HarperCollins Publishers Australia Pty Ltd & Anor v Gill & Ors [2023] HCATrans 14 (17 February 2023)

Last Updated: 17 February 2023

[2023] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S108 of 2022

B e t w e e n -

HARPERCOLLINS PUBLISHERS AUSTRALIA PTY LTD

ACN 009 913 517

First Applicant

STEVE CANNANE

Second Applicant

and

JOHN GILL

First Respondent

THE ESTATE OF THE LATE JOHN HERRON

Second Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Third Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 17 FEBRUARY 2023, AT 11.30AM

Copyright in the High Court of Australia

____________________

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR J.C. SHEAHAN, KC appears with MR A.N. d’ARVILLE and MR M.O. PULSFORD, for the applicants. (instructed by Banki Haddock Fiora)

MS S. CHRYSANTHOU, SC, appears with MR B.C. DEAN and MR T.C. SMARTT for the first respondent. (instructed by Company Giles Pty Ltd)

GAGELER J: There is no appearance for the second respondent. There is a submitting appearance for the third respondent. Mr Sheahan.

MR SHEAHAN: Your Honours, the first proposed ground of appeal concerns the meaning of language which appears in numerous statutes in Australia. The language is – evidence is not admissible against a person in any criminal or civil proceeding.

GAGELER J: It is not the greatest vehicle for that, it is, Mr Sheahan?

MR SHEAHAN: If your Honour is asking about the effects of the determination of that question on the outcome of the case, it is true that it is not going to be dispositive. There is no doubt about that. This is a question ‑ ‑ ‑

GAGELER J: More than that, Mr Sheahan, it would be, at best, advisory, would it not?

MR SHEAHAN: With respect, your Honour ‑ ‑ ‑

EDELMAN J: The provision has not even been picked up.

MR SHEAHAN: So, it is not, with respect, advisory. Your Honour Justice Edelman is correct, the provision is not applicable. The first thing that will happen if this matter goes to a retrial is this: the trial judge will be confronted with extensive argument as to whether this important material should be either excluded under section 135 of the Evidence Act or the subject of a limitation under section 136. The principal – perhaps the only argument, but certainly the principal argument in respect of both points will be this: when the evidence was given, Dr Gill was entitled to assume, by virtue of section 17 as construed by the Full Court, that he would never subsequently be required to confront the testimony he was giving before the Royal Commission.

Now, it will be said that is powerful consideration because at the time he gave that evidence, the Evidence Act (Cth) was in the future, and there was no Commonwealth statute that rendered section 17 inapplicable. None of this arises – none of this will arise if, in truth, section 17 has the construction which is compelled by the reasoning of the New South Wales court of appeal in Feldman, which was adopted by the trial judge in this case, and which was adopted by Justice Besanko in Roberts-Smith. So, this is a question of real significance in the determination ‑ ‑ ‑

STEWARD J: Mr Sheahan, can I ask you, are you saying that the matter that goes to the discretion was Dr Gill’s belief and circumstances in giving his evidence when he did, regardless of what section 17(2) might ultimately mean? Or that, in order to decide the discretion, you need to know what it actually means regardless of what Dr Gill thought, or what was happening when he gave evidence.

MR SHEAHAN: It will be put on both grounds, your Honour; and thank you for pointing out the section. We are confident we have put on both grounds that when the matter comes before the new trial judge, the court will be asked to find that because section 17 as construed by the Full Court would have excluded this evidence, it ought to be excluded under section 135. And because, Dr Gill, if his attention had been drawn to it, would have assumed he would have protection of section 17, he should be given . . . . . put on both grounds . . . . .

EDELMAN J: Ultimately, the framework in which you are asking us to answer the question is for the purpose of providing what, in effect, will be a ruling on an application for the exercise of a discretion that has not yet been made.

MR SHEAHAN: With respect, no, although I understand why your Honour puts it to me that way. It is asking the Court to rule as to whether a matter can possibly arise in relation to an exercise of discretion under section 135 or 136. On the approach of the New South Wales Court of Appeal in Feldman, this is not an issue that will arise. Any application under section 135 or 136 will have to be argued by reference to considerations other than section 17 and its true operation.

GAGELER J: Mr Sheahan, assume you are successful on ground 1, what order in this appeal follows from that?

MR SHEAHAN: If we are successful on ground 1, then strictly speaking – ground 1 alone – no order is necessary. That is to say ‑ ‑ ‑

GAGELER J: No order follows, does it?

MR SHEAHAN: That is an unusual circumstance, but it is simply because this Court will have decided a question which will be a matter of estoppel as between these parties, and it will be the law of the country. When the matter is retried on the issues of truth, as to the remaining imputations, that will be the law, and any applications for exclusion under section 135 or 136 will be dealt with in accordance with the law so stated.

EDELMAN J: It sounds a lot like ground 1 is an appeal from reasons, then.

MR SHEAHAN: It is an appeal from a decision made by the Full Court which will govern how the trial court must approach the question on remitter. That is, I think, with respect, saying something slightly different from what your Honour Justice Edelman put.

GAGELER J: Mr Sheahan, I do not want to take you out of order, and I do not want to stop you from pursuing ground 1, but can I just ask a similar question in relation to ground 2. Let us assume that you are successful on ground 2. What order follows?

MR SHEAHAN: There are two possible orders which follow. We would submit that, if we are correct on our ground of appeal, then the Full Court’s exercise in forming its contrary view about qualified privilege will have miscarried and the matter will have to be – and that question will fall to be decided again in accordance with proper appellate principles; that is, an overall evaluation matter having regard . . . . .

GAGELER J: It will not stop a retrial, will it?

MR SHEAHAN: Yes, so that would stop a retrial because qualified privilege would be a defence.

GAGELER J: Yes, but not to every imputation, would it? It would not be a complete showstopper in this sense.

MR SHEAHAN: Yes, it would, in our submission, your Honour. So, qualified privilege operates as a defence to the entire publication. The imputations do not give rise to separate causes of action. There is one cause of action. And qualified privilege, if it is successful as a defence, will result in a verdict for the defendants.

Now, to go back to the first question your Honour, the presiding judge had asked me, on qualified privilege, that is one possible outcome – judgment set aside, restore the decision of the trial judge. The second possible outcome is that the question in relation to qualified privilege is remitted to the Full Court for their determination according to law.

GAGELER J: Please proceed, Mr Sheahan.

MR SHEAHAN: Thank you, your Honours. On the first question, your Honours will have appreciated the significance of the distinction between the construction adopted by the Full Court and that adopted by the Court of Appeal, but can I make it concrete by reference to this case. In this case, Dr Gill gave evidence in a Royal Commission that he administered deep sleep therapy to patients. Before Justice Jagot, he denied that he had done so and he gave that denial by way of an answer to a defence of truth. So, what he wishes to do is to make the applicants liable to damages without his prior contrary testimony to the Royal Commission, being available to the tribunal of fact.

The Full Court has said that he would be entitled to do so on their construction of section 17 if it applied directly and may yet be able to achieve that outcome by virtue of the exercise of a discretion under section 135 on the footing that section 17 has the construction for which the Full Court found.

Now, as your Honours appreciate, Australian courts have decided this question several times recently on various statutes. In chronological order: Justice Campbell in Feldman decided that section 6DD of the Royal Commissions Act (Cth) is concerned with the use of compelled evidence to establish a civil or criminal liability in the person whose privilege was abrogated and has no wider operation; Justice Jagot approved and followed that decision in this matter by reference to section 17; the unanimous decision of the New South Wales Court of Appeal upheld Justice Campbell’s decision after a careful review of the legislative history; and Justice Besanko followed Feldman and Justice Jagot’s judgment in considering the effect of a provision of the Defence Act in Roberts‑Smith v Fairfax.

Now, that difference of opinion – judicial opinion – is stark and it can only be resolved by this Court. And until it is resolved by this Court there will be confusion amongst both trial judges and intermediate appellate courts as to the proper course to adopt when confronted with this language in these various statutes. The idea that the decisions can stand together is, with respect, plainly wrong. The language is too similar to admit of that and, in any event, it is apparent from reading Justice Rares’ judgment in this case that he could not, and did not, rely on an attempt merely to distinguish Feldman, instead he . . . . . criticising the reasoning in that court, he made findings as to the common meaning of section 17 and section 6DD. Indeed, in an apparent attempt to avoid a collision between the decision of the Full Court and the decision of the Court of Appeal, he went so far as to decide a constitutional reason for upholding the decision in Feldman despite . . . . . reasoning.

For those matters, the question is one of real significance. I have said what I intended to say on the subject of its significance or this particular case. It will be vitally important, in our respectful submission, for the retrial. The evidence affected by the ruling goes to the heart of the defence of substantial truth.

If I can turn then to qualified privilege, both under the statute or the general law, the defence requires a finding that the conduct of the defendant publishing the matter is reasonable. Decisions of this Court establish that that must depend on all the circumstances of the case and that reasonableness cannot be subject to inflexible categorisation. Section 30, as it then stood, listed nine particular factors the Court may take into account. This list – according to the New South Wales Court of Appeal, at any rate – is not mandatory and no single matter is determinate. The trial judge dealt with all nine matters and a raft of other matters said to be related to the question of reasonableness. She did so over nearly 200 paragraphs of her reasons – from 776 to 848 and 164 to 173.

It is useful to go just to a couple of findings which were not overturned on appeal. First, is in volume 1 of the application book, at pages 68 to 74, where her Honour, commencing at the bottom of page 68, sets out, in some detail, the extensive researches undertaken by the author of the book for the purposes of this chapter. They included, as your Honours will see from page 72, in the last paragraph, interviews with the counsel for Mr Herron. Secondly, at appeal book 256, she found that it was reasonable for the author to rely on the findings of the Royal Commission. That is at paragraph 786. She was referring there to particular findings that commence at the bottom of the previous page:

The Royal Commissioner said:

In summary, Dr Gill was a most unsatisfactory witness. He was prepared to lie when the occasion demanded. He ultimately continued his delusional attacks on innocent people in the witness box in the face of clear evidence that he was wrong. He prepared to involve himself in the falsification or removal of records if his interests were threatened.

Her Honour found that:

It was reasonable for Mr Cannane to rely on those findings. It was reasonable for Mr Cannane to conclude (as he did) that he would have “zero confidence that they would tell the truth” –

I pause there because the balance of what her Honour found was, arguably, the subject of criticism on appeal but the first part was not. Thirdly, she found there was no case – this is at paragraph 823, on page 265 – no case in which the author:

intended to convey an imputation but did not believe –

to be true. Finally, in paragraph 824, on page 265, in the second‑half of that paragraph, she said that:

From the whole of his evidence I am satisfied that Mr Cannane exhibited a high level of care and diligence in ensuring that what he conveyed was accurate –

That is a finding not reversed on appeal. Unless the Full Court ‑ ‑ ‑

GAGELER J: Mr Sheahan, this all relates to Mr Cannane’s defence, does it not, not HarperCollins?

MR SHEAHAN: It necessarily relates to both. Both the trial judge and the Full Court held that the question of qualified privilege went together for both publisher and author. There is a suggestion in our learned friends’ submissions to the contrary, but in our written submissions in reply I think we have demonstrated that suggestion is wrong, but I can take the Court to the passages that make it clear if that is necessary.

GAGELER J: That would be helpful. Thank you.

MR SHEAHAN: In relation to that, this Court – this arose in the Full Court under ground 3(a). Our learned friends say in paragraph 18 of their written submissions . . . . . was upheld. It was not, it appears early . . . . . orders/judgment – volume 2 of the application book at 519, paragraph 21; Justice Wigney’s reasons to the same effect at paragraph 31, page 523, both of which conformed with the trial judge’s reasons in rejecting this argument at paragraph 770 in appeal book 1 at page 254. So, the two cases of qualified privilege stand off altogether.

Now, what happened was the Full Court reversed the trial judge’s finding of reasonableness without addressing these matters in the manner called for by what we would submit is a principle of appellate review; that is, having due regard to the advantages of the trial judge, which in this case were considerable, and giving proper weight to the trial judge’s views, which in this case required an evaluation of all the circumstances bearing on their estimates. Instead, the Full Court focused entirely on one subparagraph in section 30, from a different view from the trial judge on that question and treated that as dispositive of the appeal.

If the Court had gone to the trouble of a proper review, Justice Rares might not have made the error that he did at paragraph 183, on appeal book page 395, in relation to ‑ ‑ ‑

EDELMAN J: What paragraph of the reasons of the Full Court do you say most strongly support the characterisation that the Full Court, or members of the Full Court, were treating section 31(c) or 31(h) as a mandatory consideration?

MR SHEAHAN: They treated it as dispositive of the question, and in that sense, perhaps mandatory. But the paragraphs are these, your Honour: in the orders/judgment at paragraph 21, application book 2, page 519, and ‑ ‑ ‑

EDELMAN J: In that sense of treating it as dispositive, your argument then, really, is just that the Full Court put too much weight upon that matter and ought to have put less weight on it in all of the circumstances.

MR SHEAHAN: The way we put it is this. Even if they found an error in that respect, what was necessary according to proper appellate jurisdiction was a re‑evaluation of the question of reasonableness, having regard to all relevant matters. That exercise was not undertaken and we say that that is both a matter of a failure – sort of truncation – of the necessary appellate process, and a substantive error because the decision of the Court of Appeal in . . . . . makes clear that none of these matters is a hurdle, and by treating it as dispositive, the Full Court treated it as a hurdle.

GAGELER J: Thank you, Mr Sheahan. The Court at this stage will adjourn to consider the course it will take.

AT 11.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.55 AM:

GAGELER J: We do not need to hear from you, thank you, Ms Chrysanthou.

We are not persuaded that the proposed appeal would appropriately raise for the consideration of this Court either of the questions which the applicants seek to agitate. Accordingly, it would be futile to extend time for the filing of the application. The application is refused with costs.

The Court will adjourn until 12.30 pm.

AT 11.56 AM THE MATTER WAS CONCLUDED