Kesby, Alison --- "Notes Mann v O'Neill: Absolute Privilege in the Law of Defamation" [1998] SydLawRw 20; (1998) 20 (3) Sydney Law Review 473
[*] BA(Hons), Final Year Student, Faculty of Law, University of Sydney. Many thanks to Barbara McDonald for her helpful comments.
[1] [1997] HCA 28; (1997) 145 ALR 682.
[2] Note that prior to self government in the Australian Capital Territory, the Attorney-General of the Commonwealth was the minister responsible for the administration of justice in that Territory. Id at 683.
[3] Id at 690.
[4] Ibid.
[5] In conjunction with the Attorney-General of the Commonwealth, prior to self government, the Commonwealth Minister for Justice was responsible for the administration of justice in the Australian Capital Territory. Id at 690.
[6] Id at 684.
[7] O’Neill v Mann (1994) 121 ALR 524.
[8] O’Neill v Mann [1994] FCA 1522; (1994) 126 ALR 364.
[9] Tobin, T K and Sexton, M G (eds), Australian Defamation Law and Practice (1991) at 8051.
[10] Id at 692-3 per McHugh J.
[11] [1962] 1 QB 237 at 257.
[12] Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] UKLawRpKQB 46; [1892] 1 QB 431 at 451.
[13] Trapp v Mackie [1979] 1 All ER 489 at 491-2.
[14] [1935] AC 76.
[15] Id at 81.
[16] Above n13 at 379 per Lord Diplock.
[17] Ibid.
[18] See Lincoln v Daniels [1962] 1 QB 237 in which the Inns of Court were held to be judicial bodies despite their authority being derived from the exertion of disciplinary powers over the centuries, rather than from an Act of Parliament.
[19] Id at 380.
[20] See Bretherton v Kaye and Winneke [1971] VicRp 12; [1971] VR 111. Defamation proceedings brought in relation to the opening address of the counsel assisting a board of inquiry established under the Victorian Evidence Act 1958 (Vic) were held not to be absolutely privileged as “the board so appointed could not determine the rights of any person, could not bind any person by its decision, and could not legally affect the status of anyone” at 122 per Gillard J.
[21] See above n13.
[22] Id at 389 per Lord Fraser.
[23] See Fleming, J G, The Law of Torts (8th edn, 1992) at 560.
[24] Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520 at 528 per Gavan Duffy CJ, Rich and Dixon JJ.
[25] Ibid.
[26] Above n18 at 255-6.
[27] Roy v Prior [1971] AC 470 at 480.
[28] [1994] VicRp 68; [1994] 2 VR 411 at 422.
[29] [1994] HCA 46; (1994) 182 CLR 104 at 181-4.
[30] Above n1 at 687.
[31] Ibid.
[32] Id at 712.
[33] Id at 731.
[34] Id at 694.
[35] Ibid.
[36] Id at 688.
[37] Id at 688-9.
[38] Above n28.
[39] Above n1 at 688.
[40] Id at 694.
[41] Ibid.
[42] Id at 697-8.
[43] Id at 731.
[44] Id at 686.
[45] Ibid.
[46] Ibid.
[47] Ibid.
[48] Williams, E E, “Absolute Privilege for Licensing Justices” (1909) 25 LQR 188 at 200.
[49] Above n1 at 687.
[50] Id at 721.
[51] Id at 710 per Gummow J.
[52] Id at 714 per Gummow J.
[53] Id at 731 per Kirby J.
[54] Id at 714 per Gummow J.
[55] Ibid.
[56] Id at 693.
[57] Above n8 at 385.
[58] Above n28 at 416.
[59] Above n1 at 698-9.
[60] Above n29 at 182.
[61] Ibid.
[62] Above n1at 712 per Gummow J.
[63] Id at 714 per Gummow J; at 731 per Kirby J.
[64] See also Bottomley v Brougham [1908] UKLawRpKQB 10; [1908] 1 KB 584.
[65] Above n1 at 699. Above n29 at 185.
[66] Above n29 at 175.
[67] [1997] HCA 25; (1997) 145 ALR 96.
[68] Id at 115.
[69] See Williams v John Fairfax and Sons Ltd. Unreported Judgment of the Supreme Court of New South Wales 10872 of 1989, 24 October 1994. Levine J held that comment on the “judicial process” could be political discussion (at 7).
[70] Above n1 at 716.
[71] Id at 730.
[72] Id at 711.
[73] Id at 711-2.
[74] Id at 699.
[75] Id at 734.
[76] Id at 714.
[77] Id at 700.
[78] (1896) 17 NSWLR 334.
[79] Above n1 at 702.
[80] Id at 714 at 717.
[81] See Young, P W, “Judicial Officers and Defamation” (1998) 72 ALJ 86.
[82] Above n1 at 733.
[83] Id at 704.
[84] In Theophanous Deane J argues: “it is important to remember that ... the justification of proceedings for contempt of court ... lies not in the protection of the individual judge ... but in the need to ensure that...courts are able to effectively discharge the functions, duties and powers entrusted to them by the people.” Above n29 at 187.
[85] Above n1 at 704.
[86] Gallagher v Durack (1983) 162 CLR 238 at 243.
[87] “Absolutely not fabulous” (1997) 45 Gazette of Law and Journalism 7 at 10.
[88] See for example McLelland, M H, “Disciplining Australian Judges” (1990) 64 ALJ 388, in which McLelland criticises current legislation in New South Wales, the Judicial Officers Act 1986, and makes proposals for reform.