Chief Commissioner of Police (Victoria), Applications by [2004] HCATrans 36 (27 February 2004)

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Chief Commissioner of Police (Victoria), Applications by [2004] HCATrans 36 (27 February 2004)

Last Updated: 2 March 2004

[2004] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne Nos M34 and M35 of 2004

In the matter of –

Applications by the CHIEF COMMISSIONER OF POLICE (VICTORIA)

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 27 FEBRUARY 2004, AT 11.03 AM

Copyright in the High Court of Australia

MR F.X. COSTIGAN, QC: If your Honour pleases, I appear with my learned friend, MR G.J.C. SILBERT, for the applicant. (instructed by Victorian Government Solicitor)

MR D.F.R. BEACH, SC: If your Honour pleases, I appear with my learned friend, MR D.P. GILBERTSON, for the The Age Company Ltd. (instructed by Minter Ellison)

HIS HONOUR: As I understand it, your client was an intervener in the Court of Appeal?

MR BEACH: That is so, your Honour.

HIS HONOUR: It is for that reason that you would presumably assert a right to be heard this morning?

MR BEACH: If we have a right of appeal, surely we have a right to respond.

HIS HONOUR: Do interveners have a right of appeal? We will not debate it, Mr Beach.

MR BEACH: If your Honour pleases.

HIS HONOUR: Mr Costigan, I - - -

MR COSTIGAN: I might say we do not consent to their being here, your Honour, but - - -

HIS HONOUR: I understand that.

MR COSTIGAN: There is not much I can do about it.

HIS HONOUR: I have read the papers and have given a deal of thought to the matter overnight. Can I go straight to the heart of it and identify what seems to me to be the difficulty and then, having done that, go to what seems to me to be a possible solution to the difficulties.

MR COSTIGAN: Yes, your Honour.

HIS HONOUR: The outline of argument you were good enough to supply me with recently treats it as if it is an application for a stay. That, I think, is an approach that does have difficulties because the question becomes, what order is being stayed, the operation of which order is being prevented? Your complaint is not that you have to interrupt the operation of an order. Your complaint is that you want an order which presently exists to have future operation beyond the time of its expiration.

It seemed to me, thinking about it, that therefore the application was one in which the Commissioner sought orders of this Court in the same terms as the several suppression orders that were made below except as to time. I understand you to say that in order to preserve the status quo and, more particularly, in order to preserve the utility of the application for special leave you must have such orders, otherwise the application for leave becomes futile.

MR COSTIGAN: From someone – from some court.

HIS HONOUR: Yes. Now, there are two consequences of that which seem to me to immediately arise. First, if it is this Court that makes the suppression order, it is this Court which then becomes the enforcing Court, and we get ourselves into the position where if there is some issue about failure to comply, we become the court of trial. That is, I think, an undesirable situation to bring about.

The second consequence seemed to me to be that if I was to consider making a suppression order of the kind you ask for, pending hearing and determination of the application for special leave or, more probably, as I understand it, fourteen days after hearing and determination of the application for special leave, at the moment all I have is is the reference to status quo. I have none of the base material that underpins the suppression orders and therefore am not in a position to form an independent view about the force of the argument advanced in favour of suppression.

Now, I understand that Ms Pavlou’s affidavit refers to “danger to officers”, “compromise of continuing operations”, matters of that kind. I understand all that, but if I am to be asked to exercise the discretion to make an order of that kind for anything except the very shortest of periods - counted in hours rather than days – it would seem to me I should have everything that underpinned it or at least as much of what underpinned it as is now said to be relevant.

Those are the difficulties. Now, can I turn away from the difficulties to what seems to me to be the way in which they may be addressed? It is not altogether plain to me yet exactly what process was before the Court of Appeal. On the face of it, it looks like bare application for leave to appeal, but there is this qualification “if leave be necessary”, and I am not quite sure whether you instituted an appeal as of right, which has later been treated as incompetent. The procedural difficulties, which at some point you will have to address, begin to become quite complex.

MR COSTIGAN: I am sorry, your Honour, what happened in the Court of Appeal is we had a suppression order which was to expire on a Friday - - -

HIS HONOUR: I understand that.

MR COSTIGAN: The Court of Appeal made itself available on the Thursday afternoon, and it was our submission that we had a right to appeal.

HIS HONOUR: Yes. Now, had you instituted an appeal as of right? Had you given notice of appeal as of right? Or had you simply applied for leave if leave be necessary? These, I think, are procedural complexities that we may later have to confront. I do not think they are immediately - - -

MR COSTIGAN: I think the answer probably is that we had given a notice of appeal and also applied for leave to appeal in the event that there was no jurisdiction.

HIS HONOUR: Which would mean that the Court of Appeal’s reasons are to be understood as ordering dismissal of the appeal as incompetent and refusing leave. Be that as it may – that is a little chain of inquiry that may later have to be pursued – the Court of Appeal became seized of the matter to the extent of deciding that either the appeal should be dismissed on the merits, or the application for leave should be dismissed on the merits, or the appeal was incompetent or the application for leave should be refused, but (the Court of Appeal need not decide any of that) whichever path you go, the Chief Commissioner fails, therefore, dismiss.

MR COSTIGAN: Yes.

HIS HONOUR: Since then, the primary judges have made some orders extending.

MR COSTIGAN: They have given us a limited capacity until Monday.

HIS HONOUR: Until 1 March?

MR COSTIGAN: Yes.

HIS HONOUR: Now, it seems to me that in all the circumstances a course that remains open to you is to go back to the primary judges seeking extension, pending hearing and determination of the application for leave plus fourteen days, on this basis. As at present advised, having heard no argument from either side, it seems to me that the need to preserve the status quo, if the application for special leave is not to be rendered futile, is evident. It occurs to me that if you want me to make orders in this Court you will have to, I think, put on a great deal more material than you now have in its support.

Immediately, the course to pursue is to re-agitate the applications in front of the single judges, armed with whatever benefit you might have from whatever reasons I were to give in deciding whether to adjourn the application over until Monday next at 9.30. Now, it depends very much then on what I feel able to say in the reasons for judgment with what joy in your heart you go back to the primary judges, does it not?

MR COSTIGAN: It does. One of the difficulties we had, with great respect to his Honour Justice Kellam, was that he was taking a view of the reasons for decision of the Court of Appeal which really shackled him in any further extension, and it was only after a great deal of effort that he gave us the few extra days to get our papers in order in this Court.

HIS HONOUR: It seems to me, if I may say so, that we need perhaps to shift focus a little. The application that now is made is in the nature of an application for preserving the subject matter of the proceedings in this Court, that is to say, the application now made is of a kind considered in Erinford Properties v Cheshire County Council [1974] Ch 261 and the cases there referred to which include Wilson v Church (No 2) (1879) 12 Ch D 454. Erinford Properties is a case to which I have often referred for the dictum at page 268 that:

No human being is infallible, and for none are there more public an authoritative explanations of their errors than for judges.

It is a dictum that occasionally merits re-reading. If the question is one of preservation of subject matter, it would seem to me to be open to a single judge, even if of the view that either the principal order sought should not have been made or that, on the intermediate appeal, that view is reinforced, it is still open to the primary judge to say, “The subject matter of this litigation will disappear unless I preserve it. To that end, I order its preservation” – the manner of that order of preservation being here the extension for a limited time.

Now, I have spent a long time explaining what seems to me to be the difficulty. I have spent an unduly long time, having heard from no one proffering a possible solution to it. I should now be quiet and let counsel do their job.

MR COSTIGAN: Your Honour, it is quite clear from the appearance before Mr Justice Kellam that he was troubled at the thought of destroying the subject matter of the litigation, but felt constrained by what the Court of Appeal had said in granting any significant extension of the suppression order. It was in that context that he said, “You should not be coming to me. You should either go back to the Court of Appeal or you should go to the High Court”. We had already informed him that we were proposing an application for special leave.

The difficulty about going back to the Court of Appeal was always that, in the early stages of this litigation, the Court of Appeal had made it plain that the appropriate court to deal with suppression orders and extensions of them were the primary judges, and there is really no complaint about that. What his Honour Mr Justice Kellam, and I think also Justice Osborn and Justice Teague – they were feeling in the presence of the judgment of the Court of Appeal, and with some sympathy, I think, with the general propositions in that judgment, a great reluctance to order any real extension of the suppression order unless they were persuaded that it was appropriate to do so.

HIS HONOUR: I understand that.

MR COSTIGAN: The kind of persuasion they really wanted was, I suppose, in a sense, for the High Court to say they had to, or, alternatively, to express a view as to the desirability of preserving the subject matter which would comfort them – even in the presence of the Court of Appeal judgment – in giving us the extension we sought. So, in that sense, armed with the transcript of the submissions before your Honour and with what my friend says - - -

HIS HONOUR: Can I cut you off there. In a practical world, I do not think we are going to be able to arm you with a transcript. What I have in mind, subject to what Mr Beach later tells me, is that I should then see if I can reduce my reasons to writing, so that the parties are armed with the written reasons rather than arming you simply with a transcript of the debate that we may have had. I think that the transcription of argument may not - - -

MR COSTIGAN: Your Honour’s reasons would be preferable than - - -

HIS HONOUR: Yes.

MR COSTIGAN: I would, I think, feel comfortable in that case - difficult though it is moving from one judge to another in the Supreme Court – in going back and seeking the extension that we are seeking. We are not talking about a long time. As I indicated in my written submissions this morning, no real damage has been done to The Age, except that they - - -

HIS HONOUR: Except the principles of open administration of justice, which this is cutting very deep into - - -

MR COSTIGAN: I will be saying that, your Honour, on the application for special leave.

HIS HONOUR: I understand that. Now, can I just say about the application for leave, not having consulted the Registrar – this may come to her as news - but what I would have in mind is that we should attempt, if there is something still to pursue, to have it ready for dealing with in the list of cases to be heard by video link between Canberra and Adelaide at the end of April. That, I think, is about the best we can do, unless we assemble a Full Court more urgently than that. Our calendars are presently pretty full.

MR COSTIGAN: The end of April would enable the submissions of both parties to be made.

HIS HONOUR: There will be directions given which will require these things to be ready and, if you want this on, it is going to be speed of summer lightning time, I am afraid.

MR COSTIGAN: From our side, we can cope with that.

HIS HONOUR: You have not seen the directions yet.

MR COSTIGAN: We have to cope with that. In answer to what your Honour has been putting to me, perhaps I have answered it in the sense that I would see that as a responsible way in which to proceed.

HIS HONOUR: Let me perhaps hear what Mr Beach has to say. He is the only party here in the position of contradictor. Mr Beach, what do you say I should do?

MR BEACH: Your Honour, we would say that you ought to hear and determine our learned friend’s application, and, to cut to the heart of the matter, our resistance is at the level of, in our submission, there is no reasonable prospect of their obtaining special leave in respect of the two points they have identified.

HIS HONOUR: What about the natural justice point?

MR BEACH: Your Honour, we have not been served with the originating paperwork. We turned up at the Court of Appeal. So we are a bit in the dark. Can I say this, we know that there are five affidavits that were put before the Court of Appeal on our learned friend’s side – I think three from my learned friend’s instructing solicitor and two from a member of the police force. The judgment, on its face, appears to describe the proceeding as an application for leave to appeal if leave be necessary.

As we all know, the test of determining whether leave is to be granted or not is a two part test. Is the decision below attended with doubt, and is there injustice? So we would say our learned friends turned up on 9 October to argue it before the Court of Appeal knowing that they carried the burden of showing that the decisions below to terminate the suppression orders were attended by doubt. That raised the whole of the issue that they had to deal with.

Whilst it is said somewhere in my learned friend’s material – it might be in the affidavit – that it was sort of thought that it was really a jurisdictional argument rather than the application for leave, we would say that that just cannot be so in the context of an order that was due to expire on 10 October. In order to get that continued, our learned friends had to delve into the substance of the matter and explain why it is that there is at least some doubt associated with the correctness of the decisions below.

Then if you come to the judgment delivered by the Court of Appeal, it is patent, we say, that our learned friends were given every opportunity to put their case in its entirety. In paragraph 31 of the Court of Appeal’s judgment, they summarise neatly what we would understand is the case put by our learned friends in relation to the merits of the continuation of the suppression order, and then – I need not take your Honour to the detail of it - in the succeeding paragraphs of the judgment that is dealt with.

HIS HONOUR: What am I to make, for example, of exhibit JP3 to Ms Pavlou’s affidavit, which is the supplementary note on behalf of your client, saying that:

In the event that leave to appeal is granted, the Intervener wishes to:

(a) make submissions on the substantive issues in the appeal - - -

MR BEACH: Your Honour, that is making an assumption that the court, having heard enough of Mr Costigan’s submission to determine that the decision is attended with doubt, is then prepared to hear the substance of the matter. The submissions that go to the issue of whether it is attended with doubt overlap almost in entirety the submissions that would be made on the appeal, and we note, your Honour, exhibit JP2 is our learned friends’ supplementary submission based on additional material. I think the date of it, 10 September, is wrong. It should be 10 December.

MR COSTIGAN: That is right, yes.

MR BEACH: This, as we understand the material, went with the two further affidavits, where it is expressly stated that if the court assumes jurisdiction or grants leave to appeal, in paragraph 2, they do not wish to make any further submissions about the substantive issue. So they obviously are comfortable at that stage that they have said enough to show that the decision is attended with doubt. We would say, for those reasons, and for the reason that whilst there have been complaints from our learned friends’ side about the so-called lack of natural justice and the fact that they would wish to put further material before the courts, they have never identified what that material is and how that might impact on the judgment of the Court of Appeal.

The Court of Appeal judgment, we would say, is – I hesitate to use a colloquialism like “rolled gold”, but there is nothing in it that suggests that there is further material which could answer what is said there, and if there was, it is astonishing that our learned friends have not sought to put the material before your Honour as to what they were denied the opportunity of. In the circumstances, there being no point of principle that has been identified as a true special leave question, we would say the prospects of our learned friends obtaining a grant of special leave is negligible to zero, and for those reasons - - -

HIS HONOUR: Is the problem which underlies the immediate applications one which operates beyond Victoria?

MR BEACH: It may or may not, your Honour.

HIS HONOUR: I understood it did. I understood there to be operations of this kind there and elsewhere.

MR BEACH: There is evidence that there are said to be, at a high level of generality, operations of the same kind elsewhere. What that means is open for debate, one suspects, but - - -

HIS HONOUR: Have other courts of other States made like orders?

MR BEACH: I do not know the answer to that, your Honour. My learned friend, Mr Costigan, says in Western Australia they have, and I do not know at what level of appeal process. Can this be said, your Honour, the judgment of the Court of Appeal also reveals that in Canada, where the procedures are also used, it is out in the open, and, indeed, as the Court surmises, in the days of the Internet it is difficult to believe that it will not be on the Internet. We have not sought to put material before your Honour on this application, but if necessary it can be done showing that there is a high level of debate already on the Internet as to the appropriateness of this methodology.

Cutting to the heart of the matter again, as the Court of Appeal, we would say, with respect, correctly said, the knowledge about the methodology that is sought to be enjoined is simply another form of – they have used the word “sting” operation, and “sting” operations have been around for a very, very long time. Their knowledge of them does not carry with it the dire consequences that our learned friends seem to assert.

To summarise our position as briefly as I can, your Honour, we would say the special leave application has no prospects of success and therefore the application should be dismissed at this stage.

HIS HONOUR: If, for whatever reason, I either thought it inappropriate to form a view about prospects or could not reach the degree of satisfaction that you say I should, what then, if anything, do you want to say about what I should do? In particular, what do you say, if anything, about following the course of going back to the primary judges?

MR BEACH: If your Honour took the view that our learned friends had established that they had substantial prospects on the special leave - - -

HIS HONOUR: No, no, that it was not shown that their prospects were negligible. I will not make any prediction – I can tell you this now – I will not make any prediction that prospects are substantial. The most I would be wanting to consider is whether they are so insubstantial that the subject matter can be allowed to go.

MR BEACH: Your Honour, we would say, following decisions like Justice Gummow’s in Marsden v Amalgamated Television and Elliott v Seymour, if that is the state to which your Honour becomes satisfied then they have not crossed the threshold and the application should be dismissed.

HIS HONOUR: I am sorry, I did interrupt you when you were addressing the question I put about going back to the primary judges.

MR BEACH: We would again say, if they have not got to the threshold then there is no basis for going back to the primary judges.

HIS HONOUR: If they have?

MR BEACH: If they have got to the threshold, your Honour, then obviously your Honour would either make the order or the primary judges would do whatever primary judges do. We would have no objection to going back to the primary judges if your Honour found that they had satisfied the threshold. The only thing we would say about it, of course, is that there is some authority – it may be an anathema to your Honour, but
there is some authority that suggests that trial judges are not bound by anything your Honour says sitting there alone. They might find themselves still constrained to feel bound by the strong language used by the Court of Appeal judgment so as to determine that there is no reasonable prospect of success in a special leave application, leading again to the conclusion that the primary judges would then dismiss our learned friends’ application. But that is a matter for - - -

HIS HONOUR: Of course. They will act as they are best advised.

MR BEACH: Indeed, your Honour. If your Honour pleases.

HIS HONOUR: Thank you, Mr Beach. Mr Costigan, is there anything else you want to add?

MR COSTIGAN: No, I do not think so, your Honour.

HIS HONOUR: If I might trouble counsel to either remain here or be back here by midday, I would hope to be in a position to give reasons at or soon after midday. I will adjourn in the intervening time.

AT 11.34 AM THE MATTERS WERE ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.03 PM:

HIS HONOUR: The reasons that I am about to read have been reduced to writing and will be made available to the parties at the conclusion of my reading the reasons.

By sections 18 and 19 of the Supreme Court Act 1986 (Vic) the Supreme Court of Victoria is given power to make orders that the whole or any part of a proceeding (civil or criminal) be heard in closed court, and orders prohibiting the publication of a report of the whole or any part of a proceeding, or of any information derived from a proceeding.

In the course of two separate trials in the Supreme Court (in each case a trial for murder) orders were made that part of the proceeding be heard in closed court and that the publication of a report of certain parts of the proceedings, or of information derived from those parts of the proceeding, was prohibited. Putting the matter generally, the orders prohibiting publication concerned, first, the identification of some police officers who had been, or then were, acting in certain covert operations and, secondly, the methods used by police in the course of those covert operations to obtain confessions from persons suspected of serious crimes. Like orders have been made in two other trials in the Supreme Court.

Although those seeking the orders at trial sought in each case to have the orders expressed without temporal limit, in each of the cases which give rise to the present applications in this Court, the primary judge made orders that were to expire on a fixed date. Before those orders expired, the Chief Commissioner of Police of Victoria sought leave “if leave was necessary” to appeal to the Court of Appeal of Victoria. The Chief Commissioner contended, in each case, that the primary judge had erred in limiting the time for which the orders would operate and should have made orders without any temporal limit. After these applications were made to the Court of Appeal, and in order to preserve the status quo, the primary judge, in each case, varied the order that had earlier been made by substituting for the day fixed for the order’s expiry a provision that the order endure until two weeks after the decision of the Court of Appeal of the application that had been made to it.

On 12 February 2004, the Court of Appeal ordered that the Chief Commissioner's application be dismissed In the Matter of an application by Chief Commissioner of Police (Vic) for leave to appeal [2004] VSCA 3R. On 26 February 2004, the Chief Commissioner filed two applications for special leave to appeal to this Court. Although it may appear that in some respects the matters were treated in the Court of Appeal as though there was only one application for leave to appeal to that Court, two applications are made in this Court lest the better view be (as it very well may be) that the Court of Appeal had two applications before it which led to two orders.

The Court of Appeal considered whether it had jurisdiction to entertain an appeal against the suppression orders made in each case by the primary judge. That required consideration of the operation of section 17(2) and section 17A(3) of the Supreme Court Act. The first of those provisions, s 17(2), provides that:

Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.

“Determination” is a word not defined by the Supreme Court Act, but its meaning may be gleaned from section 17(1), which provides that:

The Trial Division constituted by a Judge may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the rules to be heard and determined by the Court of Appeal. (emphasis added)

As was said in the joint reasons in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72 at 78, paragraph 10, determination:

must be read . . . as a word which embraces a wide variety of judicial decisions.

The question of jurisdiction of the Court of Appeal was treated in that Court's reasons as turning upon whether section 17A(3) “otherwise expressly provided” for the purposes of section 17(2). Section 17A(3) provides that:

Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.

The Court of Appeal said at [2004] VSCA 3R at [22] in its joint reasons disposing of the matters before it that:

it seems to us to be doubtful that we can now conclude that s 17A(3) is not, within the meaning of s 17(2), an “express” enactment otherwise.

But assuming, without deciding, that the applicant was right to submit that the Court had jurisdiction, the Court of Appeal concluded that the primary judges were not in error in making the limited suppression orders which they did.

The Chief Commissioner now seeks orders in each of her applications abridging the time for the hearing of the present summons and orders that:

the suppression order made on the 24^th day of February 2004 be extended until the hearing of the Application for Special Leave or further order. [Summons 26/2/04]

The applications to this Court are made on notice to the only other person who appeared in the proceedings in the Court of Appeal (The Age Company Ltd). That company was granted leave to intervene in those proceedings. The Age Company Ltd is, it seems, the publisher of The Age newspaper.

It is necessary to say something more about the course of proceedings both in the Court of Appeal and since that court made its orders.

The Chief Commissioner gives as the second ground of each application for special leave to appeal to this Court that the Court of Appeal denied her procedural fairness, in that:

(a) despite a written indication to the Court that it wished to file further material and make submissions on the substantive issue before the Court it proceeded to determine the Appeal without allowing the Applicant to do so.

(b) it proceeded to determine the substantive issue in the case without giving the Applicant an opportunity to make submissions and produce evidence.

The Chief Commissioner contends that the oral argument that took place in the Court of Appeal on the hearing of the application for leave was a jurisdictional argument only and that she was denied any sufficient opportunity to advance arguments on the substantive questions which the Court of Appeal ultimately found to be determinative.

Next, there are some matters which have occurred since the Court of Appeal made its orders and which must be noted. It seems that application for extension of the suppression orders beyond the date originally fixed was made to each of the primary judges who had made orders of the kind now in issue – the two judges whose orders were the subject of the application for leave to appeal to the Court of Appeal, and the two trial judges who had made like orders in the other two trials. No copy of any of the orders made by those judges is included in the affidavit material now before me. The affidavit sworn in support of the present applications says only that “[a]s a result of various applications” the suppression orders made in three of the matters were due to expire on 26 February 2004, 14 days after the Court of Appeal published its reasons and made its orders. (The suppression order in the fourth matter expired on a different date.)

Some of the applications for extension were made before the Court of Appeal decided the matters; some were made after judgment was given. Thus, on 24 February 2004, further applications were made to the single judges of the Supreme Court who had made the suppression orders, seeking to further extend the suppression orders until two weeks after the application for special leave to appeal to this Court is heard. Ultimately, orders have been made by each of the primary judges extending the time for which the order each made is to operate, but only until 1 March 2004. A copy of the original order made at one trial was handed up this morning. Copies of notices of the orders made both at trial and subsequently have been produced.

In support of the application for an order that the suppression orders be extended by this Court, the solicitor for the applicant swears that:

19. The Chief Commissioner is seriously concerned at the impact of these decisions in relation to current investigations and safety of her officers. In the event that a decision adverse to the Chief Commissioner of Victoria Police is delivered by the Court, such operations need to be terminated.

. . .

21. At present, in Victoria, undercover operatives are involved in three undercover operations and publication of the methodology will result in their lives being placed at risk.

22. Failure of the Chief Commissioner to obtain the extension of the suppression orders will render any appeal nugatory.

(The reference to “the methodology” is a reference to one aspect of the subject of the suppression orders.)

Unless the status quo is preserved, the application for special leave and any subsequent appeal would be rendered futile. That is a powerful reason in favour of preserving the status quo.

On the limited material presently available, I cannot say that the prospects of the applications for special leave succeeding are so insubstantial that their preservation is unwarranted, cf Jennings Construction Ltd v Burgundy Royale Investment Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 685.

The orders which it is sought to challenge in this Court are the Court of Appeal's orders dismissing the application. Whether the process issued amounted to the institution of appeals as of right, and those orders should be read as encompassing an order dismissing those appeals as incompetent or should be read as disposing only of applications for leave to appeal which were not accompanied by the purported institution of appeals as of right, does not yet appear. Again I pass by that difficulty, although it is one to which attention will have to be given if the applications for special leave are to proceed. So, too, I draw to attention the possibility that, if the Court of Appeal had no jurisdiction to entertain an appeal, it may be arguable that an appeal lies directly to this Court from the orders of the single judges and that application might be made, but has not yet been made, to extend the time for applying for special leave to appeal against those orders.

The orders which now preserve the status quo (until Monday next) are not orders of the Court of Appeal but are orders of single judges of the Trial Division of the Supreme Court. Those orders, like all the suppression orders, may be regarded as having been obtained on the motion of the Chief Commissioner, but in no case was there any contradictor other than the intervener. The orders are not directed to individuals, they are directed to the world at large. I am now asked to make fresh orders, in this Court, directing suppression of the material in question.

To consider whether that should be done would require examination of the substance of the material that was advanced in the courts below in support of the orders that were made. Only then would it be possible to form some view about whether a case is made for the continued suppression of the information in question, independently of the need to preserve the status quo. If orders were made they would be orders of this Court and any question of enforcement would, therefore, be a matter for this Court. That would be an undesirable result at which to arrive. Such matters are more appropriately dealt with by a court of trial.

To form a view about whether a case is made for continued suppression, independently of the need to preserve the status quo, is a task which I cannot undertake on what is now before me. It is a task which each of the primary judges is well equipped to undertake. Neither the pendency of the applications for special leave to appeal to this Court, nor the disposition of the matter in the Court of Appeal precludes the making of such an order. The application would be for a fresh order providing only interim relief in order to preserve the status quo.

What, at first sight, may appear to be the difficulty in asking a judge who has declined to make a particular order then to make an interim order to like effect in order to preserve the status quo pending appeal is addressed in decisions like Erinford Properties Ltd v Cheshire County Council [1974] Ch 261. See also Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452. Of course, it is necessary to read cases like Erinford Properties and its precursors, for example, Wilson v Church (No 2) (1879) 12 Ch D 454, bearing steadily in mind that there is no right of appeal to this Court. The only right the Chief Commissioner has is a right to apply for permission to commence a proceeding in the appellate jurisdiction of this Court.

That said, however, the Chief Commissioner’s application for special leave will be rendered futile if an extension is not granted. And it is necessary to recall that the applications for special leave are said to raise issues of importance not only to the particular trials in which the orders were made but generally to the administration of justice in the State courts, especially of the other State or States in which covert operations of the kind now in question have been, or now may be being, conducted.

As at present advised there is much to be said for the making of orders extending the duration of the suppression order until 14 days after the hearing and determination of the applications for special leave and, if special leave is granted, the hearing and determination of the appeal. No doubt the Commissioner should be asked to undertake that she would take all reasonable steps within her power to expedite the hearing of the applications and any subsequent appeals. It may be that the application could be included in the list of cases to be dealt with in Canberra, by video-link to Adelaide, on 30 April 2004.

I will adjourn the further hearing of the applications in this Court to Monday next at 9.30 am. That will allow applications to one or more of the appropriate single judges of the Supreme Court of Victoria to be made. If orders are made in that Court, it would not be necessary for this Court to deal further with the present application beyond making the necessary directions for expedition of the application for special leave.

MR COSTIGAN: I am just slightly troubled that the adjournment to 9.30 or 9 o’clock on Monday morning. That contemplates that we are able to make all our applications to the trial judges this afternoon and I know that Mr Justice Teague is not in Melbourne - - -

HIS HONOUR: He is doing parole, I assume.

MR COSTIGAN: He is in the country, your Honour.

HIS HONOUR: There are two things, Mr Costigan, I should mention. I am anxious to preserve 9.30 simply because the March sittings of the Court begin in Canberra next week.

MR COSTIGAN: Yes, I fully understand that, your Honour.

HIS HONOUR: I would wish, if possible, to be able to get to Canberra by lunch time on Monday. It also occurs to me that if you have the benefit of one or perhaps two of the orders the practical work has largely been done - I think entirely done, but I am not absolutely positive that it is entirely done. It seems to me, likely done.

MR COSTIGAN: I think, with respect, that is correct, your Honour, and we had in mind, without realising the 9.30 on Monday, attempting to see Justice Kellam at about that time on Monday. We will now make immediate inquiries as to whether he is available this afternoon.

HIS HONOUR: I understand the time pressures that I am putting on everyone. I apologise that that should be so, but there is this further consideration, Mr Costigan. Assume you want to renew your application on other material to me, we are really going to have to move very quickly in the course of Monday to deal with that, because come Tuesday we are in the Full Court again and, yes, I can do it perhaps by video, pre or post court, but there are 24 hours in the day and seven days in the week and they seem tolerably filled.

MR COSTIGAN: Your Honour, we have nothing further to say. We will do our very best and we understand it is adjourned until Monday morning here.

HIS HONOUR: Monday morning at 9.30 am. Could I say this to you also, I do not know whether we can do Adelaide 30 April. I would hope that we could, but the parties will need to order their affairs and order their thinking in considering a timetable for preparation of materials in support in such a way as will leave us in good order to get the matters into the list for 30 April.

MR COSTIGAN: We would certainly do that, your Honour.

HIS HONOUR: I have raised a number of matters in the reasons I have just read which may – they may not – require some consideration of the material that is to be put before the Court and perhaps even the nature of the applications that are to be made to the Court. All of this is to be done on one sheet of A4 paper by 5 o’clock tonight, of course, is it not, Mr Costigan?

MR COSTIGAN: Thank you, your Honour.

HIS HONOUR: Yes, Mr Beach.

MR BEACH: For our part, your Honour, we would consent to the most draconian timetable that your Honour thought able to - - -

HIS HONOUR: That is said with the rare confidence of counsel on the side that does not have to do all the work, Mr Beach.

MR BEACH: Subject to one qualification, your Honour, that is, as I said to your Honour earlier, it would appear that our learned friends – or the Chief Commissioner, rather, has filed a number of court documents down below which have not been served on us, and we would seek access to those documents, the additional affidavits, applications, notices of appeal, whatever, as soon as possible, so that we could - - -

HIS HONOUR: I see the virtue in that. Because we are dealing with matters of suppression, I can anticipate that there will be some issues floating about, both between the parties and concerning the preparation of the public record, about how to deal with the material publication of which it is sought to suppress. Can I simply invite the parties to give attention to that and to attempt to resolve any difficulty in the most sensible way that seems able to be done consistent with parties’ obligations.

MR BEACH: We have already been giving that some thought, your Honour. If there is sensitive material in the material that has not been served on us, at least, at first instance, we would like to see it – perhaps only amongst the lawyers – just to see what the true boundaries of the case are. But this is a matter, I am sure, that we could discuss.

HIS HONOUR: I am sure you can. It may get to a point, it may not get to a point, where one or other side feels that there should be some order of the Court that regularises something or buttresses obligations – I am really speaking about the most abstract level. Give thought to whether it can be done by consent order that we can do on the papers. If it cannot, then we may have to fix times for video hearings over the next fortnight, because I think most of this action is going to have to occur between you pretty quick, and therefore it is going to be breaking while the Court is in Canberra. Well, that is simply a problem to be solved, is it not?

MR BEACH: Indeed, your Honour. Thank you, your Honour.

HIS HONOUR: Is there any question of reserving costs? It would seem to me not, but is there?

MR BEACH: No, your Honour.

HIS HONOUR: There therefore seems to be no need to certify. My associate will make two copies of the judgment available to each side, so that you have one upon which you may annotate and one you may preserve clean. As you will have seen, I made a correction as I ran. That correction has been made, but is not initialled. If you wanted me I would initial it, but is that necessary?

MR BEACH: No, your Honour.

MR COSTIGAN: No, your Honour.

HIS HONOUR: It would seem not. I will adjourn this matter until 9.30 Monday morning.

AT 12.30 PM THE MATTERS WERE ADJOURNED
UNTIL MONDAY, 1 MARCH 2004