Buddhist Society of Western Australia Inc v Bristile Ltd & Anor P73/2000 [2001] HCATrans 535 (24 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P73 of 2000

B e t w e e n -

THE BUDDHIST SOCIETY OF WESTERN AUSTRALIA INC

Applicant

and

BRISTILE LTD

First Respondent

IINET LTD

Second Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 4.04 PM

Copyright in the High Court of Australia

MR J.C. GILES: If it please your Honours, I appear for the applicant. (instructed by Solomon Brothers)

MR M.L. BENNETT: It if please your Honours, I appear for the first respondent. (instructed by Bennett & Co)

GLEESON CJ: Yes, Mr Giles.

MR GILES: If it please your Honours, in our respectful submission, this application raises two significant special leave points. The first is the relationship, or the correct test, for qualified privilege in light of the Reynolds v Times Newspapers decision of the House of Lords. The second point is how material published on the Internet is to be treated for publication for the purpose of the law of defamation.

GLEESON CJ: Now, Mr Giles, neither Justice Callinan nor I are probably as familiar as you and your opponent with the local procedures, but this is a pleadings summons that we are dealing with which, on the face of it, makes it an unattractive vehicle for special leave to appeal. But what I think you will need to explain to us is what are the consequences for the future conduct of the action if the decision of the Full Court stands? May I put the question slightly differently? If and when the action ultimately goes to trial and is fought out on the merits, will these issues remain issues that can be ventilated on appeal?

MR GILES: They may do, your Honour, from this perspective: we are now fixed with the finding of the majority in the Full Court that English common law qualified privilege is tightly circumscribed which, in our respectful submission, is not the case, in light of Reynolds. We are also fixed with the assumption made at pages 50 over to 51 - - -

CALLINAN J: Let us assume you fixed with a number of things and the trial, and any subsequent appeal, proceeds upon the basis that you fixed with those things, are you able to appeal against those matters of which you complain after trial?

MR GILES: That depends on what we are allowed to run at trial, your Honour, in that - - -

CALLINAN J: Presumably, you would try to run all the points which you now say you cannot run, and there would be a ruling against you in relation to all of them at the trial. Having had an appeal to the Full Court already, does that mean - I think this is what the Chief Justice wants to know, or I want to know - that you cannot run the points again after a trial? It might be that it would be pretty futile, but with a view, perhaps, to coming back here.

MR GILES: That is a prospect, that we run a trial on the basis that we have to plead reasonableness to attempt to establish qualified privilege, and we would run a trial on the presumption that posting material on the Internet is a publication to the world at large.

GLEESON CJ: There is often a reluctance, a very well-founded reluctance, to deal with theoretical issues of law in this Court. We would like to deal with cases on the basis of concrete facts because that is the way the common law develops, by reference to the experience thrown up by concrete facts.

MR GILES: The concrete facts, your Honour, that we can deal with on this application are that the whole of the web site was before his Honour Justice Steytler, at first instance, really with an application of the ruling, Day v William Hill (Park Lane), that anything which is pleaded in the statement of claim or the defence is able to be referred to, usually with respect of documents, it was treated the same way. So the court has the web site before it.

CALLINAN J: We know all of that, but another factor is you might win at trial, even confined on a more restricted basis than you would wish to be, and if you do, then none of these points are going to have to be argued on appeal anyway, which is another reason why it is, maybe, superficial, apparently, anyway, an unattractive time at which to hear your appeal now when there has not been a trial.

MR GILES: The trial, when it is run, is going to be run on the basis of what, in our submission, is the false premise.

CALLINAN J: We understand all of that, we understand your submission. But if it is run on that premise, or on those premises - there are two premises, you say - if it is run on them and you seek, however, you raise the matter that you want to run it differently and you are told you cannot in accordance with the decision of the Full Court, and you lose, then do you still have an appeal? Can you appeal? Is there anything in the rules, or anything of that kind that says that you have lost your rights to run these points subsequently after a trial?

MR GILES: No, there are not, but the way that the trial is likely to run will be the problem for us, at least with the Internet publication point, and that is that if the trial judge adopts and makes the same assumption as Justices Anderson and Owen, which predicates their decision that putting material on an Internet web site is - - -

CALLINAN J: The trial judge will be bound to do that. The trial judge will be bound by the Full Court, will he not?

MR GILES: The problem is, your Honour, with respect to that, that at page 51 of the application book, Justices Anderson and Owen, at line 5:

assume (without deciding) that posting material on an "Internet web-site" is a communication to the public at large.

This strike-out has gone against us on an assumption which has gone against us. If that assumption is then made again at first instance, presumably on the basis that it was made in the Full Court, there will not need to be, and, indeed, we are unlikely to be able to prove or tender evidence proving what publication actually occurred if our argument was right. The case we wish to run at trial is that material published on an Internet web site is only published for the law of defamation, two people as and when, and if, they read it.

GLEESON CJ: Getting interlocutory rulings from the High Court for the purpose of the way in which you are going to conduct a defamation action at first instance is not a very attractive way to administer justice.

MR GILES: That is correct, your Honour, I concede that. Having made that concession, we pleaded a defence on the basis of the Reynolds test. We have put in issue the pleading in the plaintiff's statement of claim that material published was published to the world at large. We then face a strike-out on our pleading. We run those arguments unsuccessfully, twice. We are here because there is a case that we want to run at first instance that says the plaintiff has to prove publication to each person.

That then flows on to whether or not, for the purpose of the law of qualified privilege, we are a mass media publisher, or not, or whether we are to be treated as the same as someone who communicates with a small group of people, which is the way, if at all, we wish to run the case at trial.

GLEESON CJ: I am sorry to have to interrupt you, but I should have said at the outset, Mr Giles, that there is a certificate from the Deputy Registrar that she has been informed by the solicitors for the second respondent that the second respondent does not wish to be represented.

MR GILES: Thank you, your Honour. That is why we are here applying for special leave. We say that the points which we wish to raise are of general significance in any event, and are able to be determined on what is a pleading summons. Reynolds, by the time it reached the House of Lords, the Court of Appeal had already ordered a retrial and the only issue there was whether or not qualified privilege was to be put to the jury on a retrial. That was the sole issue as to what needed to be pleaded or, in that case, proved for qualified privilege.

In relation to the question of publication on the Internet, that is very much a point of law. The facts are material, but the material fact is that the information, or the alleged publication, is on the Internet. Beyond that, it is appropriate, in my respectful submission, for this Court to determine whether or not a trial judge says, "It has been proved the material has been posted on the Internet, therefore it is published to the world at large", or for a trial judge to say, "Who read this material? Prove to me that you read it. You have to lead evidence that it was hit", in the terminology, "x number of times by different people who actually had the allegedly defamatory material published to them".

That is a point that can be determined on a pleading summons, with respect. I note, and perhaps I have addressed this the reverse of the order I had intended to, that there is another matter in which special leave is pending in this Court, which is not quite a pleadings summons, but it was a forum non conveniens argument in Victoria - - -

GLEESON CJ: In Gutnick.

MR GILES: Gutnick, yes.

GLEESON CJ: A special leave application in that matter that has not yet been heard.

MR GILES: Yes, your Honour. Gutnick has been determined in the opposite way to the way that the Full Court dealt with our matter in that publication was held to only occur when the web site was accessed from Victoria. That now has a first instance judgment, a refusal of leave to appeal, as I understand, from the Full Court. These two matters are inconsistent from that point of view. Both of them are not matters that have gone to trial but are to be determined on the basis, essentially, of pleadings. In the circumstances, it is my respectful submission that that is an unsatisfactory state for the law to be left in with the decision of the Full Court here having made an assumption one way and, consequently, it is appropriate for this Court to determine the variance in the two decisions and, indeed, the dramatic variance that these two decisions, at this stage, without requiring us to take part in a lengthy trial where there will be an issue immediately, when either party seeks to lead evidence as to publication or no publication.

Whether or not there is publication, and the width of the publication then runs into the qualified privilege argument, it runs straight into the argument on Lange as to, if I am wrong in the Lange/Reynolds point I seek to raise, that whether or not we are a mass media publisher and consequently have to plead and establish reasonableness, which we take the position that we do not want to have to do, in that we want to run our case solely on the basis that we fall within the English test for qualified privilege. We have a pleading which raises qualified privilege on the basis of the nature of the communication, who we intended to publish it too. Very clearly - it raises these issues very clearly. The pleading - - -

GLEESON CJ: When was this action commenced?

MR GILES: This action was commenced in 1999. Justice Steytler's judgment at first instance, which was the first hearing, on my understanding, was heard on 8 November 99 and the judgment delivered on 16 December 99.

GLEESON CJ: What was the date of the commencement of the action?

MR GILES: Your Honour, I am not sure, I did not have conduct of this matter at the time. It would have been close to two months before November 1999.

MR BENNETT: 29 July 1999, your Honour.

GLEESON CJ: Thank you, Mr Bennett.

MR GILES: I am indebted to my learned friend. The pleading of qualified privilege appears at page 60 of the application book. That pleading is a pleading which was criticised. Ultimately, we were successful before Justice Wheeler in the Full Court in all matters other than whether or not the pleading at paragraph 11.3, properly pleaded, qualified privilege. Her Honour appears to have taken the view that because we had not pleaded a traditional duty and interest, therefore the pleading was bad.

With respect to her Honour and with respect to the majority in the Full Court, Lord Nicholls, in Reynolds v Times Newspapers, makes the position very clear, that duty and interest is not so much the test, it is more a label, much like proximity was given as a label in negligence until recently, that what the real test is, is whether or not the recipients of the information had an interest, and an appropriate interest, in receiving the information. What we want to run at trial and why this, in our respectful submission, needs to be determined now, is that our members and supports who we say are the only ones likely, or who indeed did read our web site, are people who have an intimate and important interest in finding out about the road safety matter - - -

GLEESON CJ: Do you have a record of the number of hits on your web site that could have given people access to this - - -

MR GILES: We do not. I do not know whether the second defendant does.

CALLINAN J: The Internet was originally described as an international or an electronic bulletin board and anybody can look at it.

MR GILES: Well, it may be, your Honour. It certainly is, your Honour, that anybody can look at it. We do not have a password to get into it, but the important point which we seek to raise is that we now have a judgment from Justice Hedigan in Gutnick, that it is only when a web site is read. We have a similar judgment from Justice Morland which, in Godfrey v Demon Internet in the UK. This assumption made by the Full Court is contrary to that. Traditionally, defamatory material is only published when read or understood.

GLEESON CJ: Would you mind explaining to me the practical significance of this issue in this present case?

MR GILES: The practical significance of the issue of publication is substantial, your Honour, in that - - -

GLEESON CJ: Would you mind explaining it?

MR GILES: Yes. It is this. Our case at trial, if we are permitted to run it, is that the information was published to our members and supporters, a small group of people who had an actual interest in receiving it. They either went, or many of them went to the monastery. It was a road safety issue.

GLEESON CJ: This goes to the question of damages, does it?

MR GILES: No, this goes to the question of qualified privilege on Reynolds.

CALLINAN J: But whether you have to prove reasonableness, or otherwise, is that not the point?

MR GILES: That is the point, your Honour, very much so.

GLEESON CJ: I am sorry, I am misunderstanding. Talking about the Gutnick issue, the question of to whom you publish?

MR GILES: As significant as his Honour Justice Callinan mentioned. It goes to whether or not we have to plead - or we are treated for the law of qualified privilege as a mass media publisher, namely, have to plead reasonableness on the Lange test. Or whether we can be treated as a published to a smaller group of people which, on the Reynolds test, is an important and significant factor. That is where the significance is for us, and that the group of people - - -

CALLINAN J: The lower threshold for your defence, if it is merely Reynolds, than it would be if it is Lange, is that right?

MR GILES: That is our submissions, your Honour, that is right. In addition to that, not only is it a lower threshold, but it is also an important factor to be considered in applying the test as to who we have published the material to, in so far as Lord Nicholls in delivering the judgment which is concurred in by Lord Cooke and Lord Hobhouse.

CALLINAN J: Your web site did not have a password, did it?

MR GILES: No, your Honours.

CALLINAN J: So the whole world could read it.

MR GILES: The whole world could have read it.

CALLINAN J: Just as they could pick up a newspaper.

MR GILES: That is correct.

GLEESON CJ: That is why you were unable to answer my question as to how many hits there were.

MR GILES: That is right, your Honour.

GLEESON CJ: You do not know.

MR GILES: We do not know, iiNET may well know. I do not know the evidence on that and I do not know the answer to that. That is why we say this is an important question to be resolved and we say that applying traditional tests, it goes our way. That is why I refer to the two authorities of Godfrey v Demon Internet and Gutnick on that very point. No, we do not have a password. We are not a web site which is, in our submission, likely to find many random hits. We are not Microsoft's home page.

CALLINAN J: You can get it by accident, can you not, if you do not have a password?

GLEESON CJ: I mean, all those things that you are standing at the Bar table saying are facts.

MR GILES: Your Honour, they are facts which will be proven at trial if they become an issue at trial.

GLEESON CJ: Exactly.

MR GILES: If we have a trial on a presumption that we have published this material to the world, then it does not get proved. Your Honours, my time has expired, if it please the Court.

GLEESON CJ: Thank you, Mr Giles. Yes, we do not need to hear you, Mr Bennett.

Having regard to the procedural context in which this case comes before the Court, the Court is of the view that it does not raise an issue suitable to a grant of special leave to appeal, and the application is refused with costs.

AT 4.26 PM THE MATTER WAS CONCLUDED