119 Gleeson CJ and Crennan J said (footnotes omitted):
"[16] In his widely quoted judgment in Bonnard v Perryman , in which Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurred, Lord Coleridge CJ explained why 'the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong' and why, when there is a plea of justification, it is generally wiser, in all but exceptional cases, to abstain from interference until the trial and determination of the plea of justification. First, there is the public interest in the right of free speech. Second, until the defence of justification is resolved, it is not known whether publication of the matter would invade a legal right of the plaintiff. Third, a defence of justification is ordinarily a matter for decision by a jury, not by a judge sitting alone as in an application for an injunction. Fourth, the general character of the plaintiff may be an important matter in the outcome of a trial; it may produce an award of only nominal damages.
[17] In one respect, what Lord Coleridge CJ said, in its application to this case, requires qualification. His Lordship was dealing with a context in which truth of itself amounted to justification. Here, in the state of the law at the time of the proceedings before Crawford J and the Full Court, the appellant needed the added element of public benefit. Subject to that significant matter, what his Lordship said is directly in point. The general public interest in free speech is involved. The trial judge was prepared to accept that there was a strong possibility that the imputations could be shown to be true. The defence of justification remains unresolved. The respondent's general character, or if the difference be material, reputation, is such that, even if he succeeded at trial, the damages awarded for the publication the subject of the interlocutory application could well be nominal.
[18] Lord Coleridge CJ's conclusion was that 'it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial'. That form of expression does not deny the existence of a discretion. Inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience. Formulations of principle which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked. Nevertheless, so long as that misunderstanding is avoided, there are to be found, in many Australian decisions, useful reminders of the principles which guide the exercise of discretion in this area. One of the best known statements of principle is that of Walsh J, before he became a member of this Court, in Stocker v McElhinney (No 2). After referring to the 5th edition of Gatley on Libel and Slander, and citing Bonnard v Perryman, he said:
'(1) Although it was one time suggested that there was no power in the court, under provisions similar to those contained in [the Act governing procedure in the Supreme Court of New South Wales] to grant an interlocutory injunction, in cases of defamation, it is settled that the power exists in such cases.
(2) In such cases, the power is exercised with great caution, and only in very clear cases.
(3) If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused. Indeed, it is only where on this point, the position is so clear that, in the judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.
(4) If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff if successful, will recover nominal damages only, the injunction will be refused.'
[19] The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd , and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded." (emphasis added)
120 Their Honours then considered the defence of truth available under s 15 of the Defamation Act 1957 (Tas) under which it was lawful to publish defamatory matter first, if the matter was true and secondly, if it was for the public benefit that the publication should be made and said:
"[21] These were both questions of fact (s 20). However, para (b) called for a value judgment as to whether the public would benefit from the publication in issue - here the publication of the documentary.
[22] In London Artists Ltd v Littler, Lord Denning MR said: 'Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.' The contexts of fair comment, and qualified privilege, are somewhat different from the context of justification. However, it may be noted that, in Bellino v Australian Broadcasting Corporation, where this Court was concerned with a Queensland statutory defence of publication in good faith in the course of the discussion of some subject of public interest, the public discussion of which is for the public benefit, Dawson, McHugh and Gummow JJ said that "[i]n the great majority of cases, the public discussion of a subject of public interest must be for the public benefit". There are some obvious exceptions, such as public discussion that might imperil national security.
[23] The requirement of public benefit, as an element of the defence of justification in a number of Australian jurisdictions, had a long history. [Their Honours then set out an extract from Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 at 21-22 in which Street A-CJ sought to explain that the defence of justification in New South Wales required proof of public benefit whereas that was not a requirement of that defence in England because NSW legislators thought it inappropriate that people leading respectable lives should be allowed to live untrammelled by past indiscretions unless publication was for the public benefit].
[24] The matter in question in this case goes far beyond the reporting of the past indiscretions of a person of otherwise good reputation, whose privacy ought to be respected . The unsolved mystery of the disappearance of the Beaumont children, the presence within the Tasmanian prison system of a convicted murderer who is suspected of responsibility, the respondent's confession to another murder with which he has never been charged, and the political controversies concerning release on licence or parole of serious offenders are all matters of public interest in the relevant sense. It would have been open to a tribunal of fact to find that the public discussion of those matters, with particular reference to the respondent, is for the public benefit. What might be thought to stand in need of explanation is how suppression of public discussion of those matters could serve the public interest.
[30] It is difficult to resist the conclusion that, in their natural and proper concern for fairness to the respondent, the judges who decided the case in his favour have fallen into the error of treating the criminal trial process as the only proper context in which matters of the kind presently in question may be ventilated. More fundamentally, however, it is apparent that they failed to take proper account of the public interest in free communication of information and opinion, which is basic to the caution with which courts have approached the topic of prior restraint of allegedly defamatory matter.
[31] The public interest in free speech goes beyond the public benefit that may be associated with a particular communication. The failure to recognise this was an error of principle on the part of the judges who found in favour of the respondent. As Auld LJ pointed out in Holley v Smyth, Blackstone, in his Commentaries, as long ago as 1769 distinguished between prior restraint of publication and subsequent legal consequences: 'The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity' (emphasis in original). What lay behind Blackstone's remarks was the conclusion in the late 17th century of the controversy between Parliament and the Crown over free speech and freedom of the press. From Tudor times, the House of Commons appreciated that its role in public life would be seriously curtailed without such freedoms. This explains the House's repeated assertions, over the century, of a 'liberty' to 'speak freely their consciences without check or controlment'. This liberty found its way into The Bill of Rights, 1689. The 'check or controlment' complained about came from the Crown or its councillors. A freedom to speak on behalf of the commons became a freedom, as Blackstone notes of '[e]very freeman'. Hand in hand with these developments went the dismantling of the Crown's control, or censorship, of the press, first asserted generally by Ordinance in 1534, and requiring all manuscripts to be scrutinised and licensed by the Stationers' Company. Decrees in Star Chamber reinforced that control or censorship in respect of both printers and books. As explained in the joint reasons of Gummow and Hayne JJ, the dismantling of the licensing system was effectively completed by 1695. The public interest in free speech is explained not least by reference to the fact that freedom of speech and freedom of the press were important aspects of the constitutional struggles which came to rest with the Act of Settlement of 1701. Subsequently, courts of equity were not willing to enjoin publication of defamatory matter, not only because that would usurp the authority of juries, but also because they were most reluctant to be asked 'to exercise the powers of a censor'. This latter consideration remains important in our democracy.
[32] It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual's interest in his or her reputation. When, however, a court is asked to intervene in advance of publication wider considerations are involved. This is the main reason for the 'exceptional caution' [Bonnard v Perryman] with which the power to grant an interlocutory injunction in a case of defamation is approached…". (emphasis added)
121 Gummow and Hayne JJ (at [79] ff) also emphasised the competing rights of the plaintiff to protect his or her reputation and freedom of the press and the caution against equitable intervention to impose a prior restrain on publication, commenting, too that:
"[87] The stance taken by the courts against prior restraint was not adopted in innocence of the malign influence, on occasion, which may be exerted by media of mass communication. Indeed, in R v Shipley , Lord Mansfield, after speaking of the liberty to print without previous licence, continued:
'The licentiousness of the press is Pandora's Box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.'
As in other fields, the policy of the law struck here represents a particular balance between competing interests. With respect to tortious liability to be determined at trial, that balance for this case is struck by statute, the 1957 Act . With respect to interlocutory restraint by injunction, attention must be paid to the case law as analysed in these reasons." (footnotes omitted, emphasis added)
122 The question whether the press should be restrained from publishing allegedly defamatory material will readily bring into stark relief the issue of freedom of the press. Any analogy between the equitable jurisdiction to grant interlocutory injunctions and the power the Court exercises to strike out a pleading pursuant to UCPR 14.28 is necessarily imperfect. However, in my view, the reasoning in O'Neill has force in the context of an application to strike out a defence which, if granted, means the question whether the publisher invaded the plaintiff's legal right (O'Neill at [16]) will never be determined by the tribunal of fact.