"Where several defendants are charged with joint defamation, and
express malice is established against one only, it has been
said that
the express malice of the one is fatal to the success of a plea of
privileged occasion or fair comment by all or
any: Smith v
Streatfield; Webb v Bloch; Musgrave v The Commonwealth; Gatley on Libel
and Slander, 3rd ed., 630, 661. This
may be true enough where the
others are, on general principles, vicariously liable for the acts of
the one: cf. Brain v Commonwealth
Life Assurance Society Ltd; Smith v
Commonwealth Life Assurance Society Ltd. But, except in this class of
case, I think, with
all respect, that, as a matter of principle, where,
to defeat a plea of several defendants sued jointly, it is necessary
for
the plaintiff to prove express malice, he must fail as against any
defendant to whom he is unable to sheet home express malice.
The
statement that express malice of one must, in relation to liability, be
regarded as express malice of all appears to depend
upon Smith v
Streatfield, a decision of a single Judge, which was doubted by the
Court of Appeal in Crozier v Wishart Books
Ltd, and was described as "a
tottering authority" by Uthwatt J in Smith v National Meter Co Ltd.
But, however this may be,
I am of opinion that, in a case of joint
libel, nothing can be awarded in respect of additional exemplary
damages for aggravating
circumstances unless it is established either
that all the defendants who are found guilty participated in the
aggravating
circumstances, or that those who did not are, for some
reason, vicariously liable for the conduct of those who did: Robertson
v Wylde; Dawson v M'Clelland; Mutch v Sleeman; Chapman v Lord
Ellesmere. Applying these principles, I am of opinion that the
portion
of the summing up which was objected to cannot be supported."
357. His Honour's judgment was concurred in by Maxell J
and the point does
not appear to have been discussed particularly by Owen J.
358. The other case to which I was referred was a judgment
of the Court of
Appeal, England, in Egger v Viscount Chelmsford and Ors (1964) 3 All ER 406.
The decision of the Court of Appeal as expressed in the headnote was that each
of the three members of the committee who was innocent
of malice was entitled
severally to the protection of qualified privilege and therefore was not
liable to the plaintiff for libel.
359. Lord Denning M.R. dealt with the relevant authorities at pages 408 to
411 of the report, including Smith v Streatfield and
the High Court's decision
in Webb v Bloch.
360. His Lordship disagreed with Smith v Streatfield, which he said was quite
contrary
to justice. At page 408 of the report he said: "It is quite
contrary to justice that the printers who were entirely innocent should
have
been held jointly liable with the canon." He then refers to the judgment of
Bankes J in that case at page 409 and he quotes:
"The finding of the jury
establishes the fact that the defendant, Cannon Streatfield, was a tortfeasor
as regards this publication.
It necessarily follows, in my opinion, that the
PRINTERS ARE JOINT TORTFEASORS with him." He says of that conclusion that all
he
could say of it is that the conclusion does not follow from the premises.
361. The second reason that Bankes J gave, is quoted by
Lord Denning, at
p409:
"Qualified privilege in one sense may be said to be the privilege of
the individual, in that it arises
out of the circumstances in which the
individual is placed, but as a defence it is attached to the
publication. Where, therefore,
as here, the plaintiff is complaining
of a joint publication, if the defence of privilege as to that
publication fails because
of the proof of express malice, it fails in
my opinion altogether."
362. His Lordship then goes on to say:
"All I would say
is that the defence of qualified privilege is a
defence for the individual who is sued, and not a defence for the
publication.
It is quite erroneous to say that it is attached to the
publication as distinct from the individual."
363. The other matter
to which I should briefly refer is the recent decision
of the High Court in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty
Ltd [1985] HCA 12; (1985), 155 CLR 448. That case examined the question of whether or not an
award of exemplary damages could be made against one of two joint defendants
who were sued. The question arose because the theory behind the decision of
the House of Lords in Broome v Cassell and Co Ltd [1972] UKHL 3; (1972) AC 1027 was that only
one award of damages was possible in the case of joint tortfeasors. So unless
there were findings warranting exemplary
damages against both defendants, the
House of Lords had found that the only damages which could be awarded were the
lesser of the
two amounts.
364. The problem with that particular case was that the House of Lords had
not been referred to the English Law Reform
Miscellaneous Provisions Act
provisions, and at a later time the Privy Council in the case of Wah Tat Bank
Limited v Chan Cheng Kum
(1975) AC 507 declined to follow the reasoning of the
House of Lords. That case dealt with the question of whether the rule in
Brinsmead v Harrison
(1871) LR 7 CP 547 that a judgment against one tortfeasor
was a bar to an action against other joint tortfeasors had survived the Law
Reform Miscellaneous
Provisions Act.
365. Those authorities were considered by the High Court in the XL Petroleum
case and the court came to the view
that the rule in Brinsmead v Harrison had
been displaced by the Law Reform Miscellaneous Provisions Act and that
consequently once
the basis for the rule had been displaced, there remained no
foundation any longer for the old rule that only one award in damages
could be
given.
366. This suggests that the distinctions and consequences of joint liability
which previously had underpinned some
of the technical rules of the common law
relating to joint tortfeasors had been swept away.
367. The view I hold is this, there
being no binding authority on me, that
first there ought to be no rule, simply because the defendants are joint
tortfeasors, that
one joint tortfeasor is, required to suffer the consequences
of the malice of the other joint tortfeasor. There seems to me to be
nothing
in principle or justice requiring that consequence. Accordingly, I prefer the
views of Lord Denning and the views of Jordan
CJ, to which I have referred, on
that particular issue.
368. As to the submission which Mr Reeves put to me that the publisher's
privilege was an ancillary privilege, even if that is so, it does not follow
that of necessity the destruction of the privilege of
Mr Wrenn would carry
with it the consequence that the ABC's privilege was also destroyed. Whilst
that might sound fine in theory
one only has to consider the facts discussed
in Egger v Vicount Chelmford to see how unjust that would be. Presumably, the
communication
by the author of the letter to his secretary, which was said to
be a privileged communication for the purpose of enabling the secretary
to
type the letter, would have the result, if Mr Reeves' submission is correct,
that not only the author of the letter but also the
secretary who typed it
would lose the privilege if the original author of the letter was actuated by
malice. That seems to me be
to a very unjust result and, as I am not bound
by any particular authority on the topic, it seems to me that the better
course is
to follow those cases that confine the effect of proving malice to
those where either direct malice is proved against each defendant
or it is
shown that the defendants are vicariously liable for the publication or are
otherwise, in the words of Isaacs J in Webb
v Bloch, "acting as a composite
entity".
369. That being the case I would rule that in the absence of any special
pleading or special
facts, and there appears to be none upon which the
plaintiff can rely, proof of malice against Mr Wrenn would not as a matter of
law infect the ABC.
RULING SIXTEEN
(13, 14, 16, 24 and 28 March 1995; 2 October 1995)
370. APPLICATION by the plaintiff to the trial
judge to disqualify himself
for apparent bias; and application by Nationwide News Pty Ltd to set aside
suppression orders made.
(J. Reeves and A.H. Silvester for the plaintiff, the
first defendant appeared in person, M. Lynch and S. Southwood for the second
defendant until 28 March 1995, A. Wyvill for Nationwide News Pty Ltd on 16 and
24 March 1995, T. Riley QC for Nationwide News Pty
Ltd on 28 March 1995, J.
Waters for the second defendant, M. Lynch, S. Southwood and D. Elliott on 28
March 1995.)
371. The following
written reasons were published on 2 October 1995.
372. MILDREN J The action in this case was for damages for defamation. The
trial
was by a civil jury. The plaintiff sought aggravated and punitive
damages. The trial began on 24 October 1994. It was expected
to last 3
weeks. The defendants raised a number of defences, the most important being
justification and qualified privilege. After
seven weeks, the trial had still
not finished. For various reasons the trial could not be concluded in
December 1994, and on 13
December 1994 it was adjourned until 13 March 1995.
By that time the only defence left was partial justification, but the
defendants
had also put the plaintiff to proof on publication and
identification as to the meaning of the innuendoes which could be proven from
the broadcast. The trial had been hotly contested on all sides. The
defendant Wrenn appeared in person. There was an atmosphere
of considerable
hostility and acrimony between counsel and solicitors involved in the case,
and I had had, on more than one occasion,
to urge the parties' legal
representatives to co-operate with one another. This case was also bedevilled
by almost every conceivable
problem likely to cause the trial to become drawn
out. There were numerous applications to amend the defences. Some of these
applications
were refused. Even so, the defences were still amended on five
occasions during the trial. Tactics were being employed with a view
to
embarrassing the other side with the rule in Jones v Dunkel [1959] HCA 8; (1958-59) 101 CLR
298. There were tactical battles being fought on numerous other fronts. Some
of these tactical battles resulted in a not inconsiderable
waste of the
Court's time. There were applications to discharge the jury. I will not
record every single application made to me
in the absence of the jury.
Suffice it to say that they were numerous and that they occupied in all a very
considerable part of the
hearing time. Most of these applications were
justified; some were frivolous and a waste of time; others were made
prematurely or
unnecessarily. Often these applications were made with little
or no notice to the other parties or their legal representatives,
or to me.
On other occasions arrangements were made between the solicitors for the
plaintiff and the second defendant without apparently
informing their counsel
of what had been decided. It was not uncommon for the first defendant to
complain that he had not been informed
by one party or the other as to what
was being proposed. I do not intend to single out any individual. The trial
placed a lot of
pressure on all involved. As the trial judge I had the
responsibility to ensure that the trial was fairly conducted. The combination
of factors to which I have briefly eluded made my task difficult. Before the
trial resumed in March I had resolved to take whatever
steps were necessary to
reduce the personal animosity between the parties' legal representatives, to
avoid further time wasting tactics
being employed, and to bring about a proper
conclusion to this litigation the costs of which had already vastly exceeded
any amount
that the jury were ever likely to have awarded if the plaintiff was
successful.
373. During the week before the resumption of the
trial, my associate, who is
also my wife, was admitted to the bar. My new associate was due to start
during the first week of resumption
of the trial, and it was arranged that my
associate would stay on, as is the custom, for an extra week to ensure a
smooth handover.
In order to celebrate her admission a party was held at my
home on the evening of Saturday 11 March 1995. Invitations were sent
out to a
large number of persons, mainly members of the local legal profession.
Included amongst those invited were the lawyers and
partners of the firm of
solicitors representing the plaintiff, where my former associate had been
articled, as well as counsel involved
in this case, and a solicitor from the
firm representing the second defendants. Initially acceptances were received
from some persons
on both sides. Later, a fax was received by my associate
from one of the junior solicitors employed in the plaintiff's solicitors'
firm
to the effect that he would not be coming because there might be a reasonable
apprehension of bias if he did attend. No other
information was received until
sometime later, when a note of congratulations addressed to my associate was
delivered to our home,
together with a bottle of champagne. The note was
signed by counsel for the second defendant and one of the solicitors from the
firm representing the second defendant, and explained that they would not be
attending the party because objection had been taken
by the plaintiff to their
doing so. A copy of a letter to this effect from the plaintiff's solicitors to
the second defendant's solicitors
was also sent. When this came to my
attention on the evening of 10 March, I rang leading counsel for the
plaintiff, told him what
had happened, and asked him to see if the problem
(whatever it was) could not be resolved. I heard nothing further about the
matter.
None of the parties' representatives attended the party. I intended
to raise these matters with counsel before the case resumed
the following
Monday and brought to court the letter concerned.
374. On the morning of the Monday 13 March 1995 I was informed that
counsel
wished to see me in my Chambers. I assumed this may be to discuss the letter
earlier referred to. At the last minute a
message was relayed to me through
my associate that the matter would be raised in open court. When court
resumed, counsel for the
plaintiff made an application that I disqualify
myself. The plaintiff's application was based on three affidavits. The
affidavits
were sought to be filed in Court. The defendants had only just
been served with copies of them within the hour. It was explained
to me by
counsel for the plaintiff that he had proposed to give me notice of the
application in chambers but this course was opposed.
In my view notice of the
application ought to have been given to me, and it was discourteous not to
have done so. It appears likely
that the media had been made aware of the
application. Present in court were a large number of journalists. The case
had attracted
some media attention when it had begun, but the media had not
been present for most of the hearing. After the affidavits had been
formally
filed, a short adjournment was granted to the defendants to enable them to
prepare for the application. When court resumed
some documents were tendered
by counsel for the second defendant, and I informed all parties about the
circumstances as known to
me, and the matter was further adjourned briefly to
enable counsel for the second defendant to seek further instructions. After
court resumed, I made a short announcement of some other matters I had
forgotten to mention earlier, and the matter was then stood
over until later
in the day to hear further submissions.
375. The affidavits raised the following matters. The affidavit of the
plaintiff complained of certain alleged conduct by my associate during the
course of the hearing in 1994. I will not repeat those
matters. The
allegations lacked precision as to time, or circumstances, and were expressed
in vague terms. None of the matters
complained of, even if true, were of the
slightest relevance to the plaintiff's application, or in any way founded the
slightest
ground upon which an inference might be drawn of a reasonable
apprehension of bias on my part. Further, counsel for the plaintiff
conceded
that these matters had been drawn to his attention by his client at the time,
that he had decided to do nothing about them,
and that any possible objection
based upon them had been waived. He nevertheless pressed them as part of the
"background" to his
application. One purpose of this material, was to show
that my associate had shown apparent partisanship to the first defendant
and
lack of sympathy to the plaintiff's case. No reasonable person would have
reached such a conclusion from this material, but
even if I am wrong about
that, there was nothing to connect me, as the trial judge, with these alleged
matters of complaint except
by an argument along the lines that because my
associate was my wife, whatever she did was a reflection of my views. I
rejected
this argument. I do not think any reasonable person would think such
a thing in this day and age.
376. Another purpose was to show
that these matters provided the basis for
the plaintiff's decision to instruct his solicitors to object to the second
defendant's
representatives attending the party. One of Mr Reeves'
submissions was that the second defendant's representatives ought not to
have
revealed that the plaintiff had objected to their coming to the party. I think
it would have been wiser had the second defendant's
representatives not given
this explanation for their non-attendance. However, some explanation was
probably felt necessary in view
of the circumstances of their earlier
acceptance of the invitation, and it is difficult to be critical if the
explanation offered
happens to be the truth. Further, the matter was not
advanced by the plaintiff explaining in his affidavit not only that he
objected
but why he objected. The reasons for the plaintiff's objection were
not relevant. There are not infrequently all sorts of reasons
why a party may
object to his advisers or the advisers of another party having social contact
with the trial judge at a gathering
such as this. I do not think that the
plaintiff's reasons ought to have been revealed. This affidavit was objected
to, in part,
by counsel for the second defendant. In my opinion the whole of
this affidavit was inadmissible.
377. The second affidavit referred
to the note and the champagne sent by the
second defendants' legal representatives and was unobjectionable. The third
affidavit
dealt with certain alleged conversations between my associate and a
junior solicitor in the employ of the plaintiff's solicitors
on the morning of
Friday 10 March. The first conversation allegedly took place in the foyer of
the Supreme Court building and concerned,
inter alia, the topic of the
plaintiff's solicitors not attending the party and my reaction to that, and a
request for access to
an exhibit. The second conversation related to locating
the exhibit and the arrangements for inspection. The third conversation
allegedly took place a little later in the foyer and is concerned with the
same topic, and a statement by my associate allegedly
to the effect that if
the litigant's (or their representatives) continue to behave as they had done
during the trial so far, I would
"come down on them like a ton of bricks."
This affidavit did not set out the conversations in full, but annexed notes of
the conversations
made by the deponent. The notes did not purport to be a
full account of the whole of the conversations, and lacked context. Notes
made of a conversation made may be referred to by a witness to refresh memory
in certain circumstances, but save in exceptional circumstances,
are not
admissible in evidence. The affidavit should have set out the alleged
conversations in full, using direct speech where possible.
The notes should
not have been annexed. The lack of detail as to the whole of the
conversations placed the court and the defendants
at an obvious disadvantage.
This affidavit ought not to have been admitted, but as no objection was taken
to it, I admitted it into
evidence and permitted it to be read.
378. I had been told by my associate on 10 March about her version of these
conversations
(which I considered to be innocuous) and which differed
materially from the notes contained in this affidavit. Consequently, when
this affidavit was read, the matters deposed to came as a surprise to me. I
informed counsel that what my associate had told me was
not anything like the
version contained in this affidavit, that I felt that I would not be able to
adjudicate a factual issue as
to which was the true version, and that, subject
to whatever submissions were made to me, I felt that there was no alternative
but
to determine the plaintiff's application on the assumption of the truth of
the assertions.
379. The defendants were given an opportunity
over the adjournments which
followed to consider this problem, and in the end chose to defend the
application without cross-examining
the deponent or calling my associate as a
witness. I may have, by those remarks, discouraged the defendants from cross
examining
the deponent or from calling my associate if that is what they had
hear minded to do. I now regret making those remarks. it would
have been
much better if I had not said anything at all. In hindsight, it would have
been better if my associate had been called.
I am in no doubt that counsel
for the second defendant was aware that he had the right to fully explore
those matters if he had
wanted to do so. No matter how embarrassing and
difficult the task, it would have been my duty to have resolved any questions
of
fact; moreover, given the court's interest in the result of the
application, if it had been necessary to do so, I think I may well
have had to
cross-examine the deponent myself and to have called my associate on my own
motion if the defendants had been unwilling
to do so, and there were no other
means to resolve the matter. Although I did not avert to this at the time, a
more satisfactory
solution to this dilemma may have been to have referred that
question to the Master pursuant to s26(1) of the Supreme Court Act and Rules
50.01 and 50.04 of the Supreme Court Rules. However, neither of those courses
were taken and I decided the plaintiff's
application on the basis that the
evidence before me was assumed to be true, although I made no finding that
that evidence was in
fact true.
380. After hearing submissions, I reserved my decision until the following
morning.
381. Immediately after reserving
my decision, counsel for the second
defendant applied for suppression orders in respect of the application until I
announced my decision
the following morning, on the basis that if I rejected
the application, the matters agitated before me might have a tendency to
influence
the jury in an inappropriate way. This application was supported by
the other parties. After hearing submissions I made the orders
sought, and
delivered short oral reasons.
382. The following morning I announced my decision concerning the plaintiff's
application
for disqualification. I dismissed the application, and said I
would publish reasons at a later date. I do so now.
383. It is not
necessary to refer to the numerous authorities on this topic.
As Dawson J said in Re Morling; ex parte Australasian Meat Industry
Employees
Union and Others (1985) 66 ALR 608, at 611:
"The test to be applied in considering a case such as this is now
clearly laid down. It is whether the parties or
the public might
entertain a reasonable apprehension that the judge might not bring an
impartial and unprejudiced mind to the
resolution of the matters before
him: see Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288;
47 ALR 45; R v Watson; Ex Parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; 9 ALR
551. If so, then the judge ought not to proceed to hear those matters.
Of course, as Gibbs CJ pointed out in R v Simpson ex parte
Morrison
[1984] HCA 25; (1984) 154 CLR 101 at 104; 52 ALJR 648, the mere expression of an
apprehension of bias does not establish that it is reasonably held;
that is a matter which must
be determined objectively."
384. As I have said already, none of the matters referred to in the
plaintiff's affidavit, if true,
could even remotely raise a reasonable
apprehension of bias on my part and had in any event been waived. As to the
matter concerning
the letter and bottle of champagne sent to my associate, it
was not suggested that the gift of the champagne raised a reasonable
apprehension of bias on my part. The gift was not made to me, but to my
associate to celebrate her admission. (Judicial ethics
would have required me
to request her to return the champagne (see Thomas Judicial Ethics in
Australia, pps 113-114) but the champagne
was in fact returned by my associate
on her own initiative and with my concurrence a few days later.) The
communication of the fact
that the plaintiff objected to the second
defendant's legal advisers attending the party, was not in the circumstances
improper,
even though it might reasonably be supposed, as was in fact the
case, that the second defendant's advisers' letter would come to
my attention.
Notwithstanding what was said in Reg v Magistrates' Court at Lilydale; ex
parte Ciccone [1973] VicRp 10; (1973) VR 122 at 127, not every communication by a party or his
legal advisers to a judicial officer, made in the absence of the other party,
results
in a reasonable apprehension of bias. It is not unusual for
communications to occur. Indeed in a small city the size of Darwin
it is
unavoidable unless the judges are expected to live hermetically, and this has
not been suggested. Usually if a communication
is connected somehow with a
case the judge is trying it is made to the judge via his associate, (as indeed
happened in this case,
when the plaintiff's legal advisers sought to inspect
the exhibits). Of course the judge may not entertain representations in
private
concerning the case itself, (see Re J.R.L.; ex parte C.J.L. [1986] HCA 39; (1986) 161
CLR 342), but this is not what occurred here, and the circumstances of the
letter and the gift were made known to the plaintiff's counsel
by me
immediately. No complaint was made that I personally spoke to the plaintiff's
counsel about that, although on reflection I
think it would have been wiser
had I asked my associate to deal with that matter. In the circumstances I did
not consider that a
party or a member of the public might entertain a
reasonable apprehension of bias on my part arising out of those circumstances.
385. The final matter is the question of what inferences would reasonably be
open based upon the alleged communications between
my associate and the
plaintiff's solicitor. The principle complaint was that the plaintiff or a
reasonable member of the public
might infer that I was threatening revenge
upon the plaintiff or his advisers for the stand taken in relation to the
objection raised
to the attendance of the parties' legal advisers to the
party. Of course, that was not in fact the case, but that is not the
question.
As I said in open Court, I was disappointed that the invitations to
the party had been declined, but not angry about that. But,
on reflection,
this was not a complete explanation. I was angered by the prospect that this
incident was likely to aggravate the
animosity that had existed between the
parties, and make my task more difficult; and I thought the manner in which
the non-acceptances
was brought to my attention ought to have been more
sensitively handled. In my view it would not have been open for a reasonable
person to draw from this that I was threatening revenge, i.e. that I would
allow my allegedly outraged personal feelings to colour
my judgment and decide
issues against the plaintiff with that purpose in mind. I thought that the
worst possible construction which
could be put on the alleged conversations,
assuming that they can be attributed to me, was that I was "angry" or
"furious" with the
plaintiff's solicitors because they apparently took it upon
themselves to raise an objection to attending the party after one at
least had
initially accepted the invitation, that I considered this behaviour
objectionable, and that if there were any further instances
of objectionable
behaviour by any of the litigants or their advisers in the future, I would
take firm action. This implies that
I had formed an opinion, adverse to the
plaintiff's legal advisers, about their conduct, but not that I was proposing
to do anything
about it, except to take firm action in respect of any future
misbehaviour by any party, be it the plaintiff or either of the defendants,
or
their respective advisers.
386. Counsel for the second defendant referred me to Kaycliff Pty Ltd v
Australian Broadcasting Tribunal
(1989) 90 ALR 310 a decision of the Full
Federal Court. In that case the complaint was that the chairman of the
Tribunal criticized one of the parties
during the course of the enquiry and
before final submissions. The Court decided the case on the basis that the
chairman, in a provisional
way, implied a view adverse to that party's
interests, and which, if adhered to, might contribute to a rejection of the
application
before it by that party. The Court, Lockhart, Pincus and Gummow
JJ, having reviewed a number of the leading authorities said, at
p317:
" ... we decide this case on the basis that the weight of authority
supports the conclusion that parties such as the
appellants must raise
quite a substantial case in order to succeed; only in unusual cases
will an expression of opinion about
an issue, given before the end of
the hearing, be held to disqualify".
387. The behaviour of the plaintiff or his advisers was
not in issue in this
case, but nevertheless, to the extent that the situation is analogous, the
mere expression of a pre-conceived
view does not necessarily give rise to a
reasonable apprehension of bias. As was said in R v Australian Stevedoring
Industry Board:
Ex Parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100
at 116, per Dixon CJ, Williams, Webb and Fullagar JJ:
"But when bias of this kind is in question, as distinguished from a
bias
through interest, before it amounts to a disqualification it is
necessary that there should be strong grounds for supposing that
the
judicial or quasi-judicial officer has so acted that he cannot be
expected fairly to discharge his duties. Bias must be
"real". The
officer must so have conducted himself that a high degree of
probability arises of a bias inconsistent with the
fair performance of
his duties, with the result that a substantial distrust of the result
must exist in the minds of reasonable
persons. It has been said that
'preconceived opinions - though it is unfortunate that a judge should
have any - do not constitute
such a bias, nor even expressions of such
opinions, for it does not follow that the evidence will be disregarded'
..."
388.
This was a jury trial. Analogously, it did not follow, that even if I
had formed an unfavourable and preconceived view of the plaintiff's
behaviour
or the plaintiff's legal advisers' behaviour, that I would decide any issue
which remained for me to decide adversely to
the plaintiff, nor that I would
have failed in my duty to properly put the plaintiff's case to the jury.
Consequently I rejected
the plaintiff's application.
389. On 14 March 1995, after I had given my ruling, the first defendant
applied for the suppression
order to be continued until the completion of the
trial. Neither counsel for the plaintiff, nor the second defendant opposed
the
application. I made an order continuing the suppression orders until
after the jury's verdict had been announced. I then proceeded
to deal with
other matters in the absence of the jury until the morning of 16 March 1995
when an urgent application by Nationwide
News Pty Ltd was made by summons in
the action to set aside the suppression orders made on 14 March, and pending
the hearing of that
application, for an order for access to the relevant
evidence, affidavits, orders, transcript and exhibits relating to the
plaintiff's
application for me to disqualify myself. I made an order granting
Nationwide News Pty Ltd access to the material on terms, and listed
the
hearing of the summons for 5pm that day. Shortly thereafter addresses to the
jury were made by the parties on certain of the
issues to be decided by the
jury, and I began my summing up to the jury on those issues, but had not
completed this when I began
hearing Nationwide News' application at 5pm.
After hearing the applicant's submissions, I adjourned the application at the
request
of the defendants until the next available time, 11am on Saturday 18
March. Unfortunately I was not able, for personal reasons,
to sit again at
that time, and the applications were adjourned to a date to be fixed.
390. Nothing further was heard from Nationwide
News for some days, and the
hearing of the application was not resumed until late on Friday evening, 24
March 1995. The application
was not concluded that evening and was again
adjourned. In the meantime the trial had proceeded and by 4.30pm on Tuesday
28 March
1995, I was in the middle of my final summing up to the jury. At
4.45pm I resumed hearing Nationwide News' application. At the
conclusion of
those submissions I reserved briefly before announcing my decision to refuse
the application. I said then I would
publish my reasons at a later time. I
now do so.
391. This court has both statutory and inherent powers to prohibit or
restrain
the publication of material placed before it. Section 57 of the
Evidence Act empowers the court, inter alia, to prohibit the publication
of
the name of a party, intended party, witness, or intended witness to a
proceeding where it appears to the court that, for the
furtherance of, or
otherwise in the interests of, the administration of justice, it is desirable
to prohibit that publication. Section
58 empowers the court, where in the
course of any proceeding, witnesses are ordered out of court, and it appears
to the court that,
for the furtherance or otherwise in the interests of the
administration of justice, it is desirable to prohibit for any period the
publication of any evidence given or used in the proceeding, to forbid, for
such period as it thinks fit, the publication of the
evidence or any specified
part thereof. In addition, although not relevant to this case, s21A(2)(d)
empowers the court to be closed
whilst evidence is being given by a vulnerable
witness. The ordinary rule is that all proceedings are to be held in open
court,
although s17 of the Supreme Court Act grants the court an unfettered
discretion to exclude the public or persons specified by the Court from a
sitting or part of a sitting.
It should be noted that at all times the
proceedings before me concerning the plaintiff's disqualification application
were heard
in open court, but in the absence of the jury. Present in court at
the time of the original orders were representatives of the media,
including
the applicant.
392. Before discussing this matter further, it is necessary to recall the
precise orders made on 13 March
1995 and continued by me on 14 March 1995
until the jury's verdicts became known. These were expressed by me as
follows:
"I think
in the circumstances that the proper order that I should make
is that I suppress publication of any evidence given in these