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[1997] HCA 28
High Court of Australia
1997-07-31
Brennan CJ, Kirby JJ, Gaudron JJ, Heerey J, Ryan JJ
Original judgment source is linked above.
High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ Mann v O'Neill (FC 97/026) [1997] HCA 28
31 July 1997 Brennan CJ, Dawson, Toohey and Gaudron JJ.
The respondent, Mr O'Neill, was a special magistrate who sat in the Small Claims Court of the Australian Capital Territory. Dr Mann, the appellant, is a medical practitioner. He was the defendant in two actions in the Small Claims Court which came on for hearing before Mr O'Neill.
The first matter to come before Mr O'Neill was Foley v Mann . It came by way of an application by Dr Mann to have the claim struck out. The application was dismissed. A subsequent application by Dr Mann to have the matter transferred to the Magistrates Court was also dismissed. The second matter, Purdon & Associates Pty Ltd v Mann , resulted in judgment against Dr Mann.
Shortly after judgment was entered against him in Purdon & Associates Pty Ltd v Mann , Dr Mann wrote to the Attorney-General of the Commonwealth as the Minister responsible for the administration of justice in the Australian Capital Territory [1] . In that letter, he questioned Mr O'Neill's mental capacity to discharge his duties of office and expressed the opinion that he "should be suspended from duties whilst he is examined for fitness to sit as a Magistrate". Further, he requested the Attorney-General to "order the matter of [Purdon & Associates Pty Ltd v Mann] to be reheard if that is at all possible". Dr Mann sent a copy of the letter to the Chief Magistrate of the Australian Capital Territory, apparently at the latter's request.
It seems that Dr Mann's letter to the Attorney-General elicited a reply from the Minister for Justice. In any event, in a reply to a letter received from the Minister, Dr Mann again questioned Mr O'Neill's fitness to hold office and stated that he was awaiting "a reply to [his] question concerning Mr O'Neill's mental capacity to conduct cases as a Magistrate".
Mr O'Neill was appointed a special magistrate pursuant to the Magistrates Court Ordinance 1930 (the Ordinance) [2] . By s 10J of the Ordinance, as it stood at the time of Dr Mann's letters, Mr O'Neill held office as a special magistrate "during the pleasure of the Governor-General". No procedures were specified in the Ordinance for the removal or suspension of a special magistrate. However, procedures were specified in s 10D with respect to other magistrates. In general terms, other magistrates could only be removed from office for proved misbehaviour or incapacity on an address by both Houses of Parliament.
Dr Mann's letter to the Attorney-General came to the notice of Mr O'Neill and he commenced proceedings for defamation in the Supreme Court of the Australian Capital Territory. The proceedings were later transferred to the Federal Court of Australia pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 Cth.
Initially, Mr O'Neill sought damages only with respect to Dr Mann's letter to the Attorney-General, complaining of its publication to the Attorney-General and to the Chief Magistrate. He was later granted leave to amend his statement of claim to claim in respect of Dr Mann's letter to the Minister for Justice. In his defence to the amended statement of claim, Dr Mann pleaded, amongst other defences, that "the matter complained of was published on an occasion of absolute privilege". The plea has been treated as a plea to all three defamatory publications in issue in this case, namely, the letter to the Attorney-General, the copy letter forwarded to the Chief Magistrate and the later letter sent to the Minister for Justice.
A motion to strike out Dr Mann's plea of absolute privilege was heard by Heerey J. His Honour made no distinction between the publication to the Attorney-General and those to the Chief Magistrate and the Minister for Justice, holding that the plea was a complete answer to all three. Accordingly, he dismissed the motion and proceeded to enter judgment in the action for Dr Mann. Mr O'Neill then appealed to the Full Court of the Federal Court. By majority (Beaumont and Ryan JJ, Carr J dissenting), the orders of Heerey J were set aside and the plea of absolute privilege struck out. Dr Mann now appeals to this Court, seeking restoration of the orders made at first instance.
Two arguments were advanced in this Court in support of the plea of absolute privilege. First, it was said that the letters forwarded by Dr Mann to the Attorney-General, the Chief Magistrate and the Minister for Justice are properly to be regarded as a step in the proceedings in Purdon & Associates Pty Ltd v Mann . In this regard, counsel pointed to the request that the Attorney-General order a rehearing and argued that, on that account, the letters should be treated as analogous to a notice of appeal. The second argument proceeded on the basis that the letters were "the necessary first steps for the institution of proceedings for the removal of [Mr O'Neill]". It was put that such proceedings were or would have been quasi-judicial.
The arguments on behalf of Dr Mann seek to bring the publications in question within established categories of absolute privilege, namely, statements made in the course of judicial and quasi-judicial proceedings. The arguments also invoked public policy considerations, apparently in recognition of the novelty involved in classifying the communications in question as steps in judicial or quasi-judicial proceedings.
Quite apart from the novelty of the arguments advanced on behalf of Dr Mann, it is difficult to relate them to the copy letter forwarded to the Chief Magistrate or to the letter sent to the Minister for Justice. No request was made of either to take action with respect to the proceedings in Purdon & Associates Pty Ltd v Mann . And neither communication was directed to having the recipient take any step to bring about Mr O'Neill's removal from office. However, proceedings were apparently conducted in the Federal Court on the basis that those communications enjoy whatever privilege attaches to the letter to the Attorney-General and it is convenient to consider the appeal on the same basis.
It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties [3] , witnesses [4] , legal representatives [5] , members of the jury [6] or by the judge [7] . It extends to oral statements and to statements in originating process [8] , in pleadings [9] or in other documents produced in evidence [10] or filed in the proceedings [11] . It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]" [12] .
It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act "in a manner similar to that in which a Court of justice acts" [13] . Various considerations are relevant to the question whether proceedings are quasi-judicial [14] . However, the overriding consideration is "whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern" [15] . The privilege extends to members of tribunals [16] and to "advocates, litigants, and witnesses" [17] . And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.
It is sometimes said that absolute privilege is founded on public policy considerations [18] . It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience [19] . However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell, it being said in that case that absolute privilege attaches because it is "indispensable to the effective performance of official functions." [20]
Whatever the position with respect to communications between officers of State, absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from "inherent necessity" [21] . And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process [22] . It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings [23] . Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the "safe administration of justice" [24] .
It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is "viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated" [25] . Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged. And it is that consideration that leads to the rejection of the argument that absolute privilege attaches to the letter to the Attorney-General because it is analogous to a notice of appeal.
Neither in substance nor in form does the letter to the Attorney-General display the features of a notice of appeal. In particular, it is not addressed to a court, much less a court exercising appellate jurisdiction with respect to the decisions of the Small Claims Court. And it does not seek to initiate an appeal. Moreover, it is impossible to treat it as in any way analogous to a notice of appeal for the simple reason that the Attorney-General has no power to order the rehearing of a matter which has been judicially determined. Further, the course invited by Dr Mann is wholly outside and foreign to the judicial process. Of greater significance, however, is the consideration that there is no basis on which it can be said that it is necessary to extend absolute privilege to a communication which invites the Attorney-General to exercise a power which he does not possess.
So far as absolute privilege is claimed on the basis that Dr Mann's letters were "necessary first steps for the institution of proceedings for the removal of [Mr O'Neill]", there are cases which support the view that disciplinary proceedings or, more accurately, the proceedings of some disciplinary tribunals are quasi-judicial. Thus, for example, it was held in Addis v Crocker [26] that absolute privilege attached to proceedings of the disciplinary committee of the Law Society of England and Wales. More recently, it was accepted in Hercules v Phease that proceedings of the disciplinary committee of the Law Institute of Victoria are absolutely privileged [27] . So, too, it was accepted in Lincoln v Daniels [28] that disciplinary inquiries by the Benchers of the Inns of Court are absolutely privileged, notwithstanding that they are not authorised by statute [29] and that their procedures differ in material respects from those of a court [30] .
Lincoln v Daniels is significant in another respect. It was held in that case that privilege did not attach to a letter of complaint forwarded to the Bar Council, for the letter did not initiate proceedings before the Benchers. Indeed, it was pointed out by Danckwerts LJ that the Bar Council and the Benchers of the Inns of Court were distinct bodies [31] , the Bar Council being "no more than an investigating body, without any judicial or quasi-judicial functions or any disciplinary powers" [32] . However, the Bar Council functioned "as a clearing house for complaints against members of the Bar" [33] , and, apparently for that reason, Devlin LJ expressed the view that "as a practical matter, it would be much more convenient if the same degree of privilege were extended to the investigatory proceedings of the Bar Council as to those of the [Benchers]" [34] . This notwithstanding, necessity did not require that course and, thus, it was held that absolute privilege did not attach to the complaint in question.
Many professions now have complaint procedures to ensure observance of professional standards, with complaints leading to or, at least, having the potential to lead to disciplinary proceedings. Often, the procedures provide for the complaint to be referred for investigation and allow the person or body charged with investigation to determine whether or not disciplinary proceedings will result. Assuming for present purposes that such proceedings are quasi-judicial, two questions arise. The first is whether a particular communication is a complaint for the purpose of those proceedings, a question which arose in Teletax Consultants Ltd v Williams [35] . The second is whether, given that disciplinary proceedings will not automatically follow, the complaint is a step in those proceedings. That was the question in Hercules v Phease [36] .
Where, as in Hercules v Phease , the complaint is part of an established procedure which must be set in motion if it is to result in disciplinary proceedings, the complaint is properly regarded as a step in those proceedings even if disciplinary proceedings will not necessarily eventuate. In that situation, the complaint is "incidental [to the proceedings], and necessary for [them]" [37] . Accordingly, it is properly to be regarded as a necessary first step. But that is not the situation in this case.
The Ordinance made no provision for any procedure to be followed by the Governor-General for the removal from office of a special magistrate. It may be taken that the Governor-General was obliged to act on the advice of the Executive Council [38] and to ensure procedural fairness [39] . However, that does not alter the fact that no procedures were specified by the Ordinance. More precisely, the Ordinance made no provision for anything which is properly identified as a proceeding, much less a proceeding of a quasi-judicial tribunal. And there is nothing to suggest that, as a matter of practice, there is any established procedure for dealing with complaints of the kind made by Dr Mann. Certainly, there is nothing to suggest that there is a procedure involving quasi-judicial proceedings. That being so, it is not possible to view Dr Mann's letter to the Attorney-General as the first step in proceedings which attract absolute privilege.
It may be that, so far as concerned the office of a special magistrate when Dr Mann's letters were written, the Attorney-General's role was not merely administrative and investigative. However, there is nothing to suggest that he was exercising anything other than an administrative role in receiving Dr Mann's letter. And the function which Dr Mann's letter invoked was essentially an investigative function. For the purpose of the law of defamation, the position of the Attorney-General in relation to a special magistrate, at least in regard to complaints of the kind involved in this case, is properly equated with that of a prosecuting authority charged with investigating and taking such action as is considered appropriate. Complaints to prosecuting authorities - "statements in aid of justice", as they are sometimes called [40] - enjoy qualified privilege [41] .
It is not necessary that statements to prosecuting authorities be absolutely privileged. The function of an authority charged with investigation and prosecution, whether in the courts or elsewhere, is not to ascertain the truth and justice of the matter in a final or binding way, but to decide whether the circumstances warrant the institution of proceedings to ascertain the truth of the matter. Absolute privilege is not required for the effective discharge of that function. Nor is it required for complaints inviting investigation of a special magistrate's ability to discharge his duties of office.
The question in this appeal is whether the appellant can successfully rely on a defence of absolute privilege to a defamation action brought against him by the respondent, a former Special Magistrate, in circumstances where the appellant is a former litigant before the respondent and the allegedly defamatory statements relate to the respondent's conduct in office.
In my view, the appeal should be allowed and judgment entered for the appellant. The defence of absolute privilege is available to the appellant because the statements arose out of the alleged conduct of the respondent while hearing proceedings in which the appellant was a party and they were made to the appropriate authorities for the purpose of investigating the fitness of the respondent for judicial office. Two reasons lead me to this conclusion.
The first is that in Troughton v McIntosh [42] the Full Court of the Supreme Court of New South Wales held that a judicial officer could not bring an action in defamation against a former party in his court for remarks made after the proceedings had terminated. The Full Court held that attacks on the curial conduct of judicial officers or on their capacity to determine judicial proceedings are attacks on the courts over which they preside. If an attack is unjustified, the remedy is a prosecution for contempt, not a private action for defamation. Stephen J said that [43] :
For a Judge to descend from his judgment seat to the floor of the Court as a suitor against the man with whom he dealt or could have dealt judicially, seems to be a denial of the majesty of the law, a forgetfulness of his high representative character, an abasement of the dignity of his Court and his prestige as a Judge. 1. (1896) 17 NSWR(L) 334. 2. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 340.
The second reason is that it is of fundamental importance to the proper administration of justice that a person who believes that he or she has a justifiable complaint about the conduct or capacity of a judicial officer should not be deterred from making that complaint by a fear that the judicial officer may bring a defamation action against the complainant.
A former litigant complains in writing about the competency of a judicial officer
At all relevant times, the respondent (Mr O'Neill) was a Special Magistrate of the Australian Capital Territory (ACT). He has since retired from that position. The appellant (Dr Mann) is a medical doctor. In 1988, he was a defendant in two cases which came before Mr O'Neill.
In the first case, Dr Mann was sued by a former patient. The patient claimed that he suffered injury as a result of Dr Mann negligently carrying out a minor operation. Dr Mann applied to have the patient's claim struck out. Mr O'Neill heard and refused the application. Subsequently, Dr Mann successfully defended the claim. In the second case, Dr Mann was sued by Purdon & Associates Pty Ltd (Purdon) in respect of an unpaid invoice of $2,000 for preparing sketches for a possible subdivision of a property. Mr O'Neill heard the matter and gave judgment for Purdon for the full amount claimed.
Following the hearing of these two cases, Dr Mann wrote and sent two letters, which are the focus of Mr O'Neill's concern. Both letters reflected on Mr O'Neill's competency as a Special Magistrate. Dr Mann expressed dissatisfaction with Mr O'Neill's handling of the two cases in which Dr Mann had been a defendant. He claimed among other things that Mr O'Neill suffered from early forms of senile dementia and should immediately be suspended from office. Dr Mann said that Mr O'Neill was "incapable of conducting a Court in a proper and rational manner".
The first letter was sent on 20 October 1988 to the then Commonwealth Attorney-General, Mr Lionel Bowen. The second letter was sent on 3 January 1989 to the then Commonwealth Minister for Justice, Senator Michael Tate. These two Ministers were responsible for the administration of justice in the ACT at the relevant time prior to the grant of self-government.
Dr Mann's letter to the Attorney-General set out the nature and history of the two cases before Mr O'Neill. The letter concluded:
I was astounded at Mr O'Neill's conduct during both of these cases and by his inability to comprehend simple propositions put before him and his irritability (which has been remarked upon by others) which was very noticeable.
As a medical practitioner it struck me that perhaps arteriosclerotic cerebral disease was what was at the bottom of the problem. (I have also taken into account that my disappointment might have influenced my judgment of him).
I therefore made enquiries of legal practitioners with a view to ascertaining whether my judgment was in fact biased. I am satisfied after my enquiries that not only is it my view that the features of early senile dementia are present in Mr O'Neill's conduct to the extent that he is incapable of conducting a Court in a proper and rational manner but that this is also a view held by a number of senior practitioners of law.
I am a medical practitioner of 35 years standing. It is my medical opinion that Mr O'Neill should be suspended from duties whilst he is examined for fitness to sit as a Magistrate. It would be important in this regard to review the transcript of a range of cases not merely my own and to ascertain the views of legal practitioners who appear before him.
I would also respectfully request that you order the matter of Purdon and Associates -v- Arnold Mann to be reheard if that is at all possible.
I have spoken about this to the Chief Magistrate, Mr Cahill and he has requested a copy of my letter to you.
In his letter to the Minister for Justice, Dr Mann wrote:
In my letter of complaint to the Attorney General I stated, as a medical practitioner of 35 years standing, that I suspected a member of the Magistrates Court was suffering from early signs of senile dementia.
I should have thought that this letter required from you one of the following responses:
I was astounded to learn that your letter made no reference whatsoever to Mr O'Neill's mental capacity to hear cases when his incapacity is the talk of the legal profession in the ACT. I cannot believe that justice can be seen to be done in such circumstances.
Surely it is a matter of grave concern that you are unable to vouch for Mr O'Neill's mental capacity.
I await a reply to my question concerning Mr O'Neill's mental capacity to conduct cases as a Magistrate.
There is no suggestion that the respective Ministers took any adverse action against Mr O'Neill as a result of the letters received from Dr Mann.
Division 2 of Pt II of the Magistrates Court Ordinance 1930 contained the statutory provisions regarding the appointment, tenure, resignation and conditions of appointment of Special Magistrates:
10h. For the purposes of this Ordinance, the Governor-General may appoint such special magistrates as are required.
10j. A special magistrate holds office during the pleasure of the Governor-General.
10k. A special magistrate may resign his office by writing signed by him and delivered to the Governor-General.
10l. Subject to the Remuneration Tribunals Act 1973 and to section 10J, a special magistrate holds office upon such terms and conditions, whether as to remuneration or otherwise, as the Governor-General, from time to time, determines.
In his defence to an amended statement of claim, Dr Mann denies that the matters complained of are defamatory and further relies on alternative defences of absolute and qualified privilege.
By consent, the plea of absolute privilege was tried separately under O 29 of the Federal Court Rules. If the plea of absolute privilege fails, Mr O'Neill concedes that, subject to the question of malice, a defence of qualified privilege is available.
At first instance, Heerey J held that the defence of absolute privilege was established and that judgment should be entered for Dr Mann [44] . His Honour held that the letters to the Law Ministers were initiating documents for a non-curial investigation. The tribunal conducting such an investigation would be bound to accord natural justice to Mr O'Neill. In all likelihood, that investigation would involve a substantial oral hearing in which expert evidence could be admitted and submissions made. His Honour held that such a tribunal would be one "recognised by law" within the meaning of the authorities on absolute privilege [45] . Absolute privilege would attach to statements made at a hearing of the tribunal or to documents initiating proceedings in the tribunal. Absolute privilege was therefore a good defence to Mr O'Neill's action for defamation.
The judgment of the Full Court of the Federal Court
By majority (Beaumont and Ryan JJ, Carr J dissenting), the Full Court of the Federal Court allowed an appeal from the decision of Heerey J [46] . Beaumont and Ryan JJ held that absolute privilege does not attach to a communication merely because the relevant decision-maker, on receiving Dr Mann's complaint, would be bound to accord Mr O'Neill natural justice before making any decision adverse to him.
In dissent, Carr J held that "broader policy reasons" support the existence of a privilege for complaints about the competency of judicial officers or solicitors made to an appropriate person, who can initiate an investigation of the complaint. Additionally, Carr J agreed with Heerey J's narrower analysis that the relevant decision-maker would be a tribunal "recognised by law" and that Dr Mann's letters could be viewed as initiating documents equivalent to a statement of claim or other pleading.
The arguments supporting a defence of absolute privilege
Mr Castan QC, who appears for Dr Mann in this Court, effectively advances three separate arguments in support of a defence of absolute privilege in the present case. First, he contends that Dr Mann's sending of the letters of complaint was a further step in the relevant litigation in which Dr Mann appeared before Mr O'Neill, equivalent to a notice of appeal in respect of which absolute privilege attaches. Second, Mr Castan contends that both Heerey J at first instance and Carr J on appeal correctly characterised the letters as initiating documents for a quasi-judicial process which attracts absolute privilege. Third, Mr Castan relies on the broad policy considerations identified by Carr J in the Full Court to support the claim of absolute privilege.
The doctrinal basis for the defence of absolute privilege
Textbook writers and judges commonly define or describe the defence of absolute privilege by reference to recognised categories of cases in which the defence has been held to exist. Thus, Tobin and Sexton in their work on defamation cite three broad common law categories [47] :
(a) statements made in the course of judicial or quasi-judicial proceedings;
(b) statements made in the course of parliamentary proceedings; and
These categorisations are useful provided that two dangers are borne in mind. The first is the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence. The second is the temptation too readily to dismiss the defence as applicable in novel circumstances because the case is not within or analogous to an existing category but without determining the matter by reference to the defence's underlying rationale [48] .
The defence of absolute privilege is available, in limited circumstances, in respect of communications made for the purpose or in the course of judicial, executive and parliamentary proceedings. It is available when its absence would hamper "the efficient functioning of our governmental institutions: legislative, executive and judicial" [49] . A person seeking to rely upon the defence has the onus of proving that it applies to the circumstances of the case. Furthermore, that person must demonstrate that its application is necessary in such cases if the relevant governmental institution is to work effectively. As Gavan Duffy CJ, Rich and Dixon JJ stated in Gibbons v Duffell [50] :
The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [51] ). Its application should end where its necessity ceases to be evident. 1. Fleming, The Law of Torts, 8th ed (1992), p 558. 2. (1932) 47 CLR 520 at 528. 3. [1892] 1 QB 431.
In Gibbons, this Court rejected the availability of the defence for a report made in the course of duty by a police inspector to his superior officer and which contained defamatory statements about the plaintiff.
In the few cases where the common law permits the defence in respect of communications made in the course of judicial or quasi-judicial proceedings, it is because the policy of the law requires the court to look beyond the immediate motives and interests of the parties to the wider interests of the proper functioning of the administration of justice. Thus, the evidence of witnesses in courts of justice is absolutely privileged although no doubt some witnesses give false evidence and may sometimes do so maliciously. But absolute privilege exists because the courts presume that it will encourage a greater number of witnesses to speak in a freer and more informative manner - which clearly serves the interests of justice - than would be the case if they had only the protection of qualified privilege [52] . As Pearce LJ stated in Addis v Crocker [53] :
absolute privilege is given to proceedings in courts of law in order that judges, advocates and witnesses may perform their respective parts free from a deterrent fear of actions for defamation. This privilege can create hardship for some persons in particular cases, but it is on balance an advantage to the community. 1. Ronald v Harper [1913] VLR 311 at 322-323. 2. [1961] 1 QB 11 at 28.
In the courts of justice and quasi-judicial tribunals, absolute privilege protects defamatory statements contained in initiating documents (which can include letters of complaint [54] ), pleadings and notices of appeal [55] . Mr Castan contends that, by sending the letters of complaint, Dr Mann was taking a further step in the relevant litigation. When Dr Mann sent the letters, however, he was no longer a party to the litigation. His status was that of a former party.
In addition, by sending the letters Dr Mann was not following any recognised procedure relating to his litigation. His actions could not open up any avenue of appeal or provide for a rehearing of the matter. Accordingly, this ground of appeal fails.
Mr Castan contends that the letters of complaint were initiating documents for a quasi-judicial tribunal "recognised by law" [56] for the purpose of absolute privilege. Both Heerey J at first instance and Carr J on appeal upheld this contention which seeks to equate Dr Mann's letters to statements made in the course of judicial or quasi-judicial proceedings. It raises two issues.
First, was the putative tribunal one that would be "recognised by law" so that absolute privilege protects communications made for the purpose or in the course of its proceedings; and second, were Dr Mann's letters of complaint properly viewed as an initiating document for such a tribunal? It will be convenient first to deal with the second issue.
In my view, if the putative investigative body would be a quasi-judicial tribunal "recognised by law", the letters of complaint to the Law Ministers were an initiating document. The Magistrates Court Ordinance 1930 provides no procedure for written communications about the competency of a Special Magistrate. In these circumstances, a letter to the responsible Law Ministers is the most direct and obvious procedure available to a person who wishes to complain about the curial conduct or fitness for office of a Special Magistrate.
A copy of the letter to the Attorney-General was sent also to the ACT Chief Magistrate. But if the letter to the Attorney-General is absolutely privileged, so must a copy that is sent to the Chief Magistrate. The Chief Magistrate has no power to remove an allegedly corrupt or incompetent magistrate from office. But at the very least, he has power to ensure that cases are not heard by a magistrate against whom such a complaint is made until the allegation of unfitness is determined.
(ii) Was the putative investigative body a tribunal "recognised by law"?
By a long standing rule of the common law, absolute immunity from suit attaches to statements made for the purpose or in the course of the proceedings of any court or tribunal "recognised by law". As Lopes LJ pointed out in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [57] :
The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any Court recognised by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the person defamed. 1. [1892] 1 QB 431 at 451.
The question then becomes whether the tribunal at issue may fairly be characterised as one "recognised by law" for the purposes of the defence. Courts of justice clearly are. But other bodies can also fall within the description of courts or tribunals "recognised by law". Military courts or tribunals have traditionally been held to be "recognised by law" for the purpose of the defence. In Bamford v Clarke [58] , the court held that absolute privilege attached to a report of a military court of inquiry forwarded to a commanding officer and which contained statements defaming the plaintiff [59] .
Tribunals established to hear and/or investigate complaints against solicitors and barristers also fall within the description of bodies "recognised by law". Thus, in Addis v Crocker [60] the English Court of Appeal held that the functions and procedures of a disciplinary committee established under the Solicitors Act 1957 UK were sufficiently similar to a court of justice for its findings to be absolutely privileged [61] .
For the defence of absolute privilege to apply to the proceedings of a tribunal other than a court of justice, the tribunal must be essentially quasi-judicial in nature. In Addis [62] , Pearce LJ said that "the privilege is extended to tribunals which act judicially in a manner similar to courts of justice, but not to merely administrative tribunals." Pearce LJ conceded, however, that in some cases [63] :
Difficulty may arise in deciding whether a particular tribunal has the characteristics of courts of law sufficiently to entitle it to share their privilege. 1. [1961] 1 QB 11 at 28. 2. Addis [1961] 1 QB 11 at 28.
In Trapp v Mackie [64] , the House of Lords held that absolute privilege extended to an inquiry into the dismissal of a school headmaster conducted by a commissioner appointed by the Secretary for State for Scotland under the Education (Scotland) Act 1946. Lord Diplock said that [65] :
to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry. 1. [1979] 1 WLR 377; [1979] 1 All ER 489. 2. Trapp [1979] 1 WLR 377 at 379; [1979] 1 All ER 489 at 492.
The presence of a statutory scheme establishing the tribunal and regulating its procedures has been viewed as an important guide in determining whether the tribunal is "recognised by law" for the purposes of the defence of absolute privilege. This is because the statutory detail allows the court more readily to determine whether the tribunal has the trappings of a court. Relevant matters on this issue include whether provision is made for inter-parties proceedings, for the calling of witnesses and receiving evidence on oath, for public hearings, and for legal representation. In addition, the statutory detail will often describe the tribunal's initiating mechanisms and the legal consequences of its determinations.
The absence of a detailed statutory scheme proved decisive in O'Neill v Barry [66] where the plaintiff sued the defendant for defamation in respect of remarks made at an inquiry conducted by the Queensland Turf Club. The defendant pleaded a defence of absolute privilege, based on s 372 of the Queensland Criminal Code [67] . The District Court of Queensland held that the defence failed, saying:
The present enquiry was not under the direct authority of any statute, and was for the purpose of carrying out the duties of the QTC committee, whether under By-law 10 or their general power of regulation of the Brisbane Racecourse, and so seems closely analogous to a meeting of the London County Council for the purpose of granting music and dancing licenses, as in Royal Aquarium Society Ltd v Parkinson. 1. [1911] QWN 32. 2. Section 372 provided that: "A person does not incur any liability as for defamation by publishing, in the course of a proceeding held before or under the authority of any court of justice, or in the course of an inquiry made under the authority of a Statute, or under the authority of Her Majesty, or of the Governor in Council, or of either House of Parliament, any defamatory matter."
Reported decisions show that a tribunal will be characterised as "recognised by law" for the purposes of this limb of the defence only where a clear case is established. Thus, in Royal Aquarium [68] the English Court of Appeal denied absolute privilege to a meeting of the London County Council to consider applications for music and dancing licences. Lord Esher MR said [69] that they were performing an administrative duty, not a judicial duty. In O'Connor v Waldron [70] , the Privy Council held that absolute privilege did not attach to an inquiry held under the Combines Investigation Act [71] . The Judicial Committee held that a commissioner appointed under the Act exercised administrative functions, notwithstanding that he had a duty to act judicially. Their Lordships said [72] :
It is only necessary to remember that the commissioner by the Act is empowered to enter premises and examine the books, papers and records of suspected persons to see how far his functions differ from those of a judge. His conclusion is expressed in a report; it determines no rights, nor the guilt or innocence of any one. It does not even initiate any proceedings, which have to be left to the ordinary criminal procedure. In Hasselblad (GB) Ltd v Orbinson [73] the English Court of Appeal held that absolute privilege did not extend to an investigation by the Commission of the European Communities under Art 89 of the EEC Treaty into possible breaches of Art 85 of the Treaty by the plaintiff corporation. The proceedings were administrative rather than judicial or quasi-judicial in nature. In Douglass v Lewis [74] Mitchell J denied absolute privilege in respect of statements made before a South Australian Royal Commission regulated by statute. In Webber v Warren [75] , the Supreme Court of New South Wales held that absolute privilege did not attach to an inquiry held by the captain of a merchant vessel into passenger complaints about the conduct of the defendant, the ship's surgeon. 1. [1892] 1 QB 431. 2. Royal Aquarium [1892] 1 QB 431 at 443. 3. [1935] AC 76. 4. RSC, 1927, c 26. 5. O'Connor v Waldron [1935] AC 76 at 82. 6. [1985] QB 475. 7. (1982) 30 SASR 50. 8. (1884) 1 WN (NSW) 5.
At first instance Heerey J, and on appeal Carr J, effectively regarded the defence of absolute privilege as coinciding with the application of the rules of natural justice to non-curial tribunals. However, the expansion of those rules in the last half century does not demand or even permit similar expansions in the availability of the defence of absolute privilege. Many tribunals have obligations to act "judicially" and in accordance with the rules of natural justice. But that does not mean that their proceedings are analogous to the courts of justice, the benchmark for determining whether a tribunal is within the category of tribunals "recognised by law" for the purposes of the defence. "Recognised by law" remains a very high standard. A body like the London County Council is nowadays required to act judicially and in accordance with the rules of natural justice in determining applications for licences. But it is impossible to suppose that the decision in Royal Aquarium [76] on absolute privilege would be reversed if it came before the English Court of Appeal today.
Moreover, it should not be overlooked that the suggested equation works two ways. Given its drastic effect in foreclosing all means of redress for defamatory remarks made maliciously, the potential widespread availability of the defence of absolute privilege might itself provide a disincentive to applying the rules of natural justice to new forms of tribunals.
In this case, there is a complete absence of any statutory or other detail regarding the putative tribunal. Although the power of termination of office of a Special Magistrate rested formally with the Governor-General, in practice he would not conduct any investigation of Mr O'Neill's competency in office. Presumably, the Executive Council, the Cabinet, or perhaps even the Attorney-General's Department would authorise an inquiry. The precise manner in which the putative tribunal would function must be largely a matter of speculation. It is conceivable that special legislation could be passed. But it is impossible to know whether the body would hold oral hearings, would allow witnesses to be called, would permit legal representation and cross-examination of witnesses, or would provide written reasons for decisions. Certainly, there is no ground for concluding that its procedures must inevitably track those of the established courts of justice. Dr Mann bears the burden of establishing that the putative tribunal would be a quasi-judicial body "recognised by law". In my opinion, he has failed to do so.
Mr Castan's third argument in support of a defence of absolute privilege relies on what he, and Carr J in dissent in the Full Court, describe as the "broader" policy considerations of ensuring the proper administration of justice. As I have stated, the underlying rationale for the defence in the judicial sphere is that its absence would hamper the efficient functioning of the administration of justice.
Only two reported cases appear to deal with the availability of absolute privilege in respect of a complaint to an appropriate authority about the conduct of a judicial officer. Neither of them can be regarded as a satisfactory authority. In Stanton v Andrews [77] in the Upper Canada Court of Appeal Macaulay J and, it seems, Robinson CJ regarded a petition to the Lieutenant Governor of the Province complaining about the conduct and partiality of Commissioners of the Court of Requests as absolutely privileged. Macaulay J said that [78] :
[The] plaintiff holds a judicial office during pleasure, removable by the lieutenant governor at discretion, and as such, he is complained against by the defendant and others, who invoke inquiry and pray for relief from the proper quarter - from one competent to afford it, by the effectual step of dismissal, and therefore authorised to institute such inquiries as may enable him to form a satisfactory decision upon the merits, and to remove or exonerate, according to the result. The privilege afforded in courts of justice is well known, and petitions to either house of parliament are equally protected, and similar reasons of policy and justice would seem equally to apply upon principle to petitions to the Crown. 1. (1836) 5 UCQB (OS) 211. 2. Stanton v Andrews (1836) 5 UCQB (OS) 211 at 240-241.
However, the Court of Queen's Bench reached a different conclusion in Harrison v Bush [79] where the defendant, along with several hundred inhabitants of a borough within the county of Somerset, signed and sent a memorial to the Secretary of State for the Home Department complaining about the conduct of the plaintiff who was a justice of the peace for the county. The court held that the communication was the subject of qualified privilege only.
Neither Stanton nor Harrison examined the applicability of the defence of absolute privilege in light of its underlying rationale. Nor did either case involve an action by a judicial officer against a former litigant, a factor which, for reasons set out below, is significant. The solution to the present case must therefore lie in principle rather than authority.
In my opinion, the proper functioning of the administration of justice requires that absolute privilege should be given to a complaint by a former litigant about the conduct or competency in office of a judicial officer provided the complaint is directed to a person with power to act upon it. Absolute privilege is given to cases within the category of "statements made in the course of judicial or quasi-judicial proceedings" because the efficient functioning of the administration of justice requires that judges, witnesses, and parties be free to speak without the deterrent fear of a defamation action. Similarly, the efficient functioning of the administration of justice requires that those who preside in those courts and tribunals should be competent, impartial and incorruptible. To use the words of Lord Hewart CJ said [80] in a different context, it is "not merely of some importance but is of fundamental importance" that people who have justifiable complaints about the competency, partiality and corruptability of judicial officers should be encouraged to make those complaints to the proper authorities. Judicial officers exercise powers that affect the rights, obligations and liberties of those who come before them. A complaint alleging incompetency, partiality or corruptability needs to be investigated. The rationale for granting absolute privilege to those who speak in the courts of justice applies equally to those who complain to an appropriate authority about the conduct or competence of those who preside in the courts of justice.
It is not fanciful to suppose that potential complainants may be discouraged from making complaints if their communications are not absolutely privileged [81] . Even a person who honestly believes in the truth of the complaint and therefore has a defence of qualified privilege may be deterred by the fear of a defamation action. Defending such an action can be expensive (solicitor and client costs are seldom fully recoverable from the other side), will certainly cause worry and concern, and will be time consuming and inconvenient to defend. The action taken by Mr O'Neill in the present case shows that the threat of a defamation action is real.
A defence of qualified privilege fails to ensure that an action brought by the judicial officer is effectively terminated from the outset. Many, perhaps most, defendants in these actions will have been losing litigants in cases heard by the judicial officer and will have strongly resented their perceived treatment by that person. Many, perhaps most, of them will be hard pressed to avoid an inquiry into whether the complaint was motivated by malice. And as Deane J pointed out in Theophanous v Herald & Weekly Times Ltd [82] "the investigation of subjective motivation is one of the areas in which our legal procedures are most likely to be found wanting". Even the sturdiest of honest complainants may hesitate to run the risk of an adverse finding on the issue of malicious motivation. Many complainants may also perceive, rightly or wrongly, that in any trial before a jury or a judge alone the plaintiff will enjoy a certain forensic advantage by reason of his present or former status.
It can be taken as certain that most complaints will prove to be unfounded. Winners and losers among litigants are the inevitable consequence of the proper performance of judicial office. As the result of the frustration and disappointment of losing, litigants sometimes make false and defamatory imputations concerning a judicial officer. If such imputations are published to a person having the power to discipline or investigate the conduct of the judicial officer in question, it may cause the judicial officer some distress. But most persons who hold judicial office have sufficient confidence in their own competence and rectitude to treat such unjustified allegations with the contempt that they deserve. Moreover, one can expect the responsible Law Minister or other appropriate body to act discreetly and to separate the obviously groundless complaints from those which may have substance, thus ensuring that only the latter are brought to the attention of the relevant judicial officers.
Even if some distress is caused to judicial officers by the making of unjustified complaints, it is surely better that the few legitimate complaints about judicial officers are brought to notice so that prompt and appropriate action can be taken rather than that such complaints be discouraged. As Devlin LJ said in Lincoln v Daniels [83] , in respect of complaints to the Inns of Court regarding the conduct of barristers [84] :
experience shows that there are many prudent people who are not in the least malicious but who are nevertheless unwilling to put forward a complaint if there is any danger that it will involve them in litigation. The practical value of absolute privilege is that it encourages such people to come forward. Where, as with the Bar, the honour of a profession is of the first importance to the administration of justice, it is desirable that every complaint should be entertained and scrutinised even at the price that occasionally absolute privilege will be used as a shield for malice. Similar remarks were made by Marks J in Hercules v Phease in respect of complaints made against solicitors to the Secretary of the Law Institute of Victoria [85] . The views of Devlin LJ have even greater force in respect of complaints about the conduct of judicial officers. 1. [1962] 1 QB 237. 2. Lincoln v Daniels [1962] 1 QB 237 at 263-264. 3. Hercules v Phease [1994] 2 VR 411 at 422.
The effective functioning of the administration of justice therefore requires that complaints concerning the conduct or competency of judicial officers, made by litigants or former litigants to an appropriate authority should be absolutely privileged.
Actions by judicial officers in respect of their conduct or capacity
The respect in which the courts of justice and quasi-judicial tribunals are held is likely to be diminished by a rule that allows a judicial officer to commence an action for defamation against a litigant in respect of defamatory statements concerning the competency or conduct of the judicial officer in conducting that litigation.
There are relatively few reported instances of judicial officers bringing defamation actions for comments made about their competency or performance in office. Very few appear to have occurred in recent times. Even fewer involved a defendant who, like Dr Mann, was a former party to a matter heard by the plaintiff. With the exception of Troughton v McIntosh [86] , none of the cases examines whether a litigant's complaints made to an appropriate authority should be protected by absolute privilege because of the status of the plaintiff, as a judicial officer, and the status of the defendant, as a former litigant.
In 1593 in Doctor Caesar v Curseny [87] , a jury awarded an Admiralty Court judge £200 for defamation in respect of a statement that a sentence delivered by the plaintiff "was corruptly given". In 1638 in Hutton v Harrison [88] . Hutton J recovered £10,000 for defamation for remarks made while the Court of Common Bench was sitting (with Hutton and Crawley JJ present). The defendant, Thomas Harrison, had rushed to the bar table and said: "I accuse Mr Justice Hutton of high treason" [89] . The plaintiff recovered notwithstanding that Harrison had already been fined £5,000 and imprisoned during the King's pleasure for his statement. In 1725 in Aston v Blagrave [90] , the plaintiff, a justice of the peace, recovered damages for defamation against a defendant who had said that the plaintiff was "a rascal, a villain, and a liar". Aston v Blagrave was followed in Kent v Pocock [91] where the defendant had called Mr Kent, a justice of the peace, "a rogue".
In none of these early cases, however, is there any reported consideration of the policy considerations mitigating against the law allowing judicial officers to sue former parties for comments relating to the plaintiffs' judicial performance. The maintenance of the action is simply assumed. Nor do any of these cases concern a complaint, directed to the appropriate authorities, about the competency of a judicial officer.
In McCormick v Cuthbert [92] the plaintiff, a police and licensing magistrate, failed to recover damages for defamation for statements for which the defendant, the Minister of Justice for the colony of Victoria, was responsible. The plaintiff claimed that the statements imputed that, as a magistrate, he had improperly and corruptly adjourned a matter and had claimed expenses relating to the adjournment. The defendant denied that the comments were capable of bearing a defamatory meaning, and pleaded defences of qualified and absolute privilege.
By majority, the court (Higinbotham CJ and Hood J, Molesworth J dissenting) held that the defence of qualified privilege was made out because there was no evidence of malice on the defendant's part which could properly be put before a jury. Molesworth J rejected both defences. In respect of the defence of absolute privilege, he said that [93] :
According to the argument for the defendant it is absolutely essential in the public interest, and for the benefit of the public, that the defendant should not be liable to an action for publishing a libel on any officer in his department, police magistrate, county court judge, or any other officer though it could be proved that he wrote the libel actuated by spite and the most vindictive malice, and without any foundation in fact [which would] justify him. I do not believe that such a state of things would be for the public benefit. Molesworth J also said that [94] : there are reasons for protecting persons, judges, witnesses, counsel and jurors, who "utter words" in a court of justice - which would apply also to the words of members of Parliament - speaking in Parliament that do not apply to the case of a minister writing libels in his office in the absence of authority. I do not think that the courts ought to extend to a person in the position of the defendant, the right to rely on this defence. Higinbotham CJ and Hood J held that, in light of their finding of absence of malice, there was no need to consider the defence of absolute privilege. They said, however, that [95] : This question raises novel points of considerable difficulty upon which we are unwilling to give an opinion as we are precluded by circumstances from taking sufficient time for due consideration of them. McCormick does not directly assist Mr O'Neill in the present proceeding. The majority did not consider the defence of absolute privilege; Molesworth J's analysis concentrates on the position of a Minister of the Crown commenting about people within his or her departmental responsibility. This potential category of absolute privilege is commonly referred to as "communications passing between high officers of state" [96] . His Honour did not discuss the unique status of the plaintiff. Significantly, the case did not involve an action against a former party. 1. McCormick v Cuthbert (1891) 13 ALT 137 at 139. 2. McCormick v Cuthbert (1891) 13 ALT 137 at 139. 3. McCormick v Cuthbert (1891) 13 ALT 137 at 146. 4. Jackson v Magrath (1947) 75 CLR 293.
In Doyle v Economist Newspaper Ltd [97] the plaintiff, a recently appointed county court judge of Northern Ireland, sued the defendant for publishing an article suggesting that he had been appointed on religious grounds rather than on merit. The court rejected the availability of a defence of qualified privilege. A defence of absolute privilege was apparently not raised. Furthermore, the case did not involve a former litigant as the defendant. Accordingly, the case provides no direct support for Mr O'Neill in the present proceeding.
In Troughton v McIntosh [98] the plaintiff, a Police Magistrate, sued the defendant, a former litigant before him, for defamation for remarks made by the defendant just after the conclusion of the litigation. A jury awarded the plaintiff damages of £300. The defendant then obtained a rule nisi on the grounds that, among others, the trial judge was wrong to hold that the plaintiff's action was maintainable and that the defence of absolute privilege ended with the decision of the plaintiff in court.
By majority, the Supreme Court of New South Wales (Stephen and Cohen JJ, Simpson J dissenting) ordered that the rule should be made absolute. Although the judges emphasised that the matter before them fell within a narrow context of defamatory comments made by a former litigant while the court was still sitting, in my view the force of reasoning properly extends to complaints made by a former party in circumstances such as the present case.
After describing the defendant's comments as "imputing corrupt motives to the plaintiff" [99] , Stephen J said [100] :
The question, therefore, for determination resolves itself into the all-important one whether a Magistrate, exercising judicial functions, can sustain an action for words uttered (as these were) sedente curia, implying that a decision was attributable to corrupt motives. This was also discussed before us, and the contention of the plaintiff shows how grave a matter may be involved in our decision. It was not contested that in the case of a Court of superior jurisdiction such an imputation would be a contempt of Court, and it was urged that, even in the case of a Judge of such Court exercising his power of fining or committal, thus awarding punishment due to the offence, an action lay for the imputation against the personal character of the Judge; in other words, to use the expression of the plaintiff's counsel, there was a "dual remedy", - one to satisfy public justice, the other for personal reparation. It was argued that it would be most unfair that a Judge, by accepting the position, should be deprived of the right of vindicating his character by an action against the slanderer, and that no authority could be found to justify such a deprivation. It was not denied, as indeed it could not well be, that there were grave reasons against the resort by a Judge to such an action. His Honour denied that there was a "dual remedy" [101] : I proceed to the view, urged upon us by the defendant, which has most strongly impressed my mind. It is that an aspersion of this kind is a libel on the administration of justice - upon the tribunal - and must be regarded by the Judge in that light; one to be dealt with in his judicial capacity alone; that the personal wrong is (if I may use the expression) absorbed in the offence against the public. 1. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 336. 2. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 337. 3. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 338.
His Honour said that the legal analysis did not change merely because the judicial officer did not exercise any contempt powers available to him [102] :
Nor do I think the case in any way altered if the contempt is passed over in silence. I have shown that it is the duty of a Judge to assert and protect, for his sovereign's and the public sake, the dignity of his Court. If for any reason the offence passes without notice, it cannot be that the refraining from the exercise of the power to punish can alter the Judge's position and enable him to sue, if otherwise the action is not maintainable. He cannot have the option of vindicating the authority of his Court or of asking for reparation of the injury to his personal character. Stephen J also said that [103] : For a Judge to descend from his judgment seat to the floor of the Court as a suitor against the man with whom he dealt or could have dealt judicially, seems to be a denial of the majesty of the law, a forgetfulness of his high representative character, an abasement of the dignity of his Court and his prestige as a Judge. 1. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 339. 2. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 340.
Cohen J also held that the defendant's comments were the subject of absolute privilege. His Honour said that [104] :
[I]t seems to me more consistent with public policy and with the preservation of the "dignity" of the Courts that those who from time to time constitute that tribunal, should not dissociate themselves from it, and stepping down from the judgment seat seek in their individual capacity damages for an alleged individual wrong committed in the Court whilst they constitute it, - a wrong it may be arising from the heated and unconsidered words of a suitor, honestly, though perhaps mistakenly, angry from disappointment. His Honour referred to the scarcity of cases in which judges of superior courts had brought defamation actions for comments relating to their judicial performance as indicating [105] : a feeling on their part that the public interests are best conserved by exclusively leaving their personal or official vindication to any action which might be taken to punish the defamation as a public wrong, and by trusting to the generally just instincts of the public, who ever jealously watch the proceedings of these Courts of Justice, for a repudiation of any unfounded calumnies that may be aimed at their purity, impartiality or independence. I strongly entertain the view that Judges of the inferior Courts, and Justices of the Peace, even for defamatory words uttered outside the Court, in relation to their judicial or magisterial functions, would best mark the importance of their offices, secure the public recognition of that importance, and emphasise their sovereign origin by acting upon the rule so universally acted upon by the Judges of the superior Courts. (Emphasis added.) 1. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 356. 2. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 358-359.
Simpson J dissented. He held that the action was maintainable but referred to how undesirable it was that judicial officers [106] :
should become plaintiffs in actions of libel or slander and seek reparation for any charges of corruption or partiality which may have been made against them in the performance of their judicial duty. 1. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 346.
The spectre of a judicial officer suing a former litigant for defamation in respect of comments relating to the conduct or capacity of the judicial officer in conducting the litigation is in my view incompatible with the holding of judicial office. From the time of their appointment, all judicial officers are or ought to be irrebuttably presumed to be personally immune from the effects of criticism of their judicial performance. The fact that derogatory comments made publicly about a judicial officer may, in limited circumstances, provide grounds for a prosecution for contempt serves to highlight the public, as opposed to private, nature of the issue. A contempt action is brought for the public benefit of maintaining confidence in the administration of justice, not to vindicate or appease the personal feelings of the judicial officer attacked [107] . The relatively recent decision of this Court in Gallagher v Durack [108] demonstrates the continued resilience, when circumstances demand, of a prosecution for scurrilous abuse of a court or judicial officer. Even if, as is commonly claimed, the prevalence of the action has significantly diminished over the last half century, the law should not fill any perceived void by allowing a private remedy for the judicial officer attacked.
The effective functioning of the administration of justice requires that the respect in which courts are held should not be diminished. But where it is necessary to deal with a person who scurrilously abuses a judicial officer, that should be done by enforcing the public law of contempt or scandalising the court, not by a private action for damages. Moreover, actions by judicial officers against former litigants for comments relating to judicial performance are not only unseemly, in my view they are calculated to impair confidence in the impartiality of the courts. They are calculated to create a public perception that judicial officers will quash dissent from their rulings by using the law of defamation against those litigants who call their conduct or capacity into question. A defence of absolute immunity ensures that such actions are terminated from the outset.
The underlying rationale of the defence of absolute privilege in the judicial sphere is that its absence would hamper the proper administration of justice. In my view, the present case falls within the narrow range of cases in which the defence is properly available.
Did Dr Mann direct his letters to the appropriate persons?
I have already held, when considering Dr Mann's second argument, that in the absence of a statutory procedure, the respective Law Ministers were appropriate persons to whom Dr Mann could direct his letters of complaint regarding the competency of an ACT Special Magistrate. Some support for this conclusion is found in R v Smith [109] , a criminal libel case where the defendant had published a letter in a South Australian newspaper suggesting that an Adelaide Special Magistrate had acted corruptly by favouring the interests of his brothers. Gwynne J said [110] :
The gentleman libelled holds two important positions. He is Commissioner of Insolvency - a position which he holds on the same tenure as we do our positions in this Court, pending good behaviour. As regards the other office, that of Special Magistrate, that is a legislative creation, and depends, I presume, upon the will of the Executive Council, or even, perhaps, of the Attorney-General; but on this matter I am not well informed. As Commissioner of Insolvency he simply holds his office subject to good behaviour, so, if a party had a bona fide belief in these imputations, he could have petitioned the Legislature to have removed the Commissioner from his office An application, too, might have been made to the Attorney-General or the Executive Council. But nothing of the sort is done. (Emphasis added.) 1. (1876) 10 SALR 213. 2. R v Smith (1876) 10 SALR 213 at 221.
It is clear from the pleadings and the decision at first instance that the defendant sent a copy of his letter of 20 October 1988 also to the ACT Chief Magistrate. Mr Rares SC, who appeared for Mr O'Neill contends that, even if the Court decides that absolute privilege attaches to the letters sent to the Attorney-General and Minister for Justice respectively, only qualified privilege attaches to the copy letter sent to the Chief Magistrate. Mr Rares relies on Lincoln v Daniels [111] in which the English Court of Appeal held that two letters of complaint containing defamatory remarks which the defendant sent to the Bar Council were not the subject of absolute privilege. The court held that the letters should have been sent to the Inner Temple, the Inn of Court which had disciplinary power over the plaintiff barrister.
During argument before this Court, counsel disagreed as to whether or not the case had been conducted below on the basis that the appropriate procedure, for a person wishing to complain about the competency of an ACT Special Magistrate, was to send a letter to the Attorney-General (and/or Minister for Justice) with a copy to the Chief Magistrate. The fact that Heerey J entered judgment for Dr Mann without separately considering the privilege attaching to the copy letter to the Chief Magistrate supports the view that the case was conducted without specifically differentiating the correspondence.
In any event, even assuming that the Chief Magistrate was not the most appropriate person to whom such a letter should be directed, in the sense that he did not form part of the Executive which could advise the Governor-General on the appropriate action to take in the matter, in my view the defence of absolute privilege still applies. As I have pointed out, the Chief Magistrate had important powers which he could use in the event that he considered the complaint had substance. The effective administration of justice therefore required that absolute privilege should attach to the copy letter sent to him. Lincoln v Daniels deals with a very different situation and has no authority in this context. Accordingly, this ground of appeal succeeds.
The appeal from the Full Court of the Federal Court should be allowed. In accordance with the original order of Heerey J, judgment should be entered for Dr Mann.
This appeal concerns the scope and operation of the common law doctrine of absolute immunity. The appellant, Dr Mann, seeks to bring this case within those categories where absolute immunity attaches to the use of language which contains falsehoods respecting the plaintiff or is written or uttered maliciously and without any justification or excuse. The appellant relies upon the doctrine by way of defence to an action for defamation brought against him by the respondent, Mr O'Neill. The appellant had published of the respondent that he was suffering from early signs of senile dementia and was unfit to continue in the magistracy of the Australian Capital Territory (the Territory).
Many of the authorities to which we were referred were defamation actions. However, as Starke J pointed out in Cabassi v Vila [112] , where the doctrine operates it is as a rule of law that no civil action [113] , lies "whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or for combining or conspiring together for the purpose of injuring another". Where it does apply, the rule of law identified by Starke J is not that there is a privilege to be malicious in the sense of the defamation law; rather, it is that in certain cases the policy of the law is against inquiry whether certain words or acts are malicious [114] . Hence, the doctrine is described more aptly as precluding liability by conferring an absolute immunity [115] . This was the description applied in this Court in Jamieson v The Queen [116] .
The immunity has been accepted as applicable in various instances from which there emerges "[n]o single touchstone" [117] . All involved particular determinations of the policy of the common law. The authorities concern statements touching the exercise of the legislative, executive and judicial powers of government. They deal with such statements as those made by high executive officers in performance of their duties relating to matters of State, made during parliamentary proceedings and made in the course of judicial proceedings. In approaching the issues which arise on the present appeal, it is appropriate to bear in mind the remarks by Gavan Duffy CJ, Rich and Dixon JJ in Gibbons v Duffell [118] , that what they identified as this "indefeasible immunity":
is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured [119] . Its application should end where its necessity ceases to be evident. Evatt J spoke to the same effect [120] . 1. Trapp v Mackie [1979] 1 WLR 377 at 379; [1979] 1 All ER 489 at 492. 2. (1932) 47 CLR 520 at 528. 3. Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431. 4. Gibbons v Duffell (1932) 47 CLR 520 at 534.
Windeyer J described as "perhaps verbal rather than real" the distinction between the creation of a new head of public policy and the definition of the scope of heads already formulated by judicial decision [121] . That point is borne out by the argument in the present case. The appellant relied upon that head of immunity based on the dictum of Lord Mansfield that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office " [122] . The appellant's submissions involve consideration of the class of proceedings to which the dictum might apply and the reach of the phrase "spoken in office".
The head of immunity concerned with the effective performance of judicial functions operates to protect individuals in the classes specified by Lord Mansfield in the above passage. This immunity responds to two general considerations [123] . The first is to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences. The second is related to the first and involves the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment, other than by pursuit of any available avenue of appeal and the invocation of the special equity jurisdiction to set aside judgments, in a suit constituted for that purpose [124] . In the present case, the immunity is asserted by a party to litigation. Where the reliance is by a judicial officer, the immunity also gives effect to the particular public interest in securing the utmost freedom to those who preside over judicial proceedings, subject only to the constitutional or other remedies for removal from office [125] .
The appellant, Dr Mann, is a medical practitioner who, at all material times, carried on practice as a consultant surgeon in the Territory. On 28 November 1989, the respondent, Mr O'Neill, instituted in the Supreme Court of the Territory an action against Dr Mann claiming damages for defamation in respect of the alleged publication on 20 October 1988 of certain material to the Attorney-General for the Commonwealth and the Chief Magistrate of the Territory. The applicable defamation law was the common law, varied and supplemented by those laws of the State of New South Wales continued in the Territory [126] , as modified in their application there by s 3 and Sch 2 of the New South Wales Acts Application Ordinance 1984 ACT. The relevant New South Wales legislation applied in this way was the Defamation Act 1901 NSW and the Defamation (Amendment) Act 1909 NSW. Neither statute dealt with the common law as to absolute privilege or immunity.
The action was transferred from the Supreme Court of the Territory to the Federal Court where an amended statement of claim and defence were filed. The defence included a plea of what was identified as absolute privilege. By consent of the parties, the issue raised by that plea was tried by Heerey J as a separate issue. This issue was determined favourably to Dr Mann and his Honour then entered judgment accordingly [127] . By majority (Beaumont and Ryan JJ, Carr J dissenting), an appeal by Mr O'Neill to the Full Court of the Federal Court was allowed and the plea was struck out [128] . In this Court, Dr Mann seeks to reinstate the plea and the orders of Heerey J.
At the time of the events giving rise to this litigation, the respondent was a special magistrate appointed pursuant to s 10H of the Magistrates Court Ordinance 1930 ACT (the Ordinance), made under the Seat of Government (Administration) Act 1910 Cth. Those events took place before the commencement of the substantive provisions of the Australian Capital Territory (Self-Government) Act 1988 Cth [129] and the ACT Self-Government (Consequential Provisions) Act 1988 Cth. The short title of the Ordinance is now the Magistrates Court Act 1930 ACT [130] . Sections 10H-10L of this legislation now deal with the appointment of special magistrates and with their tenure, terms and conditions of appointment, and resignation in a different fashion to that which applied before the commencement of self-government [131] . The issues which arise on the present appeal require some consideration of the tenure of special magistrates only under the now superseded provisions of the Ordinance. Nothing which is later said in this judgment upon that subject is to be read as having any necessary application to the system now in operation after self-government.
Before self-government, the relevant provisions of the Ordinance dealing with special magistrates were as follows:
10h For the purposes of this Ordinance, the Governor-General may appoint such special magistrates as are required.
10j A special magistrate holds office during the pleasure of the Governor-General.
10k A special magistrate may resign his office by writing signed by him and delivered to the Governor-General.
10l Subject to the Remuneration Tribunals Act 1973 and to section 10J, a special magistrate holds office upon such terms and conditions, whether as to remuneration or otherwise, as the Governor-General, from time to time, determines.
The conferral by these provisions of powers or functions upon "the Governor-General" is to be understood as referring to the Governor-General acting with the advice of the Executive Council [132] . It appears that either the Attorney-General for the Commonwealth or the Minister for Justice was the responsible Minister charged with the administration of the Ordinance.
On 20 October 1988 Dr Mann wrote to the Attorney-General, with a copy to the Chief Magistrate of the Territory, setting out details of two proceedings in which he had been a party. The first was a proceeding under the Small Claims Ordinance 1974 ACT [133] . With an exception not presently relevant, s 29 thereof provided that no order for costs be made in such a proceeding. A former patient of Dr Mann sought damages in respect of the alleged consequences of a surgical procedure performed upon him by Dr Mann. Dr Mann sought to have the claim struck out but the application was refused by Mr O'Neill. Mr O'Neill also refused an application for transfer of the proceeding so that it would be dealt with under the Magistrates Court (Civil Jurisdiction) Ordinance 1982 ACT, which authorised (s 238) the award of costs. In the event, the proceeding was heard by another magistrate and was dismissed. However, Dr Mann was left without an order for costs in his favour.
The second action was heard by Mr O'Neill. Dr Mann acted for himself and unsuccessfully resisted, as not being a proper charge, an account for $2,000 presented by the plaintiff company in respect of certain services provided by it to Dr Mann in connection with a possible land subdivision. The nature of any appeal rights which Dr Mann had does not appear, but if they existed they were not pursued. Rather, in his letter to the Attorney-General, Dr Mann sought the rehearing of this second case. The concluding portion of that letter is as follows:
I am a medical practitioner of 35 years standing. It is my medical opinion that Mr O'Neill should be suspended from duties whilst he is examined for fitness to sit as a Magistrate. It would be important in this regard to review the transcript of a range of cases not merely my own and to ascertain the views of legal practitioners who appear before him.
I would also respectfully request that you order the matter of Purdon and Associates -v- Arnold Mann to be reheard if that is at all possible.
I have spoken about this to the Chief Magistrate, Mr Cahill and he has requested a copy of my letter to you.
It appears that Dr Mann also entered into correspondence with the Minister for Justice, who then wrote to Dr Mann on 21 December 1988. On 3 January 1989 Dr Mann responded with a letter to the Minister for Justice, stating that he was awaiting a reply to his question concerning Mr O'Neill's mental capacity to conduct cases as a magistrate. At the hearing before Heerey J, leave was granted further to amend the statement of claim by alleging an additional cause of action based upon that letter. The application before his Honour then proceeded on the assumption that the plea of absolute privilege, if good, would apply to the letters both to the Attorney-General and to the Minister for Justice.
Counsel for the appellant puts two propositions by which he seeks to bring the present case within that head of decisions which is concerned with statements made in the course of judicial proceedings.
The first is that the letters written by Dr Mann were to be treated as comprising a step within the legal process in which he was engaged; in seeking a rehearing by reason of the matters alleged against the respondent, Dr Mann should be regarded no differently than if he had appealed the decision against him in the second proceeding. It is submitted that, had the same allegations been made in relation to the respondent as grounds in a notice of appeal, Dr Mann unarguably would have been rendered immune from suit.
The second submission is that the letters should be viewed as the initiating documents in a proceeding seeking removal of Mr O'Neill from office. Such a proceeding is said to fall within a category of quasi-judicial process which the authorities indicate may be covered by the absolute immunity doctrine. I turn to consider each of these submissions in turn.
In general, the immunity extends to statements made outside court but forming an integral and necessary part of the preparation for and pursuit of the litigation [134] . The immunity has been said not to extend to the publication of material after the proceeding to which it pertains has come to an end [135] . The ascertainment of that outer limit involves consideration of the court structure and rules of practice and procedure within which the proceeding is placed and from which it draws its sustenance. Thus, after delivery of its statement of reasons, a court may correct or modify it and the absolute immunity will still apply [136] . This is true also if the orders made are subsequently set aside [137] . The immunity extends to the institution and prosecution of appeals. Again, it has been held by the United States Court of Appeals that the immunity extended to the publisher of law reports which had published, without change, an allegedly defamatory footnote in the reasons for judgment of a United States District Court [138] . This was held to be so in respect of reports authorised by the courts concerned and also reports generally regarded and accepted by the courts and the legal profession as comprehensive and dependable.
The position of parties to judicial proceedings and the identification of their immunity in respect of "words spoken in office" is described as follows in the Restatement of the Law of Torts [139] :
A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding. 1. 2nd ed, vol 3, s587. The requirement that the matter have "some relation to the proceeding" may differ from the English law that the immunity is lost only if the utterance is so irrelevant that it is no longer made in the character of a participant in the proceeding: Seaman v Netherclift (1876) 2 CPD 53 at 56-57; Prosser and Keeton on Torts, 5th ed (1984), pp 817-818; Balkin and Davis, Law of Torts, 2nd ed (1996), p 560. Salmond J (in Fitzherbert v Acheson [1921] NZLR 265 at 269) said that absolute immunity applies to words used "by the defendant while acting in his judicial capacity whether the words were relevant or irrelevant, true or false, malicious or bonâ fide". This passage is treated in New Zealand as applicable generally to cases in which the absolute immunity is engaged: Teletax Consultants Ltd v Williams [1989] 1 NZLR 698 at 701; Rawlinson v Oliver [1995] 3 NZLR 62 at 70. It is unnecessary for the present case to pursue any of these distinctions.
Judge Cardozo, delivering the judgment of the New York Court of Appeals, held [140] that a petition, after entry of conviction, to an executive officer who holds the power to reprieve or pardon is not protected by the absolute immunity in relation to judicial proceedings. Whilst the petition grows out of the action of the courts, it seeks to reverse that action. Moreover, that end is sought by steps involving often only an informal hearing, with no clearly defined issues and with such a range of possible inquiry as to give "warning that the privilege should be confined within the limits of good faith". His Honour added [141] :
Where the test of the pertinent is so vague, there must be some check upon calumny. 1. Andrews v Gardiner (1918) 121 NE 341 at 343. 2. Andrews v Gardiner (1918) 121 NE 341 at 343.
In Troughton v McIntosh [142] , the plaintiff was a Police Magistrate who brought an action in slander for words spoken by the defendant in the plaintiff's court just after the dismissal of four of the five of the defendant's appeals and the refusal of the plaintiff to deal with another matter that was not properly before him. The declaration alleged that by the words he uttered, the defendant meant that the plaintiff, while acting in judicial office, was influenced by corrupt, improper, and malicious motives. The New South Wales Full Court (Stephen and Cohen JJ, Simpson J dissenting) held that the action was not maintainable. Cohen J held [143] that the defendant had not lost his capacity of "party" when he spoke the words in question. Stephen J put his decision in favour of the defendant upon a broader basis. His Honour identified the following "clear reasons of public policy" [144] :
For a Judge to descend from his judgment seat to the floor of the Court as a suitor against the man with whom he dealt or could have dealt judicially, seems to be a denial of the majesty of the law, a forgetfulness of his high representative character, an abasement of the dignity of his Court and his prestige as a Judge. Beyond this the grave issue that such actions might involve would expose the tribunals, the equity of their decisions, the motives of those who give them, to the license claimed for counsel, witnesses, and parties, with the disastrous effect of bringing the administration of justice into contempt. Further, if the conduct complained of also be a contempt, the judicial officer "cannot have the option of vindicating the authority of his Court or of asking for reparation of the injury to his personal character" [145] . 1. (1896) 17 NSWR(L) 334. 2. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 363. 3. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 340. 4. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 339.
What is involved is an absolute immunity, extending to malicious statements and utterances. As Stephen J emphasised, the interests at stake include the maintenance of public confidence in the administration of justice. That, in present times, is the meaning of the ancient phrase "the majesty of the law". The disadvantages to which his Honour referred must be weighed against the encouragement, by the existence of an absolute immunity, of the publication of malicious falsehoods. Freedom to publish malicious falsehoods does not assist access to independent courts for the impartial quelling of controversies, without fear of the consequences.
The common law has struck a balance between the interests involved by requiring "some check upon calumny" [146] . The check has been to limit the immunity to conduct during the course and as part of the judicial proceeding in which the party participates.
In the present case, the steps taken by Dr Mann were not during the course of and as part of the judicial proceedings in which he had participated. In so far as he had the view that the Executive Government had any part to play in the appellate process, he was mistaken. He cannot be regarded as if he had appealed the decision in the second proceeding and thus attracted the continuation of the absolute immunity. That immunity responds to the considerations identified earlier in these reasons. One of these is the avoidance of re-agitation by discontented parties of decided cases after the entry of final judgment, other than by the means afforded within the structure of the judicial branch of government. Accordingly, the steps of which Mr O'Neill complains did not involve words relevantly "spoken in office" by Dr Mann and as part of a judicial proceeding.
The second proposition for which the appellant contends is that the letters were steps taken to initiate a proceeding to which absolute immunity would apply, namely the removal of Mr O'Neill by the Governor-General in Council, he having held office only at pleasure. These steps were said to involve the exercise of functions "equivalent to those of an established Court of justice" and thus to attract absolute immunity [147] . This submission illustrates the slippery distinction, of the kind identified by Windeyer J in the decision referred to earlier in these reasons, between the definition of the scope of a recognised head of absolute immunity and the creation of a new category. Here, the further category in truth would concern the provision of information to executive or statutory officers or institutions exercising investigative or inquisitorial rather than judicial functions.
In some jurisdictions in the United States, absolute immunity has been recognised in favour of parties who are under a statutory duty to provide information to executive agencies charged with the administration of social security and other laws [148] . In Jackson v Magrath [149] differing views were expressed in this Court as to whether it was so essential to the discharge by the Federal Commissioner of Taxation of his statutory obligation to report to the Treasurer for presentation to the Parliament upon the working of the Income Tax Assessment Act 1936 Cth, and upon breaches or evasions of the legislation, that the Commissioner be undeterred by fear of hostile litigation, as to require the protection of absolute immunity [150] . These decisions bear some analogy to the decision of the Supreme Court of Victoria in Hercules v Phease [151] , which was strongly relied upon by the appellant. It concerned the complaints procedure in respect of solicitors established by the Legal Profession Practice Act 1958 Vict.
Before turning to that decision, three points should be made. The first is that, upon analysis, the decisions recognising absolute immunity may turn upon the structure of the particular statute involved as (i) imposing a duty, the adequate performance of which necessarily involves the protection of absolute immunity, or (ii) encouraging complainants to come forward by conferring the immunity. The second is that the considerations sought to be advanced by the operation of the absolute immunity in these cases differ from those which underpin the operation of the immunity in respect of legal proceedings, which were identified earlier in these reasons. Here, the interest may lie in supporting the regulatory regime established by statute in respect of persons who hold public office, who are authorised by law to conduct a particular profession or trade, or who claim benefits conferred upon a particular class of recipients. Thirdly, in all these instances, where it is said that the common law confers an absolute immunity rather than a privilege confined within the limits of good faith, in Australia it must be asked whether such an immunity is indispensable to the effective performance of the relevant executive function to which it pertains. That follows from Gibbons v Duffell [152] .
The plaintiff in Hercules v Phease [153] sued his former clients for defamation in respect of statements in complaints they made against him to the Secretary of the Law Institute of Victoria. The complaints were made pursuant to a statutory provision which empowered the Secretary to investigate such complaints and refer the matter to a hearing before the Solicitors' Board, the institution by statute primarily responsible for hearing complaints against solicitors in respect of professional misconduct. The legislation laid down detailed procedures for the conduct of hearings and for the bringing of appeals to the Supreme Court of Victoria where the practising certificate of a solicitor was cancelled, suspended or refused.
The Appeal Division of the Supreme Court held that the complaints were absolutely privileged. Fullagar and Ormiston JJ did so on the footing that the complaints were properly to be characterised as the initiating process for proceedings in a quasi-judicial tribunal, the complaint being an essential step in setting a motion in process which could end in the Supreme Court itself [154] . This reasoning is not applicable to the present case. The steps which Dr Mann sought to initiate would have ended not in any judicial proceeding, but in a high executive act, namely the removal of Mr O'Neill by the Governor-General in Council. The circumstance that, as appeared to be conceded in argument, at least at some stage in that process the Executive would have been obliged to give him some form of a hearing [155] does not indicate any different conclusion.
The third member of the Appeal Division in Hercules v Phease , Marks J, reached the same result but on a somewhat different footing to Fullagar and Ormiston JJ. His Honour emphasised that the elaborate procedure prescribed by the legislation for dealing with complaints appeared to ensure that they would fairly be considered from the point of view of complainant and solicitor [156] . He also stressed what was identified in a number of United States decisions as the public interest in encouraging those with knowledge of dishonest or unethical conduct on the part of lawyers to come forward to the body charged with investigation of such complaints [157] . In Wiener v Weintraub [158] , the Chief Judge of the New York Court of Appeals (Chief Judge Fuld) said:
If a complainant were to be subject to a libel action by the accused attorney, the effect in many instances might well be to deter the filing of legitimate charges. [159] 1. Hercules v Phease [1994] 2 VR 411 at 423. 2. Hercules v Phease [1994] 2 VR 411 at 416-418. 3. (1968) 239 NE 2d 540 at 541. 4. Similar reasoning has been employed to support absolute immunity in respect of complaints concerning candidates for appointment to judicial office where, by statute, the power of appointment rested with a panel of superior court judges: Muck v Van Bibber (1993) 621 NE 2d 1043 at 1045.
Mr O'Neill had no constitutionally protected tenure. Nor did ss 10H-10L of the Ordinance detail any procedure for the conduct of any inquiry before the exercise of the removal power conferred by s 10J [160] . Thus, in the present case, the statute did not lay down any balanced procedures of the kind which impressed the Court in Hercules v Phease .
In these circumstances, the question is whether the great interest on the one hand in fostering the competent discharge of judicial duties and, on the other, the avoidance of re-agitation of decided cases by discontented parties requires, as a matter of necessity, the absolute immunity pleaded by Dr Mann to Mr O'Neill's action against him.
In my view, within the sense of the judgments in Gibbons v Duffell [161] , the case for such necessity is not made out. In Stanton v Andrews [162] , an early Canadian decision, there is some support for the existence of such an immunity in respect of judicial officers holding their position during pleasure of the Executive. The case was discussed by Beaumont and Ryan JJ in their joint judgment in the Federal Court [163] and, as their Honours point out, the case is of doubtful authority.
There is but a weak analogy between the initiation of a judicial proceeding and that sought to be set in train by Dr Mann. The very nature of the judicial process and of the appellate and other review of the decisions of inferior courts may be expected to have a restraining and chilling effect upon extravagant complaints. This is less likely as regards that class of ex parte communications with the Executive for which absolute immunity is contended in this case.
It is not merely a question of giving weight to the need to protect the reputation of a citizen against false and malicious defamatory statements. Nor is this case directly comparable with those in which the interests involve measures adopted by the legislature to control the exercise of professions or trades. This case involves the investigation of one branch of government by another. There is the risk of damage to the institution and integrity of the judicial branch of government where malicious complaints are made to another branch of government, that branch itself being, directly or indirectly, a party to a deal of litigation. That consideration emphasises the need for clearly specified statutory procedures to be followed in the cases of such complaints.
Finally, as Beaumont and Ryan JJ pointed out in their reasons for judgment [164] , an additional reason against extension of absolute immunity is the existence, as is conceded, of another protection in the form of qualified privilege, upon which a correspondent may rely. To defeat the qualified privilege enjoyed by Dr Mann it would be necessary for Mr O'Neill to prove malice. The result is to strike a balance between the interests involved and to give proper weight against improper or misguided institution of proceedings.
Lord Atkin remarked in O'Connor v Waldron [165] that the line dividing cases which attract the defence of absolute privilege in defamation from those that do not is one "not capable of very precise limitation". This appeal requires the Court to find and declare that line.
In many circumstances, as Lord Diplock said in Trapp v Mackie [166] , "[n]o single touchstone emerges from the cases" on absolute privilege or legal immunity for defamation. His Lordship explained why this was so. In such cases, the law is endeavouring to balance conflicting public policies [167] . Ordinarily, a person whose good name and reputation are injured by false and malicious communications uttered by another has a remedy. Yet communications in certain contexts essential to good government (legislative, executive and judicial) must sometimes be capable of taking place, fearlessly and without the danger that the author will be troubled by an action for defamation in which the truth or falsity of the communications and whether they were, or were not, made out of malice, will be determined by a court [168] .
The present appeal requires this Court to decide whether letters, written by a litigant disappointed by the outcome of proceedings before a judicial officer, suggesting to relevant authorities incompetence and incapacity on the part of the judicial officer, attract a defence of absolute privilege or immunity from liability in defamation (as he claims) or qualified or limited privilege, defeasible upon proof of malice (as the judicial officer asserts).
The proceedings were initially commenced in the Supreme Court of the Australian Capital Territory. An order was made transferring them to the Federal Court of Australia under cross-vesting legislation. A defence of absolute privilege having been pleaded and contested, it was directed, by consent, that its availability should be separately determined [169] . The primary judge (Heerey J) upheld both the availability and application of the defence of absolute privilege [170] . He entered judgment in the action in favour of the defendant. On appeal to the Full Court of the Federal Court, this decision was reversed by majority [171] . That Court held that neither common law authority upon analogous questions nor any suggested general principle of public policy sustained the decision of the primary judge. The Full Court therefore ordered that the plea of absolute privilege be struck out.
By special leave, an appeal has now been brought to this Court. Upon the return of the appeal for hearing, certain contentions of the parties based on the implied freedom of communication found in the Constitution [172] were withdrawn. That step confined the argument to the ascertainment of the common law rule applicable to the circumstances, without reliance upon any freedom derived from the Constitution. As this is the way in which the parties, properly advised, elected to conduct the case, I am content to determine it accordingly. But this does not warrant, or require, that the Court should ignore the general constitutional setting in which the question for decision arises.
Given that litigation has an inherent tendency to produce dissatisfied parties, emotional upset, occasional outbursts and frustration (and a desire to blame others for adverse outcomes), it is notable that the precise problem now presented for decision is not the subject of a holding of this Court. Decisions of other courts are distinguishable or otherwise unsatisfactory. Their authority cannot relieve this Court of its obligation to examine the question for itself.
There is an old case in the Queen's Bench in England in 1855 [173] arising from an action for libel by a justice of the peace in respect of a petition addressed to the Secretary of State complaining of the justice's conduct during an election. The trial in that case was conducted on the footing that the jury should find whether the petition was addressed to its recipient bona fide. The jury having determined that it was, the Queen's Bench held that the defendant was entitled to judgment. Some of the language of the reasoning of Lord Campbell CJ supports a conclusion that the proper approach was one akin to the application of a defence of qualified (or limited) privilege. But this appears to have been assumed. Accordingly, the question now before this Court was not expressly decided.
A little earlier, the Court of King's Bench of Upper Canada in 1836 in Stanton v Andrews [174] was invited to consider a defence of privilege pleaded to an action brought on behalf of Commissioners of the Court of Requests. That action arose out of a petition addressed to the Lieutenant Governor of the province requesting the replacement of the Commissioners. The headnote suggests that the Court held that the petition was an "absolutely privileged communication", such that no action for libel would lie upon it [175] . Whilst this does appear to have been the opinion of one judge (Macaulay J) [176] it is less clearly the opinion of another (Robinson CJ) for his Lordship expressly averted to the significance of malice which could deprive the petitioner of protection [177] . The third judge (Sherwood J) appears to have considered the defence in terms akin to qualified privilege [178] .
A third case, also from colonial times, is Troughton v McIntosh [179] . There a litigant appealed to a Police Magistrate in New South Wales against a municipal assessment. When the Magistrate held against him, the litigant was heard to say that the decision was attributable to corrupt motives. The Magistrate had the litigant removed from the court but later commenced an action for slander. He recovered a verdict, large for those times, from a jury. By majority [180] the Full Court of the Supreme Court of New South Wales made absolute a rule nisi for a new trial to correct the verdict. The majority considered that the action was not sustainable at law. However, the majority were greatly influenced by the fact that the outburst had occurred, in effect, in the sight and hearing of the court and was thus punishable, properly in their view, as a contempt of court. The dissenting opinion of Simpson J cited several English cases and other authorities which demonstrated that judicial officers had brought proceedings and recovered damages for imputations of corruption or partiality [181] . His Honour also recorded [182] that it "was not contended, and I do not think it could be contended, that if the words complained of in the case now under consideration were spoken of the plaintiff out of Court, an action could not be maintained".
If it is authority for any proposition, Troughton stands for the rule that a judicial officer who should properly have initiated proceedings against a litigant for contempt of court cannot elect instead to proceed in a private suit for damages for defamation. That rule has no application to this case. In any event, the increased use of the contempt power to vindicate an affront to a judicial officer in open court runs contrary to the trend of recent authority in Australia. That trend should not be reversed by promoting punishment for contempt as an alternative to civil redress.
Legal authority therefore offering no simple solution to the problem, it is necessary to provide the solution by analogous reasoning from authority and by reference to relevant considerations of legal history, principle and policy, from the examination of which the answer to the controversy will be found.
First, it is useful to outline the facts alleged in the pleadings upon the basis of which the point of law is to be determined.
Dr Arnold Mann (the appellant) is a medical practitioner. At the relevant time he was carrying on his practice as a consultant surgeon in Canberra. Mr James O'Neill (the respondent) was a special magistrate appointed as such pursuant to the Magistrates Court Ordinance 1930 (s 10H) (the Ordinance), then applicable in the Australian Capital Territory.
It appears that Dr Mann was involved in two proceedings which were determined by Mr O'Neill, each of which he lost and in each of which he appeared for himself. The first was a damages claim brought against him by a discontented patient who seems to have alleged negligence and trespass. Dr Mann apparently moved Mr O'Neill to strike out the claim on the bases that (1) there was no evidence of damage; (2) the claim was vexatious; and (3) the claimant's mental instability would be aggravated by litigation. Mr O'Neill dismissed Dr Mann's application. He also rejected a later application to have the case transferred out of the Small Claims jurisdiction (where costs were not recoverable) to the Magistrates Court (where costs could be recovered). Subsequently, the claim against Dr Mann was heard by another magistrate, Mr Hogan. He dismissed the claim on all grounds, disbelieving the evidence of the plaintiff. But Dr Mann had to bear his own costs.
The second case involved another disputed claim against Dr Mann. This was brought by a company which, at his request, had developed sketches for a possible land subdivision in which he was interested. The company presented an account for $2,000 which Dr Mann contested as a proper charge. Again, the case was heard by Mr O'Neill. He found in favour of the company in the full sum claimed by it against Dr Mann. The details of the foregoing cases matter not. Each is described in a letter relied upon in the pleadings. It is what next happened that presents the problem.
On 20 October 1988, Dr Mann wrote to the then Federal Attorney-General (Mr L F Bowen) a letter of complaint concerning Mr O'Neill. It is not disputed that he also sent a copy of the letter to the Chief Magistrate of the Australian Capital Territory, Mr R J Cahill. Nor is it contested that, at the relevant time, before self-government was granted to the Territory on 11 May 1989, the Federal Attorney-General was the Minister responsible for the administration of justice in the Territory and the Minister administering the Ordinance.
It is unnecessary to set out the full terms of the letter to the Attorney-General. The following extract suffices:
The above Magistrate sits almost exclusively (I believe) in the Small Claims Court of the Australian Capital Territory.
As author of "Medical Assessment of Injuries for Legal Purposes" (Butterworths 1985) now in its fourth edition, I am a frequent expert witness in the ACT Courts
I was therefore somewhat surprised to find myself as the defendant in two cases both of which initially came before Magistrate O'Neill this year.
[There follows a description of the cases summarised above.]
I was astounded at Mr O'Neill's conduct during both of these cases and by his inability to comprehend simple propositions put before him and his irritability (which has been remarked upon by others) which was very noticeable.
As a medical practitioner it struck me that perhaps arteriosclerotic cerebral disease was what was at the bottom of the problem. (I have also taken into account that my disappointment might have influenced my judgment of him.)
I therefore made enquiries of legal practitioners with a view to ascertaining whether my judgment was in fact biased. I am satisfied after my enquiries that not only is it my view that the features of early senile dementia are present in Mr O'Neill's conduct to the extent that he is incapable of conducting a Court in a proper and rational manner but that this is also a view held by a number of senior practitioners of law.
I am a medical practitioner of 35 years standing. It is my medical opinion that Mr O'Neill should be suspended from duties whilst he is examined for fitness to sit as a Magistrate. It would be important in this regard to review the transcript of a range of cases not merely my own and to ascertain the views of legal practitioners who appear before him.
I would also respectfully request that you order the matter [where adverse judgment was entered] to be reheard if that is at all possible.
I have spoken about this to the Chief Magistrate, Mr Cahill and he has requested a copy of my letter to you.
Subsequently on 3 January 1989 Dr Mann wrote a further letter to the Minister for Justice (Senator M C Tate). This letter came to light during the proceedings before Heerey J in the Federal Court. Without objection by Dr Mann, Mr O'Neill was permitted to amend his statement of claim to rely also upon it. This letter read, in part, as follows:
In my letter of complaint to the Attorney-General I stated, as a medical practitioner of 35 years standing, that I suspected a member of the Magistrate's Court was suffering from early signs of senile dementia.
I should have thought that this letter required from you one of the following responses:
I was astounded to learn that your letter made no reference whatsoever to Mr O'Neill's mental capacity to hear cases when his incapacity is the talk of the legal profession in the ACT. I cannot believe that justice can be seen to be done in such circumstances.
Surely it is a matter of grave concern that you are unable to vouch for Mr O'Neill's mental capacity.
I telephoned your office this morning and received a most evasive reply from someone describing himself as one of your principal private secretaries.
I await a reply to my question concerning Mr O'Neill's mental capacity to conduct cases as a Magistrate.
Mr O'Neill commenced his proceedings against Dr Mann on 28 November 1989. His amended statement of claim relied upon the publication of the letters to the Ministers and to the Chief Magistrate. The statement of claim also asserted that Dr Mann had published the first letter, or words "to the same effect" to some other persons, notably senior legal practitioners whom Mr O'Neill could not specify. However, Mr O'Neill stated that, at the trial, he would rely upon such publications.
In his defence, Dr Mann pleaded that he had written the letters to the Ministers "in accordance with my civic duty". He denied the allegation of publication to third persons. He raised textual disputes that are not presently relevant. He then pleaded that the matters complained of were published on an occasion of absolute privilege and also under qualified privilege. In response to the last-mentioned defence, Mr O'Neill, in his reply, pleaded malice on the part of Dr Mann. He moved to strike out the defence of absolute privilege.
For their different purposes, each of the parties referred to the legal provisions then governing the removal from office of a special magistrate, such as Mr O'Neill. Mr O'Neill relied on these provisions to demonstrate how vulnerable a person in his office was to the consequences of a false and malicious communication to the Minister with the effective power to procure the termination of his appointment. For Dr Mann, the provisions demonstrated that he had merely invoked a procedure whereby a special magistrate could be removed if, on inquiry, it was demonstrated that he or she was suffering from a relevant incapacity.
The ordinance contained separate provisions for the appointment of the Chief Magistrate and magistrates (s 7) (on the one hand) and special magistrates (s 10H) (on the other). The former category of magistrate was protected from removal from office by provisions introduced into the ordinance in 1977 [183] . These were designed to provide, in the case of those judicial officers, provisions for removal from office similar to those contained in the Australian Constitution in respect of federal judges [184] . However, the provisions in Pt II Div 2 of the ordinance, in relation to special magistrates, were different. They are set out in the reasons of Gummow J and I will not repeat them.
Given the differentiation of treatment in the ordinance, it is clear that, as a matter of law, special magistrates such as Mr O'Neill were, at the relevant time, liable to removal by the Governor-General, at his pleasure. In practice, in such a matter, the Governor-General would invariably act on the advice of the Executive Council considering the matter on the initiative of the appropriate Minister. At the relevant time this meant the Ministers with whom Dr Mann had corresponded.
Such has been the development of administrative law in Australia in recent years that the provisions of the Ordinance cannot be accepted at face value as stating the entirety of the law governing the removal from office of a special magistrate, at least in circumstances where such removal was effected on the grounds of incapacity. The primary judge drew attention to some of the relevant legal developments. In such a case, the Governor-General would probably be susceptible to judicial review if a breach of the rules of procedural fairness (natural justice) could be shown [185] . Whereas a person passed over for judicial office has been held to have no right to judicial review of the "exclusive province of the Executive" in the matter of appointments [186] , removal from office on the ground of incapacity of a judicial officer already appointed "is another [matter]" [187] . In practice, it seems likely that, were the relevant Minister convinced, by letters such as Dr Mann wrote, that the Governor-General should be advised that his pleasure in the appointment of the special magistrate should be terminated, the Minister would first institute some form of inquiry, however informal, in which the issue of his alleged incapacity would be investigated after notice to the person affected.
I did not take the foregoing assertions to have been contested by Mr O'Neill. Dr Mann argued that they demonstrated that the scheme of the Ordinance, elaborated by the developments of administrative law, envisaged that an inquiry akin to a proceeding before a tribunal, would be established to look into the allegation of incapacity made in his letters, if applicable in combination with other relevant communications received by the Minister. Although, in one other jurisdiction of Australia, legislation had been enacted to provide a statutory procedure for the determination of new complaints against judicial officers [188] and although proposals had been made for a more formal procedure in respect of federal judicial officers [189] , no such statutory machinery had been created in respect of federal and territory judicial officers at the time applicable [190] . An ad hoc inquiry was all that might have been expected. However, any such inquiry would have been obliged to conform to the requirements of procedural fairness. The only way by which it could have been instituted, so Dr Mann argued, was by such letters as he wrote to the two Ministers.
Dr Mann relied upon developments of administrative law in two ways. First, he sought to invoke them in order to attract to his case that category of absolute privilege which, in the past, has attached to judicial proceedings and proceedings of tribunals and inquiries akin to those occurring in courts of law. Secondly, he argued that, just as developments of the common law of procedural fairness had enhanced rights to have certain serious decisions submitted to inquiries of varying degrees of formality, so the common law of absolute privilege would expand to protect such inquiries and participants in them. Amongst the incidents of such an inquiry which would be protected would be a letter addressed to the person having the right and duty to initiate it [191] .
The scope of absolute privilege, applicable to the present case, is not defined by a Code or Act. It must therefore be determined by reference to the common law. At common law, for reasons of public policy, absolute freedom was accorded, in certain limited and defined circumstances, to publish matter about another without risk of being rendered accountable for the truth or falsity of the communication or the bona fides or mala fides that lay behind it [192] . The explanation for the protection of the occasions attracting such absolute privilege is that the importance to society of ensuring free communication on such occasions is taken to require the displacement of the interest of protecting the reputation of a member of society.
In the way of the common law, the occasions attracting absolute privilege (or immunity) from proceedings in defamation have developed as separate categories without a clear unifying concept to explain what it is about each of them (if anything) that justifies attaching to them such an exceptional and complete immunity. That the immunity is wholly exceptional is fully recognised by the law. Ordinarily, subject to any defences that may be available, a person whose reputation is traduced by false and malicious defamation has a remedy. In this respect, the law in Australia simply reflects the international human rights principles that "[n]o one shall be subjected to unlawful attacks on his honour and reputation" and "[e]veryone has the right to the protection of the law against such attacks" [193] . The common law of Australia should be developed by the courts to uphold such basic principles to the fullest extent possible.
Various statements of the law of absolute privilege have attempted to classify the occasions which attract the exceptional immunity. In Odgers, A Digest of the Law of Libel and Slander [194] the categories are grouped under three headings: (i) parliamentary proceedings; (ii) judicial proceedings; and (iii) naval and military affairs. In Spencer Bower's A Code of the Law of Actionable Defamation [195] four categories are proposed, namely (i) where the defamatory matter is published in either House of Parliament by a member thereof in the course of any parliamentary debate or proceeding; (ii) where the defamatory matter consists of any report, paper, votes or proceedings of either House of Parliament, and is published by the order or under the authority of such House; (iii) where the defamatory matter consists of, or is contained in, or forms part of a petition presented to the Sovereign, or to either House of Parliament, or a communication on any question or affair of State by a Secretary, minister or officer of State to the Crown, or to another Secretary, minister or officer of State or any other State document; and (iv) where the defamatory matter is published by any judicial officer, litigant, or witness, in the course, and for the purposes, of any judicial proceeding.
From these earlier attempts at classification, based upon decided cases, more recent texts have tended to reclassify the occasions of absolute privilege (or immunity) by reference to the tripartite structure of modern constitutional government. Thus three categories, variously defined, are offered, viz the proceedings of a parliament, communications by a Minister of State and judicial proceedings. Included in the latter are certain occasions before quasi-judicial tribunals partaking of the requisite features of proceedings before a court of justice [196] .
The scope and rationale for the paramountcy of freedom of communication in the course of proceedings within a legislative body or a court of justice are not really controversial, although criticisms are sometimes voiced of the abuse of absolute privilege, particularly in Parliament [197] . So far as the need to provide immunity from civil action for what is done in, or in connection with the courts, the necessity of the rule was explained by Lord Wilberforce in Roy v Prior [198] in these terms [199] :
The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest. So far as judicial proceedings are concerned, the controversies about the scope of absolute privilege (or immunity) in cases of defamation have generally related to (a) the duration of the protection, ie when in relation to the actual hearing it begins and ends; (b) the instances where non-court tribunals and inquiries may be said sufficiently to partake of the features of a court of justice as to warrant the protection of the immunity; and (c) the connected problem of whether some other communications, incidental or related to the hearing, attract the immunity. 1. See, eg, Australian Law Reform Commission, Unfair Publication: Defamation and Privacy , Report No 11 (1979), p 70. 2. [1971] AC 470. 3. Roy v Prior [1971] AC 470 at 480.
In respect of the duration of the privilege, a number of authorities throw light upon Dr Mann's claims.
In this Court, in Jamieson v The Queen [200] an analogous question arose as to the protection which was given against criminal liability for what was said by an accused person in a statement of claim lodged in a court. The Court held that, even if what was there said was said falsely and without any reasonable or probable cause, the high public interest in assuring parties, witnesses, counsel, juries and judges immunity from an obligation to answer, criminally or civilly, for words spoken in any of those respective offices [201] rendered what was written in the statement of claim exempt from prosecution. Deane and Dawson JJ [202] explained:
[T]he general principle is applicable to assertions contained in a pleading such as a statement of claim, and it has long been recognised that the immunity attaching to words spoken in judicial proceedings extends to words written in the pleadings which are filed (and served) in the ordinary course of such proceedings. Indeed, not surprisingly, words spoken in pleadings provide some of the earliest instances of the application of the principle. 1. (1993) 177 CLR 574. The rule is subject to exceptions for substantive offences such as perjury, contempt of court, perverting the course of justice and conspiracy, where, unless resort could be had to judicial proceedings, the offences could not be proved: Jamieson v The Queen (1993) 177 CLR 574 at 580-581. 2. R v Skinner (1772) Lofft 54 at 56 [ 98 ER 529 at 530]. 3. Jamieson v The Queen (1993) 177 CLR 574 at 583 (footnotes omitted).
More recently in Hercules v Phease [203] , the Appeal Division of the Supreme Court of Victoria held that letters written by two former clients to the Law Institute of Victoria, complaining about their former solicitor, were absolutely privileged upon the ground that they should be characterised as the initiating process of proceedings before a quasi-judicial tribunal [204] . One judge [205] suggested that the absolute privilege was grounded on a broader basis, namely a public policy which sustained the absolute protection accorded to a hearing before the Solicitors' Board. It was this that, in his view, attracted the same protection to the complaint, whether or not it led to a judicial or quasi-judicial hearing.
In Duncan and Neill On Defamation [206] the authors say that [207] :
The absolute privilege extends not only to what is said in the course of the proceedings before the court or tribunal but also to the preliminary documents such as pleadings and proofs of evidence. So far as I have been able to discover, no cases have defined with exactness the point at which the absolute privilege or immunity attaching to judicial or quasi-judicial proceedings terminates. But, as in Jamieson, it is necessary to elucidate that point by reference to the principle expressed long ago by Lord Mansfield [10] . The immunity endures whilst the party, witness, counsel, jury or judge are relevantly "in office" in respect of the legal procedures in question. 1. 2nd ed (1983), p 85. 2. See also Lincoln v Daniels [1962] 1 QB 237 at 257. 3. R v Skinner (1772) Lofft 54 at 56 [ 98 ER 529 at 530].
Most of the debate in the cases concerning the scope of absolute privilege has been addressed to the question whether the immunity should be extended to non-court tribunals and inquiries. The question arose in 1873 in respect of statements made by a witness before a military court of inquiry. The witness suggested that his officer was unfit to command. The officer then sued for defamation. In the Court of Exchequer Chamber, Kelly CB [11] held that:
[I]t may now be taken to be settled law, that no action lies against a witness upon evidence given before any court or tribunal constituted according to law A court of inquiry, though not a court of record, nor a court of law, nor coming within the ordinary definition of a court of justice, is, nevertheless, a court duly and legally constituted, and recognised in the articles of war and many Acts of Parliament [I]t would be unreasonable and unjust to hold [the witness] liable to a heavy punishment if he refuse to answer the question put to him, and liable to an action at law for damages if he answers them and his answers happen to reflect upon the character of another. This opinion was affirmed by the House of Lords [12] . Lord Cairns LC [13] said: [U]pon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a Court of Inquiry of this kind. For some time it was suggested, including in this Court [14] , that the doctrinal basis of their Lordships' decision was that a further exception was created attracting absolute immunity to proceedings within the armed forces of the Crown. That explanation was offered rather than one which would explain that the inquiry in that instance had taken on the relevant characteristics of a court of justice so as to warrant the application to a witness before it of the same legal immunity. Yet against that interpretation stood the reasoning of Lord Cairns. As this century progressed, and as more court-like tribunals and inquiries were established in Australia and in other common law countries, legal reasoning returned to Lord Cairns' explanation. In the words of Lord Atkin in O'Connor v Waldron [15] quasi-judicial bodies posed "[t]he question in every case whether the tribunal in question has similar attributes to a court of justice or acts in a manner similar to that in which such courts act." 1. Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 265-267. 2. Dawkins v Lord Rokeby (1875) LR 7 HL 744. 3. Dawkins v Lord Rokeby (1875) LR 7 HL 744 at 754-755. 4. See Gibbons v Duffell (1932) 47 CLR 520 at 526, 527. 5. [1935] AC 76 at 81.
Particular tribunals and inquiries have been placed on one side of the line or the other. Some have been found sufficiently close in character and proceedings to attract the immunity of a court of justice [16] . Others have been found to be distinguishable in character or proceedings and thus not entitled to immunity but assigned to the defence of qualified privilege [17] .
A long series of decisions in England [18] , New Zealand [19] , the United States of America [20] and now Australia [21] have extended absolute immunity to communications in proceedings before a disciplinary tribunal established to inquire into complaints against legal practitioners. This has been so although some of the features of the procedures of a court of justice (eg hearing evidence on oath and the power to summon witnesses) were not always applicable to such inquiries [22] . The inconvenience of depriving the inquiry, and the participants in it, of absolute protection and the possibility that, so deprived, complainants might be discouraged from advancing legitimate complaints against the conduct of persons essential to the "judicial arm of government" [23] are amongst the reasons sometimes given for extending absolute protection to proceedings in this class of inquiry.
Despite the extension of absolute immunity by decisions, some of which I have cited, the general bias of the common law remains antagonistic to the extension of absolute privilege.
The strength of this resistance was important to this Court's resolution in Gibbons v Duffell [24] . It was there held that a report made in the course of his duty by an inspector of police to his superior officer, containing defamatory references concerning a subordinate officer, was not the subject of absolute privilege. In so holding, this Court reversed the decision of the Full Court of the Supreme Court of New South Wales [3] . The presumption against the privilege and the disfavour to its extension expressed in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [4] was central to this Court's reasoning [5] . Evatt J [6] , for example, cited with approval the comment of Mr E E Williams in 1909 [7] :
Absolute immunity from the consequences of defamation is so serious a derogation from the citizen's right to the State's protection of his good name that its existence at all can only be conceded in those few cases where overwhelmingly strong reasons of public policy of another kind cut across this elementary right of civic protection; and any extension of the area of immunity must be viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated. There are many similar assertions of this approach [8] . 1. (1932) 47 CLR 520. 2. (1931) 32 SR (NSW) 31. 3. [1892] 1 QB 431. 4. See Gibbons v Duffell (1932) 47 CLR 520 at 528, per Gavan Duffy CJ, Rich and Dixon JJ; at 529, per Starke J; at 534, per Evatt J. 5. Gibbons v Duffell (1932) 47 CLR 520 at 534. 6. Absolute Privilege for Licensing Justices, Law Quarterly Review, vol 25 (1909) 188, at p 200 . 7. Stevens v Sampson (1879) 5 Ex D 53; 49 LJ(QB) 120; Odgers, Digest of the Law of Libel and Slander, 5th ed (1911), p 230; Rajski v Carson (1988) 15 NSWLR 84 at 91-92; Purdew v Seress-Smith [1993] IRLR 77 at 79-80, per Macpherson J.
Nor are the courts alone in voicing hesitation against expansion of the categories of absolute privilege. Law reform bodies have, with one voice, expressed similar views. The Australian Law Reform Commission, in its review of the law of defamation, rejected submissions that it should recommend the limitation of absolute privilege, particularly in the case of parliamentary proceedings where many complaints were received of abuse and use for improper motives. The Commission commented that [9] "[m]any important functions, of a quasi-judicial nature, are now entrusted to administrative tribunals". Its recommendations relevantly proposed that the immunity be extended to "all courts and tribunals conducting an inquiry, hearing or proceeding in any place under the authority of a law or under the executive power of the Commonwealth or of a State" [10] . Under the Commission's proposal, which has not been enacted, absolute immunity might have been attracted to the conduct of an inquiry initiated by the Governor-General into a complaint of incapacity against a judicial officer. But the Commission was there consciously expanding the categories of tribunal protection. It held back from any wider expansion.
In a more recent report on the law of defamation, the New South Wales Law Reform Commission noted [11] , in respect of investigative and disciplinary bodies, that it was "not always clear whether their proceedings are judicial proceedings for the purposes of absolute privilege at common law" [12] . The Commission remarked on the range of legislation in New South Wales under which Parliament has expressly provided absolute privilege to the proceedings of specified bodies [13] . It recorded various submissions from private and public bodies seeking absolute privilege. But it concluded that it was not persuaded of the need to amend the general law on absolute privilege [14] . It contented itself with recommending a clarification of the law; but not its expansion [15] .
Some text-writers have suggested expansion of absolute privilege to particular categories of communication not presently covered. Thus Professor John Fleming in The Law of Torts [16] suggested that communications between spouses should be so protected. This proposal was rejected by the Australian Law Reform Commission [17] .
Other authors have proposed a still further category, related to judicial proceedings, namely communications by clients with a legal practitioner [18] . In this connection reliance is usually placed upon the decision of the English Court of Appeal in More v Weaver [19] . But that decision was doubted by the House of Lords in Minter v Priest [20] . In Gibbons v Duffell [21] this Court observed that "[h]ow far communications between solicitor and client obtain an unqualified protection is not yet finally settled".
A review of the foregoing authorities sustains these general conclusions:
The common law on absolute privilege as a defence to defamation proceedings has developed case by case without the coherency of a clear unifying concept.
Because absolute privilege deprives an individual who claims to have been defamed of the protection of the law as to his or her reputation, there is a general bias against expanding the categories previously established.
Nonetheless, during the course of this century, and particularly in respect of the scope and ambit of judicial proceedings and disciplinary proceedings, the categories have been extended by judicial decisions, even if their essential definitions have not changed.
In this extension, the common law has done no more than to reflect the reality of the large numbers of quasi-judicial inquiries and tribunals which have been established in all jurisdictions, which inquiries and tribunals have similar needs for the protection of participants to those which first gave rise to absolute immunity for what occurred in courts.
Although the common law develops independently of statutory law [22] , the latter, with its repeated extension of absolute privilege to particular tribunals and inquiries has produced a legal context in which absolute privilege is perhaps less exceptional today than it was when Gibbons v Duffell was decided. Yet the same grounds for hesitation against expansion of absolute privilege exist. It is always open to the legislature, where it thinks fit, to afford such immunity in a particular case. It has often done so.
This much is common to the categories of absolute privilege which are undoubted. They relate to essential communications within the legislative, executive, judicial and quasi-judicial activities of government which are strictly necessary for the effective performance by those organs of government of their functions. There must be a special need in them to ensure the fearlessness of expression and to remove the risk of litigation such as to attract a protection which deprives an individual who is defamed by malicious falsehood of any right of redress and effectively puts the communicator beyond the ordinary sanctions of the law.
When so explained, it will be understood why absolute protection or immunity is still regarded as wholly exceptional and why the courts, which uphold the rule of law, are unsympathetic to its expansion.
Dr Mann accepted the principle of restraint in the expansion of the reach of absolute privilege. But for three reasons, he suggested that his case was within the exceptional class.
The first reason, as I understood it, was that the letters complained of were written by him to the respective Ministers out of his sense of "civic duty". It was that duty which motivated the writing. It also gave the recipient Ministers the reciprocal interest and duty to receive his communications. Initially, in the written submissions, this argument was advanced on a constitutional foundation which relied upon the recent development in this Court of the implied freedoms to communicate with others in matters affecting the certain political concerns essential to the system of government established by the Constitution [23] . Notices of a constitutional matter were given but, as I have said, the matter was not pressed at the hearing.
This course of events limited Dr Mann to an argument that the common law assured him of a completely unfettered access to the relevant Minister to express his views without inhibition or fear of retaliation. In the case of doubt, the law of absolute privilege should, he asserted, be refined and expanded in the context of a free society where individuals enjoy that privilege. Having concern about the capacity of a judicial officer whose decisions had affected him, and would continue to affect others, there was a high public interest to sustain the provision of immunity to an individual when he or she, in the public interest, communicated that concern to a proper person with the requisite power to do something about it. It was not in the public interest to expose such an individual to the risks, costs and worries of litigation for exercising the undoubted privilege to bring alleged facts before the proper authority for investigation touching a person in public office.
The right of an individual in our form of society to petition government is certainly an important right. It is long recognised in our legal system. As Burger CJ pointed out in the Supreme Court of the United States [24] , the historical roots of the legal entitlement to petition the organs of government for redress antedate the express provisions of the right of petition in the First Amendment to the United States Constitution and reach back to English constitutional law:
In 1689, the Bill of Rights exacted of William and Mary stated:
"[I]t is the Right of the Subjects to petition the King." 1 Wm and Mary, Sess 2, ch 2. This idea reappeared in the Colonies when the Stamp Act Congress of 1765 included a right to petition the King and Parliament in its Declaration of Rights and Grievances. See I B Schwartz, The Bill of Rights - A Documentary History 198 (1971). And the Declarations of Rights enacted by many state conventions contained a right to petition for redress of grievances. See, eg, Pennsylvania Declaration of Rights (1776).
In Halsbury's Laws of England [25] it is explained that the provision of the first section of the Bill of Rights of 1688 was found to be necessary because of the Seven Bishops' Trial [26] . That was one of the causes of the revolutionary expulsion of King James II from the Kingdom. Thus, for a long time, the right of petition has been part of the law and was received into Australia on settlement.
In Harrison v Bush [27] Lord Campbell CJ explained:
In this land of law and liberty, all who are aggrieved may seek redress; and the alleged misconduct of any who are clothed with public authority may be brought to the notice of those who have the power and the duty to inquire into it, and to take steps which may prevent the repetition of it. Although originally expressed as being the right of the subject to petition the Sovereign, in modern Australian circumstances, it may be accepted that the right extends to an entitlement of anyone to petition the Parliament and the Executive Government for redress. 1. (1855) 5 El & Bl 344 at 349 [119 ER 509 at 512].
No-one questioned Dr Mann's entitlement to petition the Ministers to whom he wrote for redress of a grievance which he felt was justified. The question, under this first head of argument, was rather whether that entitlement could not be effective without affording a petitioner absolute protection, ie complete legal immunity, for whatever was written in the communication.
Such a contention must be determined against Dr Mann. In McDonald v Smith [28] the Supreme Court of the United States rejected a similar suggestion. It did so despite the express provision amongst the First Amendment constitutional guarantees in that country of "the right of the people to petition the Government for a redress of grievances". Furthermore, the suggestion of absolute immunity was rejected despite the doctrine in the United States that the right of petition was, apart from express provision, implicit in "[t]he very idea of a government, republican in form" [29] . By this it was explained that a system of government which derived its legitimacy from the will of the people might not prevent the communication of that will, including through direct petitions, to the legislature and government officials answerable to the people [30] .
The opinion of the United States Supreme Court on this point was unanimous. Even so stalwart a defender of First Amendment rights as Brennan J concurred, in a separate opinion, in the rejection of absolute immunity. There was, it is true, some early common law authority in the United States which supported the view that a defamatory petition enjoyed an "absolute and unqualified indemnity from all responsibility" [31] . But that view did not find general favour in the United States. Under State common law, damages might be recovered; but only if the petitioner could be shown to have acted with "malice". This limited privilege was held by the Supreme Court to be consistent with the general principle applicable to other First Amendment protections as stated in New York Times Co v Sullivan [32] . By that decision, the protection of the First Amendment would be lost if malice could be shown on the part of the communicator in the sense of "knowledge at the time that the words are false, or without probable cause or without checking the truth by the means at hand" [33] .
Burger CJ, writing for the Court, put it thus [34] :
We hold that the Petition Clause does not require the State to expand this privilege into an absolute one. The right to petition is guaranteed; the right to commit libel with impunity is not. To like effect in the Supreme Court of the United States, Brennan J [35] found the English and colonial decisions equivocal. He rejected the suggestion that the constitutional petition clause was functionally of such a character as to attract a higher level of protection than other free speech guaranteed by the First Amendment. He concluded [36] : There is no persuasive reason for according greater or lesser protection to expression on matters of public importance depending on whether the expression consists of speaking to neighbours across the backyard fence, publishing an editorial in the local newspaper, or sending a letter to the President of the United States. It necessarily follows that expression falling within the scope of the Petition Clause, while fully protected by the actual-malice standard set forth in New York Times Co v Sullivan, is not shielded by an absolute privilege. 1. McDonald v Smith (1985) 472 US 479 at 485. 2. With the concurrence of Marshall and Blackmun JJ. 3. McDonald v Smith (1985) 472 US 479 at 490.
Against the background of this exposition of the law in the United States of America, where the foundation for the argument, akin to that first advanced for Dr Mann, is so much stronger, I am not persuaded that general governmental functions in Australia require expansion of the common law of absolute privilege to afford complete legal immunity for anything said in a letter to a Minister which may be accepted as equivalent to a petition for redress of grievances. The right to petition for redress or complain to authority is unquestioned [37] . But it cannot be said that its very nature requires that in every case what is written is absolutely immune from an action for defamation however false or malicious it might be. It would be remarkable if our common law required the contrary conclusion where the Supreme Court of the United States, applying the express right in the constitution of that country, has held otherwise. The first argument is therefore rejected.
The second argument advanced for Dr Mann was that his communication to the Minister should be seen as, in a sense, the final step in his litigation, determined adversely to him by Mr O'Neill, whereby he was ordered to pay the sum which he disputed. Just as this Court in Jamieson v The Queen [38] , in another context, had to consider when the process of invoking the jurisdiction of a court commenced, so in this case, it was suggested, the Court had to determine when the process of the Small Claims Court was terminated. In the letter to the Attorney-General, Dr Mann had stated "I respectfully request that you order the matter to be reheard if that is at all possible". It was conceded for Dr Mann that no power existed in the Attorney-General to so order. But it was argued that the letter to the Minister was in the nature of a layman's notice of appeal. It was thus entitled to the protection of the absolute privilege attaching to judicial proceedings until their completion.
This argument is untenable. The applicable principle, as was pointed out in Jamieson [39] , derives from the immunity attaching, relevantly, to a party, such that he or she cannot be "put to answer, civilly or criminally, for words spoken in office " [40] . In writing to the Ministers, Dr Mann was not writing in the office of a party to litigation in the Small Claims Court. That litigation had concluded. The Minister could do nothing about it. The proper analysis of the letters is that they were written, if in any office, in that of a citizen. The redress sought was not redress which could affect either party to the litigation, the outcome of which had prompted the letter. The argument (which does not appear to have been advanced below) is completely without legal merit.
There is no analogy between a statement of claim, or for that matter a notice of appeal, and a letter of complaint to a Minister. The former documents are necessarily of a semi-formal character. They are filed in the registry of a court or court-like body. They invoke a jurisdiction inter partes. Typically they are subject to the filter, the supervision and discipline of the body in whose registry the document is filed. These features impose upon the person filing such a document a measure of prudence and self-control which a letter to a Minister may not reflect. The second argument is also rejected.
Initiation of an inquiry: arguments for the analogy
That leaves the last, and most powerful argument advanced for Dr Mann. This was that, his letters, like those written in Hercules v Phease [41] , although informal, were the proper initiating documents for a process of discipline against a judicial officer whom he considered to have manifested signs of incapacity. Although no clear legal authority supported the analogy, it attracted the support of Heerey J at first instance and of Carr J (dissenting) in the Full Court. Both of their Honours drew on the broader foundation suggested by Marks J in Hercules to provide support in public policy for the extension of absolute privilege (or immunity), to letters classified as designed to initiate an inquiry into the suggested incapacity of a judicial officer.
Here the truly difficult point in this appeal is reached. To illustrate its difficulty, I will mention first the main reasons of policy and principle which support the suggestion that this case is one to be catalogued with the absolute immunity of disciplinary proceedings and with the protection accorded to the initiation of a quasi-judicial inquiry:
Judicial officers, including special magistrates, are members of the judicial branch of government. The reasons of public policy which have attracted absolute privilege to inquiries into professional discipline of legal practitioners may be said to apply with even greater force to members of the judiciary. Statute apart, it would be a somewhat curious outcome that a letter written to the appropriate person to complain about a solicitor was protected by absolute privilege at common law whilst a letter written about the suggested incapacities of a judicial officer was not.
In the event, no inquiry was initiated in this case. But if because of the nature of the complaint, on its own or in combination with other similar complaints, the Minister had decided to act, some form of inquiry would have been inevitable to accord procedural fairness to an incumbent judicial officer. The mere fact that such inquiry might lack power to administer an oath or to compel witnesses would not, any more than in the cases of some professional disciplinary bodies, render such an inquiry alien to the character and procedures of those which have been held to attract absolute privilege. An inquiry into the capacity of a judicial officer, which it was the purpose of the letters to initiate, would, on the face of things, be at least as serious and deserving of protection as an inquiry into the fitness of a headmaster [42] .
The reasons for encouraging free expression, and discouraging harassment of a complainant, and the considerations of convenience and public policy which have been mentioned in the cases, arguably favour the right of the individual to communicate with the responsible Minister on the subject of alleged judicial incapacity or partiality without any fear of retaliation. The inhibitions which might prevent even proper claims being brought against a solicitor could apply with even greater force in the case of a complaint against a judicial officer. Yet it could be in the public interest, and particularly in the interests of other litigants, that such complaints be received, accumulated, analysed and ultimately acted upon, where appropriate, for the protection of the capacity and integrity of the judicial branch of government.
The fact that, at the relevant time, no legislation had been enacted to provide for a statutory body to receive and consider complaints (as was afforded by the provisions of the Legal Profession Practice Act 1958 Vict (s 38Q), considered in Hercules [43] ) should not be determinative, any more than was the absence of legislation to govern disciplinary proceedings against a barrister before one of the Inns of Court in London [44] . The Executive Government has the undoubted power to institute an inquiry. In the absence of a more formal procedure, a letter was the only way by which a complainant could initiate such an inquiry.
The letters in question were treated as having been written to the Ministers alone (although the first letter to the Attorney-General was also supplied to the Chief Magistrate). How these letters came to the notice of Mr O'Neill is not disclosed. Any broader publication would, on no account, attract absolute privilege and might attract no privilege at all [45] . The sole issue is whether an individual with a grievance should have free and uninhibited access to the persons in government with the interest and duty to institute an inquiry if they were convinced that such should be done.
Judicial officers must, at least in modern circumstances in Australia, have broad shoulders. They must tolerate a high measure of public and private criticism, some of it (but not all) uninformed, erroneous and even malicious [46] . For the most serious cases of wrongful attacks upon judicial officers the law of contempt remains in some circumstances [47] . A judicial officer would not be entitled to bring an action for defamation if the same or similar complaints about suggested incapacity had been made in a notice of appeal.
The prospect of litigants being sued by judicial officers against whom a complaint is made is generally unseemly and undesirable [48] . The hearing of such an action might be assigned to a court inferior to that in which the judicial officer sits. The complainant might be discouraged from pursuing proper complaints by a concern that the judicial officer will enjoy advantages within the legal system. In most cases, meritless or unproved complaints could safely be left to the recipient to dispose of, as was considered appropriate. In a small number of cases the complaint might be justified and, as such, would not otherwise come to the notice of those with the power to act for the protection of the public.
I acknowledge the force of these considerations of public policy. They are properly taken into account in deciding where the line dividing absolute immunity from qualified privilege is to be drawn in this case [49] . However, I have concluded that the common law does not accord absolute privilege to a complaint to a Minister about a judicial officer. My reasons are these:
The accepted authority of this Court governing the approach to the problem before it is strongly unfavourable to the expansion of the categories enjoying absolute protection. The rule is not fashioned by judges for their own protection. It derives from the respect which our legal system accords to the civic rights of individuals, including the protection of their reputation. There is a high public interest in maintaining that protection grounded as it is in universal rights. Courts should only deprive an individual of fundamental civic rights (and particularly those recognised as universal human rights) where there is clear authority of law to do so. Such authority is absent in this case. The weight of authority requires, or strongly favours, a defence of qualified privilege and no more [50] . Any expansion to a case such as this should be left to the Parliament.
Many of the considerations as to why action by a judicial officer may be undesirable (set out above) help to explain why an examination of the case books reveals that very few such actions have been brought. Few judicial officers would expose themselves to the perils and potential costs and indignities of litigation. Most would have sympathy for the attitudes of propriety expressed by the majority in Troughton v McIntosh [51] . The problem, therefore, scarcely cries out for an exceptional solution. The considerations which persuade McHugh J to the opposite conclusion provide a reason why, at least in most cases, an action should not be brought by a judicial officer. They do not resolve the question of whether, by law, it may not be brought. Whilst judicial officers should ordinarily be expected to exhibit a high degree of tolerance of criticism and adverse comment, they are citizens too. They are subject to the law; but are not outside its protection, including for their good name. They should not be subjected, completely without redress, to false and malicious allegations which damage their reputation unless the law in a very narrow band of cases and for exceptionally strong reasons of history, policy or principle, puts them outside its protection.
The case of Hercules [52] , assuming it to have been correctly decided, is clearly distinguishable. The majority opinions in that case rested squarely upon inferences derived from the scheme and structure of the legislation there under consideration. Whilst it is true that legislation is not essential for the provision of absolute privilege, its absence deprived Dr Mann of the foundation upon which the majority in Hercules rested their opinion. Inherent in a statutory scheme of complaints is the necessity to initiate the procedure provided by Parliament. No such statutory arguments were available here. Dr Mann's case had to be brought upon common law elaboration of the short statutory provisions whereby Mr O'Neill held his office as a special magistrate at the pleasure of the Governor-General and lacked the protections against removal which "by law" federal judges and permanent magistrates enjoyed.
To afford absolute privilege to any letter, however written, with whatever motives and however false and malicious the allegations might be, upon an analogy of the initiating proceedings in a court of law or quasi-judicial tribunal is completely unpersuasive. The very public character of courts and most tribunals, and the powers of superintendence and control of their process which they typically maintain, put a brake upon the worst excesses of falsehood and malice [53] . An unrestrained letter to a Minister might not exhibit such self-control. In modern public administration, such a letter might be seen by many officers. It could become known and attract questions in Parliament, applications under freedom of information legislation or other attempts to bring it to public light in circumstances where it could be repeated and damage its subject quite unjustly. To accord it absolute privilege, no matter who its author was and regardless of any falsehood and mala fides goes beyond what is necessary for the achievement of the essential purposes of such a letter. It is true that withholding absolute privilege might sometimes result in inhibitions upon such correspondence. But that might not necessarily be a bad thing if it encouraged the author of the complaint to restrict the communication to truthful allegations, checked by reference to reasonably available evidence and confined to that which was necessary and could be said bona fide and upon personal knowledge.
It was accepted for Mr O'Neill that the communication by Dr Mann to the Ministers would attract qualified privilege. This means that, to succeed in his action for defamation, Mr O'Neill would have to demonstrate that the matter complained of was published maliciously, as he pleaded. Imposing that burden upon a plaintiff in the position of Mr O'Neill is no trifling matter. The obligation provides a substantive check both against the abuse of the privilege and also against any improper or misguided institution of proceedings for defamation. To defeat the qualified privilege, the plaintiff must prove malice.
No authority from any common law country could be cited which gave clear and conclusive support to the proposition that absolute privilege attached in these circumstances. In so far as the authority of the Supreme Court of the United States [54] throws light upon the matter, it is strongly against Dr Mann's contention. Even the express constitutional privilege of petition to the government enjoyed in that country does not shield the petitioner absolutely from liability for defamation. The privilege of the petitioner may be defeated by proof of malice.
This conclusion relieves me of the requirement to deal with two pleading problems, one of which was raised in argument.
For Mr O'Neill it was put that, even if the letter to the Minister were absolutely protected, the copy letter provided by Dr Mann to the Chief Magistrate would not be accorded immunity from action. Similarly, the residual claim in par 6 of the amended statement of claim that the defendant had published the first letter, or words to the same effect, to "other persons notably senior practitioners of law" was not specifically dealt with when the entire action was dismissed by the primary judge. By his defence, Dr Mann disputed the allegation. Arguably there was an issue for trial on that count. However, in light of my conclusion, the entire proceedings will now be returned for trial but without the defence of absolute privilege. That defence was rightly struck out by the Full Court of the Federal Court.
Mann
O'Neill
(1940) 64 CLR 130
(1960) 104 CLR 186
(1932) 47 CLR 520
(1986) 46 SASR 1
(1993) 177 CLR 574
(1990) 170 CLR 1
(1994) 49 FCR 370
(1994) 54 FCR 212
(1982) 30 SASR 50
(1994) 182 CLR 104
(1947) 75 CLR 293
(1984) 153 CLR 682
(1983) 152 CLR 238
(1994) 68 ALJR 169
(1994) 68 ALJR 429
(1969) 121 CLR 432
(1938) 60 CLR 431
(1986) 6 NSWLR 534
(1991) 24 NSWLR 691
(1992) 37 FCR 234
(1982) 151 CLR 342
(1987) 163 CLR 378
(1992) 177 CLR 106
(1992) 177 CLR 1
(1997) 189 CLR 520
(1988) 15 NSWLR 84
(1987) 164 CLR 1
(1940) 64 CLR 206