RANN v OLSEN No. SCGRG-97-913 [2000] SASC 83 - SASC 2000 case summary — Zoe

SASASC

RANN v OLSEN No. SCGRG-97-913 [2000] SASC 83

[2000] SASC 83

Supreme Court of SA|2000-04-12

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At a glance

Source facts

Court

Supreme Court of SA

Decision date

2000-04-12

Source

Original judgment source is linked above.

Judgment (481 paragraphs)

[1]

The application of s 16(3) involves a consideration of what is to be done (evidence, questions or submissions), whether that concerns proceedings in Parliament, and, of critical importance, the purpose with which it is done. A thing is done for a purpose prescribed by s 16(3) only if the Court is asked to make a finding or reach a conclusion of the prohibited kind, either as an intermediate step to a finding on a material or ultimate issue, or because the prohibited finding is in fact a material or ultimate issue. While the purpose referred to in s 16(3) is, in one sense, the purpose of the advocate, the prohibited purpose must refer to something that the Court is asked to do in deciding the case.

[2]

A question about the leaking of documents, for example, may be asked for the purpose of demonstrating that Mr Olsen genuinely believed in the truth of what he said. The fact that the same question might be relevant to the truth of what Mr Rann said is neither here nor there. The critical thing is whether the question has a purpose that is not a prohibited purpose. If, in light of the pleadings and the conduct of the trial, the only purpose that the Court can discern is a prohibited purpose, then the Court must refuse to receive the relevant evidence or to allow the relevant question to be asked or the relevant submission to be made. But if the evidence, question or submission has a purpose that is not a prohibited purpose, then it should be permitted, even though the evidence, question or submission is capable of being turned to a prohibited purpose. The Court will not allow it to be turned to that prohibited purpose, because prohibits that.

[17]

An independent submission is that the effect of the suggested operation of s 16(3) is to impose a limit on the ability to question or challenge proceedings in Parliament that has never previously been contemplated, and that is outside the mischief with which the Privileges Act was intended to deal. The suggestion that this operation is one that was never contemplated tends to take one back to the scope of Article 9. The submission as to the mischief with which the Privileges Act was intended to deal has a number of strands. I am not confident that I have correctly identified them. He submits that the Privileges Act was not intended to deal at all with the situation in which a person whose words constituted proceedings in Parliament brings court proceedings, to repel an attack on that person based upon what the person said in proceedings in Parliament, and when the application of s 16(3) will prevent the person from defending the person's reputation. I mention here that s 16(3) will not prevent Mr Rann from defending his reputation by bringing proceedings for defamation. It is only a stay granted by the Court that will have that effect. Alternatively, Mr Heywood-Smith submits that s 16(3) is not intended to apply in a situation in which its operation would prevent a defendant, sued by a person whose words were part of proceedings in Parliament, from supporting a defence to that action. A further variant of this submission is that the Privileges Act is intended to protect the freedom of speech in Parliament, and that there is no inhibition to freedom of speech in Parliament in allowing a defendant to challenge the truth of things said in proceedings in Parliament when the occasion to do so arises only because the person who said those things has chosen to sue. In that situation the plaintiff will know that it is only if the plaintiff chooses to sue that the occasion to challenge the truth of what was said will arise, and so the mere making of the statements in Parliament cannot expose the maker of the statement to a challenge in court proceedings.

[63]

Section 15AA of the Acts Interpretation Act (1901) (Cth) provides that the Court must prefer a construction of the Privileges Act that would promote the purpose or object underlying the Act, to a construction that would not promote that purpose or object. I consider that not much help is to be obtained in the present case from the application of this provision. Its application tends to lead to further debate as to the true purpose or object of the Privileges Act. And, in the end, one must pay careful attention to the words of the relevant provision. But I am at least satisfied of this. It would not promote the purpose or object of the Privileges Act, which I take to be to preserve freedom of speech in Parliament and to reflect the principle of non-intervention, to interpret s 16(3) in a manner that made its operation subject to a judicial conclusion, on a case by case basis, that in the particular case the course of action proposed would impinge upon freedom of speech in Parliament. That approach is, if anything, destructive of freedom of speech because it leaves the person speaking uncertain whether what the person says in Parliament can be challenged in a court. The answer will be that the possibility of a challenge will depend upon a judicial assessment of the effect of the challenge in the particular case, and in many cases it will be uncertain what the result of that assessment will be. Of course, I am not so naïve as to suggest that on my approach to s 16(3) its operation is always clear. However, treating the section as subject to a judicial assessment, or as subject to exceptions that depend upon the circumstances in which the matter comes before the Court, as did King CJ in Wright v Lewis, will be productive of considerable uncertainty. As well the approach for which Mr Heywood-Smith contends is destructive of the principle of non-intervention. It allows the Court to challenge the truth of what was said in proceedings in Parliament in a variety of situations. In my opinion s 15AA does not assist Mr Heywood-Smith.

[133]

It is appropriate to repeat here that I do not regard the burden that s 16(3) imposes upon freedom of speech as in any way insignificant. It is a significant burden. It is significant qualitatively, if I might use that term, because it burdens freedom of speech in relation to the functioning of Parliament. It is significant more generally because the risk of being unable adequately to defend a claim for libel or slander, relating to a statement about things happening in Parliament, is likely to have a real effect on free speech about parliamentary matters. It is relevant that the burden is imposed in pursuit of the objective of enhancing freedom of speech in Parliament, and excluding judicial review of events in Parliament. It might be said that the benefits from s 16(3) are not great, bearing in mind that if a statement made in Parliament is repeated outside Parliament, the statement outside the Parliament can be the subject of legal proceedings and the subject of review by the courts, even though that process would imply a conclusion about the truth of what was originally said in Parliament. In other words, s 16(3) prevents a court doing something which, with a slight change in the facts, the Court could do. It might also be said, as King CJ clearly considered, that there is no need to provide the relevant protection to a person speaking in the course of parliamentary proceedings. On the other hand, one must bear in mind that, as I have already concluded, defences of qualified privilege and fair comment are unlikely to be affected by the provisions of s 16(3). One might also ask how often the restriction that arises in this case is likely to arise. There is also the importance of the principle of non-intervention. Finally, and most importantly, it is necessary for the Court to bear in mind that important as its role is in relation to an implied limit on power, the Court must nevertheless accept that at a certain point it is for Parliament to judge how far it will go in pursuit of a power vested in it.

[187]

"That the questions be answered as follows: (i) Do either or both section 49 of the Constitution of the Commonwealth of Australia or section 16(3) of the Parliamentary Privileges Act, 1987 (Cth) prohibit the parties to this action from leading evidence, cross-examining witnesses, or making submissions concerning the truth of what was asserted by the plaintiff in his evidence to the Parliamentary Committee and concerning the motive, intention or good faith or credibility of the plaintiff when giving evidence to the Parliamentary Committee and, in particular, do either or both of those statutory provisions prohibit the parties from leading evidence, cross-examining witnesses and making submissions which: (a) address the issue of the truth of what was asserted by the plaintiff in his evidence to the Parliamentary Committee and particularised in paragraph 6 hereof ('the evidence'); (b) address the issue of the honest belief of the plaintiff in the truth of the evidence; (c) address the plaintiff's credit by reference to the plaintiff's intention or motive in giving the evidence; (d) address the plaintiff's credit by reference to the plaintiff's intention or motive as disclosed by the terms of the evidence; (e) address the plaintiff's credit otherwise than by 19(c) and 19(d) hereof. Answer: Section 16(3) of the Parliamentary Privileges Act will prevent the defendant in the proceedings from proving that the statements admitted by the defendant in his Defence, with the meanings alleged by the plaintiff or admitted by the defendant in the Defence, are true in substance and fact, by tendering evidence and asking questions to establish the "Particulars of Truth" set out in par 16 of the Defence in these proceedings. This question should not be answered beyond that. (ii) If or to the extent that section 16(3) of the Parliamentary Privileges Act, 1987 (Cth) prohibits the parties from tendering evidence, cross-examining witnesses or making submissions on the issues listed in question 19(i), is it a valid law of the Parliament of the Commonwealth. Answer: Yes. (iii) If either section 49 of the Constitution of the Commonwealth of Australia or section 16(3) of the Parliamentary Privileges Act, 1987 (Cth) prohibits the parties from leading evidence, cross-examining witnesses or making submissions on the issues identified in question (i), whether the action should be permanently stayed. Answer: It is not appropriate to answer this question at this stage of the proceedings.

Parties

Applicant/Plaintiff:

# RANN

Respondent/Defendant:

OLSEN No. SCGRG-97-913 \[2000\] SASC 83

Legislation Cited (2)

Privileges Act 1987

Development Act 1993

Cases Cited (28)

RANN v OLSEN No. SCGRG-97-913 [2000] SASC 83 (12 April 2000)

Bill of Rights, 1688 (UK) article 9;
Constitution of the Commonwealth of Australia s 49;
Parliamentary Privileges Act, 1987 (Cth) s 16;
Acts Interpretation Act, 1901 (Cth) s 15AA and s 15AB, referred to.
Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416;
Laurance v Katter and Another [1996] QCA 471; (1996) 141 ALR 447;
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520;
Prebble v Television New Zealand Ltd [1995] 1 AC 321;
Television New Zealand Ltd v Prebble [1993] 3 NZLR 513, discussed.
O'Chee v Rowley (1997) 150 ALR 199;
R v Murphy (1986) 5 NSWLR 18;
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384;
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1;
Halden v Marks (1996) 17 WAR 447;
Hamilton v Al Fayed [1999] EWCA Civ 1111; [1999] 1 WLR 1569; [1999] 3 All ER 317;
Egan v Willis [1998] HCA 71; (1998) 73 ALJR 75;
Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61; 10 ER 1216;
Bradlaugh v Gossett [1884] 12 QBD 271;
Stockdale v Hansard [1839] EngR 139; [1839] 9 Ad & E 1;
Church of Scientology of California v Johnson Smith [1972] 1 QB 522, considered.
Constitution of the Commonwealth of Australia s 49;
Parliamentary Privileges Act, 1987 (Cth) s 16, referred to.
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, applied.
Laurance v Katter [1996] QCA 471; (1996) 141 ALR 447;
Amann Aviation Pty Ltd v Commonwealth [1988] FCA 24; (1988) 81 ALR 710;
Prebble v Television New Zealand Ltd [1995] 1 AC 321;
Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416;
Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106;
Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272;
Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR 579;
Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1;
R v Richards; ex parte Fitzpatrick & Browne [1955] HCA 36; (1955) 92 CLR 157, considered.
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, considered.
Prebble v Television New Zealand Ltd [1995] 1 AC 321;
Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416;
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, discussed.
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292;
Evans v Benson (1986) 46 SASR 317;
Police v Jervis (1998) 70 SASR 429;
Ferris v Lambton (1905) 22 WLR (NSW) 56;
Tringali v Stewardson Stubbs & Collett Ltd (1965) SR(NSW) 335, considered.
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 161 ALR 399;
Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373;
R v Rigby [1956] HCA 38; (1956) 100 CLR 146, considered.
Adam v Ward [1917] AC 309;
Horrocks v Lowe [1975] AC 135, considered.

Mr Olsen further pleads that the statements that he made occurred "in the course of political discussion" and so are protected by qualified privilege. This plea, I assume, is intended to reflect the qualified privilege identified in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

Second, Mr Olsen's plea that the publication of the words was made on an occasion of common law qualified privilege. (I use this term to refer to the law applicable to a plea of privilege that does not attract the wider privilege stated in Lange.) That plea will require a consideration (I deliberately use that neutral term at this stage) of the matter to which Mr Olsen was responding. Mr Olsen will need to show that what Mr Rann said, and the circumstances in which it was said, gave rise to an interest on the part of Mr Olsen to make the statement that he made, and a reciprocal interest, on the part of those to whom it was made, to receive it: Adam v Ward [1917] AC 309 at 334; Lange at 569-570.

I will return to this topic, but I indicate now that my view is that the plea of qualified privilege at common law and the plea that relies on Lange do not require the Court to find in terms that Mr Rann lied when giving his evidence to the Committee. To support the plea Mr Olsen will have to prove what Mr Rann said and the circumstances of his statement. That will be proved simply to establish the material which is claimed to entitle Mr Olsen to make the response that he made. Mr Olsen will need to prove what he said, and the circumstances of his statement. Mr Olsen does not require a finding about the truth of what Mr Rann said, or about Mr Rann's motives or credibility. The plea requires only a finding about Mr Olsen's belief and state of mind, namely, that he believed what he said was true: Horrocks v Lowe [1975] AC 135 at 149-150 Lord Diplock. It is hardly conceivable that Mr Olsen could have reasonable grounds for believing that the imputation was true, unless what Mr Rann said was false, and probably a lie. But the significant point is that the Court will not be required to make a finding specifically about the truth of Mr Rann's statement to the Committee. Once the statement and its circumstances are proved as a fact, attention shifts to Mr Olsen's response and his belief about the truth of his response.

A striking feature of the present case is the fact that a stay is sought because, it is said, the application of s 16(3) to the case produces an injustice incapable of remedy by any other means than a stay. In argument, no case except Prebble was identified in which the Court, exercising its civil jurisdiction, has stayed proceedings on the basis that the application of statute law to those proceedings produces an injustice that enlivens the Court's jurisdiction to stay the proceedings. The closest analogy suggested was the decision of the High Court in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. There, in relation to criminal proceedings, the High Court held that a superior court has an inherent jurisdiction to stay criminal proceedings in a case in which representation of the accused by counsel is essential to a fair trial, and an accused is unrepresented through no fault of his or her own and is unable to afford representation. In such a case the Court stays proceedings on the basis that the application of the law relating to criminal proceedings, and despite what the trial judge can do to assist an unrepresented accused, will nevertheless result in a trial that will be unfair.

(1990) 53 SASR 416

(1996) 141 ALR 447

(1997) 189 CLR 520

(1997) 150 ALR 199

(1986) 5 NSWLR 18

(1997) 187 CLR 384

(1978) 142 CLR 1

(1996) 17 WAR 447

(1998) 73 ALJR 75

(1988) 81 ALR 710

(1992) 177 CLR 106

(1994) 182 CLR 272

(1996) 187 CLR 579

(1955) 92 CLR 157

(1998) 193 CLR 173

(1993) 177 CLR 378

(1992) 177 CLR 292

(1986) 46 SASR 317

(1998) 70 SASR 429

(1999) 161 ALR 399

(1920) 28 CLR 373

(1956) 100 CLR 146