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Attorney-General for NSW v Nationwide News Pty Limited & John Fairfax [2007] HCATrans 803 (14 December 2007)

Last Updated: 19 December 2007

[2007] HCATrans 803


IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Sydney No S551 of 2007

B e t w e e n -

ATTORNEY GENERAL FOR NEW SOUTH WALES

Applicant

and

NATIONWIDE NEWS PTY LIMITED AND JOHN FAIRFAX PTY LIMITED

Respondents

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2007, AT 2.23 PM

Copyright in the High Court of Australia


MR L.A. BABB, SC: I appear for the applicant with my learned friend, MR P.F. SINGLETON, and my learned friend, MS R. GRAYCAR. (instructed by the Crown Solicitor’s Office - Sydney)

MR T.D. BLACKBURN, SC: May it please the Court, I appear with my learned friend, MR T. MALTZ, for the respondent. (instructed by Blake Dawson Lawyers)

GUMMOW J: Yes, Mr Babb.

MR BABB: Your Honours, this is a case that concerns the proper interaction between the doctrine of public interest immunity and the principle of open justice. It is submitted it is a case where there should be a grant of special leave because of general and public importance.

GUMMOW J: What is the source of each of those principles or bodies of law you refer to? The first is a matter of law of evidence, is it not?

MR BABB: It is a fundamental common law doctrine.

GUMMOW J: Whereby certain evidence is excluded if privilege is claimed, is that right? It used to be called Crown privilege?

MR BABB: It did used to be called Crown privilege.

GUMMOW J: The basis of the second doctrine is what?

MR BABB: It is a principle that arises out of the proper operation and administration of courts.

GUMMOW J: Being an aspect of the inherent characteristics, to use that expression, that come with the creation of a court, in our system. Yes, all right. Now, how do they get blended?

MR BABB: They get blended in this way, your Honour. The public interest immunity is not limited to the exclusion of material. It can also extend to the non-publication of evidence that is adduced in court. That precise thing was done in the case of Smith and there is no authority for the limitation of pubic interest immunity and to stop its operation once evidence is adduced in court, in my submission.

GUMMOW J: I am sorry, could you just say that again?

MR BABB: Yes, that there is no limitation, that the doctrine applies only to the exclusion of evidence, your Honour.

GUMMOW J: Yes.

MR BABB: It is a doctrine that, as I indicated, was not applied in Smith’s Case and - - -

GUMMOW J: Just while we are there, it follows, does it not, from that decision of the House of Lords in the Society for the Prevention of Cruelty to Children that restraints imposed by operation of the law of confidential information are not in play here? That is not what it is founded on. Whatever it is founded on it is not - - -

MR BABB: I do agree that that is not the basis of this application.

GUMMOW J: That is why I was trying to work out what the parameters are, what we are dealing with.

MR BABB: Yes. The basis of the application in this particular case is the executive interest in the suppression of the information of the investigative technique that was in issue, a technique that still has utility, even though there has been some form of disclosure, some form of publication.

GUMMOW J: Not the least by our decision, I suppose.

MR BABB: That is quite true, but not disclosure and publication in relation to its use in New South Wales, but for a chain of piecing together a brief mention in the decision by this Court in Commissioner of Police (Victoria) in relation to the similar technique and other materials. So, a utility within the State of New South Wales that is undiminished, it is submitted.

The test applied by the Court of Criminal Appeal being that whether it is necessary for the administration of justice that a non-publication order is made pays insufficient attention to the public interest - - -

GUMMOW J: I suppose you have to persuade us that Justice Hodgson was wrong or there is a sufficiently apparent problem with what his Honour decided for us to get involved.

MR BABB: Yes. The relevant determination by his Honour is found at paragraphs 24 and 25 of his Honour’s judgment and that is at page 39 of the application book. His Honour found in the posing of the first question at paragraph 24 that – and in combination with the reading of paragraph 25 - that there was application of the doctrine of public interest immunity even after information had been adduced as evidence in proceedings, as had occurred in this case. He did, however, determine that the appropriate test as to non-publication was the one that I have set out necessary for the administration of justice the order be made.

That test did not give effect to the basis upon which the application for non-publication was made which was public interest immunity and it is well recognised that the appropriate test to be applied in relation to public interest immunity is a balancing of the respective interests and in this case those interests were the interests in non-publication, the executive interests in non-publication balanced against the interest in open justice.

GUMMOW J: What would you have us do in terms of outcome? I see from your draft notice of appeal you would want us to decide this actual outcome, would you not? Is that what you want? We would really have to remit it, would we not? Would it not really be your suggested order 6 on page 52?

MR BABB: Yes. Your Honour, that may well be so that remit from would be the most appropriate order.

GUMMOW J: Yes. It is said against you, if you just look at Mr Blackburn’s submissions on pages 62 and 63 that - you could put it at a fairly low level – it is not at all that clear that a different result would be reached in this particular case and that that is a reason for leaving things lie where they presently lie after the Court of Appeal decision.

MR BABB: Yes, your Honour. About that I submit that there is some force in that submission but that this is a – the application of an incorrect test has a significant impact in this regard, the threshold, the test of being necessary in the administration of justice is a high threshold when compared to a balancing of the respective interests and also the creation of the onus on the moving party in relation to that are important matters to take into account, that in the exercise of the court’s discretion there is a good chance that the result would be different when looked at the importance in the suppression of the technique.

GUMMOW J: Thank you.

MR BABB: As well as being a matter where it could well result in a different outcome, it is a significant matter of principle that, in my submission, needs resolution. It is an important distinction between the two tests that are to be applied and an important matter for resolution. This is the only case that has been able to be found where there has been an acceptance, in our submission, that public interest immunity applies and yet the balancing exercise is not the test that was invoked.

GUMMOW J: Is there anything else?

MR BABB: No, your Honours, they are my submissions.

GUMMOW J: Yes, thank you. Yes, Mr Blackburn.

MR BLACKBURN: Thank you, your Honour. If the Court pleases, what the applicant contends for here needs to be exposed and made clear. The Attorney is contending for a discretionary power to make an order prohibiting publication of evidence given in court where the court thinks that it is in the public interest to do so, even, apparently, in circumstances where it is not necessary to make that order to secure the proper administration of justice.

That proposition was rejected by Justice Hodgson and the Court of Criminal Appeal and the references are paragraphs 36, 27 and 25 of the application book. The proposition thus stated is sufficient, in our submission, to refuse leave to appeal in this case and we say that for this reason. The power of the Supreme Court of New South Wales which has no particular statutory power to suppress evidence given in court, the power to suppress evidence in the Supreme Court of New South Wales stems from either section 23 - - -

GUMMOW J: It does not suppress the evidence - this word “suppression” is fairly emotive. It restricts it in a particular fashion.

MR BLACKBURN: I am sorry, your Honour, I know, to order that the proceedings of the court not be published is probably a better way of putting it, is a power that either derives from section 23 of the Supreme Court Act or inherently and there are a number of places where the authority for that proposition can be found but it was said by the Court of Appeal in John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 334 at paragraph 38, also, paragraphs 25 and 29.

In our submission, no general power exists in the Supreme Court to order that evidence given in court be prohibited from publication on the basis that the court considers it desirable or convenient in the public interest to do so. The exercise of the two sources of power that I mention, namely, section 23 and the inherent power, is premised upon the administration of justice and so that orders of this kind are made, in our submission, on the authorities and in principle on the basis that there is no power to make such an order on the basis that there is some public interest to be protected that is quite extraneous or might be quite extraneous to the interests of the administration of justice. But that, in our submission, stripped to its essentials is the proposition for which my learned friend is contending.

The second point is this that the authorities, in our submission, speak with one voice that such an order may only be made on the basis of necessity. If the Court pleases, the reason for that is that such orders are deeply repugnant to what is being described repeatedly, and by this Court, as one of the most important attributes of a court, namely, that a court of law shall conduct its business in public view. A corollary of that, which is also represented in the authorities, is that there should be no restriction on publication of what takes place in open court.

It is for those reasons, in our submission, that the courts have stated again and again that the touchstone for making an order of this kind is necessity in the interests of the administration of justice and we say - - -

GUMMOW J: You may be right about all of that, Mr Blackburn, but the first question is, is this an appropriate occasion for us to get engaged in a deliberation upon these important matters?

MR BLACKBURN: Your Honour, in our respectful submission, not at all, and we say that concisely, I hope, for these reasons – apart from the fact which I have not enlarged on and that is that again the authorities, with one voice, say that the categories of non-publication order are not to be enlarged – including this Court – are not to be enlarged except by Parliament, but putting that aside to answer your Honour Justice Gummow’s question - - -

GUMMOW J: There might be a Chapter III problem with Parliament getting too involved at the federal level, if I may say so.

MR BLACKBURN: There might indeed, your Honour. We say that it is highly unlikely because of the factual findings made by the Court of Criminal Appeal and by Justice Fullerton, in the first instance, that a different result would be likely to ensue on appeal, even on the application of the test proposed by the applicant.

Your Honours, the Court of Criminal Appeal held, in agreement with the trial judge, that it is not sufficient that suppression of the evidence would be convenient, reasonable or sensible or that it serves the public interest or even on balance serves the public interest. The Court of Criminal Appeal also noted – and the references to that are at application book 43 and 34 - that the Victorian Court of Appeal in Re Application by Chief Commissioner of Police (Victoria) [2004] VSCA 3; [2004] 9 VR 275 came to a similar conclusion on a similar question, but as to factual findings the primary judge found, and accepted by the Court of Criminal Appeal, that – at paragraph 22 of the application book - the design, implementation and successful utilisation of the technique is in the public domain. It was also found, and the reference is at application book 9, paragraph 25, that the
details of the technique were reported in the “Australian Newspaper on 31 August 2007”:

There was extensive print and online media interest in the use of “the technique” in Victoria –

and the reference is application book 10, paragraph 26. The details of the technique have also been reported in the regional press in Newcastle and Wollongong and that is at application book 10, also, paragraph 28. The technique has also been the subject of extensive judicial commentary in decisions of the Canadian Supreme Court and has been disclosed in proceedings in this Court in Tofilau v The Queen [2007] HCA 39.

For all of those reasons the Court of Criminal Appeal found no fault with the determinations made by the trial judge that it was not necessary in the interests of the administration of justice that suppression orders be imposed. We say, your Honours, that in those circumstances it seems highly unlikely that even applying the test asserted by the applicant in this case that there will be a different result on appeal. That is what we say in answer to your Honour Justice Gummow’s point.

It would come close, in our submission, to being a waste of time to allow the essential question to be ventilated. But even on the applicant’s assertion of the test, that is that you balance the public interest in concealing the details of the technique against the public interest in the open administration of justice, given the very high importance of the latter principle, and given the publicity which has already been given to the details of the technique, it seems highly improbable - - -

GUMMOW J: We do not need to hear from you any more, Mr Blackburn. Mr Babb, anything in reply?

MR BABB: Just briefly, your Honour. There is power, it is submitted, inherently in the Supreme Court to make an order for the non-publication of the evidence. The Supreme Court has power to receive and determine claims of public interest immunity and that gives rise to sufficient power to make orders protecting the pubic interest. It is an inherent power to vindicate the law by an appropriate order and this is a suitable vehicle because the issue is important. The issue is very clearly illuminated in this particular case and there is still utility in the technique. Thank you.

GUMMOW J: We are not satisfied that there are sufficient prospects of the appellant achieving a different outcome to that in the Court of Appeal, were special leave to be granted. Even if the law be as that for which the applicant contends, accordingly the case is not made out for a grant of special leave. Special leave is refused with costs.

AT 2.43 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.17 PM:

GUMMOW J: There have been some stay orders made by Justice Heydon, have there? Have they come to an end with the determination of the leave application?

MR BABB: They have. There was, however, an order made by the Court of Criminal Appeal that the judgment of Justice Fullerton, the primary judge, that the judgment of the Court of Criminal Appeal not be published for six months because of reference in those judgments to other matters beyond the subject proceedings. By consent, that matter has been back to the Court of Criminal Appeal and only the small portions of the respective judgments that refer to other matters have been subject to orders for non-publication and, by consent, we would seek that your Honours make an order that there be no public access to that material which is currently the subject of an order by the Court of Criminal Appeal.

GUMMOW J: I need to know what the current Court of Criminal Appeal order is.

MR BABB: I understand. If your Honour goes to page 46 of the - - -

GUMMOW J: If it is still extant, why do we need to get involved with it?

MR BABB: Just because of this, your Honour. I was told by the Registrar that because the court file can be inspected by the public and because the full judgments are on the court file that there was a possibility that a member of the public could look at those portions of the judgment subject to an order.

GUMMOW J: Look at which court file?

MR BABB: The High Court’s file.

HEYDON J: Will not order 3 made by the Court of Criminal Appeal just continue until the six month period is over and then it will expire?

MR BABB: Yes, your Honour, and the Registrar raised the concern as to whether that order would be binding on this Court and someone who has sought to examine the documents of this Court.

HEYDON J: It is not binding. Is the problem that the order may not be known to people who are examining the documents on this Court’s file and therefore they may unintentionally breach it?

MR BABB: That is a possibility, yes.

HEYDON J: Whereas what you want is a fresh order?

MR BABB: Yes, a fresh order in relation to no public access to those portions that are on this Court’s file.

GUMMOW J: Is that opposed, Mr Blackburn?

MR BLACKBURN: No, it is not opposed, your Honour.

GUMMOW J: Do you have a formulation of it, Mr Babb?

MR BABB: Yes, thank you. I will hand it up.

GUMMOW J: Perhaps I should read it onto the transcript. The proposed short minute reads as follows:

The Court orders that until further order there should be no public access to the following material on the file of this Court in the matter:

(a) those parts of the judgment of the Court of Criminal Appeal that are subject to orders by that court prohibiting disclosure of that judgment but only so long as the orders of the Court of Criminal Appeal remain in force; and

(b) those parts of the judgment of Justice Fullerton that are subject to the orders by the Court of Criminal Appeal or the Supreme Court prohibiting disclosure of that judgment but only so long as those orders remain in force.


I will just alter the document I have here. So the first line reads:

The Court orders that until further order there should be no public access to the following material on the file of this Court in this matter.

That is consented to?

MR BLACKBURN: Yes, your Honour.

GUMMOW J: Very well. We make an order in the terms of that short minute which is initialled, dated and placed with the papers. Is there anything else?

MR BABB: Thank you, your Honour.

GUMMOW J: The Court will adjourn until 3.30 pm on Tuesday, 29 January 2008 at Canberra.

AT 3.22 PM THE MATTER WAS CONCLUDED


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