Australian Broadcasting Corporation v O'Neill

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Crennan J,Gummow,Hayne JJ,Kirby J,Heydon J
• Judgment Date: 28 September 2006
• Neutral Citation: [2006] HCA 46,2006-0928 HCA A
• Court: High Court
• Docket Number: H1/2006
• Date: 28 September 2006

[2006] HCA 46

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ

H1/2006

Australian Broadcasting Corporation

Appellant

and

James Ryan O'Neill

Respondent

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)

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.

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.

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.

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.

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 Ltd2. 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.

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...