Western Australian Newspapers Limited v Stephens

[1993] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S22 of 1993

B e t w e e n -

WEST AUSTRALIAN NEWSPAPERS

LIMITED

Applicant

and

THOMAS GREGORY STEPHENS & ORS

Respondents

Application for removal of
cause pursuant to section 40(1)

of the Judiciary Act 1903

DEANE J

TOOHEY J

GAUDRON J

WANews 1 30/4/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 1993, AT 9.31 AM

Copyright in the High Court of Australia

MR D.R. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR G. O'L. REYNOLDS, for the

applicant. (instructed by Parker & Parker)

MR T.E.F. HUGHES, QC:  May it please the Court, I appear

with my learned friend, MR S.J. ARCHER, for the

respondents. (instructed by Clayton Utz)

MS M.A. YEATS:  May it please the Court, I appear on behalf

of the Attorney-General for the State of Western

Australia, intervening to oppose the application.

(instructed by the Crown Solicitor for Western

Australia)

DEANE J: Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I hand to the Court copies of

our outline of submissions.

DEANE J:  Mr Jackson, subject to anything Mr Hughes might

say, you need not trouble about the Court's

jurisdiction, that is point 5.

MR JACKSON:  Thank you, Your Honour. As is apparent from

the outline of submissions, the question which we

seek to have the Court determine is the

availability of a defence referred to in

paragraph 20 of the defence. May I take

Your Honours to that very briefly. It is set out

at page 36 and essentially it says that:

the newspaper articles complained of were

published pursuant to a freedom guaranteed by

the Commonwealth Constitution and the
Constitution Act 1889 (W.A.).

Your Honours, the defence in substance is that the matter was published concerning the plaintiffs in their capacity as members of the Parliament of

Western Australia. It related to their performance

as such and in circumstances where it was

reasonable to do so. Underlying that, of course,

is the contention that so to criticize members of

parliament is within the guarantee of freedom of

speech, a freedom which is conferred or recognized

by the Commonwealth Constitution.

May I deal with the issues in the application in this order: first, is the question sufficiently

arguable to merit removal; and secondly, in the

light of the importance of it, is removal premature

at this point?

Your Honours, as to the first - - -

WANews 2 30/4/93

TOOHEY J:  Can I just ask you a question, Mr Jackson, which

may go to the second of those points rather than

the first, but given the range of defences pleaded

in this matter, any one of which if successful

would seem to be an answer to the plaintiff's

claim - I say that with perhaps a qualification

because one of the defences, I think it is the

defence - or at least one of the defences, at any

rate, may not apply to each publication although,

generally speaking, the defences do apply to the

entirety of the publication, I mean this point

might never arise.

MR JACKSON:  Your Honour, may I say immediately it is

possible that the action could be resolved in our

favour without the issue being finally determined.

It is possible. But the fact of the matter is, of course, that the issue does have to be determined in order for the trial to be conducted. What I

mean by that, Your Honour, is this: when the case

comes before the trial judge, the trial judge has

to determine whether this is a defence which is one which can go to the jury. Now, in determining that

issue, he has to decide, first - and I leave aside

the factual element involved for the moment - but

he has to decide whether such a defence is

available. Now, in deciding that question, at the heart of the question is what is the nature of the

defence, is such a defence available, and

Your Honour, I do not want to labour the point, but

he cannot deal with the case without resolving that

question.

Now, it is possible that the issue having been

determined by the judge as one that might - may I

start again. It is possible that the judge may

say, well, such a defence is not available. That

immediately gives rise to the possibility of

appeals if we do not succeed on some other issue

and if there is no further appeal. There are a

number of possibilities.	May I say in summary in
relation to the possibilities, the situation which

obtains is this: we could succeed on a ground other

than the ground in question. We could succeed,

perhaps, if the ground were allowed to go to the

jury but we failed on the question of

reasonableness. But in, it would seem, every other

possibility the issue is one which would have to be

determined and, indeed, for the issue to go to the

jury, it must first be determined by the judge and

the possibility of there being appeals is very

significant.

GAUDRON J:  Mr Jackson, could I also ask you, on your

submission does your - what I shall call the
constitutional defence - cover any area that is not

covered by the defence of public discussion or

WANews 3 30/4/93

discussion of a subject-matter in the public

interest?

MR JACKSON:  I am sorry, Your Honour is looking at?

TOOHEY J: Paragraph 21, I think, of your defence.

MR JACKSON:  Your Honour, that plea is one which, as the law

presently stands, is not in fact permitted to us

because of the Court's decision in Western

Australian Newspaper Co v Bridge in which it was held that provisions of the Criminal Code so

expressed that qualified privilege provisions were

provisions which do not apply as defences in civil

proceedings in Western Australia. So that that

defence is one that we, in effect, as the law

stands cannot succeed on and can be struck out.

And no doubt will be, Your Honour.

GAUDRON J:  Does the same apply to the defence of

publication in good faith for the public good?

MR JACKSON:  Yes.

GAUDRON J: So the reliance on subsections (3) and (8) of

section 357 is there for the purposes of a

subsequent appeal, is it?

MR JACKSON: Yes, Your Honour. Unless the Court were to -

the Court's decision in Western Australian

Newspaper v Bridge was a decision of the Court, a

majority 3:2, but it resolved an issue which was

peculiar to Western Australia and the Western

Australian Criminal Code and defamation law was

slightly different from the only other relevantly

comparable place, that of Queensland, and the issue

was one which had been alive for many years in

Western Australia. So, Your Honour, no, the

qualified privilege defences really are not open to

us.

May I come back in just a moment to the

question Your Honour Justice Toohey was putting to

me. Could I just deal for a moment with the

question whether the issue is one sufficiently

arguable to merit removal. What we would submit in

that regard is that the observations of members of
the Court in Nationwide News Pty Ltd v Wills,

66 ALJR 658, and also Australian Capital Television

Pty Ltd v The Commonwealth (No.2), 66 ALJR 695,

make it apparent, in our submission, that such a

conclusion is strongly arguable. May I give

Your Honours references to the relevant passages.

In Nationwide News, first of all, in the joint

reasons for judgment of Your Honours Justices Deane

and Toohey, at	681, commencing in the right
column about po	, and a passage which goes over

WANews 30/4/93

to page 682 to the end of the first paragraph on

page 682, and may I refer particularly to the

observation commencing in the last line on page 681

and going through to the remainder of the

paragraph. The particular observation where

Your Honours say:

it is strongly arguable that the
Constitution's implication of freedom of

communication ..... operates also to confine the

scope of State legislative powers -

is one, Your Honour, which we would submit is

equally apposite to the availability of a right.

What I mean by that is this: if there is some

reason why the operation of State legislative power

may be restrained - and I use the term in a neutral

fashion - by the existence of the freedom, then, in the absence of there being State legislation taking away the freedom, an aspect of the freedom, in our

submission - and this is a question of very great

importance, in our submission - would be the

ability to rely upon it in defence to a claim for

defamation based upon observations made in the

exercise of that freedom.

Your Honours, could I refer also to the

introductory observations of Your Honours in those

reasons on the preceding page in the right column,

page 681, in the paragraph commencing at about

point 2.

One moves from that to the other decision

given at the same time, Australian Capital

Territory Television, in the same volume, and

again, in Your Honours' joint reasons for judgment

at page 716, may I refer Your Honours in the left

column on page 716, commencing at about point 3, going through to the top of the next column, and

Your Honours will see in particular that

Your Honours, in the concluding part of that

passage, agreed with the reasons for judgment of

Your Honour Justice Gaudron in the same case.
Your Honour's reasons may be seen relevantly at

page 736 in the right column, about point 6, going

through to page 737 in the left column at about

point 7. I will not attempt to read out parts of

it. What we would submit is that if one looks at

the passages in the three reasons for judgment of

members of the Court and adds to that what was said

by Chief Justice Mason at page 704 in the right

column commencing at about point 8, going through

to page 705 in the left column about point 3 - I

do not mean to convey that His Honour was dealing

with the point directly - but if one adds what is

said there to what had been said by Your Honours in

the passages to which I have referred, we would

WANews 5 30/4/93

submit that what emerges is that the existence of

there being a right of the nature presently in

question is one which is, if I could adopt an

expression of Your Honours, strongly arguable.

DEANE J:  Mr Jackson, could I divert you. Where did

subparagraph (iii) of clause 20 of the defence come

from? Is that drawn from American authority?

MR JACKSON:  No, Your Honour, that is our submission, in

effect. The reason why we put it that way is, in a

sense, twofold, although there is some overlapping.

It is obvious that in relation to the existence of

the freedom and the right that there has to be some

reconciliation of the right with the state of law.

DEANE J:  I just wanted to know where. The other thing I

wanted to ask you is: is it deliberate that the

defence raised by paragraphs 7 and 13 of the

defence is not raised in relation to the third

article or, to put it bluntly, was that a pleader's

ploy to make the case for removal at this stage a

little bit better?

MR JACKSON:  Your Honour, that is something of which I have

to ask a question myself. Justification is pleaded

to the third article but not fair comment.

TOOHEY J:  Mr Jackson, can I just take you back to

Justice Deane's question about paragraph 20(iii) of

the defence, I take it the intention of the motion

is to remove - put in the language of the motion,

is in terms that the entire proceedings be removed

into this Court.

MR JACKSON:  Yes, Your Honour. The intention is to deal only with paragraph 20.

TOOHEY J: Yes, but to deal with it on the footing that it,

as pleaded, constitutes a complete defence to the

plaintiff's causes of action.	What could emerge at
the end of the day, on one view, a statement by

this Court that a publication which was reasonable

in the circumstances might constitute a defence in

terms of paragraph 20 or that the Court would

decide that this publication was reasonable in the

circumstances or what?

MR JACKSON:  No. It is the first of those, and that is to

say that such a defence is available. Your Honour,

the case before the Court would not decide whether

the defence, if available, was made out.

TOOHEY J:  And if available, then the matter would go back

to the supreme court and determined on that

footing.

WANews	6	30/4/93
MR JACKSON:	Yes.	Your Honour will see at page 6 of the

affidavit in support of the application a draft

question pursuant to section 18 is suggested.

DEANE J:  So you would have in mind, if you were to succeed,

removal into the Court, the stating of a question
for the Full Court; the answering of that question,

then remitter back to the supreme court.

MR JACKSON:  Yes, that is the essence of what we seek. May

I say just one other thing in relation to the selection of the expression "was reasonable in the

circumstances". It is an expression which is not

uncommon in defamation statutes and one sees it in,

for example, I think it is section 22 of the

current defamation law in New South Wales. It is a

test common enough in varied aspects of defamation.

GAUDRON J:  Mr Jackson, would the question arise on the

footing that the qualified privilege defences were

not available?

MR JACKSON:	Yes.
GAUDRON J:	Or on the basis that that issue had to be

considered as well? On one view it might be

necessary to consider both issues at the same

time.

MR JACKSON:  Could I say this: we have not, in the present

application, sought to have the Court reconsider

Western Australian Newspaper v Bridge.

DEANE J:  If that is a decision solely on the effect of West

Australian legislation, I would not like your

chances of getting the Court to - - -

MR JACKSON:  Your Honour, we have taken a view of it

ourselves and it is simply a case of the meaning of

a particular term of a statute in which the Court

divided 3:2.

DEANE J:  And which has been allowed to stand unchanged

since -

MR JACKSON:  For quite some time, yes. So, Your Honour, one

has an element of reality in these things, so that

is essentially where I was saying "reasonable" came

from. Those are the sources that give rise to it.

Now, Your Honour, could I just say this: as I

have submitted earlier, one of the manifestations

of the freedom or right, in our submission, is that

legislation inconsistent with it may be

invalidated; another, we would submit, is that it

may be relied on to defeat an action for

defamation.

WANews 7 30/4/93

DEANE J:  Mr Jackson, can I direct your comments to the

question of removal at this stage.

MR JACKSON:  Yes, Your Honour. It is obvious, in dealing

with that question - may I say this, it is
obviously tempting, of course, to say, well, the
case may be resolved on other grounds, it may all

be academic, it is desirable to have the views of the Supreme Court of Western Australia. We would

submit that that is not the better course to adopt

and may we say a number of things in support of

that proposition.	The first is this, that the
issue as such is not likely to go away.	What I

mean by that is that defamation actions by

politicians are relatively frequent occurrences in

Australia. May I refer to Mr Groves' affidavit at

page 5, paragraph l0(c) where he lists some of the

reported cases. The availability of defences,

broadly based on these two cases, has been raised

in one decision in the New South Wales Supreme

Court, a politician's action, where invalidity of

the provision was sought as the result.	I can give
Your Honours a copy of that.	It does not touch the

present point, I simply mention it.

But the second feature of it is this,

Your Honour, that not just for the purposes of the

present case is it desirable that the availability

of the defence be determined as soon as possible,

nor is it just for the purposes of politicians'

defamation actions generally. From the point of

view of a wider public interest there is a

desirability of having this issue determined as

quickly as possible. The cases in the Court to

which I referred established the existence of the

freedom but its operation in relation to

defamation, in relation to the ability to criticize

and deal with politicians, affects very

significantly the rights of citizens in their

ability to participate in the processes of

democracy. That is a matter of considerable

importance, we submit, which merits the definition

by the Court of the question whether such a defence

exists and the nature of the right.

Your Honours, the next thing we would seek to

say about it is this, that this is not the usual

case where the Court can say it would be better for

the issue to be dealt with first in the courts of

the State. It is not the usual case in that
regard, Your Honours, because the availability of
the defence has not yet been decided by the Court.

It is not a case, for example, where the Court has

said there is such a defence available and then the

courts develop the margins of it as time goes by.

But the basic issue, we would submit, is one which

does merit the decision of the Court. We are

WANews 30/4/93

presently in a position where three members of the

Court - if I may say so with profound respect to the

Chief Justice, three and a half members of the

Court, as it were, have dealt with the issue and expressed views consistent with the defence, but judges in the courts below are faced with

considerable difficulties in knowing precisely how

to deal with it when it arises.

TOOHEY J:	Can I just bring you back again to the question of the possible prematureness of the application. If, for instance, the trial judge refused to allow
the defence pleaded in paragraph 20 to go to the jury and ultimately there was an award in favour of the plaintiff - - -
MR JACKSON:	Yes, we appeal.
TOOHEY J:	And you appeal, are you any worse off?
MR JACKSON:	We are, Your Honour, in this sense.
TOOHEY J:	By that I mean is there anything embraced in

paragraph 20 which would not have emerged during

the course of the hearing in any event?

MR JACKSON:  But, Your Honour, there would have to be a

retrial of the action. It is a trial by jury. A

jury is to be sought, the affidavit deposes to

that.

TOOHEY J:  I am sorry, why would that be? If, on appeal,

you made good - you mean it would have to go back

because of the reasonableness aspect?

MR JACKSON:  Yes. The issue would not have gone to the jury

at all. So let us say the judge says the defence

is not available, so the judge having ruled that,
the jury comes back, the verdict is against us, we

appeal, we establish either in the Full Court or,

if we come to the Court, that such a defence

exists, then the result of the proceedings would

have to be a new trial on the question whether it

was or was not reasonable to make it in the

circumstances.

The point that we seek to make in

paragraph 7(c) of our outline of submissions is

that if the Court does remove the matter, we
recognize of course that the case may take a bit
longer to get to trial, but the ultimate resolution

of it, we would submit, is likely to be expedited

by removal because the possibility of there being

further difficulties in a retrial is removed.

Could I also say, if Your Honours were to look at

the affidavit in support of the application, and in

particular at page 4, paragraph 9(a) and 9(b),

WANews 9 30/4/93

Your Honours will see some further potential

difficulties adverted to there.

I mentioned, when Your Honour Justice Toohey

asked me the question at the start of my

which the issue might or might not become academic.	submissions, something about the circumstances in that in almost all the circumstances of the case,
the possible results, the issue has to be
determined and it is only in really perhaps two
circumstances that the ultimate resolution of it is
academic, in the sense of our winning on some other
ground, that is if we were to win at the trial or
on appeal on some other ground and there was no
further appeal and, secondly, if it were held that
the defence was available but we failed on the
issue of reasonableness as a matter of fact. Now,
every other circumstance, Your Honours, the issue
has to be determined and the issue has to be determined by a primary judge in the first place.

DEANE J:  Or a third possibility would be that the parties

agreed that a question as to reasonableness be
asked of the jury in case the matter did go on

appeal.

MR JACKSON:  Your Honour, that is a possibility. I say it

is a possibility, but may I add a qualification to

it. It is a possibility in the sense, if I could

put it, academically - Your Honour, I do not mean

it offensively - because what the judge has to do,

of course, is to direct the jury to determine

whether the publication in the circumstances was

reasonable. But he would be endeavouring to do it

by reference to criteria undetermined and that is

a - - -

DEANE J: Yes, I see the force of that. Of course, the main

consideration against you, as I see it, is it is

all very well for West Australian Newspapers to

come along and say, this is an important case, we

want a great constitutional case; but the Court

must be concerned about the position of a private

plaintiff - private in the sense of not a

corporation - who is faced with a major

constitutional case before he can get his action

heard by the jury in circumstances where if, for

example, he were finally to fail, the costs of the

whole enterprise are probably going to ruin him.

MR JACKSON:	There are two things we would say in relation to that: it really involves two elements, if I may
say so with respect. The first is the question of
time and the second is the question of money. As
to the first of those things, I do not know that I
can really advance it beyond what we have said at

WANews 10 30/4/93

the end of our submissions. Could I just say one

other thing, perhaps.	I used the expression
earlier, the issue will not go away.	Of course, we

are defendants in the proceedings. If the defence

does exist, we are entitled to, a, have it

declared; and b, rely upon it, and c, if we are

right, win because of that.

DEANE J: But it lies in your hands, of course, to get the

matter dealt with straight away by abandoning all

your other defences.

MR JACKSON:  Your Honour, that is something we would prefer

not to do and, if I might say so with respect, if
the issue is one of sufficient importance to be

dealt with by the Court, whilst the Court might be

inclined to impose other terms, that does seem,

with respect, to be a little Draconian. For

example, take the question of truth and public

benefit - .,.. -

DEANE J:  I was not suggesting for a moment the Court would

impose that as a term, Mr Jackson.

MR JACKSON:  Your Honour, the second aspect of it, on the question

of finance, the Court might be inclined to say that

it is a case where it would be appropriate to

impose a condition on the removal but, Your Honour,

the better course, we would submit, in such a case

would be, perhaps, for the Court to bear in mind

the possibility of making an order for costs in any event at the end of the proceedings, rather than at the start.

DEANE J: Yes, it is a lot more difficult at the end,

though, to say that A wins but can pay all the

costs, if you have not said it at the beginning.

MR JACKSON:  It is a question of the Court flagging the

possibility. Could I also say perhaps two other

things: it may well be in the end cheaper in the

long run to have the Court determine the matter now

because the issue has to be argued in the supreme

court anyway, it must take some time to be argued,

and maybe argued twice.

Your Honours, those are our submissions.

DEANE J: Thank you, Mr Jackson. Yes, Mr Hughes.

MR HUGHES:  May I hand up to Your Honours a brief outline.

Your Honours, it might be said that the main

difficulty facing this application may be exposed

by borrowing an analogy from Donohue v Stevenson,

at the end of the day the snail may not be in the

bottle. Now, my learned friends have assumed for

the purposes of their argument that any question

WANews 11 30/4/93

arising under paragraph 20 of the re-amended

defence is a jury question. We would contest that

proposition. If the free speech guarantee in the

Commonwealth Constitution extends to endow

defamatory statements about politicians with a

species of immunity or privilege, it is obviously a

qualified privilege. It is not an absolute

privilege which is exercisable in the absence of

reasonableness or exercisable if there is malice.

And it is well settled that questions of qualified

privilege are essentially questions for the trial

judge. He may have to leave to the jury, in

particular circumstances, a question of fact where

there is any disputed issue going to the issue of

reasonableness, but it is hard to see how that

would happen in this sort of case.

But, Your Honours, while I concede, in the

light of the dicta in the two free speech cases,

that the first proposition in our outline is really

not easy to sustain, there is force, in our

respectful submission, in the view that it is

altogether premature to remove this case at this

stage, where the defendant has chosen to run other

defences which presumably it at least thinks it has

a chance of succeeding upon - - -

DEANE J: But even if your first proposition turned out to

be correct, it would not go to jurisdiction,

though, would it, because the argument is a

constitutional one -

MR HUGHES:  No, no; I accept, with respect, as really

conclusive for the purposes of this application,

that there is jurisdiction because whether the

immunity or privilege arises under the State

Constitution or the Commonwealth Constitution is

itself a section 40 question justifying removal in

appropriate circumstances. So it all gets down, in

our submission, to a question of balancing the

competing considerations bearing upon convenience.

Now we say, first of all - this has not been put to

Your Honours, but it is a fact - that the action

has been expedited in the supreme court and I am

told it was expedited on the footing that the

plaintiffs were entitled to an expedited hearing of

the action because of what they conceive to be, no

doubt on good grounds, the continuing harm accruing

to them in their political and other activities

from the publications complained of. The matter

goes before the expedition list judge in Perth on

next Tuesday, 4 May, for the purpose of fixing a

date for hearing.

Now, it does seem, in our respectful

submission, inappropriate that where there are

obviously possibilities of large questions arising

WANews 12 30/4/93

on the issue of reasonableness and, indeed, as a

subdivision of reasonableness, malice, it would

seem inappropriate that this Court should take what

may well turn out to be a hypothetical moot

question before the matter has been dealt with in

the supreme court on two levels.

TOOHEY J:  Of course the complaint Mr Jackson makes or the

concern he expresses, Mr Hughes, is that it may not

be dealt with; in other words, it is a matter which
the trial judge may not be prepared to let go to

the jury or, indeed, rule upon, other than perhaps

to strike it out.

MR HUGHES:  It was to meet that argument, Your Honour, that

I adverted to the assumption that seems to underlie

a good deal of what has been said by my learned

friend, the assumption being that reasonableness is

a jury question. We would say it is clearly a

judge question because it is a question of

privilege. There is no reason, therefore, why the

trial judge cannot make a ruling, give a judgment,

on the issue of reasonableness and if he rules

against the defendant, the question that is now

sought to be removed falls out of the picture.

GAUDRON J: And if he rules in favour, the only question

that then emerges is the neat question whether or

not there is such privilege.

MR HUGHES:  Yes.

GAUDRON J: And that would be determined on appeal or - - -

MR HUGHES:  On appeal in the ordinary way. So we would

invoke what may be perceived to be, from unreported

cases or cases not reported in official reports - I

think they are referred to by my learned friend in

his outline - - -

GAUDRON J: But is there perhaps an underlying argument as

to whether or not it is a jury question?

MR HUGHES:  There may be, but we would submit that the

argument that it is a jury question is hard to

sustain. Even if it be so, Your Honour, that

question can be left to the jury as a discrete

question. Questions can be left to the jury. But

we would be contending that it is a judge question.

So that even if it be a jury question, the

essential proposition for which I am contending is

not undermined. Really, the point is a very short

one. Leaving aside proposition 1, the force of

which is attenuated, I cannot argue jurisdiction, we would rely on the essence of what we have said in 2 and 3, supplemented by what I have tried to

add.

WANews 13 30/4/93

If Your Honours were against me and in favour

of removal, we would say that the defendant should

be put on terms that it pays for the expedition in

any event - - -

DEANE J: Sorry, what does that mean?

MR HUGHES:	Pays for the costs of the removal in any event.
DEANE J:	You were using expedition in the other sense.
MR HUGHES:	In the military sense, yes; pays for the hearing before this Court, if it is removed.

DEANE J: Pays for all the proceedings in this Court?

MR HUGHES:  Yes. The defendant should also be put on terms

to abandon the defences that are covered by the

decision of this Court in Bridge v West Australian

Newspapers - - -

DEANE J:	I do not think we can do that, really, Mr Hughes.
MR HUGHES:	This Court can do anything by way of imposing

conditions, Your Honour.

DEANE J:  I do not think we can put it on a term that would

bind the Full Court, which no doubt will be the

whole Court.	I have indicated my view of the
prospects.	It may be that that is an obvious -

MR HUGHES: Yes. That is what we ask for. If, like Oliver

Twist, I have asked for too much, so be it,

Your Honours. The issues are clear and we submit

that manifestly convenience and particularly the

convenience of this Court in dealing with what

could be, if it ever becomes real, a very large
question is served better by the non interruption

of the ordinary processes of the Supreme Court of

Western Australia.

DEANE J: Thank you, Mr Hughes. Ms Yeats, is there anything

you want to add?

MS YEATS: If it please the Court, I have a very brief

outline of submissions that might be of some

assistance to the Court.

DEANE J: Thank you.

MS YEATS:  If it please the Court, our concern is that

although there is a constitutional issue under the

Commonwealth Constitution, the core issue is in

fact an implication contended to arise under the

Constitution of Western Australia and we refer to

that in paragraph 2. There has not to date been

any implication of that nature found to arise under

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any State Constitution, Western Australian or

otherwise, and if this contention is upheld it has

quite far reaching implications on several bases,

both for this issue and, we would have thought, in

other constitutional issues if the basis of the

contention is valid.

In these circumstances, we believe it is most

appropriate, extremely desirable, that our supreme

court have the first look at. Our supreme court is

quite competent, as are all supreme courts, to

assist in looking at a constitutional issue,

particularly in the light of a State Constitution,

and we would have thought that it would be much

more appropriate in this case if the High Court had

the issues refined. This is, as has been pointed

out, an issue that has not yet been refined in any

way by this Court or in looking particularly at

defamation, and in our submission, it would be

inappropriate, in those circumstances, for the High

Court to consider it without the benefit of the

supreme court's views.

I could also say that in the expedited list in

Western Australia we are, at the moment, fixing

trials within the next two to three months. It is

a court that has kept its lists short and once the
matter is in the expedited list it could well be
that it will be much more quickly heard there -

appeal, of course, is a different question - than

if it would get delayed in Your Honours' list.

If it please the Court.

DEANE J: Thank you, Ms Yeats. Mr Jackson.

MR JACKSON:  Your Honours, may I say just a few things in

response. First of all, about the assuming of

facts. True it may be that the snail may or may

not have been in the bottle, but three or four

generations of physically and intellectually

crippled and maimed people have been able to	recover damages because the House of Lords assumed
the existence of the vermin or delicacy, depending
on one's tastes. The second thing is this, that if
one says that the issue is one that can be decided really on assumptions now by the trial judge, the
first thing is if it is a jury question, what
directions does the judge give the jury. The existence and parameters, if I can use the expression, of the defence are not really
established.

If I could turn then to the question whether

it is or is not a question for the jury,

undoubtedly the question whether there was evidence

capable of being found by the jury to amount to

WANews 15 30/4/93

conduct reasonable in the circumstances is a

question for the judge. But it would seem to be an

archetypal question of fact whether the conduct was

in fact reasonable in the circumstances. The

judge, even if it be a question for the judge, the
judge has to direct himself in any event.

Your Honours, so far as the present state of the action is concerned, we regret that we have

some disagreement with our learned friends about

that because, on our instructions, the position is
that the interlocutory steps in the action have not

been completed in the sense that there is further

discovery of documents has been requested of each

of the plaintiffs in the proceedings.

Interrogatories have yet to be answered. If it

were in all respects now ready for trial it would
be unlikely, on our instructions, that a hearing
date before September could be allocated, and that

the hearing to be heard on next Tuesday is simply

that the matter is listed for directions in order

to see what happened today, in effect.	So that is
essentially our submission in reply.

DEANE J: Thank you, Mr Jackson. Mr Jackson, what do you

say about a condition as to costs?

MR JACKSON:  Your Honour, I submitted earlier that there

should not be such a condition.

DEANE J:  You would prefer an order subject to condition

than no order at all?

MR JACKSON:	Yes, Your Honour, that is the short position.
DEANE J:	The question whether there should be an order for

the removal of these proceedings into this Court at

this stage is a fairly evenly balanced one. A

majority of the Court considers, however, that

there should be such an order, subject to the

condition that the applicant pays the respondents'

costs of the proceedings in this Court, including	this application, in any event. Accordingly, the
Court orders that the proceedings be removed into
this Court.

Mr Jackson, Mr Hughes, I will not make a

formal order, but the next step should be that the

matter be listed for directions before a single

judge who can then take the matter from there. I

also have not mentioned, but it is recorded in the
transcript, that the basis of the order is, of

course, that the only real question for the Full

Court will be the question raised by paragraph 20
of the defence.

AT 10.22 AM THE MATTER WAS ADJOURNED SINE DIE

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