FEDERAL COURT OF AUSTRALIA

Leyonhjelm v Hanson-Young [2019] FCA 156

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 21 November 2018 be dismissed.

2.    The applicant for leave pay the costs of the respondent to the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an application for leave to appeal to the Full Court of this Court by the respondent in a defamation proceeding. To avoid confusion, I will refer to the moving party on this application by reference to his designation in the substantive proceeding, that is, as the respondent. The parties are Senators in the Australian Parliament. The trial of the proceeding has been listed to commence on 29 April 2019 with five days set aside.

2    The applicant in the proceeding complains of four publications which occurred in late June 2018 and early July 2018 which are said to give rise to two, or alternatively three, defamatory meanings as follows:

(a)    the Applicant is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them;

(b)    the Applicant had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists; and

(c)    the Applicant is a misandrist, in that she publicly claimed that all men are rapists.

For reasons which will become clear, the respondent contends that at least one aspect of these pleaded meanings is important because it involves an acceptance by the applicant that to claim that all men are rapists is an absurd claim.

3    The first of the four publications which occurred on 28 June 2018 is said to give rise to the first two defamatory meanings, and the second, third and fourth publications on 1 July 2018 (2) and 2 July 2018 respectively, are said to give rise to all three defamatory meanings.

4    A matter of significance on this application is the way in which the applicant pleads her case in her Statement of Claim. The applicant pleads that the matters complained of are defamatory of her and then she sets out the defamatory meanings under the heading of “Particulars of Meaning”. One of the respondent’s arguments raised below and again on the application for leave is that the defamatory meanings are material facts and not particulars and should be pleaded as such.

5    The respondent has filed a Defence in which he makes a number of allegations, including an allegation in the course of a plea of justification (statutory), that the applicant made a claim, in the course of Parliamentary debates on 28 June 2018, “which was tantamount to a claim that all men are responsible for sexual assault or that all men are rapists”. The respondent also pleads that the matters sued upon cannot be the subject of adjudication by the Court without impeaching or questioning the freedom of speech and debates or proceedings in the Australian Senate.

6    The plea appears under the heading, “Parliamentary Privilege” and is in full as follows:

19.    The matters set forth in paragraph 20 of this pleading apply because, and insofar as, the matters sued upon comprise either:

(a)    a repetition of statements made by the Applicant or the Respondent in the course of debates in the Australian Senate; or

(b)    responses to the repetition of statements made by the Applicant or the Respondent in the course of debates in the Australian Senate; or

(c)    comments upon statements made by the Applicant or the Respondent in the course of debates in the Australian Senate.

20.    The matters sued upon cannot be the subject of adjudication by this Honourable Court without impeaching or questioning the freedom of speech and debates or proceedings in the Australian Senate.

21.    Without limiting the generality of paragraphs 19 and 20 of this pleading, this Honourable Court cannot, without impeaching or questioning the freedom of speech and debates or proceedings in the Australian Senate, adjudicate upon:

(a)    whether the Applicant made a claim in the Australian Senate which is, or which is tantamount to, a claim that all men are responsible for sexual assault or that all men are rapists;

(b)    whether such a claim, if made by the Applicant in the Australian Senate, was absurd;

(c)    whether such a claim, if made by the Applicant in the Australian Senate, exposed the Applicant as a hypocrite; and

(d)    whether such a claim, if made by the Applicant in the Australian Senate, exposed the Applicant as a misandrist.

7    The respondent made an interlocutory application in the proceeding wherein he sought orders striking out the Statement of Claim under r 16.21 of the Federal Court Rules 2011 (Cth) and an order for a stay or dismissal of the proceeding by reason of the operation of s 16 of the Parliamentary Privileges Act 1987 (Cth).

8    The primary judge dismissed the application (Hanson-Young v Leyonhjelm [2018] FCA 1688). It is in respect of that order, that leave to appeal is sought.

The Application for leave to appeal

9    There are 11 grounds in the respondent’s Application for Leave to Appeal. It is convenient to divide the grounds into three categories as follows:

(1)    Three grounds relate to the pleading of the defamatory meanings as particulars, rather than as material facts (Grounds 1 – 3)

(2)    Three other grounds relate to alleged deficiencies in the Statement of Claim (Grounds 4 – 6); and

(3)    Five grounds relate to s 16 of the Parliamentary Privileges Act (Grounds 7 – 11).

10    I formed the provisional view that the application for leave should be dealt with by a single judge and I set the application down for argument before me with liberty to the parties to argue that it should be referred to the Full Court. I have heard submissions and neither party argued that the application should be referred to the Full Court.

11    Before the hearing, I made an order that the parties file written submissions limited to six pages. The respondent’s written submissions were limited to Grounds 7 – 11 (i.e. category 3). In addition to making oral submissions in support of those grounds, he made short oral submissions in support of Grounds 1 – 3 (i.e., category 1). No submissions were made by the respondent, either in writing or orally, in support of Grounds 4 – 6 (i.e., category 2) and leave to appeal is refused in relation to those grounds.

Analysis

12    The test for a grant of leave to appeal is well-established and involves a consideration of two matters. They are whether sufficient doubt attends the decision to warrant a grant of leave and whether substantial injustice will be caused to the unsuccessful party should leave be refused and the decision be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). The respondent submitted that leave to appeal may be granted even where those criteria are not met. He gave as an example a case where the proposed appeal involves a question of law of public importance. This argument was never developed in any detail. Even accepting that there might be a case where the public interest is so strong as to outweigh all other considerations, this is not such a case. The respondent conceded that an application for leave to appeal is at its weakest where the subject matter of the proposed appeal is a matter of practice and procedure (Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170). However, he contends that his grounds relating to the Parliamentary Privileges Act relate to substantive rights because, if they succeed, that will lead to a stay or dismissal of the proceeding.

Material Facts Pleaded as Particulars (Grounds 1 – 3)

13    Grounds 1 – 3 are as follows:

1.    The trial judge erred in law in ruling upon whether the matters set forth throughout the amended statement of claim under the heading “Particulars of Meaning”, and purporting to be defamatory meanings of material published by the applicant, are material facts rather than particulars within the meaning of r.16.41 of the Federal Court Rules 2011 (Cth).

2.    His Honour further erred in law in ruling (or alternatively in proceeding on the basis) that:

a.    in practice, the distinction between the pleading of material facts and imputations is blurred; and

b.    provided that the relevant party is sufficiently apprised of the case against him, pleadings will not be invalid on the basis that matters necessary to establish the cause of action (or which would take the relevant party by surprise) are set forth as particulars rather than pleaded as material facts.

3.    His Honour thereby erred in law in declining to rule that no defamatory meanings are pleaded in the amended statement of claim.

14    The primary judge said that although the Federal Court Rules maintain the distinction between material facts and particulars, the respondent’s complaint was one of form not substance. The only deficiency in the pleading of imputations was that they are under a heading which appears to identify them as particulars. His Honour went on to construe the pleading in a way which led him to the conclusion that the defamatory imputations were, in fact, pleaded as material facts. His Honour said (at [19]–[21]):

I also consider that the Respondent’s submission proceeds on a misapprehension. It assumes that the Applicant uses the term “Particulars of Meaning” to refer to particulars of the kind to which r 16.41 refer. In my view, that is not an appropriate understanding of the pleading.

Instead, in context the term “Particulars of Meaning” is a sub-heading, serving to indicate the nature of the content which follows. That content is a pleading of material facts, and not a pleading of particulars “fleshing out” material facts.

The ASC would have the same meaning and effect if the heading “Particulars of Meaning” was not used. It would then be obvious that the meanings alleged in the subparagraphs to [2] (and its counterparts with respect to the other matters complained of) constitutes a pleading of material facts. That this is the intended effect of the content appearing under the heading “Particulars of Meaning” is indicated by the allegation in [2] (and its counterparts) that the matter complained of carried the following defamatory meanings. In this way, the so-called particulars are incorporated into the pleading of the material facts concerning the defamatory meaning alleged.

15    On the application for leave, the applicant submitted as an alternative to the approach adopted by the primary judge, that because of the definitions in the Defamation Act 2005 (NSW), defamatory imputations were not material facts. I do not need to consider that argument. I do not think that there is sufficient doubt about the primary judge’s decision to warrant a grant of leave to appeal. Furthermore, I cannot see that any injustice, let alone substantial injustice, will be caused to the respondent if leave to appeal is refused, even if the decision of the primary judge is wrong. The respondent’s ability to conduct his case is unaffected.

16    I refuse to grant leave to appeal with respect to Grounds 1 – 3.

Section 16 of the Parliamentary Privileges Act (Grounds 7 – 11)

17    Grounds 7 – 11 are as follows:

7.    His Honour erred in law in ruling that s.16 of the Parliamentary Privileges Act 1987 (Cth) (Privileges Act) will not be apposite to the present proceeding unless the evidence at trial proves that words spoken by the respondent during a parliamentary debate in the Australian Senate were as alleged by the applicant.

8.    His Honour thereby erred in law in not dismissing the proceeding on the ground that the respondent:

a.    by her pleadings seeks to impeach or question the freedom of speech and debates or proceedings in parliament in a court or place out of parliament;

  b.    is in contempt of the Australian Senate; and

  c.    is in breach of the Privileges Act.

9.    Further and alternatively, his Honour erred in law, or else allowed his discretion to miscarry, in not staying permanently the proceeding on the basis that it is an abuse of process in that the applicant:

a.    in order to resist the respondent’s claim on the grounds of justification, impermissibly must ask the court to impeach or question the freedom of speech and debates or proceedings in parliament in a court or place out of parliament; and

b.    accordingly is denied his capacity to resist the respondent’s claim on the grounds of justification.

10.    It is desirable for the foregoing matters be addressed by an appellate court immediately, because their determination at the present point in time will (assuming they are determined in the applicant’s favour) dispose of the proceeding at an early stage and save the parties considerable expense.

11.    Further, if the matters surrounding parliamentary privilege are not addressed on appeal at the present point in time:

  a.    the applicant will face an invidious choice between:

i.    leading evidence and making submissions about comments which he recalls that the respondent made in the Australian Senate, and thereby risk infringing parliamentary privilege and placing himself in contempt of parliament; and

ii.    refraining from putting on such evidence and making such submissions, and thereby placing himself, perhaps unnecessarily, at a significant disadvantage in the proceeding by depriving himself of the defence of justification; and

b.    the respondent, who maintains that her case will not place her at risk of infringing parliamentary privilege, will infringe (or infringe further) parliamentary privilege and place herself (or place herself further) in contempt of parliament in the event that she is mistaken in this position.

18    Section 49 of the Australian Constitution has the effect that art 9 of the Bill of Rights 1688 applies to the Commonwealth Parliament. Article 9 provides that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Section 16 of the Parliamentary Privileges Act is declaratory of the effect of art 9 and it provides, relevantly:

16 Parliamentary privilege in court proceedings

(1)    For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)    For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a)    the giving of evidence before a House or a committee, and evidence so given;

(b)    the presentation or submission of a document to a House or a committee;

(c)    the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d)    the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3)    In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)    questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)    otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)    drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

…

19    As I understood the respondent’s argument, he does not submit that merely because evidence is led or is to be led as to what was said in Parliament there is an infringement of s 16 of the Parliamentary Privileges Act. He acknowledged that the Court may receive evidence concerning Parliamentary proceedings for the purposes of determining whether parliamentary privilege applies. His argument is that, in the particular circumstances of this case, parliamentary privilege will be infringed by evidence about what the applicant is alleged to have said in Parliament. The argument was that the primary judge erred in “separating out” the issue of whether something was said in Parliament and the inferences or conclusions that might be drawn from what was said. The two are inextricably linked, according to the respondent, because if the words were said, then necessarily, so it was contended, the imputations were true or substantially true. Put another way, the respondent’s submission is as follows: (1) merely giving evidence of what was said in Parliament is not a breach of s 16 of the Parliamentary Privileges Act if the alleged statement is innocuous; and (2) the alleged statement here is not innocuous and a mere finding that the statement was made “besmirches” the applicant’s reputation because of its nature and because it besmirches the applicant’s character it infringes s 16 of the Parliamentary Privileges Act. The difficulty is compounded, so the respondent contends, by the applicant’s plea of malice in the Reply alleging that the respondent knew that his assertion that the applicant said that all men are rapists was false.

20    The primary judge referred to his decision in Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 and, in particular, his observations about the effect of s 16 of the Parliament Privileges Act as follows (at [10]–[13]):

As can be seen, s 16(1) is declaratory as to the effect of Art 9 of the Bill of Rights in relation to the Australian Parliament but specifies that, in addition to any other operation which Art 9 may have, it includes those in the following subsections in s 16. The consequence is that s 16 is not to be regarded as limited in its scope to the operation of Art 9. On the contrary, s 16(1) is an express indication that the Parliament contemplated that s 16 may have an operation which is additional to that of Art 9: Rann v Olsen [2000] SASC 83, (2000) 76 SASR 450 at [53], [100] (Doyle CJ, with whom Mullighan J agreed), [236]-[245] (Perry J), [393] (Lander J); R v Theophanous [2003] VSCA 78, (2003) 141 A Crim R 216 at [66].

Section 16(3) has the effect of making it unlawful for evidence to be tendered or received in a Court or for questions to be asked, or statements, submissions or comments made, concerning “proceedings in Parliament” for specified purposes. Subsection (2) defines in an inclusive manner the term “proceedings in Parliament”. At its base, the term means “all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House” of the Parliament. However, “proceedings in Parliament” also include “the presentation or submission of a document to a House”, and the “preparation of a document for purposes of or incidental to the transacting of any … business” of a House of Parliament.

Counsel for the Respondents emphasised the principle of “non-intervention” which underpins s 16. The privilege is not concerned simply with protecting parliamentarians from legal action but is intended to ensure that parliamentarians and others can engage in the parliamentary process without concern that those actions may be subject to later scrutiny by the courts: Prebble v Television New Zealand Limited [1995] 1 AC 321 at 334B. The privilege also operates to avoid conflicts between Parliament and the courts: Halden v Marks (1995) 17 WAR 447 at 463. It has been said that provisions such as Art 9 and s 16 reflect a broader principle pursuant to which courts and the Parliament are “astute to recognise their respective constitutional roles”: Prebble at 332D, 335G; Rann v Olsen at [116]-[122], [171]-[172], [242]-[244]; Theophanous at [66]; Halden v Marks at 462.

The Respondents acknowledged that the privilege may produce consequences which are regarded as unfair in court proceedings. So much has been recognised in a number of the authorities: Prebble at 336G; Rann v Olsen at [125], [190]. The responsibility for addressing such circumstances is said to lie with the Parliament itself: Halden v Marks at 463; Crane v Gething [2000] FCA 45, (2000) 97 FCR 9 at [49].

21    The primary judge said that the Full Court did not suggest that any of those observations were incorrect (Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86) and nor did the parties before him suggest that the observations were incorrect.

22    The respondent submitted to the primary judge that in the Court’s consideration of whether the matters complained of are defamatory of the applicant, the Court will be required to hear submissions and make a decision about how ordinary reasonable readers would respond to a statement spoken in Parliament, that all men are rapists. The respondent further submitted that he will not be able to pursue his defence of justification because that would infringe s 16(3) of the Parliamentary Privileges Act. The inability to pursue an otherwise available defence is an abuse of process which warrants a stay or summary dismissal of the applicant’s proceeding.

23    The primary judge said that s 16(3) of the Parliamentary Privileges Act did not warrant the summary dismissal or stay of the proceedings, “at least at this stage” (emphasis added).

24    The primary judge then identified two matters: there is an issue as to whether the particular words on which the respondent relies were said in the Senate; and that it was common ground that the Court may receive and consider evidence concerning what was said in the Senate for the purposes of determining whether a matter did form part of “proceedings in Parliament” within s 16(2) of the Parliamentary Privileges Act (Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 (Egan v Willis) at [27]; Halden v Marks (1995) 17 WAR 447 at 463; Amann Aviation Pty Ltd v Commonwealth of Australia [1998] FCA 24; (1988) 19 FCR 223 at 231).

25    The primary judge then said (at [56]–[58]):

For this reason alone, it would be inappropriate to dismiss or stay the proceedings. If the factual issue as to what was said in the Senate on 28 June 2018 is resolved adversely to the Respondent, s 16 will have no application. That is because s 16(3) protects “proceedings in Parliament”, as defined in s 16(2). It does not protect words not spoken and nor acts not done in the course of, or for the purposes of or incidental to, the transacting of the business of the Senate. That is so even when a person genuinely, but erroneously, thinks that the words were spoken or the acts were done in the course of the business of the Senate.

It may be necessary at some stage in these proceedings to consider the application of the PP Act in the event it be found that the Applicant did make the statement in the Senate which the Respondent attributes to her. This may involve consideration of some of the difficult issues addressed in Rann v Olsen [2000] SASC 83; (2000) 76 SASR 480.

In my opinion, it is unnecessary and inappropriate to do so at this stage. First, for the reasons already given, the determination of the issue cannot lead to the stay or striking out of the proceedings now. Secondly, it may turn out to be hypothetical. Thirdly, it would in any event be preferable for the parties to file and serve their affidavit evidence so that the Court may have a more detailed appreciation of the evidence each wishes to lead at trial.

26    In my opinion, leave to appeal with respect to Grounds 7 – 11 should be refused. It seems to me that insufficient doubt attends the primary judge’s conclusion that it is part of the Court’s jurisdiction to determine if parliamentary privilege is engaged and to do that the Court must determine whether the words were said in proceedings in Parliament. It would seem clear from the authorities that it is for the Court to judge of the existence of the privilege (Egan v Willis at [27]). I recognise that this is a complex and difficult area, but it would be surprising if the proceeding was dismissed without any determination of whether the words were said. Even if that be wrong, there is an even more compelling reason to refuse leave and that is that the primary judge said, as I read his reasons, that at the very least, all the evidence should be filed before the point is considered. That was not the case at the time of the primary judge’s decision. If I may say, the primary judge’s approach seems an entirely reasonable and sensible course to adopt and does not involve a point suitable for leave. There is no substantial injustice to the respondent if leave is refused, assuming the decision to be wrong. In the circumstances, the fact that he must be ready for trial is not substantial injustice.

Conclusion

27    The application for leave to appeal is dismissed with costs.

Associate:    

Dated:    19 February 2019