High Court - Procedure - Interlocutory injunction to restrain television broadcast - Prevention of further defamation.

High Court - Procedure - Appeals - Special leave to appeal from primary judge.

2. The respondent be released from further observance of its undertaking given to the Court on 2 May 1996 and extended on 3 May 1996.

3. Exhibits C and D be handed out to the applicant's solicitors for return by 11.00 am on 8 May 1996 to the solicitors for the respondent.

6. The applicant pay the respondent's costs of the motion.

revision prior to publication in the Commonwealth Law Reports.

GUMMOW J. On 2 May 1996, the applicant instituted in this Court two applications for special leave to appeal; one from the Supreme Court of New South Wales and the other from the New South Wales Court of Appeal. In each case the decision against which special leave is sought denied the applicant interlocutory relief. The nature of that relief differed.

2. The first application seeks special leave from the judgment and orders of a judge of the Supreme Court of New South Wales (Levine J) of 29 April 1996. The applicant had sought to restrain, pending the determination of an action for defamation commenced by him against the respondent in the Supreme Court on 14 March 1995, the broadcasting by the respondent of a certain television programme. This contains material concerning alleged conduct of the applicant which supposedly occurred many years ago. Indeed, at least some of the conduct in question is said to have been engaged in by the applicant as long ago as 1974.

3. The evidence before this Court includes, as it did in the Supreme Court and Court of Appeal, video tapes containing two versions of this television programme. The second is an edited version of the first and is designed for transmission in New South Wales, whilst the first, the unedited version, is to be shown outside that State. I have viewed the relevant exhibits, Exs C and D, out of court. The material in Exs C and D would be transmitted under the title "The Dark Side". An account of the contents of Exs C and D is set out in the reasons for judgment of the Court of Appeal. In that respect those reasons should be read with this judgment. The identity of none of those levelling accusations against the applicant is revealed. Nor, save in one case, is their physical appearance. Some of the allegations are made directly, others by hearsay.

4. The defamation action concerns the transmission by the respondent, on 13 March 1995, of a segment of the programme "Today Tonight" dealing with what have been described as the "Grusovin allegations" made against the applicant in the New South Wales Legislative Assembly. This action is not yet ready for trial. A further amended statement of claim was filed on 29 March 1996. Since the insertion (by the Defamation (Amendment) Act 1994 (NSW), with effect from 1 January 1995) of s 7A of the Defamation Act 1974 (NSW), the role of a jury at the trial will be greatly reduced. Its only function will be to determine whether the matter complained of carries the imputations alleged, and, if so, whether they are defamatory of the plaintiff. Defences will be for the judge alone.

5. The second application for special leave to this Court is against the judgment and orders of the New South Wales Court of Appeal of 2 May 1996. That Court (Priestley, Handley, Cole JJA) dismissed an application to it for injunctive relief restraining the broadcasting by the respondent of the material in Exs C and D pending the determination of an application to the Court of Appeal for leave to appeal against the orders of the primary judge of 29 April 1996. The applicant makes the point, which is of substance, that in its detailed reasons for judgment the Court of Appeal dealt with the issues which would arise on the hearing of the application for leave to appeal. No criticism is directed at that course. Indeed, it has greatly facilitated the treatment in this Court of the present motion. However, it is in these circumstances that the applicant seeks to pursue the alternative avenue of a direct appeal from the primary judge.

6. In Sanofi v Parke Davis Pty Ltd (No 1) (1), Gibbs CJ, Stephen and Mason JJ stated the established practice of the High Court as being:

"(T)o refuse special leave to appeal in a case in which an appeal

can be taken to a Full Court of the Federal Court (or of a Supreme Court), unless that Court has already decided the very question in another case and is bound, or at least virtually certain, to reach the same conclusion in the instant case".

7. The applicant submitted to the Court of Appeal that there was a serious issue as to a sufficiently arguable case that the transmission of "The Dark Side" would be sufficiently likely to be (i) a contempt of court with respect to the defamation action now on foot, (ii) a contempt of the current Royal Commission instituted in New South Wales by Letters Patent dated 13 May 1994 and 30 November 1994 which appointed a judge of the Supreme Court of New South Wales as Royal Commissioner and is known as the "Police Royal Commission", and (iii) a further defamation of the applicant.

8. With respect to (ii), it should be noted that additional powers are conferred upon the Police Royal Commission by the Royal Commission (Police Service) Act 1994 (NSW). The evidence before the primary judge included eight notices to attend and produce documents, issued by the Royal Commissioner and directed to the applicant or his solicitors. Some at least of the notices were drawn in very broad terms. This and other material which was in evidence provided ample support for the conclusion, apparently accepted by the Court of Appeal, that the applicant is under investigation by the Police Royal Commission in such a way as to indicate that he might be regarded as a relevant offender within its terms of reference. I should make it clear that there is no evidence of anything but compliance by the applicant and his solicitors with those notices.

9. There is presently in force an undertaking to this Court by the respondent that, without earlier further order, it will not before 4.00 pm on 6 May 1996 broadcast or transmit the material contained in Exs C and D.

10. The special leave applications are not ready for hearing. Now before this Court for decision is a motion filed 2 May 1996. In it the applicant seeks orders which would have the effect of turning into injunctive form the present undertaking and continuing its effect pending the determination of the applications for special leave to appeal.

11. The nature and circumstances of this litigation, by which I mean the proceedings stemming from the application for interlocutory injunctive relief, pending determination of the defamation action, made to the primary judge, indicate that the balance of convenience favours the applicant. The apprehended risk or loss to the applicant by publication of Exs C and D significantly outweighs any apprehended loss to the respondent by reason of further delay in the transmission of the programme pending determination of the special leave applications. Further, the applicant sought from the Court of Appeal, but was refused, injunctive relief in aid of what at that stage were the proposed applications to this Court for special leave (2).

12. As indicated, the present motion in this Court seeks not a stay of orders already made but the making of fresh orders, injunctive in nature. In that regard, I refer to the following passage, with which I respectfully agree, in the judgment of Gaudron J in Elliott v Seymour (3). Her Honour said:

"It was argued for the applicants that, given the nature of the

case, the only question relevant to the grant of interlocutory relief is whether there is a prospect that special leave will be granted. That can be taken as correct, particularly in so far as the relief claimed is essential to the preservation of the subject matter of the proposed appeal. However, something should be said as to the prospect that special leave will be granted. It was put for the applicants that the case involves the liberty of the subject and that, in accordance with Narain v Director of Public Prosecutions (4), all that is required is that that prospect should not be insubstantial, rather than that there should be a 'substantial prospect' as required in Jennings Construction Ltd v Burgundy Royale Investment Pty Ltd (No 1) (5).

It is to be remembered that this is an application for an

interlocutory injunction, not for the stay of a final judgment. Interlocutory relief always depends on there being a probability that final relief will be obtained. Inevitably, the question whether there is a prospect of special leave being granted in a case involving the refusal of interlocutory relief depends on whether there is a probability of ultimate success. Thus, whether the matter is approached on the basis of a not insubstantial prospect or a substantial prospect (assuming there is a shade of difference between the two), the present applications must pass the threshold point which involves some consideration of the prospects of final success. That is only to give more particular content to the rubric that it is only in exceptional cases that there will be a grant of special leave from a decision involving the refusal of interlocutory relief (6)."

13. The Court of Appeal rejected the submission that the proposed broadcast would create a real or definite possibility of prejudice to the administration of justice in the applicant's pending defamation action. In so doing, the Court accepted as a "basic test" whether the publication would have a clear tendency "as a matter of practical reality" to interfere with the due course of justice.

14. The Court of Appeal then turned to the submissions as to apprehended contempt of the Police Royal Commission. Section 18A of the Royal Commissions Act 1923 (NSW) ("the Royal Commissions Act") states:

"(1) A person is guilty of contempt of a commission if the person

does or omits to do anything which would, if the commission were the Supreme Court, be contempt of that Court or if the person disobeys any order or summons made or issued by the commissioner.

(2) For the purposes of this Division, 'offender' means a person

guilty or alleged to be guilty of contempt of a commission."

Section 18B provides that a contempt may be punished in accordance with that section upon presentation by the Commissioner to the Supreme Court of a certificate (which is prima facie evidence of the matter certified) setting out the details which the Commissioner considers constitute the contempt; upon such presentation the Supreme Court shall inquire into the alleged contempt and may inflict punishment.

15. There are, as outlined by counsel for the applicant in his closely reasoned submissions to this Court, issues of construction of these provisions. They attempt to blend an adjunct of judicial power with the armoury given here by the legislature to the executive branch of government. However, counsel readily (and properly) accepted that such issues, by themselves, would not warrant, without more, the grant of special leave upon the present applications.

16. There is also a question whether, within the principles stated by Mason J in The Commonwealth of Australia v John Fairfax and Sons Ltd (7), the applicant, by himself, has the standing to obtain injunctive relief against an apprehended contravention of s 18A. The primary judge appears to have decided that question adversely to the applicant. The Court of Appeal assumed it in favour of the applicant, yet held against him on other grounds, to which I next turn. That being so, the applicant has no real prospects of success in agitating the issue on a special leave application to this Court.

17. The Court of Appeal concluded that it could not see that the broadcast of the proposed programme would deter witnesses from giving evidence to the Police Royal Commission or cause distortion of their evidence. The Court also concluded that it would not be justified in accepting as arguable the proposition that the Royal Commissioner might be influenced by the broadcast, if he happened to see it, into any view of matters of fact or opinion different from that which he would have arrived at in the absence of the broadcast. The Court referred to the experience of the Royal Commissioner as a judge of the Supreme Court as indicative of the objectivity to be expected in discharge of what are now his executive functions under the Letters Patent and supporting legislation in the investigation of alleged criminal conduct. Whilst that is so, the utilisation by the executive in this way of public confidence in the judicial branch of government remains controversial (8). Nevertheless, it plainly was open to the Court of Appeal to make the particular reference it did in the circumstances of this case.

18. Finally, the Court of Appeal turned to the submissions seeking interlocutory restraint of threatened defamation. The treatment by the Court of this aspect of the application before it did not, with the qualification to which I next turn, attract significant criticism in the submissions which have been made to this Court. The Court of Appeal referred to the judgment of Walsh J in Stocker v McElhinney (No 2) (9) and to the observations thereon of Hunt J in Church of Scientology v Reader's Digest (10) and in Chappell v TCN Channel Nine Pty Ltd (11). The Court of Appeal concluded that the public interest in a free and general discussion of the subject-matter of the proposed programme, taken together with other matters to which it had referred, led to the conclusion that it would be a sound exercise of discretion to refuse, under this third head, interlocutory relief.

19. Before Levine J, the respondent had formally submitted that to restrain discussion of the matters concerning the applicant by enjoining the broadcasting of Exs C and D, even on an interim basis, would breach what was said to be the implied constitutional right of the respondent to freedom of expression and of discussion of political and public affairs. Reference was made to Theophanous v Herald and Weekly Times Ltd (12), and Stephens v West Australian Newspapers Ltd (13), and to certain New South Wales public offices held by the applicant.

20. This submission was not pursued by the respondent, before either Levine J or the Court of Appeal, This apparently was on the footing that notices under s 78B of the Judiciary Act 1903 (Cth) were required and none had been given (14). Were the submission to be pursued upon notice of contention by the respondent upon any appeal by the applicant to this Court, the applicant would seek to counter it in two ways. First, by denying the applicability of the reasoning in Theophanous and Stephens to the law of contempt of court (15), and, by extension, to the deemed contempt provisions of the Royal Commissions Act. Secondly, the applicant would seek leave to reopen the correctness of those decisions (16).

21. The circumstance that, if such leave were given to the present applicant, the respondent might counter with authority the applicant would then seek to impeach does not found, nor, in the circumstances of this litigation, assist, the prospects of success upon the first step, the grant of leave to the applicant.

22. I turn to consider, in respect of each application for special leave, whether there is a not insubstantial prospect, or a substantial prospect, of success, such as to place them within the class of exceptional cases where special leave is given from decisions involving the refusal of interlocutory relief.

23. In that regard, it should be noted that the grounds urged for the applicant do not include any complaint of error in understanding of the principles applicable to the grant of interlocutory relief of the nature sought either before the primary judge or before the Court of Appeal. In that significant respect, this case differs from authorities such as Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd (17). That case was made extraordinary by the denial to the applicant by the Supreme Court of South Australia of any distinct consideration of its application for an injunction pending the substantive appeal to the South Australian Full Court.

24. Rather, the applicant asserts that the present applications furnish appropriate vehicles for the resolution of a number of issues of substantive law. With some of these I have already dealt in the course of these reasons. It remains to deal with the balance. Before doing so, I should emphasise that there is no dispute that, as regards several of the issues, it was not sought to take the point in either of the courts below.

25. Moreover, the proceedings at both levels in the Supreme Court were interlocutory in nature and conducted under exigencies of the time constraints detailed in the reasons delivered in the Court of Appeal. In such circumstances, two relevant consequences flow. The first is that the lower courts are justified in abstaining from resolution of issues of substantive law of general importance, if that is the course they decide to take. The second is that, in such a case, it will be rare for this Court to grant special leave from interlocutory orders where it is sought to agitate those substantive issues in this Court. Both points are illustrated by Cohen v Peko-Wallsend Ltd (18). This Court would be denied the benefit of the considered views of the intermediate court of appeal, formed upon a final, not provisional, view of the relevant factual substratum. That deficiency would impede the Court in settling any legal issues of general public importance that may be involved, and thus not assist the maintenance and development of Australian law. The position is encapsulated in the expression that the case in question is not a suitable vehicle for the grant of special leave.

26. So it appears to be with the present applications. When dealing with apprehended contempt, the Court of Appeal used the "basic test" to which I referred earlier in these reasons. The applicant wishes to have this Court determine that this was an error because the Court of Appeal also should have asked whether the apprehended conduct of the respondent, the transmission of Exs C and D, would be calculated to undermine public confidence in the integrity of the curial process, albeit it could not be predicated that there would be any tendency to influence the Supreme Court in the particular case. The distinction was drawn by Lord Diplock in A-G v Times Newspapers (19). It was taken up in this Court by Brennan J in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (20). Brennan J then turned in that case to consider whether there was any evidence to support the conclusion expressed by Deane J in the Federal Court that the continued activities of certain Royal Commissions would "inevitably involve some degree of prejudice to the administration of justice" in the Federal Court.

27. The Court of Appeal was referred to Times Newspapers but not to the later judgments in this Court. Nor am I satisfied to the requisite degree that, if it had been, the result reached by it would, or should, have differed, bearing particularly in mind the interlocutory nature of the proceedings before it.

28. The applicant also seeks to have this Court reconsider its decision in Hinch v Attorney-General (Vict). This is on the footing that in the absence of any joint majority judgment therein, the judgments of the individual members of the Court give rise to doubts as to the ratio decidendi of Hinch, particularly as regards the application of the Bread Manufacturers' Case (21).

29. Whatever there may be to be said on the point, the Court of Appeal dealt with the "practical reality" test as expounded in Hinch by reference to its own decision in A-G for NSW v TCN Channel Nine Pty Ltd (22).

30. The further nuances which the applicant seeks to extract from Hinch would depend for their effect upon the particular factual footing established by evidence at trial. This is an inappropriate vehicle for such a consideration of the matter by this Court.

31. In all the circumstances, I have concluded that, in respect of each motion for interlocutory injunctive relief in aid of a pending special leave application, there is a failure at the threshold point referred to in the passage quoted earlier in these reasons from Elliott v Seymour (23).

32. The motion filed 2 May 1996 will be dismissed. The respondent is released from further observance of its undertaking given to the Court on 2 May 1996 and extended on 3 May 1996. Exhibits C and D may be handed out to the applicant's solicitors for return by 11.00 am on 8 May 1996 to the solicitors for the respondent. Exhibit G may be returned.

34. The applicant will bear the respondent's costs of the motion.

1 [1982] HCA 9; (1982) 149 CLR 147 at 154.

2 See Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 684-685.

3 [1993] HCA 70; (1993) 68 ALJR 173 at 175-176; [1993] HCA 70; 119 ALR 1 at 4-5. See also A-G (UK) v Heinemann Publishers Aust Pty Ltd [1987] HCA 45; (1987) 61 ALJR 612 at 614; [1987] HCA 45; 75 ALR 461 at 464; Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306 at 309; 134 ALR 460 at 464.

5 [1986] HCA 84; (1986) 161 CLR 681 at 685.

6 See Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452; Cohen v Peko-Wallsend Ltd [1986] HCA 70; (1986) 61 ALJR 57 at 59; [1986] HCA 70; 68 ALR 394 at 397. See also Queensland v Commonwealth [1988] HCA 1; (1988) 62 ALJR 143 at 145; [1988] HCA 1; 77 ALR 291 at 295.

7 [1980] HCA 44; (1980) 147 CLR 39 at 49-50. An apparently more generous (to plaintiffs) reading of the law was given in the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 84, 100-101.

8 Brown, "The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge", [1992] FedLawRw 2; (1992) 21 Federal Law Review 48 at 62-65, 76-86.

12 [1994] HCA 46; (1994) 182 CLR 104.

13 [1994] HCA 45; (1994) 182 CLR 211.

15 This is a matter canvassed in the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 109-111.

16 See McGinty v Western Australia [1996] HCA 48; (1996) 70 ALJR 200 at 242-243, 274-275; [1996] HCA 48; 134 ALR 289 at 346-348, 390-391.

17 [1988] HCA 53; (1988) 165 CLR 452 at 460.

18 [1986] HCA 70; (1986) 61 ALJR 57; 68 ALR 394.

20 [1982] HCA 31; (1982) 152 CLR 25 at 167-168. See also Hinch v Attorney-General (Vict) [1987] HCA 56; (1987) 164 CLR 15 at 54-55 per Deane J.

21 Re Truth and Sportsman Ltd; Ex parte Bread Manufacturers Ltd (1937) 37 SR(NSW) 242 at 249-250.

23 [1993] HCA 70; (1993) 68 ALJR 173 at 175-176; [1993] HCA 70; 119 ALR 1 at 4-5.