National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd

[1988] HCATrans 204

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M68 of 1988

B e t w e e n -

THE NATIONAL MUTUAL LIFE ASSOCIATION

OF AUSTRALASIA LTD

Applicant

and

GENERAL TELEVISION CORPORATION

PTY LTD., JANA WENDT, MARTIN KING,

GARY PHILIP COWTON, IAN RUSSELL

BRADBURY, TRANSMEDIA PRODUCTIONS
PTY LTD., TCN CHANNEL 9 PTY LTD.,

QUEENSLAND TELEVISION LTD., SWAN

TELEVISION AND RADIO BROADCASTERS LTD.,

SOUTHERN TELEVISION CORPORATION

PTY LTD., TASMANIAN TELEVISION LTD.

and TERRITORY TELEVISION PTY LTD.

Respondents

Application for a stay of

proceedings

C3T4/l/RB 1 9/9/88

TOOHEY J

( In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 SEPTEMBER 1988, AT 3.15 PM

Copyright in the High Court of Australia

MR P. HEEREY, QC:  If Your Honour pleases, I appear with my

learned friend, MR J. RUSKIN, for the applicant.

(instructed by Corrs Pavey Whiting & Byrne)

MR E.W. GILLARD, QC:  May it please Your Honour, I appear with

my learned friend, MRS. WILSON, for four out of all

the defendants.	(instructed by Arthur Robinson &
Hedderwicks)

Perhaps I should specify who they are, Your Honour.

HIS HONOUR:	I think you should name them, Mr Gillard.
MR GILLARD:	Yes.  General Television Corporation Pty Ltd.,

Jana Wendt, Martin King and Transmedia Productions

Pty Ltd. They were the respondents to the appeal, as

I understand it, Your Honour.

HIS HONOUR:  Yes, thank you. Yes, Mr Heerey.

MR HEEREY:  If Your Honour pleases, we seek from the Court an

injunction in terms - perhaps if I could hand to

Your Honour a draft of the proposed - Your Honour will

see that the injunction sought is to restrain until
14 October, which is the next day for hearing special

leave applications, the broadcasting of a television

programme.

HIS HONOUR:  I take it that is opposed, Mr Gillard, otherwise

we would not be here.

MR GILLARD: It certainly is, Your Honour.

HIS HONOUR:  Yes, thank you.

MR HEEREY:  Your Honours, the matters arise in this way: 6 April the respondents broadcast a programme as part on

of the regular Current Affair programme throughout

most of Australia dealing with the selling of what are

called "disability policies" by National Mutual.

Disability policies are those which provide the holder

with an agreed amount per week while he is sick or

disabled from working. It is a particular feature of

those policies that while there is a given amount

provided for the policy holder and a given dollar amount,

the policy also has to have some link with the amount
that would actually be lost by the policy holder while

he is unable to work. So there is a term in the policy

providing that if the policy holder is to say, well, he

gets the fixed amount or 75 per cent of his average

weekly income, whichever is the lesser. And average

weekly income is defined to mean, broadly speaking, his

T4 income after business expenses but before tax.

Now, this first programme featured a man called

Bradbury who had a National Mutual disability policy and Mr Bradbury's complaint was that he had bought a

C3T4/l/RB 2 9/9/88

policy and he had been led to believe that he was

covered for 75 per cent of his gross income; that he became ill; that he made a claim; that for some time

the payments were made under the policy and that

National Mutual then stopped payments on the ground

that his net income was much less than 75 per cent of

the stated figure in the policy.

As part of that prograrrnne, a man called Cowton

appeared on the prograrrnne and Cowton was the agent who

had sold the policy to Bradbury and it was said that

Bradbury sought out the agent and the agent said, in

effect, that well, that was the way we were told how

to sell these policies and he generally supported

Mr Bradbury.

After that first prograrrnne, which was heavily

promoted over the Easter holiday and shown shortly

after Easter, there was a meeting between representatives

of the parties - not, as one can imagine, in the most

imiable circumstances,- but in any event there was an
agreement reached that before any other prograrrnne

dealing with this topic was shown, that National

Mutual would be provided with a tape of the proposed

second prograrrnne and I might add that the first

prograrrnne ended with an appeal by the presenter, the

defendant,Miss Wendt, to the viewers asking that -

inviting anybody who had had similar problems with

these policies to contact the prograrrnne.

The next thing that happened was on 15 April

when the applicant issued a writ seeking damages for defamation and conspiracy. The conspiracy claim was

given light by the discovery after the broadcast of

the first prograrrnne that Mr Bradbury and Mr Cowton

in fact knew each other and had at some time worked

for the same company and that it was at the very

lowest misleading to suggest that Mr Bradbury had had

to search out Mr Cowton.

In any event, the writ is issued on 15 April;

on 26 April National Mutual received a video tape of

the proposed second prograrrnne which it was said would

be broadcast within a short time, within about

48 hours,and that prograrrnne showed a number of people -

approximately 10 or 12 - on the face of it seeming to

make similar complaints to Mr Bradbury, that is to say

they thought they were covered for 75 per cent of gross

and not net income, and two other agents were featured

on the prograrrnne taking the same stand as Mr Cowton in

the earlier prograrrnne, namely that they did not realize

this and that was the way they were told to sell the

policies.

So what the second prograrrnne proposed to do was

to, as it were, present more evidence in corroboration

C3T5/l/RB 3 9/9/88

of the complaint made by Mr Bradbury in the first

prograrmne and this was done in a very dramatic and

skilful way. There were some men who worked in a

panel beating shop; they were presented as saying

that they had been conned and ripped off and so forth;
there were men and women; there was an accountant, a

gentleman from Perth; an architect, a man from Adelaide;

all presented as making the same complaint. Now,

on 27 April the applicant sought an injunction and was

granted an injunction to restrain the showing of the

prograrmne for a two week period to enable material to

be obtained.

HIS HONOUR:  Was that obtained ex parte?

MR HEEREY:  No, it was not, Your Honour. It was opposed but it

was on notice to the defendant. Mr Justice Tadgell

granted that injunction for two weeks. There was then

a very substantial contested hearing before

Mr Justice Ormiston. His Honour reserved his decision

and I just do not have the date to hand, but His Honour

dismissed the application - 30 May, thank you - for

an injunction but he granted an injunction up until the

next motion day in the Full Court, and subsequently

the Full Court continued the injunction.

The net result has been that there has been an

injunction running first by Mr Justice Ormiston and

TS then by the Full Court. The appeal was heard in the

Full Court in the early part of August and the Full

Court handed down their reserved decision this morning which dismissed the appeal and application was made this morning to the Full Court for an injunction - the

continuation of an injunction to restrain the showing

of the prograrmne to 14 October or, in the alternative,

for seven days so as to enable the applicant to seek

an injunction from a single Judge of this Court.	Both
those applications were refused and hence the
application this afternoon before Your Honour.

HIS HONOUR:  Were reasons given for the refusal of the

application?

MR HEEREY:  No, Your Honour.

HIS HONOUR: You mean literally no, or - - -

MR HEEREY:  Yes, literally so, yes.

HIS HONOUR: I suppose some formula must have been used, but I

take it from what you say the court simply said that

the application was refused.

MR HEEREY:  Yes. Well, it was opposed - arguments were put

against it and arguments were put for it, but the

court simply refused the application.

C3T6/1/RB 4 9/9/88

Your Honour, the hearing before

Mr Justice Ormiston took nine days and the appeal in the Full Court took eight days. I should add that under the Victorian rules we had an appeal as

of right from the refusal of an injunction and the

appeal traversed many grounds and my learned friend

and I have only had a very limited time to digest

the Full Court's judgment and formulate a case for

challenge to those on appeal.

What we seek to do before Your Honour this

afternoon is therefore of necessity of a very limited

nature. We say, Your Honour, that we have a

substantial case for obtaining special leave, and

without wanting to abandon arguments that may be

advanced hereafter, we put at the forefront of our
case a point relating to a contempt which we say that

the Full Court did not deal with at all, although it

was put to them both on the initial submission and

in reply.

HIS HONOUR: When you say the court did not deal with it - I have

had a chance to read the judgment fairly quickly, as

you could imagine. The court seems to have directed

its attention to a question of contempt. I am not

sure whether you are saying that it was not the point

that was in fact raised or whether you are saying

something else.

MR HEEREY:  Yes, Your Honour. The contempt argument was put

two ways: it was said that the broadcast of the

second programme would be likely to cause a serious

prejudice to the trial. There has been a speedy trial

order granted and it is likely that the trial will be

heard probably in about February next year. It was

argued that the broadcast of the second programme would
be likely to influence jurors and, in particular,

witnesses because it presented a dramatic and compelling

argument that many people across" the spectrum of the

workforce and in different States had been misled in

the first programme. the same way that Mr Bradbury claimed he had been in It was the sort of contempt that this Court has

recently dealt with in HINCH. It was said that this

broadcast would prejudice the minds of jurors and

witnesses and particularly it would create the risk

that witnesses, including potential witnesses who were

policy holders, when it was pointed out to them that

their policy covered 75 per cent of net and not gross

income, that there would be a serious risk that there

would be - and then turning their mind back to the

circumstances when they bought the policy - would be

likely to think, well,with all these people on the

programme, the accountant from Perth and the architect from Adelaide, if they were misunderstood in some way,

C3T6/2/RB 5 9/9/88

that must be the explanation of how I came to

T6 form what now seems to be a mistaken view.

It was a quite separate basis, however, on which

the contempt argument was - - -

HIS HONOUR: Just before you leave that point. Are you saying

that the Court of Appeal did not deal with that?

MR HEEREY:  Oh no, they did deal with that and they said they

disagreed.

HIS HONOUR:	They certainly dealt with that point.
MR HEEREY:	Yes, they dealt with that and they said we do not think the jurors would be influenced or witnesses
would be influenced.

Now, there was a quite separate basis on which

the contempt argument was put and it is what the

appellant would seek to establish in this Court, if special leave were granted. It is this, that it is

a contempt of court to publish material which directly

canvasses the merits of issues already the subject of

litigation, irrespective of whether the publication

might prejudice jurors or witnesses. It can perhaps

be compendiously labelled as the notion of usurpation

of the function of the Court.

The statement of law that provides the initial

basis for this argument is to be found in the speech

of Lord Diplock in ATTORNEY-GENERAL V TIMES NEWSPAPERS,

(1974) AC 273. Your Honour will recall that was the

case about the thalidomide claimants, and at page 309,

just above line B, His Lordship said this:

The due administration of justice requires

first that all citizens should have unhindered

access to the constitutionally established courts

of criminal or civil jurisdiction for the

determination of disputes as to their legal

be able to rely upon obtaining in the courts the

arbitrament of a tribunal which is free from

bias against any party and whose decision will

be based upon those facts only that have been
proved in evidence adduced before it in accordance

with the procedure adopted in courts of law; and
thirdly, that, once the dispute has been submitted
to a court of law, they should be able to rely upon
there being no usurpation by any other person of
the function of that court to decide it according
to law. Conduct which is calculated to prejudice

any of these three requirements or to undermine

the public confidence that they will be observed

is contempt of court.

rights and liabilities; secondly, that they should

C3T7/l/RB 6 9/9/88

The commonest kind of conduct to come

before the courts on applications for conunittal
for comtempt of court has been conduct which

has been calculated to prejudice the second requirement. This is because trial by jury

has been, as it still is, the mode of trial of all serious criminal offences, and until

comparatively recently has also been the mode

of trial of most civil cases at common law

which are likely to attract the attention of

the public. Laymen, whether acting as jurymen

or witnesses (or, for that matter, as magistrates),

were regarded by the judges as being vulnerable
to influence or pressure which might impair their
impartiality or cause them to form preconceived

views as to the facts of the dispute, or, in the

case of witnesses, to be unwilling to give

evidence with candour at the trial. The conduct

most commonly complained of was the publication,

generally in a newspaper, of statements or conunents

about parties to pending litigation or about facts

at issue in the litigation; so the discussion in
the judgments tends to be directed to consideration

of the question whether the publication complained

of involved a risk of causing someone who might

be called upon to serve as a juror to be prejudiced

against a party or to form a preconceived view

of the facts before the evidence was adduced in

court, or a risk of influencing someone who might

be called as a witness to alter his evidence or

T7

to decline to testify.

Contempt of court, except the rare offence of scandalising the court after judgment, is committed

before the trial is concluded. Whether in the

result the publication will have had any

influence upon jurors or witnesses is not known

when the proceedings for committal for contempt

of court are heard. The mischief against which
the summary remedy for contempt of court is

directed is not merely that justice will not be	done but that it will not be manifestly seen to
be done.	Contempt of court is punishable because

it underminds the confidence not only of the

parties to the particular litigation but also

of the public as potential suitors, in the due
administration of justice by the established
courts of law.

My Lords, to hold a party up to public

obloquy for exercising his constitutional right

to have recourse to a court of law for the
ascertainment and enforcement of his legal rights
and obligations is calculated to prejudice the
first requirement for the due administration of
justice: the unhindered access of all citizens

to the established courts of law. Similarly,

C3T8/1/RB 7 9/9/88

"trial by newspaper," i.e. public discussion

or cormnent on the merits of a dispute which has
been submitted to a court of law or on the

alleged facts of the dispute before they have

been found by the court upon the evidence adduced
before it, is calculated to prejudice the third

requirement: that parties to litigation should

be able to rely upon there being no usurpation

by any other person of the function of that

court to decide their dispute according to law. If to have recourse to civil litigation were to

expose a litigant to the risk of public obloquy

or to public and prejudicial discussion of the

facts or merits of the case before they have been

determined by the court, potential suitors would be
inhibited from availing themselves of courts of

law for the purpose for which they are established.

It is only where a case is to be heard by a

tribunal which may be regarded as incapable of

being influenced by public criticism of the

parties or discussion of the merits or the facts

and any witnesses likely to be called are

similarly irmnune, that conduct of this kind does

not also offend against the second requirement

for the due administration of justice; and it is

this requirement that affects more directly the

particular interests of the parties to the

litigation by whom all motions for cormnittal for
contempt of court were brought until 1954. It is

only rarely, therefore, that the judgments delivered

on these motions refer to the first or third

requirement as distinct from the second.	The rare
exceptions -

and then His Lordship deals with some authority there.

Then at line F His Lordship continues:

In my view, these cases support the proposition

I have already stated: that contempt of court

in relation to a civil action is not restricted

intentionally or not) to prejudice the fair trial

of that action by influencing, in favour of one
party or against him, either the tribunal by

which the action may be tried or witnesses who

may give evidence in it; it extends also to

conduct that is calculated to inhibit suitors

generally from availing themselves of their

constitutional right to have their legal rights and
obligations ascertained and enforced in courts

of law, by holding up any suitor to public

obloquy for doing so or by exposing him to

public and prejudicial discussion of the merits

or the facts of his case before they have been determined by the court or the action has been

otherwise disposed of in due course of law.

to conduct which is calculated (whether

C3T8/2/RB 8 9/9/88

HIS HONOUR:  Mr Heerey, are you suggesting that in the

programme sought to be restrained that there is some -

let us take it in stages, some direct reference to

the litigation that is pending in the Supreme Court of

Victoria?

MR HEEREY:  There was in some of the promotional - after the

first programme there was a statement - a trailer or

promotional segment telling the viewers about the

forthcoming programme and then there was a statement

referring to the grant of the injunction. So the

viewers -although the second programme in itself does

not specifically refer to the litigation, the viewers
have already been told by the same defendants that

a writ has been issued and an injunction granted.

HIS HONOUR: Well, presumably for any future publicity that will

not be part of the coverage because there is no

injunction, subject to anything this Court may do - - -

MR HEEREY:  But our point is, Your Honour, that it does not

matter, because under this head, under the third head of prejudice as enumerated by Lord Diplock, it

is not an essential element that there is a prejudice

to jurors or a prejudice to witnesses. What we say

is this: we have sued over the first programme and

we say that the imputation conveyed about that

programme by the selling of the policies are

defamatory and there is a defence of justification been

T8 filed.

Your Honour, what we say is that we have submitted

those issues to the court and that we are entitled,

as long as we are proceeding genuinely, bona fide and
there cannot be any suggestion in this case that it
is a stop writ because already most of the interlocutory
steps have been proceeding, that as long as we are

proceeding bona fide to have those issues adjudicated

in the courts it is contempt of court for somebody

else, a fortiori we would say the defendants, to go

into the public media and say, well, look, National

Mutual do sell policies the way they sold it to

Mr Bradbury because here is Mr Cooper, the accountant

from Perth, and here is Mr Timbs, the architect from

Adelaide. What we submit is that it is - - -

HIS HONOUR:  Can I just interrupt you? Are you saying that that

proposition holds good even if there is no reference

direct or indirect to the fact that there is litigation

pending before the court?

MR HEEREY:  Yes, we do, because once those issues have been put

before the court in the defamation action, in our

submission we are entitled to proceed and, if we win,

get damages which will be by way of vindication and

compensation for the damage done to our reputation.

C3T9/l/RB 9 9/9/88

Now, we are entitled to have that dipsute resolved in the court. We are, we submit, entitled

to say that anybody - and in particular the defendant
with the powers of the media that the defendant

control - cannot run a trial of those very issues

in the media. What we submit is that the second

programme is a trial by media in the most literal

sense because witnesses are produced and they are

interviewed and there is comment by the presenters

of the programme and it is all put together as a

powerful and dramatically compelling package.

HIS HONOUR:	Presumably you say, or would say, that it is no answer to be told that your client can sue in respect
of that programme if it is defamatory.
MR HEEREY:	Yes, that is right, Your Honour, because the court

is now seized of the issues raised in the litigation,

in substance, how we sell our policies, and that is

where we say the issues should be resolved, subject

only to our proceeding genuinely to have them resolved

in the court.

HIS HONOUR: Does it follow then that once the plaintiff has

brought proceedings in defamation, but say against

a newspaper or some other media, that there can be

no reference to the matters giving rise to that action

in either that newspaper or television programme, or

for that matter, I suppose you would say any newspaper

report, whoever published it?

MR HEEREY:  Your Honour, it is very difficult to peg out the

boundaries of contempt because the courts both here

and in England have been astute to see that there is

no undue infringement on free speech and we would not

be putting a proposition that there resolved of

necessitity a total blanket ban, and really I think

what Your Honour is putting to me raises the

BREAD MANUFACTURERS' principle which this Court analysed

in HINCH's case. But, Your Honour, what we would say

is wherever you draw the line, it must be drawn in

this case because the programme which we are complaining

about is about nothing else.

If I could contrast it by an example: say it

was another television station, not these defendants,

who had a programme about insurance generally, all sorts

of insurance and the selling of fire insurance and life
insurance and so forth, and in the course of it there

was some passing reference to the selling of disability

insurance and confusion that arises between whether

net or gross income is covered, that might be a

T9	totally different matter. But here we have these
defendants who set out to investigate - or as they put
it in their initial promotional material before the
first programme was broadcast - to take on

C3Tl0/l/RB 10 9/9/88

National Mutual. Now, they are entitled to do that,

but we say, having broadcast the first prograrrn:ne

over which we promptly sued, they cannot continue to

run their trial in the media, which is concerned

centrally with the very issues arising in the action.

HIS HONOUR:  I suppose there is one sense in which they can,

that there is nothing to restrain the defendants
from continuing to show the first prograrrn:ne in respect

of which they are being sued, other than of course the

risk that it would inflate any damages that your client

might recover if successful. Because there is no

restraint upon the further publication of the first

television prograrrn:ne, is there?

MR HEEREY:  We had not sought it. I do not think it occurred

to us. I suppose the only - - -

HIS HONOUR:  I do not want to be seen to be encouraging anybody

to do anything, but I just mention that as an example
to try to test quite what this principle is, because

in one sense there could be an extensive coverage of

the issues by the republication of the offending

prograrrn:ne - the prograrrn:ne that is said to offend -

subject, of course, to the right of your client to

seek an interlocutory injunction in respect of that

prograrrn:ne and subject, of course, to its affect on any

damages that might be recovered.

MR HEEREY:	Yes, well it certainly has - - -
HIS HONOUR:	So I am not inviting you to draw the line, as it

were, but at least to give me some guidance as to

what the principle is, because it can hardly be that

once a plaintiff has sued for damages in respect of

a particular subject-matter, that that subject-matter

is just taboo from then on.

MR HEEREY:  It depends, I suppose, how one defines subject-

matter. In the present case it is defined, we would

say, very specifically. It is the selling of these

policies in this particular way said to give rise to	this particular confusion or mistake and that is the
case made in the first prograrrn:ne - Mr Bradbury is produced and Mr Cowton - and then after the writ is
issued in which the plaintiff claims that it is
defamatory to say that and then subsequently the
defendant says, well it is true, another prograrrn:ne is run, presenting many more people making precisely the
same complaint. Now, we would say that we are entitled
to have our case resolved in the courts and obtain a
vindication and it would be wrong for that to be
minimized by the continual showing of these programmes
if the second prograrrn:ne could be shown; presumably a
third or fourth or more, and - - -

HIS HONOUR: Well, one could easily imagine a situation in which

a programme would constitute contempt of court, because

C3Tl0/2/RB 11 9/9/88

it is sought, as it were, to prejudice the hearing

of the action in clear terms. That is not a difficult

situation to imagine. But I do not understand you to

be saying that that is the case here, other than that

a reference in this proposed programme to issues which

are the subject of the programme for which proceedings

had been taken may in some way influence those who

see that programme, if they happen to be either

witnesses or jurors.

MR HEEREY:  No, we are saying it is by no means limited to

that, Your Honour. We would say, look, if we succeed

in the action and get an award of damages, it is

wrong that there should be a public perception, "Well,

they might have won in the court, but we saw that

other programme and we saw the accountant from Perth

and the architect from Adelaide and all these people
and we do not care what the court has said, what

appeared on that other programme we saw seemed pretty

convincing to us."

(Continued on page 13)

C3Tl0/3/RB 12 9/9/88

MR HEEREY (continuing):  If I could just pick up a passage

from HINCH's case which makes the same point.

HINCH's case was, in our respectful submission,

an example of the second of Lord Diplock's categories

rather than the third.	We say our case comes
within both the second and third.	What happened

in HINCH's case was not a canvassing of the merits of

the case on which Mr Glennon had just been charged,

it was not a trial by media in that sense. The vice

of what Mr Hinch did, of course, was to publish

the previous convictions, which he did, and there

did not seem to be any issue as to his genuiness

or not but which he did for another purpose.

·In the judgment of Justice Deane in HINCH,

(1987) 61 ALJR at page 572, in the second column just below line D, His Honour said, in referring

to the BLF case in the Federal Court:

I pointed out that it was established by

authority that statements made or actions taken

will have a tendency to affect adversely the

due administration of justice in relation

to particular pending proceedings if they

have a tendency to operate in any of three

related ways:

"(i) to interfere with the fair and proper

conduct of the trial of a particular pending

cause by influencing the court or prospective

witnessess in respect of the matter generally

or in respect of particular issues or questions

involved in it; (ii) to disparage or vilify

a party to litigation or a witness in a

party's cause because he is a litigant or a

witness or because of the litigation or

allegations made in it; or (iii) to prejudice

or bias the public mind in favour one side

as against the other side and thereby substitute

prejudgment or, in some cases, pre-trial

by the media, for determination by the courts

of the land."

I might mention - although I have not got the

authority with me, Your Honour, that in the BLF

case in the High Court in the judgment of the

Chief Justice, His Honour was at pains to distinguish

that case from the type of situation referred to

by Lord Diplock, by saying that in the BLF case

it was not a case where the Royal Commission

proceedings canvassed the central issues in the

Federal Court litigation. So we say that it is

a substantial point arguably worthy of special

leave and there is this basis of contempt which

exists quite independently of any apprehension

or of particular influence on jurors or witnesses.

C3Tll/l/MB 13 9/9/88

HIS HONOUR:  Mr Heerey, I take it from you said earlier on

that it is your argument that the Full Court did

not direct its attention to that second point?

MR HEEREY:	That is correct, yes.
HIS HONOUR:	Do youm:an quite literally did not deal with

it at all?

MR HEEREY:  Yes, that is so. Yes, they deal with the

other form of contempt and make findings about it

but they simply did not deal with it at all.	We
submit it is of considerable public importance because where one has press or television or

radio investigations of a continuing nature it is

quite possible that the set of events that have

occurred in this case will arise. There is the
first instalment of the story, the first programme,
the plaintiff issues. The question is then can
the defendant, once the issue has been reposed
with the courts, continue to raise those issues

which are central to the litigation?

(Continued on page 15)

C3Tll/2/MB 14 9/9/88

HIS HONOUR: Well, clearly the defendant can in one sense,

that it can continue to repeat the offending material

until it is restrained. Is that not so?

MR HEEREY:  I must confess that because we have not turned

our minds to that and it has not been suggested as

a practical alternative, I must say that we would,

even if it did happen, find it difficult to distinguish

between that and the further programmes which publish

more material confined to the same issue.

HIS HONOUR:  Yes, that is what troubles me. I find it difficult

to draw that distinction also, and yet the material -
the offending material, subject to those caveats
that I have already mentioned, can continue to be

published until restrained by the court. The answer

may well be, and yet it seems unlikely, that the

offending material runs some risk of being restrained

if it is to be repeated, though not likely to be

restrained - well, I just find this a rather difficult

sort of avenue to pursue, because it is very difficult

to see what principle it is that would say, if it be

the case, that the material the subject of the

litigation can be repeated with all the possible

consequences that I have referred to as things

presently stand in this case, but you would say the
Court ought to restrain the publication of other

material of a like nature, although of course differing

in the sense that it refers to other persons who claim

to have suffered by reason of your client's conduct.

MR HEEREY:  Yes. Certainly in the television context one would

expect that the reality of it is that if only the

immutable law of ratings would apply but it is not

likely to be that- - -

HIS HONOUR:  I appreciate all sorts of answers, but the example is

just given really with a view to testing where the

principle is and how it would operate in respect of

the material your client now seeks to restrain.

MR HEEREY:  Yes. We say the feature about this that is of

great significance is that having been challenged in

relation to the first programme, challenged in the
courts and action brought, the second programme really

seeks to prove the case that was made in the first

programme. And we say that is a usurpation of the

function of the court.	We say that that is a matter
of substance.	We refer Your Honour to a recent

decision of Justice Brennan as to the principles

applicable when a stay or an injunction is sought

pending an application for special leave. It is

JENNINGS CONSTRUCTION V BURGUNDY ROYALE INVESTMENTS

PTY LIMITED, (1986) 69 ALR 265 and at page 267- - -

HIS HONOUR:  A stay is a bit different, is it not, because a stay

presupposes that there is some order of the court which,

C3Tl2/l/RB 15 9/9/88

if a stay is not granted, will take effect and have

certain consequences to the parties. One of those

consequences may be quite irreparable so far as one

of the parties is concerned. This is not truly a

stay because there is nothing that you are seeking to

preserve. Indeed, you are seeking positive action

from this Court to enjoin the respondents who have

not hitherto been enjoined either by Mr Justice Ormiston

Tl2 or by the Full Court of the Supreme Court.

MR HEEREY:  Yes, Your Honour, but in substance we have sought

to prevent, true it is, the showing of the second

programme but in so far as that is based on a

threatened contempt, it is an order of a final nature. It is not - although it goes in tandem with the ground

on which the defamation injunction is sought, what

we seek is really final relief. Our case is that it

would be a contempt to broadcast the second programme.

Once the second programme is broadcast, well that is

the practical end of the case.

HIS HONOUR:  Yes, I see that. Mr Heerey, perhaps I should just

clarify with you and Mr Gillard what material I have

and that there is no contest about my referring to the

material given to me in particular, or that there is

any other material that I should have.	This has come
in in dribs and drabs during the afternoon.	I have
an application for special leave to appeal.	I have

a document that is called "Further amended statement

of claim"; I have another document which I take to be

part of that statement of claim in so far as it is

headed up "Schedules A to Schedule E".

MR HEEREY: That is right, Your Honour. They contain the text

of the various broadcasts.

HIS HONOUR:  It came to me separately, as it were, but it is

part of the statement of claim. Then I have the

judgment of Mr Justice Ormiston, and judgment of the

Full Court, notice of appeal to the Full Court and

application for special leave to appeal to this Court.

I take it that it is common ground that all of that

material ought to be before me.

MR HEEREY: That is the sum total of the material we provided,

Your Honour.

HIS HONOUR:I think I was asking you that because the schedule E

is the only document which I think refers in any

detail to the material the subject of the second

programme.

MR HEEREY:  Yes, that is right. Schedule Eis the text of

what was said-

HIS HONOUR:  So if I am to make any assessment of the matter

by reference to the content of that material,

C3Tl3/l/RB 16 9/9/88

it is schedule E that I go to?

MR HEEREY:  Yes. It occurs to me now, probably too late,

Your Honour, that we have a video tape but I think

in the rush we forgot about that.	But that was
before His Honour in the Full Court.

HIS HONOUR:  Mr Heerey, is it implicit in what you have been

putting to me that the other matters canvassed by the likely to be the subject of an application for

special leave to appeal? I am not seeking to pin you

down unduly, but you focussed upon this one matter

as likely to attract the grant of special leave. In

my consideration of the matter, can I take it that

that is the only aspect that I should in turn focus on?

MR HEEREY: Well, it is difficult, in this respect, Your Honour.

We certainly would not want to be taken in the event of Your Honour granting the injunction we sought as

abandoning any other point which, with the advantage

of more mature consideration, we might want to make

with special leave - - -

HIS HONOUR:  I appreciate that and as I said, I am not seeking

in any way to pin you down, but simply to get some

guidance as to the extent to which I should roam in

my consideration of the matter.

MR HEEREY: 

The other major aspect of the case which we would

want to consider for the purpose of a special leave
application involves whether the decision of the
English Court of Appeal in a case called POLLY PECK V

TRELFORD AND PARTNERS is good law or should be followed

Tl3 in Australia.

The essence of the POLLY PECK decision seems to

be that where a plaintiff pleads that defamatory

imputations arise from the provocation, a defendant

can plead justification in this form: he can say

that he denies that the imputations pleaded by the

plaintiff arise; he says that the publication means
something else, and that is true. And there is some

conflicting earlier Australian authority, in particular

a decision of Mr Justice Fox in HADZEL V DE WALDORF

and in the last edition of Gatley on Libel and Slander

before the POLLY PECK case was to the contrary, so we

would say that that is an area also that needsto be

explored because there is a real dispute-

HIS HONOUR:	Do you mean explored by me or explored by the Full Court?
MR HEEREY:	As a potential special leave point.
HIS HONOUR:	Is it an oversimplification to say that if you do

not get up for the purposes of this application,

C3Tl4/l/RB 17 9/9/88

that is the injunction application on the contempt

point, you are not likely to get up on any other

point; and if you do get up on that point, then

you do not need any other point?

MR HEEREY:  We simply say it is there, Your Honour. We do not

wish to abandon it but that is - - -

HIS HONOUR: 

I need some clear statement, I think, on behalf

of your client as to what matters are said to warrant
the grant of an injunction. This is going to ruin a

perfectly good weekend anyhow, but the less it is

ruined the better. If you say there is one point I

should look at, then I will look at it; if you say

there is three, then I will look at those, but I do
not want to look at matters that are not strictly
necessary for the resolution of this application.

MR HEEREY: 

We would ask Your Honour to consider that other aspect of it involving the POLLY PECK decision,

Your Honour.

HIS HONOUR:  Consider it in what sense? I mean, how does it

bear upon the granting or refusal of the interlocutory

injunction which is presently sought?

MR HEEREY:  We say that the progrannne - the second programme as

well as the first, for that matter, bore the

imputation that we had trained our own salesmen in a

misleading way, that we had misled our own salesmen

and	there is a dispute as to whether it does carry
that meaning.	We say it is not enough for a defendant

to say that, for the purposes of defeating an

interlocutory injunction application, there is another

meaning and a lesser meaning than that on which the

plaintiff sues and that in that sense the publication

is true.

HIS HONOUR:  Yes, thank you.

MR HEEREY:  If I could finally refer Your Honour to the criteria

that was stated by Justice Brennan in the JENNINGS case

at page 267 at about line 38. His Honour having

referred to it as an extraordinary jurisdiction said:

(Continued on page 19)

C3T14/2/RB	18	9/9/88
MR HEEREY (continuing):

In exercising the extraordinary jurisdiction

to stay, the following factors are material

to the exercise of this court's discretion.

In each case when the court is satisfied a stay is required to preserve the subject

matter of the litigation, it is relevant

to consider - first, whether there is a

substantial prospect that special leave to

appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the
court in which the matter is pending -

we say we have done all we could in the present

case -

thirdly, whether the grant of a stay will

cause loss to the respondent; and fourthly,

where the balance of convenience lies.

As to those third and fourth criteria, it is our

submission, Your Honour, that looked at in the

limited time frame of the period between now and

14 October it is clear that an injuction would

cause no loss to the respondent. It has never

been the respondent's case that the interlocutory

injunction would cause them any particular loss

on a balance of convenience basis.

HIS HONOUR:  "When would this programme have gone to air

if it had not been restrained initially?

MR HEEREY:	On 29 April, I think, yes.
HIS HONOUR:	Thank you.
MR HEEREY:	But if it was news then presumably it would

be news now and news on 14 October.

case where, as I say, any loss is complained of. It is not a

We would say that, on the other hand, the loss to us, if there were no injunction, the material

was broadcast and it was subsequently held that

we were to succeed in our action for defamation,

would be very substantial indeed. Again, of course,

we repeat, that as far as the contempt aspect of

the matter is, that that really is self contained.

b~cause -- it is a final relief and not a matter of

discretion aswas pointed out in several of the

judgments in HINCH. Finally, if it be said against

us that this injunction would de facto grant us

the injunction which we have not got from the

court, we would respectfully say that that is

a matter appropriate to be considered at the stage

when we seek special leave. All we seek today is

C3Tl5/l/MB 19 9/9/88

an injunction to hold the matters until the
court on special leave application can deal with

the matter.

HIS HONOUR:  Thank you, Mr Heerey. Mr Gillard.

MR GILLARD:  Your Honour, at the outset we submit that it

is very important to determine precisely what

it is that the plaintiff is seeking before

Your Honour. Now, it is not an application for a

stay, it is an application for an interlocutory

injunction. Your Honour, Mr Justice Deane

considered this in the ATTORNEY-GENERAL OF THE

UNITED KINGDOM V HEINEMANN, (1987) 75 ALR 461.

I hand a copy of that to Your Honour.

Mr Justice Deane described this jurisdiction as

only applying and to be exercised in exceptional

circumstances. I take Your Honour to page 464.

His Honour said at line 4:

(Continued on page 21)

C3Tl5/2/MB	20	9/9/88
MR GILLARD (continuing):

In substance, the application before me is

an application for injunctive relief to

maintain the status quo pending the disposal

of proceedings in this court.

Now, in that case there were some form of agreed

stays along the way but, we would submit, here,

on a proper analysis, the application before

Your Honour is for injunctive relief to restrain

the defendants from publishing the material. If

one then goes down to the second last paragraph

on that page His Honour said:

The jurisdiction to grant interlocutory relief

staying the orders made by a court below

pending an appeal has rightly been described

as an extraordinary one -

references are made -

It is a jurisdiction which will only be exercised
in exceptional circumstances. The same can

be said, but a fortiori, of the jurisdiction
to grant positive injunctive relief to the

unsuccessful party in the courts below to

maintain a status quo pending the outcome

of an appeal.

His Honour later, at the end of that judgment,

described the jurisdiction, at page 467, in this

way, about line 6, half-way along that line:

There is the consideration that the

jurisdiction which the applicant now

invokes is an extraordinary one which

should be exercised only in exceptional

circumstances.

I will come back in a moment, Your Honour, to

other matters that His Honour stated in the
course of that judgment but it must therefore

follow that ordinary principles must be applied.

The first course issue for Your Honour to consider

is whether there is a serious question to be decided.

We put forward a number of submissions to Your Honour
indicating that there is not a serious matter

to be decided. The first point we make, Your Honour,

is this, that this is an interlocutory application,

that is, that the application before the first

judge and, of course, the appeal court, related

to an interlocutory matter. The second matter

we rely upon, Your Honour, is that this is an

appeal from an exercise of discretion, that is,

an appeal from the first judge to the Full Court

and from the Full Court to this Court.

C3Tl6/1/MB 21 9/9/88

Now, the next matter, Your Honour, is that in

our submission my learned friends have got to

establish that the Full Court went wrong, not

only that it went wrong but as a matter of general

importance that this Court should entertain an

appeal. My friend, if I could now deal with,' in

the way that my learned friend said the Full Court

went wrong, he said it related to the matter of

contempt. His first point was that the court

did not deal with this particular argument that

he has put forward. In our respectful submission,

that is not correct and the Full Court did deal

with that submission.

Your Honour, to make good that submission I

refer Your Honour to what Mr Justice Ormiston

said in his judgment at page 27.

Finally, I turn to the claim based upon a

feared contempt of court. Again, a most

careful and detailed argument was presented

to the Court on behalf of the plaintiff. The

principles were not seriously in dispute,

merely their application to the present case.

Nevertheless it was remarkable that not a

single authority, not a single instance

of a judicial decision, was cited to me of

a court applying common law rules and rules

of equity restraining the continued

publication of material claimed to be

defamatory, or its repetition in the course

of a public discussion in the press, on radio

or television, by a party who had already

been sued for the same libel. Nothing in

HINCH changed the general understanding of the

law of contempt for presently relevant purposes.

Its application to civil libel actions was

not disputed, but neither in this case,
nor in the decision of ATTORNEY-GENERAL V

NEWS GROUP suggested that a "stop" writ had

over a century. It is not surprising that any greater effect now than it has had for this should be so.

(Continued on page 23)

C3Tl6/2/MB	22	9/9/88
MR GILLARD (continuing):

It is only necessary to citeagain the

authoritative statement of Jordan, C.J.-

and he then refers to that, Your Honour, and -

quoted with strong approval in HINCH's case;

..... That statement reads:

I will not go through that, Your Honour.	At the
bottom of that page His Honour quoted
Mr Justice Deane:

"Freedom of public discussion of matters of legitimate public concern is, in itself,

an ideal of our society. The fact that

judicial proceedings have been instituted

does not remove such matters from the area of

legitimate public cormnent, public discussion

and public inquiry. Matters of importance

or concern or interest to the nation, to a
particular section of the cormnunity or to

particular individuals are cormnonly involved

in judicial proceedings and it would be

oppressive and futile to adopt the approach

that the mere fact that they are so involved

should automatically remove them from the

public domain."

HIS HONOUR: There may be a difference, Mr Gillard, between a

situation of two persons who are parties to litigation

and the right of the media to cormnent on the matters

that happen to be the subject of that litigation and

the position of a person who is himself, or in this
case themselves, the parties to the litigation, as it
were, to go public on the matters that the court is

ultimately going to deal with. I am not sure that that distinction has arisen in any of these cases.

MR GILLARD: Well, Your Honour, I would like to take Your Honour

back to what Lord Diplock said in a moment to just

see precisely what he was saying, but in our

submission, that particular category really relates

to a public discussion of the particular case in

some way and does not go as far as to say that once

you have instituted proceedings that thereafter any

cormnent on that particular subject-matter is thereby

restrained or taken out of the public domain. We

would submit, Your Honour, that there is no real

difference to whether it involves a HINCH situation

or it involves a situation such as ours.

In our submission, His Honour did deal with

this argument. I have been handed a copy - I did

not appear either before His Honour or the Full Court -

but I have been handed a copy of some submissions put

C3Tl7/l/RB 23 9/9/88

to the court and it would appear that these

references that have been put to Your Honour were

quoted to His Honour and the Full Court.

HIS HONOUR:  Do you say the Full Court dealt with the matter,

Mr Gillard?

MR GILLARD:  I do, Your Honour, because what I am about to say

is that His Honour having dealt with it, in our

submission,in what I am just reading to Your Honour,

the Full Court then went on to say that they agreed

with what His Honour said. Now, admittedly they did

not do it specifically, but one would be most

surprised if they did not have that matter in their

mind when they indicated they agreed with His Honour.

So perhaps I could just finish what His Honnur

Mr Justice Ormiston said and then refer Your Honour

to the Full Court:

None of the other cases cited to me throws any doubt on these propositions. Of course, it is

necessary in every case to weigh appropriately
the relevant competing interests, but I start
with a firm conviction that where the issues
appear to be arguably of general public
concern or a matter of public inquiry, or

which, as in this case, is of concern to a

substantial group of the public, then continued

public discussion of the same issues should not

be restrained by reliance on the principles

relating to contempt of court, unless the harm

likely to be caused is of such magnitude that

a delay in the continuation of that discussion

should take place.

Then he goes on to say:

This is not such a case.

Now, Their Honours in the Full Court refer to the

contempts on page 3 in the middle:

However, it is convenient to deal first

with the appellant's contention, here and
before the learned Judge, that the injunction

should issue on the ground that the publication

of the second programme will constitute a

contempt of court. It was said that the trial

of the plaintiff's libel action, which seeks

damages in respect of the first programme and

of the second programme, is likely to take place	an injunction to restrain inter alia publication
in February 1989 or shortly thereafter, and that the showing of the second programme in
between now and then will clearly interfere with

C3Tl7/2/RB 24 9/9/88

the administration of justice because it

will be very likely to prejudice the future jurors and even more likely to prejudice future witnesses

and to prevent them from giving in evidence an

accurate, honest and unbiassed account of the

Tl 7 facts.

It was common ground that the appropriate

test in this regard is whether there is a real

risk of serious interference with the jurors and witnesses is frequently under-rated,
administration of justice. Despite the careful
arguments for the appellant we are clearly of
opinion that such real risk is not made out.

especially by counsel in arguments on appeal.

Upon the pleadings in their present form, the

contents of the second programme will be

admissible evidence, and will go into evidence,

at the trial~ We agree with his Honour that,

in the context of a dispute such as the present,

there is no serious likelihood of the plaintiff

having its case heard or determined unfairly.

Now, in our submission, that covers this third category

and does indicate that the court did consider what

His Honour had said and did consider the arguments and

came to that conclusion.

Can I now take Your Honour then to what

Lord Diplock said about this third category.

HIS HONOUR: Just before you do that, just so that I am clear,

as I understood what Mr Heerey put to me in this

regard was that there are two contempt of court

principles operating: one is the risk that persons

involved in the litigation as witnesses or jurors

may be influenced, and certainly the Full Court in

the passage you have just referred to addresses that

matter.	But he argued that there is a separate and
quite independent point that does not depend upon

the risk of influencing jurors or witnesses. It

is some broad principle which, at least in his

submission, precludes the publication of material

bearing upon the issues that are the subject of

litigation.

MR GILLARD:  Yes, I accept that that is how he is putting it,

Your Honour, but we say -

HIS HONOUR:  I just want to take it in two steps with you.

Now, that principle may or may not be a good one and

no doubt you will argue that it is not, but does the

Full Court direct its attention specifically to that

second point?

C3Tl8/l/RB 25 9/9/88

MR GILLARD: In our submission it does, Your Honour, because His Honour Mr Justice Ormiston seems to proceed to

consider that and the Full Court then says that

they agree -

in the context of a dispute ..... there is no

serious likelihood of the plaintiff having

its case heard or determined unfairly.

Now, that is a very general observation but we would

submit that Mr Heerey's third category - or

Lord Diplock's third category leads to that - it is

not Mr Heerey's third category; he would like to

adopt it - Lord Diplock's third category leads to

that final conclusion, that there is a degree of

unfairness to a plaintiff who is placed in this

situation.

Now, could I just take Your Honour to how Lord Diplock treated it. If one looks at what he

said at page 309 he says, this is at paragraph C:

thirdly, that once a dispute has been

submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to the law.

Conduct which is calculated to prejudice any

of those three requirements or to undermine

the public confidence that they will be

observed is contempt of court.

Now, what Lord Diplock is saying, that there be"no

usurpation by any other person of the function of that

court to decide it according to law." Now, the

classic example, Your Honour, of course is where

somebody else, say an investigative tribunal, looks

into some matter and nay make some findings, even

they be in a non-curial tribunal, which will have

the effect of - a finding which is also in issue in

the court and indeed a classic example of that is

the decision of Mr Justice Kaye in WATTS V HAWKE

and DAVID SYME, (1976) VR 707. Mr Watts sued Mr Hawke

and Mr Hawke evidently made a complaint to the

judicial coIImlittee of the Australian Journalists

Association about the plaintiff's, who was a journalist,

actions and they were going to have an inquiry and

Mr Justice Kaye restrained them because he said that

the issues you are going to decide are the very types

of issues that will be decided in the defamation.

Now, that is a classic example. Of course I do

accept that Lord Diplock goes a little bit further

than that, but could I go across to his suIIm1ary at

page 310, paragraph G:

C3Tl8/2/RB 26 9/9/88

MR GILLARD (continuing):

In my view, these cases support the proposition

I have already stated: that contempt of court in relation to a civil action is not

restricted to conduct which is calculated

..... to prejudice the fair trial of that

action by influencing, in favour of one party

or against him, either the tribunal by

which the action may be tried or witnesses
who may give evidence in it; it extends also

to conduct that is calculated to inhibit suitors

generally from availing themselves of their

constitutional right to have their legal

rights and obligations ascertained and

enforced in courts of law, by holding up any

suitor to public obloquy for doing so.

Now, can I just emphasise the words "for doing

so". Now, that is not this case. There is nothing

in this programme, as I understand it - I have

only been reading this case since 1 o'clock today,

Your Honour - and what Mr Justice Ormiston in

the Full Court said was that there is no reference

in the second proposed programme,to the first

programme, or more importantly, to the proceedings.

Then the Full Court do point out that our clients

would be foolhardy in the extreme if they were

silly enough to do anything by referring to it.

Can I go back, Your Honour, then, to what the

Full Court did say at page 4.

We think it is extremely unlikely that the

television defendants would be so foolhardy
as to take the risks inherent in such

conduct, especially when we conceive that

there would be little incentive for them

to do so. As the learned Judge pointed out,

"the proposed programme does not in terms deal

with the proposed action, or refer to it,

although there was a brief reference in one

piece of promotional material, but that is

not presently relevant." Because there is no

real risk of serious interference with the

administration of justice there is no sufficient

fear to justify an injunction for the purpose

of preventing a contempt of court.

Now that passage also tends to underline what I

have put to Your Honour, that the Full Court did

not overlook the submissions put by my learned

friend. Your Honour, the Lord Diplock principle

is only applicable where you propose in some

later publication to expose the suitor for doing

so. Now, one would expect a classic example of

that would be where.you would have, in this later

publication, a reference that a writ has been

C3Tl9/l/MB 27 9/9/88

issued and then proceed to damn the plaintiff in

it. Now, that, in our submission, might be a

classic example of - - -

HIS HONOUR:  Say, for instance, someone took action against

the newspaper or a television programme over some

particular incident.and the newspaper or television
programme decided to run one or more programmes

about this person, but about that person's private

life, no direct reference to the litigation but

if it could be established with the intention of,

as it were, daroning that person in the eyes of the

public, and it had been well known that that person

was a litigant in - let us say the litigant was a

public figure in some action that was due to be
heard before the court at a later stage. It might
not be an answer to say that the suitor was not

held up to public obloquy for doing so, it might

be enough just to show, if it could be shown, that

the purpose of the programme was to influence the

litigation in the way that I have indicated.

MR GILLARD:  Yes. Well, I would think, with respect, it

would be clearly contempt because it would be going

directly to the very issue, namely, the reputation

of that plaintiff and to proceed to damn him in the

eyes of the public and, therefore, potential

witnesses and potential jurors.

HIS HONOUR: 

I was thinking though of a programme which did

not touch upon the issues that were the,subject
of the litigation but perhaps referred to some

aspect of the plaintiff's conduct in such a way

that it is likely to make people think that he

really was not justified in the action that he was

bringing or was not a person of such character

that damages are likely to be justified.

MR GILLARD: Well, it could only apply, in our submission,

if in fact what was being said about him went

directly to some issue in the hearing.

HIS HONOUR:  I wonder about that, but the point does not

arise here, I suppose.

(Continued on page 29 )

C3Tl9/2/MB 28 9/9/88

MR GILLARD:  No, I do not think, with respect, it does, unless

Your Honour is saying it might dissuade him because

of his fear of going into a court by something that

has happened, and even though it would not be

relevant to any issue in the proceedings it may

dissuade him from continuing with his action.

HIS HONOUR:  No, I was not think of that. I was thinking

of the effect it might have upon the persons who

saw the television programme and who might, as it

happens, turn out to be jurors or witnesses.

MR GILLARD:	Yes.
HIS HONOUR:	But there are enough problems with this without inventing any.
MR GILLARD:	I may say, Your Honour, I would be most surprised in the light of the history of this litigation
that one could deter the plaintiff from proceeding
with litigation.  Your Honour, it may be that
that point is taken up by Lord Diplock, Your Honour,
in the next part of what he says:

or by exposing him to public and prejudicial

discussion of the merits -

well, no, actually it does not -

merits or the facts of his case before
they have been determined by the court or

the action has been otherwise disposed of.

So Your Honour will see that this principle put

forward by Lord Dip lock - and, as I say, I have
only been in this case since 1 o'clock, Your Honour,

so I cannot say whether anybody else has agreed

with Lord Diplock.- but if the,Lord Diplock principle -

and if it does represent the law, then in our view

it does not apply here and it should be - well,

clearly that is how he states the principles and

they have no application, in our submission,

in this action.

Your Honour, we would submit that it does

not apply in any event, but we do say that a proper

reading of the Full Court's reasons on pages 3 and 4

do demonstrate that this matter was in their minds.

It was clearly argued before them because I have

been given a copy of the submissions. It seems

to have been argued before Mr Justice Ormiston,

who appears to have taken it up and, in our submission,

has been considered and dealt with. Now, Your Honour,

one would expect that in considering what

Lord Diplock had said, that in the end it comes

back to a question of whether you are going to

prejudice the end result. In our submission, one

C3T20/l/MB 29 9/9/88

cannot say, assuming even these principles applied,

that one would say that by showing this programme

now you would prejudice a trial which will take

place a considerable time into the future.	I am
not quite sure where anybody got the idea you

would get a defended jury case on in our court

in February next year unless - - -

HIS HONOUR:  I thought it was in the judgment of the

Full Court?

MR GILLARD:  Yes. I am not sure where that came from,

Your Honour, because unless they get a special hearing, I would be most surprised if one could get a jury trial on February next year unless you

got a bit of priority and, of course, there are

some interlocutory matters that have to continue on, pleadings

and maybe	interrogatories, Your Honour, maybe
discovery.

MR HEEREY:	They are completed.
MR GILLARD:	They are completed? The discovery is completed,

Your Honour. We would submit also, that another

relevant matter to take into account with respect

to this point is the gap between the first programme

and the second programme - on any view that is about

five or six months now - and the gap between the

showing of the programme - and one 1might assume

the programme will be shown either this month

or next month and the likely trial of the action

having an effect upon this plaintiff when it goes

to trial.	We would submit that those gaps are
fairly substantial.	Now, Your Honour, it is

our submission that my learned friends have not

demonstrated that the Full Court went wrong.

It: ·.-was	an appeal from a discretion of
His Honour Mr Justice Ormiston.	They found that

he did not make any errors and, secondly, they

went on to say that if he did, with respect to

one possible finding of fact, nevertheless they

would have come to the same conclusion.

Now, surely my learned friend, when faced with an appeal in this Court would again have to

jump over the principles relating to an appeal

from a discretionary judgment. In our submission,

my learned friend has not demonstrated that

either the learned primary judge or the Full Court

have gone wrong.

(Continued on page 31)

C3T20/2/MB 30 9/9/88

MR GILLARD (continuing): And then, of course, one then has to

consider the next aspect. Not only does my friend have

to demonstrate he has got a special leave point - I am

sorry, that the Full Court went wrong, but he has also

got to demonstrate that it is a special leave point,

namely, a matter of general importance. In our submission,

that has not been established.

Now, Your Honour, it is a matter for Your Honour's

discretion,-this application. So, Your Honour, in our

submission, should take into account a number of matters.

I have put a number of matters already to Your Honour

that it is an appeal from the exercise of discretion,

an interlocutory matter. Mr Justice Deane, in the

HEINEMANN case did refer to a number of matters at page 467.

One consideration, His Honour said, was - this is at

page 467:

that the applicant has failed both at

first instance and in the Court of Appeal.

Well now, that clearly applies here. He did, again,

on that page, as I have already pointed out to Your Honour,

indicate that the applicant was seeking to invoke an

extraordinary jurisdiction which should only be

exercised in exceptional circumstances. He also took

into account a third matter, at page 467, line 17 - this

is the free speech point about the balancing between

free speech and one's right to one's reputation:

It is an ideal of our society that freedom

of speech and disclosure of information be not
unnecessarily or unreasonably curtailed. The

public interest of this country also requires

that the legal system and the courts comm.and

general respect. It appears to me that a
court should be slow indeed to make an

interlocutory order aimed at preventing

publication or distribution in this country

of a book which is freely available in other countries and which can readily and lawfully

be brought into this country by any person

returning from overseas.

Now, Your Honour, of course, that is not our

position but it does also make the point that Your Honour

raised with my learned friend that there has already been
an airing of one aspect of this which is the subject of
the writ and to that extent the public has been apprised

to some extent of the matters.

Your Honour, then it comes down to a question of

balance of convenience. My friend would have to persuade

Your Honour that the balance of convenience is in their

favour and, of course, as His Honour Mr Justice Ormiston

found and as the Full Court agreed with him that this was

a case where damages would be more than ample and could

C3T21/l/PLC 31 9/9/88

adequately compensate the plaintiff for any alleged

wrongdoing, it is also, of course, pointed out,

Your Honour, that we have gone on record as saying

that we wish to plead justification though, admittedly,

a justification on different shades of meaning to the

imputations put forward by the plaintiff.

Now, we submit, Your Honour, that, looking at the

balance of convenience before Your Honour and balancing
the very important issue of free speech and the right to

a reputation, damages is more than an adequate remedy

here and that that is a very good reason why Your Honour

should refuse this application.

Finally, Your Honour, my friend referred to the

POLLY PECK case and wished to say that they wish to

argue whether that is good law in this country. And I

may say this probably arises in a context of the rule
in BONNARD V PERRYMAN which Your Honour is no doubt

familar with, and that rule, of course - and it is a

prima facie rule according to Mr Justice Ormiston and

the Full Court holds or states that if a defendant

says, on oath, that he has a good defence then the normal

rule is that an injunction is not granted. Of course,

that is not an inflexible rule as has been pointed out

in this case.

Now, it cannot, as a matter of logic, follow that

if a plaintiff pleads his imputations and says that is
what the words mean that we complain about and the

defendant then swears his affidavit and says, "Well, I'm not ~oing ·to try and prove your first imputation because

thats nonsense and also we don't seek to prove it", that

it must therefore follow that they are entitled to their
injunction. It just cannot be so. And what we are

saying - and we would submit the POLLY PECK principle is

a good one and a logical one - is that if there is a

different shade of meaning on that particular matter
then we are entitled to plead it as being the true

imputation and also plead justification as to that.

T21 Now, this point is taken up by the Full Court and,

in our submission, they are clearly correct. It cannot

depend upon the way the plaintiff pleads for us to lose

our right to publish because we are not prepared to
swear an affidavit saying we are going to prove that

and it must be open to us, in our submission, to plead

a different shade of meaning - not a different topic,

a different shade of meaning and then say we are going

to plead truth to that, and that is what POLLY PECK

says. In the end, as we all know, the jury will decide

what these words mean and, of course, they will be

directed in that task by the judge after a consideration

of the various imputations that are being put by the

parties.

Now, it cannot be right that a defendant cannot

say to a jury, "That's not the true imputation that

the plaintiff has pleaded; we say there's a variation,

there's a shade of meaning different and we submit that

C3T22/l/PLC 32 9/9/88

in that meaning it's true." Now, we never know how the

jury arrive at their verdict and what imputations they

find and what they do not find, but it must always be open
to a defendant to be able to plead a different shade

otherwise the trial cannot work.

Your Honour, at the bottom of page 17 the Full

Court said, af_ter looking at the POLLY PECK case and

what it stood for - this is about line 20:

It was contended that the only plea of

justification open, in respect of false

innuendoes at least, is that the words

used were in substance and in fact true,

that is to say in substance that the

words were true in whatever ordinary

meaning is to be attached to them by the

jury at the trial. Upon this footing,

there was in the present case no effective

plea of justification at all, with the

result that the learned Judge's

discretion miscarried because he (wrongly

on this hypothesis) dealt with the case

upon the basis, critical to his ultimate
decision, that there was at least a

reasonable possibility that the words

complained of would be justified at the

trial.

And then they go on to say that it would be a rare

case to decide this as a question of law, whether

POLLY PECK was good law. Perhaps I should read that.

In the absence of exceptional circumstances,

we do not think that an application for

interlocutory injunction ..... is the appropriate

medium for a decisionaf the point of law or

pleading whether it is open to a defendant to plead his own ordinary meanings and to plead justification of them only. If the plaintiff wishes this point to be resolved in the present case, it should take out a summons	before the proper tribunal to strike out the	defence. It would be perhaps an exceptional
circumstance if it were impossible for this Court to decide the present appeal without
resolving the pleading point, although we point out that there is perhaps room for
argument as to the proper construction
of the critical part of the defence as at present constituted, and point out also that, although Mr Sher repeatedly said the pleadings have now closed, the fact is that at the close of his argument leave to make
a material amendment to the statement of
claim had been granted by this Court only a
few days earlier. What matters most on the

C3T22/2/PLC 33 9/9/88

application for injunction is not so much

the technical result of the incomplete

pleadings as a fair conclusion as to the

real intentions of the defendants and

their advisers as to justification.

However, whether or not all three of the

propositions in the POLLY PECK case are correct ,

the appellant has failed to demonstrate to our

satisfaction that the learned Judge was wrong

in concluding that the television defendants

and their legal advisers intended to put

to the Judge and the jury that the only false

innuendoes were those ,asserted by those

defendants in their present defence, and

intended to put also that those false

innuendoes were true in substance and in

T22	fact.
Your Honour, in our submission, the POLLY PECK

case is good law but even if, assuming that it was not,

nevertheless,the court has considered all the matters

and, in our submission, it has not been demonstrated

that they went wrong in the application of the correct

principles and, in our submission, Your Honour, the

application should be dismissed.

HIS HONOUR: Yes, thank you, Mr Gillard. Mr Heerey?

MR HEEREY: Briefly, Your Honour. Firstly, as to the question

of discretion: in our submission, a finding as to

whether a contempt has been con:miitted or threatened

does not involve the exercise of a discretion. There are

passages in HINCH' s case - and I will just give Your Honour

the references to them: Justice Wilson, page 566,

first column, lines A to B; the same Judge at page 568,

the first column, A to B; and Justice Gaudron, page 586,

second column, line D - and in our submission, therefore,

the issue falls to be determined in accordinance with

the ordinary WARREN V COOMBES' principles. And we

refer also to the judgment of Justice Deane in HINCH

at page 571 in the first column at line F where His Honour

dealt - passing with the question of injunctions for

threatened contempt which, of course, were obiter

but none the less, we would submit respectfully, to be of

great weight, His Honour there said that a finding

that a publication would constitute a contempt would

lead - in His Honour's words "no acceptable reason

why an injunction should not be granted."

Now, Your Honour, as to the analysis of

Mr Justice Ormiston's judgment and the Full Court's

judgment by our learned friends, we do not want to read

it all over again, we would simply submit that on a

fair reading of it, both at first instance and in the Full Court, Their Honours only turned their minds to the second Diplock head of contempt but, in any event,

C3T23/l/PLC 34 9/9/88

we would say, if inferentially they did deal with the

third one, well, we would respectfully say they were

wrong.

As to Lord Diplock's speech, if I could just take

Your Honour to page 310. There are two passages in which His Lordship really makes the same point which

is of importance to our case. About half-way between

lines Band Con page 310 His Lordship says:

It to have recourse to civil litigation

were to expose a litigant to the risk of public

obloquy or to public and prejudicial

discussion of the facts or merits of the

case before they have been determined by the

court, potential suitors would be inhibited

from availing themselves of courts of law

for the purpose for which they are established.

Now, "potential suitors" is obviously somebody

different from a litigant and, in our submission, the

point that is being made there is that if somebody sues

for defamation or any other cause of action and launches

his action properly in the courts and then the
defendant runs his case in the media, the connnunity at

large will say, "Well, what's the point going to court?

What's the point of going to law and complaining about

what they did when they go and use the far more

powerful medium, far more interesting than the courts

and law reports, what is said on the television.

What's the point of doing it? Going to law is just a

waste of time." And His Lordship really repeats the

point again at line G on the same page where, about

half-way through that paragraph, he says:

it extends also to conduct that is calculated

to inhibit suitors generally from availing

themselves of their constitutional right to

have their legal rights and obligations

ascertained and enforced in courts of law,

by holding up any suitor to public obloquy

for doing so or by exposing him to public

and prejudicial discussion of the merits or

the facts of his case before they have been

determined by the court.

T23 HIS HONOUR: Mr Heerey, I do not think anyone has told me, and

I imagine it is in the papers somewhere, but what is the

timing as between the proposed showing of the second

progrannne and the connnencement of proceedings or

the seeking of an injunction?

MR HEEREY:  The proceedings connnenced first. The time frame was

the first progrannne was broadcast on 6 April, then the

writ was issued on 15 April and we received the tape

showing the proposed contents - - -

HIS HONOUR:  I am sorry, you did give me that sequence. I

was not sure that it had actually covered the point

C3T24/l/PLC 35 9/9/88

that I just raised with you. It is right to say
that the writ had been on foot for some days before

your client became aware that there was a proposal to

show a further progrannne?

MR HEEREY:  I should be clear about that, Your Honour. The

first progrannne itself indicated that there was likely

to be another programme and it was said at the meeting

that followed shortly after the first programme that

there probably would be a second programme. Then there

was the writ, and there is some evidence in the

50 or so affidavits that were floating around that the

preparation of the second progrannne was both before

and after the writ was issued. For example: the

accountant from Perth, Mr Cooper, his affidavit indicates

that he was interviewed at a time which would have been

after the writ was issued. So, what we say is the

relevant time to look at in considering whether there

is a contempt is when the offending material is

published and, in the case of a threatened contempt,

when it is likely to be published. And in this case,

although there had been some preparation before· the

writ was issued it was well and truly after the writ

was issued that they had their progrann:ne completed and

said, "This is what we want to publish".

While I am on the point of that, Your Honour,

would it be in order if we were to have the video tape

sent up to Canberra? We could make appropriate arrangements

with the Registrar if Your Honour wished to view it.

HIS HONOUR:  Well, it may be a bit tricky in the absence of

counsel.

MR HEEREY:  It was shown on a number of occasions before the

primary judge and the Full Court and, indeed, the Full

Court took the video away with them when they reserved
their decision. It is - the material that is sued on,

it is not only the words that were said but the images.

HIS HONOUR:  Yes. Well, in part, in depends upon the urgency

of the matter and when I had in mind handing down a

decision and perhaps I can say that now, I had in mind

handing it down on, say, 2.15 on Monday, which might

make it a little difficult to - not the viewing of the

video itself. My only concern is whether there is

anything that is likely to arise from the viewing of

the video that I might want, in turn, to raise with

counsel. That is my only reservation about seeing it

at this stage, Mr Heerey.

MR HEEREY:	Yes.
HIS HONOUR:	I take it the transcript appearing in the schedule E

to the statement of claim is a complete transcript?

MR HEEREY:  Yes, it is connnon knowledge.

C3T24/2/PLC 36 9/9/88

HIS HONOUR:  And I do not suggest for a moment that it

necessarily conveys all the nuances that the programme

itself would convey.

MR HEEREY:  Yes. The video tape is, perhaps, of importance

of showing the dramatic impact and the presentation of

the whole programme.

T24 HIS HONOUR: I can probably draw that conclusion for myself.

MR HEEREY:  Yes, Your Honour. We are grateful to Your Honour

for hearing us at such short notice and we would be the

last ones to want to cause any unnecessary - - -

HIS HONOUR: Well, it is largely whet counsel wish me to do - all

I am suggesting is that it may possibly stand in the way

of handing down a decision at 2.15. That may not be

crucial. The matter has been around for some time now.

I think I will put it back in your court, Mr Heerey.

Do you wish me to see the video?

MR HEEREY:	Yes, we do, Your Honour, yes, certainly.
HIS HONOUR:	Mr Gillard, do you object?
MR GILLARD:	Your Honour, I would need to take instructions. I

have never seen it myself, Your Honour, and I do not

know whether I would be saying anything about it.

Yes, we do not oppose that, Your Honour.

HIS HONOUR: Well, Mr Heerey, is it suggested that there be

some representative of the parties present or are you

just inviting me to look at it for myself?

MR HEEREY:  If the latter course is a convenient one, we would -

HIS HONOUR: Well, it is convenient so far as I am concerned if

counsel have no objections.

MR HEEREY: Yes, Your Honour.

MR GILLARD: Yes, we are happy with that, Your Honour.

MR HEEREY: Well, those are the submissions we would wish to

make in reply, if Your Honour pleases.

HIS HONOUR:	When is that likely to get here?
MR HEEREY:	We can get it up on the first plane tomorrow morning

I would imagine. Perhaps if I could see the Registrar and make some arrangements about that.

HIS HONOUR: All right, thank you.

MR HEEREY:	Yes, they are our submissions, if Your Honour pleases.
HIS HONOUR:	Thank you, Mr Heerey. As I indicated a moment ago,

my intention was to hand down a decision at 2.15 on

C3T25/l/PLC 37 9/9/88

Monday. I may need to revise that in the light of

any problems there might be in seeing the video but
I could certainly deliver judgment by Tuesday morning and it might be safer to say that I will give judgment

at 9.30 am on Tuesday.

Mr Gillard, are you in a position to give any

undertaking on behalf of your client that there will

be no broadcast or publication of the second programme

before I hand down a judgment on Tuesday?

MR GILLARD:  I will just get some instructions on that,

if Your Honour pleases. Yes, Your Honour, I am

instructed to give that undertaking.

HIS HONOUR:	Thank you.
MR HEEREY:	I am instructed to give a cross-undertaking as

to damages.

HIS HONOUR: Well, I am not making any order, Mr Heerey, but if

you would like to give Mr Gillard an undertaking, well,

good luck to you.

MR HEEREY: Well, it is usually sought - extracted when an

undertaking which has injunctive - - -

HIS HONOUR:  But I simply make no order. I simply reserve my

decision and indicate that I will hand down judgment

at 9.30 am on Tuesday.

MR GILLARD: If Your Honour pleases.

MR HEEREY:  If Your Honour pleases. May we express our thanks

to Your Honour for hearing the matter.

AT 5.03 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 13 SEPTEMBER 1988

C3T25/2/PLC 38 9/9/88