Radio 2UE Sydney Pty Ltd v Goldsworthy

[2001] HCATrans 97

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S138 of 2000

B e t w e e n -

RADIO 2UE SYDNEY PTY LIMITED and RAY HADLEY

Applicants

and

ALLAN JOHN GOLDSWORTHY

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 APRIL 2001, AT 11.17 AM

Copyright in the High Court of Australia

MR B.R. McCLINTOCK, SC:  May it please the Court, I appear with my learned friend, MS L. McCALLUM, for the applicants.  (instructed by Bush Burke & Company)

MR T. MOLOMBY:  If it please the Court, I appear with my learned friend, MS M.A. KUMAR, for the respondent.  (instructed by Gells)

GLEESON CJ:   Yes, Mr McClintock.

MR McCLINTOCK:   Your Honours, if the law protects only reasonable expressions of opinion, then there will be very few cases, perhaps none, where the defence of comment can every succeed.  The reason why, your Honours, is that opinion comment is only ever an expression of belief and beliefs are very frequently unreasonable or at least very frequently will be perceived by other people to be unreasonable.  That is particular so, your Honours, in situations where ‑ ‑ ‑

GLEESON CJ:   But was there not a finding in this matter that the relevant imputation, that is the one about heartlessness, that this was not a case of comment but a case of statement of fact?

MR McCLINTOCK:   Your Honour, there were three reasons why the Court of Appeal found against my client.  The first was that the imputation itself was a statement of fact, not an expression of opinion.  Your Honours, that gives rise to what is the first special leave point here, as set out in the first paragraph of the argument, which is this:  when one is considering that issue, is it fact or comment, does one look to the imputation pleaded by the plaintiff, or by the plaintiff’s lawyers, or does one look to the words actually used by the defendant?  There has been a conflict of authority in this State which I will come to about that.  When one looks here ‑ ‑ ‑

GLEESON CJ:   You contend for the proposition that you look to the words?

MR McCLINTOCK:   Yes.

GLEESON CJ:   Well, let us look to the words.  Where do we find them?

MR McCLINTOCK:   Your Honours will find them commencing on the first page of the application book and if I take your Honours through them, it is a transcript of the words said by the second application on 17 January 1995.

GLEESON CJ:   It is the heartlessness part I am interested in.

MR McCLINTOCK:   Your Honour, the actual words appear on page 3 on lines 4 and 5.

GLEESON CJ:   “Is there no room for compassion . . . in your life?”  Now, it was those words “in your life” that brought you unstuck, was it not?

MR McCLINTOCK:   No, your Honour, it was not.  Well, in one sense, yes.  But, your Honour, one has to see this imputation those words in context.  Can I go back to the middle of the page before because, of course, your Honours will understand that these words came within a matter of seconds and the listener would have seen them as all associated one with the other.  Before line 35, Mr Hadley said this:

But counsel for the Defence, note this name, put it down with Alan Fraser, Mr Allan Goldsworthy, said, “The relevant Act referred to a victim as the person against whom the offence was committed, therefore, Alexander was not a victim and should be required to give evidence” so this . . . gentleman, and I use the word advisedly, I don’t know him, Allan Goldsworthy could no doubt cross examine the young man and make him relive all this and perhaps put him under pressure.  Now I know lawyers as Alan points out to me, Alan Sullivan that is, are paid to act in the best interests of their clients, but how does a bloke like Allan Goldsworthy look at himself in the mirror of a morning?  Maybe he’s got a beard.  Maybe he doesn’t need to shave.  Is there no room for compassion Mr Goldsworthy . . . in your life?  Someone shot the boy’s mother right in front of him.

And I ask your Honours to note the juxtaposition there because what Mr Hadley has done is he has set out accurately, as the trial judge found, as was conceded by the plaintiff, may I say, accurately what occurred in the committal proceeding, an accurate description of what Mr Goldsworthy sought to do, then he has expressed a comment about it, that is the words, “Is there no room for compassion . . . in your life?”.  I will come back to talk to your Honours about why that is a comment.  Then he has gone on to say, to go back to the facts of the committal proceedings:

Someone shot the boy’s mother right in front of him.  He saw the bullet hole in his mother’s cheek.  He is a victim in the true sense of the word.  Maybe on day Allan Goldsworthy someone close to you will also be a victim.  And then perhaps when you go to court you won’t act in the manner in which you’ve acted in the past twenty four hours.

Your Honours, there are several issues that come out of that passage but the third reason why my client lost below was that there was a finding that the imputation - and that, may I say, in our submission, is the wrong test - did not relate to a matter of public interest.  Your Honours, it clearly did relate to a matter of public interest and the public interest was the conduct of this committal proceedings and the application made by Mr Goldsworthy.  Everything is related there.

When one looks at the words, “Is there no room for compassion Mr Goldsworthy . . . in your life?”, what is being said there, no doubt in a hyperbolic way, as a hyperbolic expression of opinion is, “I think, you were doing a heartless thing in cross-examining or applying to cross-examine that boy in those committal proceedings”.  Your Honours, that is an expression of opinion.  The real issue here, your Honour, is this:  in the authorities, which are in conflict in the Court of Appeal, it has been expressed in various ways.  It has been sometimes put that the question is, “Is the defence of comment pleaded to the imputation?”.

That, in a way, really obscures the real issue that is here.  The real issue is what does the jury, if the matter is tried by the jury, or the court look to in determining whether the statement in question is an expression of opinion.  The only answer to that question, your Honour, as a matter of authority ‑ ‑ ‑

GLEESON CJ:   That is a rather elliptical expression of opinion.  The…..is expression of opinion on facts truly stated.  So there is an aspect of form about it, is there not?  The idea of comment, as I understand it, is that a listener or reader, having available an expression of opinion and the facts on which the opinion is stated, can say, “I agree with that” or “I disagree with that”.

MR McCLINTOCK:   Yes, and this is a classic example.  Here, Mr Hadley said Mr Goldsworthy tried to cross-examine a boy about the circumstances in which his mother was shot dead in front of him and then he said, in effect, “I think that was an incredibly and appallingly heartless thing to do”.  That is how it would have been interpreted by any listener.  The listener, in those circumstances, is entitled, or can see, what has been done, the attempt to cross-examine, and then make his or her judgment as to whether that ‑ ‑ ‑

GLEESON CJ:   The opposing point of view in this case was that it went beyond that.  It carried the imputation that he was a heartless individual, not just that he had behaved heartlessly on a particular occasion, but that he was a heartless individual who could not look at himself in the mirror in the morning and that there was no room for compassion in his life.  That is the opposing point of view.

MR McCLINTOCK:   Your Honour, that does not detract from the fact that Mr Hadley’s words were an expression of opinion.  It might have some relevance to the question of whether it related to a matter of public interest but it is still an expression of opinion.

GLEESON CJ:   I was only offering for your comment the possibility that a choice between those two competing points of view is not one that would ordinarily attract our intervention since this is a matter that did not even get leave to appeal to the Court of Appeal.

MR McCLINTOCK:   Your Honours, there has been a continuing debate in the Court of Appeal, as I said in the outline, with contributions from Mr Justice Hunt and the Privy Council going back 23 years now, to 1978, as to what is examined when one considers - when one is determining the question of comment.  That debate was determined, so we say, by the decision of the Court of Appeal in NSW Aboriginal Land Council v Perkins where, in our submission, the Court of Appeal, wrongly, said that one pays attention only to the imputation or that the imputation is given primacy.

This case is an application of that decision.  The learned trial judge specifically says so in citing Perkins.  The Court of Appeal itself, given the way it approached the matter, in effect, did the same thing.  It is an application of Perkins.  In one sense, your Honour, this is an application for special leave to appeal from Perkins, this case being simply an application of that decision.  The reason why, your Honours, the Court of Appeal was wrong, if I could put it like this, in Perkins and in this case, come from the Act itself, which I will take your Honours to.

Before I do, could I say this?  Your Honours, the primacy of the imputations in the law of New South Wales, in defamation law, has bedevilled the law since the introduction of the Act in 1974.  The problem caused by section 9, of course, cannot be got away from because of the words of section 9 of the Act when one is dealing with the issue of the cause of action and the necessity to plead imputations.  But what has occurred now is the same problems have all been injected by the Court of Appeal into considerations of the defences of comment under section 32, 33 and 34 in a way that is entirely unnecessary and distracts from the proper task of the court in question.

Your Honours will see in the folder of authorities that the first tab sets out the relevant statutory provisions.  Your Honours will see that it is Division 7 of the Act, section 29, which I do not need to trouble your Honours with, section 30 ‑ ‑ ‑

KIRBY J:   We do not have section 9, but section 9 is the provision that says that you sue for the imputation pleaded, not for the imputations in the original publication.

MR McCLINTOCK:   Yes, your Honour.  It makes what is sometimes described as the imputations the cause of action.

KIRBY J:   That is right, yes.

MR McCLINTOCK:   Section 29, your Honour, I do not need to trouble your Honours with.  Section 30 deals with proper material for comment and it says that:

“proper material for comment” means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

Your Honours, that issue, “proper material for comment”, was determined my way because it was found by the trial judge - may I say with respect to his Honour, correctly - that what Mr Hadley said was an accurate report of what had occurred in the committal.  The section continues - section (2) makes it irrelevant to the question of proper material for comment, whether that “relates to a matter of public interest”, and then it continues:

(3)  The defences under this Division are available as to any comment if, but only if -

(a)  the comment is based on proper material for comment;  or

(b) -

and I will read that to your Honours now - it is relevant to the second special leave point I advance -

the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.

Then section 31 says this, and this is significant:

The defences under this Division are not available to any comment unless the comment relates to a matter of public interest.

Your Honours, there is no reference to the word “imputation” in there.  May I say that in situations where the Act wishes to refer to imputations, it does so.  Sections 15 and 16 are an example.  The defence is then created by section 32:

Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant.

It does not say it is a defence as to the imputation, that the imputation is comment.  It says that it is a defence that the comment is comment and that directs attention to the words used by the defendant.  May I say, your Honour, it would be monstrously unjust if that were not the case because the defendant would then be defending a construction put on his words by counsel for the plaintiff who could always frame the imputation so that it was a statement of fact, not an expression of opinion.

KIRBY J:   But is that not inherent in the section 9 provision?  It may sometimes be monstrously unfair to plaintiffs that they are tied and anchored down to what some barrister has written as the imputations late on a Saturday night, trying to dream up all the imputations the barrister can think of.

MR McCLINTOCK:   Your Honour, that may well be the case, but at least in that case it is the plaintiff’s barrister who has done it.  Here, the imputation is drafted, not by the defendant’s barrister, and he is called upon to answer as an expression of his opinion ‑ ‑ ‑

KIRBY J:   It may just be the folly of section 9.  It permeates the Act.

MR McCLINTOCK:   Well, your Honour, it is not the folly of section 9 because the Act itself, here, says “it is a defence as to comment”, and that directs one to the words of the Act itself.  That is followed through, your Honour, by section 33, which is also applicable here.  Mr Hadley had the benefit of the section 32 defence; 2UE had the benefit of the section 33 defence:

it is a defence as to comment that the comment is the comment of a servant or agent of the defendant.

“Comment of stranger”, while it uses the same words, is not to the point here.  But then section 35 is relevant and it says this:

Where the matter complained of includes comment and includes material upon which the comment is based, a defence under this Division as to the comment is not a defence as to the material upon which the comment is based.

Once again, the attention of the Act is drawn strictly to the words that are actually used by the defendant to the proceedings, not to the imputation.

GLEESON CJ:   Mr McClintock, can I ask you a small question of fact relating to page 2 of the application book, line 34?  Who is Alan Fraser?  What is that ‑ ‑ ‑

MR McCLINTOCK:   Your Honour, this was a morning talk show.  Mr Hadley had apparently - and there was no evidence about this, I do not believe.  Mr Hadley had earlier on mentioned someone else called Alan Fraser, whom he also had some criticisms of - I do not know what they were - and it was only a reference back to something he had said.

GLEESON CJ:   Thank you.

MR McCLINTOCK:   It is substantially irrelevant to any question before your Honours or which was before the courts below.  Your Honours, the next reason why, if I may say so, apart from the fact that these sections of the Act draw attention to the words of the material themselves, and as I suggest to your Honours, it is quite clear when one looks at this material that Mr Hadley is expressing an opinion.  The opinion is, as I said, a hyperbolic way of saying that he thinks that Mr Goldsworthy did very much the wrong thing.

The next point in relation to is it the imputation or is it the matter of complained of and the reason why the court below was wrong, is, of course, it is practically impossible to determine whether comment is comment without actually looking at its context.  The reasons why, and this shows, may I say, how wrong the Court of Appeal has gone, is that a statement of a fact can be an expression of opinion depending upon the circumstances and the context.

GLEESON CJ:   But let us get back to this one here, looking at the matter that was published, on the bottom of page 2 and the top of page 3.  You want to read that as a comment, in effect, limited to the conduct in the litigation earlier referred to.  But what he does is refer to what happened in the litigation and then talk about a bloke like Alan Goldsworthy looking at himself in the mirror in the morning and having no room for compassion in his life.  Now, the trial judge took that, as I understand it, as a reference to his personal character and personal life, and not merely as limited to what occurred on the specific occasion to which reference has earlier been made.

MR McCLINTOCK:   Your Honour, even if that were the case, that would in no way detract from the efficacy of the defence or the strength of it.  You would be perfectly entitled - it happens all the time and it is a perfectly legitimate process of reasoning which in no way would detract from the effect of the defence of comment, to say this, “Mr Goldsworthy” or - I will make it neutral - “Mr X, a barrister, did this in court.  I think he must be completely lacking in ethics and an appalling human being whom no one should ever talk to”.  It depends on the seriousness of what has happened.  It still does not stop it being an expression of opinion, nor does it stop it relating to a matter of public interest.

With great respect, what your Honour is doing, is overlapping the issues here.  The fact that it is an expression of opinion about the man’s private life does not prevent it being relating to a matter of public interest.  It clearly does relate to a matter of public interest here that what he did in the court case.  Your Honours, I see the lights have come on and there is another point that I must deal with, which is this.  The Court of Appeal said, as did the learned trial judge, that it was necessary for my clients to succeed but the opinion had to be reasonably based on the facts expressed in the material.

That appears on the first page of the learned President’s judgment, page 29 of the application book.  It was not based on the facts relied upon by the claimants, that is “the material in the broadcast”.  Mr Justice Dunford held:

the imputation was not an opinion which might reasonably be based on material relating only to the committal proceedings.  There was “no reasonable connection between [the opponent’s] conduct as a barrister in the committal -

and so on.  Your Honours, that has injected into the law, by way of a unanimous decision of the Court of Appeal, an element that has never been found ‑ ‑ ‑

GLEESON CJ:   Are you not overlooking the word “might”?

MR McCLINTOCK:   I have not, your Honour.

GLEESON CJ:   I thought you were suggesting the finding was that it was not reasonable.

MR McCLINTOCK:   Well, with respect, your Honour, that is ‑ ‑ ‑

GLEESON CJ:   I thought the finding was that it was not an opinion that could reasonably be based.

MR McCLINTOCK:   Your Honour, I do not resile from that if that is the way the Court of Appeal or Mr Justice Dunford is to be interpreted, I will live with it.  It has never been suggested, your Honours, that reasonableness has anything to do with the defence of comment at this level.  Your Honours, as is set out in the outline of argument in paragraph 18, the purpose of the - and this is quoting from the authorities - comment, which is “biased or prejudiced”; which is “violent, exaggerated” or “unjust”; which is “irrational, stupid” or “obstinate”; which is “held by the crank or the enthusiast”, is all protected by the defence of comment.

That appears on page 45, your Honour, paragraph 18.  What their Honours have done is inject in an element that was rejected in the law 100 years ago.  That is that the comment, in some way, has to be reasonable, or might be such as a reasonable person could hold.  That is not the law and because of the unanimous decision of the Court of Appeal which, may I say, also, as is set out in the outline of argument, is contradicted by the very authorities upon which their Honours rely.  Their Honours dealt with this passage at page 31 in paragraph 8 of their judgment, where their Honours, where they were dealing with what they perceived to be an early disagreement between Justice Glass and Mr Justice Priestley, said:

This area of disagreement is not relevant to the present case.  Both Glass JA and Priestley JA were at one in holding that it was necessary to show what Priestley JA described as a “rational relationship” between the material relied upon by the defendant and the imputation relied upon by the plaintiff.  The submission by the claimants ‑ ‑ ‑

GLEESON CJ:   I thought it was in paragraph 6 on page 30 and page 31 that the Court of Appeal set out their reasoning in this matter.

MR McCLINTOCK:   Well, your Honour, no, they have posed the question there:

There remains, however, requirement that any comment be “based on” the “proper material”.

And when they came to deal with that matter, they said that there had to be a rational relationship between the material, or a reasonable relationship, as the trial judge had said, and what had been - between the material and the comment.

KIRBY J:   But does the Act posit that there is some relationship?

MR McCLINTOCK:   No, your Honour.  Well, the Act - and this is what Mr Justice Glass was saying in Lloyd, the Act says simply, “You must express the statements of fact and then you can express your opinions”.  There does not have to be any connection in the sense that the facts can reasonably support ‑ ‑ ‑

KIRBY J:   At least there must be a temporal connection.  You have to state the facts and then your opinion.  I just took that to be what their Honours are meaning, that there has to be this connection such as is posited by the structure of the Act.

MR McCLINTOCK:   With respect, your Honour, no, that was not what their Honours were saying in paragraph 8.

KIRBY J:   I can understand your concern about that but one can doubt that this is a very suitable case in which to raise that argument.

MR McCLINTOCK:   Your Honours, this is as suitable case as there will ever be.  The reason why is the material is short, there was no facts.  In relation to the imputations issue, it is a question of looking, may I say, at the decision of the Court of Appeal in Perkins and the very brief supplementary reasons here.  In relation to this issue, it is a matter of considering the decisions of the Court of Appeal such as in Lloyd v David Syme.  But, your Honour, to answer your Honour’s question, one can see what the Court of Appeal was doing and what I would have said they were doing, from paragraph 8, where they rejected my submission, or they expressed the rejection of my submission, where the “defendant’s honesty is the only relevant limit must be rejected”.  That is the only relevant limit and that has been found to be the law for well over a century.

GLEESON CJ:   Thank you, Mr McClintock.

MR McCLINTOCK:   Thank you, your Honours.

GLEESON CJ:   Yes, Mr Molomby.

MR MOLOMBY:   May it please the Court, the ‑ ‑ ‑

KIRBY J:   Is it convenient to start on that last point first?  Is there error in the reference to a rational or reasonable relationship that ‑ ‑ ‑

MR MOLOMBY:   No, there is no error in that, your Honour.  In my submission, that is not saying the same thing as my friend complains of, that is that the comment must be reasonable.

GLEESON CJ:   On the contrary, they said that they had been reminded that the comment did not have to be reasonable.

MR MOLOMBY:   Yes.  It is not saying that at all.  It is saying merely that there must be some connection by ‑ ‑ ‑

KIRBY J:   It is a little unfortunate they used “reasonable” because it would be an error to import notions that comment must be “reasonable”.

MR MOLOMBY:   Yes, but the way it was put was a “reasonable connection” which is a different thing from the comment “being reasonable” or “being reasonably based”, and what was meant, in my submission, was clearly - and perhaps the term was preferable, what Justice Priestley had said in the Court of Appeal in Lloyd v David Syme, that is a rational relationship.  To take an extreme example, I doubt my friend would suggest that if someone said, “Roses are red, violets are blue, this man grows roses and wears one in his buttonhole.  In my considered opinion on those facts he is a child molester, therefore”.  That, that would be defensible as comment expressed on those facts precisely because of the lack of a rational relationship between them and the comment expressed.

KIRBY J:   That is a rather far-fetched example ‑ ‑ ‑

MR MOLOMBY:   It is deliberately a far-fetched example, your Honour, but to make the point - and it does not normally arise in cases because normally there is some rational connection - that there is a line to be drawn as to a rational connection which has nothing at all to do with the matter being reasonably based, nothing at all, but there must still be some connection.  That is, in my submission, the appropriate resolution of that point.

The other point of which my friend complains, and that is, in my submission, an entirely false issue.  That is, he asserts there is a conflict between Perkins, which needs to be resolved by this Court, and earlier authority in the Court of Appeal in Radio 2UE v Parker.  That, in my submission, is entirely incorrect and, indeed, the material in the primary judgment shows that that is so.  At the foot of page 13 of the application book, his Honour Mr Justice Dunford cites Perkins citing with approval Parker.  There is no conflict between these two cases.  They are walking hand in hand, particularly the end of the citation reproduced from Parker:

The question is to be determined -

that is the question as to whether it is fact or opinion -

The question is to be determined upon a consideration of the published material.

This citation actually addresses the problem my friend raised here that an imputation will nearly always have the appearance of a statement of fact and it would be quite unfair, he says - we agree - for the imputation to be judged only in its own terms as to whether it is a fact or comment.  Regard must be had to the context to the full material.

GLEESON CJ:   Thank you, Mr Molomby.

MR MOLOMBY:   If it please the Court.

GLEESON CJ:   Anything you want to put in reply, Mr McClintock?

MR McCLINTOCK:   Your Honour, the fact that the Court of Appeal found that there had to be a reasonable connection between the material and the comment emerges clearly from what they said in paragraph 3 which I took your Honours to.  Quoting the learned trial judge:

There was “no reasonable connection between [the opponent’s] conduct as a barrister in the committal and the description of his general character -

that is at page 29 to 30 -

and the description of his general character as heartless, and so there was no proper material for comment in relation to the imputation that he was a heartless person generally, which was the imputation found by the jury.

In paragraph 3, the learned President says:

I agree with the learned trial judge on each point, although I hesitate before describing the challenge to (1) as unarguable.

His Honour the learned President is saying there that it is a requirement of this defence that there be a reasonable connection between the material and the comment.  That, with respect, has never been the law.  There may have to be ‑ ‑ ‑

GLEESON CJ:   What about what is said in paragraph  6?

MR McCLINTOCK:   Your Honour, that is, his Honour is saying - that does not in any way detract from the specific finding his Honour has made, except in what the learned trial judge says there.  His Honour is referring to the words of the Act and then he comes back to saying, using the words “rational relationship” in paragraph  8.  Your Honour, the only test in this area is honesty, not reasonableness.  May I also say, your Honour, that, as a matter of fact, there was nothing unreasonable about expressing a general view about Mr Goldsworthy’s character because of what he had done in a particular court case.

Your Honours, there is, as I said, 100 years of authority under this Act and under the common law which says that the opinion in question can be completely unreasonable.  That is how Lord Diplock, Mr Justice Diplock as he was then, summed up to the jury in the Silkin litigation and told them that it was critical to freedom of speech that people be allowed to express unreasonable opinions.

KIRBY J:   I do not take Mr Molomby to dispute this.  He just says that you are misreading what the Court of Appeal have said - rational connection.  The Act contemplates rational connection.

MR McCLINTOCK:   Your Honour, the Act does not contemplate rational connection.  If rational means ‑ ‑ ‑

KIRBY J:   It does not require that comment be reasonable but it does contemplate a connection between - even if only temporal.

MR McCLINTOCK:   Your Honour, there has been never any suggestion that there is any problem with the temporal aspect ‑ ‑ ‑

KIRBY J:   I realise that but the fact that the structure of the Act and the contemplation of a temporal connection requires that there be some connection.

MR McCLINTOCK:   But, your Honour, let us take Mr Molomby’s example, if I may, the one about the rose and the child molester.  Any person who hears that example, assuming he takes the expression “in my considered opinion he is a child molester”, will know that it has been based in fact, on something completely irrational, and he will be able to judge whether that is a valid opinion which he agrees with or not.  A million people out of a million people would see that as completely irrational and would reject the opinion there.

That is the reason why the defence is structured like it is, because if you say why you hold the opinion, and that is all you have to do, you are entitled to express whatever opinion it is, and that is the reason why that expression of opinion at that level would be defensible under the law of comment.

GLEESON CJ:   How would an ordinary listener be able to make a judgment on whether to agree or not to agree with this comment bearing in mind the material it was based on?  The ordinary reader would not have the faintest idea whether conduct of that kind indicated heartlessness, would he?

MR McCLINTOCK:   Well, with respect, your Honour, why not?

GLEESON CJ:   Well, I will tell you why not, because he would not know whether or not Mr Goldsworthy was right to say that, on the proper construction of the legislation, victim meant victim and did not comprehend the young man, he would not have the faintest idea what the purpose of cross-examination might be in a legal proceeding of this kind.

MR McCLINTOCK:   Your Honour, that may be deficiency in the law, that has unpleasant consequences for barristers who make submissions in court, but here, as I recall, Mr Hadley said that the magistrate had ruled against Mr Goldsworthy on the submission and he was describing what was clearly an attempt to do it.  Now, your Honours, views may differ about whether or not Mr Goldsworthy was doing the right thing and whether he was complying with his obligations to his client but Mr Hadley said what he did.  He said accurately, as the plaintiff conceded, and as both courts below held, that what Mr Hadley said about what occurred in this particular committal proceeding was accurate.

GLEESON CJ:   A possible point of view is that the material upon which this comment, as you describe it, was based, was so truncated and thin that a reasonable listener to this material would be left completely puzzled as to whether or not that was a conclusion that would be agreed with.

MR McCLINTOCK:   With respect, your Honour, the material was not truncated but, in any event, this was a matter that was conceded below, that it was a fair report of what occurred in court.  Your Honour, when one thinks about it, one only needs one fact - it is not any questions of law - the one fact that one needs to base the comment that Mr Hadley expressed is that he attempted to cross-examine a boy about the circumstances in which his mother was killed in front of him.

We may know that barristers have obligations in certain circumstances but that does not detract from Mr Hadley’s right, having said that and said it accurately, to express his views about it.  With respect, your Honour, in my submission, that is exactly what he did.  May I say, finally, that it was a reasonable opinion for someone to have.  Those are my submissions, your Honours.

GLEESON CJ:   The Court is of the view that in the light of the findings made by the trial judge no error of principle has been shown in the reasons given by the Court of Appeal for refusing leave to appeal to that court in the matter and the Court is further of the view that the case is not a suitable vehicle for consideration of the issues sought to be agitated by the applicants.  The application is dismissed with costs.

AT 11.52 AM THE MATTER WAS CONCLUDED