Setka v The Honourable Tony Abbott MP & Anor

[2015] HCATrans 151

[2015] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M133 of 2014

B e t w e e n -

JOHN SETKA

Applicant

and

THE HONOURABLE TONY ABBOTT MP

First Respondent

AUSTRALIAN NEWS CHANNEL PTY LTD (ACN 068 954 478)

Second Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 19 JUNE 2015, AT 9.31 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant with my learned friend, MS R.L. ENBOM.  (instructed by Slater & Gordon)

MR M.F. WHEELAHAN, QC:   If the Court pleases, I appear for the first respondent with my learned friend, MR T.J.F. McEVOY.  (instructed by Arnold Block Leibler Lawyers)

MR S.A. O’MEARA, QC:   If the Court pleases, I appear for the second respondent with MR A.T.J. BAKER. (instructed by Johnson Winter & Slattery)

FRENCH CJ:   Yes, Mr Reynolds. 

MR REYNOLDS:   If it please the Court.

FRENCH CJ:   You seem to have the difficult task of persuading us to grant special leave in an interlocutory debate about pleadings which has been going on for two and a half years.

MR REYNOLDS:   Yes.  Your Honour, can I deal with that directly.

FRENCH CJ:   Yes.

MR REYNOLDS:   It is implicit in your Honour the Chief Justice’s observation that there may well be important substantive issues of law, which we have listed in a note on the first page of what your Honours have just received.  That is just a list of the points of law to which I can come in due course.  But, to answer your Honour the Chief Justice directly, we submit that assuming that there are important issues of law that a grant of leave in this case is appropriate for two reasons:  first of all, because it is in the interests of justice generally. 

It is unclear whether there are two defences or three defences of truth.  It is unclear if this Hore‑Lacy defence is good law.  It is unclear if it is, what the elements of the Hore‑Lacey defence, it is also unclear what the elements of the defence of contextual truth is and there are conflicts between courts of appeal on all of these issues and we have tabulated them on that opening page in brief form. 

We submit that in that situation there is a public interest in the urgent resolution of these issues otherwise there is a risk that a substantial number of cases will have to go for retrials.  There will be multiple appeals in various jurisdictions to determine all of these issues.  It is unfair to the litigants because of the uncertainty and it is particularly unfair to plaintiffs because no one can advise them as to what is the likely result of a particular case.  Many of them would be put off commencing proceedings.

There is a risk of multiple appeals, a risk of retrials and, of course, there are the difficulties for trial judges in giving directions on every single one of these issues, every time a defence of truth is raised, which, as your Honours know, this is the main defence, these are the main defences.  There are going to be these problems at every step along the road. 

On one view the law in New South Wales and Victoria has been clarified on some of these issues but there remains the position in other States where it is not.  Now, that uncertainty inevitably favours the behemoths of the Fourth Estate.  Your Honours may remember, particularly your Honours Justice Gageler and Justice Keane, when the Lange Case was removed into this Court one of the main reasons was because of the uncertainty about the position with qualified privilege where defendants were being deterred from commencing proceedings because of that uncertainty.

So the first answer to your Honour the Chief Justice is this, that it is in the interests of justice generally that leave be granted to resolve these points otherwise the consequences for the administration of justice are, I submit, horrendous.  This situation here in relation to these defences is utterly chaotic.  I would go so far as to say it brings the law into disrepute. 

The legislature, in dealing with these three defences, left all of these issues that we have tabulated up in the air.  That is what has led to these conflicting decisions and no one can say what the law will finally be.  It inevitably is going to end up in this Court.  The only way it would not end up in this Court is if there was legislative intervention in all jurisdictions in relation to all of these matters.  It is uniform ‑ ‑ ‑

FRENCH CJ:   How much practical difference is this going to make to the conduct of the trial, if we ever get to one in this case?

MR REYNOLDS:   Your Honour, a huge difference.  It impacts first of all on the issue of meaning, as to how that issue is determined by the jury.  Second of all, it impacts on whether there is any common law defence.  Thirdly, it impacts on whether there is a Hore‑Lacey defence.  Fourthly, it impacts on what the elements are of a Hore‑Lacey defence.  That is unclear.  There are also the elements of the contextual truth defence which are unclear.  Every aspect of all of those three defences is unclear and even the issue of whether there is a common law defence.

Can I deal with the second part of my response to your Honour the Chief Justice and it is this, that it is unfair to this particular plaintiff not to grant leave.  The New South Wales Court of Appeal, referring to what is the main issue in this case, namely the Hore‑Lacey defence, described it as subversive of an orderly and fair trial. 

Now, that means that at least on their view my client cannot have a fair trial.  His trial will inevitably be prejudiced.  It is going to be impossible to run it at every moment of the trial because every moment is going to be consumed with an analysis of meaning or one of these truth defences.  These cases are jury cases and because of the uncertainty on multiple issues there are going to be massive difficulties and arguments before the trial judge as to how all of these issues are determined, both on the issue of directions and then on the formulation of a list of questions for the jury.

If this case goes ahead it is almost certain that there is going to be an application for retrial, no matter who wins.  The reason is that no matter what directions are given by the judge and no matter how ably he or she acquits himself in that regard, one of the parties is going to be able to point to decisions of various courts that are inconsistent with the rulings that he or she has made.

KEANE J:   But at least at that stage there will be some concreteness in the cases.  There will be evidence that has been received and if it has been received wrongly that can be addressed.  If evidence is tendered and wrongly rejected, that can be addressed, but at least we will not be in a situation where there is yet another essay being written on a hypothetical basis.  Does the law in Australia really need – defamation law in Australia really need another essay on a hypothetical?

MR REYNOLDS:   Your Honour, with respect, it is not hypothetical.  These matters are raised on the pleading.

KEANE J:   That is right.  It is a pleading summons.

MR REYNOLDS:   There have been, as your Honour appreciates, many cases, particularly on important issues, that have come to this Court at pleading stage - Howden v Truth & Sportsman is one, Fell v Queensland Newspapers, Lange itself, Theophanous, Stephens

GAGELER J:   They were not happy experiences.

MR REYNOLDS:   They were for some, your Honour.  At least they clarified the law.  The point that I would ‑ ‑ ‑

KEANE J:   That is not altogether clear either.

MR REYNOLDS:   Without diverting into the law of qualified privilege, we submit that the issues here are much more important than the issues in the cases I have just reeled off.  Your Honours appreciate that in any defamation case, the fulcrum is the issue of meaning.  These issues deal with that.  The second, the most important defences are the truth defences and no one can say what the law is.  These pleadings raise, to respond to what your Honour Justice Keane says to me, directly those issues.  This Court will not be dealing with a hypothetical but with a highly formulated issue in the context, it is true, of a pleading where these issues are raised. 

Now, these issues or some of them, I submit, are out for resolution.  The problem, if I can just complete what I was saying to your Honour the Chief Justice, for my client is that if he has to go all the way back down with an inevitable application for a retrial by either the defendants or by him, he is going to have to come all the way back up to this Court, we submit, almost certainly.  What is the end result?  He is then going to have to go back down again for another retrial. 

Now, we have made the point in our submissions that the damages awards in these cases, if there is no claim for economic loss, are small.  Your Honours know about the difference between actual costs and the costs on assessment.  If he gets, say, $150,000 by way of damages, the whole of that is going to have been consumed in going up and down the appellate ladder to resolve these questions and he may end up with at least two, maybe three retrials because of the difficulties attached to these issues.  That is not fair.  It is not fair to him and it is not fair to other plaintiffs, in particular, or indeed, other litigants to leave these issues up in the air.

FRENCH CJ:   Can I just understand the practical implication to the differences between the pleadings?  Your client asserts imputation of thuggery with home visits, to take one example.

MR REYNOLDS:   We say it is not that simple but accepting what your Honour says is a rough summary, yes.

FRENCH CJ:   Yes, I am just looking at what you have pleaded:  the plaintiff visits the homes of people working in the construction industry for the purpose of making demands amounting to extortion; the plaintiff is a thug in that he visits the homes of people, et cetera, and then the defence, paragraph 13, alleges imputation of thuggery without home visits.

MR REYNOLDS:   It is not that simple, your Honour.  There are a whole lot of other elements I have left out and that is part of the – one of the issues that we raise is whether first of all, the defendant is entitled to plead any defence like that.  Second of all is the question of difference and substance a matter for the judge, in which case it is a pleading issue or is it a procedural issue or is it a matter for the jury?  We do not know because the cases are in conflict.  What are the elements of this Hore‑Lacey defence?  We do not know.  Where those imputations are converted into contextual imputations, we do not know what the law is there. 

So all these litigants are, in effect, being thrown to the wolves into a sea of uncertainty.  There has not been any point, as I understand it, made against me that these points that I am raising are not raised - that is the list of points that are said on that sheet - fairly and squarely here.  In this case, they are.  They provide a very good vehicle, we submit, for the resolution of those issues. 

Your Honour Justice Keane says we do not have any facts.  Very often, your Honour, that is going to lead to the non‑resolution of issues because, for example, there is no miscarriage of justice after a trial.  If the issue is raised squarely on the pleading, I submit it raises a very good vehicle for the determination of these questions. 

Now, this uncertainty in the law, this uncertainty on multiple issues on all of these defences and on the issue of meaning, we submit, has to be resolved.  It ought to be resolved now rather than in, I do not know, 18 months, two years, three years, for some other case to wend its way up to the High Court by which time there will have been all of these other decisions which inevitably will not – where the trials and the directions that have been made will not have been made in accordance with what your Honours ultimately determine to be the law.

We submit that far from being a point against my client, the fact that it is raised neatly, we submit, on the pleading summons is a point in his favour.  There are no factual disputes.  We do not have a whole lot of arguments about the course of the trial and that kind of thing.  These issues are raised for determination fairly and squarely on the pleading.  Now, I have not gone into the issue of these various points your Honours have on the list.  Can I ‑ ‑ ‑

GAGELER J:   Most of them appear to rely on a difference in approach between New South Wales and Victoria.

MR REYNOLDS:   That is fair, your Honour.

GAGELER J:   You rely principally, I suppose, on the Bateman decision, do you?

MR REYNOLDS:   I do and can I say on that that a point is apparently taken against me - that is in the recent missive from Mr Wheelahan - that that decision is a matter on New South Wales practice and Rules of Court.  Well, of course, the Victorian Court of Appeal says these are matters of substance but just putting that to one side ‑ ‑ ‑

GAGELER J:   Not all members of the Victorian Court of Appeal said that.

MR REYNOLDS:   I think Justice Whelan had reservations but that only supports what I am saying.  There is a split as to whether this is a matter of substance and procedure.  The point I am trying to make is that the alternative reasoning, and it is very clear in the Bateman Case, is that the reasoning in Chakravarti of Justices Brennan and McHugh was preferred and it was said that Manock also supported that view. 

Your Honours have heard what I said about the suggestion made by the Court of Appeal that the Hore‑Lacey defence as prescribed by the Victorian Court of Appeal was subversive of an orderly and fair trial, in saying in so many words that it is plainly wrong.  So far as the suggestion that the Hore‑Lacey defence is consistent with Chakravarti and Manock, we say that the New South Wales Court of Appeal disagrees. 

Insofar as it is suggested by my learned friend the solution is Rules of Court, we submit that that is a little hard to fathom given that the majority of the Victorian Court of Appeal have said that this is a matter of substance which would mean that it would be dealt with by Rules of Court.  This is the problem that unless there is legislative intervention in all the States and all the jurisdictions all agreeing on how to deal with these issues of substance, there cannot be any resolution of these issues unless your Honours deal with it. 

I think I am starting to repeat myself.  I am happy to entertain further questions, of course, if I can be of assistance but I think your Honours have the gist of the submission that we make.

FRENCH CJ:   So far as the practical impact on trial is concerned, you really just make the general point that what you identified as the different views of what the correct law is – of what the law is are certain unless, as it were, settled by this Court to lead to further agitation following whatever the outcome of the trial is.

MR REYNOLDS:   Well, that and also we embrace the observation by the New South Wales Court of Appeal that this Hore‑Lacey defence is subversive of an orderly and fair trial.

FRENCH CJ:   I am just looking in terms of the actual – I see what you mean, yes.

MR REYNOLDS:   As I have said before, at the very fulcrum of these cases is the issue of the determination of meaning and through that fulcrum one goes to these issues of truth.  Now, both this issue of meaning and these two, maybe three defences, all swing on all of these questions and there is, as I have said already, uncertainty about every aspect.  Now, there is this conflict, of course, not only between the New South Wales and Victorian courts but I should add that the Queensland Court of Appeal have taken the New South Wales approach before the enactment of the new Acts. 

Your Honour Justice Keane may remember a case called Robinson v Laws where the Brennan/McHugh view in Chakravarti was adopted.  In fairness, I should say, that the South Australians and Western Australians have gone the other way.  But these are, I submit, very large issues. 

In some ways, my difficulty before your Honours today is that instead of having one, maybe two special leave points, I have, if you look at that list, have them running out my ears and on every single one of them, every single one of them, there is a split at least between the Victorian and New South Wales Courts of Appeal.  Your Honours, with respect, it is time this mess was sorted out.  It is utterly chaotic and I submit it needs to be dealt with now.  Your Honours, those are my submissions.

FRENCH CJ:   Thank you, Mr Reynolds.  We will not need to trouble the respondents.

This application for special leave from the decision of the Court of Appeal of the Supreme Court of Victoria concerns the pleading of defences in a defamation case.  It reflects interlocutory debates which have gone on for nearly three years.  Notwithstanding Mr Reynolds’ submissions, we are not persuaded that any justification has been shown for protracting that process by the grant of special leave to appeal.  Special leave will be refused with costs.

The Court will adjourn to reconstitute.

AT 9.50 AM THE MATTER WAS CONCLUDED