Western Australian Newspapers Limited v Stephens

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.