John Fairfax Publications Pty Ltd v O'Shane [2005] HCATrans 965 (18 November 2005)

John Fairfax Publications Pty Ltd v O'Shane [2005] HCATrans 965 (18 November 2005)

Last Updated: 24 November 2005

[2005] HCATrans 965

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S281 of 2005

B e t w e e n -

JOHN FAIRFAX PUBLICATIONS PTY LTD

Applicant

and

PATRICIA JUNE O’SHANE

Respondent

Application for special leave to appeal

GLEESON CJ

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2005, AT 11.33 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR R.D. GLASSON, for the applicant. (instructed by Freehills)

MR B.R. McCLINTOCK, SC: May it please the Court, I appear with my learned friend, MR R.K. WEAVER, for the respondent. (instructed by Aitken McLachlan & Thorpe)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, by this special leave application we seek to have this Court change, remake, alter to fit the times and aspect of the common law in relation to defamation of a socially important kind.

GLEESON CJ: But in order to put us in a position to do that you seek to have us first overrule concurrent findings on the issue of reasonableness.

MR WALKER: We seek to have that overruled but not as a preliminary to raising the issue we seek to raise.

GLEESON CJ: This is the problem that I have, Mr Walker. Perhaps you could explain to us the effect of the decisions of the primary judge and the Court of Appeal on the issue of reasonableness.

MR WALKER: The effect of the decisions, starting at the end of the story, in the Court of Appeal is that, if your Honours use the list of imputations at page 242, the comments in imputations (c), (f), (g) and (h) were matters upon which we were found entitled to succeed in the Court of Appeal and, for the reasons that we have put on page 249 of the application book under the heading “Comment” in paragraph 38 starting at line 30 of the book, that represents the beachhead, forensically, for us with respect to reasonableness for the question of principle we seek to ventilate because, in our submission, the inherent reasonableness of our success, that is of the position that led to our success in the Court of Appeal on those imputations, is not, with respect, capable of ready discrimination from that upon which we failed both at trial and in the Court of Appeal in relation to the other imputations.

GLEESON CJ: That is what I want to understand better than I do at the moment. What was the relationship, in terms of the outcome of the case, between the finding on the question of reasonableness in relation to qualified privilege for Lange and the outcome in the Court of Appeal on comment?

MR WALKER: It is an indirect relationship because there are different imputations which suffered the differential fates that I just referred to. If one goes to the way in which the matter was put by the trial judge which is at pages 104 to 105, one sees there that the way in which Justice Smart, whose reasoning in this regard was very largely taken up in the Court of Appeal, proceeded in relation to, take for example, bias, was to say:

that the imputations did not follow logically from the information which the defendant had obtained.

There is a reference in particular to generalising:

as to the plaintiff’s impartiality, approach, fidelity to the law, attitude to the police . . . from four incidents over about 13 years –

The same things may be said in general terms, we would have thought, with respect, concerning the imputations (c), (f), (g) and (h), that is, the permissible comment was also based upon material that involves – and you only have to look at the terms of imputations to see they are of their nature generalisations.

GLEESON CJ: Particularly (h), I presume.

MR WALKER: Yes, and, in our submission, in attempting to answer the Chief Justice’s question, there is an anomalous relation, we submit, between the approach taken consistently against us below in relation to reasonableness for the purposes of those imputations upon which we have failed and the approach taken to, we would submit, what ought to be as a matter of doctrine an exactly similar component of reasoning in relation to reasonableness on the imputations upon which we succeeded. Why should it be similar? Because they are expressed in the same terms. It has to do with that which is reasonable.

GLEESON CJ: Where do we find the reasoning of the Court of Appeal on comment in relation, for example, to imputation (h)?

MR WALKER: I will just have that turned up, your Honour. I think it can be picked up at 184, your Honour, starting at paragraph 190 about line 34. I am sorry, I am failing, your Honour, to pick up how that is then related to the matter.

MR McCLINTOCK: I think it really starts at page 153 in the judgment of Mr Justice Giles at around about paragraph 61 where the submissions are set out.

MR WALKER: I am very obliged to my friend.

MR McCLINTOCK: Before that it is a summary of what happened below.

MR WALKER: Yes. Then there are at paragraph 63 on page 154 a listing of those things which were true and then over the page on page 156 there is a finding in, as it were, parasitical terms about imputations (g) and (h) following upon imputation (f). Imputation (f) was:

as a magistrate, is incompetent . . . because that description might reasonably –

and there is the word –

have been given to a judicial officer who allowed the attitudes earlier identified to affect the judicial officer’s decision-making. Similarly as to imputation (g) and (h); the hypothetical opinion-holder might reasonably have come to the view that the respondent departed from the objectivity and impartiality necessary for a judicial officer.

GLEESON CJ: How do you relate what appears on page 156 in paragraph 68 to the proposition about reasonableness that, as I understand it, was to the effect that you cannot reasonably generalise from four occasions, or whatever the case may be?

MR WALKER: In our submission, one cannot reasonably relate those two approaches, that generalisation is of the very essence of comment and generalisation is of the very essence of judgment or assessment based upon what people do in their official roles.

GLEESON CJ: I have in mind what appears on the bottom of page 163. Just at the moment I am having difficulty relating the last complete sentence on page 163 with the last sentence at paragraph 68 on page 156.

MR WALKER: So do we, with respect, your Honour. In our submission, they do not suggest a consistency of approach of a kind which ought to be required by the common element of reasonableness in relation to the process. The very distilling of an imputation shows the process of generalisation. From all the matter complained of there is distilled by way of a generalising approach the imputation alleged, understandably, to have damaged the plaintiff’s reputation.

That very process, in our submission, is one that then permits a defendant to undertake the exercise in the different guise of the different defences but with the common element of reasonableness we succeed – see paragraph 68, page 156 – in relation to matters which are what might be described as the uttermost generalisations in the case, but we fail because there is something seen illegitimate about the process of generalisation in paragraph 89, page 163.

It is for those reasons, in our submission, that we do not have to first deal, before coming to our legal question, with reasonableness. It is because of the way in which the legal matter of reasonableness ought to have been addressed that, in our submission, the error is shown in paragraph 89, for example, compared with paragraph 68 in the approach to generalisations about the fitness for office and about essential or desirable judicial attributes.

GLEESON CJ: Mr Walker, was the ultimate outcome of the appeal that you succeeded on imputations (c), (f), (g) and (h) and the damages were reduced accordingly?

MR WALKER: Yes, and your Honours will have seen that it then led to a special order for costs which you will find at 234, about line 23, namely that the costs order for the trial below would remain undisturbed but for the appeal the respondent was to pay 25 per cent of our costs.

GLEESON CJ: And you succeeded on (c), (f), (g) and (h) because you got up on your defence of comment and you failed on (a), (b), (d) and (e) because they were held not to be comment but statements of fact and you could not make out your Lange defence or the statutory qualified privilege defence because your conduct was unreasonable.

MR WALKER: Yes. That is right.

GLEESON CJ: I am just having difficulty at the moment reconciling the reasoning in relation to comment with the reasoning in relation to reasonableness.

MR WALKER: There is no reconciliation which is satisfactory available, your Honour. It is for those reasons that, as I say, we do not have a prior hurdle of what might be called a common or garden factual characterisation to overcome in order to throw up the issue of another relationship raised by this case, namely, the relationship between the law of scandalising contempt on the one hand and the law in relation to comment or qualified privilege – qualified privilege in particular – concerning defamations on judges in relation to their judicial conduct.

GLEESON CJ: So your argument is that if the Lange defence applies to judges the requirement of reasonableness goes and it has to constitute scandalising contempt?

MR WALKER: Your Honour, in essence that is a not unfair way of describing our ambition but - - -

GLEESON CJ: It is ambitious all right.

MR WALKER: - - - we dress it up as follows. We say that it is all reasonableness that that which is reasonable in relation to criticising the holders of office in the third great department of state, the judiciary, is set and ought to be set for the purposes of coherence and what is permissible as a matter of common law making a satisfactory reflection of social conditions.....the scandalising contempt limitation.

GLEESON CJ: How do you apply that in practice in a case where the defamation is simply the result of a mistake, as so often occurs, so it would not be a scandalising contempt of court because it was an honest mistake but it was unreasonable?

MR WALKER: We deal with it in practice by saying that once granted the premises your Honour has given me, an honest mistake, and in relation to the doings of all arms of government those mistakes can come about because of, as it were, the several removes from the actual fact.

GLEESON CJ: Or relying on unreliable information.

MR WALKER: That is what I mean, several removes, but we cannot all be in a courtroom. We rely upon a reporter to tell us what a judge said when a certain matter was presented for the judge’s determination. It would be, in our submission, not at all unreasonable – indeed we would submit it would be reasonable – to suppose that public comment and discussion about the doings of its judiciary ought to be capable of proceeding upon a basis which everyone accepts may have an inherent unreliability.

GLEESON CJ: Even if unreasonably based on erroneous information?

MR WALKER: In our submission, it is not unreasonable for society to proceed on the basis that commentary upon its parliamentarians, commentary upon its Ministers of State and commentary upon its judicial officers will depend upon reports of their doings and statements by others because we cannot all be within earshot of them.

GLEESON CJ: But you want to apply a standard of reasonableness to discussion of the doings of parliamentarians and the only standard that you apply to discussion of the doings of judges is whether it constitutes scandalising contempt.

MR WALKER: What I want to do, with respect, your Honour, is to bring them rather closer together in the sense that it is not unreasonable in relation to the doings of parliamentarians to make comment which happens to be mistaken, honestly mistaken, and reasonably based upon the kind of reports that society depends upon – see the exceptions in relation to parliamentary privilege against publication, see the now enacted but previously common law exceptions in relation to actionability of defamatory statements uttered in court.

There is a public interest well established in the reporting of the doings of arms of government. Reporting is fallible because it is carried out by human agencies. If people who rely on the reporting act in circumstances which do not portray on the face the reliability, which do not portray on the face or in the circumstances a need to be cautious, a less than excessively partisan report - - -

GLEESON CJ: On the face of what?

MR WALKER: On the face of the material available to the defendant, so that, for example, in relation to parliamentarians, it may be a very dangerous thing which would lose the jury issue of reasonableness under Lange for a member to be criticised for what he or she said in the Chamber when it is the easiest thing in the world to check what Hansard records of it. By analogy, exactly similar matters may arise in relation to what judges say in court and, most particularly, in reasons for judgment.

We certainly accept that there will be a very hard row to hoe for people who make mistakes about what judges have said in reasons for judgment without having taken the elementary precaution of finding what appears to be and could reasonably be seen as a reliable source or record of what a judge said in reasons for judgment, but, in our submission, being mistaken but acting reasonably by using those sources of information which society depends upon for the repetition of stories, including for profit, by organisations such as my client. That, in our submission, ought not to be regarded as out of court immediately.

Certainly, in criticism of judges, as in criticism of anyone, in our submission, merely being mistaken cannot and should not be an expulsion of any possibility that there would be reasonableness in the conduct. That is a jury question to be determined by a judge, probably, in relation to all the circumstances that obtain at the particular time and judged by standards at the time.

The scandalising limit serves the purpose of giving content in relation to the peculiar institution to which judicial officers belong by saying that within that zone where a social good is seen in robust criticism

of the judiciary, including mistaken or wrongheaded understanding by lay people, within that zone the law of defamation should not apply so as simultaneously to save a statement. It is a good thing that people express themselves about the doings of judges and we will not hold that scandalising in contempt, but privately for the judge this will bring damages because that good thing for the institution has to be seen as actionable at the hands of individual members of the institution.

This Court has, in our submission, not recently looked at anything resembling that issue. We have referred to the old contempt cases, some of which contain obiter comments in relation to the relationship with defamation law. They extend back before this Court existed into Chief Justice Martin in this State. In our submission, coupled with the very important issue concerning the characterisation of discussion of these topics as discussion which could fall within a version of the Lange defence, this case is therefore an important one, representing a very suitable vehicle, indeed, for determining in large part the parameters of actionability with speech of a kind – writings of a kind which ought to be encouraged rather that discouraged as a class, namely, discussion of judicial officer’s fitness for office.

GLEESON CJ: Thank you, Mr Walker. Yes, Mr McClintock.



MR McCLINTOCK: Yes, your Honour. The Court should refuse special leave essentially for two reasons. The first is that there are concurrent findings of fact by the trial judge and the Court of Appeal on the critical issue of reasonableness, and second, because, with great respect to my learned friend’s argument, the Court will never imply a freedom of the type that he refers to to attack judicial officers in the way he suggests.

GLEESON CJ: In relation to the first part of your argument, as I indicated to Mr Walker, I just want to be sure I understand the relationship between the conclusion on reasonableness in respect of imputations (a), (b), (d) and (e) on which you ultimately succeeded and the conclusion on reasonableness in respect of imputations (c), (f), (g) and (h) on which you ultimately failed.

MR McCLINTOCK: Yes, your Honour. That involves going back to the imputations themselves and seeing the text of them first and then going forward to the findings in relation to comment and then forward to the findings in relation to reasonableness. The imputations themselves, your Honour, appear at page 134 of the application book. Your Honours will see the imputations:

(a) the respondent, when acting as a magistrate, is biased;



(b) the respondent is biased against police;



. . .



(d) the respondent, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women . . . when she should have found them guilty and awarded costs and damages against them;



(e) the respondent, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believed the charges were a habitual form of police harassment –

As your Honour the Chief Justice pointed out to Mr Walker, in respect of the comment defence the applicant failed because each of those, and clearly correctly, was a statement of fact. Each of them, also, was false. Each of them was wrong and there was no attempt by the applicant to support the correctness of those statements. In fact, the case proceeded on the basis that it was wrong to say she was biased in both of those respects.

GLEESON CJ: I thought, rather, that the conclusion was based on the proposition that there was an inappropriate generalisation covering 10 years of conduct from four particular instances.

MR McCLINTOCK: In relation to the comment defence, yes, but, your Honours, in relation to the comment defence, in that particular respect the Court of Appeal was not considering these four imputations, or at least not principally considering them.

GLEESON CJ: One of the imputations it was considering in relation to comment was that:

she was unfit for office . . . because she allows her extreme views to affect her judgment.

MR McCLINTOCK: Yes.

GLEESON CJ: What was the issue of reasonableness that arose in respect of that?

MR McCLINTOCK: The issue of reasonableness in relation to comment was because the factual material in the article was wrong and could not support the comments. The trial judge and the Court of Appeal was considering the fallback position under section 30 of the Act which enables a successful defence if the material could reasonably be based on so much of the material as was there. That is how it came up in relation to comment.

GLEESON CJ: Did the conclusion of the Court of Appeal depend upon the proposition that an opinion that “she was unfit for office . . . because she allows her extreme views to affect her judgment” was reasonably based?

MR McCLINTOCK: On the material expressed, yes. That is what they found and the passage appears in Mr Justice Giles’s judgment at – my learned friend says 155 and I think that is correct, your Honour.

GLEESON CJ: On the bottom of 163 in a different context they said:

It was well open to the judge to consider that the material in Ms Albrechtsen’s possession did not justify the generalised statements.

MR McCLINTOCK: Yes, but there, your Honour, they are only referring to the four imputations on which we succeeded. If your Honours looks back to those imputations, your Honours will see that the two of them are not in fact in any sense generalisations – that is (d) and (e). They are specific allegations about specific behaviour. In relation to (a) and (b), yes, it could be said that they are generalisations but it cannot be said they are in effect reasonably based on material in the article or in the possession of the applicant.

There was nothing in that material – this is what their Honours are saying – that justified allegations of bias, which obviously is a very serious thing to say about a judicial officer, or specifically bias against the police. That is the effect of what Mr Justice Giles says at 163 to 164 there. Mr Justice Ipp agreed with his Honour in relation to that point and the agreement appears at 174, and I need not take your Honours to it.

Mr Justice Young dealt with this aspect of the matter at 194 to 195 and your Honours will see there, at 194 of the application book, his Honour before that sets out uncontroversially, so to speak, the principles from authorities like Morgan in the Court of Appeal and so on and then on 193 sets out the submissions. The finding appears at 247 where it becomes very clear – and really Mr Justice Giles is saying the same thing:

247 However, the judge was faced with a question of fact. He paid heed to the guidelines from the Morgan case. He was concerned that four cases had been chosen over a thirteen year period to justify comments against the respondent and that material in the journalist’s possession which might have allowed the reader to evaluate the comments more accurately was withheld.



248 It is, as Mr McClintock submits, extremely difficult to find that the requirement of reasonableness has been made out in this case or that the judge did not find a fact reasonably open to him.



249 It follows that this defence was also rightly rejected by the learned trial judge.

That really is an amplification, so to speak, of what Justice Giles was saying and when one sees it like that, in my respectful submission, it is absolutely correct, one is presented with a long judicial career, generalised statements of bias rather than bias in a particular case and in a situation where one simply cannot extrapolate from the particular to the general. That is the reason why it was unreasonable. In addition, as Mr Justice Young pointed out, there were omissions from the article and factual errors that deprived the reader of the opportunity to assess the material.

The trial judge’s findings, your Honour, on this point – I should give your Honours a reference to it – appear on page 104 of the application book, although they are just really a summary of what his Honour has earlier said:

201. The plaintiff contended that the imputations did not follow logically from the information which the defendant had obtained. I agree. Ms Albrechsten generalised as to the plaintiff’s impartiality, approach, fidelity to the law, attitude to the police, views as to the wrongful treatment of women and, taking extraneous considerations into account, from four incidents over about 13 years and the comments she had made to various journalists. This was an insufficient base for the contents of the article.

With respect, your Honour, that is correct, and it is unreasonable, we would submit, to take four cases, so to speak, out of context and use them to make defamatory generalisations about someone in the position of the plaintiff.

GLEESON CJ: What was the material that was withheld?

MR McCLINTOCK: For example, your Honour, one example that comes immediately to mind was if your Honours look at imputation (d), in fact what actually happened was the plaintiff found the charges proved and then proceeded under section 556A. Now, there is a world of difference, as everyone knows, between doing what she was accused of there and exercising, as she is perfectly entitled to in an absolutely unexceptional case, her discretion under, as it was then, section 556A of the Crimes Act.

Here the imputation says, in effect, she acquitted them and it would be most material to a reader to know precisely what happened because it puts a quite different context – a quite different gloss, so to speak – on the allegation against the plaintiff. If the reader had, for example, known that she found the charges proved and, because the four women in question were of completely good character, then proceeded on that basis not to record a conviction, it would have given the reader an entirely different view. In fact, Ms Albrechtsen’s attack on the plaintiff simply could not be justified once the reader knew that. It was that kind of thing.

There are other examples. For example, there were factual errors in relation to (e). In relation to (b), which came down to the plaintiff’s reporting of the Kanaan Case and her refusal to commit there, there were erroneous matters there. There were factual errors there. Those were the reasons why their Honours, both the trial judge and the Court of Appeal, thought this was unreasonable.

Your Honour, I have to say also that argument both before the trial judge and the Court of Appeal in my learned friend’s hands focused very substantially on his extended qualified privilege to defame judicial officers point and one has to say that one can see that being reflected to some extent in the judgements. That was the main point that my learned friend ran. One has to say that these points were in his argument relatively subsidiary in the scheme of things. Most of the focus was on this extension, so-called, of Lange. In relation to the Lange defence, there is not much more I wish to add other than to what has fallen from your Honours.

As I put to the Court of Appeal below, there were at least six reasons why such a defence would never be found. The first is that it is wholly unnecessary. A newspaper in the position of my learned friend’s client can rely upon truth, if the material is true. This material was not true. It can rely upon comment if it is comment based on accurate statements of fact. It was partly so the Court of Appeal found. It can rely upon, in New South Wales, section 22 of the Defamation Act, if it was found to be unreasonable. Also, it can rely upon fair protected report.

Now, when one has four defences like that, it becomes very clear that such a defence is unnecessary. Second, there is simply no analogy between the scandalising contempt situation that my learned friend mentioned and the law of defamation. The reason why is they are protecting totally different interests. Defamation protects reputation. Scandalising contempt protects the court as an institution or the courts as an institution.

Your Honours, the remaining reasons are set out in our written submissions and there is probably no point in me repeating them. They are clear. But the final one I would wish to say is this, that it is asserted this defence would be beneficial to our society but, in my submission, it can

hardly be beneficial to allow unreasonable, untrue attacks on members of the judiciary, which is what my learned friend is really asking or really suggesting should be the defence. Your Honours, unless there is any other matter that I can assist your Honours with, those are our submissions.

GLEESON CJ: Thank you, Mr McClintock. Yes, Mr Walker.



MR WALKER: Rather, your Honours, we seek the opportunity to argue that the judge-made law ought to accommodate, by the approach taken to the concept used in several different contexts of reasonableness, the utterance or publication of reasonable, albeit on occasion mistaken, criticism of judicial officers. We are not raising a case, nor do the facts of this case prevent this being an appropriate vehicle for raising the case of the content of reasonableness. We are not raising an argument that reasonableness itself may be abandoned.

GLEESON CJ: To succeed in an appeal you would need to persuade the Court, would you not, either that the qualification of reasonableness which applies to the Lange defence in relation to politicians does not apply to the Lange defence in relation to judges or, alternatively, you would need to persuade the Court that the concurrent findings of unreasonableness in relation to imputations (a), (b), (d) and (e) were wrong?

MR WALKER: Certainly the latter, and we would do that by attempting to show that their Honours misdirected themselves, that is should have applied a standard of reasonableness that takes into account that the institution is protected by the law of scandalising contempt and that which is socially appropriate and not to be punished because it does not threaten the integrity of the system is - - -

GLEESON CJ: The law of defamation does not exist to protect the institution. The law of defamation exists to protect individual reputation.

MR WALKER: Quite so, but, in our submission, where the institution is comprised of individuals with reputations there is an inexorable link between what the common law or the judicial interpretation of statutory law finds about the reasonableness of statements in the context of defamation law and what the judicial system finds about the permissibility or reasonableness of statements in the context of scandalising contempt. One cannot avoid the position that is given rise to by the current state of law whereby an utterance is no offence, no scandalising contempt and therefore belongs to that foment of discussion, some of it based upon the stakes, a lot of it based upon partisan views, and all of it for the good of the institution and the society it serves, on the one hand, and on the other hand exactly the same statement, no longer being prosecuted criminally but being sued in an action brought by the judge whose conduct had led to the statement being published.

GLEESON CJ: But is it the case that the principle for what you contend is about is about the freedom unreasonably to publish false information?

MR WALKER: No. Were it so, we would not be able to maintain it for a moment. We say that it is the content of reasonableness which ought to be expanded so as to embrace within it anything that the law of scandalising contempt would not regard as scandalising contempt and it is only because and if we could persuade the Court, first, as a matter of doctrine, second, as a matter of fact in a particular case, that the comment was reasonable in that sense, that is not scandalising contempt, but the defences for which we contend civilly ought to be available. We are not raising the possibility of unreasonable, mistaken criticism being non-actionable.

GLEESON CJ: Just come back to the first matter for a moment, Mr Walker, if you would not mind. Mr McClintock says that the findings of unreasonableness in relation to imputations (a), (b), (d) and (e) are not necessarily inconsistent with the conclusions in relation to (c), (f), (g) and (h) because, amongst other things, as I understand his argument, by hypothesis (a), (b), (d) and (e) are assertions of fact, whereas the others are comment. What is your response to that?

MR WALKER: As I put in-chief, yes, the issue was being raised in a different legal context but there was no reason to understand the concept of reasonableness being different in its content or the way in which one would determine it depending upon that context, bearing in mind that they were all but different defences to the same action and defamation, and it has never been suggested hitherto that, for example, a permissible generalisation approach in comment is reasonable in that context but becomes, without the addition of anything more, unreasonable in relation to, for example, section 22.

GLEESON CJ: He also asserts that the imputations (d) and (e) are in fact not true. Is that in dispute?

MR WALKER: It is not in dispute, for example, that there was 556A and not proceeding to a conviction as opposed to dismissing, not finding guilty, but maybe that is not a difference, however, that imparted much of any moment and that is why, in our submission, one can be mistaken but reasonable in commenting as a layperson and two laypeople upon what happens in a court.

GLEESON CJ: Is not the comment though by hypothesis a statement of fact?

MR WALKER: No, I accept that entirely.



GLEESON CJ: Thank you, Mr Walker. We will adjourn for a short time to consider the course we will take in this matter.

AT 12.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.20 PM:

GLEESON CJ: Having regard to the concurrent findings of fact made by the primary judge and the Court of Appeal on the issue of reasonableness we think that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 12.20 PM THE MATTER WAS CONCLUDED