to your Honour Justice Kirby’s inquiry about overseas or other authority, and I should indicate to your Honours that there is one reference, and the only reference of any use which could be found in relation to the Canadian situation is to be found - referred to in the appeal book in the court below, at page 77 in the judgments of their Honours Justice Beaumont and Ryan, where the case of Stanton v Andrews in 1836 is referred to. And I will not go into all that; all I will say is that there is some difference of view as to what Stanton v Andrews really holds. Certainly there is at least one member of that court in 1836 held that there was absolute privilege attaching to a petition complaining of the conduct of what were called “judicial commissioners.” But then, other views are taken, and certainly taken by their Honours below, about whether that is what the case really stood for.
KIRBY J: We have all seen that decision.
MR CASTAN: I am sorry.
KIRBY J: The question is whether or not there was something in addition to that.
MR CASTAN: The only other matter I would refer yourHonour to is the judgment in the Hercules Case, where your Honours will find quite an examination of the United States authorities; mainly, of course, those dealing with complaints concerning legal practitioners, because that was the issue there, again, in a somewhat indeterminate way, with the judges rather feeling they did not get much assistance. And, finally, we mention that there is, of course, a constitutional guarantee of the right of petition to the United States - the government of the United States, so that that - - -
KIRBY J: But even with that guarantee, Mr Katz makes the point in the decision which he cites that absolute privilege does not attach, and that makes it harder, it would seem, to suggest that the common law of this country, without such a constitution or direct guarantee, would go so far.
MR CASTAN: Well, we would respectfully submit that the case, given a decision under a particular constitutional provision in the United States, does not necessarily assist and that there are the issues of principle and ‑ ‑ ‑
GUMMOW J: But the United States case says that in considering what the right to petition means, one looks to what the common law meant and then they expound the common law.
MR CASTAN: That is true. All we put is that we say that we would urge your Honours to be deciding the matter on the basis of the considerations that have been put. Can I then respond to some of the things that were put by my learned friend apart from the issue of the letter to the magistrate briefly. As to Harrison v Bush it is, no doubt, good authority about qualified privilege but, of course, does not expound upon or tell us whether or not absolute privilege would apply or would have applied or might have been argued and the history of the development of the law is perhaps best expounded, as we would suggest, in Spencer Bower’s Law of Actionable Defamation, the second edition which, in fact, is a 1924 edition. I think it is 1924 but it is a fair while back. At page 340 and following there is a rather comprehensive review of the way in which the concept of absolute privilege evolves, starting with 1590, so we do commend that by way of response to the inquiry that was made.
It was said in the course of address to your Honours by my learned friend that the result of this was that a malicious attack could be made on a magistrate and destroy a career, that an inquiry would be held, publicity would be attached. Of course there is nothing whatsoever to suggest that any publicity would attach to communications made in the way in which these letters were written or that any inquiry made by the appropriate officers as a result of the Attorney‑General taking action would be in public.
Of course, the publicity that has been achieved in relation to these particular letters has been achieved by virtue, of course, of the action that has been brought in the Federal Court, the proceedings before Justice Heerey, the Full Court, this Court and the reporting of those proceedings, obviously, but no publicity would have been achieved and no damage to any career was achieved by the sending of this letter, or could have been achieved by the sending of this letter, or any other letter, no matter how malicious, if sent on the proper occasion through the proper channels.
It also was said by my learned friend that the real purpose was to achieve a rehearing and that this was unachievable and therefore no possible absolute privilege could be obtained. In our respectful submission, it is quite apparent that the letter was directed to the twofold purpose of both querying the fitness for office of the magistrate and, also, perhaps somewhat futilely, or mistakenly, seeking a rehearing.
Finally, we do make the point that seems to be necessarily made in response to what my learned friends have said, that it must follow that if persons are liable to proceedings in defamation, albeit having available to them the defence of qualified privilege, it must act as a deterrent to those
wanting to make complaint about judicial conduct, and that should be discouraged.
I perhaps have not used the correct phrase. I said “destroy”. I think phrase used was, “his career would be ruined”, and it is inconceivable how that could occur by reason of the making of these complaints, other than if the complain was appropriately dealt with and ultimately upheld, in which case it would be appropriate that it be brought to an end. If the Court please.
BRENNAN CJ: Mr Rares, do you have anything you wish to say?
MR RARES: Only in response to the point that my learned friend raised at the beginning of this afternoon. There appears to have been a separate trial on the pleadings only, namely, whether the defence was there and that appears from page 15, lines 1 to 20, the first page of Justice Heerey’s judgment. No evidence was tendered. Whatever Dr Mann said was a submission at the hearing before Justice Heerey and my learned friend said as much. Even if there were evidence that the Chief Magistrate said this was the appropriate procedure, that cannot create an absolute privilege to give the letter to the Chief Magistrate. It is either an absolutely privileged occasion or it is not, and if the Chief Magistrate were wrong, well, that is unfortunate, but as Lord Justice Danckwerts says at page 270 of the report of Lincoln v Daniels, Lord Justice Denning is reported to have said in a case:
anybody can say what they like to the Bar Council so long as they do not say it maliciously.
If he said it maliciously to the Chief Magistrate that, regrettably, is Dr Mann’s problem.
TOOHEY J: That is not quite the point, though, is it, Mr Rares? If I understood what Mr Castan was saying, it was that the action below was conducted on the footing that if there were an appropriate procedure which had been followed by the appellant, then the sending of the copy letter to the Chief Magistrate should be regarded as part of that procedure and it was on that basis that the action was conducted below with no attempt to disturb that and on the hearing of the appeal.
MR RARES: Well, that is not the understanding that we have. There is no doubt that Dr Mann said what Mr Castan said he said to Justice Heerey. Can I hand up the page and the front page from Dr Mann’s submissions in his written case on the special leave application and draw attention to paragraph 6, which is his own document, on the third page which is the copy attached to that page? At the end of paragraph 6 he says:
No decision is in issue, nor is immunity sought, for any wider distribution. The matter of the distribution to the Chief Magistrate, at the instruction of the Chief Magistrate, was canvassed by Rofe QC for Mr O’Neill before the Full Court. It was not deemed to alter anything by any of the four judges.
We would submit that is an express recognition by him that this matter was raised.
KIRBY J: But it also confirms what Justice Toohey was just saying that the case seems to have been conducted on the footing that that was not deemed to alter anything and that the proceedings were dealt with on the basis that what Dr Mann did was in fulfilment of the Chief Magistrate’s indication to him and that all of this must be regarded as within the complaints system. It is either absolutely privileged or not but it is all part of the complaints system.
MR RARES: Well, we would submit that would not be the proper reading, with respect, of the statement that it was canvassed by Mr Rofe. As I apprehend, he made the point and the judges said, “Well, that does not make any difference”. They came to the view that it was an appropriate channel.
TOOHEY J: Does Justice Heerey’s judgment tend to confirm one or other view as to the way in which the matter was conducted before him?
MR RARES: It does not. I mean, he does not mention the Chief Magistrate, beyond the introductory part on page 15, of saying the letter was sent to him, at lines5 to 6. But, in our submission ‑ ‑ ‑
TOOHEY J: But, in a sense, that does tend to confirm one view, does it not, that rather the construction that Mr Castan has asked us to place on the proceedings below, because no distinction appears to have been drawn by Justice Heerey between the copy letter to the magistrate and the letter to the Attorney.
KIRBY J: That is further borne out by the way you pleaded the cause of action because, though you mentioned the letter to the Chief Magistrate, you did not, in the statement of claim, you did not appear to differentiate between the position as between writing to the Attorney‑General and writing to the Chief Magistrate, even after it was amended and even after you knew what the issues were emerging.
MR RARES: But you would not in a statement of claim. You allege publication.
TOOHEY J: No, but you might in the reply, and if you look at page 3 ‑ ‑ ‑
MR RARES: The reply, your Honour, which does not seem to have been amended, raises, at the top of page 4, line 3, as a particular malice, the persons to whom the matter was published.
KIRBY J: Where is the reply? Which page is the reply?
MR RARES: Page 4 of the book. For some reason it is at the front, rather than behind the other two pleadings.
TOOHEY J: But one might expect, on the view that you invite us to place on the way in which the proceedings were conducted, that the reply itself might differentiate between the letter sent to the Attorney and the copy letter sent to the Chief Magistrate.
MR RARES: Apparently, the way it was conducted was that the hearing was on 8 April and your Honour will notice that on the ‑ and his Honour gave leave for people to amend, and the amended statement of claim is signed on 12 April, as at page 12, and the defence is delivered on 14 April at page 14. So that the parties, as it were, ran the point whether the absolute privilege met the plaintiff’s case or not.
Assume all that against me, it is a point of law. There cannot be any prejudice. How would he have conducted the hearing below differently? It is just a simple point of law; publication wider than the privilege. He did not call any evidence, he did not seek to put any evidence of this. But what would evidence have done to cure it? He says that is what the Chief Magistrate said; accepting all of that, it is a point of law. Can the Chief Magistrate create the privilege by saying it?
TOOHEY J: I do not think that is quite the point, is it? The question is really as to the footing on which the action was conducted. If it was conducted on a particular footing, then it is not necessarily an answer to say, well, it is a question of law.
MR RARES: Well, your Honour, in our submission, if it is simply a point of law that would not - that no prejudice can be shown to have been sustained, if the point of law is taken to a court of ultimate resort, then the authorities are clear that that can be done, with leave of course, but - - -
BRENNAN CJ: But the question is not quite as simple as that. Is it not this? Was the case below conducted on the footing that the proper mechanism for seeking the removal of Mr O’Neill was to send two letters; one to the Attorney, one to the Chief Magistrate. If it was then - if that is the footing on which it was conducted, then, in those circumstances, does absolute privilege apply to both? As I understand it, you point to what Dr Mann set out in paragraph 6 and say it is clear that it is related only to that which was sent to the Attorney.
MR RARES: Your Honour, that is how we understood - we understand Dr Mann made the submission, but we do not accept it that - our side accept it that that was the footing upon which his privilege could be established. There was no evidence, it was just done on the pleadings. In the event that, again, I am wrong about that, what is the prejudice? There cannot be any because it is just done on the pleadings. The pleadings are there. The cause of action is alleged, publication to the Chief Magistrate. If that does not give a privilege, it does not. This is a separate trial that was heard at which he effectively lost the case.
KIRBY J: One possibility is you said that if the publication to the Chief Magistrate was not covered by the privilege then it contaminated any publication. Now, I find that difficult to accept because if, for example, a person says something within Parliament and then says it outside and you sued on what was said in Parliament and what was said outside, the plea of absolute privilege would be admissible as against what was said in Parliament and qualified privilege perhaps in respect of what was said outside. So I do not think the two run into each other and at least the possibility is that a proper approach might be that what was written to the Attorney‑General was entitled to absolute privilege and what was written to the Chief Magistrate was not. In that event you would have to go back and re-form the pleading. So that you say the two are merged, but I am not at all sure that that is correct.
MR RARES: No. Our pleading is there was a publication to two people. Each publication as a matter of defamation law gives rise to a separate cause of action and so your Honour may be right by saying that the publication to the ‑ ‑ ‑
KIRBY J: But I am asking you to assume that the absolute privilege might attach to the letter to the Attorney‑General but not to the Chief Magistrate, leaving your pleading with only the one to the Chief Magistrate.
MR RARES: Yes, but our case was always this was a qualified privilege case. Their case was it was absolute. Now, if we fall into the category your Honour has just posited, namely, that one letter is privileged absolutely, the other is only a qualified privilege, again, there is no prejudice by us being allowed, if it is the case - and we do not accept that it is - taking this as a last resort in this Court because it has always been a case, we have put, that these letters were able to be defended as a qualified privilege plea only and we could defeat it by a malice allegation. So that that issue is still one that was always before the court at all three levels and Dr Mann’s position has not been in any way prejudicially affected if I am taking a new point, but, as I say, we do not have a transcript of what happened before Justice Heerey apart from an extract of a matter that is not presently relevant and I cannot be more authoritative than that, but it is Mr Hull’s recollection of the case and I am instructed that we did not accept that the Chief Magistrate simply could put forward his own method of absolutely privileging the publication to himself.
TOOHEY J: No, and I do not want to prolong this unduly, but you say that there is no prejudice and that it is simply a question of law, but the question whether the sending of the copy letter to the Chief Magistrate at the invitation, it is said, of the Chief Magistrate, was part of the system of complaint is not really just a question of law. It may well be a question of fact upon which evidence could have been called one way or the other.
MR RARES: Your Honour, I am told by Mr Hull, who was there, that we never conceded that. That was the appropriate procedure now. I am sorry that the matters are going to give rise to a dispute of - - -
TOOHEY J: That comment of mine was really made in response to your suggestion that it was some sort of pure question of law upon which no question of prejudice could arise.
MR RARES: I follow what your Honour - my learned friend put it quite clearly. He said the submission was being made by Dr Mann. He was doing this as a separate trial, he had put no evidence on about this.
GUMMOW J: This is, in effect, a demurrer. Right?
MR RARES: Yes.
GUMMOW J: The question raised by the plea, by the consent of the parties, had been tried separately under Order 29 of the Federal Court rules.
MR RARES: Yes, and it is on the pleadings.
McHUGH J: But the case is not purely a case on pleadings. There are facts which are assumed. For example, the pleadings do not refer to the fact that Dr Mann was involved in these cases. That has to be inferred from the letter that is pleaded and which is the subject of the defamation action. A properly drawn defence, if you wanted to raise these issues, would have set out the history of the proceedings which Dr Mann was involved in. So, your side must, at least, be taken to have accepted those facts for the purpose of the argument.
MR RARES: I think that is correct, yes. If you take Dr Mann’s plea itself on page 13, it is a plea at paragraphs 2 and 3 where he asserts that he wrote the letter to the Attorney as part of his duty. He does not assert in that that the Chief Magistrate was part of that duty, but it is our submission that - well, I am instructed it just is not agreed that we accepted that that was the proper procedure. We accept that is what he says he was told, but we do not accept that that gives rise to the proper procedure and we did not below.
McHUGH J: The points I made to you do indicate that the case was conducted, to some extent at least, rather informally.
MR RARES: Yes, I think that point must be - but, nonetheless, it still comes back to whether this procedure, however it was conducted, gave rise to qualified or absolute privilege on the bare facts that he did write to the Attorney but there would certainly have been ‑ ‑ ‑
McHUGH J: I do not want to go around. I think that has probably been in the cloud already but the fact is there are two ways of looking at it. One is, that the case was conducted on the basis that the proper procedure was to write to the Attorney and send a copy to the magistrate. Now, if that is so and if there is absolute privilege for this type of complaint then arguably it covers both. On the other hand, if you just look at it or if you try to determine yourself who should have been the repository of the complaint, you might come to a different view. As Justice Kirby has pointed out, you might segregate the privileges. One is absolute, one is qualified.
MR RARES: Well, your Honour, the trial judge made no finding of fact to support the proposition that it was appropriate to send a copy to the Chief Magistrate. Moreover, the sending of ‑ ‑ ‑
McHUGH J: But worse than that, from your point of view, he held that it was a complete bar to your action, even though in paragraph 3 of your statement of claim you had pleaded that it had been published to the
magistrate so Justice Heerey decided a case against you in respect to the magistrate’s letter on the basis of absolute privilege.
MR RARES: Well, your Honour, that is not the reason or the way we conducted the case. It may be the way Dr Mann wanted to conduct his case and we did not go along with that, we did not accept that. We just said this ‑ ‑ ‑
KIRBY J: What is being suggested to you is that when the matter came before Justice Heerey and then later before the Full Federal Court you did not seek to differentiate and say, “Well, there might be a stronger position. The plaintiff might be in a stronger position vis-a-vis the letter to the magistrate”.
MR RARES: Well, Dr Mann’s submissions seem to suggest that Mr Rofe, in fact, canvassed that issue. He says the judges took no notice.
KIRBY J: All one can do is look at the record and as far as the record is concerned your reply does not raise a differentiation. It may be in the end that none of this matters very much but it may.
MR RARES: Our reply did not need to. It is the plea of qualified privilege. If we were correct that it was a qualified privilege then we say malice can defeat both occasions. We never accepted that there was an absolute privilege. If it were absolutely privileged, there is nothing to reply to. It is gone. So, our reply is, in fact, distributive to whatever publication is available to be replied to.
KIRBY J: How did the matter get to Justice Heerey? Was there an application to strike out the defence?
MR RARES: His Honour explains it at page 15. Dr Mann applied to - and there was a consent that the issue as to whether or not our case went on the plea of absolute privilege will be tried separately.
GUMMOW J: We are back where we were five minutes ago, Mr Rares.
BRENNAN CJ: Thank you, Mr Rares. The Court will consider its decision in this matter and will adjourn until 10.15 am tomorrow morning.
AT 2.51 PM THE MATTER WAS CONCLUDED
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