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Kesby, Alison --- "Notes Mann v O'Neill: Absolute Privilege in the Law of Defamation" [1998] SydLawRw 20; (1998) 20 (3) Sydney Law Review 473

Mann v O’Neill: Absolute Privilege in the Law of Defamation

ALISON KESBY[*]

1. Introduction

The balancing of competing rights and interests is inherent in our common law system. In defamation law, this conflict takes the form of the competing interests of individuals in the protection of their reputation and of the public in the freedom of expression. Yet on certain privileged occasions, the law of defamation denies individuals the right to bring an action to vindicate their reputation and grants a defendant absolute immunity from suit. This absolute immunity, known as the defence of absolute privilege, operates regardless of the defendant’s motives and is distinguished from qualified privilege, which is limited to a particular purpose and reliant upon the absence of malice. Due to the extreme ramifications of the denial of a remedy to an aggrieved party, the expansion of the defence of absolute privilege has traditionally been zealously guarded against by the courts. In the recent High Court decision of Mann v O’Neill,[1] an attempt to expand the application of the defence of absolute privilege beyond established categories was quashed. The case is important for its examination of the underlying rationale, role and scope of the defence of absolute privilege, and for its analysis of broader issues of the role and appropriate behaviour of judges in a representative democracy.

2. The Facts

Briefly stated, Mann v O’Neill dealt with the issue of whether a former litigant before a special magistrate could rely on a defence of absolute privilege to a defamation action brought by the special magistrate in circumstances where the alleged defamatory statements referred to the magistrate’s conduct in office.

The proceedings in issue concerned the respondent, Mr O’Neill, a former special magistrate of the Small Claims Court of the Australian Capital Territory, and the appellant, Dr Mann, a medical practitioner. Dr Mann had been the defendant in two actions before Mr O’Neill in the Small Claims Court. In the first, Dr Mann was unsuccessful in both his application to have a claim of medical negligence struck out, and subsequently to have the matter transferred to the Magistrates Court, where, in contrast to the Small Claims Court, an award of costs could be made. In an action before another magistrate, Dr Mann successfully defended the claim. However, the second action before Mr O’Neill, Purdon & Associates Pty Ltd v Mann, concerning Dr Mann’s failure to pay a debt owed to the plaintiff, resulted in judgement being entered against Dr Mann. Following judgment in this second action, Dr Mann wrote to the Attorney-General of the Commonwealth,[2] criticising Mr O’Neill’s conduct during the above actions, his “inability to comprehend simple propositions put before him and his irritability”,[3] and concluded that “features of early senile dementia [were] present in Mr O’Neill’s conduct to the extent that he [was] incapable of conducting a court in a proper and rational manner”.[4] Furthermore, Dr Mann requested in the letter that the matter of Purdon and Associates Pty Ltd v Mann be reheard. Similar correspondence was entered into with the Commonwealth Minister for Justice[5] and the Chief Magistrate of the ACT.

Mr O’Neill brought defamation proceedings in the Supreme Court of the ACT seeking damages in relation to the letter to the Attorney-General and later amended the claim to include the further letters to the Minister for Justice and the Chief Magistrate. In response to all three letters, Dr Mann pleaded that, inter alia, “the matter complained of was published on an occasion of absolute privilege”.[6] It is important to note that all subsequent proceedings, including those before the High Court, were conducted on the premise that were absolute privilege to attach to the letter to the Attorney-General, that privilege would extend to the letters to the Minister for Justice and the Chief Magistrate.

On the transferral of the proceedings from the Supreme Court of the ACT to the Federal Court under the cross-vesting legislation, a motion to strike out Dr Mann’s plea of absolute privilege was dismissed by Heerey J,[7] and judgment in the action entered for Dr Mann. By majority (Beaumont and Ryan JJ, Carr J dissenting) it was held on appeal to the Full Federal Court[8] that the orders of Heerey J be set aside, and the plea of absolute privilege struck out. Dr Mann subsequently appealed to the High Court. Two principal arguments, which attempted to bring the case within the established categories of absolute privilege, were relied upon by the appellant. Firstly, that the letter was part of the judicial proceedings of Purdon & Associates Pty Ltd v Mann, and in advocating a rehearing of those proceedings was analogous to a notice of appeal. Secondly, in the alternative, the letter constituted an initiating process for the removal of a judicial officer so as to be analogous to a quasi-judicial proceeding. Kirby and McHugh JJ identified a third issue of broad policy as to whether absolute immunity should per se be given to complaints concerning judicial officers to proper authorities. This broader issue of public policy was subsumed by the other judges into their analysis of the first two issues.

With McHugh J dissenting, Brennan CJ, Dawson, Toohey and Gaudron JJ forming a joint judgment, and Gummow and Kirby JJ each writing separate judgments, the High Court denied Dr Mann the protection of absolute privilege, holding qualified privilege sufficient in the circumstances. Interestingly, the High Court was unanimous in its rejection of the letters’ ability to come within established categories of absolute privilege. Rather, the decision turned on divergent views of public policy and of the rationale underlying absolute privilege.

3. Background to the Case: Established Categories of Absolute Privilege

Before proceeding to an analysis of Mann v O’Neill, it is useful to examine the established categories of absolute privilege, and the general principles and policies of the law in this area. Establishing these principles and policies serves to illustrate that the importance of Mann v O’Neill lies not in any challenge to established principles, but in its examination of the rationale underlying these principles. As identified by Tobin and Sexton,[9] and reiterated in Mann v O’Neill,10 there are three broad common law categories of absolute privilege: statements made in the course of judicial or quasi-judicial proceedings; statements made in the course of parliamentary proceedings; and communications concerning matters of state. It is the first category which is relevant to the facts of Mann v O’Neill.

A. Statements in the Course of Judicial and Quasi-judicial Proceedings

Traditionally, absolute privilege has been limited to proceedings of a judicial or quasi-judicial nature, and incidental activities. Therefore, Lord Devlin stated in Lincoln v Daniels[11] that the privilege attaches to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, with such protection extending to the contents of documents submitted as evidence. In this regard, it is said that words “spoken in office ... in the course of any proceedings before any court recognised by law ... though the words were written or spoken maliciously, without any justification or excuse, and from personal ill-will or anger against the party defamed”[12] are not subject to an action in defamation. Secondly, absolute privilege extends to everything that is done from the inception of the proceedings onwards, and includes all pleadings and other documents brought into existence for the purpose of the proceedings.

B. Defining “Quasi-judicial Proceedings”

Quasi-judicial proceedings are said to be those proceedings “recognised by law”.[13] Whilst cases such as O’Connor v Waldron[14] illustrate that proceedings before a tribunal which “has similar attributes to a court of justice or acts in a manner similar to that in which such courts act”[15] will enjoy absolute privilege, the line between bodies which do and do not exercise quasi-judicial functions is “not capable of very precise limitation”.[16] However, assistance can be derived from the four issues identified by Lord Diplock in Trapp v Mackie.[17] Firstly, the authority under which the body operates must be recognised and authorised by law, but not necessarily established by statute.[18] Secondly, the nature of the question into which the body is to inquire must be in the nature of a lis inter partes;[19] that is, the decision must affect the status and the rights of the parties.[20] Thirdly, the procedure adopted by the body must be examined. Although no single factor is decisive, it is for example relevant whether the body has the power to compel witnesses and the proceedings are conducted in public.[21] Fourthly and finally, the body’s decision must have legal consequences. Although a tribunal’s role may be limited to the provision of an advisory report, and therefore fail to be immediately binding, the proceedings will still be of a quasi-judicial nature, if they are “an essential step towards an effective decision”.[22] However, a preliminary investigation, for example to a prosecuting authority, would not qualify, as it is uncertain whether proceedings culminating in an authoritative decision would ever be commenced.[23]

C. The Traditional Rationale for the Grant of Absolute Privilege in the Context of Judicial and Quasi-judicial Proceedings

The traditional rationale for absolute privilege centres on the nature of proceedings of judicial and quasi-judicial bodies. Though unified in this regard, the cases differ in their emphasis of the motivating factor for the grant of immunity to such proceedings. On the one hand, the rationale for absolute privilege is said to lie in ensuring “the effective performance of judicial, legislative or official functions”.[24] That is, it is seen to be essential for the efficient functioning of the proceedings involved, that absolute privilege be granted. Necessity underlies the defence, with the application of the defence of absolute privilege ending, and qualified privilege beginning, “where [the necessity of the former] ceases to be evident”.[25] On the other hand, “public policy” is propounded as the underlying rationale for absolute privilege. In Lincoln v Daniels, Devlin LJ asserts “it is public policy that justifies absolute privilege”.[26] Although differing in emphasis, it can be argued that factors of “necessity”, functional efficacy and public policy are interrelated. For example, Lord Wilberforce argues that absolute privilege is granted to the statements of witnesses in court “in order that they give their evidence fearlessly and to avoid a multiplicity of actions in which the value or the truth of their evidence would be tried over again”.[27] Not only is the effective functioning of the court or tribunal thereby served, but so also is the public interest in the advancement of the administration of justice. In both approaches, it is the proceedings themselves and the necessity or the public interests stemming therefrom, which warrant the privilege.

Yet judicial comments challenging the constraints of the traditional rationale for absolute privilege and advocating a broader view of the defence, which is not reliant upon the existence of judicial or quasi-judicial proceedings, have emerged in recent cases. In Hercules v Phease, Marks J propounds the expansion of the underlying “public policy” of absolute privilege from mere “functional necessity” to that which is “fundamental to peace, order and good government in a modern democratic society”;[28] that is, which is based on the functioning of government in general, rather than being restricted to judicial or quasi judicial proceedings. Such an approach is echoed by Deane J in Theophanous v Herald & Weekly Times Ltd.[29] It is in Mann v O’Neill that the tension between functional necessity and broader issues of public policy comes to the fore.

4. The Decision

There are two central aspects of the High Court’s decision in Mann v O’Neill. Firstly, the Court’s reasoning as to whether the facts of the case came within the established category of judicial or quasi-judicial proceedings; and secondly, the Court’s examination of the underlying rationale of absolute privilege and whether public policy considerations required absolute privilege to be extended to circumstances such as those in Mann v O’Neill.

By firstly analysing the Court’s examination of established principles relating to judicial and quasi-judicial proceedings it will be seen that the Court’s reasoning does not diverge from the principles delineated in point three above. Thus, the case will be shown to centre upon policy considerations, to which the analysis will then turn.

As was noted above, in attempting to establish that the facts of the case came within the established category of judicial or quasi-judicial proceedings, the appellant pleaded two arguments. Firstly, that the letter to the Attorney-General was part of the proceedings in Purdon &Associates Pty Ltd v Mann and analogous to a notice of appeal; and secondly that the letter was an initiating process for the removal of a judicial officer so as to be analogous to quasi-judicial proceedings. These two arguments will be examined in turn below.

A. The Appellant’s Argument that the Letter to the Attorney-General was Part of the Proceedings in Purdon & Associates Pty Ltd v Mann and Analogous to a Notice of Appeal

This ground of appeal was quickly dismissed by all judges of the High Court. Their approach was in line with the established principles discussed above.

Brennan CJ, Dawson, Toohey and Gaudron JJ held that “neither in substance nor in form [did] the letter to the Attorney-General display the features of a notice of appeal”.[30] Relevant factors considered by the justices included the letter’s failure to address a court, that it did not seek to initiate an appeal and could not be held to be analogous to an appeal, as the Attorney General did not have the power to rehear a matter which already had been judicially determined.[31]

Gummow,[32] each emphasised that Dr Mann’s letter was not “spoken in office”, which as shown by the above discussion of Lincoln v Daniels, is an essential consideration. On sending the letter, Dr Mann was no longer a party to the litigation, as the litigation had concluded. His status was merely that of a former party. The letter did not follow any recognised procedure relating to Purdon & Associates Pty Ltd v Mann, nor could it open any avenue for appeal or provide a rehearing.[35]

B. The Appellant’s Argument that the Letter was an Initiating Process for the Removal of a Judicial Officer so as to be Analogous to Quasi-judicial Proceedings

Once again the appellant’s argument was rejected by the High Court, with however slightly different approaches being taken in the separate judgments.

In their joint judgment, Brennan CJ, Dawson, Toohey and Gaudron JJ examined issues relating to complaints which may give rise to disciplinary proceedings of a quasi-judicial nature. Such circumstances were said to raise two issues. Firstly, whether a communication is a complaint for the purpose of the disciplinary proceedings, and secondly, in cases where disciplinary proceedings will not automatically follow, whether the complaint is a step in those proceedings.[36]

However, no such proceedings could be identified here. Mr O’Neill was a special magistrate appointed pursuant to the Magistrates Court Ordinance 1930 (ACT). Section 10J of the Ordinance stipulated that special magistrates were to hold office “during the pleasure of the Governor-General”. Unlike section 10D, which specified procedures for the removal of other magistrates, no procedures were identified in the Ordinance for the removal of special magistrates. As neither statutory procedures, nor established procedures for dealing with complaints such as those of Dr Mann existed, the letter could not constitute the first step in any proceedings, let alone in disciplinary proceedings of a quasi-judicial nature, and absolute privilege was thereby not attracted. Essentially, Dr Mann’s letter formed an investigative function, such as that of a prosecuting authority, to which, as was noted above, only qualified privilege could apply.[37]

In this regard, Hercules v Phease,[38] a case in which proceedings of the Disciplinary Committee of the Law Institute of Victoria were held to be absolutely privileged, was distinguished by the entire High Court. In Hercules v Phease, though it was uncertain whether disciplinary proceedings would in fact arise, the complaint was part of a procedure specified by statute, and which had to be set in motion in order for disciplinary proceedings to eventuate.[39] No such procedure could be identified in Mann v O’Neill. The reasoning of the joint judgment is useful in elucidating issues to be examined when determining whether a body is of a quasi-judicial nature, yet is merely a re-expression of the established principles examined above. Gummow J applies similar reasoning to that of the joint judgment.

Interestingly, McHugh J adopted a slightly different approach. He was willing to argue that a “putative investigative body”[40] might be established as a result of the letter. In his opinion, Dr Mann’s letter of complaint could constitute an initiating document. As the Ordinance failed to establish any set procedures, in such circumstances, letters to representative law ministers would be the most direct and obvious means of redress.[41] However, McHugh J held the “putative investigative body” not to be recognised by law. Here, unlike in Hercules v Phease, there was no statute or other evidence regarding the putative tribunal, and no proof that its procedures would “track”[42] those of a court, which as was seen in the discussion of Trapp v Mackie above, is a necessary requirement. Quasi-judicial proceedings were not identified and therefore absolute privilege denied. Similarly, Kirby J distinguished the present facts from those in Hercules v Phease, however he believed this second argument of the appellant to be the “most powerful” of all proposals tendered.[43] Ultimately, however, Kirby J decided the issue on grounds of public policy, which will be examined in the discussion below.

5. Public Policy

Despite the appellant’s failure to bring the letters within the established categories of absolute privilege, were there policy reasons for granting absolute privilege in the circumstances of Mann v O’Neill? It is this question of public policy and the nature of the underlying rationale and application of the defence of absolute immunity which is the most controversial and interesting aspect of Mann v O’Neill. Here, the earlier identified tension between a rationale based on the functional necessity of judicial and quasi-judicial proceedings, and a broader public policy approach centring on democratic freedom comes to the fore.

A. Functional Necessity

The judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ centred on the traditional rationale for absolute privilege. Such a privilege was said to be limited to the proceedings involved and what is incidental thereto. In relation to the tension identified above as to whether functional necessity or public policy is the motivating factor for absolute privilege, the judges stated that it may be that absolute privilege is founded in necessity, rather than public policy.[44] Despite the judges’ failure to explicitly decide the issue, their judgment’s emphasis of considerations of “necessity”, would seem to indicate that such factors outweigh pubic policy. The judges stressed that absolute privilege is a necessity inherent in the proceedings to which it is granted, and is not to be extended beyond established categories.[45] This “inherent necessity”[46] was said to exist in relation to judicial and quasi-judicial proceedings:


[i]t is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings.47

As the extension of absolute privilege is to be “viewed with the most jealous suspicion”,[48] there must be demonstrated “some necessity of the kind that dictates that judicial proceedings are absolutely privileged”.[49] In light of this “necessity” arising from the nature of the proceedings, the judges failed to find the same level of necessity in statements to a minister, that is statements which eventuated neither in the course of judicial nor quasi-judicial proceedings.

In contrast to the joint judgment, both Kirby and Gummow JJ were willing to examine the interrelation of absolute privilege and public policy, and thereby adopt a slightly broader approach to that of the joint judgment. For example, Kirby J saw the case in terms of conflicting public policies.[50] Yet ultimately, both judges, echoing the arguments of the joint judgment, limited absolute immunity to statements which “form an integral and necessary part of the preparation for and pursuit of”[51] judicial or quasi-judicial proceedings. Though absolute immunity exists to assist judicial functions, such functions were limited by Gummow and Kirby JJ to judicial and quasi-judicial proceedings as this provides a “check upon calumny”.[52] Absolute privilege cannot be applied to judicial functions broadly construed, and therefore not to a letter to the executive concerning the competency of a judicial officer, as such a letter is “not subject to the filter”[53] of judicial proceedings and the “restraining and chilling effect”[54] such a filter has upon “extravagant complaints”.[55]

B. Broader Policy Grounds

In examining the underlying rationale of absolute privilege, McHugh J, like the other judges of the Court, quoted the statement of Gavan Duffy CJ, Rich and Dixon JJ in Gibbons v Duffell that absolute privilege exists for the “effective performance of judicial, legislative or official functions”.[56] However, rather than focusing on individual proceedings and the processes incidental thereto, McHugh J looked to the institution as a whole, broad judicial processes and the wider interests of the proper functioning of the administration of justice. His approach echoes that of Carr J in the Full Federal Court, who argued that to limit absolute privilege to proceedings in judicial or quasi-judicial bodies is “to limit unduly the public policy that judicial functions be performed effectively”.[57] Reflecting the approach of Marks J in Hercules v Phease that:


the same public policy considerations, as lead to immunity from suit of participants in judicial and quasi-judicial proceedings, require that the same immunity be accorded to members of the public exercising rights and freedoms accorded and safeguarded by the judicial arm of government.[58]

McHugh J argued that absolute privilege should apply to complaints to the appropriate authorities concerning the competency of judicial officers.

6. The Two Rationales Contrasted

As Mann v O’Neill turns upon these two contrasting depictions of the underlying rationale of absolute privilege, an evaluation of the decision centres upon an examination of the arguments supporting the two views. McHugh J, in dissent, provided the most comprehensive analysis of the policy arguments. In evaluating the policy of the decision as a whole, it is therefore useful to examine the two central arguments of his judgment and the manner in which these are countered by the other members of the Court. Of the majority judgments, the judgments of Gummow and Kirby JJ provide the most in depth analysis of policy and will principally be relied upon in the discussion below. Unfortunately, Brennan CJ, Dawson, Toohey and Gaudron JJ only afforded cursory treatment to this aspect of the case.

A. A Person Should be able to Bring a Complaint Against a Judicial Officer Without Fear of Proceedings

McHugh J’s first argument asserts the importance of individuals being able to bring proceedings against judicial officers without fear of legal redress. As is seen from the passage below, his analysis is based on a symmetry of legal reasoning. He writes:


absolute privilege is given to cases within the category of ‘statements made in the course of judicial or quasi-judicial proceedings’ because the efficient functioning of the administration of justice requires that judges, witnesses, and parties be free to speak without the deterrent fear of a defamation action. Similarly the efficient functioning of the administration of justice requires that those who preside in those courts and tribunals should be competent, impartial and incorruptible.[59]

In order to ensure the competence and impartiality of judges, upon which the effective administration of justice is dependent, it is of fundamental importance that those who have complaints against such officers should be able to make them without fear of legal redress. McHugh J is supported in this regard by Deane J, who in Theophanous v Herald & Weekly Times Ltd argued that the aim of absolute immunity is “to encourage the fearless, vigorous and effective exercise of public power for the general good”[60] and should apply equally to individuals who criticise those in “office” as to those who speak words in office.[61]

Can such a symmetry be drawn? If absolute privilege is traditionally bound to the setting of the “impartial quelling of controversies”62 of a court of law, as is implied by the established categories and principles of absolute privilege, how is it to operate beyond those boundaries? It is arguable, and indeed was asserted by Gummow and Kirby JJ, that the administration of justice is not served by transferring absolute privilege from its traditional context of judicial and quasijudicial proceedings with their inherently balanced proceedings and checks and balances to unchecked statements to the executive.63 Indeed such a transferral would introduce asymmetry into the legal system. In cases where absolute privilege has been granted, such as Hercules v Phease, this has occurred in the context of balanced legislation which enables an examination of the reliability of evidence tendered.64

Despite this asymmetry, are there potent reasons for drawing the line between absolute and qualified privilege in favour of absolute privilege in circumstances such as those in Mann v O’Neill? Should malice play a role? Would qualified, as opposed to absolute privilege, substantially deter individuals with an honest belief in their statements from making complaints due to the cost, worry and inconvenience of defending potential defamation actions, as is argued by McHugh and Deane JJ?[65] Indeed, Deane J argues that qualified privilege is an “unreliable shield”[66] with problems of proof by admissible evidence potentially resulting in a defendant being liable in damages for publishing a statement which was in fact true. These are valid points, and are problems endemic to our adversarial legal system. Yet it is this “unreliable shield” of qualified privilege, and not absolute privilege, which was held by the High Court in Lange v Australian Broadcasting Corporation[67] (Lange) to be sufficient to protect the implied constitutional freedom of political communication. Although the High Court decision in Lange was limited to “political communication” in the context of “government and political matters that affect the people of Australia”,[68] some cases have suggested that this expression may cover communications relating to the “judicial process”;[69] that is, to circumstances such as those in Mann v O’Neill. Unfortunately, despite Lange being handed down before Mann v O’Neill, counsel did not pursue arguments upon the implied constitutional right, however Kirby J did note that the court should not ignore the general constitutional setting in which the case took place.[70]

In light of Lange and the asymmetry occasioned by removing absolute privilege from its context of judicial or quasi-judicial proceedings, the majority’s emphasis on absolute immunity arising out of the “inherent necessity” of those proceedings has much force. It is ultimately necessity which must determine where qualified privilege ends and absolute immunity begins. This however is not to deny the fundamental importance of citizens forming complaints to government, rather it is to question whether absolute privilege is the appropriate means of encouraging such complaints. In this way, Kirby J, though recognising the importance of individuals petitioning the government, questions whether such a petition “of its very nature requires that in every case what is written is absolutely immune from an action for defamation, however false or malicious it may be.”[71] Similarly, Gummow J whilst acknowledging the fundamental importance of the “maintenance of public confidence in the administration of justice”,[72] asserts the need to balance public confidence with the publication of malicious falsehoods.[73] Such balance is to be achieved through qualified privilege in requiring the plaintiff to prove malice on the part of the defendant, which in itself is difficult to achieve. Qualified privilege brings the matter back within the control of the judicial process. Nevertheless, qualified privilege clearly has its limitations and drawbacks. For greater protection than qualified privilege to be afforded to an individual who makes a judicial complaint, balanced legislation dealing with such complaints, must be enacted.

To assert the need for such legislation is not to deny the substance of McHugh J’s argument that judges should have the fortitude to withstand substantial criticism.[74] Yet granting absolute privilege to a letter to a minister concerning the competence of a judicial officer would, as argued by Kirby J, go beyond what is necessary for the purposes of the letter.[75] Such criticism should take place within the context of balanced and established procedures. This is particularly important in the current climate of attacks on the judiciary by Parliament. Indeed, Gummow J hints at the ramifications of allowing absolute privilege to attach to judicial complaints to ministers. He argues that the institution of the judiciary would be damaged by malicious complaints to the Executive, which may result in the ad hoc investigation of one branch of the government by another.[76]

B. Judges Should Not Bring Private Actions for Defamation

McHugh J’s assertion that judges should exhibit fortitude in the face of criticism leads on to his second argument that judges should not bring private actions in defamation. In his view, the administration of justice, which rests upon the effective exercise of judicial functions, requires that the respect in which the courts are held is not diminished.[77] On the basis that judges bringing personal actions diminishes that respect, McHugh J concludes that absolute privilege should be granted to the defendants of such actions. In support of his analysis, McHugh J relies upon the nineteenth century case of Troughton v McIntosh [78] in which absolute privilege was granted to a defendant, a former litigant before a Police Magistrate, who was sued in defamation by that Magistrate for remarks made just after the conclusion of the litigation. It was held by a majority of the Supreme Court of New South Wales to be incompatible with the integrity of judicial office to sue a former litigant. Despite the judges in that decision referring to the particular facts in question, notably comments made by a former litigant while the court was still sitting, McHugh J states that the reasoning of the court extends to the facts in Mann v O’Neill.[79] As argued by Kirby and Gummow JJ such an extension is questionable, as in Troughton v McIntosh there was such a close connection with the judicial proceedings at hand to necessitate the grant of absolute privilege.[80]

Although Troughton v McIntosh does not unequivocally support McHugh J’s arguments, the assertion that judicial officers should not bring personal actions against former litigants is a forceful one and supported by commentators.[81] Claims by Kirby J that judges are not outside of the law and therefore should have redress to defamation laws[82] are not so persuasive as to counter the force of McHugh J’s argument. Instead, the test of McHugh J’s reasoning is to be found in his claim that in such circumstances as those in Mann v O’Neill, the law of contempt provides adequate protection of the judiciary.

From McHugh J’s perspective, the fact that contempt proceedings for scurrilous abuse of a judge can potentially be brought in cases such as Mann v O’Neill, illustrates the public rather than the private nature of the issue.[83] Yet, as the purpose of the law of contempt is to protect the integrity of the judiciary and the judicial system as a collective, rather than to preserve an individual judge’s dignity, would contempt proceedings in such circumstances as those in Mann v O’Neill be an abuse of that power?[84] McHugh J argues that to ensure the independence of the judiciary and public confidence in the administration of justice, individuals must be allowed to make criticisms of the judiciary and that contempt provides adequate protection of the judiciary.[85] Yet the law of contempt is based on the premise that the authority of the law and the independence of the judicial system, which rests upon public confidence, requires that “the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of the courts or judges”.[86] There is a tension here. Statements which in the name of the administration of justice require the grant of absolute privilege, could potentially also, in the name of the administration of justice and the effective functioning of the judicial proceedings, be subject to the law of contempt. This inconsistency highlights the difficulties with McHugh J’s approach. Ultimately, regardless of whether the approach of McHugh J or that of the other judges of the High Court is adopted, the present means of dealing with complaints concerning judicial competence are inadequate. Such complaints should be made, yet absolute privilege is the inappropriate mechanism to accomplish this.

7. Conclusion

Mann v O’Neill is undeniably a case which excites controversy and places valid arguments and policies in conflict with one another. In the view of one commentator in the Gazette of Law and Journalism, advocates of free speech would be justified in throwing the decision “in the corner with considerable force”.[87]

Yet in light of the established principles and categories of absolute privilege, the decision is hardly surprising. It is the Court’s examination of the underlying rationale of absolute privilege, and of public policy, which is the cause of controversy. In this regard, the decision is undeniably the poorer for the joint judgment’s failure to comprehensively examine the broad policy interests raised by McHugh J in dissent, and to a lesser extent by Gummow and Kirby JJ in the majority. However, if the context in which the defence of absolute privilege has developed is examined, and the extreme ramifications of the defence acknowledged, the “necessity” approach of the majority of the High Court, which limits the application of the immunity to that which is inherently necessary for the efficient functioning of judicial and quasi-judicial proceedings, is well founded. To extend the privilege beyond those situations which are subject to the checks and balances of judicial and quasi-judicial processes, is to distort the application of the defence. This is not a denial of the importance of freedom of expression, or of the right of individuals to criticise judicial functions, but a recognition of the inappropriateness of the use of absolute privilege as a tool for their guarantee. Constructive criticism of the judiciary is essential to the effective functioning of its organs, yet must take place without infringing its integrity and independence. To this effect, legislation establishing balanced procedures for the examination of such complaints must be enacted.88



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


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