Roberts & Anor v Bass

[2001] HCATrans 98

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No A39 of 2000

B e t w e e n -

GEOFFREY MARK ROBERTS and
KENNETH ALLAN CASE

Applicants

and

RODNEY PIERS BASS

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 6 APRIL, 2001, AT 2.43 PM

Copyright in the High Court of Australia

MR P.A. HEYWOOD-SMITH:   If the Court pleases, I appear for the applicants.  (instructed by David Henderson Wilson)

MR D.A. TRIM, QC:   May it please the Court, I appear with my learned friend, MR N.J.T. SWAN, for the respondent.  (instructed by Lempriere Abbott McLeod)

GLEESON CJ:   Yes, Mr Heywood-Smith.

MR HEYWOOD-SMITH:   If the Court pleases, can I very briefly correct a typographical error in the supplementary summary that was provided.  I hope that it has not confused the Court.  Paragraph 7.2 of the supplementary summary made a reference to paragraph 3.11, which should have in fact been 3.7.

GLEESON CJ:   Thank you.

MR HEYWOOD-SMITH:   Can I start with a quotation from the joint judgments of the then Chief Justice Mason and Justices Toohey and Gaudron from the Theophanous Case.  I do not ask the Court to pick up the decision, because it is quite a short quote, and it is as follows:

Criticism of the views, performance and capacity of a member of Parliament and of the member’s fitness for public office, particularly when an election is in the offing, is at the very centre of the freedom of political discussion.

Because of the time allotted ‑ ‑ ‑

KIRBY J:   You abandoned the constitutional free speech point before the Court of Appeal, did you not, or the Full Court?

MR HEYWOOD-SMITH:   It was not abandoned, but when the court found that the publication came within the traditional qualified privilege, it was no longer perceived to be necessary for the defendants to take on the additional burden of establishing reasonableness.  But the applicants’ position is that the constitutional freedom of speech has implications as well for a publication that comes within it, which is within the traditional qualified privilege in the sense of a publication between two people having a mutuality of interest.

GLEESON CJ:   Let us test that, can we, by looking at the material that is at the bottom of page 8 of the application book, the sentence beginning with the words “Of course”.  Do you see that?

MR HEYWOOD-SMITH:   Yes.

GLEESON CJ:   As I understand it, the imputation that was found to be conveyed by that was proved to be false, is that so?

MR HEYWOOD-SMITH:   That is so.

GLEESON CJ:   Your client, at the time he published it, did not have the faintest idea whether it was right or wrong.

MR HEYWOOD-SMITH:   He had a belief that it was correct, but it was a belief that he should perhaps not have had and that he had not investigated adequately.

GLEESON CJ:   You say he had a belief that it was correct.  What was the basis of his belief that frequent flyer points had been used by the respondent for himself and his family?  Where did he get that belief from?

MR HEYWOOD-SMITH:   He simply had a belief that members of Parliament that were members of the Ansett club and as such, when they had travel on parliamentary entitlement, accrued frequent flyer points.

GLEESON CJ:   I am afraid you have not answered my question.  My question was:  what was the basis of his belief that frequent flyer points had been used for the benefit of his family?  That is a perfectly specific, red‑blooded and, as I understand it, false allegation.  What was the basis for the belief in it?

MR HEYWOOD-SMITH:   It is true that it was simply an inference by the applicant Roberts.

GLEESON CJ:   Inference from what?

MR HEYWOOD-SMITH:   And he had no basis for it, that is conceded.

GLEESON CJ:   All right.  So it was a false statement, he had no basis for believing it was true.  How do you apply that to the constitutional freedom of speech?

MR HEYWOOD-SMITH:   The constitutional freedom of speech protects incorrect and untruthful statements as well as obviously true statements.  The qualified privilege is there to protect wrongful statements, and this was a wrongful statement.

GLEESON CJ:   What was the finding of fact about his state of mind in relation to that statement by the trial judge?

MR HEYWOOD-SMITH:   The finding of fact was that he had no basis for believing it.

GLEESON CJ:   Where do we see the finding, Mr Heywood-Smith?  I would just like to read it.

MR HEYWOOD-SMITH:   Page 65 of the application book deals with the findings as to Mr Roberts and paragraph 193 on page 66.

GLEESON CJ:   Thank you.

MR HEYWOOD-SMITH:   I intended to come back to that second publication, but can I ask the Court to indulge me briefly in that it was my intention to in fact seek to illustrate the principles which the applicants say require to be agitated by a reference to the third of the publications for this reason solely, that it is the publication which relates to both applicants and which contains the criticisms of all three areas of the conduct and performance of Mr Bass as a member of Parliament.  That publication appears at page 10 of the application book.  I take it that the Court has had the opportunity of briefly noting that.  It was a pamphlet or a double‑sided leaflet that was handed out at the polling booth on election day.

We assume for the purposes of this application that the publication is defamatory, but at first sight, in our submission, it would appear to fall fairly and squarely within the concept of criticism of the views, performance and capacity of a member of Parliament.  It is commenting on the fact of the exercise of the right to have overseas travel, the fact of the member’s involvement in the government policy appertaining to the privatisation of the Modbury Hospital and to the fact of his participation in the gun debate following the Port Arthur massacre.

Prima facie, it is the applicants’ submission that this publication would come under the umbrella of privilege.  It would be defeated obviously by the establishment of actual malice.  The learned trial judge found that there was actual malice, because he found that it was made for an improper purpose.  The purpose which his Honour found was that it went beyond the proper purpose of seeking to defeat a political opponent and sought rather to injure the reputation of the plaintiff.  That, in the applicants’ submission, was a curious finding because the only purpose that had been put to the defendants in cross‑examination was the purpose of harming the plaintiff’s chances of re‑election.

It was a finding which the Full Court in this State struggled with.  Two of their Honours, Justices Williams and Martin, found that it could not be sustained in respect of the applicant Case and Justice Williams found that it could not be sustained as well in respect of the applicant Roberts.  The idea that two publishers of the same material, both having the obvious intent of unseating the sitting member, could nevertheless be found to have different purposes is, in our submission, a curious one and it is suggested that the reasoning of the trial judge found to be flawed in respect of the defendant Case should thereafter, at least on this issue, have been considered suspect as well with Roberts.

This concern as to the trial judge’s reasoning should have been underscored by a consideration of his reasons, including the passage at the top of page 81 of the application book in the first line, to this effect:

Again, his –

that is Case –

dominant motive was to injure the plaintiff’s reputation and remove him from office and, as such, it was an improper motive.

But it was said by the learned trial judge that there was in any event a second basis for establishing actual malice, namely the applicants did not have an honest belief in or were reckless as to the truth of what they had published.

The first thing to note about the published material that I am addressing the Court on – that is this third publication – is that it is not in the nature of an allegation of some gross or heinous conduct that would immediately cause the publisher to question the accuracy of what they were publishing as if, for example, it was some allegation of some heinous criminal conduct.  Rather, the three matters of criticism were of the plaintiff’s conduct as a member of Parliament:  what he did, how he voted.  This was against the evidence which was non‑contentious that is summarised in paragraph 7 of the applicants’ summary of argument.  I do not take the Court to that because of the time constraints, but there was clearly a factual basis for each of the comments.

It is submitted that what the applicants did was to put a gloss on that conduct.  It is submitted that the passage addressing actual malice by this Court in Lange’s Case, which I do ask that the Court pick up – Lange v ABC 189 CLR 520 at 574 has application. I refer the Court to the passage about two‑thirds of the way down the page:

Furthermore, having regard to the subject matter of government and politics, the motive of causing political damage to the plaintiff or his or her party cannot be regarded as improper.  Nor can the vigour of an attack or the pungency of a defamatory statement, without more, discharge the plaintiff’s onus of proof of this issue.

GLEESON CJ:   Mr Heywood-Smith, may I ask you a question about a particular passage at the bottom of page 150 and the top of page 151.  I wanted to ask what you had to say about that.  It concerns only Mr Case.

MR HEYWOOD-SMITH:   This is from the judgment of Justice Martin?

GLEESON CJ:   Yes.  It concerns only Mr Case.

MR HEYWOOD-SMITH:   Your Honour, Mr Case’s evidence – and it is necessary to go back to page 10 – was this, that he attended on the morning of the day of the election to hand out pamphlets.  He says he picked up the PSB of the document.  He read it both sides and immediately formed the view that it accorded with his views.

GLEESON CJ:   But is that not because he thought it meant something from what it was held it did mean, which causes a bit of a problem when you are trying to support the proposition that you had a reasonable belief in the truth of what the document actually said.

MR HEYWOOD-SMITH:   What Mr Case said, your Honour, was this, that when he read item 1 on the bottom part of the publication, he said that he read it as meaning that having qualified in the last election to spend 32,000, if elected he would qualify again to spend another 32,000.

GLEESON CJ:   The court held that it did not mean that at all.  That put Mr Case in something of a difficult position in mounting an argument that he had a reasonable belief in the truth of the document.

MR HEYWOOD-SMITH:   It is true that the court found that it did not have that meaning, but we are concentrating on the concept of actual malice, which is the state of mind of the publisher.  In this case it is not, in our submission, appropriate for the court to say that objectively it has this meaning and therefore Mr Case’s evidence that he did not read it that way should be rejected.  Actual malice is the state of mind of the publisher and his state of mind, we say, was one which was consistent with his belief as to the accuracy of the document.  Your Honour brings me to the critical nub of the application, which is that in finding actual malice in circumstances such as this with this particular privilege, particularly imposed upon it the constitutional freedom of expression, there must be a clear and unambiguous finding of that defective state of mind.  In our submission, it is a phrase which could be misinterpreted and Mr Case’s evidence ‑ ‑ ‑

GLEESON CJ:   It is a phrase which would be very easily misinterpreted by somebody who took it literally, I should think.  It is a phrase with a technical meaning.

MR HEYWOOD-SMITH:   Mr Case’s evidence was also to this effect, if the Court pleases, and evidence which we would submit might be received sympathetically, that at 8 o’clock on a Saturday morning when one attends to hand out pamphlets, one does not analyse the document in the same way that a court comes to analyse it many months later.  His evidence that he read it in a particular way and he believed that it was accurate, in our submission, would require a substantial amount of contrary evidence to satisfy what we suggest would be a rigorous test as to the establishment of actual malice by a plaintiff.

KIRBY J:   What is the finding of the primary judge concerning Mr Case’s state of mind and concerning malice?

MR HEYWOOD-SMITH:   Can I come to that, your Honour?  Our submission in respect of it is this, that the primary judge did find that both Roberts and Case did not have an honest belief as to what they had published.  But he did so in this respect:  he said, “I find that the defamatory imputations appertaining to this document are such, and in respect of that I find that they couldn’t have had an honest belief because they hadn’t investigated the matter properly and, had they investigated the matter properly, they would have come to the conclusions which I’ve come to on hearing the evidence that Mr Bass had performed his duties as a member of Parliament responsibly and reasonably and he had arrived at a reasoned position on the Modbury Hospital issue and that he had engaged in the gun debate in a concerned and thorough way”.

Our submission is this:  that is not what the test should be.  The test should be when considering the state of mind of the publisher:  what were the actual facts asserted in the document?  If there is some defamatory imputation which might be construed out of it or imputed out of it, there must be a question as to whether or not the publisher himself read it that way and only then could it be said that he had published with actual malice.  Here, if the Court pleases, what the learned trial judge appears to have done is to make specific findings which we say were unnecessary.  He made a finding that the plaintiff’s overseas trips were quite proper.  He did so at paragraph 185.  He made a finding that the plaintiff’s support of government policy on the Modbury Hospital issue was reasoned and not capable of being criticised - paragraph 186 – and a finding that in respect of the gun legislation debate, the incumbent MP’s approach was thorough and commendable.  Then he goes on to say ‑ ‑ ‑

GLEESON CJ:   Mr Heywood-Smith, that is 17 minutes.

MR HEYWOOD-SMITH:   If the Court pleases.  If I can just conclude that point.

GLEESON CJ:   You have three minutes to go.

MR HEYWOOD-SMITH:   He asserts that the defendants failed to properly investigate and he rather suggests that if they had, they would have come to the same view as himself.  I am obliged to briefly skip over the submission as to the earlier publications, but as to the finding in respect of Mr Roberts that he could not have known about Ansett frequent flyers or that he did not know about that, that might establish that Mr Roberts bore ill will.  But in respect of the final publication, it does not mean that he is excluded from the constitutional defence.  Somebody who bears ill will is still entitled to exercise his constitutional freedom, provided he does so honestly and ‑ ‑ ‑

KIRBY J:   But there is nothing in Lange that expels malice.  Lange does not expel malice at that passage you have read.

MR HEYWOOD-SMITH:   Quite so.

KIRBY J:   It would be surprising if it had.

GLEESON CJ:   Does not Lange import reasonableness?

MR HEYWOOD-SMITH:   It does and, in our submission, there was not, and could not, be, particularly in respect of Mr Case, a suggestion of unreasonableness.  Mr Case had participated in the dispute over the Modbury Hospital for some years and he had a thorough knowledge of Mr Bass’s involvement in the gun debate and he knew of his overseas trips and in particular the one shortly prior to the election to Nauru for a speakers conference where Mr Bass was not the speaker.

GLEESON CJ:   I am looking at the finding on page 151, the first sentence in paragraph 103.

MR HEYWOOD-SMITH:   Your Honour, quite so, but the inadequate evidence that his Honour identified was a suggestion that Mr Case should have in fact looked at Hansard to satisfy himself as to exactly what Mr Bass’s involvement in the debate was.  In our submission, that is an obligation or an imposition on somebody wishing to participate in the political process that is ‑ ‑ ‑

KIRBY J:   Your point is that if every person who hands out how‑to‑vote documents is held to the criterion or the test that is upheld in this case, there

will be fewer people handing out how‑to‑vote documents because they will be put to obligations of checking the truth or reasonableness of the statements in them, which is not really the measure of free speech in Australia that Lange says the common law upholds and that statutes may not impinge upon?

MR HEYWOOD-SMITH:   Quite so.  In the same paragraph in Lange ‑ ‑ ‑

KIRBY J:   Can I ask you:  is the case severable?  Is the matter concerning Mr Case severable from that of your other client?

MR HEYWOOD-SMITH:   Absolutely, if the Court pleases, because there was no evidence of any interrelation between the two at all.  I think there may have been some evidence that Mr Roberts and Mr Case may have known of each other, but Mr Case had had no involvement at all in the preparation of any of the three documents.

GLEESON CJ:   Thank you, Mr Heywood-Smith, that is 20 minutes.

MR HEYWOOD-SMITH:   If the Court pleases.

GLEESON CJ:   Mr Trim, we do not need to hear you in relation to Mr Roberts’ application.  What do you have to say about the position of Mr Case?

MR TRIM:   With respect to Mr Case, there were concurrent findings both by the trial judge and by two of the members of the Full Court that he was indifferent to the truth about which he published.

KIRBY J:   Yes, but they seem to have imposed a duty on him as a person who handed out how‑to‑vote cards.  I mean, thousands and thousands of Australians do that on election day.  To hold them to an obligation to check the Hansard seems, with every respect to them, ridiculous.

MR TRIM:   It was not a how-to-vote card in the traditional political sense.  This was not something generated by any political party, something that ‑ ‑ ‑

KIRBY J:   Well, it is a pamphlet on election day.

MR TRIM:   - - - happened to be handed out in the vicinity of the polling stations on the morning.  It was not a publication generated by any political party.  It may have looked like a how‑to‑vote card but in fact it was not.  It is really a misdescription of fact to call it a how‑to‑vote card.  It was a continuance of this ‑ ‑ ‑

KIRBY J:   Yes, but it was handed out in the local church halls as part of the propaganda to tell you to vote for this or that candidate.  I mean, we have all received it.  Every one of us has to go and cast a vote.  It is a standard and to say that people in all walks of life who do that, thousands of them in all political causes, have to check the truth of the document is ridiculous, with respect.

MR TRIM:   I accept that, with respect, your Honour, but Mr Case is in a different position and it was the background to his circumstances that led to the finding both at the Full Court level and before the trial judge of indifference to that which he published.  He had a long‑standing ‑ ‑ ‑

KIRBY J:   He was indifferent because he was just handing out a how‑to‑vote or propaganda.  That would be the case of thousands of people for every political party.

MR TRIM:   That is true but this man is ‑ ‑ ‑

KIRBY J:   If it is not and if they are liable, notwithstanding what this Court said in Lange and notwithstanding the conventions of our constitutional government, then it might be as well that this Court says so.  There will be a lot of very cautious people on election day.  Maybe they should be cautious.

MR TRIM:   Yes, the particular circumstances of Mr Case take it rather away from the considerations your Honour is just touching upon.  Can I go to page 82 of the application book to the trial judge’s findings in respect of Mr Case, starting at paragraph 268.

GLEESON CJ:   I thought you would have probably been likely to refer first to the findings on page 68 in paragraph 201, which is not quite consistent with the proposition that Mr Case was just a person there handing out how‑to‑vote cards.

MR TRIM:   Yes.  I am indebted to your Honour the Chief Justice.  With respect, that is part of the background which I touched upon a moment ago.  This is why this man’s circumstances put him away from or distancing from the generalised proposition that your Honour Justice Kirby put to me, the circumstances as outlined in paragraph 201.  There was a history of the relationship and state of mind of Mr Case about the activities and conduct of Mr Bass outlined in that paragraph.

GLEESON CJ:   Paragraph 204 also makes a finding against Mr Case, does it not?

MR TRIM:   Correct, and that again is a conclusion that that is the reference to the “passionate” views in the top line of that paragraph.

KIRBY J:   Lots of people on election day have passionate views, lots and lots of people.  You would not be there in the rain handing out how‑to‑vote tickets and propaganda unless you had passionate views.  You have to be slightly crazy to do it, but plenty of Australians do.

MR TRIM:   I am sure that is correct, your Honour, but the difference is the content of the card.  One has to look at the content of the card to see that which was being alleged against Mr Bass.  These are not allegations of the type one will find in the traditional how‑to‑vote card to which we are all accustomed.

GLEESON CJ:   I would have assumed you would rely on the finding on page 68, line 50.  That might be right or it might be wrong, but it is a finding that his sole motive was to use any means he could to get rid of Mr Bass “without any concern for the factual base”.  That is the finding that is relevant to the claim of qualified privilege, I would have thought.

MR TRIM:   Yes, I agree.  The judgments both at first instance and on appeal are littered with references to these issues, that there is this overriding desire on this man to give what ‑ ‑ ‑

KIRBY J:   Look, this is irrelevant.  Plenty of people have overriding desires and they have their political obsessions, but what we have to focus on is whether this particular man had relevantly a legal malice by reason of the fact that he was handing out the document on page 10 because, unless he did, it is a privileged occasion, privileged document.

MR TRIM:   These applicants were obliged to rely upon the common law traditional test of qualified privilege and the common law requirement of malice as that will be invoked or can be invoked to defeat it.  They were not in a position to rely upon the extended privilege because they could never make out the requirement of reasonableness.  Therefore, they always pitched their case on the common law basis, not the expanded basis.

KIRBY J:   No, but their common law case is at least sustained to this extent, that you cannot cut down that common law base to the extent that an endeavour to do so would be incompatible with the freedoms of expression that we have in Australia, especially on election day.

MR TRIM:   Yes, but here this man Case was prepared to do anything - that is the effect of the findings both in the Full Court and the trial level – to bring about the unsuccessful candidature of Mr Bass.

KIRBY J:   You could say that of virtually everybody who is politically concerned on election day.  They all want to win.

MR TRIM:   Yes, but, with respect, the difference here ‑ ‑ ‑

GLEESON CJ:   Where is the passage in the judgment of the Full Court that tells us what the words “actual malice” mean?

MR TRIM:   There is an extensive quotation by Justice Martin in particular from the authorities and he emphasises the relevant passages from Horrocks v Lowe and against that background ‑ ‑ ‑

KIRBY J:   Justice Martin took a slightly different view to the majority, did he not, on malice?

MR TRIM:   No, in respect of the issue of indifference.  What we say is that the applicants’ argument in no sense meets the fact that there were concurrent findings of indifference, both by the trial judge and by all members of the Full Court.

GLEESON CJ:   Is it possible for you to give us a reference to the page number of the application book where there is an explanation of the meaning of the words “actual malice”?  Just a number will do.

MR TRIM:   Not in a discrete sense.  It is the subject or the product of a lengthy analysis by both judges.  If I can go to Justice Williams ‑ ‑ ‑

KIRBY J:   At 105 at paragraph 2 Justice Prior seems to have founded it on the basis in the case of Mr Case that he was “found to be recklessly indifferent to the truth or falsity of the material he published”, but that has a presupposition that it is the business of people handing out election propaganda to be satisfied of the truth of what they are handing out.  If that is the test of the law in Australia, it is going to have a revolutionary effect on people handing out election propaganda.  They have to be sure before they do so, otherwise they might find themselves sued for defamation.  I mean, that just is not the way it has been done up till now.  It may be what the law requires but it is something new.

MR TRIM:   If indifference is injected into the factual matrix ‑ ‑ ‑

GLEESON CJ:   The answer to my question is page 119 of the application book where you will find “express malice” defined.

MR TRIM:   Your Honour is referring to the passage from Justice Hunt in Barbaro?

GLEESON CJ:   Yes.  Qualified privilege will attach where the publisher of the material uses the occasion for the purpose for which the privilege is given and has “an honest belief in the truth of what he published”.  The onus is on the plaintiff to disprove that state of mind and if the plaintiff discharges that onus, the state of mind is described technically as actual malice.  But you do not find out the meaning of the words “actual malice” by going to a dictionary and looking up “malice” and “actual”.

MR TRIM:   The point I was attempting to get to earlier was that both Justice Williams and Justice Martin in the Full Court go to the relevant authorities and distil from the authorities the relevant propositions before coming to an endorsement that the trial judge’s findings that on the facts this man Case was indifferent.  Can I respond to the point your Honour Justice Kirby made to me in respect of the electoral card issue, the handing out of electoral cards, by reference briefly to a passage from Theophanous at page 134.  Referring to the concept of the constitutional freedom, at the top of the page:

There is nothing in that concept which requires that a person who publishes a statement be protected from the consequences of making a defamatory statement which is knowingly false.

It is the next sentence that I rely upon:

Nor does that concept require protection of a publication made with reckless disregard for the truth or untruth of the material published.  The public interest to be served does not warrant protecting statements made irresponsibly.

On the factual findings, both by the trial judge and as endorsed by all members of the Full Court, there has been the requisite degree of irresponsibility on the part of Case and it is a factual matter.

KIRBY J:   Is this the matter on which Justice Martin said that he might have had hesitations himself of finding reckless indifference on the part of Mr Case but, having regard to the primary decision‑maker’s evaluation of the matter and his advantages, that he could not disturb it?

MR TRIM:   No, with respect, that is the proposition appearing in the applicants’ summary of argument and that is incorrect, with respect to my learned friend.  What his Honour Justice Martin does is deal with the issue of purpose.

KIRBY J:   These pages are very badly marked, but I thought it was at page 149 at paragraph 98.

MR TRIM:   If one follows through paragraphs 98, 99 and 100, his Honour is going to the issue of dominant intention, refers to the Devries decision but, notwithstanding Devries, goes on to say in paragraph 100:

I have reached the view that the learned trial Judge erred in concluding that Mr Case possessed a dominant motive –

So that, as has been identified before, both his Honour Justice Martin and Justice Williams would not imbue Mr Case with a dominant motive to injure.  That is not the basis upon which the applicants were found guilty of malice by the majority of the Full Court.  If we follow the paragraph through, his Honour then goes on in the passage your Honour the Chief Justice directed Mr Heywood-Smith’s attention to, paragraphs 102 and 103.  The effect of those paragraphs is that his Honour finds – if I read from the top of paragraph 103:

The professed beliefs of Mr Case as to other statements were based on inadequate evidence and were influenced by both his enthusiasm for the cause . . . The learned trial Judge was satisfied that Mr Case was indifferent within the meaning of the test posed by Lord Diplock.  That conclusion was reasonably open on the evidence.

Hence, I say with respect, we have concurrent findings based on the view of the evidence taken, a view that was open both to the trial judge and to the Full Court.  Justice Martin goes on:

In particular, Mr Case was indifferent to the imputation in the statement that the plaintiff was of such a character that he placed more importance on the rights of persons with respect to firearms than the safety of the electors’ families.  Having reviewed the evidence, I am also satisfied that Mr Case was indifferent to the truth of the imputation apparent from the Card viewed in its entirety that the plaintiff had engaged in discreditable conduct in the discharge of his Parliamentary responsibilities.

KIRBY J:   But what I understand the applicant Mr Case now to be asserting is that that test, namely the requirement of honest belief in the truth of what was published, is in Australia in the context of electoral material not consistent with the constitutional right of free speech and that you have to measure that test, which may have developed in a different context and be applicable in other circumstances, against the constitutional requirement that on election day we do not extract from people handing out election propaganda an honest belief in the truth of what they publish, because that would be to freeze free speech in matters of government concern.

MR TRIM:   If the applicant is now at this point in the proceedings attempting to rely upon the expanded defence, which it has not done at trial or defence, as a back door way of sneaking that test in as a ‑ ‑ ‑

KIRBY J:   Well, I asked that and I was told that it was not abandoned, that in fact it is being pressed.  The constitutional requirement is being pressed.  It is a matter of law.  It is not a matter of fact.  The facts are found.

MR TRIM:   One does that.  We have the reasonableness test and the applicants could never meet the reasonableness test.  The recollection both Mr Swan and I have is that the expanded defence was specifically abandoned at trial and specifically abandoned at the Full Court level because of the ‑ ‑ ‑

KIRBY J:   You appear to be right on that and that is why you may recall my first question related to whether it had been abandoned, but the point that is being made, as I understand it – I may be wrong – is that the Barbaro test, the Lord Diplock test, of honest belief in the truth of what is published is pitching it too high for discussion in Australia in the context of electoral matters and that therefore the common law bends to the Constitution, as Lange says.  I may be wrong, but that is what I understand the point to be.

MR TRIM:   Can I make two points in response.  Firstly, if the applicants again now seek to rely or go back to the expanded defence, then one has to look also at the question of reasonableness.  These applicants on any view could not make out the requirement of reasonableness.

KIRBY J:   Query whether a person handing out electoral propaganda is not acting reasonably by not going back to Hansard and checking the truth of it.  That is a pretty high obligation to impose on them.

MR TRIM:   That is really, with respect, not the factual basis of the finding.  That is what is put on behalf of the applicants but there was a much broader factual set of circumstances taken into account in all three judges arriving at the conclusion that there was the requisite degree of indifference on the part of Mr Case.

KIRBY J: That is right. That is how the lack of honest belief was found because he was indifferent, but the point being made is that he is entitled to be indifferent because the Constitution does not require him to check the truth and accuracy of the propaganda he hands out on election day. That affects thousands and thousands of people who are members of all political parties on election day. That is quite an important question.

MR TRIM:   With respect, in response to that proposition, your Honour, may I refer back to that passage I quoted in Theophanous at page 134, which is a clear acknowledgment by the Court that the public interest acknowledged by the constitutional freedom does not permit a reckless publication in a manner that would damage the reputation of individuals.  It is a balancing exercise and hence the putting aside by the Court in Theophanous of the test applied in Sullivan v United States.

GLEESON CJ:   Mr Trim, you have had 17 minutes.

MR TRIM:   In our submission, the Court is ‑ ‑ ‑

KIRBY J:   Can I just take you, Mr Trim, to that passage in Lange which was after Theophanous.  Lange was a joint judgment of every member of the Court in which those who had come at it with different points of view reached a common formulation.  You will see in that passage at 574 which was read to us that:

with respect to political matters, “actuated by malice” is to be understood as signifying a publication made not for the purpose of communicating government or political information or ideas, but for some improper purpose.

“Improper”.

MR TRIM:   And it will be improper, with respect, if the purpose is to damage the reputation of an individual by indifferent publication.  Can I in response go to the earlier passage on the preceding page at page 573.  I will not read the whole paragraph out because of time constraints, but at about point 6 of the page the Court said:

The defendant must establish that its conduct in making the publication was reasonable in all the circumstances of the case.  In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication.

Hence, in our submission, the proof of indifference will still serve to defeat the defence.

KIRBY J:   But that is at the point of considering reasonableness.  What we are talking about is malice, and the Court dealt with that on 574, and basically pitched the bar up a few notches.  It has said it has to be for an improper purpose.  The question ultimately for us in considering the special leave issue is whether or not the finding that has been made that Mr Case

was indifferent to the truth is enough to say affirmatively that what he did was done for an improper purpose, given that what he was doing was handing out how‑to‑vote material on election day.  Most people who hand out that material never check what they hand out; they just hand it out because of loyalty to their political cause.

MR TRIM:   Blind prejudice, with respect, cannot amount to malice, but indifference on the traditional test, which we say is still alive and well in this context, will do so.

KIRBY J:   There are a lot of little old ladies and little old gentlemen who hand out the material on election day who probably cannot read without their specs.

MR TRIM:   But they, with respect, on that factual basis would not be found to have been indifferent in the sense that Mr Case was as a matter of fact found to have been indifferent.  It is the factual circumstance that makes this, apart from any other issue, not an appropriate vehicle of this new category of privilege that the applicant effectively seeks to erect.

GLEESON CJ:   Your 20 minutes is up.  Thank you, Mr Trim.  Yes, Mr Heywood-Smith.

MR HEYWOOD-SMITH:   Would the Court allow me to revisit the one topic that has been raised twice?  That is the suggestion that the defendant abandoned the extended privilege.

GLEESON CJ:   Is that mentioned in the judgments below?

MR HEYWOOD-SMITH:   What happened was that at that ‑ ‑ ‑

GLEESON CJ:   Is that mentioned in the judgments below?

MR HEYWOOD-SMITH:   That is correct, if the Court pleases.

GLEESON CJ:   At what page?

MR HEYWOOD-SMITH:   I am not sure that it was specifically mentioned in the ‑ ‑ ‑

KIRBY J:   It is.  I saw it mentioned in the Full Court decision.

MR HEYWOOD-SMITH:   What happened of course that before the trial judge it was a very live issue as to whether or not this publication came within the traditional qualified privilege.  This was an occasion where the publication was to the whole of an electorate.  Braddock v Bevins was an English case which held that the traditional qualified privilege applied, for example, to a public meeting in a town hall.  There is no authority which extended it as wide as perhaps the whole of an electorate.  When it was held by the learned trial judge that it did come within the traditional qualified privilege and when in the cross‑appeal to the Full Supreme Court the plaintiff did not challenge that, it was then no longer necessary for the defendants to pursue the extended privilege because they had established the existence of a privilege.  The defendants never conceived that the implied constitutional freedom of speech would be available to the publisher to the wider public but not to the smaller in a political meeting.  For that reason it cannot be suggested that the defendants abandoned what has been put to me as the extended privilege.

KIRBY J:   Let me understand.  Do you say first that this is a legal matter and that no facts could have turned on any abandonment of the matter and, secondly, that in so far as the test of the common law until now has been the requirement that the party asserting that there is no malice has the onus of proving an honest belief in the truth of what he has published, is inconsistent with what this Court has said in Lange to be the constitutional test or the requirement of the common law as moulded to the Constitution in Australia?

MR HEYWOOD-SMITH:   That is the submission, your Honour.

GLEESON CJ:   What are the findings of fact below on reasonableness?

MR HEYWOOD-SMITH:   There are no findings of reasonableness.

GLEESON CJ:   How come?

MR HEYWOOD-SMITH:   Because his Honour the learned trial judge found that in fact the submission put by the defendants was correct, that this was a traditional qualified privilege situation and therefore he did not need to go to the extended defence.  He does comment on it as an aside but he makes no specific findings and does not need to deal with it because of that situation.

GLEESON CJ:   How could a finding of reasonableness stand with the findings that were actually made both at first instance and on appeal about recklessness?

MR HEYWOOD-SMITH:   If the Court pleases, if the defendants are successfully able to refute or reject a plea that they did not hold an honest and reasonable belief, in our submission, there could not be a scenario whereby it could be said that the publications were reasonable.  I make that statement against the proposition that it is necessary to look at each of these

three publications separately.  I acknowledge in respect of the second publication that a question of reasonableness might arise, but that does not mean that the other two publications are tarnished with that finding, particularly in the case of the third publication where a different publisher is involved who has had no involvement with the earlier publications.  If the Court pleases.

GLEESON CJ:   Thank you.

The Court is of the view that both of these applications should be renewed on a date to be fixed before a Court consisting of three Justices.  That will probably, but not necessarily, be a Court consisting of Justice Kirby, myself and one other Justice.  I see no reason why that application should not also be dealt with by video, although, if it is more convenient to the parties – and this is a matter the parties might care to think about – we will have a special leave list when we go to Adelaide.  The costs of today’s proceedings will be costs in the application as renewed.

MR HEYWOOD-SMITH:   If the Court pleases, certainly the Adelaide list in August – it is most convenient to the applicant.  I understand Mr Trim has a problem.  Can I just raise one issue, however, that arises, and that is the need to make application for the continuation of the stay which was granted by his Honour Justice McHugh some three weeks ago to a point in time, I think 30 days after today’s date.

KIRBY J:   The intention of Justice McHugh’s order, which I have seen, was to continue the stay up till disposition of the matter.  Why would it not simply continue on its own force pending the disposition of the application before the Court which is not being disposed of today?  I think that is for Mr Trim to answer rather than you.

MR TRIM:   We understand that to be the spirit but not the exact letter of the order and we would not suggest otherwise, your Honour.

GLEESON CJ:   Should we vary the stay by ordering that the stay continue until disposal of the application for special leave to appeal that we have referred to a Full Court or further order?  Are you content with that?

MR TRIM:   Thank you.

GLEESON CJ:   Mr Trim, did you want to say something about the Adelaide sittings?

MR TRIM:   I have plans to be out of the country that month and I could not change those plans.

GLEESON CJ:   That is all right.  We will deal with the matter by video link on a date to be fixed between the parties and the Registry.

MR TRIM:   Thank you.

GLEESON CJ:   Very well.  We will adjourn to the further hearing of the Sydney special leave applications.

AT 3.32 PM THE MATTER WAS ADJOURNED