Nationwide News Pty Ltd v O'Connor

[1995] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S17 of 1995

B e t w e e n -

NATIONWIDE NEWS PTY LIMITED

Applicant

and

DEIRDRE FRANCES O’CONNOR

Respondent

Application for removal of cause pursuant to section 40 of the Judiciary Act

DEANE J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 JUNE 1995, AT 9.31 AM

Copyright in the High Court of Australia

MR W.H. NICHOLAS, QC:   If the Court pleases, I appear with my learned friend, MR T.D. BLACKBURN, for the applicant.  (instructed by Blake Dawson Waldron)

MR G.D. BATES:   If the Court pleases, I appear for the respondent.  (of Mallesons Stephen Jaques)

DEANE J:   Yes, Mr Nicholas.

MR NICHOLAS:   Your Honours, we move on the motion dated 16 February 1995 for an order that the proceedings pending in the ACT Supreme Court be removed to this Court pursuant to section 40 (2)(a) of the Judiciary Act.  The motion is supported by the affidavit of Robert James Todd, sworn 23 February 1995.  Do your Honours wish me to read that affidavit?

DEANE J:   No, we have all read it.

MR NICHOLAS:   Your Honours, we have a copy of the article which is the subject-matter of the proceedings, if it would assist your Honours in understanding the nature of the claim that has been brought in the ACT.  Your Honours have seen attached to the affidavit of Mr Todd a copy of the statement of claim in which the issues are set out.  The defences, as your Honours appreciate, are those of qualified privilege and comment.  The respondent, Justice O’Connor, claims in respect of publication in all the States of the country and hence defences applicable to the several States have been raised in the defence.

TOOHEY J:    Can I just ask you a couple of questions, Mr Nicholas.  One is if the matter were removed, notwithstanding the fact that there are what I might call legal defences arising from decisions of this Court, the intention would be that the action in its entirety be removed and disposed of, what, by trial?

MR NICHOLAS:   Yes, your Honour.  Could I answer your Honour this way, if I may: what we would be submitting to the Court, that if you made the initial order removing it, then the next thing that we would be putting to you would be the appropriate step to take would be to remit it to the New South Wales Supreme Court where the matter would be tried by a judge and jury.  So we would be initially asking this Court to send it to New South Wales and have the trial conducted before it in that way.

TOOHEY J:   There is opposition to New South Wales from the respondent for reasons that are subject of correspondence.  Would the cross-vesting legislation permit this action to be heard by a supreme court of any State?

MR NICHOLAS:   Yes, it would.  The way we perceived it, your Honour, there are obviously a number of courses open to us to, I suppose, achieve the object that we were seeking.  We could have gone to the Supreme Court of the ACT under the cross-vesting legislation and made the application of the conventional kind.  That application, of course, would have been dealt with by a supreme court judge and threw up the problems which we say support the reasons for this application.  Also, there is no right of appeal if we were refused our application.  Then we would have no right of appeal from that decision.  That is the effect of the legislation.

Secondly, your Honours, it was open to us under the ACT Supreme Court Act to seek a trial by jury.  But once again, with respect, that would be a matter which would be dealt with initially, obviously, by a single judge of that court.  Again, we see it, throwing up the problems that give rise to this application.  And, your Honours, we would also say, with respect, that it is unsatisfactory that the ACT Supreme Court, even with a jury, should deal with the matter because, plainly enough, the trial judge will be called upon during the conduct of this case to deal with a number of issues and the likelihood is to deal with defences which are entirely in his domain.  So we would submit, with respect, that it is inappropriate for such a judge to be placed in that position in this case.  We might also say, with respect ‑ ‑ ‑

McHUGH J:   What is the basis of that objection to the judge?

MR NICHOLAS:   What is that, your Honour, sitting with the jury?

McHUGH J:   No, the judge deciding these issues.  What is the basis?  You seem to say there would be some embarrassment?

MR NICHOLAS:   Your Honour, there will be a number of issues that we would expect to be raised that will go to, I suppose, the material fit to go to the jury on matters such as malice, matters going to the conduct of the defendant publisher in relation to the claim for aggravated damages, the unjustifiable conduct.

McHUGH J:   Why cannot the judge of the ACT deal with it?

MR NICHOLAS:   He certainly can, with great respect, your Honour, but we would say the appearance with which we are concerned problem remains.  He is going to have to determine issues which we would say may very well give rise to embarrassment in doing that.

McHUGH J:   There is a new judge going to be appointed next week.  From what I know of it, it is probable that that judge has no connection with the plaintiff in the action.  Would there be any objection to that judge ‑ ‑ ‑

MR NICHOLAS:   The difficulty remains, as we see it, with respect, that you are having a judge of the same court presiding over a matter concerning a fellow judge and we would submit, with respect, that that carries with it the likelihood of giving rise to the apprehension that ought not to happen.  That is the whole basis for the application, with respect, your Honour.  If the Court is of the view that the apprehension that we propound is unreasonable, the Court no doubt would decline this application.  But we would say that - your Honour, if I can just indicate this, with respect.  The problem that we see which brings us here this morning is one which Justice O’Connor also recognises, it seems.  She, in her letter, the letter of my friend, rather, at page 61 of the appeal book, she says this:

She feels constrained in making application for an expedited hearing in any jurisdiction, lest it should be perceived in the sensitive area in which she works (and were her application successful) that she had received some unfair advantage in consequence of her judicial status over and above other litigants competing for curial time.

Now that would suggest to us, with respect, that she, too, is very much alive to what I call the problem.

TOOHEY J:   But the problem is not necessarily or only solved by removal into this Court.  You are putting it to us on the footing that if there is no order for removal, then all these problems arise.  But if there is no order for removal, there is still scope for applications to have the matter transferred to another jurisdiction from the ACT.

MR NICHOLAS:   Yes, there is, your Honour, there is certainly that.

TOOHEY J:   So why should we remove it for the purpose of entertaining, as you have put it to us, a subsequent application to remit the matter, you say, to the Supreme Court of New South Wales.  I mean, why should we not leave those matters to be determined by the ACT  Supreme Court?

MR NICHOLAS:   Because you have the fellow judge dealing with the matter ‑ ‑ ‑

TOOHEY J:   I am sorry, let me interrupt you.  When I say the matter, I do not mean the conduct of the action; I mean the disposition of questions of jurisdiction and the like.

MR NICHOLAS:   Yes, the cross-vesting application, yes, I understand that, your Honour.  We say that that is unsatisfactory because we are asking a fellow judge to deal with a matter which we understand would be opposed and which we would suggest, having regard to recent judgments of that court in applications of this kind, our application has probably got less than 50 per cent prospects of success.  The court there, rightly or wrongly, take the view that the plaintiff is entitled to choose the place where he or she wishes to bring a proceeding and unless very good cause is shown why the matter should be transferred, it will not be.  Now, our concern, with respect, is that we have no right of appeal against that because the legislation precludes it.  So any application, if we lost such an application, putting aside the problems that we have referred to, then that is the end of the road as far as that is concerned, unless we came back to this Court, having made an application and failed.

So we see that we are in a bind, with respect, assuming our concerns are well founded ‑ ‑ ‑

TOOHEY J:   You would be in a bind also if the matter having been removed, and you having applied to this Court for remitter of the action to the Supreme Court of New South Wales, if this Court declined to make such an order for the reasons advanced by the respondent in the correspondence, where do we go from there?

MR NICHOLAS:   We would go one of two places, I suppose, your Honour, with respect.  One, this Court would do it, and it is certainly open to this Court, with respect, to deal with the matter, even with a jury, and I can think of a number who would be probably be quite pleased to do it.  That is one possibility.  The second, of course, is that you would be disposed to send it back to the ACT Supreme Court but, as we understand the scope of the Judiciary Act provisions with which we are concerned here, it may well be that this Court could be persuaded to direct that the matter proceed with a jury in that court.  So there are certainly a number of alternatives.

DEANE J:   One alternative would be, would it not, for an outside judge to sit in the Australian Capital Territory?

MR NICHOLAS:   Yes, that is so.  By that you mean a non-Federal Court judge?

DEANE J:   Yes.

MR NICHOLAS:   Yes, that would certainly be so.

DEANE J:   That has been done in a criminal trial there at present.

MR NICHOLAS:   Yes, that is true.

TOOHEY J:   That would require the commissioning of a judge, would it not, as opposed to exercise of cross-vesting jurisdiction?

MR NICHOLAS:   Yes, it may well, your Honour, because he would be coming into that court ‑ ‑ ‑

TOOHEY J:   Qua a judge of the ACT Supreme Court.

MR NICHOLAS:   Yes, he would have to ‑ ‑ ‑

TOOHEY J:   As is the case with Justice Carruthers, as I understand it, in the ACT at the moment.

MR NICHOLAS:   Yes, that is so, and I suppose - just thinking it through, your Honours, that the present situation is this that ACT Supreme Court judges are also judges of the Federal Court and I suppose it could be worked out to the effect that the particular individual is commissioned to sit as a judge of the ACT Supreme Court without the Federal Court connection.

DEANE J:   That is your only point, is it not, that the present judges of the Australian Capital Territory Supreme Court also hold commissions as Federal Court judges, because otherwise what Justice O’Connor says would indicate that the ACT Supreme Court was, to choose words carefully, a less inappropriate court than the New South Wales Sureme Court where you want to go.

MR NICHOLAS:   I think that is substantially right, with respect.  There is one other reservation to that, and I am reminded of it.  It is that from the ACT Supreme Court any appeal goes to the Federal Court.

TOOHEY J:   Yes, that is true.

MR NICHOLAS:   And I had overlooked that.  So we are back to that, in a sense, and we would submit that the appropriate - whichever route you take, the appropriate course is to have the matter ultimately dealt with in the New South Wales Supreme Court.

TOOHEY J:   Or another States.

MR NICHOLAS:   Or another State, certainly that, yes.

DEANE J:   Mr Nicholas, can I just follow on something that Justice Toohey put to you and that is it seems to me it could be close to being an abuse of this Court’s power to remove matters into this Court to remove a matter such as this for the purpose of taking it away from the selected venue and sending it to another venue.  In other words, that that is not really what the removal jurisdiction exists for.

MR NICHOLAS:   I accept that entirely, your Honour, but I had hoped I had made it clear that in the normal course one would move under the cross-vesting legislation, but we say we are in a bind because the person who will deal with that application will be, if you like, a Federal Court as well as an ACT Supreme Court judge and we are back to the inappropriateness ‑ ‑ ‑

DEANE J:   Can I just put to you another example.  The next type of case would be when somebody comes along and says, “I’m being sued in the ACT Supreme Court but its tremendously inconvenient.  The action should really have been brought in the Supreme Court of Western Australia.”  My reaction to that would have been, well, I can see the force in that but that is not what our removal jurisdiction exists for, to bring something to this Court so we can resolve a problem of forum non conveniens, for example.

MR NICHOLAS:   Your Honour, this application is not being put on the basis of forum shopping.

DEANE J:   No.

MR NICHOLAS:   But I understand what you are saying.  I would have thought, as other cases have shown in this case, dealing with section 40(4), it has made it very plain - I think your Honour Justice Toohey has made it very plain that this is not an exercise - this Court will not countenance forum shopping.  This case has the special feature about it which takes it away from the conventional case, we say.  The conventional cases have now been accommodated by the cross-vesting legislation in any event.  So I would have thought you would be very bold indeed to come to this Court in an endeavour to bypass the cross-vesting legislation.

But, your Honours, we are here because of the identity of the plaintiff which we say ‑ Ms O’Connor, I should say, which removes it from the ordinary.  We are confronted with the problems that we have indicated to your Honour in making either applications to the cross-vesting legislation  operate.  We are confronted with the problem in seeking a jury in the ACT Supreme Court as things stand at the moment.  And that is why we would submit, with respect, it is appropriate, first, it is necessary to deal with it in two steps:  one, to get it into this Court; secondly, subject to the Court’s views about the matter, to have the matter sent to New South Wales or this Court deal with it or the other way or some other court deal with it.

Those are our submissions, your Honours.

DEANE J:   Thank you, Mr Nicholas.  The Court need not trouble you, Mr Bates.

Notwithstanding the submissions of Mr Nicholas, QC, who appears for the applicant, the Court considers it would be inappropriate to order removal of the action into this Court.  Accordingly, the application for removal is refused.

MR BATES:   Costs, your Honour?

DEANE J:   Mr Nicholas.

MR NICHOLAS:   I cannot resist that, your Honour.

DEANE J:   The application is refused with costs.

AT 9.52 AM THE MATTER WAS CONCLUDED