O'Neill, JJ. v Mann, A
[1994] FCA 207
•21 APRIL 1994
JAMES JOSEPH O'NEILL v. ARNOLD MANN
No. ACTG15 of 1994
FED No. 207/94
Number of pages - 15
Defamation
(1994) 49 FCR 370
COURT
IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY
GENERAL DIVISION
HEEREY J
CATCHWORDS
Defamation - absolute privilege - letter of complaint to Attorney-General concerning ACT special magistrate - special magistrate holding office during pleasure of Governor-General - whether requirement of a hearing before termination - whether letter of complaint attracts absolute privilege.
Federal Court Rules 0.29 Div 1; O.20 r.2
Magistrates Court Ordinance 1930 (ACT), ss.5(1), 6A, 7, 10, 10A, 10D, 10H, 10J, 10K, 10L
Addis v Crocker (1961) 1 QB 11
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Attorney-General (NSW) v Quin (1990) 179 CLR 1
Bretherton v Kaye and Winneke (1971) VR 111
Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (Federal Court, Full Court, 25 March 1994)
Dawkins v Lord Rokeby (1873) LR 8 OB 255
Dawkins v Lord Rokeby (1875) LR 7 HL 744
Douglass v Lewis (1982) 30 SASR 50
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Gibbons v Duffell (1932) 47 CLR 520
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
Hercules v Phease (Supreme Court of Victoria, Appeal Division, 17 December 1993)
Jamieson v R (1993) 116 ALR 193
Johns v Australian Securities Commission (1993) 116 ALR 567
Kioa v West (1985) 159 CLR 550
Lincoln v Daniels (1962) 1 QB 237
O'Connor v Waldron (1935) AC 76
Royal Aquarium Summer and Winter Garden Society Limited v Parkinson (1892) 1 QB 431
R v Skinner (1772) Lofft 54, 98 ER 529
Testro Bros Pty Ltd v Tait (1963) 109 CLR 353
Trapp v Mackie (1979) 1 WLR 377
HEARING
CANBERRA, 8 April 1994
#DATE 21:4:1994, ADELAIDE
Counsel for the plaintiff: D Rofe QC with B Hull
Solicitor for the plaintiff: Phillips Fox
The defendant appeared in person
ORDER
The Court Orders:
1. Judgement for the defendant.
2. The plaintiff pay the defendant's costs including reserved costs.
3. The orders for the filing and service of further pleadings made on 8 April 1994 are vacated.
4. The hearing date fixed for 27 June 1994 is vacated.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
JUDGE1
HEEREY J The plaintiff was a special magistrate in the Australian Capital Territory. On 20 October 1988 the defendant wrote to the Attorney-General for the Commonwealth a letter complaining about the performance and capacity of the plaintiff and sent a copy of the letter to the Chief Magistrate of the Territory. On 3 January 1989 the defendant sent a letter on the same theme to the Minister for Justice. In answer to the plaintiff's action for defamation the defendant has pleaded the defence of absolute privilege.
The question raised by this plea has, by consent of the parties, been tried separately under Order 29 Division 1 of the Federal Court Rules, the action having been commenced in the Supreme Court of the Australian Capital Territory and cross-vested to the Federal Court. Application is also made by the defendant under Order 20 rule 2 for orders staying or dismissing the action.
The Letters Complained of
3. The first letter was in the following terms:
"Re: Magistrate J.J.O'Neill
The above Magistrate sits almost exclusively (I believe) in the Small Claims Court of the Australian Capital Territory. As author of "Medical Assessment of Injuries for Legal Purposes" (Butterworths 1985) now in its fourth edition, I am a frequent expert witness in the ACT Courts. However, apart from an alleged minor traffic offence which I successfully defended, I have not been a defendant since I came to the ACT in 1974.
I was therefore somewhat surprised to find myself as the defendant in two cases both of which initially came before Magistrate O'Neill this year.
In the first case PSC 88/3382 Mr. Charles Robert Foley of 62 Atkinson Street Queanbeyan New South Wales alleged that whilst I removed a tiny mole from his left forearm, I did not act as a reasonably competent surgeon, that I had produced scarring, nervous shock, pain and suffering and "traspas" (sic) of his person. He also, in effect, alleged assault. The very nature of these preposterous allegations were such as to arouse suspicion in anyone reasonably alert. The man's behaviour during the time that he was under my care led me to the conclusion that he was mentally disturbed. He was a member of Alcoholics Anonymous and was a former drug user.
I therefore applied to Mr. O'Neill to have the claim struck out on the following grounds:
1. There was no evidence of damages.
2. The claim was vexatious.
3. The claimant's mental instability would be aggravated by litigation.
This was heard by Mr. O'Neill who dismissed my application without making the slightest effort to determine what it was that Mr. Foley was suffering from, what he was alleging and whether he had the slightest medical evidence to back up his claim. (He had none.)
In the meantime Mr. Foley enjoyed himself by sending me numbers of express courier letters and suggesting that it would be much cheaper for me to settle the case than to fight it. He also threatened to report me to the Medical Board after his inevitable victory in court, and he suggested that I settle the matter on reasonable terms to avoid any embarrassment to me.
I enclose a copy of the letter in which this offer was made. As you will see from this letter, Mr Foley was well aware:
(a) that it was cheaper for all concerned to pay him off, and that this is what he was bargaining for.
(b) my whole reputation was at stake, whereas he had practically nothing to lose.
As he is a public servant he probably was paid a salary during the time in court.
Accordingly, I approached Mr O'Neill, this time through my solicitor, to have the case transferred to the Magistrates Court so that we could recover legal costs. Mr O'Neill dismissed this claim also.
The upshot of this was that the matter was heard by Magistrate Hogan. The hearing took one and a half days, costing me, in the time spent, something over $1,000. The Medical Defence Union was probably involved in costs greatly exceeding the claim of $2,000 and all for a vexatious claim without a shred of evidence to support it. At the end of the day, so unmeritorious was the claim, that Mr. Hogan did not even wish to hear from Mr. Lunney, the barrister representing me, in summing up. The claim was dismissed on all grounds and Mr Foley's evidence was not believed.
As costs are not award in Small Claims matters, allowing such cases to proceed can only bring the Small Claims Court into disrepute.
The second case involved Purdon and Associates Pty. Ltd. (PSC 88/1697)
At my request Mr Purdon of that company had prepared three rough sketches in connection with the possible subdivision of a 2 acre property in Red Hill. It was made clear to him that this was advertising material in connection with a forthcoming auction and I emphasised that I did not want detailed plans. There was no written contract and no sum had been agreed upon for this work. The nature of the request was clear - it was advertising material, nothing more. He was also asked to redraft a letter I has (sic) prepared to send to the NCDC in connection with a possible subdivision. I was therefore astounded to receive a bill from Purdon and Associates for $2,000.00 and I felt that this was an excessive amount. I did not deny that a contract existed. I merely contested its nature and the charge for it.
At the hearing before Mr. O'Neill, Mr Purdon presented the court with 'notes made at that time.' These indicated, inter alia, that he had drawn up two sketches and that he had delivered these on Saturday morning. In cross-examination I was able to show that he had in fact drawn three sketches (which I still possess) and he admitted that in fact that I had collected the sketches from him. The obvious inference from these flaws in notes allegedly made at the time was that they were nothing of the sort, and that inference from this was that the alleged two and a half days work involved in drawing up these rough sketches was also a piece of fabrication
Moreover, even granting that it took two and a half days, I had authorised nothing of the sort.
Mr O'Neill found that the total sum claimed by the plaintiff even though the details sent to me when I requested a full account came to 450.00 less than that sum. That was for disbursements, Mr Purdon stated.
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 by judgement 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.
I would also respectfully request that you order the matter of Purdon and Associates -v- Arnold Mann to be reheard if that is at all possible.
I have spoken about this to the Chief Magistrate, Mr Cahill and he has requested a copy of my letter to you."
The letter to the Minister for Justice was as follows:
"In my letter to the Attorney General I stated as a medical practitioner of 35 years standing that I expected and (sic) member of the magistrates court was suffering from early signs of senile dementia.
I should have though (sic) that this letter required from you one of the following responses:
1. A letter stating that Mr O'Neill was normal mentally; that is, my suspicion was unfounded.
2. Mr O'Neill was to cease to hear cases pending an investigation.
3. That the matter was being investigated. 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 existence of the letter to the Minister for Justice only came to the knowledge of the plaintiff fairly recently. At the hearing before me application was made by counsel for the plaintiff to amend the statement of claim by alleging an additional cause of action based on that letter. The defendant, who appeared in person, did not oppose that application and leave was granted. A direction was given that an amended defence be filed and served within 14 days. The defendant indicated that the amended defence would include a plea of absolute privilege in relation to the new cause of action and the application before me proceeded on the assumption that the plea of absolute privilege, if good, would apply to both letters.
Special Magistrates in the ACT - Appointment and Removal
6. The events with which this case is concerned occurred before the grant of self government to the Australian Capital Territory on 11 May 1989. Accordingly the Ministers responsible for the administration of justice in the Territory were Commonwealth Ministers and the applicable legislation was the Magistrates Court Ordinance 1930 (the Ordinance).
Part II of the Ordinance headed "Appointment and Jurisdiction of Magistrates" includes "Division 1 - Appointment of Chief Magistrate or Magistrates" and "Division 2 - Special Magistrates". In Division I there are the following relevant provisions:
Interpretation
"6A. In this Division, "Magistrate" means -
(a) a person who holds the office of Chief Magistrate; or
(b) a person who is appointed under section 7 to hold an office of Magistrate. Chief Magistrates, Magistrates
7. (1) For the purposes of this Ordinance, there shall be a Chief Magistrate and such other Magistrates as from time to time hold office in accordance with this Ordinance.
(2) The Chief Magistrate and each other Magistrate shall be appointed by the Governor-General.
(3) Where a person holding an office of Magistrate is appointed to hold the office of Chief Magistrate, the person ceases to hold the office of Magistrate.
8. ...
9. ...
Terms and conditions of appointment
10. Subject to the Remuneration Tribunals Act 1973, a Magistrate -
(a) shall be paid such remuneration and allowances; and
(b) holds office on such terms and conditions, as the Governor-General, from time to time, determines. 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. ...
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. 10E. ...
10F. ...
10G. ...
Division 2 provides 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."
Sections 6A and 10A to 10L were introduced by amending Ordinance No. 4 of 1977. Section 5(1) provides that in the Ordinance unless the contrary intention appears ...
"'Magistrate' means the Chief Magistrate, a Magistrate or a special magistrate appointed under this Ordinance ..."
As a special magistrate, the plaintiff held office under the provisions of Division 2 of Part II. His removal from office would be governed by s.10J and not s.10D, which only applies to a Magistrate (including the Chief Magistrate) appointed under s.7.
The provisions relating to the removal from office of a special magistrate stand in marked contrast to those applying to a Chief Magistrate or Magistrate appointed under Division 1. The latter have the protection of Act of Settlement tenure comparable to that provided for Federal Judges appointed under Chapter III of the Constitution. A special magistrate however holds office during the pleasure of the Governor-General: s.10J.
Nevertheless, in my opinion the modern law would make the rules of natural justice applicable to any decision to terminate the appointment of a special magistrate, at least where the termination was on the grounds of alleged misconduct or incapacity. The fact that the repository of the power to terminate is a Vice-Regal personage is of itself not conclusive against the application of the rules of natural justice: FAI Insurances Ltd v Winneke (1982) 151 CLR 342.
While judicial appointment is a function that "lies within the exclusive province of the Executive" and as such is "not a function over which the courts exercise supervisory control" (Attorney-General (NSW) v Quin (1990) 179 CLR 1 at 18 per Mason CJ), removal from office is a different matter. As Dawson J said in Quin (at 58):
"It is one thing to expect to continue in a position; it is another to expect to be appointed to it."
See also per Brennan J at 34.
The rules of natural justice are part of the common law itself. Their application does not depend on a process of implication from the statute conferring the decision-making power in question: Quin at 57 per Dawson J; Annetts v McCann (1990) 170 CLR 596 at 598-599 per Mason CJ, Deane and McHugh JJ.
In the present case there is no suggestion that the relevant authorities took any adverse action affecting the plaintiff as a consequence of the defendant's letters. But if those authorities had accepted the defendant's complaints at face value and, without reference to the plaintiff, advised the Governor-General to terminate the appointment of the plaintiff, and his Excellency acted in accordance with that advice, it seems unthinkable that the plaintiff would have no remedy in the courts.
Absolute Privilege in Non-curial Proceedings
16. What is said in court proceedings is protected by absolute privilege. Since Dawkins v Lord Rokeby (1875) LR 7 HL 744 absolute privilege has been extended to proceedings before a variety of tribunals which "although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act": Trapp v Mackie (1979) 1 WLR 377 at 378. Dawkins v Lord Rokeby itself concerned a military Court of Inquiry. Other examples include the disciplinary committee constituted under the Solicitors Act 1957 (Imp) (Addis v Crocker (1961) 1 QB 11) and the Benchers of an Inn of Court (Lincoln v Daniels (1962) 1 QB 237). In Trapp Lord Diplock summarised the criteria which are relevant in determining whether a tribunal's proceedings are protected by absolute privilege. His Lordship said (at 379):
"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, LR 7 HL 744, 753 "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'. (His Lordship's emphasis)
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."
Lord Diplock noted (at 383) ten features of the case before the House which pointed to a conclusion that absolute privilege applied. His Lordship made it clear that the presence or absence of any one of the characteristics taken in isolation would not be conclusive for or against the existence of absolute privilege. From Lord Diplock's ten characteristics and the discussion of them in Duncan and Neill on Defamation (second edition) at 81-85 the following tests emerge.
First, the tribunal must be "recognised by law" (the phrase comes from the judgment of the Court of Exchequer in Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263). This does not mean that the tribunal in question must have a statutory basis: Lincoln v Daniels (1962) 1 QB 237 at 253 per Devlin LJ and at 269 per Danckwerts LJ. But a domestic forum which derives its authority solely from the submission or consent of the parties, for example, a committee of a club called to inquire into the alleged misconduct of a member, would not be "recognised by law" for this purpose: Lincoln at 255 per Devlin LJ; Gatley on Libel and Slander (eighth edition) para. 408.
Secondly, does the tribunal make a decision affecting the status or rights of any person? (See Addis v Crocker (1961) 1 QB 11 at 28-29.) In O'Connor v Waldron (1935) AC 76 the Privy Council held that an inquiry by a Commissioner under the Canadian Combines Investigation Act was not protected by absolute privilege. The Judicial Committee said (at 81):
"Has then a commissioner appointed under the Combines Investigation Act attributes similar to those of a court of justice; or does he act in a manner similar to that in which such courts act? In their Lordships' opinion the answer must be in the negative ... It is only necessary to remember that the commissioner by the Act is empowered to enter premises and examine the books, papers and records of suspected persons to see how far his functions differ from those of a judge. His conclusion is expressed in a report; it determines no rights, nor the guilt or innocence of any one. It does not even initiate any proceedings, which have to be left to the ordinary criminal procedure. 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 (Dawkins v Lord Rokeby (1875) LR 7 HL 744) or an investigation by an ecclesiastical commission (Barratt v Kearns (1905) 1 KB 504), 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 conclusions that such tribunals had attributes similar to those of a court of justice."
Thirdly, it will be a factor in favour of the application of absolute privilege if the tribunal makes a final determination, as opposed to making a report to another body. However even in the latter case absolute privilege may nevertheless apply if the report as a practical matter is likely to have a "major influence" on the ultimate decision. This was the position in Trapp ((1979) 1 WLR at 383).
Fourthly, are there court-like procedures such as hearings in public and the giving of evidence on oath by compellable witnesses subject to examination and cross-examination by legal practitioners representing the parties concerned? Such factors are to be taken into account but, as was said by Devlin LJ in Lincoln (1962) 1 QB at 255,
"... the overriding factor is whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern, for it is public policy that justifies absolute privilege."
The Extent of the Privilege - Preliminary Documents
22. In the words of Duncan and Neill (at 85):
"The absolute privilege extends not only to what is said in the course of proceedings before the Court or tribunal but also to the preliminary documents such as pleadings and proofs of evidence."
(See also Lincoln (1962) 1 QB at 257 per Devlin LJ.) The status of such a preliminary document was at issue in the recent decision of the Appeal Division of the Supreme Court of Victoria in Hercules v Phease (17 December 1993). Clients of a solicitor wrote to the Secretary of the Law Institute of Victoria making complaints of professional misconduct. Part IIIA of the Legal Professional Practice Act 1958 (Vic) made provision for the hearing of complaints against a solicitor either by the Solicitors' Board or the Registrar of the Board. It was not disputed that absolute privilege would apply to such hearings. However the solicitor, who sued for defamation, contended that the letter of complaint to the Secretary only set in train an investigation which might lead to a reference to the Board or a Registrar. It was said that the essential function of the Secretary was investigative and that the function was too far removed from a quasi-judicial proceeding for it to be characterised as one entitling a complainant to absolute privilege. This argument was rejected by the Appeal Division. Ormiston J (with whom Fullagar J substantially agreed) said (at 52):
"In my opinion, when one has regard to those principles (concerning the extension of absolute privilege to proceedings in tribunals other than courts) and the structure of Part IIIA a complaint under s.38Q can properly be characterised 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."
Jamieson v R (1993) 116 ALR 193, although not in a defamation context, was concerned with the protection of a document connected with court proceedings viz a statement of claim by a person claiming to have been injured while a passenger in a motor vehicle. The service of the statement of claim was alleged to constitute the offence of attempting to obtain money by deception.
The High Court confirmed the general immunity from both civil and criminal proceedings in relation to what is said in the ordinary course of proceeding in a court of justice, even though said falsely and without any reasonable or probable cause. The general principle is qualified as regards substantive offences concerning the administration of justice such as perjury, contempt of court and perverting the course of justice (116 ALR at 197). Deane and Dawson JJ referred to the general proposition of Lord Mansfield in R v Skinner (1772) Lofft 54 at 56, 98 ER 529 at 530 that:
"Neither party, witness, counsel, jury or judge can be put to answer, civilly or criminally for words spoken in office."
Their Honours said (at 198):
"In the case of a party or her lawyer, the phrase 'words spoken in office' at least encompasses 'anything said ... and the ordinary course of any proceeding in a court of justice,' - 'although falsely and maliciously and without any reasonable or probable cause.' (Dawkins v Lord Rokeby
(1873) LR 8 QB at 264.)
That being so, the general principle is applicable to assertions contained in a pleading such as a statement of claim, and it has long been recognised that the immunity attaching to words spoken in judicial proceedings extends to words written in the pleadings which are filed (and served) in the ordinary course of such proceedings. Indeed, not surprisingly, words spoken in pleadings provide some of the earliest instances of the application of the principle."
Their Honours then refer to authorities extending as far back as 1591.
A preliminary document otherwise protected by absolute privilege will be within the privilege whether or not a hearing subsequently takes place. In neither Hercules nor Jamieson had a hearing occurred, nor was one necessarily expected. Were the law otherwise the maker of a preliminary document would only enjoy a conditional protection and "the fear of being harassed by an action on the allegation" would still operate as a disincentive, thus defeating the purpose of absolute privilege.
The Present Case
26. If the rules of natural justice govern the making of a particular decision, their particular content will depend on the circumstances of the case, including the nature of the inquiry, the legislation under which the decision-maker is acting and the subject matter that is to be dealt with: Kioa v West (1985) 159 CLR 550 at 584 per Mason J and the cases there cited. For example, the rules of natural justice do not mandate in all cases an oral hearing for the person affected: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516 per Aickin J; Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (Full Court of the Federal Court, 25 March 1994 at 12). There is also in the present case the feature that the repository of the power, the Governor-General, would not be expected literally to conduct a hearing himself. However, as FAI makes clear, an inquiry by the responsible Minister, or some administrative delegate of the Minister, can as a matter of practicality satisfy the requirements of natural justice; see 151 CLR at 369-371 per Mason J and also per Gibbs CJ at 350 and per Stephen J at 356.
But in the present case the complaint contained in the defendant's letter to the Attorney-General may well have required an oral hearing if the plaintiff were to be afforded natural justice. The gravamen of the complaint of the defendant (a very experienced medical practitioner) is his tentative diagnosis of a debilitating medical condition of the plaintiff based on his (the defendant's) alleged observations. Such a question of fact would turn on a careful examination of the primary facts observed or observable by the defendant and the validity of his diagnosis as a matter of medical science. The motives of the defendant (an admitted disgruntled litigant before the plaintiff) might well bear on the reliability of his diagnosis, and the plaintiff would want to explore that area and indeed the defendant's general credibility. The plaintiff might well wish to call expert medical evidence in opposition (as he has already indicated he would if this action were to proceed to trial). No doubt the plaintiff would also wish to test the defendant's assertion that unnamed members of the legal profession had expressed adverse views about the plaintiff. It is difficult to see how the issues raised by the defendant's complaint could be dealt with satisfactorily in the absence of a substantial oral hearing, and one of an unavoidably adversarial nature.
But whether or not natural justice would have required an oral hearing, the important feature is that a decision to terminate the plaintiff's appointment would have been a decision affecting important rights and interests of his in a final and conclusive way. Any hearing would be a hearing "recognised by law"; 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 public interest going beyond the legitimate interest (and not just expectations) of the plaintiff in relation to his own office. The spectre of judicial officers having their positions terminated on the grounds of serious allegations of misconduct or incapacity without chance of defence or rebuttal is one self-evidently contrary to the public interest in the independent and fearless administration of justice.
I conclude therefore that any exercise of the power conferred by s.10J of the Ordinance to terminate the office of the plaintiff as a special magistrate on the basis of the misconduct and incapacity alleged by the defendant would require a hearing and such a hearing would be an occasion attracting the protection of absolute privilege.
The letter of the defendant to the Attorney-General was a document necessary for the initiating of such a process. If anything, the present case is stronger than Hercules (no pun intended) because there is not any statutorily imposed intermediate process of an investigative nature involved. In any case the reasoning in Hercules applies equally here. If a person wished to initiate a process which might lead to the exercise of power against a special magistrate under s.10J the only feasible course, or at any rate the most obvious one, was to write a letter to the Attorney-General as the defendant did. The letter to the Minister of Justice was in essence a follow up to the earlier letter and formed part of the complaint process.
The plaintiff placed reliance on Gibbons v Duffell (1932) 47 CLR 520. However that case was not concerned with absolute privilege under the head which protects proceedings in courts and bodies that act like courts. At issue was the quite separate head of privilege which protects communications between high officers of State. The plaintiff had sued on communications between his superior officers in the New South Wales police force concerning the performance of his duties. The majority (Gavan Duffy CJ, Rich and Dixon JJ) said (at 528):
"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."
It is true that the majority spoke (at 528) of a "presumption" against absolute privilege and said that "its extension is not favoured". Their Honours referred to Royal Aquarium Summer and Winter Garden Society Limited v Parkinson (1892) 1 QB 431 (see also per Evatt J at 534).
However, no extension is in truth involved by a finding in favour of the defendant in the present case. The potential for absolute privilege applying to hearings before bodies other than courts has been well established for over 100 years. In quite recent times administrative law has developed to the extent that hearings, or at least the application of the rules of natural justice, are now required by law where they would not have been in the past. This development will in turn have a major influence on the applicability or otherwise of absolute privilege.
The point is illustrated by Douglass v Lewis (1982) 30 SASR 50. In that case Mitchell J held that the proceedings of a Royal Commission in South Australia were not protected by absolute privilege. An essential element of her Honour's reasoning was that the report of the Royal Commission "could not in any way affect the rights and obligations of any one. It was simply a Report to the government" (at 58). (A contrary conclusion was reached by Gillard J in Bretherton v Kaye and Winneke (1971) VR 111.) The approach taken in Douglass was consistent with the then current view that Royal Commissions or comparable inquiries under statutory power were not subject to the rules of natural justice because the reports of such inquiries could not of their own force prejudicially affect the rights of persons: Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 at 363. But Testro is no longer good law: Annetts v McCann (1990) 170 CLR 596 at 599-600; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576; Johns v Australian Securities Commission (1993) 116 ALR 567 at 580, 585. Douglass would probably be decided differently today, but not because of any extension of the law of absolute privilege as such. It is rather that the principles of administrative law have been developed to impose legal obligations of procedural fairness on a much wider range of decision-makers who, as a consequence, look more like courts and thus attract absolute privilege on well-established principles.
According the protection of absolute privilege to the defendant's letters provides a reasonable accommodation of the conflicting public policies referred to by Lord Diplock in Trapp (supra). If a complaint is made about somebody in the position of the plaintiff and publication extends beyond those authorities who have responsibility for properly investigating charges, then the defendant will have no privilege, whether qualified or absolute. However, so long as the defamatory complaint is confined to the proper channels, it seems much preferable that the tribunal "recognised by law" deals with the matter. The pursuit of defamation proceedings will often result in the publication of the defamatory material to many who would otherwise not be aware of it. And, apart from anything else, it will often be of benefit to the person about whom the complaint is made to have the protection of absolute privilege in challenging the case made by the complainant.
Moreover, while I do not suggest that the present proceeding involved a "gag writ" (the writ was issued some 13 months after the letter and not, as far as the material before me would indicate, in response to any immediate threat of an inquiry), if such complaints as the defendant made are not protected by absolute privilege, there is at least a risk of defamation proceedings frustrating the proper resolution of such complaints in the public interest by the tribunal "recognised by law". This is apparently what happened in Hercules. Marks J noted that the writ was issued by Mr Hercules a few days after receiving a letter from the Secretary to the Law Institute pressing for a response to the clients' complaints. His Honour then said (at 2):
"The appellant then wrote to the Institute claiming that the subject of the complaints was sub judice and that he did not propose to reply. The Institute then, for no apparent reason suspended its investigation pending, so it said, the outcome of the litigation initiated by the appellant. I assume that it acted under some misapprehension of its obligations under the Act which suggest, at least at that time, a different course. See Lockwood v. The Commonwealth and Others (1953) 90 CLR 177 at p 186; Attorney-General v. Times Newspapers Ltd. (1974) AC 273 and the statement of Lord Reid at p.301 - 'There is no magic in the issue of a writ..."; Edelsten v. Richmond (1987) 11 NSWLR 51 and the unreported decision of Lee J discussed and approved there at p 63; Francis v. Herald and Weekly Times Ltd and Others 17 March 1978 not reported; the statement of Lush J being, in my opinion, to be preferred to that of Kaye J in Watts v. Hawke and David Syme and Co. Ltd (1976) VR 707 at p 715 and the comments on these latter authorities in (1978) 52 ALJ at p 336-8."
I would respectfully agree with his Honour's comments.
Orders
38. As I indicated at the hearing, the application by the defendant under O.20 r.2 is dismissed. However as a result of the conclusion I have come to it is appropriate that the power under O.29 r.4(d) be exercised and that judgment be pronounced for the defendant with costs. The hearing date fixed for 27 June 1994 will be vacated as well as the order for the filing of further pleadings which I made on 8 April 1994.
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