Burden v Ainsworth [2004] HCATrans 144 (30 April 2004)

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Burden v Ainsworth [2004] HCATrans 144 (30 April 2004)

Last Updated: 6 May 2004

[2004] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S196 of 2003

B e t w e e n -

LESLIE JAMES BURDEN

Applicant

and

LEONARD HASTINGS AINSWORTH

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 2004, AT 11.44 AM

Copyright in the High Court of Australia

MR B.H.K. DONOVAN, QC: May it please your Honours, I appear with MR R.K.M. RASMUSSEN for the applicant. (instructed by Hunt & Hunt)

MR R.R. STITT, QC: May it please your Honours, I appear with my learned friend, MR T.D. BLACKBURN, SC, for the respondent. (instructed by Dibbs Barker Gosling)

CALLINAN J: I should say, before you commence, that some years ago I appeared for Mr Ainsworth in the Queensland Supreme Court. It was a case that ultimately went on appeal to this Court, but I did appear for him, I think it is 10 years or so ago. I am not sure.

MR DONOVAN: I had better just check that, before I - - -

HEYDON J: Mr Donovan, I am in a similar position. In relation to, I think, two separate matters, I gave some advice to Mr Ainsworth’s interests in contests with other members of his family. That would have been eight or so years ago.

MR DONOVAN: I appreciate it is probably difficult to find judges who have not, at some stage, I suspect, your Honours, but just excuse me a moment. We make no objection or complaint about that. Could I perhaps start by bringing your Honours up to date a bit on what has happened since the written submissions were filed.

Your Honours will recall that the particular issue which is before this Court arises out of a judgment of Justice Simpson on 2 March 2000. The point about section 64 was before her Honour, but there were other points in the notice of motion that was put forward which her Honour did not deal with. The matter was then taken to the Court of Appeal. The Court of Appeal decided the section 64 issue, but sent the balance of the notice of motion which had been before her Honour back to be dealt with at first instance. They were dealt with at first instance before Justice Levine, and his Honour has reserved his judgment on the balance of those matters. That is our understanding. If I am wrong, no doubt I will be corrected.

CALLINAN J: There ought not to be any doubt about this. Would you like us to stand the matter down for a few minutes? It may be that if the matter is reserved, if you, for example, were to fail, that would make these proceedings unnecessary. Is that right?

MR DONOVAN: Well, if we were to succeed, it would not make these proceedings unnecessary because there would almost certainly then be an appeal to the Court of Appeal.

CALLINAN J: Say you failed.

MR DONOVAN: Say we fail on that, that will not affect these proceedings. These proceedings stand independently on this one point about the meaning of section 64.

CALLINAN J: Quite, yes. You could win on this point.

MR DONOVAN: If we win on this point - - -

CALLINAN J: You would knock out the plaintiff.

MR DONOVAN: Knock out the plaintiff and it is the end of the totality of these proceedings.

CALLINAN J: Yes. I think we ought to know precisely what the - - -

MR DONOVAN: Could I speak to Mr Stitt for a moment, your Honour?

CALLINAN J: Yes.

MR DONOVAN: I am sorry, your Honours, we cannot agree on what has happened. I do apologise.

CALLINAN J: You cannot? Well, you proceed anyway.

MR DONOVAN: Very well, let me proceed. I have made it clear, I think, where the present matters stand. There are a number of other issues that are in this case which your Honours may be taking, but I am not going to worry about them at the moment. Your Honours will see page 21 of the application book, at line 57, dealing with the notice of motion or the balance of the notice of motion:

The notice of motion, in so far as it sought further or other relief, remitted for hearing to the Common Law Division Defamation List –

That is what happened there, but since then it has been heard before Justice Levine and his Honour has reserved. Anyway, let me move on. The first thing I wanted to take your Honours to is the section itself. Your Honours will find the section itself set out in the application book in the Court of Appeal.

HEYDON J: Yes, page 18.

MR DONOVAN: Thank you very much, your Honour. That reads:

(1)	If access to a document is given pursuant to a determination under this Act, and if the person by whom the determination is made believes in good faith, when making the determination, that this Act permits or requires the determination to be made:

I will leave aside (a), because (a) is not really in dispute –

(b) no action for defamation or breach of confidence in respect of any publication –

not just republication, but any publication –

involved in, or resulting from, the giving of access lies against the author of the document or any other person by reason of the author or other person having supplied the document to an agency or Minister.

We rely particularly upon the last part of that section, that is:

by reason of the author or other person having supplied the document to an agency or Minister.

We say that picks up the original issue of the document, or giving of the document, or publication of the document, to the agency, or, in this case, to the Minister for Police. We say that section 64 provides that what could previously be done confidentially and without fear of defamation by the original author can be done safely still by that original author. If the Court of Appeal is correct, it means that any person now complaining or communicating confidentially to a public official must assume that he can be sued for defamation.

May I take your Honours to section 5 of the Act, which your Honours will find in the respondent’s material. The full Freedom of Information Act is set out and it is about halfway through their bundle of material. I will take your Honours to section 5. Section 5(4) reads:

Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.

So we say that section intends that people who could previously provide the original publication with safety, confidentially, to a minister or to a public official, can still do so now.

CALLINAN J: You say that is a charter for the provision of a defamatory, non-privileged document to the Minister.

MR DONOVAN: Yes. The reason we say that – and let me just digress for a moment, your Honour – is this. It may be said, and it has been argued, that qualified privilege is a sufficient protection, but the problem with that is that qualified privilege puts the person supplying the document in the position of having to contend, often in a complicated case, the litigation. We say the risk of being confronted with that litigation is such that it will restrict the giving of information to the Minister or to public officers, because there is now a risk of that material – if the Court of Appeal is correct – being used to bring actions for defamation against such people.

CALLINAN J: But the Freedom of Information Act does not of itself do that. It is a risk that always existed. When anybody made a complaint to any responsible authority, you were obliged to act responsibly in making the complaint. The fact that you are complaining to somebody about something is not a reason to be inaccurate and defamatory and irresponsible.

MR DONOVAN: It is not a complaint just to anybody, of course. It is a situation of a complaint being made in public circumstances, that is, to a public authority.

CALLINAN J: But any complaint to any authority is in exactly the same position.

MR DONOVAN: Indeed.

CALLINAN J: The only difference here is that there is a special Act which entitles people in some circumstances to get access to the complaint.

MR DONOVAN: And if people had access under the previous law, that was what the law said was appropriate and allowed those people to bring defamation actions, but it was never the intent of the Freedom of Information Act to open up this area to permit people who obtained documents under freedom of information to then be able to bring defamations which would never have been brought previously.

CALLINAN J: That might be a good thing if irresponsible complaints are being made. What is wrong with that?

MR DONOVAN: It may or may not be a good thing, but it is not, we say, what the Act intended, your Honour. I understand what your Honour says about that. One can argue there should be more litigation or less litigation and this could be a better or worse thing - - -

CALLINAN J: No, less defamation, not more litigation.

MR DONOVAN: That depends, of course, then, upon one’s attitude – and that might be a personal thing, not a matter reflected in this Act – one’s personal attitude to issues such as freedom of speech. Certainly, section 5 specifically says that:

Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents –

and if the section has the interpretation the Court of Appeal placed on it, then it does just that. As I said before, any person now complaining or communicating confidentially to a public official must assume that he can be sued in defamation.

Your Honours, the meaning of the section is uncertain. Both inferior and superior courts of different jurisdictions have interpreted sections of the same effect differently, and, may I say, not just to the same effect, but with precisely those same words that I raised with your Honours before in section 64, namely:

in respect of any publication involved in, or resulting from, the giving of access –

That was the piece which the Court of Appeal said – and I will take your Honours to this shortly – was the “limiting phrase”. The other words which the legislation of the Commonwealth and South Australia and the other States have are:

by reason of the author or other person having supplied the document to an agency or Minister.

I can take your Honours to the various - - -

HEYDON J: Mr Donovan, really, the main thing in your favour is Justice Bleby in South Australia, is that not so? Can we not put on one side, with all due respect to them, District Court judges going either way, the Administrative Appeals Tribunal, and so on. When one goes to Mr Justice Bleby – of course, I say this with the greatest respect to him - there is hardly any reasoning in support of his construction. He offers a construction - - -

MR DONOVAN: Well, in a sense, there is hardly any reasoning because what his Honour said is that, as he saw it, there was just no doubt about it.

HEYDON J: Yes. Well, that can be the position with questions of construction, minds can differ. Just textually, though, where is the error in Mr Justice Handley’s reasoning?

MR DONOVAN: To deal with that, your Honour, I probably need to go to Mr Justice Handley’s judgment and I think that is at about page 18 or 19. What his Honour says is – at paragraph 8, page 19:

Hence without statutory protection a person publishing defamatory matter to a public official, on what would otherwise have been an occasion of qualified privilege, could have lost that privilege if republication to third persons, under the FOI legislation, was the natural and probably result of that publication. Republication pursuant to the legislation would be outside the protection of the qualified privilege which would not protect publication to third persons.

That is, essentially, what his Honour has used as his reasoning. If one goes to paragraph 13, your Honours will see that his Honour there says:

The evident purpose –

well, whether it is evident or not is a matter which we are in dispute here about –

of s 64 was to ensure that the Act did not widen liability for defamation by a side wind. There is nothing in s 64 to indicate that it was intended to protect publications made independently of the Act.

The publication here is not made independently of the Act. It is actually provided to the public official, and is therefore caught by the Act –

If Parliament had wished to protect defamatory publications - - -

HEYDON J: What it means is, when the defamatory material is handed to the official, there is nothing in the Act that compels that. That is just something that arose because of a decision of the complainant.

MR DONOVAN: I understand what his Honour says, but we submit that his Honour is not really correct in putting it quite in that way. This is the problem with it. You can either look at the words and say there is a narrow construction, or look at the words and say there is a wide construction, and, either way, there is an argument which will support that.

CALLINAN J: I must say I have difficulty with that. The words seem to be clear. No action is to lie or no action can be brought “in respect of any publication involved in, or resulting from, the giving of access”. The action for defamation is not in respect of the provision of the document under FOI. The fact that somebody got hold of it, following that, does not mean that it results from the provision of the document. I just think the language is intractably against you, I must say.

MR DONOVAN: Well, your Honour, I suppose it depends upon what your Honour say the words “publication involved in, or resulting from, the giving of access” – and this is the very point that his Honour Mr Justice Handley made at application book, page 21. His Honour pointed this out – just taking it up from the bottom of page 20:

If Parliament had wished to protect defamatory publications made independently of the Act, this result could have been achieved by omitting words from s 64(1)(b) so that it read:

“no action for defamation or breach of confidence in respect of any publication . . . lies against the author of the document or any other person by reason of the author or other person having supplied the document to an agency or Minister”.

If you took that – and we accept this, of course – that would be quite clear it would apply to all publications. Can – and this is putting a very heavy limitation on the words – can the words “publication involved in, or resulting from, the giving of access” limit in that way - - -

CALLINAN J: But the action in defamation is not brought against the freedom of information official who supplies the document.

MR DONOVAN: No, it is brought against the original authors.

CALLINAN J: Exactly. It is just an entirely different publication.

MR DONOVAN: But this is not limited to action against the official who - - -

CALLINAN J: No, there may be a republication. That may be a different matter altogether.

MR DONOVAN: Except that it does not say that, in our submission. May I just point this out, that if it was limited to republication it would mean that there is little effect which the provision would have. If I take your Honours to page 32 of the application book at paragraph 11, about line 42:

At common law the author of a document may be liable for republications of the same document (Speight v Gosnay (1891) 60 LJQB 231):

(a)	Where the original publisher authorises the repetition, explicitly or implicitly –

There is no question here that where documents come out or are issued under freedom of information, that the original writer authorises that. That is something which happens by law –

b)	Where he or she intends the matter to be republished –

and that does not apply here –

c)	Where the republication is the natural and probable consequence of the original defamation –

issuing them under FOI is hardly that –

d)	Where there is a duty cast upon the recipient of the libel to republish it –

and release under freedom of information does not apply there. It follows, if that is the case, that the section, read in its narrow sense, is meaningless. It gives no additional protection at all. May I just point this out, that in the respondent’s submission at page 39, it is said, about line 50:

The letter had a wide circulation within the Department and the respondent maintains was either republished, or its contents were made known, to gaming authorities in Nevada.

That is not alleged in the statement of claim. The only publication which is alleged in the statement of claim is the publication from Burden to the Minister. So we submit that if the section is read in that narrow way that the Court of Appeal read it, then it is of just no effect and use at all.

HEYDON J: Yes, that was eight years ago, that statement of claim, and the particulars were the best particulars of publication that the plaintiff can presently provide.

MR DONOVAN: There has been no application to amend or any suggestion of that in correspondence, your Honour. Anyway, they are the matters I put before the Court.

CALLINAN J: Thank you, Mr Donovan. We have no need to hear you, Mr Stitt.

The applicant seeks to argue that the protection afforded by section 64(1)(b) of the Freedom of Information Act 1989 (NSW) to the giving of access to a document under the Act should be extended to the provision, that is to say the original publication of the document, to an agency or Minister. For the reasons given by the Court of Appeal, section 64(1)(b) does not so extend. The application should be dismissed with costs.

AT 12.06 PM THE MATTER WAS CONCLUDED