Tory v Megna and Ors; Marshall v Megna and Ors

[2013] HCATrans 246

[2013] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S48 of 2013

B e t w e e n -

RICHARD MARTIN TORY

Applicant

and

MICHAEL MEGNA

First Respondent

RUSSELL JAMES LLOYD

Second Respondent

DAVID JOHN MARSHALL

Third Respondent

Office of the Registry
  Sydney  No S49 of 2013

B e t w e e n -

DAVID JOHN MARSHALL

Applicant

and

MICHAEL MEGNA

First Respondent

RUSSELL JAMES LLOYD

Second Respondent

RICHARD MARTIN TORY

Third Respondent

Applications for special leave to appeal

KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2013, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR A.T.S. DAWSON:   If it please, your Honours, I appear with my learned friend, MS A. RAO, for the applicant, Mr Tory, in the first matter, who is a respondent to the second matter.  (instructed by Bricknell Legal)

MR D.J. MARSHALL appeared in person.

MR R.K.M. RASMUSSEN:   May it please the Court, I appear for the respondents.  (instructed by Etheringtons)

KIEFEL J:   Thank you.  Now, we will hear first from you, Mr Dawson, and then Mr Marshall and then the respondent can respond to both.

MR DAWSON:   As your Honour pleases.  Your Honours, this matter raises, in our submission, important questions concerning the regulation by the common law of the actionability of political speech.  The result of Lange and Roberts v Bass is that there are two defences of qualified privilege at common law for the protection of political speech.  According to the Court of Appeal in these proceedings, those two defences are first, the extended defence explained in this Court in Lange which applies at and between election periods conditioned on reasonableness and the second defence is a traditional common law defence which applies only during an election period and I will come to the difficulty that that term entails.

KIEFEL J:   Roberts v Bass did not actually determine the question about whether Lange extended the common law defence of qualified privilege, so is your argument that there are two defences or that Lange necessarily extends the defence?

MR DAWSON:   We certainly fall back, if we are wrong about our first proposition, to a defence of the kind upheld in Roberts v Bass which would apply during an election period by reason of the need to conform to the Constitution, if the law of qualified privilege is not otherwise developed to recognise the defence for which we contend.

KIEFEL J:   If there is an extended defence because of the decision in Lange, what do you say about the requirement of reasonableness in the circumstances?

MR DAWSON:   May I ask, when your Honour says if there is an extended defence by reason of Lange, does your Honour mean an extended defence not conditioned on reasonableness?

KIEFEL J:   No, no.  If Lange extends the defence to one generally respecting political communications of a political and government nature - Lange also referred to the requirement of reasonableness in section 22 of the Defamation Act (NSW) and suggested on one view that that might be - because of the scope of the defence it would be necessary to restrain it.

MR DAWSON:   Yes, we say, to answer your Honour’s question, that the requirement of reasonableness as is made plain in Lange only attends the defence of a publication of political speech in circumstances where the publication is otherwise to too wide an audience to be protected according to traditional common law principles.  The matter which is at least made clear after Roberts v Bass is that in the – what Chief Justice Gleeson, for example, called the “pre‑existing common law”, that is the law as it existed before explained in Lange, according to that law of qualified privilege there was a defence within it not dependent upon any condition of reasonableness that would protect the kind of publication in Roberts v Bass because even though that publication there was to 12,000 or more electors, it was, nonetheless, not made to too wide an audience for the purpose of the common law. 

So that is why we say there are at least two defences that the law currently recognises, one in Lange which is conditioned on reasonableness but it only applies where the publication would be too wide to be protected by traditional common law principles and the second defence, so far as the defence of political speech is concerned, is that upheld in Roberts v Bass which, as their Honours made clear, was not conditioned on reasonableness because, indeed, the Lange defence was abandoned by the parties in the Court of Appeal.

KEANE J:   Do you accept that either of your arguments needs to – before you get to either of your arguments you need to get over the finding of malice in the Court of Appeal?

MR DAWSON:   I do, your Honour, I accept that entirely and that was a matter I was about to mention.  It is something I need to confront on this application and I will.  I am content to deal with it now ‑ ‑ ‑

KEANE J:   No, you deal with it in your own time.

MR DAWSON:   As your Honour pleases.  But certainly that is put against us, understandably, as the main hurdle to this matter being an appropriate case for leave.  In fact, it may be convenient to deal with it now.  Our contention about the finding of malice, your Honours, is that it cannot stand in light of Roberts v Bass.  The finding made by her Honour Justice Beazley below is that malice was inevitable because there was, in this case, a motive to injure on the part of the publishers and hostility towards the plaintiffs.  That is at paragraph 333 of her Honour’s judgment which is on page 352 of the application book. 

Now, there are a couple of things to say about that.  That finding, in our submission, with great respect, is fundamentally inconsistent with what was said by this Court in Roberts v Bass about what the quality of malice needs to be before it can defeat an occasion of qualified privilege which protects political speech because, after all, if one is speaking about one’s political opponent one is endeavouring to injure him or her so that his or her prospects of election or reappointment, whatever the case might be, are diminished.  So far as hostility is concerned, it is plain in this case that the hostility was not of a personal kind which was inconsistent with what might be called “political hostility”. 

It is mentioned one or two times in the judgments in the Court of Appeal that the circular sued on in this case stopped when Mr Megna, one of the plaintiffs, ceased to hold political office in about 2000.  When he put his hat in the ring for local elections to take place in 2004 and he gave that notification so the evidence showed in about 2003, the circulars, or at least a new form of them, started up again.  That, if anything, tends to show persuasively that the hostility to the extent that there was hostility was of a political kind and, therefore, entirely within the concept of malice as articulated in Roberts v Bass.

There is another difficulty with her Honour’s reasoning, with great respect, and that is that her reasoning appears to have been infected by her Honour’s views about the occasion of qualified privilege for which we contended.  At paragraph 339 of her Honour’s reasons on page 354 of the application book, her Honour begins that paragraph by saying:

In addition, I repeat the comment that I have made above in respect of the occasion not being one of qualified privilege.

Now, it is not clear, in my respectful submission, as to what comment her Honour is referring to but that sentence does strongly suggest that the finding of malice made in this case hangs off the finding of no occasion and, therefore, overlooks the nature of the occasion that the consideration of malice in the hypothetical necessarily assumed. 

KEANE J:   I think the comment her Honour is referring to is probably that at page 352, paragraph 334, where her Honour says at about line 38:

Nonetheless, it is evidence of improper motive and there were other factors which made a finding of improper motive inevitable.  The matters were:  the anonymity of the authorship; the blatant deception that the circulars were published by the Drummoyne Council Ratepayers Association; and the concerted and crushing campaign against the respondents over an extraordinarily lengthy period of time.

Are there any cases where a defence of qualified privilege at common law has been upheld in the case of an anonymous publication which has involved deception as to the identity of the publisher?

MR DAWSON:   Not that we are aware of, your Honour.

KEANE J:   That could be significant.

MR DAWSON:   It certainly was put as significant against us below and at trial but there is something I want to say about the deception point.  Could I come to that in just a moment?  What I would like to do first is just to make this point.  The passage that your Honour has just put to me as possibly being the comment to which Justice Beazley was referring in paragraph 339, if that be correct, in my respectful submission, that rather tends to make the point that we are making which is that if her Honour is bearing in mind those matters as being relevant to the occasion then she has, impermissibly in our respectful submission, considered the question of malice infected by her doubts about the occasion rather than considering the question of malice in the hypothetical world that she necessarily was assuming, namely the occasion for which we contended was made out because those matters at paragraph 334 are properly taken into account on the question of malice and not occasion, but can I come to the second matter that your Honour raised with me which was the ‑ ‑ ‑

KEANE J:   Why could it not bear on both?  Why could it not legitimately, properly, bear on both?

MR DAWSON:   Well, because if the matters mentioned in paragraph 334, namely “anonymity”, “deception” and the “concerted and crushing campaign” are relied upon in any way, your Honour, they go to the question of the propriety of the purpose.  Those matters do not affect the inquiry as to what is the reciprocal duty and interest or interest and interest which gives rise to the occasion.  That analysis depends on there being a reciprocity, as your Honour, with great respect, knows and that reciprocity in this case arises by reason of the right to vote enshrined, for example, in the Local Government Act and the interest in publishing political matter as between those people with that right.  The other key ‑ ‑ ‑

BELL J:   Ordinarily, one would look to all the circumstances in evaluating whether there is an occasion.  That last submission seemed to slide into your Lange argument.  Surely, if one is looking at all the circumstances to determine occasion, it might be relevant to take into account the anonymity and deception associated with this publication.

MR DAWSON:   The reason I would, with great respect, disagree with that proposition, your Honour, is because the matters in paragraph 334 are necessarily subjective matters relating to the question of malice, that is the state of mind of the publishers, whereas the matters that go to the question of whether or not there is an occasion are necessarily objective, as cases such as Guise v Kouvelis and the other recent decisions in this Court tell us.  It may be in some cases that some of those matters may be described as objective matters and, therefore, in the inquiry that one must undertake as to all of the circumstances leading up to and surrounding the publication one might take it into account.

BELL J:   Why is it not taken into account as an objective circumstance here?

MR DAWSON:   Because those matters do not affect whether or not there is an interest on the part of the recipients of the publication in receiving political information and they do not affect the interest in other electors or other persons involved in that political process communicating their views about matters concerning and informing that right to vote.  For example, the fact that ratepayers or I should say, recipients of the publications, did not necessarily know who was writing the material or who was behind it does not go to informing the question of whether there is an interest in receiving information of that kind.  The fact that there was a concerted and crushing campaign over a long period, that is a long‑running political attack, again rather tends to suggest that it is consistent with the occasion, rather than contrary to it.

BELL J:   When one talks of receiving information of that kind, does that take up in any degree the ability of the recipient to evaluate the material?

MR DAWSON:   That is the matter to which I was about to come.  It is important because this idea of deception and a fictitious organisation has assumed a greater importance, in our submission, than was warranted.  There are a number of things to say about the “deception of ratepayers” point.  It is, fundamentally, your Honours, an idea which is erected from the anonymity of the publications.  The two really go hand in hand.  It is importantly not the case that the respondents maintained below, as recorded in the appeal book at pages 346 to 347.  What was contended for was, for example, going to page 348 of the application book recorded at paragraph 320:

“the dominant purpose of the circulars all along, though their authors clearly enjoyed taking a swipe at any suitable other target, was to attack the [respondents]”.

This idea of deceiving the ratepayers seems to be an idea which builds off the anonymity rather than the case that was in fact run, but leaving that to one side ‑ ‑ ‑

KEANE J:   No, it is no suggestion that they were setting out to mislead the ratepayers as to the truth of what they were asserting.

MR DAWSON:   Exactly.

KEANE J:   The problem is founding an occasion of privilege on publication and circumstances where what the public are deceived about is the idea that the publication is from an uninterested ratepayer association rather than a political opponent or an organisation which encompasses a political opponent.

MR DAWSON:   Well, even if that be so ‑ ‑ ‑

KEANE J:   I mean, it does tend to counter or tend to contradict the notion that this is a genuine contribution to a debate about the affairs of the local authority.

MR DAWSON:   In my submission, not necessarily so because as your Honour, with great respect, correctly observed there is not suggested in this case a deception of ratepayers as to the honesty of the belief or the honesty of the views that are expressed in the publications.  That might be a deception of an altogether different kind.  The only deception here that is complained of or, I should say, that is referred to by the court below, is the idea that the ratepayers cannot properly evaluate what is communicated in the circulars because they may not understand that councillor Marshall, that is a political opponent of the people under attack, is one of the principals behind the circulars. 

There are a couple of points to make about that.  The first is that it could not be suggested that the desire to remain anonymous, even if it extends to a desire to remain anonymous so as to create an impression of independence in the publication, that can never be said to actuate the publication.  That is what is key to the question of improper purpose.  It must not only be the dominant motive but it must be the motive that actuated the publication and the clear motive that actuated the publications in these proceedings, on the evidence, is the desire to see the plaintiffs out of office.

KIEFEL J:   Now, one of the paragraphs that you have not dealt with in Justice Beazley’s judgment is paragraph 335 which appears to state her Honour’s conclusion, that is:

the cumulation of factors to which I have referred make it apparent that the purpose of the publication of the circulars was to wage a personal campaign to destroy Mr Megna and Mr Lloyd.

Now, on one view an inference of ill will is fairly evident from her Honour’s statement there.  Why is that not sufficient for a finding of malice?

MR DAWSON:   For several reasons, your Honour.  The first is that the fact that the authors, as the trial judge found to some extent, might have harboured ill will or bias or prejudice towards the targets of the circulars is never sufficient for malice and Roberts v Bass has made that plain.  I think what your Honour is putting to me, with respect, is that cumulation ‑ ‑ ‑

KIEFEL J:   But a desire to destroy rather than to speak about matters of politics and government, a desire to destroy someone personally goes a bit beyond what one usually expresses about a political opponent, so why cannot that in an appropriate case, I mean it is so factually dependent, why cannot that amount to an improper motive?

MR DAWSON:   In some cases it might if one was able to say on the evidence one crossed from the political arena of hostility and desire to destroy into the personal area.  I think that is the distinction that your Honour and I are debating.  In this case, there is no warrant in the evidence for a finding that there was anything truly personal about the campaign.  As her Honour accepts at paragraph 335, the matters in the circulars were always in connection with council matters.  Indeed, there is not a single personal matter referred to in any of the circulars unless it relates to, for example, a development application before council where Mr Megna was said, on some occasions, to have a conflict of interest.

KIEFEL J:   But that is the very distinction her Honour appears to be making there, that regardless of the fact that they appear to be concerned with council‑related matters they were in fact a personally‑motivated attack and one which inferentially is an improper motive.

MR DAWSON:   In our submission, that finding cannot stand either on the evidence or in light of what is said in Roberts v Bass which is that politics is inherently personal.  One reacts to an opponent for all sorts of reasons and not just because of pure reasoned matters of policy.  Those are all matters, so many decisions hold, that are legitimately part of the robust political debate that occurs in Australia every day and to call the campaign a personal campaign to destroy Mr Megna and Mr Lloyd is to overlook that that is perfectly legitimate within Roberts v Bass and the way malice was articulated in that case. 

It does not matter that the words are hostile.  It does not matter that the tone might be intemperate.  It does not matter that the speaker might be unreasoned, affected by prejudice and, ultimately, shown to be entirely wrong.  Nor does it matter if the speaker is shown to have harboured a passionate desire to rid the people of the particular electorate of the person under attack.

KIEFEL J:   On the other hand, the fact that there is some political content to a communication will not necessarily make it a communication of a political nature within the meaning of Lange.  That is not a matter that has really been addressed by this Court and was expressly left reserved in Monis v The Queen. 

MR DAWSON:   Yes, well, in these proceedings we would contend, with respect, your Honour, that there cannot be any doubt that these are matters concerning matters of politics and local government and, indeed, there was no dispute about that at trial or in the Court of Appeal.  Could I come back ‑ ‑ ‑

KIEFEL J:   I see the light is on.

MR DAWSON:   I am sorry, your Honour.

KIEFEL J:   Do you need a little longer?

MR DAWSON:   Could I make one final point about malice and that is that there is real doubt about the soundness of the finding of deception which we were debating earlier, in any event.  I will deal with that very quickly.  First of all, on a reading of the circulars, and this was relied upon by our learned friends against us below, on any reading of the circulars it is plain that councillor Marshall is the hero.  There could not be any doubt on the part of a reader that his view of the world is the view of the authors of the circulars.  So, in terms of the inability of the recipient to assess the independence or otherwise of the publication, that tells strongly against there being any real deception of a substantive kind.  That was relied upon, as I say, against Mr Marshall, at the jury trial where publication was in issue as pointing to him as a likely publisher of the material. 

The second matter in that vein is that at paragraph 332 her Honour Justice Beazley refers to the fact – this is at page 351 of the application book:

The fact that the circulars frequently referred to Mr Marshall . . . gives a clue –

that he was, at least, connected with its publication.  She is there dealing with other matters of evidence but the clue point is consistent with what I have just said.  Further, there is evidence, and it is referred to in the judgments below, that Mr Megna had told the entire electorate on a number of occasions that it was Mr Marshall who was behind the circulars.  For example, if your Honours go to 154 and 155, your Honours will see that Mr Megna’s publication Veritas, which was sued on in a cross‑claim by Mr Marshall and which, according to Justice Simpson’s judgment at 619 on 155 at about line 50, was “professionally letterboxed” to every residence and business in the Drummoyne municipality, in the third paragraph of that issue ‑ ‑ ‑

KIEFEL J:   You are running over time.  Perhaps you can make the point a little more shortly.

MR DAWSON:   Yes, your Honour, at line about 37:

Cr David Marshall, President of the above DMRA, who has admitted to delivering the defamatory monthly circulars –

So that was a matter well and truly in the discourse at the time.  The final point I will make and I will sit down is that all of these matters about deception do not apply to Mr Tory who is not a political opponent of the plaintiffs and so far as his position was concerned could not be said to involve any deception at all.  Your Honours, I have not dealt with the main argument but in light of the time, I will sit down.  Thank you.

KIEFEL J:   Mr Marshall, do you wish to be heard in relation to your application?  Could you come up to the microphone, please?

MR MARSHALL:   If I could just, your Honours, take up a couple of things that have been raised by Mr Dawson.  Anonymity – can I call that “claimed anonymity” because as Mr Dawson has just explained Mr Megna knew very well, very early on, who was responsible, so there could be – whilst documents may have said that they were from a residents and ratepayers association and they very well were because we were both ratepayers, Judge Simpson found that we were not responsible for writing them but we have to accept what the jury found, that we were. 

As for the recipients knowing whether the details contained in those circulars were correct, well it was a simple matter that they could attend a council meeting or they could ask any of their councillors.  I mean, I was approached every day of the week on council matters so there was no reason why anyone could not respond to me and usually I got requests for items to be dealt with after they had visited all the other councillors and got no satisfaction.  Again, to malice, well, Judge Simpson who heard all the evidence did not find any malice.  So, I just deal with those points which have arisen.

Now, I have not addressed my documents which are in the application book, but there are things which Mr Dawson has not covered which I was to cover, if I may, with your Honour’s permission?

KIEFEL J:   Yes.

MR MARSHALL:   When the judgment of Judge Simpson in the Supreme Court was brought forward, she found the evidence of the then plaintiffs at page 141, 142 of my application book, paragraphs 605 to 611, this applicant:

had a deeply held conviction about the management of the Council . . . and, while this conviction was the source of the ill will, bias and prejudice that permeates the circulars, it was, in reality, that conviction, and not spite, that motivated their composition. 

Now, in other places in the judgment Judge Simpson agrees that there was no evidence as to who wrote the composition of the circulars, only that two of us delivered them.  Paragraph 606, Judge Simpson confirms:

that authorship is unattributed –

to either this applicant or the third respondent, Mr Tory.  Judge Simpson then confirms that:

It has not been shown that either Mr Marshall or Mr Tory composed or contributed to the composition of the circulars.  The most that is proved is that they delivered them –

That is at paragraph 606.  Whilst I admitted that I printed the last circular, there is no evidence, just supposition on behalf of the present first and second respondents that because I had a printing machine located in my garage, that I printed all of them.  That is not true.  When I retired in the year 2000 I simply could not sell my equipment.  I even gave away my engine type machine for scrap and no cash return.  I did admit printing the seventh matter complained of which was during an election period but, there again, I have printed election material for several persons when asked for no charge, including two former members of the New South Wales Parliament.  Judge Simpson at 606 then stated that they, the two respondents, Marshall and Tory:

distributed or printed the circulars is insufficient to establish that they, or either of them, harboured ill will towards either plaintiff.

At 607, the judge then refers to Roberts v Bass:

because of the tone of the circulars, that the author(s) were actuated by express malice, that malice cannot be transferred to defendants who are publishers by reason of distribution (or printing). 

Whilst there may be some hostility between this applicant and the first respondent, the cause of which was never disclosed, the first respondent had this appellant charged with a criminal offence of malicious damage when the cause was not disclosed within Judge Simpson’s judgment.  This appellant countered with an apprehended violence order against the first respondent.  So would anyone who, when they are confronted with a “maniac driver” – the words of the police prosecutor in the local court hearing – would do all things necessary to stop the maniac driving at him, in other words, acted in self‑defence.  That is what the magistrate found in dismissing the charge.

After the first respondent had received a summons for apprehended violence, he took out a subpoena in that matter.  He failed to inform anyone outside the court that that action, especially this applicant who had brought the summons.  The contents of that subpoena would have been challenged had it been attempted to be used as a subpoena, bore no relevance to the matters under consideration in the AVO matter.  The subpoena material was never used in the Burwood Local Court.  I will return to that matter shortly, if I may. 

At page 142, paragraph 611, Judge Simpson then found neither this appellant, nor the third respondent in this appeal, the second defendant before Judge Simpson, was actuated by express malice.  She then confirmed that:

the vigorous – “vituperative” - tone of the circulars, or some of the items therein suggest that the author(s) used the occasion of qualified privilege for precisely the purpose for which the privilege is conferred - to inform residents and ratepayers about matters to do with the conduct of Council, its Councillors, and the General Manager –

who is the second respondent in this application.  It was therefore a communication about political matters, as held by this Court in Lange 1997. However, when an appeal judgment was brought down in the New South Wales Court of Appeal, that malice decision was reversed at page 336, paragraphs 279 to 342. In Adam v Ward [1917] AC 309, which is page 1 in my authorities book, Earl Loreburn states:

I understand the law to be as follows :  It is for the judge alone to rule whether or not there is an occasion of privilege, and the rule on that subject was laid down many years ago in the case of Toogood v. Spyring –

(1834) All ER 135, and later in the same paragraph –

All this is for the judge alone, and the question of malice, which is for the jury -

Changes over time of the Defamation Act have varied that proposition, laying commitment to the judge alone ‑ ‑ ‑

KIEFEL J:   Mr Marshall, just to assist you, we are familiar with these principles.  Given the time restraints that you have it might be best to focus your attention upon the much more specific matters upon which the applications for special leave depend, that is the nature of the defence and whether or not the hurdle, in effect, as was put before, the hurdle of malice is overcome.  Now, you were directing your attention to the question of malice and I think you are straying off into general principles now, with which we are familiar.

MR MARSHALL:   I am sorry, your Honour, but as a layman I can only do what I see will be necessary ‑ ‑ ‑

KIEFEL J:   Yes, I am just concerned that you are not going to use your time properly.

MR MARSHALL:   May I just go back to where I mentioned about a subpoena in the Local Court?

KIEFEL J:   I was not sure when you mentioned that what that had to do with the application for special leave.

MR MARSHALL:   Well, it has a lot to do with it, your Honour, and though - I was forbidden by the Registry from mentioning any of that in my document that I had to file.

KIEFEL J:   Well, that might suggest that it is not relevant for our purposes.

MR MARSHALL:   Well, I think it is relevant, your Honour, because ‑ ‑ ‑

KIEFEL J:   Well, it is not before us.  That is the problem.

MR MARSHALL:   Well, it is in my documents, your Honour.  I have put it in the documents because the respondents’ barristers have made a submission on it in the Court of Appeal, which was never heard, and if - the way I understand it, it has been explained to me, that if a subpoena is taken out then it must be used in those proceedings and not otherwise, unless it is used in evidence.  But that is not what happened in this case and I was forbidden to put that in the document.  Now, it is not just one subpoena, it is six subpoenas used on 12 occasions.

KIEFEL J:   What does that say about that matters that we are dealing with today on the application for special leave?

MR MARSHALL:   Well, it says that the whole trial was a farce because evidence was admitted by both judges in the 7A and Judge Simpson upon lies presented by the senior counsel representing the respondents, when both of us knew exactly what it is.  In fact, Mr Dawson brought it up, right in the 7A and again in there, but was overridden, because the relevance of it was not made pertinent and I knew nothing about what was taking place at that time.  But, if referring to my document – I am just trying to find where I have covered it – when it was mentioned in the 7A, the senior counsel claimed they did not have a copy of the subpoena to which I have just referred and he said that he would find it but he failed to mention it at any other stage.

The first respondent failed to answer a notice to produce.  It was therefore not possible to ascertain the contents of that subpoena before that time although Mr Dawson did establish that the information must have been obtained in consequence of some impropriety or contravention of Australian law – words by Mr Dawson, section 7A hearing, 22/8/05, transcript page 9 at line 34.

KIEFEL J:   Mr Marshall, which part of your grounds in your draft notice of appeal are you speaking to at the moment?

MR MARSHALL:   As I have said, your Honour, I was forbidden from putting that in by the Registry.

KIEFEL J:   Well, we are restricted to the draft notice of appeal.  We are not entertaining questions about whether or not the trial miscarried generally below.  We are directing attention to whether or not there is error in relation to the Court of Appeal’s judgment.

MR MARSHALL:   Well, if the Court of Appeal did not deal with that matter when a notice of motion was put before them then there was an error in the Court of Appeal.  I filed a notice of motion to have the matter discussed in the - considered in the Court of Appeal but the President of the court asked the very people who were involved whether they wanted to deal with it.

Now, you do not ask a murderer in a court whether he wants to be tried with murder or do you just want to walk out the door.  You must deal with it and find out what it is all about and that is not what happened in the Court of Appeal.  Therefore the Court of Appeal miscarried from the very first half an hour of the proceedings because when you use information obtained on subpoena in another matter, without the authority of the court, then I understand that is contempt of court.  Now, I may be wrong - I do not think so.  I have asked a few lawyers about it, but none of them would put it forward because of course, they are brothers in law.  They do not like knocking another barrister or whatever.

KIEFEL J:   Perhaps you could return to more relevant matters than these asides.

MR MARSHALL:   I have no more to say, your Honour.

KIEFEL J:   Thank you, Mr Marshall.  We will hear from the respondent, thank you.

MR RASMUSSEN:   May it please the Court.  Excuse me, your Honours, I have a note here from the Registrar that I have been remiss.  Can I apologise for Mr Molomby’s non‑attendance today?  He has been detained elsewhere.

KIEFEL J:   Thank you.

MR RASMUSSEN:   Your Honour, the deception point, the respondents had a strong prima facie case of malice.  The applicants for leave did not get in the box and give evidence to rebut it and in essence we say that we are entitled to rely on the presumption under Jones v Dunkel.

KIEFEL J:   That might not be your best point.  Do you have a stronger one?

MR RASMUSSEN:   The deception has been set out, we say very clearly and is probably ‑ ‑ ‑

KIEFEL J:   I think you really need to deal with the reasoning in the Court of Appeal, do you not?

MR RASMUSSEN:   I am sorry, your Honour?

KIEFEL J:   You need to deal with the reasoning in the Court of Appeal in relation to malice.

MR RASMUSSEN:   Well, the reasoning is not, with respect to my learned friend’s submissions, attendant with any particular doubt.  The evidence of the deception was very clearly set out by them.  Her Honour Justice Beazley did not have her thought process infected in the manner in which it was suggested by the applicants.

KIEFEL J:   If the matter did proceed to hearing an appeal, would you be contending for findings based upon the facts more widely by way of notice of contention to uphold the conclusion of malice?

MR RASMUSSEN:   I think that would be so, your Honour, yes.

KIEFEL J:   What facts would you point to?

MR RASMUSSEN:   The fact that the defendants gave evidence before the 7A jury that they denied publication.  That would be one of them.  Now, that was raised before her Honour Justice Simpson and not dealt with, as was the deception point, that is, the material about why we said it was a deception was raised before her Honour but in her Honour’s judgment she does not deal with it and she characterises it more as anonymity rather than deception.  It was then raised again before the Court of Appeal.  So that would be part of the evidence that we would, in the notice of contention, seek to rely on.  So that was not raised directly in the Court of Appeal. 

Your Honour, in a broad brush, one of the other problems with why this application is attendant with insufficient prospects of success is the evidence by the defendants that they denied publication and in fact that they did not publish it tends to undercut one of the foundation stones of qualified privilege in all of its guises, which is the honest statement of a belief in the truth. 

Now, they have said his Honour, Mr Justice Allsop, has indicated that that is one of the foundation stones when his Honour is referring or dealing with the error below in respect of Stephens and that can be found at application book 245 and 246 and particularly at paragraphs 27 and earlier than that in paragraph 24.  I am sorry, your Honour, it is paragraph 24, application book 245, where his Honour said:

It is founded on the honest statement of what is believed to be the truth, unqualified or conditioned by reasonableness, but as Gleeson CJ said in Bass at [14] “in the course of an election contest”.

KIEFEL J:   This concerns whether or not Lange may be taken to extend the defence and whether or not it is conditioned by reasonableness.

MR RASMUSSEN:   That is right, your Honour.  I am sorry, my submission is elided into the other point.

KIEFEL J:   Well, while you are there, what do you say about the statements in Lange about reasonableness?  Is it limited to an extremely wide circulation?  Where is the point of what might be a wide circulation as discussed in Lange?  I think the point made in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572 was that a person publishing to tens of thousands of people should not be seen to be publishing under the same conditions as those publications which are only to a few people. I do not think – their Honours went on to say that there was a particular line to be drawn.

MR RASMUSSEN:   Well, as I understood it, their Honours were indicating that where there is a mass media publication the Lange defence avails it of itself.  In my submission, there is a distinction to be made about the extent of the publication.  In this case ‑ ‑ ‑

KIEFEL J:   Their Honours were speaking, of course, of a defence which might arguably have a very wide scope.

MR RASMUSSEN:   Yes.

KIEFEL J:   So the requirement of reasonableness which they referred to by analogy with section 22 of the Defamation Act (NSW) might be thought to be intended to operate upon a very wide defence.

MR RASMUSSEN:   Yes.  In this case, the publication was a very wide one as well.  That is why we say it fell within the principle, if any, of Lange and that would be why the applicants eschewed it at trial we say.  There was no attempt to demonstrate the reasonableness of their conduct.

KIEFEL J:   The matter I omitted to raise with the applicants is the matter raised by President Allsop, and that was whether or not the question of the wider defence was really raised below.  It seems to have been raised in the defence as pleadings.  I was not quite sure whether his Honour was - looking at special leave book 248, paragraph 34, his Honour refers to Justice Beazley having said at paragraph [155] that:

the argument about the politically founded category of qualified privilege was “raised . . . in an alarmingly non‑specific way”.  Her Honour has accepted that it was raised.

But his Honour did not think that it had been.  Is his Honour referring to the pleadings or the way the matter was argued?

MR RASMUSSEN:   The way the matter was argued.

KIEFEL J:   Because it was raised in the defence.

MR RASMUSSEN:   I think that is right. 

KIEFEL J:   Well, what are you saying, that they eschewed reliance upon it altogether and limited themselves in argument to the election cases, so called?

MR RASMUSSEN:   That is right.

BELL J:   Justice Simpson at application book 9, paragraph 21, says that each defendant relied on a single defence, “that of qualified privilege at common law”.  Her Honour said that a related defence based on Lange had “not been invoked and expressly disclaimed”.

MR RASMUSSEN:   That is right.

KIEFEL J:   Matters may have moved beyond it because Justice Beazley did seem to accept that it was raised and dealt with the question, but did her Honour deal with how reasonableness would be – accepting that it was properly raised, how the matter of reasonableness was to be dealt with in a case such as this?

MR RASMUSSEN:   I do not believe her Honour did, no.

KIEFEL J:   Is that because of her Honour’s findings in relation to malice?

MR RASMUSSEN:   As I understand it, yes.  Your Honour, on the issue of malice, I have indicated that if leave is granted there would be a notice of contention.  Can I indicate this?  The evidence of the personal attack moves from not just the deception and, indeed – sorry, can I say this.  The deception is probably best exemplified at paragraph 337 of the judgment which is ‑ ‑ ‑

BELL J:   It is at application book 85.

MR RASMUSSEN:   No, I am sorry, your Honour, the Court of Appeal – I am sorry – paragraph 337, page 353 of the application book.  I am sorry about that.  It is the last sentence:

Again, this was evidence that Mr Marshall was attempting to deceive the residents and to have them believe that there was a genuine association, with genuine interests to pursue, and in respect of which he had no connection.

In the next paragraph, this is in the second sentence about halfway down the paragraph:

the relevant item stated that the Association was not a community elected representative. 

But Mr Marshall of course was a councillor on the council at all times, and above at 336 but on that same page, 353, their Honours refer to another deceptive instance where it must have been a reference to Mr Marshall in his capacity as councillor notwithstanding what was said there.  The point of the deception is that they were trying to pretend that they had a genuine

interest to pursue and that they were part of some sort of objective or distance organisation when in fact in the year 2000 the publication stopped completely. 

So they were monthly from March of 1998 until the year 2000.  In the year 2000, Mr Lloyd was no longer the general manager and Mr Megna was no longer a councillor.  There was then a hiatus of three years.  Then what happened is that when Mr Megna announced his candidacy for the next election there was further publications but in a different guise.  So that was all part of the – including the ferociousness of the language – all part of the matrix which we said demonstrated why it was in fact a personal attack against each of the respondents. 

KEANE J:   Quite apart from the personal nature of the attack, it is difficult to see how those circumstances could ever give rise to an occasion of privilege, making an honest contribution to political debate, however broad point of view one takes.

MR RASMUSSEN:   If it was an honest contribution, your Honour, I would accept that proposition, but they gave evidence that they did not publish it.  They got into the box and they gave elaborate evidence over 15 days before a 7A jury that they did not publish.  Mr Tory indicated, for example, that he was not the person behind the letters that were written because – and he did not have an interest in council matters and did not attend to it because he was at home watching The Bill, which was a regular matter.  He called his daughter in aid of that submission as well to give evidence about his attendance at home upon those subjects. 

Mr Marshall originally gave evidence on the Anton Piller order that Mr Tory was part of assisting him in producing and creating the material, but recanted from that before the 7A and said that he was not responsible either.  In my submission, that is one reason particularly – in my submission, a particularly powerful reason for why it is that this particular application does not warrant special leave.  Your Honours, may I sit down?

KIEFEL J:   Your ordeal is over, yes, Mr Rasmussen.  Yes, any reply?  A particular matter in reply, Mr Dawson, that the question of – assuming that the matters were raised in argument below as Justice Beazley appears to have accepted, how would the question of reasonableness – I mean, there are two steps that this Court would have to undertake on the appeal.  One would be to determine what the requirement of reasonableness, how far it extended and what it involved, and then to apply it to the circumstances of this case, if it did apply.  There are two steps that have not really been resolved in the Court of Appeal.

MR DAWSON:   Yes, well, your Honour, can I say this about the second of that two‑staged inquiry?  If it is held that the only defence available to the applicants in these proceedings is a defence conditioned on reasonableness that has not been pleaded.  It was never raised and it would follow that we would fail because unless in the evidence before the court there was a basis for a finding of reasonableness, the fact is it was never run and I need to be frank about that. 

But the first proposition is the key proposition which is that on our contention there is no requirement of reasonableness for the defence for which we contend.  The reality about the reasonableness requirement is this.  May I put it bluntly, your Honours?  If your Honours do not grant leave in this case and this Court does not investigate the controversies and questions raised by these proceedings, the present position of the law, so far as the protection of political speech is concerned, is that in between election periods political speech that is reasonable is the only form of political speech that is protected and that is the case even if the audience is not too wide to fit within existing common law categories as articulated in Roberts v Bass.  So one has, in my submission, an entirely unsatisfactory situation left to those who wish to engage in political speech ‑ ‑ ‑

KIEFEL J:   That might be the case.  The question is whether this is an appropriate vehicle.

MR DAWSON:   Well, in my submission, your Honour, the issue is raised crisply in this case because these publications were in large part identical to the kinds of publications dealt with in Roberts v Bass.  In Roberts v Bass, the publications were a pamphlet and a postcard and a how to vote.  The pamphlet and the postcard were sent to 12,000 houses indiscriminately in the electorate.  In this case, the publication case was that the circulars were left at houses either in letterboxes or at front doors indiscriminately through the Drummoyne local municipality.

BELL J:  Was this to some 22,000 persons?

MR DAWSON:   That was the highest that the evidence would go and that was the basis on which Justice Simpson seemed to proceed, but that kind of publication was held in Roberts v Bass to be not too wide an audience, notwithstanding the fact that there might be suggestions of indiscriminate publication within that electorate.  The facts are better in this case because the Local Government Act sets up three categories of interested voters – namely, residents; those who are owners of rateable property and those who are occupiers or leaseholders. 

If, as a result of Roberts v Bass, that is a width of publication which is not too wide to fall outside traditional categories of common law qualified privilege, then the Lange extended defence, conditioned on reasonableness, which only needs to be invoked if you are too wide outside existing categories never arises for consideration which is why the defence did not need to be pleaded.

The real question for determination in these proceedings is, is there a defence, as upheld in Roberts v Bass, for publications of that kind outside an election period?  The bright line between an election period and a non‑election period does not survive scrutiny and that is one of the key issues that needs to be analysed in these proceedings.

BELL J:   Mr Dawson, this trial, I think, ran for 19 days before Justice Simpson.

MR DAWSON:   That sounds about right, your Honour, yes.

BELL J:   Yes.  At application book 9, paragraph 21, her Honour records the single defence ‑ ‑ ‑

MR DAWSON:   Yes.

BELL J:   ‑ ‑ ‑ raised for her.  I note that the Court of Appeal proceeds to have dealt with the matter as though it were raised, but for my own part would you be able to enlighten us?  I think you were there.

MR DAWSON:   I was there.  Your Honour, can I answer the question directly?

BELL J:   Yes.

MR DAWSON:   Not only are the observations, if I may say so, in the Court of Appeal somewhat hurtful, but they are wrong.  There were two days of very detailed argument, in fact on 2 and 3 December in the year that the matter was argued before Justice Simpson, where these very matters were debated.

BELL J:   That is, you contended that Lange was, as it were, to be extended in the way for which you invite this Court now.

MR DAWSON:   Yes, your Honour.  As your Honours know, we put the case on the basis that there is a Lange defence which we do not invoke.

BELL J:   Can I just take this up with you?

MR DAWSON:   Yes.

BELL J:   One submission which is clear from a reading of Justice Simpson’s judgment is that the Braddock v Bevins aspect of qualified privilege at common law was not to be confined to the election period.

MR DAWSON:   Quite.

BELL J:   That, it seems to me, is rather distinct from the argument that you now seek to run.

MR DAWSON:   Well, if that is so, then I think I have put it badly, your Honour.  The argument that we seek to run is that the defence upheld in Roberts v Bass is a defence which should be understood to apply across the entire electoral cycle and there is no reason, in the election cases or otherwise, to restrict the defence to whatever is an election period.  That is because the duty and interest – or the interest and interest – upon which the occasional qualified privilege depends, arises because of the right to vote.  As observed by this Court in Lange, the information which an elector bases his or her vote upon, is not confined to information in an election period.

The way that we rely on Lange is not to invoke an extended defence conditioned on reasonableness.  Lange speaks to the constitutional restriction spoken of by their Honours on, for example, limiting defence of political speech to election periods only.  At 561, I think it is, your Honour ‑ ‑ ‑

KIEFEL J:   I see the light is on and I think we understood from your opening remarks the way in which you approach the Lange ‑ ‑ ‑

MR DAWSON:   As your Honours please.  May I beg an indulgence to just address one matter about malice which is a key consideration on how your Honours might dispose of these applications?  The point is this.  There is no doctrine of transferred malice.  That was accepted and upheld in the Court of Appeal below.  Mr Tory stands in a very different position to the other applicant in these proceedings.  If that distinction is of importance, the passage at 337 of her Honour Justice Beazley’s judgment, to which your Honours were taken, at page 353 of the application book is only a finding that relates to Mr Marshall.  It does not relate to Mr Tory.

KIEFEL J:   I think that is a point you have made in‑chief.  I think you are going beyond reply now.

MR DAWSON:   As your Honours please.  The final point is that the only matter raised against Mr Tory so far as malice was concerned was anonymity and that, in my submission, as her Honour Justice Beazley appeared to accept, was not enough.  May it please the Court.

KIEFEL J:   Mr Marshall, do you wish to say anything in reply to the respondents?  Would you come to the microphone, please?

MR MARSHALL:   Your Honour, you have…..this time because ‑ ‑ ‑

KIEFEL J:   In relation to the right of reply, it is restricted to matters that were engaged in by Mr Rasmussen for the respondents.  Whatever has passed between ‑ ‑ ‑

MR MARSHALL:   Unfortunately, I did not make any notes regarding that because I did not think I was going to be asked again.  So, I am sorry.  I am just not up to the situation because being not aware of the procedure in this Court, I did not make notes.  There are several things I could say but I am sure you will rule me out of order, your Honour.

KIEFEL J:   Well, one of them was whether or not there was reliance - one of the matters that was discussed was whether or not there was reliance in the trial as it was conducted before Justice Simpson upon this - the wider defence involving the notions of political communication generally, whether or not that was squarely raised and argued.  We have differences of views here.

MR MARSHALL:   It was squarely raised exactly as Mr Dawson said over a two‑day period.  There are several things in the judgment which the judge has not taken a point of, for instance, she ignored the first five days of the trial.  The circulars – the imputations claimed is that Mr Megna was a liar, yet he lied under oath of the very third question that he was asked by his senior counsel.

KIEFEL J:   Another matter that was dealt with by Mr Rasmussen that you might want to comment upon is the requirement of reasonableness.  Now, Mr Dawson has said that that is not the way in which they see the Lange defence operating, so if this Court is going to take that on board they do not see that that applies in a case such as this, that it was quite limited in its ‑ ‑ ‑

MR MARSHALL:   The way I read the Lange judgment - I think it is mentioned at 570. Now, do not ask me if that is the page or the paragraph number, I do not think it is the paragraph number - is that there were two defences. There was an extended defence which was from mass publications such as newspapers and television and then there was a defence not requiring reasonableness to a limited publication, as this was.

KIEFEL J:   So you agree with how Mr Dawson has put it.

MR MARSHALL:   Yes.  Now, whilst your Honour on your right has said that there were 22 publications, there is no evidence of any total distribution on any of them.  The only evidence was that 22,000 were printed.  The only other evidence was that there was 12,000 rateable properties within the municipality for some of them – not the last one – but they could not say who of those received them.  In fact when the first respondent was asked for names of people he could not give any.  So there was no definite distribution and in fact we were only alleged to have distributed them and maybe printed them and that is all.

KIEFEL J:   Yes.  Thank you, Mr Marshall.  The Court will adjourn for a short period to consider the matter.

AT 10.37 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:

KIEFEL J:   These applications raise questions about whether the decision in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 extends the defence of qualified privilege at common law to a privilege generally concerning communications on matters of politics and government and, if so, whether that defence is subject to a requirement of reasonableness in the circumstances of the publication. The applicants contend that there is no requirement of reasonableness.

The applications also raise questions of mixed fact and law concerning the motives of the applicants in making the publications and the extent of their involvement in them, the Court of Appeal having found malice.  The applications are not suitable questions for the determination of the questions of law.  They enjoy insufficient prospects of success.  Special leave is refused.

I note the first and second respondents in each application have said costs should follow the event.  Can you argue against that?

MR DAWSON:   No, your Honour.

KIEFEL J:   Mr Marshall, can you argue against costs?

MR MARSHALL:   No.

KIEFEL J:   Thank you.  In each application the orders will be:  special leave refused; the applicant to pay the first and second respondents’ costs of the application.

AT 10.45 AM THE MATTERS WERE CONCLUDED