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. As Pearce LJ stated in Addis v Crocker :
'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'." (citations omitted)
85 In Lincoln v Daniels at 260 Diplock LJ thought that absolute privilege "might well" cover, in addition to a witness' proof, instructions given by a party to his solicitor for the preparation of a statement of claim or like document. There is a sound basis for the letter of 13 July 1998 attracting absolute privilege, because instructing a solicitor to bring the proceedings is incidental to and necessary for their commencement.
86 The cases provide less guidance material to the subsequent publications, which were not concerned with obtaining the orders of the Family Court but in different ways with giving effect to them. Giving effect to orders made by courts can be said to be practically necessary for the administration of justice, but again whether absolute privilege attaches to the subsequent publications, and what was said in them, was not the subject of submissions. Assistance from submissions is desirable, particularly given the High Court's reference to viewing the extension of absolute privilege with jealous suspicion.
87 It may also be that there is a wider basis for absolute privilege within which the publications fall, that referred to in Gibbons v Duffell (1932) 47 CLR 520 at 528 and noted in the reasons of Brennan CJ, and Dawson, Toohey and Gaudron JJ, that absolute privilege for communications between officers of State in the course of their official duties is "indispensable to the effective performance of … official functions". The submissions before Smart AJ did not engage in any depth with the relevant law, or so far as appears consider possibly different positions of the different publications. His Honour did not express firm conclusions: he said that it was "not easy to see" how the claim for absolute privilege could be surmounted, and that the defamation claims "appeared to be" futile.
88 Without closer attention to the law and its application to the occasions of publication of the separate publications, which did not occur in the hearing of Mr Markisic's leave application in this Court, Smart AJ's disposal of the defamation claims should in my view be reviewed; but in the absence of proper submissions I do not think that this Court should decide whether, to the level of arguability appropriate to leave to apply to re-plead the defamation claims, absolute privilege attaches or does not attach to the occasions of the publications and, if the publications are in different positions, to which ones. This Court should not embark on that task without the assistance of proper submissions, nor would it be fair to the parties to do so; and the task is better undertaken by a judge at first instance, with the benefit of proper submissions.
89 The defamation claims, if they can be supported in fact and law and entitle Mr Markisic to damages for injury to his reputation, can not be regarded as trivial. They are brought against the State and the Commonwealth, on allegations that the publications were published by their officers and agents. They are not dependent on flaws in the proceedings in the Family Court or in the implementation of the orders of that Court. In my opinion, leave to appeal from Smart AJ's decision should be granted so far as his Honour refused leave to apply to re-plead the defamation claims, and the appeal should be allowed; not with a holding in this Court adverse to absolute privilege, but in order that in the application to re-plead the defamation claims there can be considered, if the State and the Commonwealth oppose the application on that basis, whether the application should be refused because the defamation claims are futile.
90 Allowing the appeal to this extent means the grant of leave to apply to re-plead the defamation claims, but the leave does not permit Mr Markesic to add to the publications on which he relies or to the imputations attributed to the publications. The re-pleading will only be to put in proper form the substance of the defamation claims in the fresh draft amended statement of claim. Nor does anything I have said restrict the State and the Commonwealth in the grounds on which they may oppose the grant of leave to re-plead.
91 The leave to apply to re-plead is only as to the defamation claims. The orders of Smart AJ otherwise dismissing the proceedings against the State, and dismissing the proceedings against the Trustees, Qantas, Justice Flohm, Chief Justice Nicholson and Justice Rowlands remain, and save as to the defamation claims the proceedings against the Commonwealth are dismissed. Since all that potentially remains of Mr Markisic's proceedings is the defamation claims, the proceedings should be entered in the Defamation List and come before a judge in that List.
92 It is not necessary to go to the affidavits served by Mr Markisic in compliance with the Court's order of 1 May 2006.
93 While Mr Markisic may be able to continue with the defamation claims, they occupied very little of the written or oral submissions. Mr Markisic has in real terms failed on the application for leave to appeal and the application for leave to cross-appeal, and in the disposition of costs no more than a small alleviation of the costs payable to the State and the Commonwealth is appropriate.