O'Connell v Hinchliffe

[2001] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B29 of 2000

B e t w e e n -

JUNE HAROLDENE O’CONNELL

Applicant

and

DAVID HINCHLIFFE

Respondent

Application for removal pursuant to section 40 of the Judiciary Act 1903

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MAY 2001, AT 10.26 AM

Copyright in the High Court of Australia

MR P.J. FAVELL:   If your Honours please, I appear with my learned friend, MR R.J. ANDERSON.  (instructed by F.G. Forde Knapp & Marshall)

MR M.P. AMERENA:   If the Court pleases, I appear for the respondent.  (instructed by King & Company)

KIRBY J:   Yes, Mr Favell.

MR FAVELL:   Your Honours, as is probably apparent from our outline of submissions, the question which we would seek to have determined on the removal is the availability of a defence referred to in paragraph 20 of the defence.  Probably the best and clearest typing of it appears at pages 84 and 85 of the booklet.  Your Honours will see that it is constructed such that it is an alternative plea, such that if defences raised under the Defamation Act 1889 fail, then it is sought to rely on the defence pleaded in paragraph 20.

HAYNE J:   So the circumstance in which this paragraph would be engaged is a circumstance where what, there is no defence of qualified privilege?

MR FAVELL:   Where apparently the jury finds that there is no defence of qualified privilege available.

KIRBY J:   Why should not that finding, which is the orthodox finding, be first tested?  If it is tested and found to be available, this Court is not troubled.  But the issue is really hypothetical.

MR FAVELL:   In our submission, it is not premature because the contention in paragraph 20 is that the qualified privilege defence is not available, that is, the defamation law of Queensland is invalid.  This is a jury trial ‑ ‑ ‑

HAYNE J:   I am sorry, why is it an invalidity point?  Why is invalidity the premise?

MR FAVELL:   Paragraph 20 pleads that:

the law of Queensland . . . infringes the requirement of freedom of communication –

found in Lange, and because it does so and it:

burdens freedom of communications . . . 

(ii) the Act is not reasonably appropriate –

it does not apply and is invalid to that extent.

HAYNE J:   The premise for the engagement of paragraph 20 is:

if the defences pleaded herein by way of denial or confession and avoidance fail ‑ ‑ ‑

MR FAVELL:   Indeed, your Honour, but, in our respectful submission, this is a jury trial where a judge is going to have to determine at the outset what directions are to be given to a jury.  A jury is not in the position of making a finding and then coming back and the defendant having a second bite of the cherry, so to speak.  The directions have to be given at the trial.  On the point of whether or not the removal is premature, we would make the submission that the question of validity was always going to occur.  After the decision in Lange it is a logical step and it is probably the next step that it be considered with respect to the Code State.

CALLINAN J:   Mr Favell, what questions would you contemplate that the judge would put to the jury in respect of paragraph 20 of the defence?

MR FAVELL:   Your Honour, if it were that it was just to be based on whether the Lange defence were to apply, it would be whether there was an effective burden on the communication.

CALLINAN J:   Would that be a jury question or a question for the judge?

MR FAVELL:   With respect, it would probably be a question for the judge.  Then as to the next step, as to whether or not it is reasonably appropriate, we would submit that would be a jury question. 

CALLINAN J:   I would have thought that perhaps there might be an argument that the other was a jury question, but whether it is reasonably appropriate would plainly be a question for the judge.

MR FAVELL:   Yes.

KIRBY J:   Why would a judge looking at this matter practically in such a case not hear the argument and perhaps determine it as best he could but then take a jury’s verdict on the Code defence in order that that was available in the event that the constitutional argument was found subsequently to be unavailable?  In that way you would cover all the possibilities, would you not?

MR FAVELL:   In the event that the ‑ ‑ ‑

KIRBY J:   Assume the Code is either not touched at all or not relevantly touched by the Lange point for one of several reasons. Then the trial of the matter within the four corners of the Code, which is a statute of the Queensland Parliament and prima facie available to be pleaded, would discharge that part of the matters between the parties but leaving in abeyance and available to the party pleading it the point raised under the Constitution.

MR FAVELL:   Your Honour is putting it on the premise that it would dispose of it.  It assumes a success for a particular party.

KIRBY J:   I understand what you say.  You say the point will be raised, the judge must make a ruling.  The ruling might be to uphold the point and the whole trial might then miscarry because it has not been conducted in accordance with what subsequently this Court says is the law.  But there are other ways of a practical kind by which the judge can take the jury’s verdict, I would have thought – tell me if I am wrong – and thereby reserve the point but nonetheless dispose of it within the current law of Queensland.

MR FAVELL:   Your Honour, that may be so.

KIRBY J:   You see, often these points go away.  Parties run out of steam, they give away their case, they settle, they dispose of it on another basis, a jury finds qualified privilege.  End of problem for the High Court.

MR FAVELL:   That is the point I was about to get to, your Honour.  This is the first of 10 such cases.  The others have been stayed until this application was heard.

KIRBY J:   All in relation to the same matter complained of or are they ‑ ‑ ‑

MR FAVELL:   In relation to the same words, yes – different people in separate actions.  In my submission, it is a question of public importance, that is, the validity of the Defamation Act in Queensland, not just for these cases but for a number of cases, any cases in which a parliamentarian or some fringe parliamentarian, if I can put it that way, is involved.

KIRBY J:   But does it not take on some of the colour of the case that you just heard argued in the Court that there is no real contest, it would seem to me, that the question of whether the holding in Lange and the foundation of the principle in Lange within the federal Constitution and whether that applies to local government tenders potentially an important question. The issue is rightness. That is the only issue as far as I am concerned.

MR FAVELL:   Your Honour, the submissions we make are those submissions which are contained in paragraphs 3 and 6 of the reply of the written submissions.  We would submit that it is right.  There are no facts to be decided here that would assist and the validity of the Act is an important question outside of the ambit of this case.

CALLINAN J:   Mr Favell, can I ask you this.  If you go to page 79 of the application book which contains your reply, if you go to line 45, you respond to the so‑called constitutional defence, is that not so?  I think it clearly is.

MR FAVELL:   Yes.

CALLINAN J:   I think subparagraphs (i), (ii), (iii) and (iv) are your response to the constitutional defence.  You say it does not apply.

MR FAVELL:   Yes.

CALLINAN J:   Those are plainly questions of law.  They are for a judge, are they not?

MR FAVELL:   Indeed, your Honour.

CALLINAN J:   It does not seem to me that you raise any factual issues at all with respect to the constitutional defence.  Am I right or wrong about that?

MR FAVELL:   Your Honour is right about that, with respect.

CALLINAN J:   That being so, it is a pure question of law, but it may be that it would not matter how the trial judge decides that question of law, whether in your favour or not.  Indeed, there will still have to be a trial on the qualified protection issue.  If the defendant wins on that, that will be the end of the matter, is that not right?

MR FAVELL:   If your Honour is putting it on the premise that there would have to be a trial of the qualified privilege ‑ ‑ ‑

KIRBY J:   As I understand it, your argument is that if the constitutional imperative applies, it knocks out the provision of the Code of Queensland relating to qualified privilege holus‑bolus.

MR FAVELL:   That is so.

KIRBY J:   It is not capable of surgery; it just cannot stand because it does not deal with a particular case of speech relevant to government at every level.

MR FAVELL:   That would seem to be the argument, yes, your Honour.

CALLINAN J:   Well, no, I understand they are putting it in the alternative, are they not?  Are they not putting it in the alternative in this sense, that it can be either qualified protection or the constitutional defence or it can be both?

MR FAVELL:   With respect, your Honour, it is difficult to see how it could be both.  If their argument about the Lange defence is correct and the qualified privilege sections in section 16 are not properly adapted, then they would be invalid and that would be the case no matter what.  In my submission, it is as simple as this.  It is an important question which bears on the whole of the defamation law of Queensland.  This Court will get no assistance from the trial going ahead, but there is every reason why the matter should be decided before any trials.

KIRBY J: You say that, and I must say when I was first appointed to the Court of Appeal of New South Wales I was enthusiastic for this separation, but I saw so many cases where it simply sidetracked and derailed cases and led to lots of interlocutory appeals and applications to this Court and, far from expediting the disposal of matters, it commonly became part of the problem. That has made me a bit cautious. The section 40, I assume, would have been inserted in the Judiciary Act at a time when the understandings of the Constitution were not so clear and when it was thought desirable to bring more matters to this Court. It would have been part of the pattern of the inter se matters coming straight to the Court. But nowadays the Court’s principle is to have trials completed and Courts of Appeal dispose of matters before it normally embarks upon a constitutional question. Why is that not the appropriate course in this case?

MR FAVELL:   The submission we would make is that this Court would get no assistance from it and it is proper to do it now rather than involve the parties and the State and other litigants in proceeding on what could be an incorrect premise.

KIRBY J:   How far away is the trial?

MR FAVELL:   All of the trials have been stayed until this application, if your Honour pleases.

KIRBY J:   Yes, but if this application is refused, when would the trial be had?

MR FAVELL:   I am not sure of the listing availability at the moment.

KIRBY J:   It would have a public interest ground, one would think, for some degree of expedition, or at least an application for expedition.

MR FAVELL:   Your Honour, I could not say – and I took note of the timing that your Honour mentioned in the last case – that it would be on before September.  In fact, I would think it would be unlikely to be.

HAYNE J:   But the actions are ready for trial, are they?

MR FAVELL:   I do not think they are, your Honour.

CALLINAN J:   Mr Favell, in any event, in Queensland there is something of a problem, is there not, about getting matters on for trial, particularly matters that are going to last more than a few days?  Are you not sent off to mediation first almost as a matter of ‑ ‑ ‑

MR FAVELL:   Yes.  We would have to go through all those interlocutory steps.

CALLINAN J:   One of which is a de facto compulsory mediation, is that right?

MR FAVELL:   Yes, mediation or perhaps case appraisal.

CALLINAN J:   Mr Favell, you really want to make a head-on tilt, do you not, at Lange?  You want to challenge its correctness, do you not?  That is how I read your reply.

MR FAVELL:   Yes, in so far as it deals with the question of local government authorities.

KIRBY J:   That is a bold step, to take a whole tilt at Lange, given that the Court decided the case unanimously and recently.

MR FAVELL:   Your Honour, the part that we would take a step at is that which appears at page 571.

KIRBY J:   Yours is only a little tilt.

MR FAVELL:   It is a little tilt, yes.

KIRBY J:   A sharp point?

MR FAVELL:   That is right.

CALLINAN J:   You are not attacking constitutional implications then?

MR FAVELL:   No, not here, your Honour.  In that sense, your Honours will see at page 571 of Lange there is mention of the applicability of the defence in respect of local government matters.

KIRBY J:   We know this and we know that this is an important point.  At some time it is going to have to be dealt with, but the question is rightness.  Have you said everything you want to say on that?

MR FAVELL:   I have, including what we have said in our written submissions.

KIRBY J:   Is there anything occurred to you during the last hearing that prompted your thinking to assist us in this particular case?

MR FAVELL:   I am sorry, your Honour, no, nothing has.

KIRBY J:   Very well.  Thank you.

MR FAVELL:   But I am open to suggestions.

KIRBY J:   I think you heard all our suggestions.  We gave them from the Bench.  Very well, thank you very much.

MR FAVELL:   Thank you, your Honours.

KIRBY J:   Mr Amerena, what do you have to say about rightness?

MR AMERENA:   Your Honours, it is not right.  Can I deal with the question of whether or not paragraph 20 involves a jury finding.  In my submission, like the defence of qualified protection, the proper position in regard to the Lange defence, if I can conveniently call it that, is that ultimately it will be a decision of law for the judge, subject to this qualification as would apply with the case of qualified protection, that if there are disputed facts relevant to the judge making the value judgment involved in the Lange defence, they have to be sorted out.

In fact, on the pleadings there is a dispute as to the scope of the publication.  It occurs in three ways.  It is suggested that the debate was broadcast into the Lord Mayor’s office, and that is denied.  It is suggested the debate was broadcast into the chief executive officer’s office, and that was denied.  It is suggested that the clerk of the council, a Mr Filia, in effect, published a version of the words complained of, and that is denied.  It is said in response that what Mr Filia did was simply to publish to other persons a copy of the minutes of that meeting which do not contain the words complained of.

So there are some factual disputes about the scope of the publication and it may be that the trial judge might want the jury to make findings on those matters but, other than that, it will be entirely a matter for the trial judge.

KIRBY J:   Would that be usual in a trial of a defamation action in Queensland to take special verdicts on particular factual questions?

MR AMERENA:   It would not be usual but it appears it can be done if the need arises.

KIRBY J:   You see, what is put against you is that there is tendered an important constitutional question – and I do not take you to dispute the importance of the constitutional issue – and that this case could be derailed because it would be tendered to the judge as a legal ruling.  He might rule for it or against it.  If he rules for it, then the matter goes to trial on the basis of the Code and subsequently this Court might say that the Code has been expelled by the Lange implication in this respect, on the failure to deal with local government privilege - I will use that word for want of a better – and that therefore, you have had a whole trial and maybe an appeal on other issues to the Court of Appeal which has taken up a lot of public and private time and money which could be dealt with in this Court by dealing now with the foundation upon which the trial should be conducted.  What is your answer to that?

MR AMERENA:   I hope not to be taken to be badly plagiarising some of your Honour’s observations earlier, but as a matter of practice there is nothing to stop the trial judge from taking the verdicts from the jury and then making his decision on this point of law at a time prior to him giving judgment.

KIRBY J: I never mind people plagiarising what I say but, after I said that, I had doubt as to its accuracy. I think the judge of trial is bound to apply the law and if the proposition of law is put to him in the course of the jury trial, there is no point – indeed, it is legally impermissible – to put the qualified protection defence because that provision of the Code is ousted by the Constitution. If he rules in favour of that proposition, then, potentially at least, the trial goes down one route which may or may not be right.

MR AMERENA:   In my submission, your Honour Justice Kirby’s observations do not follow because of the nature of the pleading.  The pleading in paragraph 20 is one of a genuine alternative.

HAYNE J:   But in this case will not a special verdict be taken and would there not be an opportunity on the motion for judgment, perhaps even by motion non obstante, at the point of motion for judgment for the resolution of this question of law in the light of the findings made by way of special verdict?

MR AMERENA:   In my submission, that is the case, your Honour.

CALLINAN J:   Mr Amerena, I also wonder whether there might be a factual question relevant to the Lange defence arising out of the pleading of malice.  There is a pleading of malice in paragraph 7.  In some circumstances cannot malice have a relevance to a Lange defence?  I thought there were some observations by the Court in Lange that suggested that in some circumstances malice might defeat.  It might have been put differently:  absence of good faith or reckless or dishonest reporting – might defeat.  If there has been an absence of inquiry and matters of that kind, they may be relevant also to the constitutional defence perhaps?

MR AMERENA:   The point at which ‑ ‑ ‑

CALLINAN J:   Is that right though, what I have asked you?

MR AMERENA:   Yes, your Honour, that is correct because, for instance, a party is hardly going to be taken as having acted reasonably when, in fact, they have acted knowing what they have said is false.

CALLINAN J:   And that is relevant to a Lange defence as well, is it not?

MR AMERENA:   Yes.  That brings up, I suppose, a question which I am just now considering as to whether that is a question for the judge or for the jury.

CALLINAN J:   That is plainly a jury question.  That is the sacred jury question, the defendant’s motives.

MR AMERENA:   And it may be that that is dealt with like questions as to the scope of the publication, if there are disputes about it.  One takes the jury’s verdict on those particular facts and then the judge enters a judgment reflecting the jury’s verdict and, if there is scope for the judge to, in effect, make the value judgment involved in applying the privilege, the trial judge does so.

KIRBY J:   You heard Justice Hayne’s procedural suggestion which seems to me, subject to hearing anything that anyone says, the sensible solution.  Is that a part of the procedure of the Supreme Court of Queensland, namely,

that the judge of trial could take the verdict and prior to the entry of judgment the defendant would have the opportunity to move a non obstante veredicto that the judgment be entered in his favour?  Is that a procedure available in Queensland on constitutional grounds?

MR AMERENA:   Yes, it is, your Honour.

CALLINAN J:   Indeed, on any legal ground it can be done, can it not?  It was done once in Queensland.  It was reversed recently but nobody suggested that it was not an available procedure in an appropriate case.  The case of Griffith I think.

MR AMERENA:   In fact, I think one of the old cases about it is the case involving McDonnell and East, a Queensland department store.

CALLINAN J:   But it was done in Griffiths v Queensland Newspapers and nobody suggested it could not be done.  It was just said that it should not have been done in that case.

MR AMERENA:   Yes, that is how I understand the position.

KIRBY J:   Do you have anything else to say, confining it to the question of rightness of the application?

MR AMERENA:   No, your Honour.

KIRBY J:   Thank you very much.  What do you say in reply, Mr Favell?

MR FAVELL:   The question as to the extent of the publication is not something, in my submission, which would go to the rightness or whether or not this matter can be determined.  That was really a matter which would go to damages or the extent of damages at the end of the day.

KIRBY J:   Be that as it may, what is your answer to the point Justice Hayne raised during argument?  Is that not the practical answer to the problem looked at from the point of view of the trial judge?

MR FAVELL:   In my respectful submission, no.

KIRBY J:   Why?

MR FAVELL:   Because it would involve more difficulties with the jury than it would cure.  To try and deal with the jury on the basis of two alternate defences – one might be available and one may not – would ‑ ‑ ‑

HAYNE J:   No.  Simply put questions to the jury in common form, I might say, common form questions to the jury, thank them for their verdict, send them off, then have your legal argument.  Where is the difficulty with the jury?

MR FAVELL:   Your Honour, I do not understand that your Honour proposes in terms of the questions put in common form.

HAYNE J:   I take it that a defamation action tried by a jury commonly sees the jury given a set of questions to answer.

MR FAVELL:   Indeed, including whether or not, as occurred in Griffiths v Queensland Newspapers, the various defences were made out.

HAYNE J:   Yes.

KIRBY J:   You have to raise, as it were, a conceptual point.  You have to raise the point that no judge would charge the jury on a matter which concerned the defence under the Code where a point is raised on the pleading which strikes at the availability of that defence which the judge thought was a good point and that the shift in Lange was from the notion of a defence to the notion that the Constitution strikes down certain statutory provisions and that in this case it strikes down the Queensland qualified protection provision because it does not sufficiently attend to the constitutional considerations. That is how you have to put the case.

MR FAVELL:   Yes.

KIRBY J:   But looked at from a practical point of view, what Justice Hayne has said seems eminently sensible and you would not lose any chance of arguing that, having taken the jury’s verdict.  Then a Court of Appeal has the chance to resolve the legal and constitutional and other questions but, if you succeed in the constitutional point, to uphold or impose a judgment notwithstanding the verdict.

MR FAVELL:   Indeed, your Honour, but in dealing with the jury one would try and present a case as simple as possible.  You are introducing complex questions of law and asking them to consider two different streams, in my submission.

CALLINAN J:   No, I do not think that is right, Mr Favell, with all due respect.  The only question, it seems to me, at the moment – there may be others – that could possibly be on the constitutional defence – and I am not even certain that it does – is the question raised by paragraph 7 of your statement of claim, which is simply – and it is the same question in relation to the qualified protection defence:  was the defendant “actuated by ill will

towards the Plaintiff”?  Now, that is a question that has to be asked anyway in relation to qualified protection.  I cannot think of any other question at the moment that could conceivably go to the jury that would relate to the Lange defence.  If there is one, I would like you to identify it for me. 

MR FAVELL:   Your Honour, that is a common question.  Of course, there are ‑ ‑ ‑

CALLINAN J:   I know, but is there any other question?  You are talking about complications with the jury.  You have not persuaded me that that is so.

KIRBY J:   There is no real dispute that what was said was said in a local government meeting and, therefore, to that extent it is common ground that that premise is established if that premise is relevant to the points made by the Court and the holding of the Court in Lange.

CALLINAN J:   There is no argument about what was said.  The factual dispute is probably going to focus principally upon the motives of the defendant under any of the defences which are raised.

KIRBY J:   We do not have to convince you.  Do you have anything else to say to try to convince us?

MR FAVELL:   No, your Honour, there is nothing else I can add.

KIRBY J:   Thank you very much, Mr Favell.

The pleadings in this action for defamation are closed but there has been no trial.  Removal into this Court to consider the issues which it is sought to raise by paragraph 20 of the amended defence of 3 February 2000 would, in our view, be premature.

The application for removal is accordingly dismissed.  The applicant must pay the respondent’s costs.

The Court will adjourn briefly to be reconstituted.

AT 10.55 AM THE MATTER WAS CONCLUDED