Coleman v Sellars & Anor B14/2001 [2002] HCATrans 322 (26 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B14 of 2001

B e t w e e n -

PATRICK JOHN COLEMAN

Applicant

and

NICHOLAS SELLARS

First Respondent

TOWNSVILLE CITY COUNCIL

Second Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 9.54 AM

Copyright in the High Court of Australia

MR K.G. HORLER, QC: If your Honours please, I appear for the applicant/appellant, and with me, MS E.S. WILSON (instructed by Cowley Hearne)

MR R.V. HANSON, QC: If the Court pleases, I appear for the first respondent. (instructed by Queensland Police Service Solicitor)

MR N.M. COOKE, QC: If the Court pleases, I appear for the second respondent. (instructed by King & Company)

GAUDRON J: Yes, Mr Horler.

MR HORLER: Your Honours, there is a preliminary matter. This application and this proposed appeal - - -

GUMMOW J: You need an extension of time?

MR HORLER: I do, and an affidavit has been put on.

GAUDRON J: Is that opposed:

MR HANSON: No, your Honour.

MR COOKE: No.

GAUDRON J: No, well do not trouble yourself with that, Mr Horler.

MR HORLER: Thank you, and thank you, gentlemen.

Your Honours, may I make this impertinent inquiry as to how familiar your Honours are with the application book?

GAUDRON J: Quite, as in all cases.

MR HORLER: Indeed, your Honour. Your Honours, that said and that being made clear to me, I do not want to do anything more than remind your Honours that in page 51 of the book is set out the basis upon which we say special leave arises, this being a free speech case. Your Honours will know those cases relied upon by myself and respondents' counsel.

GAUDRON J: Do you not have to come to grips with the fact, Mr Horler, that by-law 8(1) does, in fact, provide for political speech, albeit that it requires, as your submissions say, a milk crate and an umbrella?

MR HORLER: If he had done that he would not have had to make the application, which could have been capriciously refused to him, as the by-law requires.

GAUDRON J: Do you not have to come to grips with the fact that if he had done that there would have been no restriction at all on speech of the kind protected by the Constitution?

MR HORLER: For the purposes of the argument, conceding to what your Honour has just put to me is so, that the arbitrariness of the way in which - the procedure that he has to follow to exercise his right to free speech and the arbitrary way in which it is disposed, we say, makes the by-law and the sub by-laws a breach of that right.

If the vice that the by-law pretends to deal with is some disturbance of the public, in as much as one can divine any purpose or intent in it, to say that if you did what my client did as opposed to setting up some stall, even of a most temporary kind, is to show the essential invalidity of the by-law. That would by my answer to the question that your Honour is saying that I must grapple with.

GAUDRON J: You have to say that the by-law 1 is invalid too, and not simply by-law 8(2)(e).

MR HORLER: Yes, well I focused on that because that was the one he was prosecuted under. Consistent with my argument I would have to say that and I do say that.

GAUDRON J: On what basis? When I say "On what basis?" might I also observe that does not seem to have been considered below.

MR HORLER: That is correct, your Honour.

GAUDRON J: I dare say that is because this constitutional issue emerged for the first time in the Court of Appeal, did it?

MR HORLER: Yes, but it was not addressed there, either by the dissenting judge who was in my client's favour or by any of the judges in that case.

GAUDRON J: No, but perhaps your client simply put an argument relating to 8(2)(e).

MR HORLER: I think that is what did happen and must have happened in reading the judgment and seeing how the matter proceeded from the Magistrates Court in Townsville.

GAUDRON J: What is your argument about by-law 8(1)? For the invalidity of the total of by-law 8 you have to - - -

MR HORLER: Your Honour, my answer to that is that my client's right to make a speech on political matters - and clearly the speech he made was on political matters - should not be curtailed in the way in which the whole of the by-law seeks to do by imposing conditions upon the way in which he exercises that right. The whole of the by-law, but in particular the one he was prosecuted under, we say is bad - Lange.

GAUDRON J: You say there can be no regulation, do you?

MR HORLER: No regulation.

GAUDRON J: But that is not what the authorities say in this Court. They say they can be reasonable. You have to go so far as to say the requirement, as you put it in your submissions, of a milk crate and umbrella, upon which basis you say your client would have been home and hosed - - -

MR HORLER: "Home free", I think.

GAUDRON J: "Home free", yes, itself is an unreasonable or disproportionate restraint on freedom of political communication.

MR HORLER: I can go to the easier position of the unreasonableness of it rather than the absolutism of the proposition I just put. In the Victorian case, Levy v Victoria, the reasonableness of the regulation related to public safety in that there had to be some controls over people blazing away with shotguns during the open duck shooting season and one cannot in this by-law spell out any public good that is sought to be served by this unreasonable abridgment of his right to free speech.

Your Honours are familiar with the book and your Honours are obviously familiar with the authorities, unless there is anything else I do not feel there is anything more I can add to that which I have said in the submissions.

GAUDRON J: Yes, thank you, Mr Horler.

MR HORLER: Thank you.

GAUDRON J: We need not trouble you, Mr Hanson and Mr Cooke.

The applicant seeks to challenge the validity of by-law 8(2)(e) of Chapter 39 of the by-laws of the Townsville City Council on the ground that it infringes the implied right of communication with respect to political matters recognised by this Court in Nationwide News Pty Limited v Wills, [1992] HCA 46; (1992) 177 CLR 1 and Australian Capital Television Pty Limited v Commonwealth, [1992] HCA 45; (1992) 177 CLR 106.

No error of principle is to be discerned in the approach of the Court of Appeal to the question whether that right is infringed by by-law 8(2)(e). Moreover, given the terms of by-law 8(1), the decision of the majority that by-law 8(2)(e) is not invalid is not attended with sufficient doubt to justify the grant of special leave.

Accordingly, time will be expended for the bringing of this application but special leave is refused. We do not regard the applicant's student status as sufficient reason to depart from the normal rule with respect to costs and accordingly special leave is refused with costs.

AT 10.03 AM THE MATTER WAS CONCLUDED