Nationwide News Pty Ltd v Wills

[1991] HCATrans 339

o/ ~ ~ -~·~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S91 of 1990

B e t w e e n -

NATIONWIDE NEWS PTY LTD

Applicant

and

ANDREW GARRY WILLS

Respondent

Directions hearing

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 21 NOVEMBER 1991, AT 9.36 AM

Copyright in the High Court of Australia

Nationwide(3) 1 21/11/91

MR T.E.F. HUGHES, QC:  May it please Your Honour, I appear

with my learned friend, MR G. O'L. REYNOLDS, for

the applicant, Nationwide News. (instructed by

Gallaghers)

MR D.F. JACKSON, QC:  Your Honour, I appear with my learned

friend, MR M. WALTON, for the respondent,

(instructed by the Commonwealth Director of Public

Prosecutions), and with my learned friend,

MR D.J. ROSE, for the Attorney-General for the

Commonwealth. (instructed by the Australian

Government Solicitor)

Your Honour, before my learned friend starts,

could I hand Your Honour two documents, the first

and larger consists of a document in which it sets

out various facts that have been agreed and other

matters. May I just indicate to Your Honour what

the various sections of it are?

HIS HONOUR:	Yes.
MR JACKSON:	The first paragraph of it, Your Honour, is

simply an introductory matter we took the liberty

to set out in that way. Your Honour will then see

the letter A immediately under that. That is an

introductory matter for the 12 paragraphs that

follow which are agreed facts and Your Honour will

see the parties do not agree about the relevance of

them necessarily but agree upon the base facts.

From there, one goes to page 6 and in

paragraph B that is a statement which I, on behalf of the respondent, now make. And Your Honour will

see that we have left blank the questions.

HIS HONOUR: Yes. Could I ask you this, Mr Jackson: does

this document accord substantially with a draft

document that was handed to the Registry and

transmitted to me during the course of last week?

MR JACKSON:  Your Honour, two documents, I think, came to

the Court, one from each side. This document, it

is a -

HIS HONOUR: It is a composite.

MR JACKSON:  - - - composite, Your Honour. The form of it,

broadly speaking, is to take the other side's draft

and then from there there have been movements on.

HIS HONOUR:	Yes.
MR JACKSON:	Your Honour, as to the form of questions, the

second document I gave Your Honour consists of a

draft by us of some questions, and there are two

Nationwide(3) 21/11/91

aspects of it to which I should direct attention.

The first is that these questions are questions on

the assumption for which our learned friends

contend that questions going beyond section 92

should be raised in the case. Now, we think

question 1 or any question in the form of

question 1 is unnecessary, but I will come back to

that, Your Honour, or my learned friend might wish

to mention it.

HIS HONOUR: Question 1 is in a form very similar to the

question that was stated in the special case on the

last occasion.

MR JACKSON: Indeed, Your Honour, yes.

HIS HONOUR:	It had no specificity about it if I remember.
MR JACKSON:	No, Your Honour.  I am not advocating

question (1).	It is there by way of backstop so
far as we are concerned.	So far as question (2) is

concerned, that is our version of a proposed

question on section 92. There is a difference

between us in relation to the form of the question.

The difference consists of two aspects, Your

Honour. The first is that our learned friends

would wish to have in the third and fourth lines

the expression read "to the printing, publication

and distribution". The second change is they would

wish to have the words "at Sydney" deleted.

Now, Your Honour, as to question (3), it

seems, we would submit in due course, clear enough

from the transcript of what went on on the previous

occasion when the matter was before the Court that

there was not contemplated at that point a question
in relation to the implied guarantee because that

issue had been argued by all except, I think, the

Commonwealth. But it would seem, Your Honour,

perhaps an undesirable thing, in the end, to have

an implied guarantee issue decided by reference to

facts which were different from those upon which

the section 92 question was decided. So, we will

accept the, perhaps desirability, if I can put it

that way, of an implied guarantee question.

The form of implied guarantee questions set

out in (3) is similar to that in (2). We have the same differences with our learned friends on those questions.

HIS HONOUR:  Thank you. But you would prefer to see

question (1) omitted?

MR JACKSON:  Yes, Your Honour.

Nationwide(3) 3 21/11/91

HIS HONOUR: Because, as you see it, question (3) raises the

one point argued on the previous occasion, the implied guarantee, and question (2) raises the point that is now desired to be raised.

MR JACKSON:  Yes. Your Honour, it seems fair to say,

however, that the argument raised on the other side

on the previous occasion did go beyond the implied guarantee point in the sense that peace, order and

good government was mooted, albeit briefly.

HIS HONOUR: Yes. Yes, Mr Hughes?

MR HUGHES:  In our submission, Your Honour, it would be

appropriate to retain question (1) because it is
the primary question that came to this Court in the

first place on the Federal Court's special case.

HIS HONOUR:  Is it now intended to raise any question

additional to the questions posed by (2) and (3)?

MR HUGHES:  Can I answer Your Honour in this way: we will

seek leave at the hearing before the Full Court to

argue briefly some additional matter going to the

question of the implied guarantee. One point that

was not, as I recall from reading the transcript,

specifically canvassed on behalf of the applicant

at the previous hearing was the point based on

Crandall v State of Nevada.

HIS HONOUR:	What is that point?
MR HUGHES:	That the citizens of the Commonwealth have a

right of access which we would say includes

communication between States and Territories,

including the National Capital. It is a point that

has been mentioned at least twice in judgments of

this Court, most recently, I think, in Hotchkiss v

Pioneer Express.	I hope that answers Your Honour's
question.	The main thrust of our argument, of

course, will be on the section 92 point but, by

leave, we would wish to add something additional.

HIS HONOUR:  So, what you are saying is if question (1) is

retained, you will have a framework within which

you can present that argument, notwithstanding that

you concede that you would need leave, having

regard to the history of the matter?

MR HUGHES: Yes, Your Honour, and I freely avow that

question (3), as it is framed or as we would wish

it to be framed, that is to say, subject to the

amendments that my learned friend, Mr Jackson, has

adumbrated on our behalf, as it were, may permit me

to argue that particular point that I mentioned. I

do not propose to say anything more on the question

of power. The proportionality argument has been

Nationwide(3) 4 21/11/91

put and I wish to leave that there. Also, I do not

wish to seek leave to reagitate the construction

point which has been put to the Full Court. So

that my argument would be limited in the ways that

I have indicated.

Now, the reasons why, if I may briefly state

them, we propose the amendments to the second and

third questions, are these: the agreed facts as

recorded in the document handed up to Your Honour

this morning, set out, as it were, a network of

facts relating to the printing, the publication and

distribution and we submit that the word

the distribution of the newspaper in the various of

"distribution" should be added in so as to make it

quite clear that we rely on the interstateness part

of the argument on everything that is set out in

the agreed facts.

So far as the proposed omission of the words

it deals indifferently with all forms of publication, interstate or intrastate, it is not possible to consider its validity by reference

"at Sydney" in each of the second and third
questions, we would put this for Your Honour's
consideration: if section 299(l)(d)(ii) is

inseverable, and notwithstanding section lSA of the

merely to a particular publication in Sydney

although the charge - - -

HIS HONOUR: Is founded on - - -

MR HUGHES:  - - - is founded on publication at Sydney and,

also it should be said, having regard to the

particulars, "in the Australian Capital Territory".

But the thought underlying our opposition to the

use of the words "at Sydney" is that there should

not be any particular focus on one publication,

given the indifferent method of application of the

section, if it falls to be considered under

section 92 or the implied guarantee. And, of

course, the elimination of those words, as far as

one can see, will not deprive the opposition of any

argument that is available to them.

HIS HONOUR:  Yes. Mr Hughes - and this question I direct

equally to Mr Jackson - there is one technical
difficulty, is there not, in my reserving these

questions? I have always considered reservation of

questions to be appropriate when there is a

proceeding before a Justice, either the action or

an interlocutory proceeding, in relation to which

it is necessary for that Justice to decide the

question and what the Justice does is then reserve

that question for the consideration of a

Nationwide(3) 21/11/91

Full Court, declining himself to consider it or to

determine it.

MR HUGHES:  In view of that difficulty, the thought that has

occurred to me - and I have not discussed this with
my learned friend, perhaps I should have - is that

it would be easy enough to ask the Federal Court to

restate the case so as to embrace these - - -

HIS HONOUR:	Of course, I could state a case myself.
MR HUGHES:	Yes.
HIS HONOUR:	Now, I think it would be possible for the

parties to draw up a case in the form in which the

documents have been presented to me.

MR HUGHES: Well, that could easily be done.

HIS HONOUR: After all, it is mainly a matter of protecting

Mr Jackson in terms of relevance of facts stated.

Well, after all, the stating of facts can never

operate as a bar to an objection to their

relevance.

MR HUGHES:  No.

HIS HONOUR: Particularly, in the constitutional - - -

MR HUGHES:  Yes, quite.

MR JACKSON:  Your Honour, we do not mind. Your Honour,

questions - - -

HIS HONOUR:  I mean, it is a very technical objection I have

raised and I am conscious that you will label me as

a pedant for raising it.

MR JACKSON:  No, no, Your Honour. Your Honour, I always

look at section 18 as something of a lucky

dip - - -

HIS HONOUR: Yes, you are quite right.
MR JACKSON:	- - - and wondering what will emerge from it.

Your Honour, we do not really mind about the form

of it and it is a question - Your Honour, I put it

this way:	I really do not mind in what way it
is - - -

HIS HONOUR: Well, I think it would be preferable if we did

it in the form of a stated case and I will state

the case which, in effect, will override what has

happened previously.

MR HUGHES:  Yes. Well, this document will need very little

amendment.

Nationwide(3) 6 21/11/91

HIS HONOUR:  I would not think it would need much alteration

at all.

MR HUGHES:	No.
HIS HONOUR:	Now, Mr Jackson, do you want to add anything to

your objections to the inclusion of "distribution"

and "at Sydney" because I am minded to include them

because I do not think their inclusion is going to

occasion damage to your interests?

MR JACKSON: Well, Your Honour, all I would say about it -

could I just hand Your Honour a document - I am

afraid it has got some handwriting on it - which

really shows the differences between the two

things?

HIS HONOUR:	Yes.
MR JACKSON:	Your Honour, could I just say, if you look at

what I have got as question (1), it is - - -

HIS HONOUR: (l)(b), in particular?

MR JACKSON:  (l)(b) and (l)(c), Your Honour. Now, that is

the way in which the questions would read as my

learned friend would have them framed. They really

go a little beyond, in a sense, the way in which we

would want to have them framed. If I could put it

in this way, Your Honour: if Your Honour looks at

(l)(b), it says:

printing, publication and distribution for

sale -

it leaves out, of course, the words "at Sydney".

The focus of the charge, in effect, in the way it

is framed, is "printing and publication" and we

would say "at Sydney" and, "distribution" gives it

a different aspect altogether.

So, Your Honour, if Your Honour were minded to

do it, then the way in which one would do it, we

would submit, would be by framing the questions as

double questions, as it were, and that is why

Your Honour will see the introductory part of each

because paragraphs 1 to 12 are the agreed facts,
paragraph 13 is the limitation on proof, in effect,

that we are self-impose - - -

HIS HONOUR:  When you say "double questions", do you mean if

I am minded to accede to Mr Hughes' suggestion,

then we should have, as it were, two versions of

(b), two versions of (c)?

MR JACKSON:  Yes.

Nationwide(3) 7 21/11/91

HIS HONOUR:  So, we would end up with paragraphs (d) and (e)

as well?

MR JACKSON:  Well, no, Your Honour. What we would end up

with - - -

HIS HONOUR:  What,(b)(i), (b)(ii)?

MR JACKSON: - - - in effect, if I could leave aside (a) for

the moment, ( 1) ( b) , ( 1) ( c ) ; ( 2 ) ( b) , ( 2 ) ( c ) .

HIS HONOUR:	Yes, certainly.
MR JACKSON:	Your Honour, the only other thing I want to say

was in relation to the question - - -

HIS HONOUR:  Mr Hughes would not have any objection to that?

MR HUGHES:  No. I notice my learned friend has put in

"distribution for sale".	My draft had just
been - - -

HIS HONOUR:  Yes, that is right, you did not have "for sale"

in.

MR HUGHES:  I am sorry, I should have handed up to

Your Honour - - -

HIS HONOUR:  Yes, I was wondering whether Mr Jackson's

handwriting is deliberately illegible.

MR JACKSON:  Your Honour, I am sorry, I did add that and it

comes from -

HIS HONOUR:  It comes from the statement of facts actually.

MR JACKSON: Yes, it does, Your Honour.

HIS HONOUR:  Well now, what do you want to do about that,

Mr Hughes?

MR HUGHES:  I do not mind, Your Honour.

HIS HONOUR:  Well, it would be better to have consistency

between the statement of facts and the question.

MR HUGHES: Yes, Your Honour, I see the force of that.

HIS HONOUR:  And there would be no difference between - in

terms of your argument, would there?

MR HUGHES:  No, Your Honour.

HIS HONOUR: Well, we will retain "distribution for sale"

and we will accede to Mr Jackson's suggestion that

we have five paragraphs instead of three.

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MR HUGHES: If Your Honour pleases.
HIS HONOUR:	So that the question is stated in a form

suitable to Mr Jackson and in an alternative form

suitable to you.

MR HUGHES:	Yes.
MR JACKSON:	Your Honour, I am sorry, when Your Honour said "five paragraphs", does that include a question (a)
in each case?
HIS HONOUR:	Well, certainly. We would make it six. Yes,

six.

MR JACKSON: Six, yes.

HIS HONOUR:  And it means, I should say explicitly, that I

would retain (a) to cover the eventualities that

Mr Hughes mentioned.

MR JACKSON:  Yes. Your Honour, assuming the case is stated

in that form, might we make a submission,

Your Honour, in relation to the question of written

submissions?

HIS HONOUR:	Yes.
MR JACKSON:	Because it would be desirable, in our

submission, to have, at some suitable point before

the commencement of the hearing, an indication of

the case. Might I, in that regard, Your Honour,

suggest that written submissions be filed - - -

HIS HONOUR: That is comprehensive written submissions?

MR JACKSON:  Your Honour, I would leave that to Your Honour,

really.	So far as we are concerned, what we really
want to know is what the case is.	How detailed
that isI would leave to Your Honour.

HIS HONOUR:  Yes.

MR JACKSON:  Your Honour, by noon on 27 November on the part

of my learned friend's side and in response, from

our side, by the end of Friday, the 29th?

HIS HONOUR:  I think in the time available, it would not be

possible to require the parties to provide

comprehensive written submissions.

MR JACKSON:  No, Your Honour. Your Honour, I really would

like to know what in the end will be said.

HIS HONOUR:  Certainly. I will direct that submissions be

filed and served by the parties and I will

ascertain from Mr Hughes whether the time schedule

Nationwide(3) 9 21/11/91

that you have just indicated would be acceptable to

him.

MR HUGHES:  I would rather like to have until the end of the

day on the 27th, Your Honour.

MR JACKSON:	I would not worry
HIS HONOUR:	Yes, "on or before", Mr Jackson would not

object to that.

MR HUGHES:	Yes.
HIS HONOUR:	And as I say, I do not contemplate, having

regard to the time frame, that they would need to

be comprehensive written submission but they would

need to be submissions that give a clear picture of

the case and the arguments to be presented.

MR HUGHES:	Yes.
HIS HONOUR:	So, I will direct accordingly that, to your

side, Mr Hughes, the submissions be filed and

served on or before 27 November and, as far as your

opponents are concerned, filed and served on or

before 29 November.

MR HUGHES: If Your Honour pleases, yes.

HIS HONOUR:  And, in the meantime, the parties will present

to the Registry a stated case in the form agreed

upon and I shall sign it. The Registry can notify

whoever has the carriage of the papers for the signed.

Now, I shall be out of Sydney and not in

Canberra on Thursday and Friday of next week, so I

think it would be desirable if the parties could

submit a stated case to the Registry in Sydney for

signature by me and if it is submitted say, on

Wednesday morning of next week, I shall make it my

business to sign it on Wednesday.

MR HUGHES:  May it please Your Honour.

MASON CJ: Anything else, Mr Jackson?

MR JACKSON:	No, Your Honour.
MR HUGHES:	No, Your Honour.
HIS HONOUR:	The Registrar has reminded me that

counsel appear to be remarkably removed from

matters of practical importance.	Do you want me to
certify for costs?

Nationwide(3) 10 21/11/91

MR JACKSON:	No, Your Honour.
MR HUGHES:	No, Your Honour. There is an arrangement, is

there not?

MR JACKSON: There is.

HIS HONOUR:  There is an arrangement, is there?

MR JACKSON: That accounts for the relaxation.

MR HUGHES:  The absence of any reference to that practical

matter was not due to forgetfulness.

HIS HONOUR:  Very well.

MR JACKSON: Except, Your Honour, if it applies entirely to

solicitor and client costs.

HIS HONOUR: Well, I am not concerned with that.

AT 9.59 AM THE MATTER WAS ADJOURNED SINE DIE

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