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

30/4/93

TRANSCRIPT OF PROCEEDINGS

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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Western Australian Newspapers Limited v Stephens

Details

AGLC: Western Australian Newspapers Limited v Stephens [1993] HCATrans 108
Case: [1993] HCATrans 108
Decision Date

CaseChat Overview and Summary

The applicant, Western Australian Newspapers, sought the removal of a cause of action pursuant to s 40(1) of the Judiciary Act 1903. The respondents, Thomas Gregory Stephens and others, were plaintiffs in an action against the applicant. The core of the dispute concerned newspaper articles published by the applicant concerning the respondents in their capacity as members of the Parliament of Western Australia. The applicant contended that these publications were made in circumstances where it was reasonable to do so and were protected by a freedom guaranteed by the Commonwealth Constitution and the Constitution Act 1889 (WA). The Attorney-General for the State of Western Australia intervened to oppose the application.

The legal issues before the High Court were whether the question of the availability of the constitutional defence was sufficiently arguable to warrant removal and whether, given its importance, the removal was premature. The applicant argued that the trial judge would first need to determine whether the asserted defence of freedom of speech, as conferred or recognised by the Commonwealth Constitution, was legally available before the case could proceed to trial. This determination was seen as a necessary step in the conduct of the trial, as the judge would have to decide if the defence could be put to a jury.

The applicant's submissions focused on the necessity of resolving the constitutional defence. It was argued that the availability of such a defence was central to the proceedings and that a trial judge would be required to rule on its legal basis. The applicant acknowledged that other defences might resolve the action without this specific issue being finally determined, but maintained that the constitutional question had to be addressed for the trial to be properly conducted. The court was considering whether to remove the cause to itself for determination, implying a need for the High Court to rule on the constitutional question.

Orders