3219/09 AMI Australia Holdings Pty Ltd and anor v Fairfax Media Publications Pty Ltd and ors
JUDGMENT (EX TEMPORE)
1 REIN J: The first, third and fourth defendants, by Notice of Motion, seek to vary an interlocutory order made by this Court in June 2009, which order prevents the first, third and fourth defendants, all of whom I shall refer to as "Fairfax", from publishing in a Fairfax newspaper information allegedly provided to them by the second defendant, a former doctor engaged by the plaintiffs as a contractor.
2 The plaintiffs provide medical services and products to persons with sexual dysfunction.
3 The proceedings have been set down for final hearing in October this year, and the interlocutory orders made extend to the last day of that hearing.
4 A Committee of the House of Representatives known as the House of Representatives Standing Committee on Health and Ageing held a Roundtable Forum on Impotence Medications in Parliament House in Canberra on Friday of last week. Notice of the hearing was given by the House of Representatives on its website, and the third defendant attended the hearing and took notes.
5 Fairfax is represented on the Motion by Mr Dawson of counsel, and the plaintiffs are represented by Mr Green of counsel with Dr Peden of counsel.
6 The variation sought by Fairfax is that the following words should be added to the terms of the order currently injuncting the defendants:
"… except in so far as such restraint would prevent the defendants from publishing any fair report of proceedings before the House of Representatives Standing Committee on Health and Ageing Roundtable Forum on Impotence Medications in Parliament House, Canberra."
7 Mr Dawson sought to rely on an affidavit of Mr Paul Svilans of 24 August 2009, but Mr Green argued that reliance on the affidavit infringed s 16(3) of the Parliamentary Privileges Act 1987 (Cth) ("the Act"). Section 16(3) provides:
"(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament."
8 It was agreed that I should receive the affidavit, effectively, on the voir dire to determine whether the affidavit dealing with what occurred last Friday at the Committee hearing, either of itself or in support of the Fairfax Motion, infringed s 16(3)(c).
9 Mr Dawson explained that Fairfax wishes to publish a report of the proceedings before the Committee, but is concerned that publication of a fair report of those proceedings could constitute a breach of the interlocutory injunction to which Fairfax is subject, because there is an overlap between material allegedly provided by the second defendant and material which became available to Fairfax (and any other journalist or member of the public) present at the Committee hearing on Friday. The affidavit provides details of the hearing of the Committee and the third defendant's presence at the hearing.
10 My initial reaction to the problem was that there was no need for Fairfax to seek a variation of the injunction for this purpose, since publication of a fair report of what transpired at the Committee hearing would not involve use of any information obtained from the second defendant, but the plaintiffs' position, as espoused by Mr Green, seems to involve the contention that if fact "X" was revealed by what was said before the Committee, Fairfax cannot publish fact "X", and inferentially, such publication would constitute a breach of the orders made by this Court.
11 Mr Green submitted that the effect of s 16(3)(c) of the Act was to preclude Fairfax from putting the material in the affidavit before the Court, and although it might seem odd that Fairfax, unlike the rest of the media outlets, would not be permitted to publish the material, that arises because Fairfax is a party to these proceedings and has been injuncted, legitimately, from publishing any material with which it has (on the plaintiffs' case) been provided by the second defendant in breach of her obligations to the plaintiffs.
12 I shall turn to the question of statutory interpretation in a moment, but it strikes me as rather extraordinary that if material previously confidential to the plaintiffs is made public in a Committee hearing of the Parliament of the Commonwealth, there would remain any impediment of law to a party revealing, by use of material now publicly available, what had previously been confidential.
13 It was not contended by Mr Green that s 16(3)(a) or (b) were relevant. Mr Dawson did not dispute that what occurred before the Committee constituted proceedings in Parliament: see s 16(2) of the Act. Mr Green drew attention to the width of the words "by way of, or for the purpose of" in sub-section (3).
14 In Habib v Commonwealth of Australia [2008] FCA 1494, Perram J considered an attempt to rely on various materials relating to what had occurred before a Senate Standing Committee - namely, a letter sent to a witness who had appeared before the Committee seeking to clarify that witness' evidence to the Committee, the witness' reply, a letter sent by another witness clarifying evidence given, and three documents providing formal answers to questions asked during the hearing. Counsel for Mr Habib submitted that the material "tended to show" certain things relevant to Mr Habib's case. The use of the material was not to demonstrate that "X" had been said at the hearing, but to establish that inferences could be drawn from documents created after the hearing, and one of the documents actually sought to question the witness about what had been said at the hearing.
15 The present situation is quite different to Habib. Fairfax does not ask the Court to draw any inferences from what was said or done or provided in the Committee hearing - rather what it seeks to do is put before the Court evidence of what actually occurred at the Committee hearing, which, incidentally, I was informed was broadcast and available on the internet.
16 In my view, proving that:
(a) there was a Committee hearing; and
(b) "X" was said at that hearing
is not evidence by way of, or for the purpose of, drawing, or inviting the drawing of, inferences or conclusions (wholly or partly) from anything forming part of those proceedings.
17 I am strengthened in that view by the following two points:
(1) Considering that the obvious purpose of the Act is to prevent members of Parliament or members of the public who give evidence before a Standing Committee having statements made by them in Parliament or before a Committee used as a means of establishing or supporting inferences as to facts, motives or intentions relevant in courts or tribunals, and being taxed in cross-examination about those utterances, proving that a member of the House of Representatives said "X", if it were relevant, does not, in my view, infringe that purpose. The distinction between challenging or impugning a witness in relation to anything said or done in Parliamentary proceedings, on the one hand, and merely proving that something was said in Parliament, is one which has been clearly recognised in cases prior to the introduction of s 16 of the Act: see Mundey v Askin [1982] 2 NSWLR 369 and Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1. In Comalco at page 3, Blackburn CJ referred to article 9 of the Bill of Rights 1688 1 Will and Mary sess 2 c 2, which provides:
"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."