Hogan v Australian Crime Commission & Ors [2009] HCATrans 252 (2 October 2009)

Last Updated: 7 October 2009

[2009] HCATrans 252

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 Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 2009, AT 10.50 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC: May it please the Court, I appear with MR F. KUNC, SC and MR P. KULEVSKI 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 respondents. (instructed by Blake Dawson Lawyers)

GUMMOW J: Yes, Mr Blackburn. There is a submitting appearance from the first and second respondents, the Australian Crime Commission and the Chief Executive Officer of that body. We would be assisted to hear first from you, Mr Blackburn.

MR BLACKBURN: May it please the Court. If the Court pleases, in our submission, special leave should be refused on two basic grounds. The first is that the applicant has not demonstrated that the failure to make or maintain section 50 orders over this material produced or even come close to, in our submission, a miscarriage of justice that requires a grant of special leave.

GUMMOW J: It requires what?

MR BLACKBURN: Grant of special leave.

GUMMOW J: A miscarriage of justice?

MR BLACKBURN: It does not come close, your Honour, in our submission, to a miscarriage of justice that would require a grant of special leave.

GUMMOW J: Where do you get that expression “miscarriage of justice” from?

MR BLACKBURN: The Judiciary Act, your Honour. The second ground that we advance is that when one really looks at the arguments that are advanced by the applicant in relation to supposed points of general importance, there is no point of general importance that arises out of the circumstances of this case, in our submission. The favoured point, as far as we can see, of the applicant is that there is an issue to be teased out of section 50 as to whether an appeal in relation to a section 50 order gives rise House v The King principles or whether it is just a reconsideration of jurisdictional facts contained in the section.

GUMMOW J: The fact is this Court has never looked at section 50 of the Federal Court Act, has it?

MR BLACKBURN: Not it has not, your Honour, that is so, but that seems to be the principal point that is advanced and, in our submission, your Honours, it is a point that is illusory for this reason, because even if technically there is an issue about the proper construction of section 50, does an appeal from a section 50 order require the application of House v The King principles or is it just a factual reconsideration of the jurisdictional facts contained in the section? Even if there is that issue, the inquiry is arid and otiose for this reason, that one of the jurisdictional facts, and perhaps the only jurisdictional fact in the section, in our submission, is the opinion or satisfaction of the judge and it is perfectly clear that appellate consideration of a jurisdictional fact of that kind is governed by principles that are indistinguishable from those contained in House v The King.

GUMMOW J: I cannot see the words “miscarriage of justice” in section 35A. I can see the words “administration of justice”, the words “public importance”3 and so forth. Yes, go on.

MR BLACKBURN: Your Honour, can I deal with the first issue first. We do not understand it to be in dispute in this application that where the exercise of statutory power depends upon a finding of fact by the Court and where that finding of jurisdictional fact is the opinion or satisfaction of the Court as to a certain state of affairs, then on appeal the appellate court applies principles that are not different from those contained in House v The King. That is a principle, in our submission, affirmed in a line of cases in this Court. We have listed them in footnote 13 in our written submissions, R v Connell, Foley v Padley, Minister of Immigration v Eshetu. It, in our submission, accords with principle, it accords with common sense and, as we say, it does not seem to be under challenge in this case, nor could it be, in our submission.

GUMMOW J: What do you say as to Mr Gleeson’s point on what one might call the merits in your client’s position that this privileged material was produced and a shift in the nature of the litigation and then it said it should be disclosed?

MR BLACKBURN: I will go straight to that point. Insofar as the administration of justice is said to be something that requires a grant of special leave, in our submission, that submission has a kind of superficial and emotive attractiveness which really needs to be unpicked because when it is subjected to a little bit of scrutiny, in our submission, what it boils down to is this proposition, that the failure by Justice Emmett and the Full Court to appreciate that refusing Mr Hogan a section 50 order amounted to prejudice to the administration of justice. Now, as we say, a little bit of unpicking of that argument, which I propose to try to do, and stripping away the emotion surrounding it shows that that is an extraordinary proposition, in our submission, and cannot be right.

HEYDON J: “Extraordinary” is an emotive word.

MR BLACKBURN: Yes, your Honour. Let me put it this way. There is nothing in our submission peripheral or accidental about the tender of these documents. What happened was this. The ACC seized certain documents belonging to the applicant. The applicant brought proceedings to recover those documents on the basis that the documents were the subject of legal professional privilege. The ACC’s defence to those proceedings brought by the applicant vigorously propounded, to use the phrase in the applicant’s written submissions, was that the documents were not privileged because they came into existence in pursuance of a fraud or a crime. Its case – and this is an important point, in our submission – the ACC’s case fundamentally on that issue was that it proposed to ask the court to draw inferences to that effect from the evidence that they proposed to tender.

The applicant sought particular discovery of documents from the ACC that militated against those inferences being drawn, that is, that the documents were brought into existence in furtherance of a crime. The ACC said, we do not have any such documents. The applicant then, by motion, applied for or sought further and better discovery. Mr Hogan persuaded Justice Emmett by the evidence on that motion and the submissions that there may well, in fact, be such documents because the court not only ordered that a list of such documents be provided, but Justice Emmett also ordered that an affidavit be made by the ACC setting out the inquiries and the steps that it had taken to identify those documents and collect them together. Instead of producing that list of documents and making the affidavit deposing to those matters, what happened was that the ACC, upon those orders being made, abruptly caved in on its principal defence to the proceedings, that is, that these documents - - -

GUMMOW J: “Caved in” is more emotion, is it not?

MR BLACKBURN: Sorry, your Honour, I will try not to. That was something, in our submission, that the observer may reasonably speculate was, at least in part, due to the orders made by the court on the application for further and better discovery, that the ACC should identify and produce that material, that weakened its central case. Those orders were made upon the evidence the observer might also reasonably conclude that there were indeed such documents which the ACC had initially declined to discover.

As interlocutory proceedings go, this one was highly significant. It was tightly bound up with the central issue in the case, that is, the ACC’s defence to Mr Hogan’s proceedings, and, in our submission, the observer might well speculate that the reason for the making of that order, including the order of the affidavit detailing the steps undertaken, and the ACC’s abrupt about face – and that was it was, your Honour, that is not an emotional term, that is exactly what happened – was in consequence of the material that was advanced on the application for further and better discovery.

So the content of the documents that are dispute in this matter are likely, in our submission, to be absolutely central to understanding why the Australian Crime Commission abruptly abandoned its hitherto strongly, vigorously propounded defence of the proceedings. So there is nothing peripheral or unimportant about the discovery proceedings. They were tightly bound up for the central issue in the proceedings and where the applicant in paragraph 64 and also, I think, 69 of his written submissions says the documents were “immaterial to the substantive proceedings”, their words, they were, in fact, central to the main issue in the substantive proceedings.

It is also said that the documents were only relevant “to understand why interlocutory discovery orders were made”, and, in our submission, that submission is not correct for the same reasons. What is likely, in our submission, to bring the administration of justice into disrepute is the concealing of the evidence that caused the order to be made that apparently, one might reasonably speculate, caused an abrupt abandonment of its defence by the ACC.

The other matter is this. It is said that these were private documents or confidential documents, but private documents involving the financial affairs of parties to litigation are tendered into evidence every day of the week in litigation. It may be inconvenient or uncomfortable for the persons concerned, but Mr Hogan has adduced no evidence of hardship or prejudice but asks the Court to infer that he will suffer serious injury such that prejudice will be caused to the administration of justice. The only thing, in our respectful submission, that the Court can infer is that he will suffer some inconvenience or discomfort if his documents are exposed in the usual way. An inconvenience or discomfort to Mr Hogan cannot possibly, in our submission, amount to prejudice to the administration of justice, which is the requirement in section 50.

So that is why we say, and we repeat, your Honour, that is it an extraordinary proposition that the failure to recognise that the granting or maintaining of the section 50 order was something that caused or occasioned prejudice to the administration of justice.

GUMMOW J: You had a dissenting judgment in the Full Court, did you not?

MR BLACKBURN: We did, Justice Gilmour, your Honour.

GUMMOW J: What do you point to as error of that dissent?

MR BLACKBURN: Your Honour, if I can summarise why Justice Gilmour dissented, I think there are essentially three bases. I am looking at page 78 of the application book. His Honour Justice Gilmour first said that Justice Emmett was in error in holding that this was not a case where the applicant would be deterred from pursuing a remedy if the section 50 order was not made. Well, prima facie, in our submission, that cannot be correct because he did tender the documents and was obviously not deterred. But where, with respect, Justice Gilmour has fallen into error in so holding is that he has accepted the evidence of the solicitor who said in his affidavit that he would not have tendered the documents or would have tendered them in a redacted form had he thought that the section 50 orders would not have been maintained.

Your Honour, Justice Emmett did not accept that evidence and if there is one thing made clear from what happened on 19 May before Justice Emmett was this. The ACC said it no longer supported the regime of confidentiality under section 50. The parties agreed and the Court concurred that for the sake of convenience an interim order would be made to allow the discovery application to go ahead, but it was openly acknowledged on all sides that the issue would be globally revisited at a later time. If the solicitor genuinely thought that the order that was made on that day was an order that in all probability would subsist in perpetuity, that only, with great respect, speaks error on the part of the solicitor. So that, we say, Justice Gilmour’s reasons on that point are, in our respectful submission, unconvincing.

The second point of dissent, as we understand it, appears, I think, at pages 82 and 83 of the application book where his Honour placed great emphasis on the fact that the contents of the inference schedule, which was one of the documents we are fighting about, was confidential but, in our respectful submission, that reason is unconvincing because the fact that it was confidential only begs the question of whether it should be the subject of a section 50 order because the exposure of it would amount to something as serious as prejudice to the administration of justice.

It must be remembered that that phrase “prejudice to the administration of justice” is collocated with prejudice to the security of the Commonwealth and, as Sir Nigel Bowen pointed out in Parish, we are not dealing with trivialities when we are thinking about the concept of prejudice to the administration of justice. So, what, with respect, if I can ask rhetorically, was Justice Gilmour saying? Was he saying that because a document is confidential and might meet the requirements for an injunction in a breach of confidence case, then the exposure of it will necessarily amount to prejudice to the administration of justice and it ought to be the subject of an order? In our submission, that dissent on that point is not convincing.

The third matter that his Honour seemed to rely on appears in paragraph 121 of his judgment at page 84 of the application book. His Honour took Justice Emmett to task for characterising the applicant’s submissions as reversing the correct approach. In our submission, Justice Emmett was plainly correct, as Justices Jessup and Moore agreed. So, in our submission, your Honour, with great respect, Justice Gilmour’s points of dissent are unconvincing when placed beside the reasons of Justice Emmett, Justice Jessup and Justice Moore.

Those are the submissions we wish to make about, as it were, the merits of the case. The other point is this and it is a short point, if your Honours please. There can really be no doubt, in our submission, that – and our friend seemed to agree with this proposition – that there is some kind of discretion lurking within section 50. I think in their written submissions they suggest that if there is a discretion there, then it only relates to the terms of the order, but they agree that there is some kind of discretion lurking there. There cannot be any doubt, in our submission, that what section 50 requires is the subjective opinion of the judge concerned - - -

GUMMOW J: What do you mean by “subjective opinion”?

MR BLACKBURN: Well, the opinion, your Honour, of the judge that the administration of justice will be prejudiced if the order is not made.

GUMMOW J: In a finding.

MR BLACKBURN: Yes, your Honour, but not a finding of isolated objective fact. The jurisdictional fact, to embrace the argument put the applicant, that the section contains is the opinion or satisfaction of the judge that prejudice will be caused to the administration of justice and, as we have submitted – and we do not understand this principle as in dispute – when an appeal court on a rehearing comes to consider that finding of fact, it does not substitute its own opinion for that of the first instance judge, it applies principles that are indistinguishable from those contained in House v The King. So that even if technically there is an issue to be teased out as to whether this section requires House v The King principles on appeal or whether it just requires the examination of the jurisdictional fact contained in it, the Full Court, in substance, applied the correct test.

GUMMOW J: What do you say about paragraph 107 again of Justice Gilmour’s reasons? Paragraph 107, page 80, his Honour said:

The appellant submits the inference schedule was plainly a confidential document. I agree.

Do you dispute that?

MR BLACKBURN: Yes, we do dispute that, your Honour, but even if it was a confidential document, it still begs the question, in our submission, why does that mean that the exposure of it - - -

GUMMOW J: Because it destroys any property in it, that is why.

MR BLACKBURN: I am sorry, your Honour? Because it destroys the confidence?

GUMMOW J: Confidential information may be property, may it not?

MR BLACKBURN: Indeed, your Honour.

GUMMOW J: Order under section 50 may lead to its destruction.

MR BLACKBURN: Indeed, your Honour, but our point is that confidential material is deployed into evidence in litigation all the time and it sometimes, but not always, gets the advantage of a section 50 order or a confidentiality order. But the mere fact that the details of a person’s tax affairs are private and confidential and could be the subject of an action for breach of confidence, does not necessarily mean that the administration of justice in the Commonwealth will be prejudiced unless a section 50 order is made.

GUMMOW J: Anything else?

MR BLACKBURN: No, your Honour. Unless there is anything else I can help the Court with, those are my submissions.

GUMMOW J: I meant to ask you, Mr Blackburn, is there presently enforced still these stay orders made in the Federal Court?

MR BLACKBURN: Yes, your Honour. They were made subject to further orders of this Court.

GUMMOW J: Unless and until we do something, they stay in force.

MR BLACKBURN: Yes, that is my understanding of it, your Honour.

GUMMOW J: Is that right, Mr Gleeson?

MR GLEESON: Yes, your Honour.

GUMMOW J: Yes. There will be a grant of special leave in this matter. It will be a one-day case I should have thought.

AT 11.09 AM THE MATTER WAS CONCLUDED