Theophanous v The Herald & Weekly Times Limited

[1993] HCATrans 234

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Mll0 of 1993

B e t w e e n -

DR ANDREW THEOPHANOUS

Plaintiff

and

THE HERALD & WEEKLY TIMES

LIMITED

First Defendant

BRUCE RUXTON

Second Defendant

For Directions

MASON CJ

Herald(2) 1 20/8/93

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 AUGUST 1993, AT 9.40 AM

Copyright in the High Court of Australia

MR C.D. GOLVAN:  If Your Honour pleases, I appear with my

learned leader, MR A.R. CASTAN, OC, for the

plaintiff. (instructed by Rigby Cooke)

MR R. MERKEL, QC: If Your Honour pleases, I appear with my

learned friend, MR M.A. DREYFUS, for the first

defendant. (instructed by Arthur Robinson &

Hedderwicks)

MRS. GAGELER: If Your Honour pleases, I appear for the

Attorney-General of the Commonwealth in

anticipation of intervening at the hearing of the matter. (instructed by the Australian Government

Solicitor)

HIS HONOUR:	Yes, Mr Merkel.
MR MERKEL:	If Your Honour pleases, the situation at present

is that the first defendant and the plaintiff have

agreed on a form of a proposed case stated which I

think was faxed to Your Honour or to the Court

yesterday.

HIS HONOUR:  Yes. As I understand the documents, having

quickly read them, you have complied with the

conditions antecedent to this matter being removed,

so it is effectively removed.

MR MERKEL:  It is effectively removed, Your Honour. A

summons was issued and the matter has been removed.

The questions that were proposed as questions to be

stated - they are stated as to be reserved, but

after what Your Honour has directed in the other

matter, be stated - seek to raise the freedom issue

in a number of ways and at the moment a concern

arose that the defence does not strictly raise the

questions in the form in which we were seeking to

have them raised for the Court and what was

proposed, again by agreement, subject to anything

Your Honour may indicate, is that a summons be	taken out to seek to have the defence formally
amended. Does Your Honour have a copy of that
summons and proposed amendment?

HIS HONOUR:  I do. That is the summons dated

19 August 1993?

MR MERKEL:	Yes, Your Honour.
HIS HONOUR:	Yes, I have that.
MR MERKEL:	And what was proposed was to seek an order by

consent that leave be granted to amend the defence
in the form of the amendment set out in exhibit A

to the affidavit of Peter O'Donahoo in support of

the summons, and then the plaintiff would seek to

Herald(2) 2 20/8/93

take out a summons to strike out that defence in

this Court, so that the issue would be raised in

the way it was raised procedurally in the county

court before the removal. And in the proposed case

stated, if Your Honour is disposed to state the

case as set out, the amended defence and the

summons would replace the current documents

referred to, which was the previous defence and the

previous summons.

I should also indicate, Your Honour,

references in the proposed case to the application

book were there as a matter of convenience for

Your Honour, because of the faxing difficulty with

sending all the documents, but what would be

proposed is that each of the documents referred to

would be an appendix to the case stated.

HIS HONOUR: 

What I am asked to do in the first instance by

you is to grant you leave to amend the defence of
the first defendant in accordance with the document

marked exhibit A to the affidavit of Ian Peter

Scott O'Donahoo of 19 August?

MR MERKEL: 

Yes, Your Honour.

HIS HONOUR: 

Now, is there any objection to my making an

order in those terms?

MR GOLVAN:	No, there is not, Your Honour.
HIS HONOUR:	Very well, I make an order in those terms.

MR MERKEL:  Thank you, Your Honour. The matter then we

would seek to raise is the stating of the case

pursuant to section 18 of the Judiciary Act in the

form of the proposed case stated that was submitted

to Your Honour, subject to the alterations that I

have indicated to Your Honour, which would have the

relevant documents as appendices to the case

stated.

There is one other matter, Your Honour. We

have been unable to obtain the terms of reference

of the particular parliamentary standing committee, and if we are able to obtain those we would seek to

add that as an appendix, and that would be by

agreement between the parties.

HIS HONOUR:  Yes. There is no objection to that course?

MR GOLVAN:	No, Your Honour.
HIS HONOUR:	Now the parties are agreed upon the case stated in the form proposed?
MR GOLVAN:	Yes, we are, Your Honour.
Herald(2)	20/8/93
HIS HONOUR:	You, also, Mr Gageler?
MR GAGELER:	Your Honour, we have some slight comments on

that. We have some interest in this being

consistent with the form of the case stated in the

Stephens' case. Your Honour, there is a difference

in this case in that there appears to be several questions preliminary to the questions of asking

simply whether the defences as pleaded are bad in

law, which are the only questions that Your Honour

stated for the consideration of the Full Court in

the previous case.

The third of the questions asked appears to be

based on two possible factual scenarios which are not dealt with precisely in the body of the facts

set out in the case stated.	And save that, I think
in paragraph 16 it is stated:

At the time of publication of Ruxton's letter there was public discussion about the possibility of a general election being held

in December 1992.

That being the case, Your Honour, if that question

is to be asked in a form, it really should be asked

in a form of assuming that statement of facts to be

true as stated in paragraph 16, and not some

variation - to variations of that stated fact.

HIS HONOUR: 

You mean it ought to be linked to the statement

of facts in 16, so that any answer is clearly
related to the facts stated in 16?

MR GAGELER: 

Yes.

HIS HONOUR: 

There would be no difficulty about amending

question 3 in that way, would there, Mr Merkel?

MR MERKEL:  No, Your Honour. Can I indicate this,

Your Honour, that paragraph 16 and question 3 will
be brought into conformity.	It may be one way or

the other, and that will be a matter for agreement

between the parties, but they will be in conformity

in the case stated, and we are indebted to the

observation made in that regard, Your Honour.

HIS HONOUR:	Anything else, Mr Gageler?
MR GAGELER:	No, Your Honour.

HIS HONOUR: It is probably sufficient, Mr Merkel, if I

indicate that I am prepared to state a case in the

form set out in the document entitled "Proposed
Case Stated", which I shall initial, subject to two

things: one, bringing question 3 into conformity with paragraph 16 in that document in the manner

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indicated by Mr Gageler; and secondly, that you can

attach to it in the form of an annexure or appendix

the material that you have previously referred to.

MR MERKEL:  Thank you, Your Honour. I should indicate,

Your Honour, the point made by my learned friend

also comes up in the pleading. In paragraph (b) of the amended pleading in {viii), that matter is also raised and if the leave Your Honour granted

concerning amendment to the defence could also

embrace the same point.

HIS HONOUR:  Yes. The grant of leave in relation to the

document that is exhibit A to the affidavit of

Mr O'Donahoo will be subject to the same

qualification.	You can amend the defence
accordingly.

MR MERKEL:	Thank you, Your Honour.
MR GOLVAN:	Can I just say one thing, Your Honour. we were

directed, on the occasion when the matter was

removed, to issue a summons seeking the striking

out of relevant paragraphs.

HIS HONOUR:  Have you not issued a summons? Has a summons

been issued in the district court?

MR GOLVAN: It has, Your Honour.

HIS HONOUR:  But of course it does not relate to the amended

defence.

MR GOLVAN:  No. It might be desirable we be directed to

issue a fresh summons.

HIS HONOUR:  Yes, I think what you should do, in the

circumstances, is issue a fresh summons in this

Court as soon as the amended defence is filed. The

matter is effectively removed, of course, into this

Court as things stand, but in order to create an

issue apart from the stated case, to give

background to the stated case, you might issue such

a summons in this Court.

MR GOLVAN:  Yes, we shall do that, Your Honour.

HIS HONOUR:  Very well. Court will adjourn sine die.

AT 9.50 AM THE MATTER WAS ADJOURNED SINE DIE

Herald(2) 20/8/93