Mann v O'Neill

[1995] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M95 of 1994

B e t w e e n -

ARNOLD MANN

Applicant

and

JAMES JOSEPH O’NEILL

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 SEPTEMBER 1995, AT 12.40 PM

Copyright in the High Court of Australia

DAWSON J:   Dr Mann, come down to the bar table.  I have been informed by Phillips Fox, solicitors for the respondent in this matter, that the respondent does not wish to make further submissions at the oral hearing of the application for special leave to appeal but will rely on the written submissions dated 13 March 1995 and filed pursuant to Order 69A rule 13(5).  In other words, the respondent is not appearing in response to your application but relies on its written submissions.

MR A. MANN:   (In person)   Yes, I am aware of that.

DAWSON J:   I might say that at the moment we do not appear to have those written submissions, Dr Mann, but we will make some inquiries.

TOOHEY J:   Do you have a copy of them yourself?

MR MANN:   Yes, indeed I have.  I did not realise that I would need to provide copies but I would certainly be able to let your Honours ‑ ‑ ‑

TOOHEY J:   It was not your obligation to provide them but if they are not available perhaps we could get copies made.

MR MANN:   There are three documents:  there is the applicant’s written case, the respondent’s written case and response and my reply to that.

TOOHEY J:   We certainly have the applicant’s written case.

DAWSON J:   Then we have a document which is headed “Citations”.

MR MANN:   Yes.

DAWSON J:   And there are various appendages to that, but that is all we have.

MR MANN:   I am sorry.  They were all forwarded, I assure you.

DAWSON J:   We can perhaps have that cured over lunch.  But you continue for the moment.  You have made your written submissions.  I take it essentially that is what you want to say, is it not?

MR MANN:   There are a few, perhaps, additional points that I thought about in the meantime but it is up to your Honour whether you wish me to proceed.

DAWSON J:   You have 20 minutes.

MR MANN:   Your Honour, analysis of precedent has been exhaustively dealt with by Justices Beaumont and Heerey.  If leave to appeal is granted I will be taking the path suggested by Mr Justice Carr in his minority judgment and by the unanimous verdicts of all the five or more judges who heard the case of Hercules v Lah in Victoria in multiple hearings and appeals as it wound its way up the judicial hierarchy, as well as the High Court judgment in Theophanous and Justice Deane’s judgment in particular.

In his inaugural Deakin Law School Oration on 26 July 1995 the Chief Justice of Australia said, at page 12:

A judge who is incompetent in finding his or her way through the areas of law touching the jurisdiction to be exercised is a bull in the judicial china shop.  Not all the broken pieces can be put together on appeal and, even if they be restored, the pecuniary and personal cost is unacceptable.

DAWSON J:   You raise this in your written submissions, do you not?

MR MANN:   I did not have the benefit of the Chief Justice’s oration at that time because my written application was before 26 July.

The principal matter which this Court may wish to consider, if leave to appeal is granted, is whether the complaints made by an individual to an appropriate person are sufficiently protected by qualified privilege to render absolute privilege unnecessary.  Put another way, if a citizen has voiced his concern about the possible disablement or misconduct of a magistrate to the appropriate person, is six or more years of litigation and the attending unrecoverable expense a reasonable thing for that person to bear for doing so.  Can the system of justice expect citizens to report their concerns when they are faced with the hazard which the respondent’s action has exposed.

The de facto immunity which existed has been put into question by Magistrate O’Neill’s actions.  I say my experience should lead the Court to consider whether qualified privilege has, in this circumstance, been proven to be a toy shield made of papier‑mache and whether it can lead, as in this case, to harassment by an action on the allegation.  Is there a danger that the complainant rather than the complaint will be investigated is what the Court may wish to consider.

By no means a subsidiary issue which I have not raised in my written statement, which the Court I think should consider, is whether respect for the judiciary will be increased or decreased by holders of judicial office pursuing complainants in the courts in libel actions when the complaints have been lodged with an appropriate person.

I hope you will forgive my impertinence when I suggest that the spectacle of two judges in the same court, one in the witness box, both condemning the trembling complainant, will not be perhaps the best way to enhance the prestige of judicial office.  It certainly runs counter to the views quoted recently by the Chief Justice of Sir Frank Kitto who wrote:

Every Judge worthy of the name recognises that he must take every man’s censure; he knows full well that as a Judge he is born to censure as the sparks fly upwards; but neither in preparing a judgment nor in retrospect may it weigh with him that the harvest he gleans is praise or blame, approval or scorn.  He will reply to neither;

His Honour Chief Justice Brennan alluded to this point at page 5 of the oration to which I have already alluded, where he stated:

The rule of law depends on and is perhaps synonymous with confidence in the courts.  If we regard the law as the expression of the values of our civilization, to govern the conduct and the relationships of powerful and weak, rich and poor, government and governed, the majority and a minority, there must be an arbiter whose authority will be accepted by all parties.  The law would not be effective if conformity to its precepts depended on force or the imminent threat of force.

DAWSON J:   Dr Mann, I am afraid I must say to you that this question of whether you are entitled to special leave to appeal or not is likely to be decided by reference to much more prosaic considerations than those which you are referring to at the moment.  In reality, the important question is whether the proceedings or any proceedings for which your letter may have been regarded as initiating process would be sufficiently analogous to judicial or quasi‑judicial proceedings so as to attract absolute privilege.  Now, the sentiments which you are expressing we can all agree with in theory, but perhaps could you divert your attention to the more ‑ ‑ ‑

MR MANN:   I am sorry your Honour does not have a copy of my written statement but I did go into this in ‑ ‑ ‑

DAWSON J:   We do have your written case.

GUMMOW J:   We have read that.

MR MANN:   I think in that I referred to the judgment particularly of the Court of Appeal in the Hercules’ Case.

DAWSON J:   Yes, you do.

MR MANN:   Where their Honours found that - their statement was, at page 7, paragraph 20 of my written statement.  It was held by Marks J with whom Fullagar J agreed:

Regardless of whether or not the defendant’s complaints were properly to be regarded as initiating process, the content of the complaints was protected by absolute privilege for reasons of public policy in the context of protection, in the public interest, of the judicial process not only of the [Solicitors’] Board but of the judicial system in its entirety.

Now, if this applies to solicitors, then it must apply a fortiori to holders of judicial office.  Either that, or this judgment is wrong.  My argument really follows the reasoning of Mr Justice Carr which is that this is a matter of public policy.  There is no precedent according to Mr Justice Carr that is directly in point and therefore my argument that I am advancing today is a matter of asking you to consider public policy.  Because it is for this Court’s determination.  No other court can make that determination, in a way. 

The question is:  should people who make complaints be subjected to what I have been subjected to?  Most of them would have crumpled up long since.  Another aspect your Honours are invited ‑ ‑ ‑

DAWSON J:   We must adjourn now.  We will resume at 2 pm.

AT 1.50 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.06 PM:

MR MANN:   Your Honours, I had quoted from Chief Justice Brennan’s speech and I mentioned that, quoting him:

The law would not be effective if conformity to its precepts depended on force or the imminent threat of force.

And I add, “or one might add the threat of interminable legal proceedings”.

DAWSON J:   Mr Mann, the Court has now had an opportunity to examine the materials and it is of the view that special leave should be granted in this case.  So we do not need to hear from you any further.  But we make the suggestion that on the hearing of the appeal the Court would be greatly assisted if you were to be represented by counsel.  That is casting no reflections on your forensic abilities but there are certain advantages which a litigant in person does not have which are possessed by counsel in the circumstances of an appeal in this Court.  We would urge you to give anxious consideration to whether you could be represented by counsel, by one means or another, upon the appeal being listed for hearing.

MR MANN:   Your Honour, I had in fact wished to raise this with you in this way, that ‑ ‑ ‑

DAWSON J:   If I may add, interrupting you, that we think your interests would be served better too, as well as ours.

MR MANN:   Yes.  I in fact approached the Australian Bar Association asking whether they would be prepared to be amicus curiae and they said “No”, but they offered me pro bono counsel and I was going to ask your Honours’ views on the matter and you have already given them to me.

DAWSON J:   It is not in the light of that, it is without the assistance of that last comment, but we do urge you to give serious consideration to obtaining counsel by whatever means possible.

TOOHEY J:   Also, Dr Mann, might I suggest that whether or not you are represented by counsel, consideration be given to the grounds of appeal.  You are not tied to the draft notice of appeal, but I think the Court would be also assisted by more specific grounds than presently appear.

MR MANN:   Thank you, your Honours.

DAWSON J:   The Court will adjourn to a date to be fixed.

AT 2.08 PM THE MATTER WAS ADJOURNED