O'Neill, J.J. v Mann, A

No judgment structure available for this case.

JAMES JOSEPH O'NEILL v. ARNOLD MANN
No. ACTG 29 of 1994
FED No. 923/94
Number of pages - 31
Defamation
(1994) 126 ALR 364
(1994) 54 FCR 212

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
BEAUMONT(1), RYAN(1) AND CARR(2) JJ

CATCHWORDS

Defamation - privilege - absolute privilege or immunity - whether absolute privilege or immunity from an action for defamation attached to a complaint about a special magistrate made to the Attorney-General and the Chief Magistrate - whether process involved was a judicial or quasi- judicial proceeding for the purpose of the absolute privilege or immunity rule - whether policy considerations favour the extension of the doctrine of absolute privilege or immunity beyond that which attaches to statements made before judicial or quasi-judicial proceedings - whether document upon which defamation proceedings were based was a document necessary for initiation of the inquiry

Magistrates Court Ordinance 1930 (ACT), Div. 2

Jamieson v R (1993) 177 CLR 574, discussed
Gibbons v Duffell (1932) 47 CLR 520, applied
Theophanous v Herald and Weekly Times Ltd. (1994) 124 ALR 1, discussed
Stephens v West Australian Newspapers Ltd. (1994) 124 ALR 80, discussed
Cunliffe v Commonwealth of Australia (1994) 124 ALR 120, discussed
Hercules v Phease (1994) Aust. Torts Reports 81-263, considered
Purden v Seress-Smith (1993) IRLR 77, discussed
Bretherton v Kaye and Winneke (1971) VR 111, discussed
Douglas v Lewis (1982) 30 SASR 50, discussed
Martin v Watson (1994) QB 425, discussed
Hasselblad (G.B.) Ltd v Orbinson (1985) 1 QB 475, discussed
Lincoln v Daniels (1962) 1 QB 237, discussed
Royal Aquarium and Summer and Winter Garden Society v Parkinson (1892) 1 QB 431, discussed
Lilley v Roney (1892) LJQB 727, discussed
Dawkins v Lord Rokeby (1873) LR 8 QB 255, discussed
Roy v Prior (1971) AC 470, discussed
O'Connor v Waldron (1935) AC 76, discussed
Trapp v Mackie (1979) 1 WLR 377, discussed
Stanton v Andrews (1836) 5 U.C.Q.B. (O.S.) 211 (C.A.), disapproved

HEARING

CANBERRA, 1 July 1994
#DATE 30:11:1994, SYDNEY

Counsel for the Applicant: Mr D.F. Rofe QC with Mr B. Hull

Solicitors for the Applicant: Phillips Fox

Counsel for the Respondent: Mr M. Dreyfus

Solicitors for the Respondent: Peter S. Lustig

ORDER

THE COURT ORDERS:
1. Appeal allowed, with costs.

2. Final orders made at first instance set aside; in lieu

thereof, the plea of absolute privilege pleaded in para.6 of the Defence is struck out.

3. The respondent pay the appellant's costs at first instance of

the separate question.

Note: Settlement and entry of orders is dealt with in Order 36 ofthe Federal Court Rules.

JUDGE1

INTRODUCTION
BEAUMONT AND RYAN JJ The question in this appeal in an action for defamation concerns the defence of absolute privilege under the general law.

As John G. Fleming points out (Law of Torts, 8th ed. at 557-8):

"In certain situations, the law allows one to speak and write without restraint, even at the expense of another's good name and character. These are called privileged occasions. Privilege attaches not to content, but to occasion or form.

...

Because of its drastic effect in foreclosing all opportunity for vindicating a traduced reputation, absolute immunity is but rarely granted, and only as an aid to the efficient functioning of our governmental institutions: legislative, executive and judicial."

Accordingly, as T.K. Tobin and M.G. Sexton put it (Australian Defamation Law and Practice at 8051):

"The traditional categories of publication protected at common law are:

(a) statements made in the course of judicial or quasi- judicial proceedings;

(b) statements made in the course of parliamentary proceedings; and

(c) communications concerning matters of state."

The present question is whether these traditional categories should be extended. It is accepted by the appellant that, if absolute privilege is not available here, the circumstance is nonetheless capable of giving rise to a situation where qualified privilege could be claimed, unless malice existed.
The appeal arises in the following context:
The respondent wrote to the Attorney-General for the Commonwealth a letter seriously complaining about the performance and capacity of the appellant, a special magistrate in the Australian Capital Territory, and sent a copy of the letter to the Chief Magistrate of the Territory. The complaints were made in respect of two matters heard by the appellant in which the respondent was a party. The respondent sent a similar letter to the Federal Minister for Justice. In answer to the appellant's action for defamation brought in the Supreme Court, the respondent pleaded a defence of absolute privilege. By consent, it was ordered that the issue raised by the plea be determined as a separate question. Heerey J concluded that the plea was a good one and ordered that judgment be entered for the respondent in the action (see O'Neill v Mann (1994) 49 FCR 370). This is an appeal from that order.

THE STATUTORY TENURE OF OFFICE OF A SPECIAL MAGISTRATE
6. In concluding that absolute privilege existed here, the learned primary Judge proceeded upon the footing that the making of any decision to terminate the appointment of the appellant as a special magistrate was subject to the application of the rules of natural justice and that, in this connection, the appellant would have been entitled to a hearing. Each of these conclusions is now challenged and it will be necessary to consider them later. Before doing so, reference should be made to the statutory scheme governing the tenure of office of a special magistrate. The relevant statutory provisions are found in Division 2 of the Magistrates Court Ordinance (1930) ("the Ordinance") as follows:

"Appointment of special magistrates

10H. For the purposes of this Ordinance, the Governor-General may appoint such special magistrates as are required. Tenure of office

10J. A special magistrate holds office during the pleasure of the Governor-General.

Resignation

10K. A special magistrate may resign his office by writing signed by him and delivered to the Governor-General. Terms and conditions of appointment

10L. Subject to the Remuneration Tribunals Act 1973 and to section 10J, a special magistrate holds office upon such terms and conditions, whether as to remuneration or otherwise, as the Governor-General, from time to time, determines."

The relevant provisions of the Ordinance dealing with the tenure of office of magistrates other than special magistrates are:

"Tenure of office

10A. (1) Subject to this Ordinance, a Magistrate holds office until he attains the age of 65 years.

(2) A person who has attained the age of 65 years shall not be appointed under section 7.

10B. ...

10C. ...

Removal from office

10D. (1) The Governor-General may remove a Magistrate from office on an address praying for his removal on the ground of proved misbehaviour or incapacity being presented to the Governor-General by each House of the Parliament in the same session of the Parliament.

(2) The Governor-General may suspend a Magistrate from office on the ground of misbehaviour or incapacity.

(3) When the Governor-General suspends a Magistrate from office, the Attorney-General shall cause a statement of the ground of the suspension to be laid before each House of the Parliament.

(4) Where -

(a) a statement has been laid before each House of the Parliament in accordance with sub-section (3) within the period of 15 sitting days of that House after the date of the suspension to which the statement relates; and

(b) each House of the Parliament, within the period of 15 sitting days of that House after the statement was laid before it, by resolution declares that the Magistrate to whom the statement relates should be removed from office,

the Governor-General shall remove that Magistrate from office.

(5) Where -

(a) the Governor-General has suspended a Magistrate from office; and

(b) on the first day on which a period of 15 sitting days of a House of the Parliament after the date of the suspension expires, the Attorney-General has not caused a statement of the ground of the suspension to be laid before that House,

the Governor-General shall cancel the suspension of the Magistrate from office.

(6) Where -

(a) a statement has been laid before each House of the Parliament in accordance with sub-section (3); and

(b) on the first day on which a period referred to in paragraph (4)(b) expires, a House of the Parliament has failed to pass the resolution referred to in that paragraph,

the Governor-General shall cancel the suspension of the Magistrate from office.

(7) The suspension of a Magistrate from office under this section does not affect any entitlement of the Magistrate to be paid remuneration and allowances.

(8) The Governor-General may, with the consent of the Magistrate, retire the Magistrate from office on the ground of invalidity or physical or mental incapacity.

(9) A magistrate shall not be removed or suspended from office except as provided by this section."

THE COMPLAINTS MADE BY THE RESPONDENT

In the letters to the Attorney-General and to the Minister, the respondent, who is a medical practitioner, asserted, in effect, that the appellant was not fit to hold office. For instance, in one letter, the respondent said:

"I was astounded at Mr. O'Neill's conduct during both of these cases and by his inability to comprehend simple propositions put before him and his irritability (which has been remarked upon by others) which was very noticeable. As a medical practitioner it struck me that perhaps arteriosclerotic cerebral disease was what was at the bottom of the problem. (I have also taken into account that my disappointment might have influenced my judgment of him). I therefore made enquiries of legal practitioners with a view to ascertaining whether my judgment was in fact biased. I am satisfied after my enquiry that not only is it my view that the features of early senile dementia are present in Mr O'Neill's conduct to the extent that he is incapable of conducting a Court in a proper and rational manner but that this is also a view held by a number of senior practitioners of law.

I am a medical practitioner of 35 years standing. It is my medical opinion that Mr O'Neill should be suspended from duties whilst he is examined for fitness to sit as a Magistrate. It would be important in this regard to review the transcript of a range of cases not merely my own and to ascertain the views of legal practitioners who appear before him."

In another letter, the respondent said:

"I was astounded to learn that your letter made no reference whatsoever to Mr O'Neill's mental capacity to hear cases when his incapacity is the talk of the legal profession in the ACT. I cannot believe that justice can be seen to be done in such circumstances.

Surely it is a matter of grave concern that you are unable to vouch for Mr O'Neill's mental capacity. I telephoned your office this morning and received a most evasive reply from someone describing himself as one of your principal private secretaries.

I await a reply to my question concerning Mr O'Neill's mental capacity to conduct cases as a Magistrate."

THE REASONING AT FIRST INSTANCE
10. His Honour's reasons for upholding the claim of absolute privilege may be summarised as follows:

(1) The absolute privilege protecting court proceedings extends also to tribunals which are "recognised by law", which make decisions affecting status or rights, and where "court-like" procedures are adopted (377-9).

(2) By dint of the rules of natural justice, the exercise of the power conferred upon the Governor-General by s.10J of the Ordinance to terminate the office of the appellant as a special magistrate, on the basis of the misconduct and incapacity alleged by the respondent, required a hearing (at 381).

(3) Even if an oral hearing were not necessary, the hearing required would be a hearing "recognised by law", that is, the duty to give natural justice springs from the common law and not from any private agreement. There is the further related element that the subject matter of such a decision "involves important questions of (the) public interest...in the independent and fearless administration of justice" (at 381).

(4) The respondent's letter to the Attorney-General was a document necessary for the initiating of such a process. His Honour referred, in particular, (at 381) to the recent decision of the Full Court of the Supreme Court of Victoria in Hercules v Phease (1994) Aust. Tort Reports 81-263, where it was held that absolute privilege attaches to a complaint made to the Secretary of the Law Institute about a practitioner.

THE APPELLANT'S CONTENTIONS ON THE APPEAL
11. The appellant accepts that qualified privilege (which is also pleaded by the respondent as a defence) may, in the absence of malice, be available here, but contends that absolute privilege has never been extended previously, as his Honour has held, to a "preliminary document" which leads to "some quasi-judicial inquiry where there is no statutory or other established process to accommodate such inquiry". Accordingly, the professional disciplinary cases, e.g. Hercules, may be distinguished, since, the appellants says, there is in those cases an established process. Even if the appellant was entitled to be afforded procedural (as distinct from substantive) fairness, there was no statutory or other established procedure whereby such fairness could, in any formal sense, be afforded. Procedural fairness could have been provided by means other than (what his Honour called - at 381) "a substantial oral hearing, and one of an unavoidably adversarial nature". The matters raised by the respondent in his letters were not in any relevant sense "preliminary documents" leading to a hearing recognised by law. In any event, the argument runs, the appellant held office only during the "pleasure" of the Governor-General. If the Governor-General decided to withdraw his pleasure or act in some other way, even if bound by the rules of natural justice, he would not be acting in a "judicial" or "quasi-judicial" manner. Rather, he would be acting administratively without attributes similar to those of a court of justice.

CONCLUSIONS ON THE APPEAL
12. n our opinion, there is considerable force in the appellant's contentions. In particular, we agree, with respect, that neither authority nor the considerations of public policy explained in the cases, would extend the reach of absolute immunity for statements made before judicial or quasi-judicial tribunals to the circumstances of the present case.

It will be necessary to analyse in some detail the authorities in terms of what they decided and what they reveal of the considerations of public policy in this area. However, in essence, the authorities establish that the policy underlying the rule reflects the need to encourage access to the courts so that, whilst absolute protection is afforded to the position with respect to what are sometimes called judicial proceedings, "quasi-judicial tribunals" is not so clear. Of course, the Governor-General, if he came to consider the appellant's fitness to continue in office would be at a stage removed from a tribunal of any sort.

(a) Statements made before judicial tribunals
14. The general nature of, and rationale for, the absolute privilege which the common law attaches to statements made in the course of judicial proceedings were discussed recently by the High Court in Jamieson v R (1993) 177 CLR 574.

Deane and Dawson JJ said (at 582):

"The general proposition, enunciated by Lord Mansfield in R v Skinner ... that 'neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office', must be qualified by a number of well-established exceptions. In particular, in so far as criminal proceedings are concerned, it must be qualified as regards substantive administration of justice offences (such as perjury, contempt of court and, depending upon the circumstances, perverting the course of justice) and offences associated therewith (such as conspiracy and attempt). Nonetheless, and notwithstanding the submissions of the Crown to the contrary, the proposition as so qualified remains valid as a general statement of common law principle.

It is true that, until recently, there has been a dearth of cases in which common law courts have been called upon to quash a criminal proceeding or conviction by application of the principle. That is not, however, surprising. It could scarcely be expected that prosecuting authorities would institute proceedings in disregard of a general proposition of common law principle which had been enunciated by Lord Mansfield and subsequently endorsed by strong authority including a unanimous Court of Exchequer Chamber constituted by ten judges ... As Gaudron J points out in her judgment in the present appeals, that general principle is sustained by considerations of public policy."

(The case in the Court of Exchequer Chamber is Dawkins v Lord Rokeby (see below).)

Of the public policy, Gaudron J said (at 595):

"Resort to the courts for the orderly resolution of disputes between citizens, or between citizens and government, would be greatly put at risk if witnesses were to be subject to restraints with respect to their evidence, other than those which serve to protect the integrity of the judicial process. It would be put at even greater risk if litigants were not similarly privileged in respect of the instigation of proceedings. Of course, there are also restraints in that regard."

Toohey and McHugh JJ (at 589) referred to the following statement of Lopes L.J in Royal Aquarium and Summer and Winter Garden Society v Parkinson (1892) 1 QB 431 (at 451):

"The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any Court recognized by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the party defamed."

Toohey and McHugh JJ added (at 589-590):

"Cabassi v Vila (1960) 64 CLR 130 held that the principle that no civil action lies in respect of evidence (even if false and malicious) given by witnesses in the course of judicial proceedings extends to prevent the maintenance of an action for conspiracy by an unsuccessful litigant against witnesses whom he alleged to have conspired together to give false evidence. Rich ACJ ... explained the rationale for the rule in this way:

'Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness' testimony in a suit against him.'

Two considerations are at work in this statement. One is concerned to see that those involved in litigation should speak freely without fear of consequent litigation; the other seeks to avoid interminable litigation."

The distinction, in this area, between immunity from civil suit, as distinct from criminal prosecution, and the relevant public policy considerations underlying the distinction, were confirmed recently in the English Court of Appeal in Martin v Watson (1994) QB 425, in civil proceedings for malicious prosecution. In discussing the rule in Dawkins v Lord Rokeby, Hobhouse L.J pointed out (at 462-3) that it is the malicious abuse of the process of the courts which is the essence of the tort of malicious prosecution, not the giving of false evidence and that this distinction corresponds to the public policy which protects those who provide evidence for civil suit as opposed to criminal prosecution. Hobhouse L.J said (at 463):

"The principle exists for the protection of all witnesses, not merely those who have provided honest evidence. The reason for this is that if honest witnesses are to be protected from being harassed by allegations of perjury or malice, there must be a bar on all such actions. The public policy accepts that the protection from civil suit applies to the honest and dishonest alike; the policy is that such matters should be the province of the criminal, not the civil, law."

(b) Statements made before quasi-judicial tribunals

(i) Military tribunals

The reference by Deane and Dawson JJ to the Court of Exchequer Chamber was to Dawkins v Lord Rokeby (1873) LR 8 QB 255, which is important for present purposes. It was there held that the absolute privilege attaching to statements made in the course of judicial proceedings extended to statements made before a Military Court of Inquiry. In an action for libel, the plaintiff, an Army officer, sued the defendant, another officer, for making statements to the Court of Inquiry to the effect that the plaintiff was unfit to command. The Court of Inquiry had been established under military regulations as follows:

"A court of inquiry may be assembled by any officer in command to assist him in arriving at a correct conclusion on any subject on which it may be expedient for him to be thoroughly informed. With this object in view such court may be directed to investigate and report upon any matters that may be brought before it, but has no power (except when convened to record the illegal absence of soldiers as provided for in the Articles of War) to administer an oath nor to compel the attendance of witnesses not military."

A further regulation provided:

"A court of inquiry is not to be considered in any light as a judicial body. It may be employed at the discretion of the convening officer to collect and record information only, or it may be required to give an opinion also on any proposed question or as to the origin or cause of certain existing facts or circumstances; specific instructions on these points are, however, always to be given to the court. The proceedings are to be recorded in writing as far as practicable in the form prescribed for courts-martial, signed by each member, and forwarded to the convening authority by the president."

Kelly C.B., in delivering the judgment of the Court of Exchequer Chamber, said (at 265) that:

"Upon ... (the) authorities it may now be taken to be settled law, that no action lies against a witness upon evidence given before any court or tribunal constituted according to law."

Kelly C.B. went on to say (at 266):

"A court of inquiry, though not a court of record, nor a court of law, nor coming within the ordinary definition of a court of justice, is, nevertheless, a court duly and legally constituted, and recognised in the articles of war and many Acts of Parliament.

The 12th section of the articles of war provides: 'That if any officer shall think himself wronged by his commanding officer, and shall, upon due application made by him, not receive the redress to which he may consider himself to be entitled, he may complain to the general commanding-in-chief of our forces in order to obtain justice; who is hereby required to examine into such complaint, and either by himself, or by our secretary of state for war, to make his report to us thereupon, in order to receive our further directions.'

Now the mode in which the commander-in-chief examines into any such complaint is by instituting a court of inquiry. A court, therefore, so called into existence has all the qualities and incidents of a court of justice. It is convened, in pursuance of this provision, and so under the express authority of Parliament, and of the Queen's regulations..."

After referring to the regulations, Kelly CB said (at 267):

"Under these regulations officers in the army, if required by competent military authority to attend, are compellable to attend and give evidence, not, indeed, by means of any known legal process, or under any penalty imposed by law, but in obedience to the duty they owe to the sovereign, and under peril of dismissal at the pleasure of the sovereign in case of disobedience. The evidence so given is in truth a communication made at the command of the sovereign, through the commander-in-chief, by a military officer, to an assembly consisting of other military officers upon a military subject, to be reported to the commander-in-chief, and by him to the sovereign; and all this in strict conformity to the queen's regulations. There is, therefore, no sound reason or principle upon which such a witness, called upon to give evidence in such a court, should not be entitled to the same protection and immunity as any other witness in any of the courts of law or equity in Westminster Hall. He is equally compellable to appear and give evidence, and punishable in case of refusal. And it would be unreasonable and unjust to hold him liable to a heavy punishment if he refuse to answer the question put to him, and liable to an action at law for damages if he answers them and his answers happen to reflect upon the character of another."

Kelly CB. added (at 270-1):

"But there is another and a higher ground upon which we are of opinion that the defendant is entitled to the judgment of the Court. The whole question involved in this cause is a military question, to be determined, as we think, by a military tribunal, and not cognizable in a court of law. The attendance of the defendant as a witness, the duty to give evidence when called upon, the validity of the order to hold a court of inquiry, the effect of the evidence upon the military character and upon the military rights and liabilities of the plaintiff, and indeed of the defendant likewise, are purely questions of a military nature."

A proceeding in error was then brought in the House of Lords (see Dawkins v Lord Rokeby (1875) LR 7 H.L. 744). The Judges were summoned (Kelly CB, Mellor, Brett and Grove JJ and Pollock B. attending) and Kelly CB, in the name of the consulted Judges, is reported to have said (at 752-3):

"A long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evidence before a Court of Justice. This does not proceed on the ground that the occasion rebuts the prima facie presumption that words disparaging to another are maliciously spoken or written. If this were all, evidence of express malice would remove this ground. But the principle, we apprehend, is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice. The authorities, as regards witnesses in the ordinary Courts of Justice, are numerous and uniform. In the present case, it appears in the bill of exceptions that the words and writing complained of were published by the Defendant, a military man, bound to appear and give testimony before a Court of Inquiry. All that he said and wrote had reference to that inquiry; and we can see no reason why public policy should not equally prevent an action being brought against such a witness as against one giving evidence in an ordinary Court of Justice."

Lord Cairns, LC said (at 754-5):

"...an argument was addressed to your Lordships to shew that the inquiry in question was not to be considered in the light of a judicial inquiry, and the evidence was not evidence given by a witness on oath. My Lords, that is quite true; but at the same time your Lordships have it in the bill of exceptions that it was an inquiry connected with the discipline of the army; it was an inquiry warranted by the Queen's Regulations and orders for the army: it was called for by the General Commanding-in-Chief, in pursuance of those Regulations; and the Defendant in the action was called upon that inquiry as a witness, as a person who was required to make statements relevant to the inquiry which was then being conducted, and it was in the course of that inquiry that those statements were made. Now, my Lords, adopting the expressions of the learned Judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army. It is not denied that the statements which he made, both those which were made viva voce and those which were made in writing, were relative to that inquiry."

Dawkins v Lord Rokeby was considered in Gibbons v Duffell (1932) 47 CLR 520, where it was held that a report made by an inspector of police to his superior officer, containing references defaming another officer, was not the subject of absolute privilege. Citing observations by Willes J at first instance in Dawkins, Gavan Duffy CJ, Rich and Dixon JJ said (at 526):

"In the application of absolute privilege to statements made in the course of naval and military duty two independent considerations operate together. The desirability in the public interest of permitting free communication of confidential opinions between officers discharging responsible duties combines with considerations arising from the necessity of maintaining complete discipline among the armed forces of the Crown and requiring unquestioning submission to superior authority."

Their Honours went on to say (at 527):

"These observations were subsequently relied upon (Dawkins v Lord Rokeby...) for the proposition that a case involving questions of military discipline and military duty alone is cognizable only by a military tribunal and not by a Court of law. Yet the House of Lords has said that the question of the soundness of this proposition is still open at all events to their Lordships."

The special, and perhaps controversial, policy considerations in the area of military discipline, which need not be pursued here, have subsequently been discussed in the High Court (see Groves v The Commonwealth (1982) 150 CLR 113 at 118, 127, 129, 130, 131 and 132-3; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 per Deane J at 584-5; and for a broader discussion, Re Nolan; Ex parte Young (1991) 172 CLR 460 and Re Tyler; Ex parte Foley (1994) 121 ALR 153). However, some of the general observations made in Gibbons v Duffell are relevant for our purposes.
Gavan Duffy CJ, Rich and Dixon JJ said (at 525):

"Freedom of utterance has always been considered indispensable to the administration of justice, and, therefore, persons acting judicially, advocates and witnesses alike receive absolute protection for what they say. The privilege is an incident of the proceedings of military tribunals as well as of Courts of Justice.

They added (at 525-6):

"The same absolute privilege attends the proceedings of the Legislature. In the executive department of government, communications between Ministers and the Crown, or among Ministers themselves, clearly have complete immunity ... The privilege extends to communications in the course of duty between high officers of State and Ministers ... It includes statements made by the High Commissioner to the Prime Minister ... It has been considered too that an official statement to the Board of Trade prepared by one of its officers to enable it to make its annual general report to Parliament under the Companies (Winding up) Act 1890 was absolutely privileged ... But it was not without the dissent of Cockburn CJ that unqualified privilege was given to the report of a commanding officer of a regiment to the Adjutant-General upon a complaint made by an officer ... In Hart v Gumpach ... Sir Montague Smith speaks of 'the immunity accorded to Judges, counsel, and others engaged in the administration of justice, against actions for statements made in the course of duty, and the recent case of Dawkins v Lord Paulet, in which the same protection was extended to reports made by a military officer for the information of the Commander-in-Chief, were referred to. The immunity in these cases rests upon grounds of public policy and convenience: the object being to secure the free and fearless discharge of high public duty in the administration of justice, and the maintenance of military discipline, on which the welfare and the safety of the State depend."

(It may be noted that it has not been suggested in the present case that a letter written by a litigant to the authorities complaining about the capacity of a judicial officer is absolutely protected on the basis that it is analogous to, or comparable with, a communication between high officers of State and Ministers.)
Their Honours went on to say (at 527-8):

"How far absolute privilege extends in naval and military matters is by no means settled. To transfer it by analogy to the Police officers, who are parties to this action, so as to protect the defamatory statements declared upon involves a double extension of the decided cases. The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd. v Parkinson ...) Its application should end where its necessity ceases to be evident. The functions of an inspector of police are not, either in point of delicacy or consequence, so removed from the common round of official duty, and his situation is not so elevated, as to require for the satisfactory execution of his office the same freedom from apprehension of suits as a Cabinet Minister or a General Officer. The discipline of the Force can survive an investigation of the motives by which he is actuated in detracting from the character of a subordinate."

Starke J said (at 529):

"Statements made in Parliament or in the course of judicial proceedings have, no doubt, absolute immunity or privilege, but this immunity has never been extended to statements made to or before administrative bodies, or authorities, or public officers, whose duty or function is the redressing of public grievances (Royal Aquarium and Summer and Winter Garden Society Ltd. v Parkinson ..."

Speaking of the classes of publication to which the common law had attached complete immunity, Evatt J said (at 534):

"Extension of the privilege by reason of analogies to recognized cases is not justified."

(ii) Other quasi-judicial tribunals
37. In the Royal Aquarium case, above, it was held that a meeting of a County Council for granting Saturday music and dancing licences is not a Court within the meaning of the rule by which defamatory statements made in the course of proceedings before a Court are absolutely privileged.

Lord Esher MR said (at 442-3):

"This doctrine (of absolute immunity in proceedings before a Court or, in the case of "an authorised inquiry", before a tribunal with attributes similar to those of a Court) has never been extended further than to Courts of justice and tribunals acting in a manner similar to that in which such Courts act. Then can it be said that a meeting of the county council, when engaged in considering applications for licences for music and dancing, is such a tribunal? It is difficult to say who are to be considered as judges acting judicially in such a case. The manner in which the business of such a meeting is conducted does not appear to present any analogy to a judicial inquiry. Again, there is another consideration. It is argued for the plaintiffs that this function of granting licences, which has been transferred from the justices to the county council, is not judicial, but merely administrative. The justices had two distinct and separate duties. They had judicial duties. They had to try criminal cases, and in respect of that duty they would be entitled to the absolute immunity which I have mentioned. They had also administrative duties, one of which was this duty of granting licences, and for the purpose of performing these they held consultations among themselves. In the case of duties properly administrative, such as that of granting licences, their action was consultative, for the purpose of administration, and not judicial. When such duties are transferred to the county council, what they do in respect of them is likewise consultative for the purpose of performing an administrative duty; it is not judicial. That consideration also appears to me to shew clearly that the case does not come within the doctrine of absolute immunity applicable to tribunals similar to Courts of justice."

The reasoning in the Royal Aquarium case was approved by Lord Atkin speaking for the Privy Council in O'Connor v Waldron (1935) AC 76 at 81. Lord Atkin went on to say (at 81):

"The question therefore in every case is whether the tribunal in question has similar attributes to a court of justice or (scil. and - see per Lord Diplock in Trapp v Mackie (1979) 1 WLR 377 (at 379) and per Ormiston J in Hercules, above at 61,085-6) acts in a manner similar to that in which such courts act? This is of necessity a differentia which is not capable of very precise limitation. It is clear that the functions of some tribunals bring them near the line on one side or the other; and the final decision must be content with determining on which side of the line the tribunal stands. There must be remembered on the one hand the public policy which protects the independence of the judge; and on the other the public policy which requires that a citizen's reputation must be protected against false and malicious defamatory statements."

Lord Atkin held that an administrative inquiry held under the Canadian Combines Investigation Act 1927 was not absolutely privileged. His Lordship said (at 82):

"While it is true that some tribunals charged with the duty of inquiry whether an offence or breach of duty has been committed have been held entitled to judicial immunity, such as a military court of inquiry ... or an investigation by an ecclesiastical commission ... there were in those cases conditions as to the way in which the tribunal exercised its functions, and as to the effect of its decisions which led to the conclusion that such tribunals had attributes similar to those of a court of justice. On the other hand, the fact that a tribunal may be exercising merely administrative functions though in so doing it must act 'judicially' is well established, and appears clearly from the Royal Aquarium case above cited. If it is exercising such functions it seems to be immaterial whether it is armed with the powers of a court of justice in summoning witnesses, administering oaths and punishing disobedience to its orders made for the purpose of effectuating its inquiries..."

O'Connor v Waldron was distinguished by the House of Lords in Trapp v Mackie (1979) 1 WLR 377, where it was held that evidence given in a statutory inquiry into the dismissal of a headmaster was protected by absolute privilege.
Lord Diplock said (at 379):

"(The reported cases) provide examples of inquiries and tribunals which have been held to fall upon one or other side of a line which as Lord Atkin said in O'Connor v Waldron (1935) AC 76, 81 'is not capable of very precise limitation'.

No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the answer of the judges in Dawkins v Lord Rokeby ... 'give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice.'

So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.

To attract absolute privilege for the testimony of witnesses the tribunal, by whatever name it is described, must be 'recognised by law', a phrase first used by the Court of Exchequer in Dawkins v Lord Rokeby ... This is a sine qua non; the absolute privilege does not attach to purely domestic tribunals."

In expressing reasons similar to those given by Lord Diplock (at 383-4) for upholding the claim of absolute privilege, Lord Fraser said (at 389):

"I rely particularly on the following factors. 1. The inquiry was set up under statutory authority. 2. The object of the inquiry was to enable the Secretary of State to decide a definite issue which was in dispute between the appellant and the education authority, namely whether his dismissal was reasonably justifiable, and it was an essential step towards an effective decision: ... It was quite different from the preliminary investigation in O'Connor ... It therefore possessed the element which in my opinion was the most important for the present purpose. 3. The commissioner was a Queen's Counsel. He was to sit in public. His power to compel witnesses and havers to attend (and the proviso for privilege and confidentiality) and his power to administer the oath all point to a 'fixed and dignified course of procedure.' 4. The commissioner's letter dated May 3, 1960, giving notice of the inquiry, and informing parties that he proposed in conformity with 'the normal legal practice' to allow examination, cross-examination and re-examination of witnesses, points in the same direction. 5. So does the power of a Secretary of State to award expenses."

The criteria identified by Lord Diplock in Trapp v Mackie, at 379, were applied by the Court of Appeal in Hasselblad (G.B.) Ltd v Orbinson (1985) 1 QB 475 in holding that absolute privilege did not attach to proceedings by the Commission of the European Communities in investigating a complaint under Article 89 of the EEC Treaty that a breach of Article 85 of the Treaty had occurred.
Lord Donaldson M.R. (with the agreement of O'Connor L.J and May L.J on this point (at 504, 505-6), said (at 496-7)" -

"When in Trapp v Mackie ... Lord Diplock referred to a tribunal acting 'in a manner similar to courts of justice' and Lord Fraser of Tullybelton at p.385G to tribunals having 'similar attributes' to courts of justice, I think that they must have had a wider concept in mind which would embrace courts of justice operating both under common law and under civil law procedures. The fact that the Commission quite clearly has regard to the rules of natural justice, as shown inter alia by the procedure which gives the alleged infringer a right to an oral hearing, does not advance the matter, because those who take purely administrative decisions are often required to have regard to those rules. However, the fact that the decision is reached by Commissioners, who have not attended the hearing, on the basis of advice from representatives of the European Community nations, who are not directly concerned, seems to me to show that the Commission is acting in a manner which is dissimilar to that of either civil or common law courts of justice and that its attributes are dissimilar to such courts. This is not a criticism of the Commission and its procedures. It is merely an acceptance that the Commission and its procedures fall into a different category, better labelled as administrative rather than judicial or quasi judicial."

(Emphasis added)

O'Connor v Waldron, above, was distinguished in Bretherton v Kaye and Winneke (1971) VR 111 (at 120) in upholding a claim for absolute privilege in respect of statements made in proceedings before a board, established by Order in Council, inquiring into allegations of police malpractice. On the other hand, O'Connor v Waldron was applied in Douglas v Lewis (1982) 30 SASR 50, where a claim for absolute protection, in respect of statements made to a Royal Commission established by statute in South Australia, was rejected. Mitchell J referred (at 58) to the circumstance that the proceedings before the Commission "were not proceedings inter partes".

(iii) Proceedings before professional disciplinary tribunals
47. By a long line of authority, fully reviewed in Hercules, it is settled that proceedings before a solicitors' professional disciplinary tribunal attract absolute privilege (see, e.g., Addis v Crocker (1961) 1 QB 11) as do proceedings under the disciplinary procedure of the Inner Temple (see Lincoln v Daniels (1962) 1 QB 237). In Lincoln, Sellers LJ, after referring to the somewhat different disciplinary proceedings for solicitors discussed in Addis v Crocker, said (at 250):

"The disciplinary procedure of the Inner Temple, as would be expected, provides for as fair a trial as would be available in a court of justice, and the decision of the Benchers is of a like judicial character and not merely an administrative one. As the power to adjudicate is derived from the judges, and as judges presently in office in their capacity as Benchers may be members of the tribunal which hears a complaint, and as an appeal lies to the judges by established practice, I would hold that such an inquiry and decision is recognised by law and is a judicial process to which in the public interest absolute privilege attaches to the full extent of proceedings before a court of justice. It could not, I think, be contemplated that the immunity of the judges would be recognised in one sphere and not in the other which also bears the hallmark of judicial proceedings. I am not unmindful of some of the matters which attach to court procedure, such as hearing evidence on oath and the power to summon witnesses, which do not apply to an Inn of Court disciplinary inquiry, but I do not regard these as vital to the present issue."

In Lincoln, a question arose as to the extent of the absolute privilege. It was held that a communication sent to the Bar Council was not a step taken in the inquiry before the Inn of Court, since the Council was not the agent of the Inn. Sellers LJ (at 251) distinguished Lilley v Roney (1892) LJQB 727 (which was applied in Hercules), where absolute immunity was extended to a letter of complaint against a solicitor in respect of his professional conduct forwarded to the Registrar of the Law Society. The letter, with an affidavit, was in accordance with the form laid down in the rules for setting in motion proceedings which were "admittedly judicial" (61 LJ at 728). Lilley v Roney was applied also in a solicitors' disciplinary context in Teletax Consultants Ltd. v Williams (1989) 1 NZLR 698.
As has been noted, this field has recently been exhaustively reviewed in Hercules, where each member of the Court held, for somewhat different reasons, that a complaint made against a solicitor to a professional body by former clients, pursuant to s.38Q in Part IIIA of the Legal Profession Practice, 1958 (Vic), was absolutely protected. By s.38Q(2), a person aggrieved by alleged misconduct or standards breach may make a complaint to the Secretary of the Law Institute. By s.38Q(3), the Secretary, upon receiving the complaint or upon his or her own motion, may investigate the matter and may, amongst other things, require the solicitor to give an explanation and take other steps necessary to enable the Secretary to determine whether any further action should be taken. By s.38(5), where, after completing the investigation and considering any explanation by the solicitor, the Secretary is of the opinion that there appears to have been misconduct or a standards breach, the Secretary may, inter alia, in certain circumstances, refer the matter to the Solicitors' Board.
Ormiston J (with whom Fullagar J expressed substantial agreement) said (at 61,086) that:

"...statutory jurisdiction and powers of any disciplinary tribunals will ordinarily be regarded as either in addition to or in substitution for the disciplinary powers exercised by common law courts over members of the legal profession and in particular over solicitors."

Ormiston J went on to say (at 61,086) that:

"...insofar as the relevant documents relate to proceedings in a court or a tribunal with similar attributes then absolute privilege extends to the contents of any document which initiates those proceedings, whether it be a writ, a pleading, an originating motion, a summons, an information or a complaint, or any similar document."

Turning to the policy considerations in favour of absolute immunity in this area, Ormiston J (at 61,087-8) identified two: (1) In upholding the rule of law, the need to remove the fear that if the rule were otherwise, judicial officers and witnesses might be sued for merely discharging their duty. (2) The need to encourage citizens to resort to the courts without fear of a suit for defamation.
Ormiston J was of the opinion (at 61,099) that the question whether the complaints came within the absolute privilege applicable to judicial or quasi-judicial proceedings should be answered having regard to the principles which have been laid down in the authorities and which have been supported by the two strands of policy mentioned above. His Honour said (at 61,099):

"In my opinion, when one has regard to those principles and the structure of Part IIIA, a complaint under s.38Q can properly be characterized as initiating process for proceedings in a quasi-judicial Tribunal for which the maker is entitled to claim absolute privilege. This is not because I regard the role of the Secretary as other than primarily investigative but because I would conclude that a complainant must make a complaint pursuant to s.38Q if he or she wishes to bring a matter before the Solicitors' Board."

Ormiston J added (at 61,100):

"In truth it is only the final step, that of assimilating the complaint with the initiating process of a judicial or quasi-judicial body which poses difficulties. As I have said, if the complaint would ordinarily and of necessity have been referred to a hearing of the Board or a Registrar, its apparent informality would not have deprived it of the required characteristics. It may be conceded that it is far less formal than that required of a complainant in the procedure considered by the Divisional Court in Lilley v Roney and want of form may sometimes lead to the conclusion that a document cannot be characterized as process of a court or tribunal, whether or not it be the initiating process. Some requirements as to form would permit the court or quasi-judicial tribunal to exercise control over it and to strike out irrelevant matters. But the wide variety of document granted absolute privilege for this purpose suggests that those considerations cannot, in an era of informality, deny it the necessary characteristics."

His Honour concluded (at 61,101-2) that the complaint should be absolutely privileged, being characterised as an initiating process enabling a person aggrieved to bring a matter before the Board or the Registrar.
Marks J (with whom Fullagar J agreed, with some reservations, to be mentioned below) expressed substantial agreement, and preferred to follow the approach taken by the United States courts in this area. Ormiston J disagreed with this view and his authorities were relied on before us. Fullagar J advised "great caution" in relying on U.S. authorities, but said (at 61,072):

"...what the reasons in the American cases have to say about the great deterrent effect of the prospect of being involved in litigation is in my opinion directly applicable here, as Marks, J has observed."

Fullagar J went on to say (at 61,072):

"Secondly, the consideration which in my opinion leads one to cross the barrier of caution imposed by Gibbons v Duffell ... in respect of administrative and investigative procedures, is the fact that, despite the complexity of the elaborate paraphernalia erected now by Part IIIA of the Legal Profession Practice Act, the step taken by the respondent to each appeal, for which the protection of absolute privilege is sought, was not simply a step in an investigative procedure but was a step which it was essential for the respondent to take in order to set in motion the ponderous machinery by which alone a solicitor may be disciplined by his/her governing body for misconduct."

(iv) Procedures for dealing with complaints against judicial officers
58. For the sake of completeness, it should be noted that, with one possible exception, there appears to be no reported case dealing with the present question of whether a complaint made to the Attorney- General about a judicial officer is absolutely protected. However, in at least one jurisdiction, there is, apart from Parliamentary practice, a statutory procedure by which complaints against judicial officers may be dealt with by two tribunals, the Conduct Division of the New South Wales Judicial Commission and the New South Wales Independent Commission against Corruption (see Judicial Officers Act 1986 (N.S.W.), discussed by the Hon. Mr. Justice M.H. McLelland, "Disciplining Australian Judges", (1990) 64 ALJ 388 at 389-94; see also Independent Commission against Corruption Act 1988 (N.S.W.) discussed by McLelland J, op. cit. at 394-99). The procedures, in particular the Parliamentary practice, in dealing with the removal of several judicial officers, including Federal magistrates, were described in the Report of the Advisory Committee to the Constitutional Commission (1987) at para. 5.43 (and following) and in the Final Report of the Constitutional Commission, 1988, Vol. 1 at para.6.180 and following. Occasionally, in recent times, special ad hoc legislation, Federal and State, has been enacted to inquire into the behaviour of nominated judges (see Parliamentary Commission of Inquiry Act 1986 and Parliamentary (Judges) Commission of Inquiry Act 1988 (Qld.) discussed by McLelland J, op cit, at 399-401).

The possible exception mentioned above is an early decision of the Court of Queen's Bench of Upper Canada (see Stanton v Andrews (1836), 5 UCQB (OS) 211 (CA) per MacAuley J) where a petition to the Lieutenant-Governor of the Province complaining of the conduct of the Commissioners of the Court of Requests and requesting their replacement, was held to be absolutely privileged. MacAuley J said at 240-1:

"Touching the judicial character of the petition, it will be remembered that the plaintiff holds a judicial office during pleasure, removable by the lieutenant governor at discretion, and that, as such, he is complained against by the defendant and others, who invoke enquiry and pray for relief from the proper quarter - from one competent to afford it, by the effectual step of dismissal, and therefore authorised to institute such enquiries as may enable him to form a satisfactory decision upon the merits, and to remove or exonerate, according to the result. The privilege afforded in courts of justice is well known, and petitions to either house of parliament are equally protected, and similar reasons of policy and justice would seem equally to apply upon principle to petitions to the crown."

MacAuley J (at 241) referred to the rule of absolute protection of anything said in the course of a judicial proceeding.
Robinson CJ said (at 220):

"Whether in the case of a petition to the king or the lieutenant governor, or even in the case of a petition to either of the houses of the legislature, the privilege is so absolute that the conclusion in favor of the defendant is incapable of being repelled, may admit of doubt. Evidence of malice, coupled with a knowledge that the statements were false, or the inference of malice, arising from the certain consciousness on the part of the defendants that the statements were false, may perhaps constitute so clear a case of a flagrant and intentional abuse of the right of petitioning, as to give the injured party a claim to legal redress... But if in any such case an action for libel could be supported, which I doubt, the case must be extreme, the proof clear, and the abuse manifest."

Sherwood J (at p.222) appears to have regarded the matter as one of qualified privilege.
The case is of doubtful authority. Brown in The Law of Defamation in Canada (1987) Vol. 1, expresses the view (at 458) that the conclusion of Sherwood J is the preferable one since the governor does not directly initiate judicial proceedings.

(vii) Was absolute privilege available here?
64. As has been noted, it is accepted by the appellant, correctly I think, that this was an occasion of qualified privilege, as was the communication in Gibbons v Duffell, above (at 524-3). But, as in Gibbons, it is not possible, in my view, to elevate the status of these complaints to that of an act of State which attracts absolute privilege, like communications relating to a State matter made by one State official to another (see Gibbons v Duffell at 530). That criticism made in good faith and without malice of those engaged in the administration of justice attracts qualified privilege is well established (see Ambard v Attorney-General for Trinidad and Tobago (1936) AC 322 per Lord Atkin at 335; see also Nationwide News Ltd. v Wills (1992) 177 CLR 1 per Mason CJ at 32). But the present question is not merely one of qualified privilege.

In our respectful opinion, it is going too far, as a matter of principle and of authority, to hold that the absolute immunity, which attaches to judicial or quasi-judicial proceedings, is attracted by the communications presently under consideration. In particular, that extreme degree of protection is not attracted merely because the Attorney, as the administrative decision-maker, is bound to accord natural justice, in the form of procedural fairness (see Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 83), to the appellant (see Gatley on Libel and Slander (8th ed) London, 1981, 407; G.S. Bower The Law of Actionable Defamation (2nd ed) 1923 88-89). On no view could the consideration by the Attorney of the respondent's complaints properly be characterised as judicial or even quasi-judicial proceedings; noting in this connection that in the immunity context what is "quasi-judicial" differs from its connotation in other contexts, e.g. in administrative law (see A. Olowofoyeki, Suing Judges: A Study of Judicial Immunity, Oxford, 1993, at 80-81).
As Macpherson J said in Purden v Seress-Smith (1993) IRLR 77 (at 79):

"...the protection of absolute privilege ought to be limited to judicial and semi-judicial proceedings".

As has been seen, the rationale for the absolute immunity is the overriding need to encourage citizens to resort to the courts to resolve their disputes. This policy is also fulfilled when the State, instead of permitting access to the courts in certain matters, e.g. military or professional discipline, allows for an alternative method of dispute resolution by a special tribunal. In that context, the tribunal is, in truth, a substitute for a court and thus it is only appropriate that the tribunal should enjoy the same immunity as a court. What happened in the present case was in no sense part of a process of that kind. Here there is no tribunal or anything like a tribunal for the resolution of a dispute. Even if absolute immunity should not, as Ormiston J pointed out in Hercules (at 61,100) depend upon the need for a formal communication, it is an essential ingredient of this rule that the statement be made in judicial proceedings or their equivalent. Even if it be assumed that, notwithstanding his limited tenure of office at the "pleasure" of the Governor-General, the appellant is entitled to a hearing (cf. Attorney-General (NSW) v Quinn (1990) 170 CLR 1.), the consideration of whether or not to remove him cannot, in our opinion, be characterised as a "quasi-judicial" proceeding for the purpose of the absolute immunity rule.
After the hearing of this appeal had concluded, the High Court has held, in several decisions (see Theophanous v Herald and Weekly Times Ltd. (1994) 124 ALR 1; Stephens v West Australian Newspapers Ltd. (1994) 124 ALR 80; Cunliffe v Commonwealth of Australia (1994) 124 ALR 120) that there is implied in the Commonwealth Constitution a freedom of communication on Government and political matters. However, no such implied right was pleaded here. Whilst nothing appears from the observations made in those judgments which bears directly upon the present question, it is significant for present purposes that, although Deane J expressed a different view in the case of "judges and other holders of high office", the majority (Mason CJ, Toohey and Gaudron JJ) held that the implied constitutional freedom was a qualified, and not an absolute right (see Theophanous per Mason CJ (at 19), per Deane J (at 53, 56, 57, 58, 60, 61, 62, 63); per McHugh J (at 78); Stephens per Brennan J (at 94, 101, 103-4); per McHugh J (at 114-5, 116, 118); Cunliffe per Mason CJ (at 132), per Deane J (at 162-3, 164), per Dawson J (at 184), per Toohey J (at 195, 198) per Gaudron J (at 201) and per McHugh J (at 207)).
We have also now had the benefit of reading the draft judgment of Carr J. With respect, we cannot agree that the present question is to be resolved by reference to considerations of public policy in any general way.
For one thing, there are special reasons for the grant of absolute immunity in the case of court proceedings which have no application here.
In Roy v Prior (1971) AC 470, Lord Wilberforce said (at 480):

"Even if one concentrates attention upon the evidence given by the defendant Mr. Prior in the Central Criminal Court, I can see no reason of public policy for basing immunity from civil action upon this circumstance. The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence.

But none of this applies as regards such evidence as was given in support of the application for a bench warrant. It was given ex parte: Dr. Roy had no means, and no other party any interest, in challenging it: so far from the public interest requiring that it be given absolute protection, that interest requires that it should have been given carefully, responsibly and impartially. To deny a person whose liberty has been interfered with any opportunity of showing that it was ill founded and malicious, does not in the least correspond with, and is a far more serious denial than, the traditional denial of the right to attack a witness to an issue which has been tested and passed upon after a trial. Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest. So checked, the present case provides no justification for protecting absolutely what the solicitor said in the court." (Emphasis added)

Moreover, in our opinion, the authorities make it clear that, although it involves an argument based on public policy, the rule is that it is only "courts in law", as distinct from "courts in justice", to which the law attaches the absolute immunity. Referring to the judgment of Fry L. in the Royal Aquarium case, supra, Lord Scarman said (Attorney-General v British Broadcasting Corporation (1981) AC 303 at 356-7):

"This led him to the view, which is, I think, constitutionally correct and true to the historical origins of our court system, that the existence of immunity from suit for defamation, which participants in a court's proceedings enjoy:

'...does not depend upon the question whether the subject-matter of consideration is a court of justice, but whether it is a court in law. Wherever you find a court in law, to that the law attaches certain privileges, among which is the immunity in question.' (see p.447) I would add that, though a court in law will also have the protection of the doctrine of contempt of court, it does not follow that because an institution enjoys the protection for its proceedings of absolute privilege it necessarily follows it has also the protection of the law relating to contempt of court. Nevertheless 'a court in law' will have the two protections. Fry L.J then directed his attention to a submission of the defendant in that case, namely that whenever a body has to decide questions, and in so doing has to act judicially, it must be held that there is a judicial proceeding to which the immunity of absolute privilege ought to attach. He rejected it; and I find his reason for doing so of considerable assistance in reaching a conclusion upon this appeal.

...

It is an argument based on public policy. Different considerations apply to contempt of court, of course. Nevertheless, the warning of Fry L.J is one to which I shall return when considering the great number of tribunals (some of them described as courts) which Parliament has found necessary to establish in its attempt to secure public acceptability of the activities of modern central and local government. But essentially the Court of Appeal in the Royal Aquarium case ... was approaching the categorisation of a body entrusted with a judicial function in the same way as it had done in the St. Mary Abbotts case .... It considered that the existence of a judicial function did not necessarily make the body to which it was entrusted 'a court in law'; nor did it necessarily attrract 'the privileges' enjoyed by a court in law. In each case the judges stressed the importance of the purpose which the judicial function was intended to serve. If it be administrative, the body would not be a court in law."

In other words, the present question is not whether there are policy considerations in favour of the extension of the absolute immunity to a novel situation. Even if it were, these considerations would not, in our view, point unequivocally to an extension of the privilege, for several reasons. First, the matter may attract qualified privilege. As the New South Wales Law Reform Commission Discussion Paper on Defamation (No. 32, August 1993) noted (at 137-8), "the existence of another form of protection which the correspondent can invoke (i.e. qualified privilege) is an additional reason for confining the very substantial protection of absolute privilege to the narrow class which incontestably falls within the designated purpose." Secondly, even law reform bodies have been extremely cautious in suggesting extensions in this area (see Rajski v Carson (1988) 15 NSWLR 84 (at 92); New South Wales Law Reform Commission Discussion Paper No. 32, Defamation, August 1993 at 121, 122, 136, 137; cf. Judicial Officers Act 1986 (NSW) s.48(2); Defamation Act 1974 (NSW) s.17A-17R). Thirdly, it is by no means clear that all criticism of the judiciary will assist in improving the administration of justice. Such criticism usually will attract qualified privilege but where it does not, it may have a detrimental effect on the administration of justice (see the extrajudicial observations of Sir Anthony Mason in Address to the Law Society of New South Wales, 27 October 1994, at p.8-11).
It follows, in our view that the appeal should be allowed, with costs.

ORDERS
75. We would propose that the appeal be allowed, with costs, and that the final orders made at first instance be set aside. In lieu thereof, it should be ordered that the plea of absolute privilege pleaded in para.6 of the defence be struck out and that the respondent pay the appellant's costs at first instance of the separate question.

JUDGE2

CARR J I have had the advantage of reading, in draft form, the joint reasons for judgment of Beaumont and Ryan JJ in which the factual circumstances and the circumstances whereby this matter is before the Full Court are outlined and which contain a comprehensive review of the authorities relating to the matter of absolute privilege in the context of the administration of justice.

The question is whether absolute privilege or immunity from an action for defamation attaches to a complaint against a special magistrate in the Australian Capital Territory published to the Attorney-General for the Commonwealth, the Minister for Justice of the Commonwealth and the Chief Magistrate of the Territory. If so, the plea by the respondent in his defence of absolute privilege is a good one and this appeal should be dismissed. It should be noted that the appellant has not attacked the respondent's alternative plea of qualified privilege.
In these reasons I refer to absolute privilege or absolute immunity with the intention of using those expressions interchangeably. This is out of deference to the compelling argument of Spencer Bower in Appendix VIII of "The Law of Actionable Defamation" (2 ed) that the correct term is "immunity", and the use of that term in, for example, Jamieson v. The Queen (1993) 177 CLR 574.
Somewhat surprisingly, there is no binding authority on the point at issue in this appeal and neither is there any persuasive (in the technical sense of that word) authority directly in point.
In other words, there does not appear to be any case which has decided whether absolute privilege or absolute immunity attaches to the communication, directed to the appropriate authority or authorities, of a complaint against a judicial officer concerning that person's fitness to hold office.
It is probably idle to speculate why this should be the case. The reasons might include:

(a) the absence or infrequent occurrence of any judicial behaviour which would justify the sending of such a letter of complaint;

(b) assuming that such behaviour has on occasion occurred, the parties interested may have been deterred from making such a complaint by the prospect of being subject to a defamation action. The costs involved in such proceedings and a perception of the problems of being sued by a magistrate or judge might be significant deterrents;

(c) even without such deterrent effect, the persons interested may simply not have bothered to make the complaint; or

(d) when complaints have been made, even unjustified complaints, magistrates and judges may have refrained from issuing proceedings for defamation.

The list of possibilities is not meant to be exhaustive.
In the absence of directly binding or persuasive authority, it seems to me that it is appropriate to search for the basic principle upon which absolute privilege or absolute immunity attaches to what might otherwise be defamatory matter.
A starting point might well be the reasons for judgment of Gavan Duffy CJ, Rich J and Dixon J in Gibbons v. Duffell (1932) 47 CLR 520 at p 528:

"The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd v. Parkinson (1892) 1 QB 431). Its application should end where its necessity ceases to be evident."

As Heerey J pointed out (121 ALR at p 534), Gibbons v. Duffell was concerned with a separate head of absolute privilege, that of communications between high officers of State. The fact that the appellant in that case was an inspector of police communicating with his superintendent (neither of whom fell into the required category) was a major factor in the High Court's decision that that head of absolute privilege did not apply to the communication in question.
To attach absolute privilege or absolute immunity only to a complaint which can be characterised as the initiating process for proceedings in a court or a tribunal recognised by law is, in my view, to limit unduly the public policy that judicial functions be performed effectively.
In Hercules v. Phease and Lah (1994) Aust. Torts Reports 81-263 (a decision of the Appeal Division of the Supreme Court of Victoria) the question arose whether the policy applied to extend absolute immunity to a complaint against a solicitor made to the Secretary of the Law Institute of Victoria. Ormiston J held that absolute immunity applied because, in accordance with the traditional statement of the principle, the complaint was to be characterised as the initiating process for a quasi-judicial proceeding. His Honour concluded (at p.61,097) that

"... there is no additional policy of the law, and thus no new head of "public policy", which permits a complainant in this State to rely on absolute privilege in making his or her complaint to an investigative body set up to ensure the proper discipline of the legal profession in this State."

However, Marks J (with whom Fullagar J agreed on this point) took a broader view and held that public policy requires that absolute privilege be accorded to the occasion of the making of a complaint to an appropriate body in respect of a solicitor. I set out below some relevant passages (at pp.61075 and 61079-61080) of Marks J's reasons for judgment in that case:
"The difficulty arises, I think, from the focus in

the English decisions on identifying a tribunal which has the attributes of a Court. While it is emphasised that the principle underlying absolute privilege is grounded in public policy, there is an absence of discussion about the requirements of public policy in regard to the initiation of complaints of public importance and their preliminary investigation. In my opinion the same public policy considerations, as lead to immunity from suit of participants in judicial and quasi-judicial proceedings, require that the same immunity be accorded to members of the public exercising rights and freedoms accorded and safeguarded by the judicial arm of Government.

. . .

The relevant public interest here does not permit of too much disputation. It is to protect the trusting against the trusted. It is said, however, that the trusting often leap to wrong conclusions, become irrational and endanger the good reputation of professional persons by making unfounded allegations against them. Litigants, it is said, are bad losers and will unfairly cast blame on their legal advisers rather than on the merits of their case. In the first place, not all unfounded complaints are defamatory. But, in any case, there can be no better safeguard of reputation against unfounded complaints than the existence of a disciplinary tribunal which is capable of exonerating persons against whom unfounded complaints are made.

Moreover, it should not be overlooked that the category of professional persons against whom members of the public need most protection, are those who attempt to "gag" a complaint by the issue of legal proceedings such as those here.

...

The regulation of the legal profession and supervision over disciplinary procedures is an integral part of the judicial arm of Government which is dependant for its proper service to the public, not only on the integrity of the courts, but on the integrity of all those who practice before them and provide legal services."

In my view, much of which Marks J states in the above passages as being applicable to complaints against solicitors applies equally to complaints against magistrates and judges. In fact, where such judicial officers are concerned, the statements seem even more appropriate. (In fairness to the appellant, as Heerey J pointed out, ((1994) 121 ALR at p.536) there is no suggestion that the present proceedings involved a "gag writ".)

Accordingly, with the greatest of respect to Beaumont and Ryan JJ I find myself in a situation where I have to disagree with their Honours' assessment that the rationale or policy underlying the rule is confined to the need to encourage access to the courts. I think that the principle must, with all due caution and appropriate safeguards, be given slightly wider application.
In my opinion, it is a matter of fundamental importance to the proper administration of justice (and hence a matter of important public interest), that a member of the public who feels that the holder of a judicial office is incompetent should be free to communicate that concern to an appropriate person. By referring to "an appropriate person" I refer to a person responsible for activating the due processes for removal of judicial officers who are no longer qualified to hold that office. The question is - how free should the would-be complainant be? Totally free? Only up to the point where he or she can prove there was no malice? A major relevant factor is that the threat of a defamation writ issued on behalf of a magistrate or judge might well deter the forwarding of legitimate complaints even where it is clear that there is no malice. There are the matters of legal costs and the perceived status of the plaintiff to be considered, to which I have referred above as being possible deterrents to would-be complainants. Even if the deterrent effect is to reduce the number of such complaints, that would also be a matter of concern. One complaint on its own might not attract the same attention as one among many similar or related complaints.
Attaching absolute privilege or absolute immunity to such communications may encourage illegitimate complaints, but there are adequate protections in that regard. To start with, as Marks J observed in Hercules at p.61080, the strong likelihood is that unfounded allegations made only to a proper authority would never see the light of day if care is exercised not to publish the complaint any further. Secondly, if the defamatory material is published by the complainant more widely than required to activate the due processes referred to above, then absolute privilege or absolute immunity would not attach. This was a matter which the learned trial judge noted (121 ALR at p.535).
In terms of the wider ground of public policy recognised and applied by Marks and Fullagar JJ in Hercules the question is whether "... the public policy which requires that a citizen's reputation must be protected against false and malicious defamatory statements." (Lord Atkins in O'Connor v. Waldron (1935) AC 76 at p 81) is to prevail over the public interest that members of the public should be free to communicate their complaints about incompetent judicial officers to the appropriate authority. In my opinion, when the question is thus framed the answer becomes clear. The former public interest must give way to the latter and absolute privilege or absolute immunity should extend to such complaints. I would regard that degree of freedom from suit to be indispensable to the effective performance of judicial functions.
For those reasons, I do not think that it matters whether the respondent's letters of complaint can be characterised as the initiating process for proceedings in a court or a tribunal or in other proceedings which have sufficient attributes to be similar enough to those of a court. The public policy where the continued tenure of judicial office is in issue must surely be that anything said in such proceedings or in such tribunal should attract absolute privilege or absolute immunity. Likewise, that privilege or immunity should extend to the document or oral complaint which initiates the processes of inquiry and decision as to whether the judicial officer will remain in office. In any event, it seems to me almost inconceivable that a tribunal carrying out such a function is not "recognised by law", being the phrase used by the Court of Exchequer in Dawkins v. Lord Rokeby (1873) LR 8 QB 255 and referred to with approval by Lord Diplock in Trapp v. Mackie (1979) 1 WLR 377 at p 379. I acknowledge that at the same page Lord Diplock observed that absolute privilege does not attach to purely domestic tribunals, but the House of Lords in that case held that evidence given by a witness in a statutory inquiry into the dismissal of a headmaster was protected by absolute privilege. Whether the inquiry has a statutory basis does not seem to me to be an appropriate factor for distinguishing those inquiries to which absolute privilege or absolute immunity extends from those to which absolute privilege or absolute immunity does not extend. In this matter we are concerned with an inquiry which might lead to the dismissal of a special magistrate. The fact that the dismissal would come about by the Governor-General withholding his pleasure (s.10J of the Magistrates Court Ordinance 1930 (A.C.T)) does not, in my opinion, alter the situation when one considers the practical reality that the Governor-General will act upon the advice of Cabinet which in turn would doubtless have regard to a report furnished after an inquiry. Without denigrating the importance of headmasters, an inquiry which may result in the dismissal of a judicial officer, whether such inquiry be statutory in its basis or otherwise would, in my view, be somewhat higher in the scale of things. See Bretherton v. Kaye and Winneke (1971) VR 111. In that case Gillard J held that an opening address by counsel to a Board of Inquiry appointed to investigate allegations of police malpractice in Victoria, was absolutely privileged. The Board of Inquiry could, by virtue of the provisions of the Evidence Act 1958 (Vic.) compel witnesses to attend and give evidence on oath. However, as Gillard J noted at p.126:

"... although the board of inquiry was an administrative body, ... and although such Board could not give a determination of right binding parties or affecting status, nevertheless its conclusions on the facts in relation to named persons are of importance to the body appointing it."

It seems reasonable to assume that the criteria summarised by Lord Diplock in Trapp are not to be regarded as being of equal weight in allcircumstances. Sometimes one criterion out of the four will outweigh another criterion, or possibly all of the other criteria.
The authority under which a tribunal or like body acts to conduct an inquiry for the purpose of advising the Governor-General whether to terminate the appellant's appointment would probably be a specific appointment by the Attorney-General. The inquiry would be very different to a domestic forum which derives its authority solely from the submission or consent of the parties.
While the tribunal or other inquiring body's decision would not directly affect the status or rights of the appellant it would have a major influence on the final decision.
It seems to me that the tribunal or inquiring body would adopt court-like procedures, would conduct its hearings in public, would require evidence to be taken on oath or affirmation, and would allow interested parties to be represented by counsel. It is simply not possible to say whether it would have power to compel the attendance of witnesses. It is possible to say that the determination of the appellant's fitness to hold office would be a matter of public concern. The learned judge at first instance, in my opinion correctly characterised such a hearing as one that would be "recognised by law" and I respectfully agree with the reasoning by which his Honour came to that conclusion.
Once such a hearing is identified, the next question (where the narrower public policy ground is being applied) is whether the document upon which the defamation proceedings were based was a document necessary for the initiating of that inquiry. Heerey J held that it was such a document. I respectfully agree with that conclusion and the reasoning which led to it - which was based, by analogy, on the reasoning in Hercules and in the High Court of Australia decision of Jamieson v. The Queen. In those circumstances, it is not necessary for me to consider whether the respondent's letters in this matter were published more widely than required and, for that reason, might not attract absolute immunity under the broader head of public policy to which I have referred above as being identified by Marks and Fullagar JJ in Hercules.
For the above reasons I regret that I differ from the conclusion to which Beaumont and Ryan JJ have come. I would dismiss the appeal not only for the reasons given by Heerey J at first instance but also for the further, broader policy reasons adopted by Marks and Fullagar JJ in Hercules in respect of complaints against solicitors. I would apply the same reasoning to complaints against magistrates and judges.
Since preparing the above reasons I have had the further advantage of reading Beaumont and Ryan JJ's amended draft reasons in this matter. I have also read the reasons for judgment in the trilogy of recent High Court decisions to which their Honours refer. I have found the question which arises in the present matter a fairly difficult one to answer. In maintaining the views which I have expressed above as to how the question should be answered, I have drawn some comfort from the observations of Deane J in Theophanous v. Herald and Weekly Times Ltd (1994) 124 ALR 1 at pp 58-63. Deane J saw the constitutional freedom of political communication, which was the subject matter of that appeal, as being, so far as it involved statements about the official conduct or suitability for office of holders of high government office (including judges), an absolute freedom which was not conditioned in the manner described by Mason CJ, Toohey and Gaudron JJ. When originally drafting these reasons, but before reading those observations, I had considered referring to the symmetry discussed by his Honour at pp.58-59. That symmetry arose if absolute privilege were extended to those who would criticise the official conduct or suitability of holders of high government office who themselves were protected by absolute privilege in respect of defamatory words published by them in the course of parliamentary or court proceedings or in certain official communications. At the time, I decided against doing so because I could find no authority. It is pleasing to see that the void no longer exists. At p.53 his Honour describes the defence of qualified privilege as "an unreliable shield". In my view, the appeal should be dismissed with costs.

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Citations

O'Neill, J.J. v Mann, A. [1994] FCA 923 ((1994) 126 ALR 364; (1994) 54 FCR 212)

Most Recent Citation

O'Neill v Mann [2000] FCA 1180

Cases Citing This Decision

5

Lassanah v State of New South Wales [2009] NSWDC 73

Cases Cited

20

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0

O'Neill v Mann [2000] FCA 1680

Jamieson v The Queen [1993] HCA 48

Parker v The Commonwealth [1965] HCA 12

[1994] FCA 923

14 DECEMBER 1994