Robert William Waterhouse; William Stanley Waterhouse; Malcolm Waters and William Allen v Australian Broadcasting Corporation [1987] ACTSC 12 (6 March 1987)

SUPREME COURT OF THE ACT

ROBERT WILLIAM WATERHOUSE; WILLIAM STANLEY WATERHOUSE; MALCOLM WATERS and
WILLIAM ALLEN v. AUSTRALIAN BROADCASTING CORPORATION
S.C. No. 1877 of 1986
S.C. No. 1897 of 1986
S.C. No 2006 of 1986
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Practice and Procedure - Defamation - Stay of proceedings - Civil proceedings against defendant corporation for defamation in Australian Capital Territory - Concurrent criminal proceedings arising out of same matter in New South Wales against two of the defendant corporation's employees - Application to stay civil proceedings on ground that material disclosed during interlocutory proceedings in civil actions might tend to identify witnesses in criminal proceedings - Applicable principles considered.

The Queen v. Alderman Evans and Others (1889) 6 TLR 248 (QB Div.)

Ex parte Edgar (1913) 29 TLR 278.

Smith v. Selwyn (1914) 3 KB98

Cameron's Unit Services Pty Ltd v. Whelpton & Associates Pty Ltd (1984) 59 ALR 754.

McMahon v. Gould (1982) 1 ACLC 98; 7 ACLR 202.

R. v. Harrison (1950) VLR 20.

R. v. Watson (1947) 64 WN (N.S.W.) 100.

R. v. Walters (1979) 2 NSWLR 284.

R. v. Green (unreported, New South Wales Supreme Court, 5 October 1979)

HEARING

CANBERRA
6:3:1987

ORDER

Orders that each of the applications made by notice of motion dated 10 December 1986 be dismissed.

Noting that none of the respondents/plaintiffs concedes that there are grounds for the making of the following order but that each is prepared to consent to its making, orders that each of the respondents/ plaintiffs whether by himself or his servants or agents refrain from interfering with any witness or potential witness in any of the actions in this Court numbered S.C.1877 of 1986, S.C.1878 of 1986, S.C.1987 of 1986, S.C.2006 of 1986 or in either of the proceedings commenced in the Local Court of New South Wales, 302 Castlereagh Street, Sydney on 18 November 1986 and numbered 100/567 and 100/569 where Robert William Waterhouse is informant and Terry Jones and Peter Manning are respectively defendants or in either of the proceedings so commenced and numbered 566/100 and 570/100 wherein William Stanley Waterhouse is informant and the said Terry Jones and Peter Manning are respectively defendants.

Orders that the applicant/defendant pay the respondents/plaintiffs' costs of and incidental to the applications.

DECISION

On 12 November 1986 Robert William Waterhouse (the first plaintiff) and William Stanley Waterhouse (the second plaintiff) each commenced an action against the defendant corporation (the corporation) for damages for defamation. The writs were issued by Messrs Macphillamy Cummins & Gibson, solicitors, of Canberra, as agents for Messrs P.J. Pollack & Co., solicitors, of Sydney.

2. By their statements of claim filed, and no doubt delivered, on 21 November 1986, each claimed to have been defamed by the publication by the corporation, on 10 November 1986, of a segment entitled "Horses for Courses" and telecast for general reception on the well-known programme "Four Corners". Broadly speaking, each statement of claim alleged that the segment conveyed different imputations against each of the two plaintiffs although, conceivably, it may be that in the result one at least of the imputations in each statement of claim is substantially the same. That will no doubt depend upon the way the first and second plaintiffs frame and particularise their cases.

3. On 17 November 1986 Malcolm Waters (the third plaintiff) commenced an action against the corporation for damages for defamation. By his statement of claim filed, and, again no doubt, delivered on 18 December 1986, he claimed that the broadcast programme defamed him by conveying imputations set out in the statement of claim. The imputations alleged were much narrower than those said to have been conveyed against the first and second plaintiffs. The writ was also issued by Messrs Macphillamy Cummins & Gibson, this time as agents for Messrs Glasheen & Quilty, solicitors, of Sydney.

4. On 3 December 1986 William Allen (the fourth plaintiff) brought an action in this Court against the corporation seeking damages for defamation in respect of the same programme. The writ was also filed on his behalf by Messrs Macphillamy Cummins & Gibson, again as agents for Messrs P.J. Pollack & Co. The statement of claim filed on and, again no doubt, delivered on 4 December 1986, alleged that the material defamed him as conveying an imputation in respect of one particular activity, an activity much narrower than those said to be imputed to the first and second plaintiffs.

5. The statement of claim filed on behalf of each of the first, second and fourth plaintiffs was indorsed as having been settled by the same counsel, not, incidentally, admitted to practice before this Court.

6. On 18 November 1986 the first and second plaintiffs each laid informations against each of Peter Manning, the Executive Producer of the programme Four Corners, and Tony Jones, a reporter working on the programme, charging (I put the charges shortly) that each had without lawful excuse published matter defamatory of each of the first and second plaintiffs. The informations were said to have been laid under s.50 (1)(b) of Act No.18 of 1974, the Defamation Act 1974 of New South Wales. The summonses were returnable at the Local Court, 302 Castlereagh Street, Sydney on 3 December 1986.

7. Section 50 of the Defamation Act 1974 (N.S.W.) is as follows:-

"50.(1) A person shall not, without lawful

excuse, publish matter defamatory of another
living person -

(a) with intent to cause serious harm to any
person (whether the person defamed or
not); or

(b) where it is probable that the
publication of the defamatory matter
will cause serious harm to any person
(whether the person defamed or not) with
knowledge of that probability.

Penalty: Imprisonment for a term not
exceeding three years or a fine of such
amount as the court may impose or both.

(2) In subsection (1), 'publish' has the
meaning which it has in the law of tort
relating to defamation.

(3) An offence under this section is an
indictable misdemeanour."

8. On 10 December 1986 the corporation gave notice of motions for orders that further action in each of the four actions be stayed generally pending the final outcome of the criminal defamation proceedings instituted by the first and second plaintiffs against Peter Manning and Tony Jones. It is with these motions that I am dealing.

9. Counsel for the plaintiffs objected to the reading of any affidavits on behalf of the corporation on the ground that the pendency of an action for defamation affords no legal ground for adjourning the hearing of a criminal charge arising out of similar matters but involving different persons. Reliance was placed on The Queen v. Alderman Evans and Others (1889) 6 TLR 248 (Q.B.Div.) (Lord Coleridge CJ and Lord Esher MR) and Ex parte Edgar (1913) 29 TLR 278. In the latter case Phillimore J said that there was no rule that in the case of misdemeanour a person was not entitled to pursue both his civil and criminal remedies concurrently. In such a case the magistrate might not, in his discretion, commit but that did not affect his jurisdiction. Speaking for the Court (Phillimore, A.T. Lawrence, and Lush JJ), Phillimore J said all were of the opinion that no rule for a writ of prohibition against the learned magistrate ought to be granted in the instant case. He went on to say that whether or not the applicant for the rule might have any other remedy to prevent his being proceeded against criminally and also by way of enforcing the injunction that had been obtained against him in the civil action was not for the Divisional Court to say. What the Court had to decide was whether any prima facie case had been shown for granting a rule of prohibition on the ground that the magistrate had no jurisdiction.

10. Applications of this type seem to have had their origin in the so-called "felonious tort rule". That rule is set out in the headnote in Smith v. Selwyn (1914) 3 KB 98 as-

"An action for damages based upon a felonious
act on the part of the defendant committed
against the plaintiff is not maintainable so
long as the defendant has not been prosecuted
or a reasonable excuse shewn for his not
having been prosecuted, and the proper course
for the Court to adopt in such a case is to
stay further proceedings in the action until
the defendant has been prosecuted."

11. The rule has been much criticised but in one way or another seems to have continued to exist. Nowadays it seems to have been transformed into a rule that, within the discretion of the court, pursuant to its inherent jurisdiction and in appropriate cases a stay of civil proceedings may be granted until criminal proceedings are completed or until reasonable cause is shown why they are not either instituted or completed. See Cameron's Unit Services Pty Ltd v. Whelpton & Associates Pty Ltd (1984) 59 ALR 754, a decision of the Federal Court of Australia (Wilcox J). At pp 757-8 his Honour set out principles, distilled from the authorities by Wootten J in McMahon v. Gould (1982) 1 ACLC 98; 7 ACLR 202, to guide the exercise of the court's discretion. I respectfully follow the lead given by Wilcox J in adopting those principles and take them as being applicable to the matters I am considering. I refer also to the lengthy passage from the judgment of Wootten J in McMahon v. Gould which Wilcox J quotes at pp 758-760 and to the subsequent discussion by Wilcox J of the matters referred to therein.

12. During the course of the hearing it became obvious that the real basis for the application was the concern of the corporation that during the course of interlocutory steps in the actions against it material would come to the attention of the plaintiffs which would enable them to identify readily enough the names of witnesses to the matters alleged in the segment. The corporation was concerned lest the plaintiffs or some of them at least, having such knowledge, might take action to interfere or tamper with witnesses or to prevent or inhibit them from giving evidence in the criminal proceedings with the result that its employees, the defendants, might be unable freely to conduct their defence.

13. It was said, as I understood the argument put on behalf of it, that the corporation was so deeply and intimately concerned with the matters which would be canvassed in the criminal defamation proceedings that in effect its interests were as one with those of Mr Manning and Mr Jones. Accordingly, so it was said, it was in the interests of justice that the civil proceedings which might make available to the plaintiffs such material as that indicated above should be stayed to ensure that Messrs Manning and Jones might properly put their case before the Local Court and, should that be necessary in due course, before the court which tried any indictment which might be presented against either of them.

14. It is clear that the stays sought by the corporation are sought on a basis for their granting much wider than has ever been used in respect of such a stay before. That fact would not, in my opinion, in a proper case, inhibit the grant of such a stay nor would the fact that the stay would operate in aid of the interests of justice in respect of criminal proceedings being brought in another jurisdiction altogether in respect of persons who are not the same as the person seeking the stay. Naturally, the making of such an order should be approached with very great caution.

15. The passage from the judgment of Wootten J referred to above gives little help as to the evidence upon which an order for a stay might, in these circumstances, be granted. It seems to me that guidance may be sought in the approach to be taken to an application for bail when it is alleged that the accused person will probably tamper with witnesses and in the principles governing the reception of evidence in respect of conspiracy.

16. In R. v. Harrison (1950) VLR 20, Herring CJ said at p 21:-

"It seems to me that I should consider the
safety of the community and also of those who
may be witnesses at the hearing, and the
possibility, too, that the course of justice
may be perverted, as it is suggested it has
been perverted on other occasions when
Harrison has been at large."

17. In that case it appeared from affidavit evidence that Harrison, charged with shooting with intent to murder, had been arrested on the night following the shooting. When arrested there were found in the back seat of the car in which he was sitting when apprehended a double barrelled shot-gun, loaded in each barrel and a loaded pea-rifle. The affidavit further stated that Harrison was a dangerous gunman who had been involved in other shooting affrays and that witnesses were intimidated by him prior to the hearing of the charges and were too frightened to give evidence against him. No objection appears to have been taken to the reception of that evidence nor does it appear that any evidence to the contrary was tendered.

18. In R. v. Watson (1947) 64 WN(N.S.W.) 100 at p 102, Herron J (as he then was) indicated that among circumstances which might be considered on an application for bail was -

". . . the probability of his tampering with
Crown witnesses (but this is seldom proved by
direct evidence and its prospect must be
directly referable to the nature of the crime
charged);"

19. In R. v. Walters (1979) 2 NSWLR 284, Cross J said at p 286:-

"The Crown has a second objection, namely
that the accused may 'interfere' with
witnesses. It is said that some of the
witnesses are neighbours, and some even
relatives of the accused. It is true that
the possibility of interfering with the Crown
witnesses is a factor for the Court's
consideration on bail applications. Much
revolves, however, about what is meant by the
word 'interfere'. If the community, through
the Crown, desires, when appropriate, to make
serious allegations against X, the Crown is
entitled to interview witnesses who might
throw light on X's criminality. But it seems
to me that, within limits, it is not
undesirable for X, who is facing, e.g., a
charge which carries a mandatory sentence of
penal servitude for life, to be also able to
make his own inquiries and, perhaps, to
interview some of those witnesses. There is
a difference between seeking information from
and 'interfering with'. The evidence does
not satisfy me that justice would be
endangered in this case by the applicant
being released to make inquiries which may
help to establish his innocence, or at least
defeat a conviction."

20. In R. v. Green (unreported, New South Wales Supreme Court, 5 October 1979) referred to in The Law of Bail, B.H.K. Donovan, at p 106, Hunt J is reported to have said that where there was an objection that the accused may tamper with a witness it was not sufficient simply for the Crown to allege such to be the case, but it was a matter which must be proved.

21. The law of conspiracy furnishes an exception to the hearsay rule which might be applicable in circumstances such as these. That is the so called co-conspirator's rule. I take its formulation from The Law of Criminal Conspiracy, Gillies, at p.161:-

"The co-conspirator's exception to the
hearsay rule is soon stated: any act or
declaration by one co-conspirator committed
in furtherance of the conspiracy and during
its pendency is admissible against each and
every co-conspirator provided that a
foundation for its reception is laid by
independent proof of the conspiracy."

22. Obviously there will be difficulty facing anyone who alleges that witnesses may be tampered or interfered with. It would seem to me to be impossible in the general run of cases to establish the possibility directly. All that could generally be proved, in my opinion, would be a number of circumstances from which the inference might fairly be drawn that witnesses are likely to be interfered or tampered with. But evidence of such circumstances must be subject to the normal tests of admissibility.

23. I think that a court dealing with applications such as these must be satisfied on the balance of probabilities that a foundation has been laid by independent proof based on admissible evidence that the plaintiffs or any one or more of them might reasonably be expected to interfere or tamper with witnesses or potential witnesses. That proof having been furnished, evidence might then be received of any acts or declarations of any one or more of the plaintiffs tending to establish the furtherance of that interference or tampering. Thereafter evidence might be received of incidents or statements, whether innocent or not on their face, which might reasonably be considered as tending to prove that the parties to the litigation in question might seek so to interfere or tamper.

24. Much of the evidence sought to be adduced was inadmissible. But even if it had all been admissible it would have remained ground for suspicion only, nothing more. The corporation comes before the Court seeking to say effectively that it has attacked abuses which "owe their continuance to the danger of attacking them" but at this stage asks the Court to draw an inference that, having regard to the meagre evidence placed before it, all four plaintiffs or at least one or more of them will seek to interfere with witnesses or potential witnesses in related proceedings or, alternatively, one or more of them would facilitate such interference by one or more of the others.

25. It may be, but of course I make no finding as to this, that if everything were known that inference would be justifiable. But it should only be drawn from admissible evidence which, having regard to the burden of proof, leads cogently to it. I am not satisfied on the material properly before me that it may be drawn against any one of the plaintiffs.

26. But there is another aspect of the matter which has to be taken into account. It ought to have been obvious to those responsible for the segment that the law of New South Wales permits concurrent actions for damages for defamation and criminal proceedings against the person allegedly guilty of the defamation.

27. The corporation, in defending the matters, must, as a matter of practical politics, defend on the basis that the allegations made are at least true. In making such allegations or, rather, in permitting them to be made it must have expected that there might be some difficulty with witnesses or potential witnesses. On the corporation's view of the matter it was dealing with a section of the community which at best could hardly be described as likely to be co-operative in giving evidence.

28. Finally, nothing in the evidence, taken at its highest, could lead to any real suggestion that the third plaintiff was likely to interfere or tamper with witnesses. He is entitled, I think as of right, to have his action proceed without stay, no matter what might happen to the other plaintiffs' actions.

29. Each of the plaintiffs is prepared to consent to an order against him, without in any way conceding that there are grounds for such an order, that there will be on his behalf no interference with any witness in the proceedings in respect of which the stays are sought or with any witnesses in the criminal proceedings in New South Wales identified above. I am prepared to make such orders on that basis.

30. The applications are dismissed with costs.