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[2002] FCA 752
Federal Court of Australia
2002-06-13
Carr J
Original judgment source is linked above.
the applicant's submissions 20 The applicant points out that the meaning of the phrase "causes … to be communicated to the public" in s 18C(2)(a) has not been judicially considered in the context of the Act. The appellant says that it is clear that that subsection does not comprise a complete definition of an act done "otherwise than in private" for the purposes of s 18C(1). It merely recites, so it is put, some of the circumstances in which the act will be deemed to have been done otherwise than in public. 21 The applicant further submits that the definition of "cause" depends on the legal context in which it is used. It may have very many different meanings and applications: Miller v Hilton (1937) 57 CLR 400 at 413. A strict interpretation of the word "cause" as meaning actual exercise of "control" or "dominance" is only appropriate in the context of criminal or statutory offences. The more appropriate context, so the applicant argues, would be to seek guidance in the interpretation of the word "cause" in the law of torts. The cause of a particular occurrence, being a question of fact, has to be determined by applying common sense to the facts of each particular case. 22 The applicant contends that guidance can be obtained, in particular, by analogy from the law of defamation. The applicant submits that the respondent impliedly authorised Mr Kitney to repeat his original words in the Australian Financial Review. Alternatively, that publication was the natural and probable consequence of speaking to the journalist for the purpose of an interview. 23 Finally, the applicant submits that the Act should be beneficially interpreted and that to interpret "cause" as requiring the exercise of strict control or dominance would be contrary to the intention of the Act. The most likely intention of the Parliament was that the original speaker of the words was intended to be caught within s 18C of the Act rather than limiting it to an editor or publisher of a communication as the person engaging in the unlawful behaviour.
my reasoning 24 It is not necessary for me to summarise the respondent's responsive submissions, which run to some 7 pages. Nor is there any need for me to recite many of the familiar authorities which set out the principles applicable to the determination of a motion of this type. I think that it is sufficient, first, to refer to the following often-cited passage from the judgment of O'Connor J in Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92, which Dixon J repeated with approval in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92: "Primâ facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed." 25 Secondly, I think that it is possible that issues of fact may arise in relation to what transpired between the respondent and Mr Kitney at or about the time of the interview in question. In Webster v Lampard (1993) 177 CLR 598 at 603 Mason CJ, Deane and Dawson JJ said this (after referring to the need for exceptional caution when ordering summary judgment): "Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that "great care … be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal" (authorities cited)." 26 Mr M C Hotchkin, counsel for the respondent, told me that it was unlikely that there would be any presently relevant issues of fact to be resolved if this matter proceeds to a hearing. I take that submission into account. But at this stage of the proceedings, the factual issues are not clear. The applicant has filed an affidavit the annexures to which include affidavits sworn by her and Mr Kitney respectively in the course of proceedings in the Human Rights and Equal Opportunity Commission which have been terminated. The respondent has not filed any affidavit. In those circumstances, I think it is possible that relevant issues of fact of the type referred to above may arise and I take that into account. But even if no such factual issues would need to be decided, I think that a serious question of law, reflected by the arguments on both sides which I have summarised above, will have to be decided. This is a relatively new area of Australian law and I do not think that there is sufficiently clear authority which dictates a negative answer to the legal question whether the respondent's act in making the statements to Mr Kitney, a journalist, can be said to have caused those words to be communicated to the public? 27 At p 602 in Webster v Lampard their Honours issued the reminder that the question upon such a summary judgment application was not whether the plaintiffs would probably succeed in their action; it was whether the material demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. 28 I do not think that the applicant's claim in this matter is so obviously untenable that it cannot possibly succeed. 29 The respondent relies very heavily on O'Sullivan v Truth & Sportsman Limited in relation to the meaning of the word "cause" which the respondent emphasises is used as a verb. 30 I think that it is worth noting that in that case, at 229, Dixon CJ and Williams, Webb and Fullager JJ said this: "But being a question of the meaning of terms the definition can provide only a primary meaning which context or any other sufficient indication of a different intention would displace." 31 In my view, the context of the present application is sufficiently different from that in O'Sullivan v Truth & Sportsman Limited as to make it reasonably arguable that the word "cause" is not to be so limited as it was in that case. 32 Furthermore, the submissions on both sides tend to overlook the precise wording of s 18C. The question posed by the interaction of the first two subsections of that section is not whether the respondent caused, in this case, words to be communicated to the public. The question is whether "an act" caused such words to be communicated to the public. If an act causes that to happen then the doing of that act is taken by s 18C(2) not to be done in private. 33 I also accept, provisionally, for the purposes of determining this motion, that s 18C(2) does not exhaustively define the circumstances in which an act is done otherwise than in private. 34 I think that it is reasonably arguable that the respondent's act of giving an interview to Mr Kitney and using the words complained of was an act which caused the same words to be communicated to the public. It is also reasonably arguable that to apply such a construction would be to apply commonsense to the facts of this particular case: March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ. The same applies, in my view, to the subsequent "picking up" by The West Australian newspaper of Mr Kitney's article in the Financial Review, a national newspaper. The respondent being, at the relevant time, a Senator-designate for the State of Western Australia, it might reasonably be expected that a report in a national newspaper of his comments on a controversial matter of local interest in Western Australia would be republished in the local newspaper. All of this is, at this stage, on the basis of such matters being reasonably arguable. 35 In Alphacell Ltd v Woodward [1972] AC 824 at 839-840 Viscount Dilhorne said this: "If a man, intending to secure a particular result, does an act which brings that about, he causes that result. If he deliberately and intentionally does certain acts of which the natural consequence is that certain results ensue, may he not also be said to have caused those results even though they may not have been intended by him? I think he can, just as he can be said to cause the result if he is negligent, without intending that result." 36 Mr Hotchkin referred me to an earlier passage in that case in the speech of Lord Wilberforce at 834 where his Lordship referred to difficulties where acts of third persons are concerned. Mr Hotchkin suggested that this was precisely the situation in the present case i.e. that the actions of Mr Kitney, the journalist from the West Australian and their respective editorial superiors and publishers constituted such a break in the chain of causation that it could not be said that the respondent's act had caused the relevant words to be communicated to the public. As I have said above, I do not think that the state of the law on this point is as clear as the respondent asserts. 37 I must stress that these views which I am expressing are by no means final legal opinions. After a full hearing, and after considering submissions advanced in relation to the evidence adduced at such a hearing, it may well be that the legal propositions put forward on behalf of the respondent will be found to have merit. It is sufficient for the applicant's purposes in resisting this strike-out motion to demonstrate (if she chooses to do so) that her case is not so obviously untenable that it cannot possibly succeed. 38 I think that she has done so. The facts assumed show that the respondent chose to give an interview to a journalist. He chose not to give the interview "off the record". In those circumstances the likelihood that what the respondent said would appear in the public domain, in the forms in which it did, was such that I consider it to be reasonably arguable that that act caused his words to be communicated to the public. That is, that it was reasonably arguable that the act was not done in private, within the meaning of the Act.
Conclusion 39 For the foregoing reasons the motion will be dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Solicitor for the Respondent: Messrs Hotchkin Hanly
McGlade
Lightfoot
factual and procedural background 2 This matter has a long history, part of which I set out in my reasons for judgment in McGlade v Human Rights and Equal Opportunity Commission and Senator Ross Lightfoot [2000] FCA 1477. There have been further developments in the matter since then, but it is not necessary for me to refer to them at this stage. 3 For the purposes of this motion the following facts have been assumed. The applicant is an Aboriginal person. The respondent is a member of the Federal Parliament. On an unknown date, prior to 9 May 1997, in the respondent's parliamentary office, the respondent made a statement to Mr Damon Kitney, a journalist with the Australian Financial Review. As part of the making of that statement the respondent said the following words, or words to the following effect: "Aboriginal people in their native state were the most primitive on Earth." 4 The respondent also went on to say the following words or words to the following effect: "If you want to pick up some aspects of Aboriginal culture which are valid in the 21st century, that aren't abhorrent, that don't have some of those terrible sexual and killing practices in them, I'd be happy to listen to those." 5 On 9 May 1997 the respondent's above remarks were published in an article in the Australian Financial Review under Mr Damon Kitney's byline. 6 On 13 May 1997 an article appeared in "The West Australian" newspaper which referred to the abovementioned article in the Australian Financial Review and, in the course of doing so, reported that the respondent had said that he was opposed to the teaching of Aboriginal culture in schools on the basis that "Aboriginal people in their native state were the most primitive on Earth". The respondent was also reported in the article in The West Australian as having said that "Many aspects of their culture, including sexual practices, were abhorrent". 7 In the principal proceedings the applicant seeks relief (including an apology and compensation) from the respondent on the basis that by making the abovementioned comments the respondent had contravened s 18C of the Racial Discrimination Act 1975 (Cth) ("the Act") and that the exemptions contained in s 18D did not apply.
the respondent's submissions 11 The respondent's submissions focus on: · the opening words of s 18C(1), namely, that it is unlawful for a person to do the relevant prohibited act "otherwise than in private"; and · the provision in s 18C(2) that an act is taken not to be done in private if it "causes words, sounds, images or writing to be communicated to the public." 12 The respondent says that there is no allegation or any evidence that he directed or instructed the journalists to write the above articles, or that he directed or instructed them about what words should be in those articles, or that he had any degree of control over the manner in which they wrote the articles or selected the words in them, or that he controlled or directed any publisher or editor of either of the newspapers in relation to publishing the articles or the manner in which the articles should be published, including editorial changes. Nor, so the respondent contends, is there any allegation or evidence that the respondent spoke to the journalist who wrote the article in The West Australian newspaper or to any other person employed by the publisher of that newspaper, nor that he had any degree of control, responsibility or authority over any of the journalists or the newspapers or any of their employees in relation to the published articles or the words contained in them. 13 The respondent says that the applicant's best case is that the words alleged to have been said by the respondent to Mr Kitney were made in circumstances where he well knew or ought to have known that they were likely to be published, and possibly even that he wanted them to be published. 14 The respondent further says that, applying the ordinary meaning of the word "cause", the applicant's case at its highest cannot establish that the granting of an interview to a journalist or the words spoken during that interview, in an office, were acts otherwise than in private, because, so the respondent contends, "they were simply not caused by the Respondent to be communicated to the public." 15 The respondent submits that if there was any unlawful act, contrary to s 18C of the Act, it was the relevant act of writing the articles (the acts of the journalists and any sub-editor), the act of printing the articles in a newspaper (the act of the publishers) and the acts of distributing the various newspapers to outlets throughout the country (the act of the distributor). 16 The respondent, in making these submissions, relies very heavily on the decision of the High Court of Australia in O'Sullivan v Truth & Sportsman Limited (1956) 96 CLR 220 at 228 where Dixon CJ, Williams, Webb and Fullager JJ cited, with apparent approval, a passage from Halsbury's Laws of England on the topic "Criminal Law" to the following effect: "Before a man can be convicted of causing he must be in a position of dominance and control so as to be able to decide whether the act should be done or not (authority cited), and it must be established that he gave some order, command, direction, or authority to the person doing the act (further citation of authority)." 17 The respondent also relies upon the following observation by Kitto J at 231: "... one person cannot be said to cause another's act unless not only does the former express it as his will that the act shall be done by the latter but the latter's decision to do it is a submission to the former's will, that is to say a decision to make himself the instrument of the former for the effectuation of his will." 18 The respondent says that the applicant does not allege, and it is impossible to find as a fact, that the publication of the articles in the Australian Financial Review and The West Australian newspapers was the result of the respondent's direction or instruction to any of the journalists, their editors or their employers, let alone any submission to that direction or instruction by those persons. The respondent submits that the selection of words for a published article, communicated in an interview, is entirely that of the author of the article, subject to the direction and control or his or her editor, and ultimately the publisher. This, so the respondent puts it, may be contrasted with the degree of dominance and control evident on the facts and cases such as McKay v Kelly; Ex parte McKay [1988] 2 Qd R 658 (where a medical practitioner in full control of a lessee company was found to have caused medical advertisements to be displayed) and Gatacre v Soil Conservation Service of New South Wales (1992) 78 LGERA 379 (where an absent sharefarmer was found to have caused the felling of trees cut down by his co-sharefarmers). The respondent submitted that the facts of this matter were even weaker than those held not sufficiently to constitute "cause" in Hilton v Miller [1936] SASR 380. 19 The respondent argues that even though the above authorities deal with statutory offences, there is no reason to adopt a different meaning of the word "cause". Indeed, so the respondent submits, because freedom of expression is a fundamental tenet of the common law, provisions which restrict that freedom should be strictly construed: Coco v R (1994) 179 CLR 427. The respondent refers to the fact that this principle has been applied in the context of the Act: Bryl v Kovacevic [1999] HREOCA 11, (by Inquiry Commissioner Mr Peter Johnston).
(1908) 7 CLR 76
(1957) 96 CLR 220
(1949) 78 CLR 62
(1993) 177 CLR 598
(1991) 171 CLR 506
(1964) 112 CLR 125
(1956) 96 CLR 220
(1992) 78 LGERA 379
(1994) 179 CLR 427
(1937) 57 CLR 400