Australian Broadcasting Corporation v O'Neill

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

AUSTRALIAN BROADCASTING

CORPORATION  APPELLANT

AND

JAMES RYAN O'NEILL  RESPONDENT

Australian Broadcasting Corporation v O'Neill [2006] HCA 46
28 September 2006
H1/2006

ORDER

1.        Appeal allowed.

2.Set aside the order of the Full Court of the Supreme Court of Tasmania made on 29 August 2005 and, in its place, order that:

(a)      the appeal be allowed; and

(b)Order 1 of the orders made by Crawford J on 22 April 2005 be set aside insofar as it applies to the appellant.

3.        The appellant to pay the respondent's costs of the appeal to this Court.

On appeal from the Supreme Court of Tasmania

Representation:

R J Whitington QC with A T S Dawson for the appellant (instructed ABC Legal Services)

P W Tree SC with J E Green for the respondent (instructed by Hobart Community Legal Service)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Broadcasting Corporation v O'Neill

Defamation – Injunctions – Interlocutory injunctions – Interlocutory injunction to restrain publication – Appellant restrained from broadcasting documentary film making allegations including that respondent suspected of having committed notorious unsolved crime – Principles on which interlocutory injunction to restrain publication granted – Relevance of "flexible" or "rigid" approaches to granting interlocutory injunctions – Significance of value of free speech – Significance of avoiding "trial by media" – Whether relevant that only nominal damages likely to be awarded – Significance of status of respondent as convicted life prisoner.

Injunctions – Interlocutory injunctions – Defamation – Whether general principles governing grant of interlocutory injunctions to restrain wrongs apply to interlocutory applications to restrain publication of allegedly defamatory matter – Relationship between Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 and American Cyanamid Co v Ethicon Ltd [1975] AC 396 – Whether respondent had made out an entitlement to an interlocutory injunction within the principles established by Beecham – Whether Full Court and primary judge shown to have erred in granting of interlocutory injunction.

Defamation – Injunctions – Jurisdiction to grant interlocutory injunction to restrain publication of allegedly defamatory matter – Nature of equitable jurisdiction to grant injunctions to restrain publication – Effect of Common Law Procedure Act 1854 (UK) – Effect of Judicature Act 1873 (UK).

Appeal – Interlocutory injunction in defamation proceedings – Necessity of demonstrating error in order to justify intervention by High Court – Whether error shown in approach and conclusion of Full Court and primary judge.

Defamation – Defences – Justification – Whether avoiding "trial by media" relevant to determination of "public benefit" required by Defamation Act 1957 (Tas) s 15.

Words and phrases – "public benefit", "public interest".

Common Law Procedure Act 1854 (UK), ss 79, 82.
Judicature Act 1873 (UK), s 25(8).
Supreme Court Civil Procedure Act 1932 (Tas), s 11(12).
Defamation Act 1957 (Tas), s 15.

1. GLEESON CJ AND CRENNAN J.  This appeal concerns the application, in what has long been recognised as the special context of a defamation action[1], of the principles according to which the discretionary remedy of an interlocutory injunction is granted.

   [1]Bonnard v Perryman [1891] 2 Ch 269 at 284.

2. The proceedings were brought in the Supreme Court of Tasmania.  The provision of the Supreme Court Civil Procedure Act 1932 (Tas) (s 11(12)) empowering the grant of injunctive relief, including interlocutory injunctions, was considered recently by this Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[2].  The general principles according to which courts grant such relief were there explained[3].  That was not a defamation case.  The central issue concerned the nature of the right which the plaintiff sought to vindicate in the litigation; a matter that arose in the context of considering whether the plaintiff was able to show a sufficient colour of right to final relief to justify the grant of an interlocutory injunction.  That question, together with the likelihood of injury for which damages would not be an adequate compensation, and wider considerations of the balance of convenience, goes to the justice and convenience of granting interlocutory relief.  In the present case, there is no doubt about the nature of the legal right which the respondent seeks to vindicate in the action, although the existence of that right is disputed.

   [2](2001) 208 CLR 199.

   [3](2001) 208 CLR 199 at 216-218 [8]-[16], 231-232 [59]-[61], 239-248 [86]-[105].

   The threatened publication

3. In 1966, three children, aged nine, seven and four, members of the Beaumont family in South Australia, disappeared.  The police suspect that the children were murdered, but investigations so far have been inconclusive.  It is one of Australia's most notorious unsolved crimes.

4. In November 1975 the respondent was convicted of the murder, in Tasmania, in February 1975, of a young boy whom he had abducted.  He was sentenced to imprisonment for life.  In May 1975, in an interview with Tasmanian police, the respondent confessed to the murder in April 1975 of another young boy.  Following the conviction for the February 1975 murder, and the imposition of the life sentence, the Tasmanian prosecuting authorities announced that they did not intend to proceed with charges in relation to the April 1975 occurrence.  In the Full Court of the Supreme Court of Tasmania, in the present proceedings, Slicer J said that it was open on the evidence to conclude that there was a "high likelihood" that the appellant, if necessary, would be able to prove the respondent's guilt of the second murder.

5. Since at least 1999, Mr Davie, a former police officer, who was joined as a defendant in the present proceedings but who has taken no part in the appeal, has been investigating what he claims to be a connection between the respondent and the disappearance of a number of missing children, including the Beaumont children.  Mr Davie has made allegations about the respondent which have been widely reported in the Tasmanian media.  Mr Davie, and another defendant, Roar Film Pty Ltd (which, like Mr Davie, has not participated in this appeal) produced a documentary film called "The Fisherman", under contract with the appellant (a national television broadcaster).  The film was displayed at the Hobart Film Festival in January 2005.  There is an issue as to whether the appellant was involved in that publication, but that is not the publication with which this appeal is concerned.  The media and political response was summarised by Crawford J, at first instance, as follows: 

   "The defendants rely on the fact that similar, but far more detailed, imputations to the ones of which the plaintiff complains have been made to the public in recent times.  Copies of articles in the Hobart based Mercury newspaper on 26, 27, 28, 29 and 30 January 2005, and 6, 7, 8, 11, 12, 13 and 15 April 2005, in addition to the one on 3 January 2005, to which I have already referred, were tendered.  They contained many statements concerning the plaintiff, many of which are likely to have been highly defamatory.  I will refer to some of them.  The Tasmanian Commissioner of Police was reported as saying that the plaintiff could be responsible for the kidnapping of the Beaumont children in 1966 and that he was convinced that the plaintiff had murdered more children than the one of which he was convicted in 1975.  The Commissioner was reported as saying:  'He's got a real lust for kiddies.  He's a multiple murderer.'  It was also reported that the plaintiff was wanted in Victoria on 12 charges involving the abduction and sexual assault of four boys in the 1970s and that the Commissioner had said that he was also a suspect concerning the disappearance and presumed murders of several boys and girls around Australia before 1974.  However, South Australian police were reported as saying that they had found no evidence to support the plaintiff's involvement in the disappearance of the Beaumont children and that he had been discounted from their inquiries.  Notwithstanding those denials, the Tasmanian Commissioner was reported as maintaining what he had said and of saying 'he's killed plenty of other people', 'he's a multiple murderer' and 'he would kill other kids, there is no doubt in the world if he gets out', adding 'we discovered that in the fortnight prior to the second boy disappearing that there were probably four if not five other children picked up, taken to remote locations, and had managed to escape the person who abducted them and get away relatively injury free'.  He described the plaintiff as 'cold blooded, psychopathic, a prolific liar ... would seek gratification at all costs ... no remorse, no emotion, no guilt.'

   Mr Davie was reported as saying 'I know O'Neill has told other people he was responsible for killing the Beaumonts', referring to a denial by the plaintiff as a refusal to confess.  Mr Davie was also reported to have said that the plaintiff had murdered more children than the one for which he was gaoled for life in 1975.  A journalist, who was said to have worked with Mr Davie on the documentary, was reported to have made similar statements, adding that she was convinced that she knew where the Beaumont children were buried and that she wanted an investigation into the murders she believed the plaintiff had committed before being imprisoned.

   Politicians became involved in the newspaper publicity.  The Opposition justice spokesman called for the plaintiff to be immediately moved from the Gaol Farm to the security of Risdon Prison, demanding that the Attorney-General 'guarantee the safety of O'Neill's accommodation arrangements to the people of the Derwent Valley'.  The Attorney-General was reported as saying that such calls were 'scandalous'.  The Opposition spokesman was then reported accusing the Attorney-General of 'breathtaking arrogance and potential recklessness' and challenging the Attorney-General to state publicly that she was personally satisfied that housing the plaintiff at Hayes Prison Farm posed no risk to the community.

   It was reported in the Mercury on 8 February 2005 that the plaintiff was prepared to meet a reporter to establish pre-interview guidelines and to have an article based on an acceptable level for him, but the Director of Prisons prohibited the meeting.  A reference was made in the Mercury to a political storm having erupted concerning a day-release program for prisoners which had allowed the plaintiff to fish for trout in the Derwent River accompanied only by his pet dog.  The Opposition spokesman then called for a representative of victims of crime to be a member of the Parole Board for 'appropriate balance', to which the Attorney-General retorted that the suggestion was insulting to existing members of the Board.

   On 11 April 2005, the Mercury reported a claim by a man identified as Lionel, who stated that he had been picked up by the plaintiff in a car when a 10 year old and had escaped from his clutches.

   On 7 April 2005, the Mercury newspaper published having received a letter from the plaintiff's lawyer complaining that the Mercury was attempting to keep him in custody through trial by media and that he considered it to be totally irresponsible and grossly unfair that he was being persecuted 30 years after his conviction.  His lawyer said that he believed that he deserved a second chance if the Parole Board deemed him suitable for release."

6. The facts recited by Crawford J show the level of media and political attention to the respondent over the period between early January and mid-April 2005.  The Tasmanian Commissioner of Police was reported as describing the respondent as a "multiple murderer", with "a real lust for kiddies".  The respondent's custodial situation became a political issue.  This was all before the publication sought to be restrained in these proceedings.

7. The appellant intended to broadcast "The Fisherman" nationally on 28 April 2005.  On 15 April 2005, the respondent commenced, in the Supreme Court of Tasmania, an action for defamation against the appellant, Roar Film Pty Ltd, and Mr Davie.  The respondent claimed damages, and permanent injunctive relief.  The respondent also applied for interlocutory relief to prevent the appellant from broadcasting the documentary pending the hearing of the action.  The application was heard by Crawford J.  It was successful.  It is that matter that is the subject of this appeal.

8. It is not suggested that there are any current criminal proceedings against the respondent or that any such proceedings are presently in contemplation.  In particular, so far as appears from the evidence, there is no present intention on the part of any prosecuting authority to charge the respondent with offences in relation to the Beaumont children, or any other children.  No issue of contempt of court arises.  This consideration is relied upon, in different ways, by both sides in argument.  The appellant says that there is no question, in the circumstances, of jeopardising the fairness of a criminal trial because, so far as presently appears, there will be no such trial.  The respondent says that this makes his position all the worse; he will face trial by media, with all the unfairness and injustice that entails.

   The proceedings in the Supreme Court of Tasmania

9. The application for interlocutory relief was heard by Crawford J on 20 and 21 April, and judgment was delivered on 22 April 2005.  Up to that time, no statement of claim had been filed.  Indeed, Crawford J did not see the documentary.  The application was conducted on the agreed basis that the documentary was capable of conveying the following imputations: 

   1.That the respondent is a suspect in the disappearance of the Beaumont children.

   2.That the respondent is a suspect in the murder of the Beaumont children.

   3.That the respondent was a multiple killer of children.

10. It was acknowledged in argument in this Court that there are difficulties with the form of those imputations.  The case was argued before Crawford J on the basis that, at trial, the appellant will rely upon a defence of justification which, under the Defamation Act 1957 (Tas) ("the Defamation Act")[4], meant truth and public benefit (s 15). What exactly would the appellant need to show was true?   What does it mean to say that the respondent is a suspect?  Suspected by whom?  Obviously, he is suspected by Mr Davie.  Perhaps it can be shown that he is suspected by other people as well.  On the evidence, the Tasmanian Commissioner of Police may be one of them.  Does the pleading mean that it is imputed that the respondent is suspected by the South Australian police, or prosecuting authorities, or by the Tasmanian police, or prosecuting authorities, or at least by one or more persons in those ranks?  What, if anything, would the appellant need to show about the state of mind of at least some of those people in order to show that the matter to be published is true?  There was also debate in this Court about the meaning of the third imputation.  Does "multiple" mean more than one, or more than two?  Having regard to the respondent's signed confession to a second murder, if the imputation bears the first meaning, it appears that the appellant may have little difficulty in establishing its truth.  If it means more than two, the position may be different. 

    [4]The Defamation Act 2005 (Tas) came into force on 1 January 2006, but it was the Act of 1957 that was in force at the time of the proceedings in the Supreme Court of Tasmania, and it was the law as stated in the Act of 1957 that governed the decisions the subject of this appeal.

11. Crawford J considered it obvious that "there will be little difficulty in proving that [the respondent] is suspected of being involved in the disappearances and possible murders of the Beaumont children in the light of the Mercury's publications".  He thought it was not so clear that it could be proved that the respondent was a multiple murderer of children, although he did not say what he meant by "multiple".  At all events, he was ready to accept that there was a substantial likelihood that the appellant could show the imputations to be true.  In his view "a greater problem for the [appellant] will be to establish that the publication of the imputations will be for the public benefit".  He said, in a passage that conveys the essence of his reasons for granting an interlocutory injunction: 

    "My view is that, in general, it is not for the public benefit that the media should publicly allege that a person has committed crimes of which he or she has not been convicted, whether or not there are currently proceedings afoot with respect to the crimes.  It is instead in the public interest that such allegations should usually be made to the public only as a result of charges and subsequent conviction.  That the media on occasions makes such allegations is often referred to as 'trial by media', of which it appears the plaintiff complained to the Mercury.  However, so far as concerns the imputation that the accused is a multiple killer of children, a more appropriate description in this case would be 'conviction by media'.  No suggestion of a trial, as we understand that word, will be involved here.  Similarly, I can see no aspect of public benefit in the making public of allegations that the plaintiff was responsible for the disappearance and murder of the Beaumont children or that he is suspected of being responsible.  The responsibility owed to the public with regard to the investigation of crime is entrusted by our society to the police and other public investigators and prosecutors.  If there is evidence available that might assist the authorities to investigate the disappearance of the children in question, it should be made available to them.  I have difficulty accepting that it is in the public interest that instead, such information be bandied about in public.  There will, of course, be cases when in the light of prior public statements by the person who is being defamed, or the public conduct of that person, it will be for the public benefit to publish allegations of that kind to the general public, but I have difficulty seeing that this is such a case.  It is sufficient to say that the claim of the defendants to 'public benefit' may well be unsuccessful.

    It follows from what I have been saying that I am unpersuaded that the granting of an interlocutory injunction restraining the defendants from publishing the imputations will 'restrain the discussion in the media of matters of public interest', as that expression was used by Hunt J in Chappell's case at 164, applying, of course, the law's use of the term 'public interest'."

12. Crawford J granted an interlocutory injunction[5].  The order restrained the appellant from broadcasting or otherwise publishing any part of the documentary known as "The Fisherman" that imputes or implies that the respondent was responsible for or is suspected of being responsible for the disappearance or murder of children commonly referred to as the Beaumont children or that the respondent is a multiple killer of children.  The form of the order in some respects went beyond the form of the agreed imputations, but, to the extent that it followed those imputations, it reflected their defects.

    [5]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26.

13. The appellant appealed to the Full Court of the Supreme Court of Tasmania.  By majority (Evans and Blow JJ, Slicer J dissenting), the appeal was dismissed.[6]  Blow J, with whom Evans J agreed, concluded that it had not been shown that Crawford J acted on some wrong principle, or that the interlocutory order involved substantial injustice.  He reviewed in some detail the authorities that show that courts "have been most reluctant to grant interlocutory injunctions in defamation cases", but observed that the weight of authority in Australia favoured a flexible rather than a rigid approach.  Crawford J, he said, was not obliged to treat as decisive the public interest in free speech which is one of the reasons for the traditional reluctance to grant interlocutory injunctions in defamation cases, and had exercised his discretion in accordance with the appropriate principles.

    [6]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82.

14. Slicer J, who dissented, summarised the position as he saw it in this way:

    "1.The respondent's status was that of a public persona.  His conduct as a prisoner could be said to be of general interest and his past a matter which was in the public domain.

    2.The fate of the Beaumont children had been and remained of community interest.

    3.Issues concerning the release of prisoners have always been concerns of the community.

    4.The statements, allegations or innuendoes presented in the documentary had previously been published to the community.

    5.The ambit of the documentary was far wider than that portraying the activities of the respondent whilst in prison, and ... the respondent believed himself to have been betrayed [by Mr Davie who had gained access to the respondent on what the respondent says is a false basis].

    6.Notwithstanding the belief of betrayal, the respondent had previously agreed to participate in the documentary process, albeit on a differing assumption.  The allegations were, on their face, defamatory although the action was subject to statutory defences or justifications.

    7.The respondent had an arguable basis for an action in defamation."

15. Slicer J emphasised that "public benefit" for the purpose of the statutory defence of justification is not co-extensive with "public interest" for the purpose of considering prior restraint of publication.  "The existence of a defence is a relevant factor, but prohibition of publication is governed by different legal principle."  There were involved, he said, different value judgments.  He regarded freedom of speech as "a compelling factor".  The respondent retained his claim for damages.  His reputation was already tainted.  There had already been extensive publication of the material in question.  The unsolved crimes, the murder to which the respondent had confessed but for which he had not been tried, and the respondent's future prospects of release, were all matters of public interest.  He held that Crawford J had erred in failing to give appropriate weight to the public interest in free speech.

    Prior restraint of publication in defamation action

16. In his widely quoted judgment in Bonnard v Perryman[7], in which Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurred, Lord Coleridge CJ explained why "the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong" and why, when there is a plea of justification, it is generally wiser, in all but exceptional cases, to abstain from interference until the trial and determination of the plea of justification.  First, there is the public interest in the right of free speech.   Secondly, until the defence of justification is resolved, it is not known whether publication of the matter would invade a legal right of the plaintiff.  Thirdly, a defence of justification is ordinarily a matter for decision by a jury, not by a judge sitting alone as in an application for an injunction.  Fourthly, the general character of the plaintiff may be an important matter in the outcome of a trial; it may produce an award of only nominal damages.

    [7][1891] 2 Ch 269 at 283-285.

17. In one respect, what Lord Coleridge CJ said, in its application to this case, requires qualification.  His Lordship was dealing with a context in which truth of itself amounted to justification.  Here, in the state of the law at the time of the proceedings before Crawford J and the Full Court, the appellant needed the added element of public benefit.  Subject to that significant matter, what his Lordship said is directly in point.  The general public interest in free speech is involved.  The trial judge was prepared to accept that there was a strong possibility that the imputations could be shown to be true.  The defence of justification remains unresolved.  The respondent's general character, or if the difference be material, reputation[8], is such that, even if he succeeded at trial, the damages awarded for the publication the subject of the interlocutory application could well be nominal.

    [8]cf Plato Films Ltd v Speidel [1961] AC 1090 at 1138.

18. Lord Coleridge CJ's conclusion was that "it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial"[9].  That form of expression does not deny the existence of a discretion.  Inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience.  Formulations of principle which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked.  Nevertheless, so long as that misunderstanding is avoided, there are to be found, in many Australian decisions, useful reminders of the principles which guide the exercise of discretion in this area.  One of the best known statements of principle is that of Walsh J, before he became a member of this Court, in Stocker v McElhinney (No 2)[10].  After referring to the 5th edition of Gatley on Libel and Slander, and citing Bonnard v Perryman, he said:

    "(1)     Although it was one time suggested that there was no power in the court, under provisions similar to those contained in [the Act governing procedure in the Supreme Court of New South Wales] to grant an interlocutory injunction, in cases of defamation, it is settled that the power exists in such cases.

    (2)      In such cases, the power is exercised with great caution, and only in very clear cases.

    (3)      If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused.  Indeed, it is only where on this point, the position is so clear that, in the judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go.

    (4)      If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff if successful, will recover nominal damages only, the injunction will be refused."

    [9][1891] 2 Ch 269 at 285.

    [10][1961] NSWR 1043 at 1048.

19. The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd[11] (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd[12], and Jakudo Pty Ltd v South Australian Telecasters Ltd[13].  As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.  These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.  We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ[14], and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd[15] should be folIowed[16].  In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution.  Foremost among those considerations is the public interest in free speech.  A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved.  Where one such issue is justification, it is commonly an issue for jury decision[17].  In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded.

    [11](1988) 14 NSWLR 153.

    [12][1989] VR 747.

    [13](1997) 69 SASR 440 at 442-443.

    [14]See [65]-[72].

    [15](1968) 118 CLR 618.

    [16]See also Firth Industries Ltd v Polyglas Engineering Pty Ltd (1975) 132 CLR 489 at 492 per Stephen J; Winthrop Investments Ltd v Winns Ltd [1975] 2 NSWLR 666 at 708 per Mahoney JA; World Series Cricket v Parish (1977) 16 ALR 181 at 186 per Bowen CJ.

    [17]As to the practice concerning trial by jury in various Australian jurisdictions, see George, Defamation Law in Australia, (2006) at 225-226.

    Public benefit and public interest

20. Section 15 of the Defamation Act provided:

    "15.  It is lawful to publish defamatory matter if –

    (a)      the matter is true; and

    (b)      it is for the public benefit that the publication should be             made."

21. These were both questions of fact (s 20).  However, par (b) called for a value judgment as to whether the public would benefit from the publication in issue – here the publication of the documentary[18].

    [18]Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 229.

22. In London Artists Ltd v Littler[19], Lord Denning MR said:  "Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment."  The contexts of fair comment, and qualified privilege, are somewhat different from the context of justification.  However, it may be noted that, in Bellino v Australian Broadcasting Corporation[20], where this Court was concerned with a Queensland statutory defence of publication in good faith in the course of the discussion of some subject of public interest, the public discussion of which is for the public benefit, Dawson, McHugh and Gummow JJ said that "[i]n the great majority of cases, the public discussion of a subject of public interest must be for the public benefit."[21]  There are some obvious exceptions, such as public discussion that might imperil national security.

    [19][1969] 2 QB 375 at 391.

    [20](1996) 185 CLR 183.

    [21](1996) 185 CLR 183 at 229.

23. The requirement of public benefit, as an element of the defence of justification in a number of Australian jurisdictions, had a long history.  In Rofe v Smith's Newspapers Ltd[22], Street ACJ said, in words that applied equally in Tasmania:

    "The defence of justification rests on a different footing in New South Wales from that on which it rests in England.  In England it is a complete answer to a civil action that the defamatory matter complained of was true.  The reason upon which this rule of law rests, as I understand, is that, as the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him.  The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it.  The law was altered in this respect in New South Wales many years ago.  It was felt that to allow past misconduct, or discreditable episodes which were dead and gone, to be revived and dragged into the light of day at will by maliciously minded scandalmongers was too hard upon people who, whatever indiscretions they might have committed in the past, were leading respectable lives; and the Legislature, accordingly, provided that, in an action for defamation, the truth of the matters charged should not amount to a defence, unless it was for the public benefit that they should be published."

    [22](1924) 25 SR (NSW) 4 at 21-22.

24. The matter in question in this case goes far beyond the reporting of the past indiscretions of a person of otherwise good reputation, whose privacy ought to be respected.  The unsolved mystery of the disappearance of the Beaumont children, the presence within the Tasmanian prison system of a convicted murderer who is suspected of responsibility, the respondent's confession to another murder with which he has never been charged, and the political controversies concerning release on licence or parole of serious offenders are all matters of public interest in the relevant sense.  It would have been open to a tribunal of fact to find that the public discussion of those matters, with particular reference to the respondent, is for the public benefit.   What might be thought to stand in need of explanation is how suppression of public discussion of those matters could serve the public interest.

25. The reasoning of Crawford J, which was approved by the majority in the Full Court, rested upon a central proposition:  it is not for the public benefit, and is contrary to the public interest, for there to be "trial by media".  Crawford J said in the passage earlier quoted, that the public interest dictates that allegations of the kind here in question "should usually be made to the public only as a result of charges and subsequent conviction".  That proposition requires further analysis.

26. First, it is not the fact that allegations of serious criminal conduct usually become known to the public only as a result of charges and subsequent conviction.  On the contrary, the process often works in reverse:  charges and subsequent conviction often result from the publication of allegations of serious criminal conduct.  Subject to the law of contempt (and, of course, the law of defamation) media outlets are free to make, and frequently make, allegations which are directed towards, or which have the effect of, prompting action by the authorities.  Condemnations of trial by media sometimes have a sound basis, but they cannot be allowed to obscure the reality that criminal charges are sometimes laid as a response to media exposure of alleged misconduct.  The idea that the investigation and exposure of wrongdoing is, or ought to be, the exclusive province of the police and the criminal justice system, bears little relation to reality in Australia, or any other free society.  There are heavily governed societies in which the police and other public authorities have the exclusive capacity to make, and pursue, allegations of misconduct; but not in ours.  Indeed, in our society allegations of misconduct are sometimes made against the police and public officials.

27. Secondly, it may well be in the public interest that inaction on the part of the police and prosecuting authorities be called publicly into question.  It is certainly in the public interest that it is open to be called into question.  The facts of this case provide an example.  At least according to the Hobart Mercury, the South Australian Commissioner of Police and the Tasmanian Commissioner of Police have formed different views on the respondent's likely responsibility for a number of murders.  These may reflect legitimate differences of opinion, but why should such differences not be a matter of public knowledge and discussion, bearing in mind the respondent's existing conviction and custodial status?

28. Thirdly, if the expression "trial by media" means any public canvassing by the media, outside the reporting of court proceedings, of the merits of topics which could become, or are, the subject of civil or criminal litigation, then we are surrounded by it.  The idea that the criminal justice system ought to be the exclusive forum for canvassing matters of criminal misbehaviour is contrary to the way our society functions in practice.

29. Fourthly, a complaint that what is going on is trial by media implies that there is some different, and better, way of dealing with the issues that have been raised.  Unless it be suggested that the public interest is best served by silence on the subject of the respondent's possible complicity in the disappearance of the Beaumont children, it is not easy to see what, in the circumstances, that might be.  Crawford J was willing to accept that it was likely that it would be shown to be true that the respondent was suspected of being involved in the murders of the Beaumont children.  The South Australian authorities appear to have no present intention of charging the respondent with those murders.  The respondent is a convicted murderer, serving a life sentence.  The Tasmanian Commissioner of Police has been reported as saying that the respondent has killed many children.  The corollary of the respondent's argument is that the public should not be allowed to hear of the suspicions.  Any public revelation of those suspicions is likely to be stigmatised as trial by media.  The alternative is silence.  The third imputation alleged is that the respondent is a multiple murderer.  He has confessed to a second killing.  That is a matter of public interest.  The authorities have never brought him to trial for that matter, perhaps because it would be a work of supererogation.  If any media outlet publishes the fact of the respondent's confession, then no doubt it can be said that the question of his guilt is being canvassed without all the protections and safeguards of the criminal trial process.  That would be true.  Yet it seems surprising that the public could never be told of the respondent's confession.

30. It is difficult to resist the conclusion that, in their natural and proper concern for fairness to the respondent, the judges who decided the case in his favour have fallen into the error of treating the criminal trial process as the only proper context in which matters of the kind presently in question may be ventilated.  More fundamentally, however, it is apparent that they failed to take proper account of the public interest in free communication of information and opinion, which is basic to the caution with which courts have approached the topic of prior restraint of allegedly defamatory matter.

31. The public interest in free speech goes beyond the public benefit that may be associated with a particular communication.  The failure to recognise this was an error of principle on the part of the judges who found in favour of the respondent.  As Auld LJ pointed out in Holley v Smyth[23], Blackstone, in his Commentaries[24], as long ago as 1769 distinguished between prior restraint of publication and subsequent legal consequences:  "The liberty of the press is indeed essential to the nature of a free state:  but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.  Every freeman has an undoubted right to lay what sentiments he pleases before the public:  to forbid this, is to destroy the freedom of the press:  but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity" (emphasis in original).  What lay behind Blackstone's remarks was the conclusion in the late 17th century of the controversy between Parliament and the Crown over free speech and freedom of the press.  From Tudor times, the House of Commons appreciated that its role in public life would be seriously curtailed without such freedoms.  This explains the House's repeated assertions, over the century, of a "liberty" to "speak freely their consciences without check or controlment"[25].  This liberty found its way into The Bill of Rights, 1689[26].  The "check or controlment" complained about came from the Crown or its councillors.  A freedom to speak on behalf of the commons became a freedom, as Blackstone notes of "[e]very freeman".  Hand in hand with these developments went the dismantling of the Crown's control, or censorship, of the press, first asserted generally by Ordinance in 1534, and requiring all manuscripts to be scrutinised and licensed by the Stationers' Company.  Decrees in Star Chamber reinforced that control or censorship in respect of both printers and books.  As explained in the joint reasons of Gummow and Hayne JJ, the dismantling of the licensing system was effectively completed by 1695[27].  The public interest in free speech is explained not least by reference to the fact that freedom of speech and freedom of the press were important aspects of the constitutional struggles which came to rest with the Act of Settlement of 1701.  Subsequently, courts of equity were not willing to enjoin publication of defamatory matter, not only because that would usurp the authority of juries, but also because they were most reluctant to be asked "to exercise the powers of a censor"[28].  This latter consideration remains important in our democracy.

    [23][1998] QB 726 at 737.

    [24]Blackstone, Commentaries, (1769) bk 4, at 151-152.

    [25]"The Apology of the Commons, 20 June 1604" in Stephenson & Marcham, Sources of English Constitutional History, (1972), vol 1, 418 at 422.

    [26]Expressed as a right to "freedom of speech and debates or proceedings in parliament."

    [27]See [80].

    [28]Fleming v Newton (1848) 1 HLC 363 at 371 per Lord Cottenham LC.

32. It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech.  It is another matter for a court to interfere with the right of free speech by prior restraint.  In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual's interest in his or her reputation.  When, however, a court is asked to intervene in advance of publication wider considerations are involved.  This is the main reason for the "exceptional caution"[29] with which the power to grant an interlocutory injunction in a case of defamation is approached.  It is not reflected in the reasoning of Crawford J, or the majority of the Full Court. It is only in the reasoning of Slicer J that it was influential.

    [29]Bonnard v Perryman [1891] 2 Ch 269 at 284 per Lord Coleridge CJ.

    Reputation

33. There is a further reason why this case was a most unpromising candidate for this unusual form of relief.  It concerns the final matter referred to by Lord Coleridge CJ in Bonnard v Perryman.  This is a case in which, if the intended publication were to proceed, and if it were found to involve actionable defamation, it may be that an award of only nominal damages would follow.  The three imputations upon which the respondent relied in argument before Crawford J, and which were the basis of the Full Court's decision, have to be considered in the light of two significant matters.  First, the respondent is a convicted murderer, who is serving a life sentence, and who has confessed to another murder.  To say of him that he is suspected of the murder of the Beaumont children, and that he is a multiple murderer, might not attract an award of substantial damages, especially if, as Crawford J was willing to assume, those imputations could be shown to be true.  Secondly, as at 28 April 2005, the date of the threatened publication the subject of the interlocutory injunction, there had already been extensive publication of matters involving allegations of the most serious nature against the respondent.

    Conclusion and Orders

34. The primary judge, and the majority in the Full Court, erred in principle in two respects in their approach to the exercise of the discretionary power to grant an interlocutory injunction in the special circumstances of a defamation case.  They failed to take proper account of the significance of the value of free speech in considering the question of prior restraint of publication, and they failed to take proper account of the possibility that, if publication occurred and was found to involve actionable defamation, only nominal damages might be awarded.  The appeal should be allowed.

35. The question as to the appropriate course for this Court to take, in the event that the appeal is allowed, is complicated by the fact that the legislation under which this litigation was conducted has been replaced by the Defamation Act 2005 (Tas), which came into effect on 1 January 2006. Under the new Act, which applies to the publication of defamatory matter after that date (s 48), the defence of justification is made out by proof of truth of the defamatory imputations. Public benefit is no longer an element of the defence. The defamatory matter the subject of the existing injunction has not yet been published. The element of public benefit was the decisive factor in Crawford J's decision to grant an injunction.

36. The decision to grant an interlocutory injunction was discretionary.  Ordinarily, if it were concluded that there was error in the exercise of the discretion, the matter would be remitted for further consideration.  Here, however, the case against a grant of interlocutory relief was very strong.  Furthermore, the allegedly defamatory publication with which this appeal is concerned has not yet occurred.  The change in statute law that has taken place provides an additional reason for not continuing the restraint on the appellant[30].  In particular, it removes the element of the defence of justification that was central to the primary judge's decision to grant relief.  As will appear, the conditions on which special leave to appeal was granted preserve the appellant's entitlement to costs of the proceedings in the Supreme Court of Tasmania in any event.

    [30]Trade Practices Commission v Milreis Pty Ltd (No 2) (1978) 32 FLR 234 at 241.

37. The appeal should be allowed.  The order of the Full Court of the Supreme Court of Tasmania should be set aside.  In place of that order it should be ordered that the appeal to that Court be allowed.  Order 1 of the orders made by Crawford J should be set aside insofar as it applies to the appellant.

38. It was a condition of the grant of special leave to appeal that the appellant would undertake to pay the respondent's costs of the appeal in any event and would not seek to disturb the costs orders made in the Supreme Court of Tasmania.  Accordingly the appellant must pay the respondent's costs of the appeal.

39. GUMMOW AND HAYNE JJ.   This appeal from the Full Court of the Supreme Court of Tasmania raises matters of principle respecting the exercise of jurisdiction to enjoin apprehended publication of defamatory matter, pending trial of an action.  For the reasons which follow, the interlocutory restraint imposed upon the appellant ("the ABC") should be removed, and the appeal allowed.

    The Supreme Court action

40. In an action instituted in the Supreme Court of Tasmania by writ filed on 15 April 2005, the present respondent ("Mr O'Neill") sought injunctive relief, particularly to restrain the ABC from broadcasting on 28 April 2005 a television programme, being a film entitled "The Fisherman".  Mr O'Neill also sought damages for defamation against the ABC and the two other defendants (Roar Film Pty Ltd and Mr Gordon Davie, a filmmaker) by reason of the showing of the film at the Hobart Summer Film Festival during the first week of January 2005.  The ABC throughout the litigation has denied any participation in that alleged publication.   However, in this Court, it was an agreed fact that at some time before the granting of the interlocutory relief which has given rise to this appeal, the ABC had published "The Fisherman" to certain newspapers with a view to indicating the nature of the proposed transmission on 28 April 2005.

41. Before the institution of his Supreme Court action, Mr O'Neill had not obtained the leave required for the commencement of his action by the Prisoners (Removal of Civil Disabilities) Act 1991 (Tas)[31].  However, in that regard, no point has been taken against his case.

    [31]cf Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583.

42. Eventually, an amended statement of claim by Mr O'Neill was filed on 24 February 2006 and the ABC filed its defence to that pleading.  Mr O'Neill claims against the ABC (and the other defendants) damages and a final injunction against publication of any part of "The Fisherman" which "imputes or implies that [he] was responsible for or is suspected of being responsible for the disappearance or murder of the children commonly referred to as the Beaumont children or that [he] is a multiple killer of children".  As the above chronology indicates, there has been no trial of the action. 

43. Mr O'Neill was aged 57 when he instituted the present action.  He is serving in Tasmania a life sentence of imprisonment following his conviction in November 1975 for the murder of a child.  He had been charged with the murder of a second child, aged nine, the respective events occurring in February and April 1975.  Following the conviction and sentence for the February killing, the Tasmanian prosecuting authorities decided not to proceed with a trial for the April occurrence.  The three Beaumont children, aged four, seven and nine, disappeared in South Australia on Australia Day 1966.

44. The evidence includes articles published in a Hobart newspaper, The Mercury, on various dates in January, February and April 2005.  There is an account in those articles of, or references to, the content of the film "The Fisherman", with indications that Mr O'Neill may have been involved in the disappearance of the Beaumont children and that he had confessed his guilt of the murders to the filmakers.  Mr Davie, the third defendant, was reported as saying that he knew that Mr O'Neill had told other people he was responsible for killing the Beaumont children, and the Tasmanian Commissioner of Police was reported as saying he was convinced that Mr O'Neill had murdered more children than the child for whose murder he had been convicted in 1975.  The article in the issue for 6 April 2005 speaks of preparations by the ABC to screen "The Fisherman" on 28 April, and to the ABC having pulled it from its original timeslot of 21 April after contact by Mr O'Neill's lawyers.

45. When the action was instituted, the Defamation Act 1957 (Tas) ("the 1957 Act") was in force. Section 15 made it lawful to publish defamatory matter if it was true and "for the public benefit" that the publication be made[32]. Section 5 classified as a question of law the question whether matter is capable or not capable of bearing a defamatory meaning (par (3)), and as a question of fact whether matter is or is not defamatory (par (4)). This division in the functions of judge and jury represented the common law as settled by Capital and Counties Bank v Henty[33] for civil actions in a manner analogous, as Lord Blackburn pointed out[34], to that established by statute, Fox's Libel Act 1792 (UK)[35] for prosecutions for criminal libel.

    [32]The legislative history of the addition in Australian defamation law of a requirement of public benefit to the defence of justification is traced in Mitchell, "The Foundations of Australian Defamation Law", (2006) 28 Sydney Law Review 477.

    [33](1882) 7 App Cas 741.

    [34](1882) 7 App Cas 741 at 775‑776.

    [35]32 Geo III c 60.

46. With effect from 1 January 2006, the 1957 Act was replaced by the Defamation Act 2005 (Tas) ("the 2005 Act"). This was after the decision of the Full Court from which the present appeal is brought to this Court. As to any accrued claim for damages and the conduct of the action with respect to that claim, the governing legislation remains the 1957 Act. This follows from the operation of s 16(1) of the Acts Interpretation Act 1931 (Tas)[36] and s 48(3)(a) of the 2005 Act[37].  Questions respecting the operation of the 2005 Act upon any publication by the ABC were it now to take place were the subject of further written submissions by the parties.  It will be necessary to make some reference to those submissions later in these reasons.

    [36]Section 16(1) of the Acts Interpretation Act 1931 (Tas) provides that, unless the contrary is expressly provided, the repeal of a statute does not affect any right or liability acquired thereunder or affect any legal proceeding in respect thereof.

    [37]Section 48(3)(a) of the 2005 Act provides that the existing law continues to apply to any cause of action that accrued before the commencement of the 2005 Act in the same way as it would have applied had the 2005 Act not been enacted.

47. This appeal arises from interlocutory injunctive relief obtained by Mr O'Neill.

    The interlocutory application

48. Upon an interlocutory application filed on 15 April 2005, the same day as the action was instituted, and after a hearing on 20 and 21 April 2005, on 22 April Crawford J made an order, until judgment in the action or earlier order, restraining the ABC and the other defendants "from broadcasting or otherwise publishing to the general public any part of the documentary known as 'The Fisherman' that imputes or implies that [Mr O'Neill] was responsible for or is suspected of being responsible for the disappearance or murder of children commonly referred to as the Beaumont children or that [Mr O'Neill] is a multiple killer [of] children".  In the subsequently filed amended statement of claim, an order in these terms is sought as final relief.

49. Crawford J did not view the film and the evidence disclosed little of its contents.  For the purpose of the interlocutory application, the defendants conceded that several imputations were capable of being conveyed by the film.  These were that Mr O'Neill is "a suspect" in the disappearance and murder of the Beaumont children and that he is "a multiple killer of children".  Counsel for the ABC told the Supreme Court that the ABC would plead truth and public benefit under s 15 of the 1957 Act.

50. An appeal was brought to the Full Court by the ABC, but not by the other defendants.  They have played no further part in the interlocutory litigation.  The Full Court (Evans and Blow JJ; Slicer J dissenting) dismissed the appeal.

    The issues

51. The issues before this Court are whether the majority of the Full Court erred in upholding the order made by the primary judge, whether the primary judge misunderstood or misapplied the principles governing the administration of the jurisdiction with respect to interlocutory injunctive relief, particularly to restrain publication of defamatory matter, and, if so, what consequential relief should be granted in this Court were the appeal to be allowed.

52. In his reasons for judgment as one of the majority in Lovell v Lewandowski[38], Kennedy J, after a review of the case law and non‑judicial writings on the subject, concluded that, as matters stood at intermediate appellate level in Australia, the position with respect to the grant or refusal of interlocutory injunctions in defamation actions is "exceptional", when compared with "the ordinary equitable principles upon which an interlocutory injunction can be granted"[39].  Kennedy J considered various reasons which had been assigned for the development of "exceptional rules" in this particular area[40].  It will be necessary to return to consider those matters.  At this point, it is sufficient to note that they concerned a reluctance to restrain freedom of speech, the policy of the law in favour of jury trials in defamation actions, and what was perceived at least in the past as the absence of a legal proprietary right in personal reputation.  These considerations applied to final as much as, if not more so, to interlocutory relief by way of injunction.

    [38][1987] WAR 81.

    [39][1987] WAR 81 at 90‑91.

    [40][1987] WAR 81 at 91.

53. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc[41], it was said in this Court that the grant of an interlocutory injunction is a matter of practice and procedure.  However, where, as in this case, matters of principle are involved, an appeal stands somewhat above the ordinary appeal in a matter of practice and procedure.  The same also properly may be said of the interlocutory anti‑suit injunction and the assets preservation order considered by this Court respectively in CSR Ltd v Cigna Insurance Australia Ltd[42] and Cardile v LED Builders Pty Ltd[43], and the issues respecting interlocutory injunctive relief considered in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia[44].

    [41](1981) 148 CLR 170 at 176‑177.

    [42](1997) 189 CLR 345.

    [43](1999) 198 CLR 380.

    [44](1998) 195 CLR 1.

    The jurisdiction of the Supreme Court

54. Neither the 1957 Act nor the 2005 Act refers explicitly to the role of injunctive relief in defamation actions[45].  Accordingly, and the contrary is not suggested, the jurisdiction of the Supreme Court with respect to interlocutory and final injunctive relief which was invoked by Mr O'Neill was that conferred by the Supreme Court Civil Procedure Act 1932 (Tas) ("the 1932 Act"). This provides for the concurrent administration by the Supreme Court of law and equity (s 10) and was introduced by the Parliament with the expressed objective of adopting the Judicature system established in England over 50 years earlier[46]. Section 11(12) of the 1932 Act confers power to grant an interlocutory injunction "in all cases in which it shall appear to the Court or judge to be just and convenient that such order should be made". This Court affirmed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[47], a Tasmanian appeal considering s 11(12), that, where an interlocutory injunction is sought, it is necessary to identify the legal (including statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought. This meant, in particular, that the Supreme Court of Tasmania did not have jurisdiction to grant an interlocutory injunction when no legal or equitable rights were to be so determined.

    [45]However, s 6(2) of the 2005 Act states that that statute does not affect the operation of the general law, meaning thereby "the common law and equity" (see s 4), in relation to the tort of defamation, except to the extent that the 2005 Act expressly or by necessary implication provides otherwise.

    [46]See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 239‑240 [86]-[87].

    [47](2001) 208 CLR 199 at 217 [10], 231‑232 [59]-[60], 241 [91].

55. The present appeal does not involve a situation resembling that considered in Lenah Game Meats.  Here, there is no doubt that there were legal rights at stake, namely, the tort action against the ABC for defamation under the 1957 Act.  The significant point is that not all apprehended commissions of tortious acts attract an injunctive remedy on a quia timet basis.  In particular, Ashburner wrote[48]:

    "It was settled before the Judicature Act that the Court of Chancery had no jurisdiction to restrain a publication merely because it was a libel."

    On the eve of the introduction of the Judicature system, Lord Cairns LC, speaking for the Court of Appeal in Chancery in Prudential Assurance Company v Knott declared[49]:

    "[A]s I have always understood, it is clearly settled that the Court of Chancery has no jurisdiction to restrain the publication merely because it is a libel.  There are publications which the Court of Chancery will restrain, and those publications, as to which there is a foundation for the jurisdiction of the Court of Chancery to restrain them, will not be restrained the less because they happen also to be libellous."

    [48]Ashburner's Principles of Equity, 2nd ed (1933) at 341.

    [49](1875) LR 10 Ch App 142 at 144.

56. The qualification expressed by Lord Cairns LC allowed, for example, for injunctive relief in respect of those torts of slander of title and slander of goods, where property interests were involved, and which were classified as "trade libel"[50], and later, after Ratcliffe v Evans[51], were developed as the tort of injurious falsehood, elements of which were malice and special damage.  The logical consequence was that, where causes of action both for defamation and injurious falsehood lay in the same situation, an injunction might be granted in respect of the injurious falsehood claim[52].

    [50]See Lee v Gibbings (1892) 67 LT 263; White v Mellin [1895] AC 154.

    [51][1892] 2 QB 524.

    [52]See Collard v Marshall [1892] 1 Ch 571.

57. Thereafter, in Monson v Tussauds Limited; Monson v Louis Tussaud[53], Lord Halsbury, sitting in the English Court of Appeal, declared "[t]he Court of Chancery had no jurisdiction in libel cases".  A more accurate proposition was that, unless, as was the position in Saxby v Easterbrook[54], a jury already had found the matter complained of to be libellous and repetition of the libel was calculated to do material injury to a legal proprietary interest of the plaintiff, an injunction would not be issued.  In Saxby, a final injunction was granted to restrain further publication of allegations that the plaintiff had dishonestly and improperly presented a petition for the grant of a patent on the basis that he was the true inventor whereas his claimed invention was pirated from that of the defendants.

    [53][1894] 1 QB 671 at 690.

    [54](1878) 3 CPD 339.

58. It was in this setting that, in Bonnard v Perryman[55], Lord Coleridge CJ delivered reasons with the concurrence of Lord Esher MR and Lindley, Bowen and Lopes LJJ.  Jurisdiction to grant injunctive relief in defamation actions now was seen as conferred by statute and located in ss 79 and 82 of the Common Law Procedure Act 1854 (UK) ("the 1854 Act")[56] and its continuation by the Judicature legislation.  In what was still Van Dieman's Land, the 1854 Act (including the text of ss 79 and 82) was adopted by The Common Law Procedure Act No 2 1855 (Tas).  The relevant sections of this statute, ss 63 and 66, were repealed by the 1932 Act, but not so as to take away, lessen or impair any jurisdiction vested in the Supreme Court of Tasmania by that repealed legislation[57].

    [55][1891] 2 Ch 269.

    [56]17 & 18 Vict c 125.

    [57]1932 Act, s 2(4)(a); cf Southern Textile Converters Pty Ltd v Stehar Knitting Mills Pty Ltd [1979] 1 NSWLR 692 at 697‑698.

59. In Bonnard, Lord Coleridge CJ said[58]:

    "Prior to the [1854 Act], neither Courts of Law nor Courts of Equity could issue injunctions in such a case as this:  not Courts of Equity, because cases of libel could not come before them; not Courts of Law, because prior to 1854 they could not issue injunctions at all.  But the 79th and 82nd sections of the [1854 Act] undoubtedly conferred on the Courts of Common Law the power, if a fit case should arise, to grant injunctions at any stage of a cause in all personal actions of contract or tort, with no limitation as to defamation."

    [58][1891] 2 Ch 269 at 283.

60. Dean Pound cogently challenged what the Lord Chief Justice had described as the undoubted conferral of power by the 1854 Act with respect to defamation actions[59].  Section 79 of the 1854 Act did speak of "all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action" and went on to say that in such instances the party might claim a writ of injunction.  However, Pound observed that it was reasonably clear that the 1854 Act referred to those cases "where there ought to be an injunction on the principles of equity jurisdiction"[60].

    [59]"Equitable Relief against Defamation and Injuries to Personality", (1916) 29 Harvard Law Review 640 at 665‑666.

    [60]"Equitable Relief against Defamation and Injuries to Personality", (1916) 29 Harvard Law Review 640 at 665.

61. The provisions in the 1854 Act followed upon the Second Report of Her Majesty's Commissioners for inquiring into the Process, Practice, and System of Pleading in the Superior Courts of Common Law which was published in 1853[61].  The Commissioners had noted that the injunction protected not merely equitable rights but also those rights violation of which was remedied by an action at common law; equity had gradually enlarged its jurisdiction, originally assumed by analogy to the case of waste, to include such torts as trespass and patent and copyright infringement and the restraint of breaches of negative covenants[62].  The Commissioners had supported the empowering of the Courts of Common Law to "exercise the same jurisdiction, and restrain violation of legal rights in the cases in which an injunction now issues for that purpose from the courts of equity"[63].  This legislative history supports the construction placed by Pound upon the 1854 Act.

    [61](1853) [1626] at 42‑44; the Report is reprinted in British Parliamentary Papers, Legal Administration, General, Courts of Common Law, vol 9 at 165.

    [62]Second Report of Her Majesty's Commissioners for inquiring into the Process, Practice, and System of Pleading in the Superior Courts of Common Law, (1853) [1626] at 43.

    [63]Second Report of Her Majesty's Commissioners for inquiring into the Process, Practice, and System of Pleading in the Superior Courts of Common Law, (1853) [1626] at 43 (original emphasis).

62. However, in Bonnard, the Lord Chief Justice went on[64] to declare that the power he saw in the 1854 Act was by the Judicature legislation conferred upon the Chancery Division of the High Court as representing the old Courts of Equity.  His Lordship continued[65]:

    "Nevertheless, although the power had existed since 1854, there is no reported instance of its exercise by a Court of Common Law till Saxby v Easterbrook[66], which was decided in 1878.  In that case the injunction was not applied for, nor, of course, granted, till after a verdict and judgment had ascertained the publication to be a libel.  That case was acquiesced in; and about the same time the Chancery Division began, and it has since continued, to assert the jurisdiction, which has been questioned before us, of granting injunctions on the interlocutory application of one of the parties to an action for libel."

    [64][1891] 2 Ch 269 at 283.

    [65][1891] 2 Ch 269 at 283.

    [66](1878) 3 CPD 339.

63. There is thus some force in the thesis advanced by Pound[67] that the English courts had been moved "to strain a point" in order to be rid of the jurisdictional bar upon the injunctive remedy imposed by decisions such as Prudential Assurance Company v Knott[68].

    [67]"Equitable Relief against Defamation and Injuries to Personality", (1916) 29 Harvard Law Review 640 at 666.

    [68](1875) LR 10 Ch App 142 at 144.

64. The upshot of this development in the injunctive remedy, however haphazard, is that the existence of the jurisdiction in a Judicature system, such as that established in Tasmania by the 1932 Act, to grant injunctive relief to restrain publication of defamatory matter must be taken as settled.  The question in the present appeal then arises at another level.  This concerns the operation in this context of the principles respecting the grant of the special remedy of injunctive relief that is interlocutory in nature.

    Interlocutory injunctions

65. The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd[69].  This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued[70]:

    "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."

    By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.  That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument[71].  With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal[72]:

    "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."

    [69](1968) 118 CLR 618.

    [70](1968) 118 CLR 618 at 622‑623.

    [71](1968) 118 CLR 618 at 620.

    [72](1968) 118 CLR 618 at 622.

66. For example, special considerations apply where injunctive relief is sought to interfere with the decision of the executive branch of government to prosecute offences[73].  Again, in Castlemaine Tooheys Ltd v South Australia[74], Mason ACJ, in the original jurisdiction of this Court, said that "[i]n the absence of compelling grounds" it is the duty of the judicial branch to defer to the enactment of the legislature until that enactment is adjudged ultra vires, and dismissed applications for interlocutory injunctions to restrain enforcement of the law under challenge.

    [73]Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 156 per Mason ACJ.

    [74](1986) 161 CLR 148 at 155‑156; cf the earlier assumption in Murphy v Lush (1986) 60 ALJR 523 at 526; 65 ALR 651 at 655 that "a triable issue" of invalidity was sufficient to pass to consideration of the balance of convenience.

67. Various views have been expressed and assumptions made[75]  respecting the relationship between the judgment of this Court in Beecham and the speech of Lord Diplock in the subsequent decision, American Cyanamid Co v Ethicon Ltd[76].  It should be noted that both were cases of patent infringement and the outcome on each appeal was the grant of an interlocutory injunction to restrain infringement.  Each of the judgments appealed from had placed too high the bar for the obtaining of interlocutory injunctive relief.

    [75]See, for example, Administrative and Clerical Officers Association, Commonwealth Public Service v Commonwealth (1979) 53 ALJR 588 at 591; 26 ALR 497 at 502; Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283 at 284; 52 ALR 651 at 653; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 24 [21]; Fejo v Northern Territory (1998) 195 CLR 96 at 122 [26].

    [76][1975] AC 396.

68. Lord Diplock was at pains to dispel the notion, which apparently had persuaded the Court of Appeal to refuse interlocutory relief, that to establish a prima face case of infringement it was necessary for the plaintiff to demonstrate more than a 50 per cent chance of ultimate success.  Thus Lord Diplock remarked[77]:

    "The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if upon that incomplete untested evidence the court evaluated the chances of the plaintiff's ultimate success in the action at 50 per cent or less, but permitting its exercise if the court evaluated his chances at more than 50 per cent."

    [77][1975] AC 396 at 406.

69. In Beecham, the primary judge, McTiernan J, had refused interlocutory relief on the footing that, while he could not dismiss the possibility that the defendant might not fail at trial, the plaintiff had not made out a strong enough case on the question of infringement[78].  Hence the statement by Kitto J in the course of argument in the Full Court that it was not necessary for the plaintiff to show that it was more probable than not that the plaintiff would succeed at trial.

    [78](1967) 118 CLR 618 at 619.

70. When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force.  There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham.

71. However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient.  The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried"[79].  That was followed by a proposition which appears to reverse matters of onus[80]:

    "So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." (emphasis added)

    Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed.  They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

    [79][1975] AC 396 at 407.

    [80][1975] AC 396 at 408.

72. The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application[81].  The first consideration mentioned in Beecham, the nature of the rights asserted by the plaintiff, redirects attention to the present appeal.

    [81]See the judgment of McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535‑536 and the article by Sofronoff, "Interlocutory Injunctions Having Final Effect", (1987) 61 Australian Law Journal 341.

    Defamation and interlocutory injunctions

73. In Bonnard v Perryman[82], after explaining what was to be taken as the derivation from the 1854 Act of the modern jurisdiction to enjoin defamatory publications, Lord Coleridge CJ continued[83]:

    "But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong."

    His Lordship added[84]:

    "The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel.  Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions."

    It is apparent from these remarks that the English Court of Appeal in Bonnard was dealing with a defamation law where truth was an absolute defence, whereas under the 1957 Act s 15 required truth and public benefit[85].

    [82][1891] 2 Ch 269.

    [83][1891] 2 Ch 269 at 284.

    [84][1891] 2 Ch 269 at 284.

    [85]Section 25 of the 2005 Act creates a defence if the defendant proves that the defamatory imputations are "substantially true".

74. The Lord Chief Justice spoke in Bonnard expressly with reference to considerations attending the administration of interlocutory injunctive relief on a quia timet basis.  However, this was at a time when that remedy was in a state of development and before the modern formulations of general principle, exemplifed for Australia by Beecham.

75. One sequel was the production of a body of case law in Australia dealing with what was said in Bonnard as if interlocutory injunction applications in defamation actions occupy a field of their own and are somehow more than but one of the species of litigation to which the principles in Beecham apply.

76. The body of Australian case law itself does not follow a single pattern, as Kennedy J explained in Lovell v Lewandowski[86].  The judgment of Blow J (with whom Evans J agreed) in the Full Court in the present litigation distinguished between "rigid" and "flexible" rules of practice in this regard[87].  The former are associated with the decision of Walsh J in Stocker v McElhinney (No 2)[88].  His Honour there said that an interlocutory injunction would be granted in cases of defamation only if the judge were of the view that a subsequent jury verdict to the contrary would be set aside as unreasonable, and that an injunction would be refused:

    "[i]f, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff, if successful, will recover nominal damages only".

    [86][1987] WAR 81.

    [87][1987] WAR 81 at 90‑91.

    [88][1961] NSWR 1043 at 1048. See also Church of Scientology of California Incorporated v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349‑350; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199; and, in New Zealand, TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129 at 133.

77. Stocker was decided before the decision of this Court in Beecham.  It also was decided before the adoption in New South Wales of the Judicature system and in reliance upon the jurisdiction then found in the New South Wales equivalent of the provisions of the 1854 Act[89].

    [89]Common Law Procedure Act 1899 (NSW), ss 176‑179.

78. The second or "flexible" view of the exercise of the interlocutory injunction power in these cases is exemplified in Chappell v TCN Channel Nine Pty Ltd[90] and in cases following and applying it[91].  These cases rightly stress the application in this field of the general principles exemplified in Beecham.  However, they give rise to two difficulties.

    [90](1988) 14 NSWLR 153.

    [91]These include National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 and Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440.

79. The first difficulty is that the cases which advocate "flexibility" tend to give insufficient weight to the range of significant rights asserted on applications to restrain quia timet defamatory publications.  A plaintiff asserts interests in character and reputation, while the defendant may assert what are special considerations derived from 17th and 18th century events which have been regarded in Britain as part of its constitutional history[92].

    [92]For example, in the third edition of his work, Introduction to the Study of the Law of the Constitution, published in 1889, Dicey devoted Ch 6 to "The Right to Freedom of Discussion".

80. Two special (and related) considerations which underpinned the denial of jurisdiction in the Court of Chancery to enjoin publication of defamatory matter were identified by Lord Cottenham LC in Fleming v Newton[93].  He asked[94]:

    "how the exercise of such a jurisdiction can be reconciled with the trial of matters of libel and defamation by juries under the 55 Geo III, c 42, or indeed with the liberty of the press.  That act appoints a jury as the proper tribunal for trial of injuries to the person by libel or defamation; and the liberty of the press consists in the unrestricted right of publishing, subject to the responsibilities attached to the publication of libels, public or private."[95]

    The reference to "the liberty of the press" reflected the statement by Lord Mansfield in R v Shipley[96] that "[t]he liberty of the press consists in printing without any previous licence, subject to the consequences of law".  The statutory system of press licensing in England had lapsed in 1695 and 13 proposals over the next decade for its revival had come to nothing[97].  (The unsuccessful attempts by Governor Darling to institute a press licensing system are a landmark in the constitutional history of New South Wales[98].)

    [93](1848) 1 HLC 363 [9 ER 797].

    [94](1848) 1 HLC 363 at 376 [9 ER 797 at 803].

    [95]Fleming v Newton was an appeal from Scotland; hence the reference to the Jury Trials (Scotland) Act 1815 (UK), 55 Geo III c 42.  It is apparent that the Lord Chancellor was referring to the 1815 statute as it had been amended, in particular, by the Jury Trials (Scotland) Act 1819 (UK) (59 Geo III c 35).

    [96](1784) 4 Dougl 73 at 170 [99 ER 774 at 824]. The earlier writings to the same effect by Blackstone influenced the initial reading of the denial by the First Amendment to the Congress of power to legislate "abridging the freedom of speech, or of the press" as importing no more than a freedom from prior restraint: Story, Commentaries on the Constitution of the United States, (1833), vol 3, §§1874‑1879.

    [97]Deazley, On the Origin of the Right to Copy, (2004) at 1‑29.

    [98]Bennett, Sir Francis Forbes, (2001) at 83‑100.

276. This approach would depart from Bonnard v Perryman by treating applications for interlocutory injunctions against defamation in the same way as applications for interlocutory injunctions against any other wrong. 

277. Some support could be obtained for this approach from Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.  There Callinan J said, in discussing the judicial caution employed when considering whether to grant an interlocutory injunction against the impending publication of a defamation[402]:

     "The rationale offered for judicial caution is usually that free speech is precious beyond all other things ... To give all weight to ... free speech ... is to overlook, or to give insufficient weight to the continued hurt to a defamed person pending trial; the greater resources generally available to a defendant to contest proceedings; the attrition by interlocutory appeals to which a plaintiff may be subjected; the danger that by the time of vindication of the plaintiff's reputation by an award of damages not all of those who have read or heard of the defamation may have become aware of the verdict; the unreasonableness of requiring the plaintiff, in effect, at an interlocutory stage, unlike in other proceedings for an interlocutory injunction, to prove his or her case; and, the fact that rarely does a publication later, rather than earlier, do any disservice to the defendant or to the opportunity to debate the issues in an informed but not defamatory way, and therefore to free speech."

     [402](2001) 208 CLR 199 at 341 [351] (footnote omitted).

278. Many of these difficulties would be met if free speech were given no more than the weight which the law's recognition of defamation defences gives it, and the strength of those defences were assessed in the circumstances of particular applications for interlocutory injunctions. 

279. Free speech as independent but indeterminate factor.  Thirdly, the law could adopt an intermediate position.  It would be more favourable to the plaintiff than Bonnard v Perryman in departing from that case by abandoning or loosening the strict limits laid down in that case.  It would allow a degree of favour to the interests of defendants by giving free speech some role independently of the defences – thus departing in another respect from Bonnard v Perryman, which stresses the importance of free speech merely as the justification for the strictness of the limits stated, without giving it any independent role beyond the limits themselves.  On this approach, the question of free speech will be decisive in some cases but not others:  perhaps it will be determinative when all other factors are evenly balanced, perhaps it is a factor to be given greater weight than other factors; the test will be difficult to define, and it will be difficult to state specific propositions about how it should be applied. 

280. Conclusion.  If it were desirable and necessary to do so, the Court could consider whether Bonnard v Perryman should be departed from.  Many things would have to be taken into account.  The points made by Callinan J in the passage just quoted and elsewhere in the same judgment[403] would be relevant.  Another relevant question would be whether principles directed to tyrants, or at least to the Tudor, Stuart and Hanoverian monarchs, should control the modern law of Australia in its attempts to deal with defamatory statements by large corporations about ordinary citizens.  Attention could be given to the significance of changed social conditions – to the fact that the judges who decided the cases which culminated in Bonnard v Perryman had just finished living through an era when the leading political journalists were Robert Cecil and Walter Bagehot; the name of Harmsworth was unknown; there were no relatively cheap mass circulation newspapers operated by large publicly owned companies; and no radio or television outlets were operated by those companies and by the state.  Consideration could be given to whether those favoured children of equity should, in the light of past experience, become less favoured.  Have changes which have affected other groups in society passed the mass media by to some degree?  Was Baroness O'Neill of Bengarve right to say in the fifth of her Reith Lectures in 2002, under the title "License to Deceive", "The media ... while deeply preoccupied with others' untrustworthiness – have escaped demands for accountability"?[404]  Another question is whether she was also right to say[405]:  

     "We may use twenty-first century communication technologies, but we still cherish nineteenth century views of freedom of the press, above all those of John Stuart Mill.  The wonderful image of a free press speaking truth to power and that of investigative journalists as tribunes of the people belong to those more dangerous and heroic times.  In democracies the image is obsolescent:  journalists face little danger (except on overseas assignments) and the press do not risk being closed down.  On the contrary, the press has acquired unaccountable power that others cannot match."

     More particularly, attention would have to be given to whether the very narrow capacity of plaintiffs to obtain urgent relief against the publication of defamatory material should be widened in view of the fact, if it is a fact, that it is not only the scale and power of the media which has increased, but its penetration, its pervasiveness, and its capacity to do harm also.  Those who decided Bonnard v Perryman had lived through a time when there was no electronic media and no problem of cross-media ownership; the print organs were much more fragmented than now, were directed to a population with much lower literacy than now, were much less able to reach most of the adult population, and were much less able speedily to disseminate defamatory material.  In short, attention would have to be directed to whether in modern conditions the mass media are more able to inflict harm which is not also grave but irreparable, and if so, whether it ought to be less difficult for plaintiffs to obtain urgent interlocutory relief to prevent such harm.  These and other relevant matters have not been debated in argument.     

     [403]Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 299-309 [254]-[276].

     [404]O'Neill, A Question of Trust, (2002) at 89. 

     [405]O'Neill, A Question of Trust, (2002) at 92-93.

281. In this case it is not desirable to decide whether the law should depart from Bonnard v Perryman because it is not necessary to do so.  It is not necessary to consider whether the law should become less restrictive in its approach to the grant of interlocutory injunctions to restrain publication of defamatory matter because, subject to considering the five errors of principle summarised above, this case as seen by the primary judge falls within the areas in which Bonnard v Perryman permits an injunction to be granted.  There are clear imputations of a highly defamatory kind; it is unlikely that any defences will be established; it is unlikely that damages will be nominal.  Nor is it necessary to consider whether the law should depart from Bonnard v Perryman by becoming more restrictive:  the Corporation did not distinctly argue for this outcome.

     First error: conflation of "public benefit" and "public interest"?

282. The first error of principle for which the primary judge is criticised is that he conflated the requirement of "public benefit" in s 15 of the Defamation Act with the public interest in having free speech unfettered.  The existence of this error was contended for by the Corporation[406].  The Corporation also submitted that in the Full Court only Slicer J, but not the majority, dealt with the question whether this supposed error of the primary judge had taken place.   

     [406]See par [183] above.

283. That latter submission can be rejected at once.  In the Full Court the Corporation's submission was advanced in support of Ground 14 of its Notice of Appeal, which was as follows: 

     "The learned primary judge erred in treating his consideration of whether it was arguable for the purposes of section 15 of the Act that the publication of the imputations would be for the public benefit, as determinative of the more general question of public interest for the purposes of the grant of an interlocutory injunction restraining the publication of defamatory matter."

     The Full Court majority revealed a sound understanding of that ground in saying[407]:

     "The learned primary judge needed to consider whether it was arguable for the purposes of s 15 that the publication of the relevant imputations would be for the public benefit, and needed also to consider whether the effect of an injunction would be to restrain the discussion of matters of public interest or concern.  Those are two separate questions.  Ground 14 asserts that the learned primary judge erred by treating the question of public benefit in relation to s 15 as determinative of the more general question."

     [407]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82 at [80].

284. The Full Court majority then analysed the primary judge's reasoning as follows[408]:

     "The learned primary judge referred to the proposition that an interlocutory injunction will not usually be granted 'where such an injunction would restrain the discussion in the media of matters of public interest or concern' ^[[409]^]; then proceeded to consider the strength of a s 15 defence based on truth and public benefit, paying particular attention to the question of public benefit; expressed the view that, in general, it was not for the public benefit that the media should publicly allege that a person has committed crimes of which he or she has not been convicted, but that such allegations should usually be made to the public only as a result of charges and subsequent conviction; and concluded that a claim of 'public benefit' may well be unsuccessful^[[410]^].  He then returned to the more general question.  He said it followed from what he had been saying that he was unpersuaded that an interlocutory injunction would 'restrain the discussion in the media of matters of public interest'.  He said that he applied 'the law's use of the term "public interest"'^[[411]^].  He had earlier referred to a submission made by counsel for the appellant to the effect that the term 'public interest' in defamation statutes in other jurisdictions meant the same as 'public benefit' in the Defamation Act, s 15"[412].

     The Full Court majority concluded with the following summary[413]:

     "[His Honour] took into account the correct principles relating to the freedom of the press, took into account separately the prospects of a successful defence based upon truth and public benefit, and exercised his discretion in accordance with the appropriate principles.  He did not apply a wrong principle."

     Whatever else may be said of these passages, they do deal with the question whether the primary judge had wrongly conflated public benefit under s 15 with public interest.  The Corporation's submission that they did not is baseless. 

     [408]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82 at [81]. In the next four footnotes [nn 409-412], the particular paragraphs of the primary judge's reasons for judgment which the majority appear to have in mind are identified.

     [409]This is a reference to O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [24].

     [410]The preceding three clauses are references to O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [28].

     [411]These two sentences refer to O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [29].

     [412]This sentence is a reference to O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [24] and [26].

     [413]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82 at [82].

285. Further, the Full Court majority's summary of the primary judge's approach is correct.  The Full Court majority's conclusion that the primary judge maintained a separation between two questions – the question whether an injunction would restrain media discussion of "matters of public interest" and the question whether the "public benefit" element of the defence afforded by s 15 was likely to be made out – is supported by a specific statement in the primary judge's reasons for judgment.  He referred to an argument by counsel for the plaintiff that "matters of crime are quite obviously matters of public interest", and then said[414]:

     "[A]greeing that matters of crime are matters of public interest is a far cry from conceding that the public dissemination by the media of all matters relating to crime, or matters concerning crimes allegedly committed by the plaintiff, will be for the public benefit".

     [414]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [27] (emphasis added).

286. Hence, the Full Court majority reasons were correct to conclude that the primary judge did not conflate the two questions in the manner complained of in Ground 14 of its Notice of Appeal to the Full Court.  It is true that in a long passage discussing the availability of the s 15 defence, the primary judge four times used the phrase "public benefit" and twice used the phrase "public interest"[415].  It is also true that the primary judge appeared to suggest that it followed from that passage that he was not persuaded that the injunction would restrain media discussion of matters of public interest.  However, when his reasons for judgment are read as a whole, and allowances in relation to matters of the type just mentioned are made in view of the circumstances in which the reasons were composed, it is necessary respectfully to reject the view that the primary judge's reasoning was afflicted by the conceptual confusion alleged. 

     [415]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [28].

     Second error:  trial by media

287. The Corporation submitted that the primary judge erred in characterising the broadcasting of the film as trial by media and as treating the criminal process as the only proper context in which to ventilate matters of the kind which the Corporation wished to ventilate.  The issue cannot be described as irrelevant[416].  The primary judge's comments on trial by media are criticised by reference to various propositions which it is unnecessary to repeat.  If those propositions are to have a status greater than that of personal opinions based on common human experience, they would have to be supported by evidence, of which there is none.  So far as they are only personal opinions based on common human experience, it is necessary respectfully to register deep disagreement with them.

     [416]The Full Court of the Supreme Court of Victoria saw it as a possible issue in some cases in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 765.

288. It is curious that the Corporation, which put arguments depending heavily on the importance of leaving untested issues in relation to allegations of civil defamation to jury trial, did not acknowledge that there might be some importance in leaving untested issues in relation to allegations of criminal conduct to criminal jury trial.

     Third error:  the significance of free speech

289. Even if the primary judge did not confuse the s 15 issue with the issue of free speech, can it be said that he dealt properly with the free speech issue in other respects?[417]  He referred to a submission by the Corporation and the other defendants that "the power to grant an interlocutory injunction to restrain an allegedly defamatory publication should be exercised with great caution, only in very clear cases and usually not in cases where the defendant asserts that it has good defences"[418].  He said that counsel had referred, in support of that proposition, to Church of Scientology of California Inc v Reader's Digest Services Pty Ltd[419], Chappell v TCN Channel Nine Pty Ltd[420] and "a number of English cases".  He also said that the defendants placed particular reliance on a statement of Hunt J[421] that an interlocutory injunction would not usually be granted "where such an injunction would restrain the discussion in the media of matters of public interest or concern"[422].  He also said[423] that he was "unpersuaded that the granting of an interlocutory injunction restraining the defendants from publishing the imputations will 'restrain the discussion in the media of matters of public interest', as that expression was used by Hunt J[424] ...".  And he concluded by saying[425]:

     "Much was said at the hearing by counsel for the defendants about the need to uphold and protect the freedom of the press.  But like all freedoms, it is not an absolute one."

     [417]See n 244 above.

     [418]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [23].

     [419][1980] 1 NSWLR 344.

     [420](1988) 14 NSWLR 153.

     [421]Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 164.

     [422]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [24].

     [423]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [29].

     [424]Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 164.

     [425]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [36].

290. It is not to be presumed that the primary judge failed to pay attention to what counsel submitted to him, or to what the cases cited said.  The vital issue is whether he turned his mind to the correct question, not whether one agrees with his answer to the question.  He did have in mind the importance of media discussions of matters of public interest.  Indeed, in perhaps assuming that the need to uphold press freedom is a requirement additional to the limits stated in Bonnard v Perryman (as distinct from seeing it merely as a justification for them) the primary judge may have been unduly favourable to the Corporation.   

291. The Full Court majority itself noted the reluctance of the courts to grant interlocutory injunctions in defamation cases and the need to protect freedom of speech[426].  The Corporation tended to advance a submission that the Full Court majority wrongly rejected "the paramountcy of free speech" and failed to treat free speech as an "independent and overriding" factor.  But the law does not go so far as to place free speech on a pinnacle of irrefragable significance.  If it did, it would ban the grant of interlocutory injunctions against defamation in any circumstances, not merely in circumstances where there are doubts about the plaintiff's prospects at trial.  This ban would reflect the approach of Blackstone and Lord Denning MR.  But the law does not reflect this approach.  It permits the grant of interlocutory injunctions within the limits of Bonnard v Perryman, perhaps with local modifications.  In these circumstances the courts below did not err. 

     [426]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82 at [53].

292. The key question is:  what should the primary judge have done that he did not do?  Success for the Corporation on this point depends on concluding that the correct approach was taken by Slicer J and that the primary judge did not take it.  Slicer J quoted Hunt J in Church of Scientology of California Inc v Reader's Digest Services Pty Ltd, and reconciled that case with Hunt J's later decision in Chappell v TCN Channel Nine Pty Ltd by perceiving the latter to turn on a distinction "between matters internal or personal to the life of a citizen and those which are, by reason of public life, within the public domain"[427].  Blackstone, like Hunt J in Church of Scientology of California Inc v Reader's Digest Services Pty Ltd, suggests that the restraint of press discussion is not merely one factor to be weighed, but an absolute bar to injunctive relief.  Yet Slicer J rejected the existence of any absolute bar of this kind.  He quoted authority[428] holding that the public interest in free discussion of matters of public interest is something that only arises "when the balance of convenience comes to be weighed", and that "weighs heavily against the grant of an injunction"[429].  Slicer J did then say[430]:

     "Whilst I do not necessarily agree that the criteria of free discussion of matters of public general interest simply substitute a test of balance of convenience in favour of the intended publisher, the reasoning that it operates against the person claiming pre-publication restraint accords with my approach."

     [427]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82 at [30].

     [428]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82 at [32].

     [429]Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442 per Doyle CJ.

     [430]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82 at [33].

293. But later he agreed with the primary judge that "freedom of the press" is "not absolute" and said it is "not a trump card" but only "a compelling factor"[431]. 

     [431]Australian Broadcasting Corporation v O'Neill [2005] TASSC 82 at [9] and [38].

294. If Slicer J is correct, where did the primary judge err?  What was the respect in which Slicer J correctly took press freedom into account while the primary judge did not?  What was the aspect of Slicer J's reasoning which was decisively superior to that of the primary judge?  These are not questions which the Corporation answered.  To criticise the primary judge for not employing "exceptional caution" when he said that he was conscious of the need for "great caution"[432] is not a course which can be undertaken unless the Corporation has shown that this verbal distinction corresponds with any substantive difference.  This it did not do.  It has not been shown that the primary judge made the third error. 

     [432]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [23].

     Fourth error:  primary judge's analysis of plaintiff's case

295. Did the primary judge err in his method of analysing the strength of the plaintiff's case before moving to the balance of convenience?  Save for one brief passing reference, the primary judge did not touch on the application of "rigid" or "flexible" tests, and any error he made in that regard cannot be considered as determinative.  Rather, the primary judge's summary of the parties' submissions, and his comments on them, reveal that, in addition to bearing in mind the traditional reluctance of the courts to grant interlocutory injunctions against defamation except in clear cases because of the importance of media debate about matters of public interest, the principal steps in his reasoning were as follows.

296. First, he acted on the Corporation's admission that its film was capable of conveying imputations that the plaintiff was a suspect in the disappearance and murder of the Beaumont children, and was a multiple killer of children.  Secondly, he evidently thought that to say that the plaintiff was a suspect in the disappearance and murder of the Beaumont children was defamatory[433].  Thirdly, he also thought that to say that the plaintiff was a multiple killer of children was highly defamatory[434] (and therefore deeply injurious to the plaintiff).  Fourthly, he impliedly accepted that publication of the admitted imputations in the manner threatened by the Corporation might injure the plaintiff's reputation beyond the extent to which it had already been damaged by his conviction and by third party statements:  this damage was particularly likely in northern Tasmania[435].  Fifthly, the s 15 defence was unlikely to succeed because the Corporation's conduct, even if it dealt with matters of public interest, was not for the public benefit[436], and other defences referred to in argument (Defamation Act, s 14(1)(a), (d) and (h) and s 16 (1)(c), (e) and (h)) lacked merit[437].  Finally, the primary judge, in dealing with the adequacy of damages, found the suggestion that damages would only be nominal not to be persuasive[438].

     [433]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [20]-[21].

     [434]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [22].

     [435]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [20].

     [436]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [25] and [28].

     [437]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [30]-[31].

     [438]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [33].

297. Only the last proposition is controverted by the Corporation.  It will be dealt with below:  at this stage the point is simply that the primary judge did identify the question about whether damages might be nominal as a relevant one, even if minds may differ on the rightness of his answer to it.

298. The primary judge did not in terms direct attention to the practical consequences of the injunction.  This was not erroneous, because the injunction had no practical consequences of any significance beyond those flowing from its mere grant:  the interlocutory injunction did not, for example, finally dispose of the action.

299. It is true that the primary judge did not employ the precise language used in the submissions advanced to this Court. The question, however, is whether in substance he attended to the criteria which he was obliged to bear in mind.  The answer is that he did.  In substance he found a threat to repeat the publication of serious defamations – publication which was potentially very injurious to the plaintiff, in relation to which no defence could be established and which was capable of sounding in more than nominal damages.  To grant an interlocutory injunction in these circumstances does not suggest any error in principle.  The case as perceived by the primary judge can be described as very clear, and as one in which, even if a judge were to exercise great caution, an interlocutory injunction might be granted:  the absence of any viable defences removed any inhibition based on the fear of restraining lawful media discussion of matters of public interest. 

     Fifth error:  possibility of only nominal damages

300. The primary judge said that at the trial the court might "find against the plaintiff or award him only nominal damages, but those possibilities are not persuasive to me when resolving the appropriate outcome for the application"[439].  In the light of that passage it is necessary to reject the proposition that the primary judge failed to take account of the possibility that, if publication occurred and was found to involve actionable defamation, only nominal damages might be awarded.  It would also not be correct to hold that the Full Court majority failed to advert to the matter and failed to perceive that the primary judge had not taken account of the possibility that only nominal damages might be awarded.  In any event, these points were not taken in the Amended Notice of Appeal or in the Corporation's submissions. 

     [439]O'Neill v Australian Broadcasting Corporation [2005] TASSC 26 at [33].

301. Either the primary judge considered the nominal damages question, or he did not.  If he did not consider it, he erred in principle.  If he considered it (as he did), but came to a wrong factual conclusion, he erred in fact, but not in principle. 

302. It has not been demonstrated that the primary judge did err in fact.  It has not been demonstrated that he was wrong, for example, in identifying northern Tasmania as an area where the adverse publicity had not reached.  He habitually sat in northern Tasmania.  He resided there.  He was unaware of the publicity.  He was much better placed to assess the point than any other judge.   

303. Hence it has not been demonstrated why it would not be open to a jury to compensate the plaintiff for injury to reputation, and injury to feelings, despite the fact that he has been convicted of an odious crime and is serving a life sentence – for he remains a resident of this country, entitled to the protection of its law, which prides itself on assisting those who may have done much to make themselves hated.  Damages might be greatly affected by a matter which cannot now be assessed and on which no adverse prejudgment is to be made – the plaintiff's performance as a witness.  It would be for the jury to make a judgment of him as a man, and, to adopt one of Mr Davie's ideas, to estimate whether the man who once murdered is the same being as the man who is now suing.   The Corporation placed considerable reliance on the fact that the police have possession of a document which, the Corporation alleges, is a signed confession to another murder.  But that document is, with all respect to the police, the product of another era.  In 1975, when the confession was supposedly made, police practice, and to some extent the law, whispered the last enchantments of an age holding a view not now in favour.  The view was put thus by a Chief Constable of Greater Manchester[440]:

     "No machine should be allowed to get in between the suspect and his interrogator ...  It would break that essential rapport which a detective needs to elicit an admission of guilt legitimately."

     But attitudes have changed.  So, partly through legislative and partly though judicial means, has the law.  As a consequence, and as a sign, of "the persistent and continuing denigration of police evidence in this country"[441], majority decisions of this Court[442] have discounted to insignificance confessions which have not been recorded on videotape or audiotape where it was technically possible to do so.  In 1975 videotaping may well have been impossible for the Tasmanian police officers concerned, and perhaps audiotaping was too.  But the fact that the confession is not mechanically recorded is not its only defect.  The circumstances surrounding it are suspicious.  The confession occupies only eight typed pages, but it purports to be a verbatim record of questions and answers despite being the result of an interview which is said to have lasted three hours and 10 minutes.  This raises questions, however many allowances are made for slow thinking, slow speaking and slow typing.  Hence the "confession" is of a type which has fallen into discredit since 1975.  It is also a confession which the plaintiff contests.  It will not, at this stage of the proceedings, bear any useful weight. 

     [440]Mortimer, In Character, (1984) at 82.

     [441]R v Schaeffer (2005) 159 A Crim R 101 at 105 [12] per Ormiston JA.

     [442]See Nicholls v The Queen (2005) 219 CLR 196.

     Conclusion

304. It is thus necessary respectfully to disagree with the central arguments advanced to make good each of the five errors which are said to justify the allowing of the appeal.  It follows that the appeal should be dismissed.

     Orders

305. I agree with the orders proposed by Kirby J.