The section 23 issue
11The appellant contended that her Honour erred in law in determining that leave pursuant to s 23 cannot be granted retrospectively.
12The Defamation Act, s 23 provides:
"23Leave required for further proceedings in relation to publication of same defamatory matter
If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."
13The trial judge stated, at [24], that the clear language of s 23 "evince[d] an intention to address the vice of multiple proceedings". Her Honour observed that the provision did so by placing the onus on a plaintiff who had commenced proceedings (whether within the jurisdiction or not) to persuade the court in which the further proceeding was to be brought that it would not be an abuse of process to do so. Her Honour held, at [25], that she did not have power to grant leave retrospectively.
14Her Honour was reinforced in her construction of s 23 by the obiter statement of Hunt J in Spautz v Kirby (1989) 21 NSWLR 27 in respect of the equivalent provision in the Defamation Act 1974, s 9(3). In respect of that provision, Hunt J said, at 30:
"The requirement that leave be obtained is on its face intended to prevent an abuse of process when separate and successive proceedings are brought against the same defendant in respect of the same matter (as defined). There is nothing in the statute which warrants an interpretation of s 9(3) that the plaintiff may validly bring the proceedings without leave provided that leave is obtained subsequently if and when objection is taken to them. The abuse has already happened by that stage."
15The appellant submitted that her Honour's construction of s 23 was incorrect. He submitted that s 23 was a procedural provision, so that non-compliance could be cured retrospectively by an order nunc pro tunc. The appellant submitted that the construction for which he contended was well based in the principles stated by this Court in Woods v Bate (1986) 7 NSWLR 560 at 567 per McHugh JA (as his Honour then was) (Hope JA agreeing) and by the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 390-391. The appellant also submitted that his preferred construction was supported by authority and, in particular, the High Court's decision in Emanuele v Australian Securities Commission [1997] HCA 20; 188 CLR 114. The appellant's submission recognised that if the section was a precondition to jurisdiction, then retrospective leave could not be granted.
16In Woods v Bate, McHugh JA, at 567, stated that there were many examples of cases where the validity of an act was upheld, even though an anterior condition had not been fulfilled. His Honour considered this was appropriate:
"... unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice ..."
17Although Woods v Bate was decided in the context of the classification of statutory conditions as "mandatory" or "directory", the quoted extract states a fundamental principle of statutory construction.
18In Project Blue Sky, the High Court was concerned with the Broadcasting Services Act 1992 (Cth), s 160, which declared that the Australian Broadcasting Authority (ABA) was to perform its functions in a manner consistent with:
"(d)Australia's obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country."
The appellant had contended that this provision required the ABA to comply with an existing Trade Agreement and Protocol entered into by the Australian and New Zealand governments. It argued that because the Australian Contents Standard (the Standard) developed by the ABA pursuant to the Act gave preference to Australian content, it was invalid.
19The plurality (McHugh, Gummow, Kirby and Hayne JJ), at 381-382, stated the primary rule of construction in the following terms:
"... 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed' [Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon CJ]. Thus, the process of construction must always begin by examining the context of the provision that is being construed ...
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'." (citations omitted)
20In dealing specifically with the question whether the failure to comply with s 160(d) meant that the Standard was invalid, their Honours, at 388-389, stated:
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."
21Their Honours added, at 389:
"The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." (citation omitted)
22Their Honours, at 390, eschewed the mandatory/directory distinction as providing the answer to the question of validity, noting that that approach had spawned a series of irreconcilable decisions. After observing that the classification of statutory provisions into "mandatory" or "directory" was unhelpful, stated, at 390:
"A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."
23In determining that the Standard was not invalid due to non-compliance with s 160(d), their Honours had regard to the following factors. First, s 160 regulated the exercise of functions already conferred by other provisions of the Act. Secondly, not all of the provisions in s 160 had a rule like quality. For example, s 160 required the ABA to carry out its functions consistent with, inter alia, any general policies of the Government notified to it by the Minister. As their Honours observed, whether there had been compliance with this provision could be a matter upon which there might be widely differing views. This notion, that s 160 regulated a function already conferred by other provisions of the Act, is redolent of the approach taken to provisions such as the Corporations Law (Cth), s 459P, discussed in Emanuele.
24Their Honours also noted, at 392:
"Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA." (citation omitted)
25Emanuele involved the construction of the Corporations Law, s 459P. Under the Corporations Law, s 459A, the Court was empowered to order that an insolvent company be wound up in insolvency. Section 459P provided for the entitlement of entities to make an application to wind up under s 459A. Certain of those entities were only entitled to apply for a winding up order with the leave of the court: s 459P(2), which provided:
"An application by any of the following, or by persons including any of the following, may only be made with the leave of the Court ..."
Four categories of persons or entities were specified as requiring leave to make an application to wind up the company in insolvency. Section 459P(3) provided that the Court may grant leave if satisfied there was a prima facie case the company was insolvent, but not otherwise. Pursuant to s 459P(4), leave might be granted subject to conditions. Section 459P(5) provided that, except as permitted by the section, a person could not apply for a company to be wound up in insolvency.
26Dawson, Toohey and Kirby JJ construed s 459P(2) as permitting the grant of leave nunc pro tunc. Brennan CJ and Gaudron J held to the contrary.
27Dawson J agreed with Toohey J. In short additional remarks, Dawson J observed, at 125, that s 459P did not confer jurisdiction on the Federal Court to make the winding up order. That jurisdiction was relevantly conferred by s 459A. Section 459P prescribed the parties entitled to make an application for a winding up order and specified that certain parties required leave to make an application. Dawson J considered that the failure of the Commission in that case to obtain leave was a mere defect or irregularity in the exercise of the court's jurisdiction. The failure to obtain leave was procedural and did not affect the validity of the order made. As the failure did not go to jurisdiction, his Honour considered that there was no reason why the Full Court of the Federal Court could not have cured the defect or irregularity by granting leave nunc pro tunc. His Honour considered there was ample authority for having taken that course: see Re Testro Bros Consolidated Ltd [1965] VR 18.
28Toohey J also considered that the court's jurisdiction to make a winding up order was to be found in s 459A. His Honour noted that s 459A, in combination with Corporations (South Australia) Act 1990 (SA), s 42(3), which provided that "[j]urisdiction is conferred on the Federal Court with respect to civil matters arising under the Corporations Law of South Australia", was relevantly the source of the Federal Court's jurisdiction. Section 459P was not, however, a jurisdiction-conferring provision, nor did it create a cause of action or go to the relief that may be granted.
29Toohey J referred to the comment of Gallop ACJ and Morling AJ in Ceric v C E Heath Underwriting and Insurance (Australia) Pty Ltd [1994] NTSC 101; 4 NTLR 135 at 146 in respect of a statutory requirement that an action not be commenced except with leave of the court, where their Honours said, "[w]e find it difficult to describe a proceeding commenced in a court which has jurisdiction to entertain the proceeding as a nullity".
30His Honour also noted the observation of Sholl J in Re Testro Bros Consolidated Ltd, at 33-34, that:
"There is ... a uniform set of authorities in Australia, extending over seventy years, for the granting of leave under such sections, nunc pro tunc ... clearly the absence of leave is not a matter going to jurisdiction."
As Sholl J also observed, at 35:
"Such legislation is aimed at preserving the control of the Supreme Court over the administration of a company's affairs, a purpose which is sufficiently achieved by interpreting sections like s 199 rather as conferring a control of a directory character on the Court, than as setting up an absolute bar like a statute of limitations."
31Toohey J noted that this approach was followed by McClelland CJ in Eq in Re Sydney Formworks Pty Ltd [1965] NSWR 646.
32Toohey J next referred to National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400. That case dealt with the Law Reform (Miscellaneous Provisions) Act 1946, s 6(4), which created a charge upon certain insurance monies and authorised recovery against the insurer "[p]rovided that ... no such action shall be commenced in any court except with the leave of that court". This Court held, at 408, that "a failure to obtain the leave of the Court in advance invalidates the action and renders it incapable of being revived by leave retrospectively given". In coming to that conclusion, Glass JA focused on the language of the provision. In doing so, his Honour noted the trend in New South Wales authorities that had rejected the mandatory/directory distinction as providing the proper approach to construction of such provision.
33Toohey J stated that to the extent that National Mutual Fire Insurance was inconsistent with the view he expressed as to the proper construction of s 459P(2), it should not be followed. However, his Honour considered that the case was distinguishable, given the different terms of the legislation. Toohey J accepted that, at least arguably, the court's jurisdiction under s 6(4) was dependent upon advance leave. His Honour considered that was not the case in respect of an application for winding up under s 459A, brought by an entity that required leave under s 459P(2).
34In Emanuele, the appellant had submitted that a person who makes an application other than as allowed by s 459P had no standing: see Torsir Pty Ltd v Maxgrow Developments Pty Ltd (1995) 121 FLR 170 at 174; 18 ACSR 201 at 205; and see the use of the word "only" in s 459P(2); and "cannot" in s 459P(5). See also David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 at 277. Toohey J rejected this argument. David Grant was concerned with the Corporations Law, s 459G which was a provision that went to jurisdiction. Toohey J concluded that the line of authority he had discussed at 131, including Re Testro Bros, was more closely analogous to s 459D than David Grant. His Honour held, therefore, that s 459P(2) did not impose a condition precedent to the exercise of the jurisdiction of the court. In this regard, Toohey J endorsed the comment of Lindgren J in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 406; 133 ALR 206 at 225 where his Honour stated:
"... the distinction is between a situation in which there is a time limit within which the court must be approached if an application for an order of a particular kind is to be made at all (s 459G), and a situation in which a proceeding is already under way and is subject to the court's control and in which a timely but deficient order has been made."
35Toohey J noted that s 459P(3) required the Court to exercise a supervisory role, satisfying itself that there was a prima facie case that the company was insolvent before granting leave. His Honour stated, at 279, that this aided the "drastic commercial consequences which may follow the issue of process for winding up". His Honour also considered there were policy considerations which favoured the taking of a liberal view of the requirements of s 459P, especially in situations such as an application for an urgent ex parte order where, as his Honour observed, it would be inconvenient if leave had to be granted before the application was made.
36Gaudron J, at 136, observed that s 459P served a "dual function". The section identified the entities who were entitled to make an application to wind up a company in insolvency and also conferred power on a court to grant leave to make such an application. Her Honour added:
"In its broader context, s 459P is one of several provisions concerned to establish the grounds on which and the procedures by which the Court may order that a company be wound up."
37Her Honour was of the opinion that when considered in the context of the legislation as a whole, it was apparent that s 459P was not confined to the grant of leave prior to a winding up application being made. Of importance to her Honour's view were ss 467 and 467A(a). Section 467A(a) provided that a winding up application must not be dismissed because of "a defect or irregularity in connection with the application", unless the court was satisfied that it would result in substantial or irremediable injustice. Section 467(3)(b) provided that the court may "dispense with any notices being given or steps being taken that are required by [the] Law, or by the rules, or by any prior order of the Court".
38Her Honour noted that the language of s 459P was emphatic but did not, in terms, provide that the court may only grant leave prior to an application being made for the winding up. Her Honour continued, at 136-137:
"Once the question in this case is approached in terms of the Court's power to grant leave, rather than in terms which ask whether s 459P must be complied with strictly, it is clear, in my view, that s 459P(2) cannot be confined to the grant of leave prior to an application being made for the winding up of a company. As already indicated, s 459P(2) is a provision conferring power on a court. As such, it is not to be construed as subject to implications or limitations unless clearly required by its terms, its context or its subject-matter. Similar considerations dictate that such provisions should not be construed as directing an inflexible approach unless that is clearly indicated. Courts are possessed of powers to be exercised in the interests of justice. And as a general rule, the interests of justice are not well served by the exercise of powers inflexibly and without regard to the convenience of the situation." (reference omitted)
39Kirby J, at 146, summarised the approach to the construction of a statutory provision that required the leave of the court for the purposes of particular proceedings. His Honour stated that the fundamental task of the court was to give effect to the purpose of Parliament as expressed in the statutory provision. As his Honour stated, the court's "fidelity is always to the legislative text, properly understood": see, inter alia, Spautz v Kirby at 30.
40His Honour next observed that the court will seek to ascertain the purpose to which the provision under consideration was directed. In this regard, his Honour noted that the court will seek a construction that avoids an inconvenient outcome such that the legislation would miss its apparent target and fail to achieve its obvious objectives. However, the court may only do so to the extent the language of the enactment permits: see Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20, approving Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424. His Honour commented that in more recent times, the courts have shown a preference for a more flexible approach to statutory preconditions where these are of a procedural nature: see Woods v Bate at 567.
41His Honour recognised that a review of the authorities in relation to statutory preconditions produced two lines of authority. There was that line of authority in which the condition was construed strictly: see, for example, National Mutual Fire Insurance. The alternative line of authority was represented by Re Testro Bros Consolidated and Re Sydney Formworks.
42I have referred in some detail to the factors that the plurality in Project Blue Sky considered relevant to the construction of the provision in question to highlight not only the principles of statutory construction that apply, but also to demonstrate their manner of application in a particular case. Both the language of s 23 and its purpose fundamentally differ from that considered in Project Blue Sky.
43Section 23 is also different from the purpose to which the Corporations Law, s 459P, considered in Emanuele, was directed. The essential purpose of s 459P was to prescribe who was entitled to bring an application and then to require that such entity only be permitted to bring an application with leave. As Gaudron J pointed out, it was directed, inter alia, to the procedures for bringing an application to wind up for insolvency.
44Section 23, however, regulates what may be done in a particular circumstance, in that it proscribes the bringing of further defamation proceedings against the same defendant, "except with the leave of the court". The requirement of leave is directly related to the bringing of proceedings. In my opinion, that is a proscription on the bringing of proceedings, rather than a regulation of the manner in which the proceedings may be brought. Importantly, there are no equivalent provisions in the Defamation Act to the Corporations Law, ss 467 and 467(a), which was influential in the reasoning of Gaudron J in Emanuele.
45I am also of the opinion that the text of s 23 and, in particular, the words "except with the leave of the court in which the further proceedings are to be brought" (emphasis added), requires that leave be obtained before the commencement of the further proceedings.
46When the question of purpose is considered, I am content to adopt Hunt J's identification of "purpose" in Spautz v Kirby, which I consider to be correct. Section 23, as was its predecessor provision, is directed to the prevention of abuse of process. As his Honour observed, if leave could be given retrospectively under a provision of s 23, the abuse would already have occurred. If retrospective leave was permitted by the section, the fact that a court may refuse leave is neither an answer to nor a panacea for the abuse that will have occurred already by the bringing of proceedings without leave.
47Indeed, the argument, that a court may refuse leave notwithstanding that proceedings have already been commenced and even after they have been substantially heard, itself raises a question as to what factors a court might take into account in determining whether to grant leave. As I am in the minority on the question of construction and as there was no argument on this question, it is not appropriate to express an opinion. It is preferable to leave the matter for consideration when the question directly arises in a particular case.
48Her Honour was correct in her construction of s 23. Accordingly, the appellant's challenge to her Honour's refusal to make an order under s 23 nunc pro tunc must be rejected.