29.8.1955AFFIDAVIT OF H.L. KELLY

AFFIDAVITS

Affidavit of H.L. Kelly - 29.8.1955

I, HERBERT LESLIE KELLY of 37 Montpelier Street Clayfield Brisbane in the State of Queensland a Solicitor of the Supreme Court of Queensland and a member of the firm of Cannan & Peterson of 319-325 Queen Street

Brisbane aforesaid Solicitors make oath and say as follows:— 1. My said firm is acting as Solicitors for Transport Publishing Co.Pty.Ltd, of 26 Hunter Street Sydney in the State of New South Wales and I have the conduct of this matter.

2. The said Company is the eublisher of literature specified respectively by the names "Real Love" "Romance Story" "Real Story" "Real Romances" and "Love Experiences". 3. By an Order dated the twentieth day of December 1954 and published in the Queensland Government Gazette Volume CLXXXVII Number 173 page 2213 on the twentyfifth day of December 1954 the Literature Board of Review constituted under and for the purposes of The Objectionable Literature Act of 1954" prohibited the distribution in Queensland of all rid every the literature being writings published periodically specified in the Schedule of the said Order for that the said literature is in the opinion of the Board objectionable. 4. The said Order further provided that it applied with respect to all copies and every part number or series thereof whether published theretofore or thereafter.

5. A true copy of the said Order published in the said Government Gazette is hereto annexed and marked "A".

6. The said publictions "Real Love" "Romance Story" "Real Story" "Real Romances" and "Love Experiences" are specified in the Schedule of the said Order.

7. It is provided by Section 11 of "The Objectionable Literature Act of 1954" that a person who feels aggrieved by an order made by the said Board in respect of any literature may of Order to Review as if that order were an order made by justices sitting as a court of Petty Sessions and that Part IX of "The Justices Acts 1886 to 1949" shall, with and subject to all necessary adaptations of the provision thereof apply and extend accordingly. 8. It is provided by part IX of “The Justices Acts 1886 to 1949” that a Judge of the Supreme Court may grant an Order to Review calling upon a party interested in maintaining a conviction order or warrant of a justice sitting as a Court of Petty Sessions to show cause why the conviction order or warrant should not be reviewed and that such Order to Review may be made returnable before the Supreme Court sitting as the Full Court or before a Judge sitting Court or Chambers.

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9 .The said Company invoked the appeal orovisions herein before mentioned, and on the twenty-first day of January 1955 obtained from the Honourable Mr. Acting Justice Brown a Judge of the Supreme Court sitting in Chambers an Order to Review the said Order of The Literature Board of Review.

10. The said Order to Review was made returnable before the Supreme Court of Queensland sitting as the Full Court at its Sittings commencing on the fifteenth day of February 1955 and was argued before the said Full Court by Counsel for the appellant and the respondent respectively on the twentyfifth day of February 1955, the second, third, fourth and ninth days of March 1955 and the third, fourth, fifth and sixth days of May 1955 and on such hearing evidence was given for both parties, and desponents were cross-examined before the said Full Court.

11. On the eighth day of August 1955 the said Full Court of the Supreme Court pronounced judgement thereon whereby it did by a majority dismiss the appellant's said appeal and discharge the said Order to Review, and order that the appellant pay the respondent's costs to be taxed. 12. It is provided by Section 10 (3) .(c) of 'The Objectionable Literature Act of 1954" that the said order of prohibition made by the respondent shall be in force on and from the date of the publication in the Queensland Government Gazette of a copy thereof until (if that order is revoked, rescinded, set aside or quashed) but not including the date when a copy of the order revoking, resinding, setting aside or quashing that order of prohibition is published in the Gazette and by reason of the judgment of the said Full Court the said order is still in force.

13. By reason of the said order of prohibition appellant is prohibited inter alia from distributing any of the said publications in Queensland and to do so is on offence punishable by fine of the appelant and its officers, and any of the said publications found on the premises of any distributor may be seized and forfeited without compensation. 14. I have been informed by John Hilton Agnew, Accountant for Queensland of Gordon and Gotch (Australasia) Limited of 262 Adelaide Street Brisbane foresaid andIterily believe that (a) Gordon and Gotch (Australasia) Limited is the distributor of the said publication (b) The said publications have been continuously and distributed for more than four and a half years and are issued monthly and distributed in all the States of the Commonwealth

(c) An average of over 2000 copies of each issue of each of the said publications had been distributed in Queensland to newsaents for general sale in this State during the six months immediately preceding the publication of the said order of prohibition (d) There is a growing demand for publications of the type of the said publications and a ready sale therefor in all States, and that the distribution of each of the said publications in Queensland would average at least 2000 copies per issue if the said order of prohibition

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were not in force and that they would maintain such sales for an indefinite number of years which in the opinion of my said informant would be not less than one year. 15. I have been informed by Stanley David Lawson Horwitz, of 40 Arnold Street Killara Sydney in the State of New South Wales, Managing Director of the appellant, that:— (a) At the time of the publishing of the said order of prohibition the total revenue received by the apellant from the sale of the said publications in Queensland was averaging £309/11/0 per monthly issue or £3714/12/0 per annum

(b) At the said time the appellant's average net profits per month on the sales of the said publications in Queensland were respectively:— Real Love £34 5 4

Romance Story £20 5 0 Real Story £20 7 8 Real Romances £30 17 0

Love Experiences £31 6 0 and that its total loss per month in consequence of the of the said order of prohibition anounts to £147/1/0 or £11644/12/0 per annum (c) The appellant would have contined to distribute the said publications in Queensland but for the said order of prohibition and would have resumed distribution thereof in Queensland if Ithe said Full Court had by it’s judgement rescinded the said order and still, desires to resume distribution in Queensland, and would continue distribation for an indefinite number of years on its experience of past sales in Queensland and continuing sales in other States it reasonably expects to make not less than the average net profits set out in (b) hereof if it is permitted to resume the distribution thereof in Queensland, and would continue to do so for an indefinite number of years. 16. By reason of the facts stated herein the said judgment of the Full Court of the Supreme Court of Queensland is a final judgment given or pronounced in respect of a matter at issue amounting to or of the value of £1500 and involves directly or indirectly a question respecting property and a civil right amounting to or of the value of £1500 and the appellant has an appeal as of right to this Honourable Court.

17. All the facts and circumstances herein deposed to are within my own knowledge save where deposed to from information and belief and my means of knowledge and sources of information appear on the face of this my Affidavit.

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NOTICE OF APPEAL TO THE HIGH COURT

TAKE NOTICE that the Full Court of the High Court of Australia will be moved by way of appeal at its first sittings in its appellate jurisdiction appointed to be held at Brisbane after the expiration of six weeks from the institution of this appeal or as soon thereafter as Counsel can be heard by Counsel on behalf of the Appellant that the whole of the judgment of the Full Court of the Supreme Court of Queensland given or pronounced on the eighth day of August, 1955, WHEREBY the said Court DISMISSED THE APPEAL of the appellant from an order made by the Respondent under the provisions of "The Objectionable Literature Act of 1954" prohibiting the distribution in Queensland of the literature specified by the names "Popular Romance" and "New Romances" AND DISCHARGED THE ORDER TO REVIEW granted to the Appellant by the Honourable Mr. Acting Justice Brown a Judge of the Supreme Court sitting in Chambers on the twentyfirst day of January, 1955, AND ORDERED the Appellant to pay the Respondent’s Costs MAY BE SET ASIDE with costs AND THAT in lieu thereof judgment may be entered for the Appellant rescinding setting aside and quashing the said Order of the Respondent with costs of and incidental thereto and of this Appeal upon the following grounds:- 1. That the said judgment is wrong in law and contrary to law. 2. That the said judgment is against the evidence and the weight of the evidence.

3. That the learned Justices who constituted the majority should have found on the law and the facts that neither of the said publications was "objectionable" within the meaning of "The Objectionable Literature Act of 1954" and in particular none of them fell within any of the categories of the defintion of "objectionable" therein contained and/or had any tendency to deprave or corrupt any person. 4. That the learned Justices who constituted the majority wrong in law in the construction Which they put on the phrase "unduly emphasises matters of sex" and the learned Chief Justice in the construction which he put on the phrase "injurious to morality”, and in finding that either of the said publications came within either of the said phrases properly construed. 5. That the learned Justices who constituted the majority were wrong in law in the construction which they put on the phrase "tendency to deprave or corrupt any such persons" and in finding that either of the said publications came within the said phrase properly construed. 6. That the learned Chief Justice was wrong in law in holding that the onus of establishing that the said publications or either of them were not "objectionable" within the meaning of the said Act was on the Appellant. 7. That the learned Chief Justice was wrong in law in holding that literature which has no tendency to deprave or corrupt may be "objectionable" within the statutory definition of that word.

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8. That the learned Justices who constituted the majority were wrong in law in holding that the "objectionableness" of the said publications or either of them within the meaning of the said Act could be determined by reference to its likely effect or tendency in respect of any but normal persons or alternatively in respect of the types of persons whom the said learned

Justices found that the said eublications had a tendency to deprave or corrupt. 9. That the learned Justices who constituted the majority were influenced by inadmissible evidence in finding that the said publications were "objectionable" within the meaning of the said Act. 10. That upon the proper construction of the said Act neither of the said publications should have been held to be "objectionable" within the meaning of the said Act and the said Order of the Respondent should have been rescinded set aside an that upon the proper construction of the said Act it should have been held that the said Order of the Respondent was ultra vires (a) in its purported application to any part number or series of the said literature which had not been at the time the said order was made, and any which the Respondent had not consider as separate and existing publications, in that the Respondent had no jurisdictiito prohibit the distribution of any literature which it had not examined and reviewed and (b) in that the Board making the said Order failed to comply with the provisions of Section 10 of the Act in that it did not therein state within which of the categories definition of "objectinable" the said literature fell. DATED this twentyninth day of August, 1955

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