Rowan v Cornwall

[2005] HCATrans 601

[2005] HCATrans 601

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2005

B e t w e e n -

DAWN MARGARET ROWAN

Applicant

and

JOHN ROBERT CORNWALL

First Respondent

JUDITH MARY ROBERTS

Second Respondent

JUDITH BLAKE

Third Respondent

HELEN CRAVEN WIGHTON AND HENRIETTA ELIZABETH WIGHTON

Fourth Respondents

THE AUSTRALIAN BROADCASTING CORPORATION

Fifth Respondent

CHRISTOPHER JOHN SUMNER

Sixth Respondent

ROBYN KING

Seventh Respondent

COLLEEN JOHNSON

Eighth Respondent

HARRISON ANDERSON

Ninth Respondent

THE STATE OF SOUTH AUSTRALIA

Tenth Respondent

SUSAN MAREE RYAN

Eleventh Respondent

THE COMMONWEALTH OF AUSTRALIA

Twelfth Respondent

NETWORK TEN (ADELAIDE) PTY LTD

Thirteenth Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 11 AUGUST 2005, AT 9.37 AM

Copyright in the High Court of Australia

__________________

MR P.A. HEYWOOD-SMITH, QC:   May it please the Court, I appear with my learned friend, MR D.G.M. RIGGALL, for the applicant.  (instructed by Montgomery & Co)

MR D.H. PEEK, QC:   May it please the Court, I appear with my learned friend, MR T.N. GOLDING, for the State respondents in this matter, that is the first to fourth, sixth, eighth to tenth respondents.  (instructed by Crown Solicitor’s Office South Australia)

MR T.L. STANLEY:   May it please the Court, I appear for the Commonwealth respondents, the seventh, eleventh and twelfth respondents.  (instructed by Australian Government Solicitor)

MR R.J. WHITINGTON, QC:   May it please the Court, I appear with my learned friend, MR A.T.S. DAWSON, for the fifth respondent, the Australian Broadcasting Corporation.  (instructed by ABC Legal Services)

MR A.R. HARRIS, QC:   If the Court pleases, I appear with my learned friend, MR S.J. DOYLE, for the thirteenth respondent, TVB.  (instructed by Fisher Jeffries)

KIRBY J:   Just before this matter starts, the respondents include Susan Ryan, former Senator, and also Mr Christopher Sumner, former Attorney‑General of this State.  I knew Mr Sumner 40 or 50 years ago in student matters, and I have met former Senator Ryan from time to time, not for the past five years, I think.  I saw Mr Sumner last night at the reception which was held at the Town Hall, but we steadfastly avoided having anything to do with each other.  I do not feel embarrassed to sit in the matter, but I thought in view of the nature of the case I should disclose those associations.  I do not know whether you would have anything to say about it or if any of the other parties would prefer that I do not sit.

MR HEYWOOD-SMITH:   We see no difficulty with your Honour sitting.

GUMMOW J:   Thank you, Mr Heywood-Smith.

MR HEYWOOD-SMITH:   If the Court please.  I do not seek to address the Court in any detail on the facts of the matter.  Suffice to say that the case arose out of a report which included a large number of unsubstantiated allegations that are set out at pages 13 and 14 of the application book.  The allegations were not true and held by the trial judge to be not true, and he held that they should not have been included in the report, at page 137.  He found that the allegations had been resolved to the department’s satisfaction and yet were included, and he described their inclusion as “a shocking breach of ordinary principles of fairness”, page 148.  He also found that the report displayed “a remarkable indifference to the truth”, page 159, and was “a shocking defamation”, page 14, and “a gross calumny” on the applicant, page 302.

The compilation of this report was at the direction of the then Minister of Health, Dr Cornwall, and it was his direction that the unsubstantiated allegations be included.  That direction was found by the learned trial judge to be a misfeasance in a public office and that finding was upheld by the Full Court.  The trial judge also held that two of the review committee of five and a consultant engaged to assist that committee were actuated by malice in the preparation of the report, and that the committee was vicariously liable for the consultant ‑ ‑ ‑

GUMMOW J:   Do you quibble with the summary of conclusions at pages 636, 637 and 638 of the application book?

MR HEYWOOD-SMITH:   We quibble with the finding that the ‑ ‑ ‑

GUMMOW J:   No, just the summary of what they have done, just as a narrative; namely, for example, that your client has retained a judgment, albeit reduced, against Dr Cornwall.

MR HEYWOOD-SMITH:   Yes.  No, we do not quibble about that, if the Court please.  But we do say, in respect of both the issues that we raise of whether negligence can coexist with defamation and the issue of the setting aside of the malice, that a reversal of a successful application with respect to the negligence issue or a reversal on the other has the effect, we say, of reinstating the review committee as liable, including an officer of the Commonwealth, and we say that this has a dramatic effect so far as the applicant is concerned in that, as I think the Court would appreciate, the costs issues here are such that the costs of each one of the respondents is comparable with the total amount received by the applicant.

HAYNE J:   Do I understand that to amount to the fact that the principal driver that underlies the application is to obtain a different order as to costs?  I understand the economic significance of that, of course I do, but at the moment the plaintiff has a judgment against a State defendant in an amount about which she would complain, and that the real driver of the application becomes what disposition should have been made about the costs of the proceeding.

MR HEYWOOD-SMITH:   It is a substantial matter, your Honour, but it is not the sole matter.  The applicant considers that justice in this matter demanded that the findings of malice be maintained.  That is a significant matter for her.  The Court will appreciate that there is a ground of appeal which seeks to attract the Court’s interest in the quantum aspect which could have an effect as well, particularly in respect of contributions.  So these matters are not clear-cut.  Very briefly, the negligence issue ‑ ‑ ‑

KIRBY J:   The problem with that answer to Justice Hayne is that you would understand that it is a very rare thing for the High Court to deal with cost matters at all, and when it does it generally is on a general question of principle, not just in the particular case.

MR HEYWOOD-SMITH:   Very much I understand that, if the Court pleases.

KIRBY J:   You have really got a leg up into the Court on some issue of principle or general importance and then get the costs issue dealt with in the side wind because otherwise we would not normally get involved in a discretionary matter.

MR HEYWOOD-SMITH:   Quite so.  Here, however, if the media organisations and the Commonwealth are restored as litigants who are the subject of orders, then we do not get to the Bullock order argument.  We are concerned here with a litigant who over 15 years conducted litigation and she was successful and restored, we would say, her reputation.

KIRBY J:   It may be the point of the case is to warn parties not to have a scatter gun approach to joining every defendant, because then you run the risk that at the end of the day you might win the battle but lose the war.

MR HEYWOOD-SMITH:   I do not want to spend too much time on this one point, but can I just respond to your Honour by saying this, that we say that as a matter of principle there was an error in the application of the laws relating to Bullock orders.  We have here a situation where the trial judge found, and it was not upset on appeal, that the Minister had effectively, for purposes of spin, to be able to present a decision to the public and get away with it in the way that he did, in effect enlisted the aid of the media by sending out his chairperson of the report to treat with the media, and he also sought to involve the Commonwealth to deflect criticism.

Both the trial judge and the Full Court found that it was reasonable for the plaintiff to have joined the media and the Commonwealth.  The Full Court, however, was against the applicant on the second leg of the Bullock order test, which is that there has to be some action on the part of the losing defendant which would warrant that they be visited with the costs of the other parties.  We say that in this case there is a very strong reason for that, for the reasons that I have given.

Can I return then to perhaps the more principal special leave points.  The negligence point is one which the Court will appreciate has been touched upon by this Court in Sullivan v Moody and Tame v New South Wales but not in any comprehensive way.  We say that here it is a quite different situation from one of a police officer preparing his report on an incident, or a report under the Child Welfare Act, as was the case in Sullivan v Moody.  Here we had a committee that had nine months to do this report, they had total access to departmental records, they had total access to the plaintiff to seek a response.  They were well aware of the potential for harm and they were well aware that this report was to be put out into the public.

In those circumstances we say that it is appropriate for the Court to consider whether, by very reason of the fact that it was likely that the report would have privilege, that that impacted on the creation of a duty of care.  Now, we say that that issue has not been determined by this Court, and there are conflicting decisions of lower courts, Wade v State of Victoria, and the Sattin matter of Justice Levine in the New South Wales court.

HAYNE J:   But is the basic proposition that in circumstances where misfeasance is not made out, a duty of care may nonetheless run?

MR HEYWOOD-SMITH:   Yes.

HAYNE J:   That presents a real problem about coherence, does it not?

MR HEYWOOD-SMITH:   In our submission, it is ‑ ‑ ‑

HAYNE J:   You cannot get as high as misfeasance but there is to be this lower level.

MR HEYWOOD-SMITH:   And we point to the House of Lords decision in Spring v Guardian Assurance as authority for the proposition that in an appropriate case such a duty would arise.  Now, all we put to the Court is that this issue has not been fully ventilated in this Court.

The second matter is that of the government political matter, the extended qualified privilege defence.  We have set out in paragraph 12 of our summary the various cases.  This Court will be well aware of a number of cases in the lower courts, prominent cases that have considered the issue of what is a government and political matter, and there are a variety of approaches.  That is clearly uncontested.  Here there is, we say, a very interesting issue which arises from the basis upon which the Full Court found that this was a fair and accurate report.  If I can invite the Court to go to page 592 of the application book where, in paragraph 625, the Full Court sets out the reasons as to why it says that this was a government or political matter.  From the third sentence their Honours say:

The funding of women’s shelters by State and Federal governments had been the subject of vigorous debate some years before the ABC program was broadcast.  CBWS –

that is Christies Beach Women’s Shelter –

was an active and vocal participant in that debate.  The debate occurred in the political sphere, and the Judge found that CBWS engaged in certain conduct – the refusal to sign the Financial Agreement and the incurring of deficits – in order to make a political statement.  In October 1986, Dr Cornwall said in the Legislative Council . . . The day before the ABC program was broadcast the report of the Review Committee was tabled in the Legislative Council.  The Minister, Dr Cornwall, told the House that funding to CBWS would be withdrawn.  That decision was made with the consent of the Commonwealth government –

and as a result of clause 8 of the SAAP Agreement, that occurred.  Now, none of those matters, except one, appears anywhere in the ABC’s broadcast.  The viewer is not told any of those matters except the one – the second last line on the bottom of page 592:

the refusal to sign the Financial Agreement and the incurring of deficits –

Now, these were not notorious matters.  This was not a case such as the Conservation Council v Chapman where the Hindmarsh Island Bridge was a notorious issue that activated the minds of the public over a long period of time.  This raises the question whether to get to a government or political matter it is necessary for the publisher to inform the viewer that that is what it is, rather like a ‑ ‑ ‑

KIRBY J:   But you have to be very careful about putting the courts up as a sort of a policeman of the content of how political and governmental matters were presented.  If one had the power, you would try to make it more rational and more informed, but that is not the role of the courts and it would be an enormous role to take on.

MR HEYWOOD-SMITH:   Yes.

KIRBY J:   You just have to face the fact that the media present matters in a particular way, and then we have to classify it as to whether it is relevantly about a governmental and political matter. If it is, it has a high protection under the Constitution because of the nature of our polity.

MR HEYWOOD-SMITH:   Some matters, however, will be regarded as peripheral, as in the Marsden Case, where factors of being president of the Civil Liberties Council or former president of the Law Society are regarded as peripheral to the issue; there must be some balancing exercise.  Here, we say, that the ABC and the TVB focused on the salacious aspects of a report – a very minor aspect of the report – told the viewer very little about any matters going to government or political issues and now seeks to rely upon this defence.

We also say that interesting issues of principle are raised on the question of whether or not, even if assuming that it was government or political, this was reasonable publication, and the issues of principles are these.  Should the extended defence exist in an area covered by fair and accurate report, or fair comment, to protect publications that fall outside those normal defences?  In this case the media organisations have sought to rely upon the fact that they were only repeating imputations that already existed in the report.  Can it ever be reasonable for a publisher to simply repeat, to say, “Well, it’s all right if I simply repeat”.  We say no. 

That, we say, is an issue of principle, and here, as the learned trial judge found, there must be a question in any circumstance of a media publisher being able to lift unsubstantiated reports and described as such from the court and present them and not tell the viewer that they are unsubstantiated, simply tell them that there are allegations, and presented in a way which suggests that they are true.  So, in our submission, there are significant issues that this Court can assist on the question of what is or is not reasonable, and the Court would be mindful of the fact that only in one paragraph was that issue addressed in the Lange decision.  That is the second matter.

There is a question which we have raised as to the appellate role, and I accept that I have more difficulty in characterising it as a special leave application, but it is one clearly where, we say, the justice to the applicant

arises.  The trial judge in this matter sat for five months and received something like 1,000 exhibits.  He found malice comprehensively, and he did so for summarised reasons in his judgment ‑ ‑ ‑

KIRBY J:   We know all that, but the Full Court is not deprived of its function under the law.  It has to perform its function when an appeal comes to it, and that includes a function in relation to the facts and the evaluation.  So what is there that is different from what the Court said in Fox v Percy?

MR HEYWOOD-SMITH:   What we say is that his Honour identified seven essential basic reasons as to why he found malice.  The Full Court picked only one of the seven, namely that there were positive untruths told, matters that the committee knew were untrue, and addressed that and addressed it in this context.  It identified seven matters that the trial judge found as being falsities that were knowingly presented as such.  It then proceeded to ignore four of them by saying that the plaintiff had not complained about those in the statement of claim.  When the first matter complained of in the statement of claim included a general proposition of misappropriation of funds and improper section activities, which encompassed the other four, they were fully dealt with by the court.

So what we had was the Full Court overturning the finding of malice by not addressing the matters that the trial judge relied upon.  We are not inviting the Court to trawl through the evidence.  It is simply a question of comparing the judgment of the Full Court with the judgment of the trial judge and appreciating that the Full Court simply ignored large slabs of the trial judge’s reasons for his finding of malice.

GUMMOW J:   Well, the State respondents rather challenge what you have been saying to us, on page 718 of the application book.

MR HEYWOOD-SMITH:   They do, and we have indicated in our submission that we believe improperly.  There are some other minor issues that arise from the draft notice of appeal but, unless the Court wishes to hear from me further, those are our submissions.

GUMMOW J:   Yes thank you, Mr Heywood-Smith.  We will take a short adjournment.

AT 9.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.06 AM:

GUMMOW J:   Mr Peek, Mr Whitington, Mr Stanley and Mr Harris, there is no need to call on you.

Insofar as this application asks the Court to review the law concerning the duties of an appellate court, there is no occasion to elaborate what this Court recently said in Fox v Percy (2003) 213 CLR 118. Insofar as the application challenges orders in relation to quantum of damages or costs, this Court would not intervene in this case unless some other issue of principle or of importance arose.

We see no reason to doubt the conclusion of the Full Court of the Supreme Court of South Australia that the primary judge took too narrow a view of the application of the principle stated by this Court in Lange v Australian Broadcasting Commission (1997) 189 CLR 520. Although questions about the intersection of those principles with other common law torts may be of importance, they were not explored by the courts below. Accordingly, this application is not a suitable vehicle in which to explore them.

With respect to the other issues raised, including the relation between negligence, defamation and misfeasance in public office, there are no reasonable prospects of success were special leave to be granted. 

It follows that special leave to appeal is refused and refused with costs.

AT 10.07 AM THE MATTER WAS CONCLUDED