Hogan v Australian Crime Commission & Ors [2009] HCATrans 191 (12 August 2009)

Last Updated: 17 August 2009

[2009] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S170 of 2009

B e t w e e n -

PAUL HOGAN

Applicant

and

AUSTRALIAN CRIME COMMISSION

First Respondent

THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION

Second Respondent

NATIONWIDE NEWS PTY LIMITED AND JOHN FAIRFAX PUBLICATIONS PTY LIMITED

Third Respondents

Application for expedition

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 12 AUGUST 2009, AT 10.11 AM

Copyright in the High Court of Australia

__________________

MR F. KUNC, SC: May it please the Court, I appear with my learned friend, MS C.C. SPRUCE, for the applicant. (instructed by Robinson Legal)

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

HIS HONOUR: I think there is a submitting appearance from the Australian Crime Commission and the Chief Executor of the Commission, the first and second respondents.

MR KUNC: If your Honour pleases, I move on an amended summons filed 20 July 2009 and rely on the affidavit of David Peter Rydon affirmed 13 July 2009. Could I say to your Honour that the - - -

HIS HONOUR: Just let me find that affidavit. Yes.

MR KUNC: Your Honour, the application today has a slightly unusual history in a procedural sense. When the Full Federal Court delivered its decision we made an application to the Full Federal Court for a stay of its orders pending the application for special leave. That is, of course, the course which this Court in its judgments has said should be followed.

HIS HONOUR: Yes.

MR KUNC: That was granted over the vigorous opposition of the interveners who asked for the stay application to be dealt with by a High Court Judge but Justice Moore said, “No, the High Court has told me I need to deal with it” and that is what his Honour did. The interveners in particular raised the question of public interest and urgency before his Honour. In the course of argument before his Honour, I indicated to his Honour that we would not oppose any application for expedition to be made by the interveners. At the end of the day, his Honour said he thought it more appropriate that we, as the applicant for special leave, bring this application for expedition. So we do so.

HIS HONOUR: I take it it is supported by Mr Blackburn’s clients.

MR BLACKBURN: Yes, your Honour.

MR KUNC: There is no authority that we have been able to find for an application for expedition being determined by this Court where there is already a stay in place having been granted by another court.

HIS HONOUR: Yes, I am not so worried about authorities.

MR KUNC: The issue is simply this, your Honour. As the authorities of which we are aware, this Court has said that the court should be satisfied that there is a reasonable prospect of special leave being granted. That issue has effectively already been adjudicated, in our submission, by Justice Moore in granting the stay where his Honour came to the view that there were not insubstantial prospects. Therefore, in our submission, the jurisdiction to expedite the matter is engaged and we accept, and Mr Hogan accepts, that there is a public interest in the loose rather than technical sense in his affairs and in these documents if they are to be made public.

HIS HONOUR: Yes. Perhaps you had better explain to me the nature of the litigation as it would come to the Court here.

MR KUNC: Yes.

HIS HONOUR: It would seem to be a litigation of many branches.

MR KUNC: Well, there is only one stalk that has reached this high, your Honour, and can I put it this way. Justice Emmett, who was the trial judge, was seized of an application by Mr Hogan to preserve or to claim legal professional privilege in a number of documents seized by the Commission. His Honour adjudicated on that in two phases. The first phase was to determine whether the documents were, prima facie, privileged. His Honour found in favour of Mr Hogan. The hearing was conducted with most of the material put to his Honour being subject to section 50 orders. That was done at the behest from time to time of either or both parties.

The proceedings then came to a second phase where the Commission was vigorously advancing a case that whilst his Honour may have found prima facie privilege the documents were not in fact privileged by reason of the exception in Cox & Railton, namely - - -

HIS HONOUR: This is the fraud or crime exception.

MR KUNC: Fraud or crime exception. Mr Hogan made an application for discovery from the Commission in relation to that aspect of its case. The Commission said it had nothing in its possession that was adverse to its Cox & Railton contentions. Mr Hogan then made an application for further and better discovery. In the course of that application, under cover of section 50, two classes of material were put before his Honour. The first class of material was what is referred to as a schedule of inferences prepared by the Commission giving particulars of the crimes and frauds alleged against Mr Hogan for the purposes of the exception. The second class of material were confidential accounting and other advices which Mr Hogan tendered on the basis of satisfying the court that those were documents that were in the possession of the Commission and which should have been discovered. Your Honour will recall the old Mulley v Manifold test of having to actually satisfy the court that this material is in the possession of the party having to give discovery.

Those two classes of material were both put into evidence under cover of a section 50 order, but in circumstances where his Honour made clear that all of the section 50 orders would be – the continuance of all of those orders would be dealt with on a later occasion because when the matter came on before his Honour, the Commission indicated for the first time that it was withdrawing its agreement or consent to the section 50 regime.

Mr Hogan’s application was successful and further and better discovery was ordered. On the day when further and better discovery was due, the Commission contacted the court and said, “We are abandoning the Cox & Railton Case and the proceedings can be brought to an end”. So by the time his Honour came to exercise the section 50 discretion again, the case was really at an end and the Cox & Railton Case in which the section 50 orders had been made had been abandoned by the Commission. We applied for the continuation of section 50 orders generally. The proceedings before this Court and before the Full Court are limited only to the two classes of material that I have described - - -

HIS HONOUR: Namely?

MR KUNC: Namely the inference schedule setting out the allegations made against Mr Hogan and the confidential accounting and other advices that had been tendered. In the Full Court by a majority of two to one their Honours accepted that the trial judge was correct in not continuing the section 50 orders in that material. Justice Gilmour was in vigorous dissent and that is the subject matter of the special leave application.

HIS HONOUR: What will the point of principle be, if any?

MR KUNC: There are several points of principle arising from - - -

HIS HONOUR: As to the construction of section 50, or the operation of section 50.

MR KUNC: As to the operation of section 50, in particular Justice Jessup writing the majority judgment seems to have glossed the section by talking about having to satisfy the court that the exceptional should replace the normal. We submit there is a genuine issue of principle as to whether that is an unjustified and impermissible gloss on the plain language of the section and the major case on the section, which is Parish v The ABC decided by the Full Federal Court some years ago.

HIS HONOUR: Yes. Do you have Parish there by any chance?

MR KUNC: We have not brought it with us, your Honour.

HIS HONOUR: Just as well Justice Gaudron is not here.

MR KUNC: Your Honour - - -

HIS HONOUR: Never turn up without these things. Does Mr Blackburn have it?

MR BLACKBURN: I have not brought Parish, no, your Honour.

MR KUNC: No, your Honour, I do not think - - -

HIS HONOUR: Do you have section 50?

MR KUNC: I can tell your Honour what it says.

HIS HONOUR: I know what it says. It says:

The Court may . . . make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

So it seems to me, firstly, it has to appear to the court to be necessary in order to prevent prejudice and that is what there is a debate about, is it not?

MR KUNC: Yes, particularly in the context of where the – by the time his Honour was coming to re-exercise this discretion, the case in which this interlocutory application for discovery had been brought was abandoned by the Commission.

HIS HONOUR: Now, this word “discretion” I think causes a problem. What the section is saying is if this appears to the court – so it has to appear to the court – then the court may do something. To throw the word “discretion” over the whole of the section seems to me to be curious. The phrase “as appears to the Court” is a jurisdictional fact, is it not?

MR KUNC: Yes.

HIS HONOUR: Something has to appear to the court and there is a debate about whether it does properly appear to the court. If it does appear to the court properly, does the court nevertheless still have a discretion indicated by the word “may”?

MR KUNC: That is the way the case was conducted below. There is a House v The King point as well lurking in this appeal to this Court because in the majority judgment the Court accepted that his Honour, the trial judge, had proceeded on a wrong basis as to a particular matter which Justice Jessup characterised as merely a technical error. There is an issue which we wish to agitate on the application as to the characterisation of errors for the application of House v The King. Has your Honour had an opportunity to peruse the application for special leave which should be on the file? Yes.

HIS HONOUR: Now, it is unfortunate in a way – this question of discretion is a slippery one which we discussed in Dwyer [2008] HCA 13; (2008) 234 CLR 124 at 138. In preparing the special leave submissions I think some attention had better be paid to that.

MR KUNC: Your Honour, the special leave submissions – the summary of argument is due to be filed today and it was going to be filed - - -

HIS HONOUR: That is right, that is why I am taking these points up with you. In ABC v Parish, I think the matters I have been putting to you are to some degree found in the judgment of Sir William Deane at page 253. He was dissenting as to some aspects, was he not, in Parish?

MR KUNC: He was dissenting as to some aspects but his reasoning on those aspects was, as it were, with the majority and he dissented in the result.

HIS HONOUR: The reason why I mention Sir William Deane’s judgment is that Sir Nigel Bowen and Justice Franki at 234 and 246 are rather looser in their analysis of section 50. If it is going to come here it has to be looked at fairly closely.

MR KUNC: Well, it will be, your Honour, and below we placed particular emphasis on the analysis of Justice Deane.

HIS HONOUR: Yes.

MR KUNC: For precisely that reason.

HIS HONOUR: All right.

MR KUNC: In terms of expedition, your Honour, I can indicate that we were in a position subject to what has fallen from your Honour today to file the summary of argument today, which is when it is due.

HIS HONOUR: Yes.

MR KUNC: I understand from the regular timetable, as it were, in the absence of expedition that all the paperwork would have been in the ordinary course completed by 30 September.

HIS HONOUR: Yes.

MR KUNC: Now, if your Honour is minded to grant expedition, then we will of course trim our sails accordingly.

HIS HONOUR: Yes, that is right. Well, the next special leave day in Sydney is on 4 September. That list is full. I would be prepared to expedite it to the list in Sydney on Friday, 2 October. Is that convenient to counsel?

MR BLACKBURN: It will be personally inconvenient for me, your Honour, but that is of no importance.

HIS HONOUR: Do you have a trial?

MR BLACKBURN: No, I will be on holiday, your Honour.

HIS HONOUR: Well, that does not strike any sympathetic chord at all.

MR BLACKBURN: No.

MR KUNC: That is suitable, your Honour.

HIS HONOUR: So we need a timetable, do we not, to get yourself - - -

MR KUNC: Yes, would your Honour be prepared to stand the matter down while we sort something out between us?

HIS HONOUR: Yes, mention it again when you have a timetable.

MR KUNC: If your Honour pleases.

AT 10.25 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.07 AM:

MR KUNC: If your Honour pleases, may I hand up some short minutes.

HIS HONOUR: Are these agreed?

MR KUNC: Yes, your Honour.

MR BLACKBURN: Yes, your Honour.

HIS HONOUR: Yes, very well then. In matter No 2 upon the amended summons filed on 20 July I make orders:

1. The applicant file and serve summary of argument including the attachment of documents referred to in rule 41.09.7 and draft notice of appeal by 17 August 2009.
   
2. The respondents file and serve a summary of argument on or before 7 September 2009.
   
3. The applicant file and serve a reply to the respondent’s summary of argument by 14 September 2009.
   
4. The applicant’s application books be filed and served on or before 18 September 2009.
   
5. Set down the special leave application for hearing in the list in Sydney on 2 October 2009.
   
6. Costs of the summons will be costs of the special leave application.
   

Yes, thank you, gentlemen.

AT 11.09 AM THE MATTER WAS ADJOURNED