Morgan v John Fairfax & Sons Limited

[1991] HCATrans 46

m	.,, AUSTRALIA '-
-->>-~~~~~<..'-"

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl07 of 1990

B e t w e e n -

KEVIN LEONARD MORGAN

Applicant

and

JOHN FAIRFAX & SONS LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 2.31 PM

Copyright in the High Court of Australia

Morgan 1 15/2/91

MR C.A. EVATT:  Your Honours, I appear with MR J. YOUNG and

MISS J.C. GIBSON for the applicant. (instructed by

Steve Masselos & Co)

MR T.K. TOBIN, QC: May it please the Court, I appear with my

learned friend, MS P.A. BERGIN, for the respondent.

(instructed by Mallesons Stephen Jaques)

MR EVATT:  Your Honours, it will be necessary to look at the

background of this matter but before doing, just

very briefly I wish to put our main submissions to

Your Honours as to why application for leave should

be given. This was a defamation action and the

jury returned a general verdict in favour of the

plaintiff - that is the applicant here - for

$150,000. After the verdict, Her Honour the trial

judge heard submissions as to the respondent's

defence of statutory qualified privilege, upheld

that defence and entered a verdict for the

defendant.

The applicant appealed to the Court of Appeal

to seek orders including that Her Honour's decision

to uphold their defence of statutory qualified

privilege be set aside and to seek an order

reinstating the jury's verdict. The Court of

Appeal by majority set aside Her Honour's decision

on statutory qualified privilege. They said that

Her Honour incorrectly decided for herself facts

which should have been decided only by the jury and

for that reason they set aside her judgment for the
respondent, but in addition, the Court of Appeal
sheeted home responsibility for Her Honour's

determination herself of matters of fact which were

disputed and should have been decided by the jury,

she sheeted home responsibility for that to the

respondent because the respondent had omitted to

put questions to the jury to deal with those

issues.

But the Court of Appeal did not restore the

jury's verdict for the applicant, did not restore

the award of damages for $150,000, but awarded a

new trial on all grounds on the basis that counsel

for the applicant - that is to say myself who was

appearing - failed in his duty to the court to

remind or assist counsel for the respondent to
ensure that proper questions were put to the jury,

those questions which could only have been to the

advantage of the respondent, if answered in the

right way would have resulted or could have

resulted in a verdict in favour of the respondent

and an order that the applicant pay the costs.

Morgan 2 15/2/91

So because, and only because, the applicant

failed in a duty to - because it participated in
the omission by the respondent to put these
questions or somehow did not remind them of its

failure to put these questions, we did not get the

verdict back but a new trial has been ordered on

all issues.

GAUDRON J: That is not the only reason, is it, Mr Evatt?

MR EVATT:  Oh no, there are other reasons. The next reason

is that the Court of Appeal in dealing with the

statutory qualified privilege defence gave a very

narrow interpretation of the ingredients - or

should I say in this case, ingredient - necessary

to establish that a publication was reasonable

within the meaning of section 22(l)(c) of the

Defamation Act. The Court of Appeal has found, in

effect, that if the publisher or the author, in

this case, could establish that he honestly

believed that what he wrote was true, then this

could be sufficient in itself to establish

reasonable publication within the meaning of
section 22. That decision having been given by the

Court of Appeal in September of last year has been

twice followed in the common law division of the

supreme court and we would submit that that goes

against the decision of the Privy Council in a

previous case, Austin v Mirror Newspapers, and

indeed the Court of Appeal's own previous decision

in that case wherein it was established that honest

belief would be a factor but that there would be

other elements necessary, apart from honest belief,

to establish reasonableness in publication. After

all, one may honestly believe some scandalous

matter, you might have an honest belief, but it may not, of course, be reasonable to publish that, say, in a national newspaper as was the case here. That

is a further ground of appeal. Other grounds - -

GAUDRON J:  I must say I find it very difficult to follow

that that is another ground of appeal.

MR EVATT: Sorry, not a ground of appeal; it is a basis on

which we seek leave to appeal.

GAUDRON J:  I still find that hard to follow. You could not

have this verdict, could you, this general verdict

so long as the defence was still there?

MR EVATT:  We are not entitled to a verdict while a defence

is there, but Her Honour ruled, or purported to

rule, on that defence.	She ruled on that defence
and found a verdict for the defendant.	She
sustained the defence.	The Court of Appeal set

that aside on the grounds that she had no

jurisdiction to find the facts as she did.

Morgan 3 15/2/91

GAUDRON J:  And do you assert that she did have the

jurisdiction to find the facts as she did?

MR EVATT:  She did not. Therefore as there was no evidence,

can we say, or facts upon which Her Honour could

have based her decision, the defence had to fail.

So there is, in fact, no defence of statutory

qualified privilege. It failed. The respondent

has the onus - there is a defence on the file, but

the respondent has the onus. If the applicant had

the onus it would be a different matter, but once

the jury has returned a verdict for the plaintiff
for, in this case, $150,000, it is up to the

defendant, or the respondent here, to establish its

last defence, statutory qualified privilege. It

failed to so do and therefore there is no defence

on the record.

GAUDRON J:  It has only failed to so do in the sense that it

has not been determined. You have to go further to

the point and say there is no evidence on which the

defence could be made good.

MR EVATT:  There was no evidence - the respondent failed to

adduce evidence upon which Her Honour could have
determined that issue in her favour and because the respondent failed to do that, there was no evidence

available for Her Honour to make a finding on

statutory qualified privilege and therefore the

defendant failed to establish the defence. It is

no longer applicable.	The verdict for the
plaintiff should stand.

There are two other matters to be considered

in the application for leave. Firstly, the
ramifications of a general verdict for the
plaintiff, because if a general verdict for the

plaintiff means that all issues before the jury

were found in the applicant's favour, that would

have the effect of defeating any statutory

qualified privilege defence. The Court of Appeal

and Her Honour found that a verdict for the

plaintiff really had little meaning, apart from an

indication as to the successful party, or the Court

of Appeal found that a verdict for the plaintiff,
the applicant in this case, meant only that at

least one of the imputations was found to be conveyed and the defendant had failed in its

defences of truth and comment.

The final matter to be raised in this

application is that in any event the Court of

Appeal erred in ordering a new trial as to every

issue. If a new trial was to be ordered, it should

have been ordered only as to this issue of

qualified privilege, that being originally

envisaged by Her Honour at first instance.

Morgan 15/2/91

Then, very briefly, if I could just as quickly

as I could go over the background of the matter.

DEANE J:  Mr Evatt, do the judgments in the Court of Appeal

deal with the question of a new trial generally, as

distinct from a new trial on the issues raised by

the plea and - - -

MR EVATT:	No, not really.
DEANE J:	They say nothing about it?

MR EVATT:  They just order a new trial on all issues. There

is no detailed consideration as to the reasons for

that.

DEANE J:  Was it discussed in argument?

MR EVATT:  My recollection is that it was not. If it was,

it must have been very brief, but there are no

reasons given by the Court of Appeal as to why a new trial should have been ordered on that issue

and Her Honour -

DEANE J:  One can envisage circumstances in which the

plaintiff, for tactical reasons, would prefer to

have a general new trial. There was no suggestion

of that in this case?

MR EVATT:  No, because the issues here were, first of all,

identification.

DEANE J:  I was not saying it was so in this case. There

was no suggestion that this was a case where the

plaintiff would prefer that?

MR EVATT:  No, there would be no advantage for the

plaintiff, the applicant here, to have a new trial

because he would have to run the gauntlet of all

those questions again, including the defence of

truth, contextual truth and, more importantly,

comment. He survived all those and they are really

peripheral to the issue of qualified privilege, and

indeed, Her Honour said at page 34 of the

application book, and I am looking at line 11:

In the unusual circumstances of this case, I think there is ample justification for my

adopting a similar approach.

That is to decide issues of fact herself.

The alternative would have been unthinkable,

namely the conducting of yet a third jury
hearing for the purpose of obtaining a jury's
answer to the question as to whether there was

material in the plaintiff's study from which

Morgan	15/2/91 Mr McGuinness could have rationally concluded
that it was a dishonest and biased document.

In other words, she herself, although she did not obviously want to take that drastic step, envisaged

a new trial only as to that issue, but instead a

new trial has been ordered to all issues. It was a

14-day trial that we are talking about, that being

the second trial.	The first trial went 16 days.
So there has been 30 days of trial.	The applicant

here complains that if all other arguments fail

then we complain about the order that it must go

back on all issues.	The court gives no explanation
for that.

Now, I will concede that in a number of

defamation cases new trials have to go back on to

all issues, for example, sometimes with malice,

sometimes with truth, but here all that is needed

is the jury's answers to certain questions to

enable the court itself to come to a determination.

GAUDRON J: May there not be this consideration: if you

have a trial limited to that issue the evidence may

not be the same as the evidence was at the first trial. The evidence which results in answers to

the qualified privilege defence may therefore be

evidence, or might be evidence upon which the

original jury would not have found in this way.

MR EVATT: Except this that, Your Honour, with respect, the

defence of comment, that is where the jury has to
determine whether the material complained of was

comment, and if so, whether the plaintiff had

established the author genuinely, honestly believed

in the material, that could not be relevant to a

defence of qualified privilege. It just would not

touch - we submit it would be unfair to the

applicant to face a - - -

GAUDRON J:  The contextual truth might be.

MR EVATT: With respect, Your Honour, both Her Honour and

the Court of Appeal have held that truth, or

contextual truth, is irrelevant to these matters

of - - -

GAUDRON J: Yes, I accept that. I understand that. It is a

question of the evidence may be different. It is

only a question whether there is not something

strange about allowing a general verdict to stand

which, ex hypothesi, on your argument should not

have been entered, or cannot be entered, and with

another jury determining other questions on a

different body of evidence.

Morgan 6 15/2/91

MR EVATT:  But, Your Honour, there is nothing unusual about

that. Might I say this, that first of all, a new

trial would be considerably shorter as the issues

would be narrower. The juries are entitled, at the

one sitting, to be asked numerous sets of questions

on different occasions. So it could be said that

having considered the first set of questions, they
have returned a verdict for the plaintiff. They

are now out again with a second set of questions,

determining issues for the guidance of the court to

assist the defendant in establishing its defence.

DEANE J: There would be no issue of damages, for example.

MR EVATT:  There would be no issue of damages. We would not

have to call the reputation witnesses; there would

be no issue as to identification; there would be no

issue that the material complained of conveyed the
imputations; there would be no issue that the

imputations were defamatory; there would be no issue as to whether the imputations were true,

which took days; there would be no issue as to

whether the material was comment. The only issues

for the jury, I would submit with respect, would

be, (a), did Mr McGuinness have an honest belief;

(b) did he make proper inquiries; (c) did he give

the plaintiff an opportunity to rebut or explain

the matter.	They are, I think, the only questions
that would be asked.	On the answers to those

questions the court would be able to determine

statutory qualified privilege. You would be

looking at a trial going for, by comparison, a much

shorter time and it seems it would be fairer to the

applicant, having weathered or run the gauntlet on
the other questions that are set out in the
application book - they are set out actually,

Your Honours, I think at page 71. If Your Honours would look at page 71, Your Honours will see that

the plaintiff successfully survived all those

questions: 1 and 2 on page 71; 3, 4 and 5 on

page 72; 6, 7, 8 and 9 on page 73. All those

issues have been debated, we have succeeded on

them, and without any explanation, we have lost

Court of Appeal. them - sorry, without any reasons given by the

MASON CJ:	Mr Evatt, I find it hard to understand how you would be able to have a trial on this limited issue
when you have regard to the alternative imputations which were put to the jury in the preceding trial,
in a situation in which one does not know what that
jury thought of the various imputations.
MR EVATT:	Yes; but here the jury would be told that if it

was relevant - and it may not be relevant - that

the imputations were found established and

defamatory, but the whole defence -

Morgan 15/2/91

MASON CJ: But you do not know that all of them were found

to be defamatory.

MR EVATT:  But let us take one, let us take any combination

up to all, the defence of statutory qualified

privilege, as His Honour Mr Justice Hunt says in

his judgment, is based on the premise that the

defendant mistakenly published matter, so whether

the imputations were conveyed, whether the

imputations were true, whether the imputations were

false, would be irrelevant for statutory qualified

privilege. The only issues or matters of fact to

be determined in statutory qualified privilege are, irrespective of whether the imputations are true or not, did Mr McGuinness honestly believe in their

truth? It would not matter if they were false.

GAUDRON J: Except that if you did not find all of them, a

false issue would be going to the second jury.

MR EVATT:  No, because you see whether or not the

imputations are false would be irrelevant to

statutory qualified privilege because that defence

does not go to the imputations, it goes to the

article. You see, the jury has ruled that one or

more of the imputations are false - or the

defendant has failed to prove them true, which is

more correct. But that defence of truth and the

defence of contextual truth under section 16 go to

the imputations. But the defence of statutory

qualified privilege does not go to the imputations,

it goes to the article itself. So the jury would

be asked this question: not "When Mr McGuinness

wrote the article, did he mean to convey those
imputations and, if so, did he believe in the truth
of the imputations?", they are only asked this
question: "When Mr McGuinness wrote that article,

did he believe, honestly believe, that the matters

set out in that article were true?", which is a far

cry from the imputations. And if he believed the

article was true, then did he make proper

inquiries, did he give the applicant a chance to

explain?

GAUDRON J: First of all, I remain to be convinced, I must

say, that the writer's belief goes to the article and not to the imputations, but the second aspect

is, is it not, that what is reasonable inquiry in

the circumstances may very well depend on the

imputations that the article bears.

MR EVATT:  Yes, but always - Your Honour says Your Honour

remains to be convinced, but if Your Honour looks

at the terms of the statute, it is quite clear that

it is addressed to the material complained of.	If
I could take Your Honours - - -

Morgan 15/2/91

GAUDRON J: But what you complain of in a defamation is an

imputation, the i~putation which the article

conveys.

MR EVATT: That is the cause of action, the imputation, but

if we look at the defence, that is section 22 - I

do not know whether Your Honours have the Act,

otherwise it is set out in the judgment - - -

MASON CJ: Yes, we have it.

MR EVATT: Section 22:

Where, in respect of matter published to any

person: -

MASON CJ:	And then you come back to section 9.
MR EVATT:	Yes, but section 9 refers, in (a) to "matter" and

in (b) to an "imputation". In other words - - -

MASON CJ:  ! ..... suggesting it does support you, to

some

MR EVATT:  Oh yes, for example, Mr Justice Hunt in a number

of cases, Barbaro and a cricketer, Chappell,

expressed the opinion that section 22 went to the

imputations, but I notice that he has now gone

against that and he agrees with Mr Justice Samuels

in this case that the section 22 defence goes to

the matter complained of and not the imputations,

which is the preferable view. I think it may have

been influenced by a comment by Mr Justice McHugh

when Barbaro came to this Court on an application

for leave where he expressed the opinion, off the

cuff, as it were, that section 22 did go to the

material complained of and not the imputations.

Mind you, that was on the spur of the moment, but I

notice since that that, for example in this case,

both Mr Justice Samuels and Mr Justice Hunt express

the firm opinion that section 22 goes to the

material complained of, in this case the editorial

and not the imputations, which we would submit is

the correct view.

That being so, the findings of the jury as to

the imputations as to comment, as to the truth of

the imputations, would be irrelevant.

Unlike Mr Milne, I do not have the courage to

sit down now; I will have to go through some of

these points, but as quickly as I can, to make

these submissions, some of which I apprehend the

Court may be -

MASON CJ: Sitting down is often a matter of judgment,

rather than of courage, Mr Evatt.

Morgan 9 15/2/91

MR EVATT:  I lack the judgment; with respect, I will be as

brief as I can, but I feel there are further points

I just wish to make.

We would submit that the principles of law set

out by His Honour Mr Justice Samuels on page 87 of

the application book and by His Honour

Mr Justice Hunt on page 140 are just incorrect. If

I could take you to page 87, page 87 of the

application book, you will notice, is page 19 of

the judgment of Mr Justice Samuels. Right up to
this page, he has given detailed reasons for every

statement made and then, at line 8, he says:

For the reasons I have given the appeal, in my opinion, must succeed, since the

plaintiff has made good the fourth ground of

his notice of appeal.

Which was that Her Honour determined for herself

disputed issues of fact.	He then goes on, at
line 12:

What order should be made? There is a

good deal to be said for the view that the

onus being on the defendant to establish the

defence of qualified privilege it bore the

responsibility of ensuring that all materials

for that judgment were correctly available.

It was, however, the defendant at the trial

which had encouraged her Honour to make the

findings herself. Accordingly, it cannot now complain if the decision of the learned judge

is set aside and judgment entered for the

plaintiff pursuant to the jury's general

verdict.

So we are literally smiling, as it were, but then

at line 22:

However, I think that that would be too harsh

a sanction to impose upon the defendant. The

plaintiff under our system bears an equal

responsibility for seeing that the correct

legal rules are adopted and obeyed. Both
sides should have asked the learned judge, no

later than the close of evidence, to consider the formulation of questions for the jury for the purpose of laying the factual foundation

necessary for the determination of this
defence. In the result, there was a
miscarriage of justice because the tribunal
assigned to the purpose was deprived of the
opportunity of fulfilling it.

So what His Honour is saying is that because

the applicant was involved in this omi.ssion by the

Morgan 10 15/2/91

respondent to have questions asked to assist in its

defence, questions I might add which would never

have been answered because the jury were unable to

agree on the questions, then because of that, our

failure, the court went on to order a new trial.

At line 5 on page 88 His Honour Mr Justice Samuels

says:

Though, in my view, both sides bear some

responsibility for what occurred, I can see no

sufficient ground for doing other than making

the order for costs -

So that is costs. Line 9:

The result is the one which her Honour

regarded as "unthinkable" and that is a third

trial.

But at line 20 he orders a general new trial whereas Her Honour, what she thought was

unthinkable was only a trial as to the qualified

privilege issue.

Now, at page 140, Mr Justice Hunt says very

much the same thing. At the top of the page:

Such a consequence -

that is to allow the plaintiff to have his

verdict -

would in my view produce a substantial wrong

or miscarriage of justice for the defendant:

cf SCR Pt 51 r 16.

He then says at line 3 on page 140, Your Honours:

Both the defendant and the plaintiff have a

responsibility to see that the proper

procedures are followed, wherever the onus of
proof lies. If the plaintiff has assisted in

the error being made (by failing to raise the

resolution of the disputed facts for debate at

the end of the evidence when it should have

been debated and by failing to submit that the

judge had no power to decide those facts for

herself), it would be most unjust that he

should deny to the defendant the chance of

obtaining from a jury the same decision as

that which the judge gave as to the honest

belief of Mr McGuinness in the truth of what

he wrote.

Mr Justice Hunt repeated that at page 144 at line 20. His Honour, at page 144, line 20, actually says:

Morgan 11 15/2/91

The part played by the plaintiff in the

error made at the trial which has led to a new

trial being ordered would normally have led me

to consider whether he should be denied an

order for part or all of the costs -

so, Mr Justice Hunt not only agrees with Mr Justice

Samuels and orders a new trial on all issues on the

sole grounds that we failed to remind the

respondent to ask some questions to help it with
its defence but he was even considering giving an

adverse order for costs against us.

MASON CJ:	Mr Evatt, is it too late for you to go back to the Court of Appeal to agitate this point, a point
that was never argued there?
MR EVATT:	Never argued.
MASON CJ:	I agree with that, but is it too late for you to

go back there, to take out a motion and say, "Well,

the court has come out with this judgment. It has

made this order, but that order has not been the

subject of debate between the parties." and ask the

court to reconsider the order that it has made in

the light of the conclusions that it has reached

with respect to the matters that were debated by

the parties?

MR EVATT:  With respect, Your Honour, I would appreciate

that such a procedure is always open but the - - -

MASON CJ: If it is open, one option for this Court is to

stand this application over until such an

application is made and dealt with by the Court of

Appeal.

MR EVATT:  Yes, Your Honour. We would say that the moving

hand, having written, moves on. There would be

problems in constituting the bench. One of the

judges is an acting judge. There would be

difficulties. There could be delay. The judgment

stands. The easiest and perhaps fairest way of

having the matter determined is to have this issue

and the other issues determined by this Court

because although the Court of Appeal did not go

into detail in some of the issues raised, on the

other issues raised there was considerable debate.

The publication here was in 1983 and it has been

going on for some time. But just getting back to

that point, Your Honour, about the failure - you

see, the sole reason the Court of Appeal did not

restore the jury's verdict was our participation in

their failure to ask the questions to assist their

defence. Now, that principle, not debated in the

Court of Appeal, is unknown.

Morgan 12 15/2/91

GAUDRON J: But they could only have restored the verdict if

the defence had, for one reason or another,

disappeared.

MR EVATT:	No, but they did not put it on that ground.
GAUDRON J:	I know they did not but, in fact, they could not

have restored it unless it could be said that the

defence had disappeared.

MR EVATT:  Yes, but they do say the defence has disappeared

by implication, Your Honour, because the onus is on

the respondent to discharge that defence. The

respondent, having failed to discharge the onus for
establishing the defence because it did not have

the material for the judge - the defence fails.

The reason that was not done, according to the

Court of Appeal, was because the defendant failed

to have questions asked. If it had just been that,

we would have got our verdict back, but they go one

step further and say, "Yes, but you too, you

remained mute when - - -"

GAUDRON J: Well, if they had said you had got your verdict

back at that point, I dare say Mr Tobin would have

been up here asking for a different order.

MR EVATT:  With the greatest respect, Your Honour, I cannot

accept that. There would be no order that they

could ask for.	They were in a no-lose situation.
The jury announced it could not agree.	They

consented, as we did, to take a majority general

verdict. They could have won the case. If they had won the case that would have been the end of

us. They accepted that. They lost it. Now, they

say, "Well, that may be so.	We took the risk and
we lost.	We want a new trial because we forgot,
prior to addresses, to ask the jury questions."	So
it is, as it were, they have got something in
reserve to mean they could never lose.

If they got the jury's verdict, they would

win. Having lost, they have got this point, "Look,

we're terribly sorry, it's true the plaintiff won
but we forgot to ask these questions.	We are

entitled to a new trial, and we are entitled to a

new trial not because of our omission - that

wouldn't give us a new trial according to the Court

of Appeal - but because you didn't remind us of our

obligation to ask those questions."

Now, Your Honours, with the greatest respect, that has set the bar in a state of confusion.

Something like 300 years or more of tradition as to the conduct of civil cases has been upset by that ruling of the Court of Appeal. Could I draw

Your Honours' attention to what the late

Morgan 13 15/2/91

Clive Teece, QC, who was the President of the Bar

Council for many years, said in his book - that is the Law and Conduct of the Legal Profession in New

South Wales by Teece and Harrison, Your Honours.

We sent up a copy of the relevant pages.

MASON CJ: Yes, we have them.

MR EVATT:  Could I take Your Honours to page 31, the last

paragraph:

Nevertheless, the principal function of a

barrister or a solicitor is to aid his client

and present his client's case in the most

favourable light to the Court. This limits

his duty to the Court. His main function is

to do the best he can to help his client, not
the best he can to help the Court. He may in
a particular case be of the opinion that the

adversary has a just cause, but he is under no

general duty to admit allegations or disclose

information in order that justice may be done.

Now, here is the critical passage, at the top of

page 32:

If a party cannot prove his case no doubt that

is unfortunate for him, and justice may fail;

but the law does not strain human nature to

the extent of making it the other party's duty

to help his adversary out of difficulties.

And then a few lines down:

It is his duty to help his client, and indeed

it would be contrary to his duty to help the

opponent (even though the Court were thereby

helped) by making admissions or giving

information where there was no duty laid on

his client to do so.

And then down the very bottom of the page about a

dozen lines from the bottom: In this case the other party is under a duty	to give the required information honestly, and
a correlative duty, mentioned above, is
imposed on his legal adviser.

That is a duty to the court to be truthful, honest

and disclose documents and so and so.

But the judgment of experience is that to go

further than this is imposing on a litigant or

on his legal advisers a positive duty to help

the Court would not on the whole materially

assist the administration of justice. Thus

Morgan 14 15/2/91

with certain exceptions, particularly those

just mentioned, there is no positive duty to

assist the Court adversely to the interests of

the client.

Now, there is no duty on a barrister appearing

for a party to remind the other side of its right

to have questions asked to help that adverse party,

which could only assist the opposite party in establishing one of its defences. There was no debate on this issue in the Court of Appeal and the	in this case, asking questions, the answers to for this duty of a counsel for one party to assist the other party in reminding it of an omission to
ask questions. Now, that is the sole reason given
by the court why the verdict was not restored.

Now, it may be that I am really wrong about

this, that the law may have changed since Teece and

Harrison in 1949; I may have misunderstood the

obligations of a member of the bar, but in a civil
action it seems strange that one counsel or one

party should come to the assistance of an adversary

in seeing that that adversary was enabled to

succeed in its defence. It would certainly be

against the interests of the client.

DEANE J: But if the question needed to be asked to enable a

live issue in the case to be disposed of, was it

not Her Honour's duty to ask it regardless of what

counsel said?

MR EVATT:	Her Honour asks the parties to prepare the questions. For example - - -
DEANE J:	I appreciate that but they are Her Honour's

questions, are they not?

MR EVATT:  Her Honour asked the questions but, for example,

I notice in Austin v Mirror Newspapers in the Court of Appeal that the plaintiff - I do not know

whether it is deliberate or not - forgot to ask

what is question 7 in this case, in other words, in
Austin this question was asked:	"Has the defendant

established that the material complained of was
comment?" But the second question, as in this

case, was not asked: "If so, has the plaintiff

established that that comment was not the honest

opinion of the author?" So, that is a case where,

perhaps, a question should have been asked - - -

DEANE J: Well, take the extreme case: say, in this case

Her Honour had asked all the questions and

qualified privilege was not involved but had

forgotten to ask about damages and in came the jury

and everybody was asleep and the jury. were

Morgan 15 15/2/91

discharged. It surely could not be then said,

"Mr Evatt, your client isn't entitled to anything

because you didn't ask me to ask the jury how

much"?

MR EVATT:  Your Honour, I have got no answer to that

question because it is an extreme case.	It would
be better to get back to this case.	We would

submit that the respondent, in the conduct of the

case, put all its eggs in the comment and truth

basket. They may not have wanted questions as to

honest belief. It is their defence, it is up to

them to see that the questions are asked. They

certainly fought the case vigorously on truth and

comment.

DEANE J: Except the Court of Appeal has dealt with it on

the basis that everyone was under a wrong or

mistaken apprehension and that Her Honour made a

mistake.

MR EVATT:  I do not mean to submit otherwise.

DEANE J: So, do we not really have to look at it on what

was the correct course for Her Honour. Then if she

had not been mistaken about her ability to answer

the questions of fact herself - - -?

MR EVATT: Well then, Your Honour, could I put this, that

the Court of Appeal did not order a new trial on to

all issues on that basis but ordered the new trial

only on the basis of the applicant's failure to

assist in the answering of the questions. So, my

answer to that is that is not the way the Court of

Appeal found.

Now, I do not wish to say anything further

about this point except this, that had applicant

put a dozen questions to the jury on qualified

privilege, they still would not have been answered.

The jury were unable to agree. It really is

hypothetical and unreal for the Court of Appeal to

say, "Well, look, the defendant was deprived of the

chance of getting the jury's answers on three or

four questions it could have asked when the jury

gave answers to none of the, say, 30 permutations

and combinations of questions already asked." They

could not agree. They gave a general verdict.

Now, that was the time, perhaps, for the

respondent to speak up. They should have said,

"Well, we won't agree to this, we want a new

trial", but they took the risk. They took the risk

as we took the risk, a verdict for the plaintiff,

and then they come along and get a new trial only

because in some way we were to blame for not

helping them frame the questions. In other words,

Morgan 16 15/2/91

if the onus is on them, they should have to accept

the finding.

I do not wish to say anything more about that.

I wish to very briefly look at this question of

honest belief. Her Honour found that Mr McGuinness
honestly believed in the truth of his editorial,

what he wrote. The Court of Appeal seems to have

said in its judgment that the establishing of

honest belief would, on its own, be sufficient to

establish a defence under section 22(1)(c). If we

could look at 131 of the appeal book at line 18 -

this is Mr Justice Hunt:

The defendant had to establish that

Mr McGuinness honestly believed in the truth

of what he had written.	The plaintiff clearly
disputed that fact.

Then at page 141, line 21, His Honour speaks:

by denying to him the chance of obtaining from

a jury a decision different from that which

the judge gave as to the honest belief of no matter how eminently sensible her decision

upon that issue may have been.

The point is that Her Honour, at the trial,

found that because Mr McGuinness was so adamant in

his honest belief, she ruled that it would not be

necessary for him to make inquiries or to seek an

explanation from the plaintiff. In other words,

Her Honour said, "So positive was Mr McGuinness's

honest belief in the truth of what he wrote that

inquiries seeking an explanation would not be

necessary". We would submit that, with respect,

that finding is incorrect because honest belief,

although relevant to common law qualified privilege

and always relevant to statutory qualified
privilege, none the less that does not answer the

words of the statute which call for reasonableness

of publication and just because you honestly	believe something does not mean to say it is	reasonable to publish it.
Now, the decision in Morgan has been twice followed by His Honour Mr Justice Hunt in other
cases.

DEANE J:  Where is it said, most unambiguously, that honest

belief is enough, as a matter of principle?

MR EVATT:  Not in terms in this judgment under review. No

where does it say straight, "All a defendant need

do is to prove honest belief and that will be

enough to establish honest belief." It gets close

Morgan 17 15/2/91

to it in what I have read out from Mr Justice Hunt

and also a passage from Mr Justice Samuels at

page 76, line 6:

there was underlying the question reposed in

the judge a vital and disputed question of

primary fact. That was whether

Mr Padraic McGuinness, then editor in chief of the Australian Financial Review in which, as I

have said, the editorial appeared, and who had

written it, genuinely believed it to be true -

but I cannot go further and tell this Court that

the judges of the Court of Appeal have clearly and

unequivocally stated that honest belief in itself

is all that is necessary to establish this defence

but it is so close to it. Then if we take later

judgments by His Honour, there are two cases:

McKenzie v Mergen Holdings, in November of this

year, page 2.	The relevant pages have been sent to
Your Honours.

MASON CJ: Yes, we have them.

MR EVATT:	I have sent them to the other side, Your Honours, and I think that is all. If Your Honours would
look at page 2, about a third of the way down:

the defendant must show that his conduct in
publishing the matter complained of was

reasonable in the circumstances. That

requirement has been interpreted as usually

obliging the defendant to establish that he believed in the truth of what he published.

And then two-thirds of the way down:

That issue almost inevitably is disputed, and

accordingly it requires a finding from the

jury in favour of the defendant before

statutory qualified privilege can be upheld by

the trial judge -

citing this case as an authority for that

proposition. In other words, it is true that the

Appeal Court did not quite say it but

Mr Justice Hunt is interpreting we say, with

respect, in that way. And there is one other

judgment that I have also sent to Your Honours.

That is Robert Jones Investments re Australian

Stock Exchange, again unreported, page 17 of that judgment, in the middle of the page, about five

lines down from the last paragraph:

The plaintiffs, of course, also face the very real prospect that, if the jury find that the defendant's servant or agent honestly believed

Morgan 18 15/2/91

in the truth of what he wrote, a defence of

statutory qualified privilege will be

established.

Now, often in these applications for leave to

appeal to this Court, one hears counsel say, "Well,

look, the Court of Appeal has made this decision

and that may be followed." It is rare, I would

submit, that we get to an application for leave to

appeal to this Court where, in fact, it has been

followed twice within weeks. It seems, with

respect, that the judgment of the court in this

case, plus the two later judgments from

Mr Justice Hunt who was a member of that court is establishing the principle that honest belief, in

itself, is sufficient for a defence under

section 22. Now, that is contrary, with the

greatest respect, to the Court's own finding in

Austin v Mirror Newspapers, (1984) 2 NSWLR 383, the

relevant passage being at page 390E-F. There

Mr Justice Glass, I think it was, said this, just

below E:

I note that the relevant matters for

consideration include the manner and extent of

publication, the extent of inquiry made, the

degree of care exercised and any knowledge

that a misleading impression was likely to be

conveyed.

I note also that these decisions authorize the

following propositions.

1. The reasonableness of the publisher's

conduct is to be judged in relation to his

publication of "that matter" which means the

defamatory matter.

And so on. So, Mr Justice Glass is giving a number

of ingredients including "the extent of inquiry

made, the degree of care exercised" which Her

Honour, in her original judgment, has just ruled
out here.	She said, "So strong was Mr McGuinness's

honest belief that why should he - he believed so

strongly, why should he make inquiries, why should

he seek an explanation of the plaintiff?", and that
has been upheld by the Court of Appeal. That is at

page 55 of the appeal book, incidentally,

Your Honours, what Her Honour said at first

instance.

At page 55 of the application book, at the

top, she says:

There is no doubt that Mr McGuinness held

very strong views about the plaintiff's
study ..... These were formed on the basis of

Morgan 19 15/2/91

the study alone. On that basis he concluded

that the study could not possibly have been an honest, independent appraisal of the satellite

issues, and that there was no point in making

any further inquiry about the matter before

launching into the criticisms ..... Or, to use

his own words, it would have been a waste of

his time to have done so.

And then she goes on, at line P:

In other words, does the requirement of

reasonableness under section 22(l)(c) impose

upon a publisher an obligation to seek out and

obtain explanations from a person in the

position of the plaintiff in all cases -

and she says, "No, not if he so honestly believed

it It.

GAUDRON J: Her Honour is not there stating a general rule.

She is saying there will be some cases where it

will not be necessary to inquire, and that may be

so. It will depend very much on the nature of the

imputation.

MR EVATT:  I am not going to argue with Your Honour about

that interpretation but the Court of Appeal seems
to have gone further, particularly in the more

recent decisions of Mr Justice Hunt, by

establishing a precedent that honest belief, on its

own, could give effect to the section.

GAUDRON J: In some cases.

MR EVATT:  Yes, but we would say that it should be in no

cases. In a newspaper case, that honest belief, no

matter how sincere, how strong, the section (c),

there is nothing about "honest belief", it is

"reasonableness of publication". If we could just
lastly look at what the Privy Council said about

it. That is also in Austin's case, (1986) l AC 299

and at 313C there is a paragraph there commencing: It now remains to be considered whether

the Court of Appeal were right to conclude
that the conduct of the newspaper in

publishing the article was reasonable in the
circumstances within the meaning of
section 22(l)(c). In considering whether the
conduct of the publisher is reasonable the
court must consider all the circumstances

leading up to and surrounding the publication.

These circumstances will vary infinitely from

case to case -

Morgan 20 15/2/91

and so on. And then at page 315, over the page, at

line D, the paragraph under that:

The fact that Mr Casey had an honest

belief in the substantial truth of the

allegations of fact in the article and the

comment he made is of course a relevant matter

in considering the question of

reasonableness -

and so on. Now, we say that that is correct, it is

a relevant matter but it cannot -

MASON CJ: But quite obviously the judges are not ignoring

what was said in Austin v Mirror Newspapers in the
Privy Council and what Mr Justice Glass said in the

Court of Appeal in the earlier case.

MR EVATT: 

They are not ignoring it, Your Honour, but they

are laying down a field where honest belief - they
are laying the ground work for submissions by a

defendant that honest belief, in itself, if

strongly held, could be argued to be reasonable

conduct in respect of the section under review.

Now, finally, if we look at the questions here

at page 71 of the application book, Your Honours

will note that there are many questions, each of

those questions, for example - question 4, on

page 72, goes to section 15; question 5,

section 16 of the Act; question 6, section 33(1)

of the Act; question 7, 33(2) of the Act. And if

Your Honours will note question 7 is this:

Has the plaintiff established that at the time

when the comment was made the comment did not

represent the opinion of ..... Mr

McGuinness ..... ?

Now, had the jury answered that question "Yes", the

defence of qualified privilege could not have

succeeded. But had they not answered the question,

then it would be irrelevant because the defendant

has to prove that Mr McGuinness had the honest

belief. So if the plaintiff was able to prove that

he did not have an honest belief, that would be the

same thing. But, of course, question 7, I must
point out, is only an alternative question to

question 6. In other words, question 7 is answered

by the jury only if question 6 is answered "Yes".

If the jury answered question 6 "No", they would
find for the plaintiff. Only if the jury answered
question 6 "Yes", would they then consider

question 7, but they must have answered one or the

other, mentally speaking anyhow, in their general

verdict.

Morgan 21 15/2/91

Now, it is our submission that a general

verdict for the plaintiff has the effect that every

issue before the jury, even the alternative issues
of 6 and 7, are found in favour of the plaintiff if
there is a verdict for the plaintiff. These were

arguments put before the Court of Appeal and before

Her Honour and were rejected, flatly. But we say

that they were incorrect and that matter can be

looked into, and we further say that a general

verdict in favour of the plaintiff has the effect
of showing or demonstrating that the jury accepted
the plaintiff's account and evidence on issues in

dispute and rejected the defendant's account and

evidence.

We rely on the High Court case for that, the

words of Mr Justice Dixon in Guise v Kouvelis,

74 CLR 102. At page 116 there is a paragraph there

at the top starting, "The defendant set up a

defence", then about seven lines down:

As the jury found for the plaintiff, they must

be taken to have accepted his account of the

occurrence, and, in considering whether the
occasion was privileged, we should take our

facts from that source.

So we submit that that is a matter that would be

sufficient for giving leave to appeal. Our last

submission I have already dealt with, is that in

any event the Court of Appeal should not have

ordered a new trial on all grounds but they should

have limited any new trial to the issue of

qualified privilege.

MASON CJ: Mr Tobin, we need to trouble you on one point

only, and that question is whether	or not the trial
should have been unlimited, rather	than confined to
the issue of qualified privilege.	May it please
the Court.

MR TOBIN:  Your Honour the Chief Justice put what we would

qualified privilege one way or the other deal with	say is the crucial question to Mr Evatt: a judge charged with making the finding of how does	the facts as found by the jury in the absence of
knowing precisely what imputations arise from the
article. May I illustrate it this way: were the
pleader, with a rush of blood to the head, to have included in that set of imputations that
Your Honours see in the application book an
imputation that the plaintiff was a murderer, and
one could well imagine that the jury would reject
such an imputation as nonsense, what Mr Evatt says
is, that is a piece of jury arcana to be kept from
the judge in deciding the issue. We want a new
trial limited to qualified privilege, but we do not

Morgan 22 15/2/91

want to let the judge into the secret as to what

the imputations are actually found by the jury to

arise, that is of course a crucial question of

fact.

Now, without that information, without that

knowledge, the trial judge could not, in fact,

reach a conclusion as to whether the conduct of the

defendant, in all the circumstances, was reasonable

or not. Even in the list of imputations that we

had, I note there is one:

(f) that he does not carry out his economic
researches properly -

one might think a rather slight imputation. Were that to be the only imputation found by the jury,

then the judge in deciding whether it was

reasonable to publish matter containing that

imputation would, of course, be greatly assisted by

that knowledge.

GAUDRON J: But would the judge know that in any event?

MR TOBIN:  He would only know it - he does know it in any

event, Your Honour, because the jury answers - - -

GAUDRON J: If the questions are answered, but not if you

have a general verdict.

MR TOBIN: Yes, that is right. So if you have a general

verdict, it is going to be very difficult - - -

GAUDRON J: Which at least it is clear you agreed to a

general verdict being taken at that stage.

MR TOBIN: Your Honour, I must say this: the parties, as

the Court of Appeal found, were rather sleepwalkers than heros that Mr Evatt suggests, that is Mr Evatt put the case that the Court of Appeal found that he should have reminded the court or the other side of a procedural step that ought to have been taken.

But I think the Court of Appeal conducted a mini

commission of inquiry into how this trial was

conducted and came to the conclusion that neither

side adverted to the difficulty, procedurally, of
taking the jury answers to questions before the

jury had put before it any outstanding questions

that might assist with qualified privilege.

So to answer the question that Your Honour the

Chief Justice put to me when I rose, if we do not

have a new trial on all issues, the trial judge

disposing of the question of qualified privilege

will be almost as much in the dark as the trial

judge found herself to be when the jury could not

decide the answers to the questions because of a

Morgan 23 15/2/91

deadlock, and Her Honour or His Honour must have,

in adjudicating qualified privilege, inferentially

from the answers to questions that the jury
provides, the information as to what are the

imputations, where is the defamatory sting?

Because if it is a slight sting, the question of

reasonableness will be affected. If it is a sharp
sting, the question of reasonableness will be

affected by that decision, and without it, we

submit, there could not be a new trial.

I leave aside the other problems that arise.

For example, on the defence of truth, because we do

not know what imputations were found, we cannot say

what imputations the jury may have found to be

true. From this trial, all we know is that at

least one imputation arose and it was worth

$150,000. What other imputations otherwise may

have arisen and be found to be defamatory, at least

one of them was false and at least one of them was

either not defensible as comment or did not

represent the opinion of the writer. So all we

have is the sketchiest trail of light, as it were,

through the jury decision making that shows

minimally a defamatory imputation, not true, not

defensible as comment, and we do not know from that

finding whether any of the imputations were found,

in fact, to be true. So we submit, Your Honours, that a new trial limited in that way will repeat,

in effect, the procedural gloom that caused this second trial to miscarry in the way that it did.

GAUDRON J:  Does that mean that in every case where

qualified privilege is pleaded there can be no

general verdict, there must be a series of

questions and answers as contemplated in this case?

MR TOBIN:  It is difficult to answer confidently that there

could not be a case. Austin went fairly close.

One could imagine, in Austin's case, that the

findings of what the imputations were and whether

or not they were comment, which could carry with it

a question as to belief of the writer in the

comment made, whether he held the opinion; that

might be sufficient just on those answers.

GAUDRON J: What, in fact, is the procedure that is adopted

when qualified privilege is raised as a defence?

MR TOBIN: At the trial, in addition to the questions that

are framed that will disclose the general verdict -

additional questions are asked on issues of fact as

agreed.

GAUDRON J:  And then the qualified privilege is dealt with

by the trial judge only at the end of proceedings,

as it were, and a verdict is then entered by

Morgan 24 15/2/91

reference to the combined answers of the judge and

jury?

MR TOBIN:  Yes, so that at the end of the day the jury could

come back with a verdict for the plaintiff for a

sum of X dollars and in the light of the other

findings of fact made by the jury, judgment could

be entered for the defendant on qualified

privilege.

GAUDRON J: It is not the case that the trial judge asks the

jury to consider simply whether or not, as an

initial issue, the author reasonably believes the

matter?

MR TOBIN: Generally, that question might be put in the

context of all the other questions and after those

questions are formulated and settled by the trial

judge, the jury is addressed by counsel covering

the whole gambit of factual issues that they have

to decide. Yes, thank you.

MASON CJ: Mr Tobin, I was going to say to you, I see the

force of the argument you put but for my part I

remain, as it were - although seeing the force of

your arguments - as yet unconvinced that that is

demonstrably the correct approach to the situation.

So, we are left here in this case with an issue

which has not been debated in the Full Court, is

the subject of a ruling by the Full Court in the

absence of argument presented by the parties. Now,

in those circumstances, may it not be right to
grant special leave to have this matter dealt with

for the first time by a court?

MR TOBIN:  Your Honours, there is no issue of principle

involved. There is only a procedural question as

to the circumstances in which the trial judge might

consider a set of factual matters presented to the

trial judge by the jury.

DEANE J: But if the plaintiff does not want it, why should

you have a second chance on questions 1 and 9, for

example?

MR TOBIN:  Your Honours, we have no idea how the jury dealt

with questions 1 to 9.

DEANE J: Yes, we do. We know the majority thought 1 should

be answered against you and we know that they thought $150,000 was the appropriate damages.

MR TOBIN:  They thought that a defamatory imputation was

published and it was not defensible as truth and it

was not comment. We do not know which one.	That
is all that has been established.

Morgan 25 15/2/91

DEANE J:	I directed you to questions 1 and 9.
MR TOBIN:	Yes, I accept that, Your Honour, but at the end

of the day all that we have before the Court is

whether the Court of Appeal in New South Wales,

weighing up the question of a substantial wrong or
miscarriage under the rule, which is the heart of

the matter, made a mistake in leaning one way and

not the other.

Now, the Court of Appeal had before it an

extensive debate about exactly what had happened at
the trial and the Court of Appeal was in the

position of knowing the various versions of how the

trial had been conducted by counsel.

DEANE J: But we have an order for a general new trial made

by the Court of Appeal without having heard
argument on whether that was an appropriate order

and without giving any reasons for making that

order.

MR TOBIN:  Your Honour, if I may disagree, with respect.

The new trial issue was debated and that is what,

at the end of the day, the defendant said should

happen were it unsuccessful. It thought a new

trial was appropriate rather than judgment for the

plaintiff. That was the issue the Court of Appeal

decided, and that was then referred to Part 52
rule 6 which said, ttif a question has not been put

to the jury, that's not ground for a new trial unless the Court of Appeal is of the view that there is a substantial wrong or miscarriage

involved.tt

Now, with respect to what my learned friend says, this Court will be asked to deal with a

procedural porridge in the conduct of that trial in

order to find out whether or not the Court of

Appeal was right in deciding that there would be a

substantial miscarriage or wrong to my client.

DEANE J:  Is there any reason why the matter cannot go back

to the Court of Appeal to deal with that question?

MR TOBIN:  If Your Honours were of the view that that issue,

which was not debated Their Honours, should go

back, we could not complain.	We would not
complain.

MASON CJ:  You would not complain if an application were

made to the Court of Appeal by your opponent?

MR TOBIN:  To consider whether a new trial should be limited

in some way.

Morgan 26 15/2/91

MASON CJ: Should be limited to the qualified privilege

issue.

MR TOBIN:  And in saying we would not complain, we would

imagine that, as Your Honours have put, the reason

it would go back is that this issue had not been

debated although it was open to the parties and,

particularly to my learned friend's side to debate

it, and that fact carries with it no inference that

a new trial on a limited number of issues is

suggestive by it being referred back that the court

has a view on it.	I make myself opaquely clear, I
guess, Your Honours.

DEANE J:  And it is open to the plaintiff to take the matter

back to the Court of Appeal, is it?	Has the formal
order been taken out?

MR TOBIN:  I am told the formal order has been entered. So,

it may be that that court cannot consider - - -

DEANE J: This Court needs to make an order.

MR TOBIN:  But if that be so, we would submit with respect

to Your Honours that the High Court should not deal

with what is ultimately a procedural question of a

miscarriage or substantial wrong in circumstances

where, as I understand the appeal books in the
debate in the Court of Appeal, it was unable to

reach with any clarity a decided view about exactly

how the trial had been conducted by the two

parties.

Now, that means that Your Honours will be

asked to say at another remove from the trial at

nisi prius, one further remove, whether the Court

of Appeal had correctly assessed the essence of the

trial or the essence of justice in determining a

new trial or not a new trial.	I would submit that
that is not - - -

DEANE J: That is not so. All, on what has been put to you,

this Court would be asked to say is whether the

Court of Appeal should have addressed and should

have indicated that it had addressed the specific

question whether a new trial should be limited as

distinct from completely general.

MR TOBIN: Well, Your Honours, may I say, with respect, that

as I said earlier, why the Court of Appeal perhaps did not put this so explicitly as it might is that

the very problem that it was confronted with was,
it felt, the impossibility of the judge at nisi

prius to deal with the question of qualified

privilege when it did not have the answers to all

the questions from the jury.

Morgan 27 15/2/91

DEANE J: That might be so but it is not apparent to me that

there would be any difficulty at all on the basis

that the jury were told that if they ended up with

a verdict for the plaintiff they need not be
troubled about the quantum of damages. That would

eliminate all need for questions of reputation to

be gone into or questions of any real or special

damage or what have you. It may well be they are good reasons but in the absence of any discussion of that question and in the absence of any

indication that the Court of Appeal has addressed

the question, it seems to me that there is an issue

about it.

MR TOBIN: Well, Your Honours, I think I have made plain my

submission that whatever lingering issue there is,

it was not raised by Mr Evatt's side before the

Court of Appeal when the very topic was debated,

that is, of a new trial, and it would be an unusual

and, we would submit, an unnecessary step for this

Court to take to pick up that issue when the Court of Appeal is in the better position, I say with

respect, to balance up that question of substantial

wrong or miscarriage.

MASON CJ: Yes, thank you, Mr Tobin. Now, Mr Tobin, if you

assume for the moment that the Court is minded to

grant special leave to appeal limited to ground 7

in the draft notice of appeal, that is this

question of the limited new trial, what might

happen in the upshot if special leave is granted

and an appeal is taken to this Court - the upshot

may be that all that happens is the matter goes

back to the Court of Appeal to consider this

question.

MR TOBIN:	Yes.
MASON CJ:	Now, is there any possibility of the parties, by

consent, agreeing to an order in this Court which

would result in the matter going back to the Court

of Appeal?

MR TOBIN:  Which would, in effect, reactivate the Court of

Appeal's - - -?

MASON CJ:  The questions, yes.

DEANE J: Only on that limited ground.

MASON CJ: Yes, only on that point.

MR TOBIN: Yes, on point 7, yes. And that is framed as

whether it could have been restricted to issues -

it says, "such as qualified privilege". That means

limited in some way as the Court might decide.

Morgan	28	15/2/91
MASON CJ:	Yes, to qualify privilege.	Mr Tobin and

Mr Evatt, we could proceed with the next case and
then after you have given consideration to this,

Mr Tobin, you could approach the Court and let us

know what your response is.

MR TOBIN:  Yes, thank you, Your Honour.

AT 4.01 THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.23 PM:

MASON CJ: Yes, Mr Tobin?

MR TOBIN:  My client would consent to the course suggested

by Your Honour the Chief Justice, and Mr Evatt

agrees also with that course.

MASON CJ: Well now, can the two of you get together and

produce a consent order that the Court could make?

MR TOBIN: Yes, we could do that, Your Honours.

MASON CJ:  What I suggest you do is agree upon a formal

order and if you cannot do it this afternoon by the

time we adjourn I think it would be possible for

two members of the Court to sit here in Sydney on a

day next week to make the order.

MR TOBIN: Yes. Your Honours, I would imagine that given

the problems of this trial, it may be advisable for senior counsel who conducted the trial to assist us

in formulating the type of order that would be

appropriate. He may be back in Sydney now or on

his way so perhaps if we could take up the

Your Honour. suggested course of coming back next week, I should also indicate that the parties would

agree as to any cost order, that it would be costs

in the cause. So, we could perhaps include that in

the formal minute of order.

MASON CJ:  Yes. The day I have in mind is Thursday. Two

members of this Court will be in Sydney on Thursday
and 10.15, probably, is a suitable time next

Thursday. So, if the parties could have a formal

order prepared by then which they could present to

the Court.

Morgan 29 15/2/91

MR TOBIN:  Yes, thank you, Your Honour.

MR EVATT: That is in this Court, Your Honour?

MASON CJ: That is in this Court, yes. So, the matter will

stand over until Thursday of next week at 10.15 am.

MR TOBIN:  As Your Honours please.

AT 4.24 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 21 FEBRUARY 1991

Morgan 30 15/2/91