Reported Decision : 74 NSWLR 612 New South Wales Supreme Court CITATION : AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 863 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 24 August 2009 JURISDICTION : Equity Division JUDGMENT OF : Rein J EX TEMPORE JUDGMENT DATE : 25 August 2009 1. Leave granted to vary the interlocutory injunction in the terms sought. DECISION : 2. The plaintiffs to pay the first, third and fourth defendants' costs of the Motion. 3. Order 1 above is not to take effect until 4pm today. CATCHWORDS : EQUITY – equitable remedies – injunctions – application to vary of interlocutory injunction to permit publication of report of hearing before Commonwealth Parliamentary Standing Committee - EVIDENCE – admissibility and relevancy – objection to affidavit evidence based on contention that by virtue of s 16(3) Parliamentary Privileges Act 1987 (Cth) it was not lawful for such evidence to be tendered or received – evidence which is relied on to prove that something was said in Parliamentary proceedings does not infringe s 16(3) of the Act LEGISLATION CITED : Parliamentary Privileges Act 1987 (Cth) CATEGORY : Procedural and other rulings Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 Comalco Ltd v Australian Broadcasting Corporation [1983] 50 ACTR 1 CASES CITED : Habib v Commonwealth of Australia [2008] FCA 1494 Mundey v Askin [1982] 2 NSWLR 369 R v Theophanous [2003] VSCA 78 AMI Australia Holdings Pty Ltd (First Plaintiff) Advanced Medical Institute Pty Ltd (Second Plaintiff) Fairfax Media Publications Pty Ltd (First Defendant) PARTIES : Rita Almohty (Second Defendant) Kelly Burke (Third Defendant) Kate McClymont (Fourth Defendant) FILE NUMBER(S) : SC 3219/09 COUNSEL : Mr M Green, Dr E Peden (Plaintiffs) Mr A Dawson (First, Third and Fourth Defendants) SOLICITORS : Bruce Stewart Dimarco (Plaintiffs) Johnson Winter & Slattery (First, Third and Fourth Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Rein J 25 August 2009 3219/09 AMI Australia Holdings Pty Ltd and anor v Fairfax Media Publications Pty Ltd and ors JUDGMENT (EX TEMPORE) 1 REIN J: The first, third and fourth defendants, by Notice of Motion, seek to vary an interlocutory order made by this Court in June 2009, which order prevents the first, third and fourth defendants, all of whom I shall refer to as "Fairfax", from publishing in a Fairfax newspaper information allegedly provided to them by the second defendant, a former doctor engaged by the plaintiffs as a contractor. 2 The plaintiffs provide medical services and products to persons with sexual dysfunction. 3 The proceedings have been set down for final hearing in October this year, and the interlocutory orders made extend to the last day of that hearing. 4 A Committee of the House of Representatives known as the House of Representatives Standing Committee on Health and Ageing held a Roundtable Forum on Impotence Medications in Parliament House in Canberra on Friday of last week. Notice of the hearing was given by the House of Representatives on its website, and the third defendant attended the hearing and took notes. 5 Fairfax is represented on the Motion by Mr Dawson of counsel, and the plaintiffs are represented by Mr Green of counsel with Dr Peden of counsel. 6 The variation sought by Fairfax is that the following words should be added to the terms of the order currently injuncting the defendants: "… except in so far as such restraint would prevent the defendants from publishing any fair report of proceedings before the House of Representatives Standing Committee on Health and Ageing Roundtable Forum on Impotence Medications in Parliament House, Canberra." 7 Mr Dawson sought to rely on an affidavit of Mr Paul Svilans of 24 August 2009, but Mr Green argued that reliance on the affidavit infringed s 16(3) of the Parliamentary Privileges Act 1987 (Cth) ("the Act"). Section 16(3) provides: "(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament." 8 It was agreed that I should receive the affidavit, effectively, on the voir dire to determine whether the affidavit dealing with what occurred last Friday at the Committee hearing, either of itself or in support of the Fairfax Motion, infringed s 16(3)(c). 9 Mr Dawson explained that Fairfax wishes to publish a report of the proceedings before the Committee, but is concerned that publication of a fair report of those proceedings could constitute a breach of the interlocutory injunction to which Fairfax is subject, because there is an overlap between material allegedly provided by the second defendant and material which became available to Fairfax (and any other journalist or member of the public) present at the Committee hearing on Friday. The affidavit provides details of the hearing of the Committee and the third defendant's presence at the hearing. 10 My initial reaction to the problem was that there was no need for Fairfax to seek a variation of the injunction for this purpose, since publication of a fair report of what transpired at the Committee hearing would not involve use of any information obtained from the second defendant, but the plaintiffs' position, as espoused by Mr Green, seems to involve the contention that if fact "X" was revealed by what was said before the Committee, Fairfax cannot publish fact "X", and inferentially, such publication would constitute a breach of the orders made by this Court. 11 Mr Green submitted that the effect of s 16(3)(c) of the Act was to preclude Fairfax from putting the material in the affidavit before the Court, and although it might seem odd that Fairfax, unlike the rest of the media outlets, would not be permitted to publish the material, that arises because Fairfax is a party to these proceedings and has been injuncted, legitimately, from publishing any material with which it has (on the plaintiffs' case) been provided by the second defendant in breach of her obligations to the plaintiffs. 12 I shall turn to the question of statutory interpretation in a moment, but it strikes me as rather extraordinary that if material previously confidential to the plaintiffs is made public in a Committee hearing of the Parliament of the Commonwealth, there would remain any impediment of law to a party revealing, by use of material now publicly available, what had previously been confidential. 13 It was not contended by Mr Green that s 16(3)(a) or (b) were relevant. Mr Dawson did not dispute that what occurred before the Committee constituted proceedings in Parliament: see s 16(2) of the Act. Mr Green drew attention to the width of the words "by way of, or for the purpose of" in sub-section (3). 14 In Habib v Commonwealth of Australia [2008] FCA 1494, Perram J considered an attempt to rely on various materials relating to what had occurred before a Senate Standing Committee – namely, a letter sent to a witness who had appeared before the Committee seeking to clarify that witness' evidence to the Committee, the witness' reply, a letter sent by another witness clarifying evidence given, and three documents providing formal answers to questions asked during the hearing. Counsel for Mr Habib submitted that the material "tended to show" certain things relevant to Mr Habib's case. The use of the material was not to demonstrate that "X" had been said at the hearing, but to establish that inferences could be drawn from documents created after the hearing, and one of the documents actually sought to question the witness about what had been said at the hearing. 15 The present situation is quite different to Habib. Fairfax does not ask the Court to draw any inferences from what was said or done or provided in the Committee hearing – rather what it seeks to do is put before the Court evidence of what actually occurred at the Committee hearing, which, incidentally, I was informed was broadcast and available on the internet. 16 In my view, proving that: (a) there was a Committee hearing; and (b) "X" was said at that hearing is not evidence by way of, or for the purpose of, drawing, or inviting the drawing of, inferences or conclusions (wholly or partly) from anything forming part of those proceedings. 17 I am strengthened in that view by the following two points: (1) Considering that the obvious purpose of the Act is to prevent members of Parliament or members of the public who give evidence before a Standing Committee having statements made by them in Parliament or before a Committee used as a means of establishing or supporting inferences as to facts, motives or intentions relevant in courts or tribunals, and being taxed in cross-examination about those utterances, proving that a member of the House of Representatives said "X", if it were relevant, does not, in my view, infringe that purpose. The distinction between challenging or impugning a witness in relation to anything said or done in Parliamentary proceedings, on the one hand, and merely proving that something was said in Parliament, is one which has been clearly recognised in cases prior to the introduction of s 16 of the Act: see Mundey v Askin [1982] 2 NSWLR 369 and Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1. In Comalco at page 3, Blackburn CJ referred to article 9 of the Bill of Rights 1688 1 Will and Mary sess 2 c 2, which provides: "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." His Honour, after reviewing the authorities and noting one exception to the line of authority, said at page 5: "I conclude that the law as to the privileges of Parliament does not include the suggested rule that evidence of the proceedings in Parliament is inadmissible except with the consent of Parliament; and that there is no such rule." He regarded that conclusion as consistent with, among other cases, Mundey , to which I have already referred. He also said this at page 5: "In other words, I think that the way in which the Court complies with Art 9 of the Bill of Rights 1689 ( sic ), and with the law of privileges of Parliament, is not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference. The court upholds the privileges of Parliament, not by a rule as to the admissibility of evidence, but by the control over the pleadings and the proceedings in court." It should be noted that s 16(1) of the Act provides: "For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section." which I think highlights the close relationship of the subsequent provisions to the purpose to the original protection given by the Bill of Rights 1688. A clear example of use of Parliamentary material for an impermissible purpose is found in R v Theophanous (2003) 141 A Crim R 216. Mr Dawson accepted the correctness of that decision, but submitted, in my view correctly, that that decision was not adverse to Fairfax's position in this case. (2) Section 10(1) of the Act specifically provides that it is a defence to an action for defamation that the defamatory matter was "contained in a fair and accurate report of proceedings of a meeting of a House or committee". If s 16(3) preluded a defendant from putting forward evidence of what occurred in the House or at a hearing, it would not be able to establish that a report was a fair and accurate report of what occurred. Mr Green argued that s 10 was dealing with a different subject matter and was not relevant. He argued that if it was, s 10(3) released the provisions of any tension. In my view, it is relevant to consider how ss 16 and 10 sit together if the plaintiffs' contentions were upheld. I do not think that s 10(3) answers the problem to which I have referred. Mr Green also referred to the dicta of Gleeson CJ in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 253, which does not seem to me to have any bearing on the present issue. 18 Mr Dawson argued that in order to obtain the variation sought, he did not need to rely on the notes of the third defendant, which is Annexure A to Mr Svilans' affidavit. I rather understood Mr Green to concede that it would be difficult to categorise any of the paragraphs 1, 2(a), (b), (d), (e), (f) and 3 of the affidavit as infringing s 16(3)(c) of the Act. If, in fact, he has conceded that, I think it is a correct concession. 19 In any event, I accept that the entitlement of Fairfax to a variation of the interlocutory order does not depend on having regard to the content of paragraph 2(c) and Annexure A to Mr Svilans' affidavit of 24 August 2009. 20 My conclusion is that: (a) reliance on the affidavit by Fairfax does not infringe s 16(3) of the Act; (b) Fairfax is entitled to publish a fair and accurate report of the proceedings before the Committee last Friday; (c) Fairfax is entitled to obtain a variation of the interlocutory injunction in the terms sought; and (d) even if reliance on paragraph 2(c) and Annexure A of the affidavit did constitute an infringement of s 16(3) of the Act, and these therefore were not able to be relied on, the balance of the affidavit does not constitute an infringement of s 16(3) of the Act and would, in my view, provide a proper and sufficient basis for the variation sought. 21 The plaintiffs, having unsuccessfully resisted the application to vary the injunction, ought to pay the costs of the first, third and fourth defendants of the Motion. ********** 21/04/2010 - Revised for publication in the New South Wales Law Reports - Paragraph(s) [1]-[21] 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.