New South Wales Supreme Court CITATION : Della Bosca v Arena [1999] NSWSC 1057 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20994 of 1997 HEARING DATE(S) : 21 October 1998 JUDGMENT DATE : 27 October 1999 JOHN DELLA BOSCA (Plaintiff) PARTIES : v FRANCA ARENA (Defendant) JUDGMENT OF : Levine J B McClintock S.C. (Plaintiff) COUNSEL : J Gibson (Defendant) Abbott Tout (Plaintiff) SOLICITORS : Gells Solicitors (Defendant) CATCHWORDS : Absolute privilege - statements to ALP Caucus - statements outside Parliament - adoption of speech in Parliament - tendering Hansard "as a matter of history" - application for permanent stay DECISION : See paragraph 36 DLJ: 1 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No 20994 of 1997 JUSTICE DAVID LEVINE WEDNESDAY 27 OCTOBER 1999 JOHN DELLA BOSCA (Plaintiff) v FRANCA ARENA (Defendant) JUDGMENT (Absolute privilege - statements to ALP Caucus - statements outside Parliament - adoption of speech in Parliament - tendering Hansard " as a matter of history " - application for permanent stay) 1 The Amended Statement of Claim filed on 20 March 1998 pleads that the plaintiff is the Secretary of the New South Wales Branch of the Australian Labor Party (the plaintiff is now a Member of Parliament). 2 It is further pleaded that the defendant is a Member of the Legislative Council of this State (she now no longer is). 3 Paragraph 3 pleads that on 17 September 1997 the defendant said the words set forth in Schedule A to the pleading during a session of the Legislative Council. The Schedule is presumably a reproduction of a speech recorded in Hansard. 4 By paragraph 4 of the Amended Statement of Claim the plaintiff asserts that the speech or the "substance thereof" was widely reported in newspapers and on radio and television and thus came to the "attention of readers … throughout the State of New South Wales". Particulars are then given of publications in various newspapers. 5 It is in paragraph 5 that the plaintiff pleads the first publication of which he complains alleging that on 18 September 1997 the defendant published of and concerning him the following words to a Special Meeting of the NSW Parliamentary Labor Party ("Caucus"): "I stand by the comments that I made over this matter and I believe that there has been a massive cover up to protect certain paedophiles organised through the Wood Royal Commission involving meetings with various parties". 6 Paragraph 6 pleads that the defendant in publishing the matter on 18 September 1997 to "Caucus" knew and intended that her words or their substance would be republished and that such republication was the natural and probable consequence of the original publication (to the "Caucus"). The said words were republished and the defendant, it is alleged, is liable for each such republication. Particulars are provided of three newspaper articles. This is the second (re)-publication relied upon. 7 Paragraph 7 pleads the third publication of which he complains namely, that on 13 October 1997 the defendant published of and concerning the plaintiff the words ascribed to her in the course of an interview broadcast by the ABC. The words are as follows: "Defendant: I will just say this. I will just say this. That I am preparing a statement with all supporting documents, statutory declarations, information I have received, very sensitive material to be tabled in Parliament and for all members of Parliament to see the material. Clark: Will that material support the allegations that you have made? Defendant: Well, it's exactly what I intend to do. I am prepared to back up what I said in Parliament. I have always acted with honesty and integrity in the interest of the children and with information I was given. I have checked the information. I am not a policeman or a detective. I have to the best of my knowledge checked the information and the people who have given it to me". 8 The fourth publication of which the plaintiff complains is alleged to have taken place on 10 November 1997 during an interview broadcast by the ABC in the course of the "Four Corners" program, reliance being placed upon the words attributed to the defendant. The text is as follows: "Interviewer: Bob Carr and Peter Collins were schedule (sic) to meet but the meeting was cancelled so you're clearly wrong on that score. Are you sorry that you implied that Peter Collins met with Bob Carr and had this discussion? Defendant: Now I, I, stand by the statement I made in my speech in Parliament and ah, as I said, I'll ask the community to judge me. Interviewer: But Peter Collins never did meet Bob Carr. Defendant: There is definitely a letter from the Premier inviting Peter Collins and from Peter Collins saying to the premier, yes, I'm definitely going to meet you. I mean the letters are there. I haven't invented them. I've got a copy and I will be very happy to show them to you. So what happened then? Did the heat become too great and they decided to cancel it? Interviewer: Maybe they just cancelled the meeting Franca? Haven't you, haven't you ever cancelled an appointment with um … Defendant: Yes. Interviewer: … with anyone I mean maybe that's just what happened isn't it? Defendant: Yeh well maybe, maybe. Interviewer: Franca there's not been one shred of evidence supporting your allegations in Parliament about a high level cover up of paedophiles, you've virtually lost all your credibility on that allegation haven't you? Defendant: Well I just want to ask people this question. If there was a cover up do you think the people who did it would admit to it? That's all I'm going to say". 9 The fifth publication of which Mr Della Bosca complains is alleged to have taken place (in paragraph 9) on 13 November 1997 during the course of an interview on ABC radio. The publication complained of is in the following terms: "Clark: Will you appear before the Privileges Committee and will you substantiate your allegations? Defendant: Absolutely". 10 In paragraph 10 of the Amended Statement of Claim in respect of the publications complained of the plaintiff pleads that each in its natural and ordinary meaning conveyed the following imputations defamatory of him (the causes of action): "10(a) the plaintiff had participated in a conspiracy to conceal the criminal activities of highly placed paedophiles and perverts; (b) the plaintiff had deliberately prevented people who had committed disgusting sexual crimes against children from being brought to justice; (c) the defendant's allegations that the plaintiff had participated in a cover-up of the criminal activities of paedophiles were true and based on reliable information which she had checked; (d) the plaintiff participated in the suppression of the proper investigation of the criminal activities of high profile paedophiles and the public exposure of such people; (e) the plaintiff attempted to suppress the proper investigation of the criminal activities of high profile paedophiles and the public exposure of such people." 11 (I note, though it is not critical for present purposes, that the plaintiff concedes that imputation 10(c) is amenable to re-drafting as a matter of form.) 12 Paragraph 11 of the Amended Statement of Claim is in the following terms: "To the extent that the facts stated in paragraphs 3 and 4 above did not form part of the general knowledge of the community the matters respectively complained of in paragraphs 5, 6, 7, 8 and 9 above conveyed the defamatory imputations pleaded in paragraph 10 above as true innuendoes to those persons who knew the said facts". 13 By a Notice of Motion the defendant (who has cross-claimed against John Fairfax & Sons Pty Limited, Nationwide News Pty Limited and the Australian Broadcasting Corporation) seeks the following orders: "1. Paragraphs 5 and 6 of the Amended Statement of Claim be struck out on the basis that matters published in meetings of the parliamentary caucus of the Labor Party are protected by absolute privilege. 2. The whole of these proceedings be perpetually stayed on the basis that the causes of action jointly or severally canvass Hansard. 3. Further or in the alternative the plaintiff be directed to file a Further Amended Statement of Claim pleading each publication (and the imputations and innuendos arising therefrom) separately". 14 The following observations can be made: (a) the plaintiff does not complain of the publication constituted by the defendant's speech to the Legislative Council, that is, he does not sue her for what she there said by reason of any defamatory imputations thereby carried. (b) in respect of the publications complained of, the plaintiff pleads his causes of action (the imputations) arising from the natural and ordinary meaning by reason of the facts stated in paragraphs 3 and 4 being within the community's general knowledge. The " facts " referred to are tolerably clear from the paragraphs. The plaintiff does not (and cannot) rely on knowledge merely of the fact that the speech was made. What must be shown to be within " the general knowledge of the community " was the content or substance of what the defendant said. The newspaper articles particularised, by themselves, do not prove " general knowledge in the community" . For this purpose they may show a mechanism by which the community knowledge was gained. It is the content and substance of the speech itself which must be within the general community knowledge; (c) the plaintiff relies upon the facts set out in paragraphs 3 and 4 as "extrinsic facts " founding the imputations as true innuendos (or secondary or extended meanings). The plaintiff is required by SCR Pt 67 r 12(c) to provide particulars of the facts and matter on which he relies to establish the defamatory meanings other than natural and ordinary meanings. In this regard there has not been strict compliance with the rules of Court (see order 3 sought in the Notice of Motion). On the assumption that the plaintiff relies upon knowledge in the recipients of the " extrinsic facts " made up by the words used in the speech, the rule has not been complied with. Further, the particularisation of the newspaper reports in paragraph 4 is insufficient for this purpose ( Stewart v Shoalhaven & Nowra News Pty Limited (Hunt J, unreported, 26 September 1980); Hughes v Mirror Newspapers Limited (1985) 3 NSWLR 504; see also Consolidated Trust v Browne (1948) 49 SR (NSW) 86 at 89). Insofar as the plaintiff has sought to comply in some way with the rule, he has by paragraph 3 of the Amended Statement of Claim pleaded the relevant particular as a material fact a course proscribed by authority: Turner v Bulletin Newspaper Co Pty Limited (1974) 131 CLR 69 at 80; Dawson Bloodstock Agency Pty Limited v Mirror Newspapers Limited (1979) 2 NSWLR 733 at 736. (d) In none of the publications complained of is the plaintiff named; (he is named in the speech). The matters referred to in paragraphs 3 and 4 are therefore relied upon for the purposes of " identification", that is, matters are alleged/particularised which by reason of their being known to listeners and viewers enables them to understand the publications to be " of and concerning " the plaintiff. Under the heading " Particulars of Identification " the plaintiff " repeats paragraph 3 and 4 above". The press reports referred to in paragraph 4 are not before me on the present application and I do not therefore know if the plaintiff was named otherwise than in the defendant's speech to the Legislative Council and if so, by whom and when in relation to the publications complained of ( Steele v Mirror Newspapers (1974) 2 NSWLR 348; Astaire v Campling (1966) 1 WLR 34; Van Ingen v Mail & Express Publishing Co (1898) 50 NE Rep 879; Ware v Associated Newspapers Limited (1969) 90 WN (Pt 1) (NSW) 180 at 184; Grapelli v Derek Block (Holdings) Limited (1981) 1 WLR 822; Haywood v Thompson (1981) 3 WLR 470). For present purposes it is sufficient to observe that the particulars of that identification should be clarified to expose the case the plaintiff proposes to prove on this issue. (e) it is clear that each of the publications complained of makes reference to the defendants speech of the Legislative Council. The publication pleaded in paragraph 5 (to Caucus), however on its face contains the additional statement " … I believe … various parties". (f) the plaintiff claims aggravated terms on the basis that his hurt was increased by his knowledge of: (i) the falsity of the imputations; that raises an " issue " in the proceedings ( Tabe v Amalgamated Television Services Pty Ltd (1987) A Def R 50,025). A further basis for this claim is (ii) the defendant's motive - she knew the allegations were false. The plaintiff relies on the " findings of the Nader Royal Commission and the defendant's refusal to give evidence before it". 15 What must be set aside at once is the defendant's misconception of the structure of the plaintiff's action to the effect that it is seen to be one in which the plaintiff is suing the defendant for what she said in her speech to the Legislative Council. On no reading of the pleading is this construction available. 16 Next, in relation to the statements to Caucus there is the discrete question (leaving aside questions of adoption of what was said in the Legislative Council) of whether that publication is one protected by absolute privilege. 17 The defendant's position otherwise is that the plaintiff can only sue on statements made outside Parliament. In the circumstances of this litigation to establish an actionable case the plaintiff must prove; (a) publication (by adoption of otherwise); (b) the imputations as natural and ordinary meanings or true innuendos (the causes of action in the strict sense); (c) identification; (d) aggravated damages. 18 None of these matters can the plaintiff establish without tendering Hansard, it is submitted and thereafter and thereby calling into question in a proscribed way what the defendant said in Parliament. 19 As I understand it it is not disputed by the defendant that a plaintiff can sue a member of Parliament in respect of publications outside the legislature (R v Lord Abingdon (1793) 1 ESP 226 [170 ER 330]; Beitzel v Crabb [1992] 2 VR 121 at 126-127). 20 It is argued, as I understand it, essentially that the steps to be taken by the plaintiff purportedly in pursuit of the defendant for what she said outside of Parliament will ultimately and inevitably contravene Article 9 of the Bill of Rights 1689. In Prebble v Television New Zealand Limited [1995] 1 AC 321 at 337A the Privy Council in its Advice said: "… parties to litigation by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading". Thus it is argued that even if the "threshold" difficulty is overcome by the plaintiff, namely the proof of the publication of something said outside of Parliament whether by adoption or otherwise, the proposed action as structured will of necessity infringe that statement of principle. The more so it is submitted given their Lordships view in Prebble as to the correctness of such decisions as R v Murphy (1986) 5 NSWLR 18 (David Hunt J) and Wright v Advertiser Newspapers Limited v Lewis (1990) 53 SASR 416. What will be involved for the plaintiff goes further than what hitherto has been generally accepted as the proper use of the reports of Parliament (that is, Hansard) to prove, for example, material facts so long as there is no question of impeaching the proceedings: NSW Branch of the Australian Medical Association v Minister for Health & Community Services (1992) 26 NSWLR 114. In this regard it is interesting however to note that in written submissions in this context the defendant asserts that an "obvious example would be that all that Hansard was tendered for was to identify the plaintiff; Hyams v Peterson (1991) 3 NZLR 648". The acceptable use of evidence of the proceedings of Parliament includes proving that a government decision was announced in Parliament on a particular day and to establish that a Member of Parliament was present in the House and voted on a particular day (Uren v John Fairfax & Sons Pty Limited (1979) 2 NSWLR 287 at 289E); to establish that a report of Parliamentary reports corresponded with a debate itself and was fair and accurate and therefore attracted such defences as qualified privilege: Mundey v Askin (1982) 2 NSWLR 369F. 21 Ever bearing in mind any requirement to prove what was said outside of Parliament, it is argued for the defendant that even if it cannot be considered that Murphy is either at odds at with all English and overseas decisions and Australian authority, or if it is to be applied, it still favours the defendant. This is so because in the peculiar circumstances of this litigation and by reason of its structure at some point (if not at all the points which I have identified), Hansard could only be used to expose the defendant to civil liability arising from the speech which it records. 22 Ms Gibson's submissions in this regard accord with recent academic analysis. In a paper entitled, "The Courts, Parliamentary Privilege and the Media" (1 UTS Law Review 82 - August 1999) Professor Sally Walker, in a paper which is of great utility in its coverage of this field generally, states (at 92-93): "It is the Privy Council's attitude to R v Murphy which reveals a major difference of approach regarding the scope of parliamentary privilege. It is, however, suggested that regardless of whether Hunt J is right that the object of Article 9 is to ensure that a Member of Parliament cannot be liable for what he or she said in Parliament, or the Privy Council is right that the aim is to ensure that members can speak freely without fear that what they said will later be held against them, the test established by Hunt J in R v Murphy is correct. That is, that parliamentary privilege operates to prevent the questioning of statements made in Parliament only where it can be said that the Court proceedings seek to assert legal consequences against the maker of the statement for making that statement. It is only where this test is satisfied that it can be said that the Member would have any fear that what he or she has said will be held against the member. There is a qualitative difference between, on the one hand, a case in which what was said in parliamentary proceedings is the subject of litigation and, on the other, a case in which a statement made in Parliament is put into evidence in proceedings which are directed at material which is not part of proceedings in Parliament. If a Member of Parliament thought that defamation proceedings could be brought against them in respect of what they said in Parliament, of course this might affect their willingness to speak freely in the House. This should however, be contrasted to the position where all that happens is that evidence of parliamentary proceedings is put into evidence in the course of defamation proceedings brought by the Member of Parliament. The decision to commence proceedings lies in the hands of the Member of Parliament. The Member of Parliament knows that no consequences will follow so far as he or she is concerned from anything said in the House unless he or she chooses to institute proceedings. Indeed, the same could be said of those cases where a Member of Parliament reaffirms, outside the House, usually in a media interview, what he or she has said inside the House and someone sues the Member of Parliament in respect of what he or she said outside the House. Admitting evidence of what was said in the House in these circumstances could not be said to detract from the Member's capacity to speak freely in the House. Evidence of what was said in the House would be admitted, in this case, only where the Member of Parliament has taken the step of affirming what he or she said in the House, outside the House". 23 The submissions for the defendant in writing were well articulated and thorough. As to the discrete point relating to absolute privilege attending Caucus: the difficulty confronting the defendant is the "strike out" nature of her application and that whilst the Rules of the Parliamentary Labour Party are before me, there is no evidence as to its "business" on the occasion by itself or vis-a-vis the business of the Legislative Council. In this context I am of the view that the relief sought in relation to this publication should not be granted. Further, the law provides no binding authority in this area. In Rata v The Attorney-General (unreported, 24 October 1996) Master J C A Thompson of the High Court of New Zealand appears to have held in the circumstances where the Master seems to have had evidence on the issue, that the Caucus as it had developed in New Zealand is an integral part of the Parliamentary process and that all matters transacted in Caucus are inexplicably (sic - query "inextricably") linked to Parliament and thus attracts the privilege (at 19). In Holding v Jennings (1979) VR 289 Anderson J held that the publication of a privileged statement to a person for the purpose of typing, printing and compiling such statement is in accordance with the reasonable and usual course of business of the Parliament and thus has the same protection of privilege as the publication of the statement on an occasion attracting absolute privilege. In Roman Corp Limited v Hudson Bay Oil & Gas Co Limited (1973) 36 DLR (3d) 413 the Supreme Court of Canada implicitly upheld the decision of a the Court of Appeal of Ontario (1972) 23 DLR (3d) 292 to the effect that a press release by then Canadian Prime Minister was properly characterised as "proceedings in Parliament". The Supreme Court of South Australia in Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 effectively left the question open. 24 It must therefore be said that the question of whether or not proceedings of "Caucus" are embraced by the doctrine of absolute privilege in relation to the proceedings of Parliament is clearly an arguable one (see also O'Chee v Rowley (1997) 150 ALR 119 - Supreme Court of Queensland). 25 The submissions for the plaintiff are clear. All that the plaintiff intends to do, it is said, at trial is to prove what the defendant said "as a matter of history". There is no dispute on the authorities that Article 9 of the Bill of Rights permits that course (see Uren (supra); Murphy (supra); R v Jackson & Ors (1987) 18 SWLR 116; Beitzel (supra); Laurance v Katter (1996) 141 ALR 447). 26 It is fundamental to the plaintiff's action that the plaintiff does not seek to prove the falsity of the what the defendant said in Parliament. The plaintiff relies on the falsity of the imputations as a matter of aggravating damages but that does not involve proof the falsity of the defendant's statement in Parliament. It involves proof of the falsity of the imputations made by the defendant "outside Parliament". They may be to the same effect but that is irrelevant as is, it is submitted, the proof of the Parliamentary statement to establish the relevant extrinsic facts and the identification of the plaintiff. 27 All that the plaintiff, as I have said, intends to do at trial is to prove what the defendant said as a matter of history. The plaintiff relies upon the passage I have already cited from Prebble and what the Privy Council further said to the effect that there can be no objection to the use of Hansard to prove what was done and said in Parliament "as a matter of history". 28 That that is what the plaintiff seeks to do and is free to do is supported by, for example, what Davies JA said in Lawrence v Katter at 490: "no impropriety is alleged against the first defendant in respect of what he said in Parliament. What is alleged against him in the Statement of Claim is that what he said outside Parliament was false and defamatory of the plaintiff. It is true that proof of what the first defendant said outside Parliament was false will also prove that what he said inside Parliament was false. That is because he incorporated the latter in his statements outside Parliament. The privilege of Article 9 applies to the statements in Parliament and not to the statements made out of Parliament even though they incorporate by reference the statements made in Parliament". 29 It is thus the plaintiff's position that what he proposes to do is no more than that which is allowable by authority. In a nutshell, as a "matter of history" he will rely upon Hansard. It is arguable clearly on the authorities that the plaintiff is entitled so to do. In Prebble at 337 the Privy Council stated "it will be for the trial judge to ensure that the proof of these historical facts is not used to suggest that the words were improperly spoken …" (337F). 30 As I have already said the question as to the application of the immunity of absolute privilege to the publication to Caucus is an arguable one . This precludes the making of order 1 in the Notice of Motion. 31 As to order 2 seeking a stay on the basis that the causes of action jointly or severally "canvass Hansard", whilst the defendant has pointed to the several areas where this could happen, whether or not it will is best determined at trial and that will depend upon the mechanism of the presentation of the plaintiff's case. Whilst I am prepared to express the view now that the pleading of the plaintiff's case points to areas of peril I am not persuaded to stay the proceedings at this point. The structure of the plaintiff's case is complex and arguably quite artificial: that is no reason for precluding the plaintiff (subject to obvious amendments to the pleading in the technical sense) from seeking to prosecute and prove his causes of action. I am not persuaded that it is unarguable that the plaintiff's action as structured will "canvass Hansard". Thus I do not propose to make order 2 in the Notice of Motion. In each of the areas in respect of which the defendant asserts that the plaintiff "will" canvass Hansard, I see merit in the submissions but I am not persuaded that at this stage of the proceedings especially given their idiosyncratic structure that it is appropriate to bring them to an end in the way the defendant seeks. 32 The plaintiff however will have to further amend his Statement of Claim. It seems to me that paragraph 3 and indeed paragraph 4 in their present form are embarrassing - they do not plead a publication upon which the plaintiff sues the defendant. Further, the plaintiff will have to formalise the particulars of identification and ensure compliance with SCR Pt 67 r 12(c). The plaintiff has acknowledged that imputation (c) presently pleaded in paragraph 10 needs attention. 33 As I have said the structure of the plaintiff's case as presently pleaded is artificial to an extent. For the sake at least of clarity the plaintiff is directed in respect of each publication upon which he in fact sues separately to provide particulars of identification, particulars pursuant to SCR Pt 67 r 12(c) as well as separately to plead the imputations upon which he relies. 34 Thus it is that to that extent the defendant has succeeded in respect of order 3. 35 In view however of the failure of the defendant to succeed in having the paragraphs 5 and 6 struck out and the matter stayed and that that was the principal component of the application, the plaintiff should have the benefit of an order for costs. 36 The formal orders are: 1. Orders 1 and 2 in the Notice of Motion are refused. 2. I make Order 3 in the Notice of Motion. The plaintiff is to file a Further Amended Statement of Claim within 14 days of today. 3. The defendant is to pay the plaintiff's costs save for the costs of the plaintiff filing any Further Amended Statement of Claim. 4. The matter is listed for further directions on 19 November 1999. *********** Last Modified: 10/27/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.