North Queensland Newspaper Company Ltd v Kerrisk

[1992] HCATrans 115

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B35 of 1991

B e t w e e n -

THE NORTH QUEENSLAND NEWSPAPER

COMPANY LIMITED

Applicant

and

PATRICK WILLIAM KERRISK

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 APRIL 1992, AT 10.39 AM

Copyright in the High Court of Australia

Newspaper 1 10/4/92

MR J.J.J. GARNSEY, QC:  May it please the Court, I appear

with my learned friend, MR M.E. POPE, for the

applicant. (instructed by Connolly Suthers)

MR P.D.T. APPLEGARTH:  May it please the Court, I appear for

the respondent.	(instructed by Wilson Ryan &
Grose)

DEANE J: Thank you, Mr Garnsey.

MR GARNSEY:  Your Honours, this is an application for

special leave and it is brought on a question of general importance, namely the proper principles governing the application of the Newspaper Rule at

an interlocutory stage in proceedings for

defamation. The existence of the rule, in any real

sense, and the conditions for its application have

been thrown into doubt and virtually nullified by

the observations in the decision of this Court in

John Fairfax v Cojuangco, 165 CLR 346.

McHUGH J: Well, it is an academic question in this case, is

it not, because the court acted on the basis that

there was such a rule and nevertheless made an

order for disclosure?

MR GARNSEY:	What the court did, we submit, was fall into error by equating the interests of justice with
mere materiality for the purposes of discovery and
interrogatories thus departing from the rule as it
has been applied to date and in respect of which special circumstances have been required over and
above mere materiality or relevance for the
purposes of discovery and interrogatories. The
Court did so, we submit, relying on dicta in
Cojuangco, which did not consider the serious ramifications of equating the interests of justice with mere materiality and relevance for the
purposes of discovery and interrogatories.

It is submitted that this led the Full Court

of the Queensland Supreme Court, in the judgments

in respect of which this application is brought,

into error and that the practical effect of the

judgment is to abolish the Newspaper Rule

completely. It is submitted that special leave to
appeal should be granted to clarify whether the

Newspaper Rule is to continue to exist and the principles governing its application in interlocutory stages before trial.

The judgments of the Full Court show some

confusion as to, first, the existence of the rule,

whether it really exists as a separate rule and,

secondly, as to when it should be applied.	At
page 20 of the record,

Newspaper 2 10/4/92

Acting Chief Justice McPerson, beginning the first independent paragraph, said:

On any view the case is not one in which

the identity of the informant calls for

protection in the public interest. What the

special newspaper immunity (if any exists) is

plainly intended to secure is the anonymity of

independent external sources ..... It would be a

rare case indeed in which an employee of the

publisher could qualify as a source deserving

protection within the terms of any such

principle. One cannot by talking to oneself,

and then publishing what one hears, conjure up

an immunity in the public interest.

From that stage, His Honour took mere

relevance to proof of the plaintiff's case as the

test of whether the rule should be applied or not,

and that is in His Honour's reasoning over to

page 21 point 2. His Honour, beginning at the

preceding paragraph referring to obvious relevance

to proof of the plaintiff's case, then two or three

lines down on page 21 equated that with what

justice required.

Earlier, at page 16 of the record, His Honour

referred to this Court's mention of the rule as

defined in the English authorities in Cojuangco's
case, and then said at the bottom of the first

paragraph:

Reference to these observations should not be

taken as implying that Their Honours accepted

or lent their authority to the existence of

any such rule.

Similarly, Mr Justice Thomas did not apply the test

of non-disclosure except in special circumstances,

the traditional formulation of the test, but at

pages 35 through to 37 looked at merely what was

necessary or desirable from the plaintiff's point

of view to prepare the matter for trial; and at

page 41 point 2 His Honour looked simply at what

was necessary for the plaintiff to present its case

in determining whether the rule should be applied.

His Honour before that, at page 37, looked at cases

involving the application of the rule and

applications for discovery before suit with a view

to saying that it was relevant, as His Honour did

at page 40 to:

show that a newspaper company may improve its

position by showing a genuine preparedness to

stand behind its informant at all stages, and
in the long term to bear the cost of

protecting the informant from disclosure.

Newspaper 3 10/4/92

That matter has not been put in the authorities as

relevant to the application of the rule in pretrial

interlocutory procedures. It has been a

consideration in relation to the significance to be

given to the rule in the exercise of discretion to

order discovery before suit. Mr Justice Byrne, at

page 51 point 6, adopted a similar approach to

Mr Justice Thomas.

What we say, Your Honours, that this comes to

is the virtual abolition of the rule because,
first, Their Honours equated special circumstances

with materiality for the purposes of discovery or

interogatories; and secondly, because

Their Honours imported into the application of the

rule at a pretrial interlocutory stage, the

question of whether a newspaper would or would not

raise defences.

That is a matter which we submit may be

material in an application for discovery before

suit, where there is the very serious issue of

whether or not an applicant for discovery will be

prevented from ascertaining the identity of a party

which he wishes to sue. It has never been raised

as a matter to be considered in relation to whether

or not one applies the Newspaper Rule pre-trial at

an interlocutory stage.

The judgment of this Court in Kojuangco, we

submit, has through the dicta in relation to the

application of the rule, placed the application of

the rule in a state of considerable uncertainty.

In John Fairfax & Sons Ltd v Kojuangco, 165 CLR 346

at page 358, the court observed at the top

paragraph that it was a reason for the trial judge

being:

correct in exercising his discretion in favour

of making the orders he made.

that the newspaper article pointed to the veracity

of the sources, and the court went on to observe:

For our part we much doubt whether the

newspaper rule would be applied to a case such

as the present if the question were to arise
in the context of an interlocutory application
in a defamation action against the appellants

in which malice was in issue. It may be that

the rule has no application when the newspaper

identifies its source in a general way and

relies on that source to point up the

authenticity of the imputations. But this is

by the way. In the context which we have

supposed, the circumstances would be special

so as to justify a departure from the rule.

Newspaper 4 10/4/92

Apart from the striking feature already mentioned, the defamation is of a very serious kind.

And:

In saying this we would not wish it to be

thought that we necessarily accept that the

newspaper rule always applies in interlocutory

proceedings in the absence of special

circumstances. It may be that, as with an

application under Pt 3, r.l, all that the
applicant has to show is that the making of an

order is necessary in interests of justice,

but that is a question for another day.

Those, with respect, Your Honours, were

observations which did not consider the
ramifications inherent in the observations from the
point of view of a serious departure from the

Newspaper Rule, as it has been traditionally understood and applied.

McHUGH J: But Mr Garnsey, all this is academic in the

circumstances of this case, is it not? Your client

published an article in which it said the

information came from a well known Townsville

citizen. The well known Townsville citizen, it

appears, is an employee of your clients and the

chamber judge in the Full Court upheld him and

ordered you to disclose that name. I mean, a more

unsuitable vehicle to test this point would be

difficult to imagine.

MR GARNSEY: Well, we say as to that, with respect,

Your Honour, two things: the vehicle is, with

respect, not unsuitable, first because, as a matter
of logic, there is no difference for the source

being an employee if he obtained the information in

his private capacity, which is what the relevant

answer to the interlocutory said, and secondly,

because it makes it a more suitable vehicle, giving

an additional factual matter which the court can

consider in relation to the application of the

rule.

When one looks at what the members of the

Full Court pointed to for the reasons for refusing

to apply the rule in this case, the court
speculated that perhaps the reporters may have got together, even though the information was obtained

in a private capacity by the source; perhaps it was

a beatup. But, with respect, as a matter of logic,

that is no different from the situation where the

source is not employed. The matters pointed to by

the Full Court, we submit, are distinctions without

differences.

Newspaper 10/4/92

In England, if Your Honour pleases, the

traditional statement of the rule coming from

Lyle-Samuel Odhams Press, and repeated in

paragraph 1216 in Gatley in the Eighth Edition, is

directly contrary to the court's dicta on pages 358

of John Fairfax v Cojuangco.

In the Eight Edition of Gatley at

paragraph 1216, it is stated that:

though communications to journalists are not

protected by a "public interest" privilege in the strict sense, it has long been a "settled practice" that discovery whether of documents or by interrogatories, will not be ordered
against a newspaper so as to force it to

disclose its source of information before the

trial, even though privilege or fair comment

was pleaded and malice was in issue. Although

it has been said that such disclosure might be

ordered in special circumstances, there is no

case in which the courts have done so.

In Lyle-Samuel Odhams Press most of the matters

relied upon by Their Honours in the Full Court for

the application of the rule, in this case, nor for

the refusal to apply the rule in this case, were

considered in a fairly closely factually analogous

manner, and discounted as special circumstances.

It was expressly said that no malice was in issue

the rule would be applied, and it was also held not
to be a special circumstance that, whether or not

the court could by perusing the libel see whether
the source was unreliable.

What the present situation of the law, in Australia, is, we respectfully submit, a matter of

considerable doubt. It is doubt coming from dicta of very wide import in Cojuangco's case, which has been applied by the Full Court of the Supreme Court

of Queensland in this case, to create a situation

where the rule is unlikely to be applied at all.

That is of great consequence to the media. If one

looks at the factors which led the Full Court to
refuse to apply the rule, in particular the matters
relevant to malice to which the Full Court
referred, it will then be impossible for the rule

to be applied, we would submit, in any case in

which immediate defendant raises a defence of

qualified privilege or, indeed, probably a defence

of fair comment, malice being relevant to whether

or not the comment is honestly held or represents

an honestly held opinion.

In those circumstances, we submit, the point

is one of general importance raised in a very

suitable vehicle, namely, the very detailed

Newspaper 6 10/4/92

judgments of the Full Court of the Supreme Court of

Queensland, because it was the first time, so far as we can ascertain, a Full Court has considered
the application of the Newspaper Rule in this
country and whether or not it should be applied at

a stage in interlocutory proceedings before trial.

May it please the Court.

DEANE J:  Thank you, Mr Garnsey. The Court considers that

the actual decision of the Full Court of the

Supreme Court of Queensland, in the particular

circumstances of the present case, is not attended

by sufficient doubt to warrant a grant of special

leave to appeal. The application for special leave

is therefore refused.

MR APPLEGARTH: If it please the Court, I ask for costs?

DEANE J:	Mr Garnsey?
MR GARNSEY:	I cannot say anything about that Your Honour.
DEANE J:	The application is refused with costs.

AT 10.58 AM THE MATTER WAS ADJOURNED SINE DIE

Newspaper 7 10/4/92