Attorney-General for New South Wales v Nationwide News Pty Limited & Anor

[2007] HCATrans 719

[2007] HCATrans 719

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

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 26 NOVEMBER 2007, AT 9.22 AM

Copyright in the High Court of Australia

MR L.A. BABB, SC:   May it please the Court, I appear for the applicant with my learned friend, MR P.F. SINGLETON.  (instructed by Crown Solicitor (NSW))

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)

HIS HONOUR:   I have one problem.  In some parts of the materials that have been filed there is reference to an order of the Court of Criminal Appeal of 3 October and in other parts of those materials there is reference to an order of 4 October and the order in question is, I think, that which was discharged by the dismissal of the appeal by the Court of Criminal Appeal.  Does anyone have the relevant document?

MR BLACKBURN:   Yes, I do have a spare copy of it, your Honour, I think.

HIS HONOUR:   Good.  Just show it to Mr Babb.

MR BLACKBURN:   Does your Honour just want the copy of the actual order rather than the order dismissing the appeal whereby the interim order was dismissed?  I can probably give your Honour both, but I can certainly give your Honour a copy of the order.

HIS HONOUR:   I have the summons and it says it wants the following order:

That the discharge of the New South Wales Court of Criminal Appeal orders dated 3 October 2007 be stayed until –

a future date.  So what we need is something which discharged the New South Wales Court of Criminal Appeal orders dated 3 October.

MR BLACKBURN:   Does your Honour have those orders of 3 October as well or does your Honour want a copy of those orders of 3 October as well because I think we can oblige with both, if your Honour will give me a moment?

HIS HONOUR:   Hand up both if you can and I can take my pick.

MR BLACKBURN:   Your Honour, I hand up two documents.  The first is the order which is the subject which was discharged and the second document is the order dismissing the appeal whereby, I think as we both understand it, the interim order was discharged.  I had trouble getting my mind around it too, your Honour.

HIS HONOUR:   Yes. 

MR BLACKBURN:   Your Honour, I hesitate to interrupt, my learned junior informs me, and I was not there, that when the appeal was dismissed – Mr Singleton might assist here – Justice Hodgson said words to the effect that, “The effect of dismissing the appeal means also that the orders I made on 3 October are discharged”.  I think Mr Singleton who was there, your Honour, agrees with that proposition.

HIS HONOUR:   Yes, that was asserted in someone’s written submissions and I understand that but if what you call the first document, which says, “NOTIFICATION OF COURT’S ORDER”, paragraph 1 of that says, “There shall be no further publication of” certain evidence.  Order 2 says that the present respondents “shall not publish” some words on page 32.  Justice Fullerton was content to make an order in effect preserving anonymity for some police officers and that is not controversial?

MR BLACKBURN:   That is correct, your Honour.

HIS HONOUR:   What was controversial was in effect information about a technique of investigation.  On some date early in October the Court of Criminal Appeal granted an order preventing publication of the investigative technique material.  Which order did that?

MR BLACKBURN:   Your Honour, I understand it is order 1 and 2.

HIS HONOUR:   I see, evidence adduced and other proceedings conducted in closed – order 2, as I understand it, deals with seven words.

MR BLACKBURN:   Yes.

HIS HONOUR:   Order 1 seems to deal potentially with volumes of material.  Order 2 deals with seven words.  Order 1 seems to deal with evidence adduced and other proceedings conducted in closed court.  That could be quite a lot.  But is what you want revealed and what Mr Babb wants not revealed until his special leave application is heard covered by order 1?

MR BLACKBURN:   Your Honour, Mr Babb is the applicant, perhaps he can assist more than I can, but my understanding, your Honour, is that there is no contest about the identity of the undercover operatives.

HIS HONOUR:   Correct.

MR BLACKBURN:   My understanding is that the material in question is simply general material which might be described as the general description of the technique.  If that is wrong, Mr Babb ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that too, but which order said that there should be no further publication of the material describing the technique?

MR BABB:   Your Honour, it is orders 1 and 2 in that order 1 relates to evidence taken in closed court and you will see, your Honour, it is limited or cut back to that material that has not already been made available and each day there was an editing of the closed court transcript to take out that material that disclosed the nature of the technique and the rest of the material was provided to the news interests at the time.  So order 1 goes to that limited material that was edited and was handed over in that edited form to the news interests and order 2 is somewhat different in that they are two short references that were made in open court.

HIS HONOUR:   So short that they occupied seven words?

MR BABB:   Yes, your Honour.

HIS HONOUR:   Order 2 then relates to two short references in open court, again relating to the investigative technique.

MR BABB:   Again relating to the investigative techniques, yes.

HIS HONOUR:   Mr Blackburn seems worried, he raises his eyebrows.  Do you accept what Mr Babb says?

MR BLACKBURN:   Yes, your Honour, I fully accept what Mr Babb says.  I was just concerned that your Honour does not have the precise material which we are fighting over but it may be unnecessary.

HIS HONOUR:   Yes.  But I do not think it is necessary.

MR BLACKBURN:   No, good.  I accept what Mr Babb says.

HIS HONOUR:   At least for the present I do not think it is necessary.  I have read the two affidavits which have been filed by Cheryl Elizabeth Drummy dated 20 November and 23 November.  You rely on them, Mr Babb?

MR BABB:   I do, your Honour.  I read those affidavits.

HIS HONOUR:   Do you object to them, Mr Blackburn?

MR BLACKBURN:   No, your Honour.

MR BABB:   Your Honour will have noticed that in relation to the affidavit of 23 November 2007 it refers to confidential material.  That was not filed and I seek your Honour’s leave to hand that confidential material to your Honour now.

MR BLACKBURN:   I might say, your Honour, that we have not seen the so‑called confidential parts of the first of these affidavits.  I am not sure why.  Perhaps it is thought that we might disclose them to our clients or something.  But we have never seen parts of the first of these affidavits.

HIS HONOUR:   They are said to be, in the open part of the second affidavit, true and correct copies of the confidential affidavits sworn on 27 September and 28 September 2007 by Acting Deputy Commissioner May.  You were not appearing before Justice Fullerton?

MR BABB:   No, your Honour, or Justice Hodgson.

HIS HONOUR:   Were those affidavits viewed by the Fairfax and News Limited representatives?

MR BLACKBURN:   Not the closed or the confidential affidavits, your Honour, no.

HIS HONOUR:   For the moment I might reject the tender if it was a tender.  I think we can proceed without it.  The next thing is this.  On Friday, 14 December there will be a special leave day in Sydney.  Do you apply for the matter to be expedited and heard in that list?

MR BABB:   Yes, your Honour, I do.

HIS HONOUR:   It will involve you and in due course the respondents acting with considerable speed in terms of basically preparing written submissions and then you of assembling everything that needs to be assembled into an application book.  What is your attitude to that application, Mr Blackburn?

MR BLACKBURN:   May I just get some instructions, your Honour?

HIS HONOUR:   Certainly.

MR BLACKBURN:   We certainly cannot oppose that, your Honour.

HIS HONOUR:   Very well.  I have read the written submissions and nearly everything else that the parties have filed.  The consequence of the matter being heard on 14 December will be that the order which it is desired to stay will have to be stayed only for a further 15 days.  Is there anything additional to what has been said in your written submissions, Mr Blackburn, that you want to say now in view of this development?

MR BLACKBURN:   Yes, your Honour, may I very briefly?

HIS HONOUR:   Certainly.

MR BLACKBURN:   Your Honour, as we understand it, the accused in the proceedings that this application relates to is going to be sentenced on the 30th, that is, in a few days time and, your Honour, my clients are, of course – their core business is news and they would like to be in a position to make certain observations about the matter at the time that Mr Donai is sentenced.  That is the first thing.  So, your Honour, we do not simply consent to the idea of the stay continuing for a short period of time for that reason, but may I also make this observation, your Honour, about the discretionary aspects of this. 

Let it be assumed that the special leave is granted and in due course on the appeal this Court holds that the principle for which the Attorney contends, namely, that in an application of this kind the proper test is to balance the public interest in the concealment or suppression of the information with the public interest in open justice, your Honour, it must be observed, in our submission, that that is a question which, in effect, has already been answered unanimously by a single judge and by ‑ ‑ ‑

HIS HONOUR:   Single judges usually do answer questions unanimously.

MR BLACKBURN:   Yes, well, and a Bench of the Court of Appeal.  Even if it is held by this Court that the Court of Appeal and Justice Fullerton got the test wrong and the test is as the applicants contend for, as a matter of practical reality the issue involved in determining whether the suppression was necessary in the interests of the administration of justice, which is what the Court of Appeal and Justice Fullerton decided, is in effect exactly the same question that would be decided even on the test as contended for by the Attorney.  We say that for this reason.

What the Court of Appeal in effect decided was that the suppression of this information was not necessary in the interests of the administration of justice and that the suppression of it was not outweighed by the public interest in what is called open justice.  In determining that it was not necessary to suppress it in the interests of the administration of justice, in effect what the Court of Appeal was doing, in our submission, was saying that the public interest will not be harmed by the disclosure of this particular method of police investigation which is exactly the same issue that would be weighed against the principle of open justice if the test contended for by the Attorney was the correct test.

So that even though the question of whether the Court of Appeal applied the wrong test, which is the question raised by the special leave application, even if that were decided in favour of the Attorney in this case, the considerations that were actually taken into account by the Court of Appeal were in effect or in practice exactly the same because the Court of Appeal was determining whether it was in the public interest that this particular method of police investigation should be suppressed.  Your Honour, Justice Fullerton and eventually the Court of Appeal have determined on the facts that it was not necessary in the interests of the administration of justice to conceal this police investigative method.

It seems unlikely, your Honour, and, of course, one can only make general predictions in a case of this kind, but it seems highly unlikely that whether this Court itself upon a successful appeal reconsider the matter or whether this Court remitted it to the Court of Criminal Appeal, it seems highly unlikely that the Court of Criminal Appeal or this Court would decide that partly factual question in a different way.  We say that because when one actually looks at – I do not know whether your Honour wishes me to go to the judgment of the Court of Criminal Appeal or Justice Fullerton’s judgment – but when one looks at the matters that those courts took into account in determining that it was not in the interests of the administration of justice or not necessary in the interests of the administration of justice that those matters be suppressed, one sees that the courts took these matters into account. 

First of all, the technique, as it is called, is widely in the public domain, it has received widespread publicity in newspapers already, although we accept that ‑ ‑ ‑

HIS HONOUR:   Not your newspapers.

MR BLACKBURN:   Well, it was in the Newcastle Herald and the Illawarra Mercury, your Honour, which I think are Fairfax’s newspapers.

HIS HONOUR:   They are large cities.

MR BLACKBURN:   They are, but apart from that, your Honour, it has been ventilated in the judgment of this Court in Tofilau v The Queen [2007] HCA 39, also thoroughly ventilated by the Victorian Court of Appeal in Re Application by Chief Commissioner of Police (Vic) For Leave to Appeal (2004) 9 VR 275, but the factual finding that has been made, your Honour, is that it is widely in the public domain. I do not want to spend time unnecessarily going to the matters in the judgment, but they are ventilated

fully in Justice Fullerton’s judgment in paragraphs 24 to 28 and accepted in the CCA judgment at paragraph 39 in Justice Hodgson’s judgment.

Your Honour, in our submission it is highly unlikely that when that same question effectively is revisited upon this Court, holding if it does that the Commissioner is right, that any different result will ensue.  This is one of those applications, your Honour, where, in our submission, the discretionary considerations against the making of the order appear quite overwhelming.  Of course, your Honour, there is the supplementary matter which is really, I suppose, a fundamental matter of law involved in the special leave application and that is this. 

There is no case, as the Court of Criminal Appeal effectively held, that says that the categories of suppression order can be expanded generally to accommodate applications based on public interest immunity.  Your Honour, this Court held in Russell v Russell (1976) 134 CLR 495 that the categories of suppression order, common law suppression order, are closed to the courts and can only be expanded by Parliament. Many, many other decisions have held to the same effect. For example, in New South Wales the Court of Appeal in John Fairfax Publications v District Court (2004) 61 NSWLR the proposition now advanced by the Commissioner is that there is a general power to make a suppression order in cases where public interest immunity is established and the guiding test in those circumstances is to weigh up the public interest in the non‑disclosure of the supposedly privileged material against the public interest and the open conduct of the administration of justice.

Your Honour, that, in our submission, of course, is the very issue that has to be ventilated but there is no authority for it expressed in such general terms.  For both of those reasons, your Honour, because it seems to us an unlikelihood of overturning well‑established principle of law and the discretionary considerations that I have outlined, it is our submission that the application is ultimately unlikely to lead to success when it comes on for special leave or if special leave is granted and we oppose this application on those bases.  May it please the Court.

HIS HONOUR:   Thank you, Mr Blackburn.  I need not trouble you, Mr Babb.

On 3 October 2007 the Court of Criminal Appeal made two orders.  The first order prevented further publication of certain evidence and proceedings which reveal a particular type of police investigative technique.  The second order relates to a reference in open court to that type of technique.  The applicant on 20 November 2007 filed a summons seeking an order that the discharge of the orders made on 3 October be stayed until at least its application for special leave to appeal is heard and determined. 

The background is that during a criminal trial being conducted before the Supreme Court of New South Wales, which is R v Donai, on 2 October 2007 Justice Fullerton refused to order that material going to the nature of that police technique not be published.  The orders of the Court of Criminal Appeal on 3 October would appear to have had as their primary purpose a preservation of the applicant’s position until such time as the appeal to the Court of Criminal Appeal was determined.

The Court of Criminal Appeal dismissed the appeal on 5 November 2007, but it granted a stay of its order dismissing the appeal so far as that order operated as a discharge of the suppression orders which it had made on 3 October 2007.  That stay was granted until 19 November 2007.  On that day Justice Hodgson granted an extension of that stay until 29 November 2007.  His Honour took what is in my opinion the correct course of preserving the position for a short time in order to permit the applicant to approach this Court for any further stay.  The applicant has now done so by filing the summons and by filing a special leave application.

The respondents have presented both in writing and orally capable arguments contending that the applicant’s prospects of success are not high and that the stay would not be of utility to the applicant.  In particular this morning, Mr Blackburn of Senior Counsel for the respondents has pointed out that on 30 November Mr Donai is scheduled to be sentenced and that his clients may well wish to publish full details of that procedure.  He also contended that unless this Court is prepared to interfere with the factual findings of the court below, there would be no practical difference in the test which the applicant contends should have been applied by the courts below and that which they did apply.

He further contends that the technique in question has been ventilated widely.  It has certainly been ventilated in a number of series of law reports and, to some degree, in newspapers.  It is in my opinion undesirable to enter into detailed reasoning in relation to the applicant’s prospects of success or into the question of how useful or otherwise any order will be to the applicant.

The Court is in a position to hear the special leave application on Friday, 14 December in Sydney and the applicant has applied for the matter to be expedited to that date and that order will be made.  That involves extending the stay for a further 15 days.  It is true that that 15‑day period will interfere with the desires, if they experience those desires, of the respondents to publish the prohibited material in discussing the outcome of the sentencing proceedings on 30 November, but the short extension is not likely to cause either the respondents or the public any significant harm. 

On the other hand, if there is no extension of the stay, there is a high risk that the applicant’s application for special leave and the applicant’s appeal if special leave is granted will be deprived of value, that is to say, even if the arguments which the applicant wishes to advance in support of the special leave application and in support of the appeal eventually are found compelling, they will have failed in their object of preventing publication for some period of time of the investigative technique.

It cannot be said that the prospects of success are so low and the inutility of the proceedings so great as to outweigh the need to protect the applicant’s interests in this respect.  The collision of principles involved here, that is to say, between the public interest in keeping a particular method of police investigation secret and the public interest in the open administration of justice, is difficult and important.  Proceedings aimed at examining how the collision in these circumstances is to be resolved should not be rendered nugatory unless they plainly lack utility or are doomed to fail.  Whatever the strength of Mr Blackburn’s arguments, I do not think that that can be said of the special leave application before this Court and for that reason I would extend the stay until 14 December.

Mr Blackburn, the summons actually asks for an extension, if you like, (a) until the application for special leave to appeal is determined and (b) any subsequent appeal proceedings are determined.  One could make the order substantially as sought in the summons or one could make it only to the 14th.  If I can just put this for your consideration.  If one makes it only to the 14th, goodness knows what battles will be raging on the 14th and what watches will be consulted and what aeroplanes will be heard in the background.  If we make the extension, obviously if you are right, it is an extension that has no adverse effect.  If you are wrong, one saves a little time on the 14th, but it is entirely a matter for you.

MR BLACKBURN:   Your Honour, I do not want anything to go by default on the 14th.  I do not have any instructions on it, your Honour, but perhaps it would be appropriate, the Court might think it appropriate, to continue the order until the application for special leave is determined and then if it is determined adversely to my clients’ interests, well, then I will probably have to accept, as night follows day unless something new happens in the interim, that the stay is going to be extended.  Your Honour, I am in the Court’s hands.

HIS HONOUR:   Do you have anything to say on this, Mr Babb?

MR BABB:   Only, your Honour, that I would ask that the order as sought be made.  As my learned friend has said, almost as night follows day, there be an application by me on the 14th to extend the order and there is utility in making it as sought.

HIS HONOUR:   These orders obviously will only be made until further order.  If, as you postulate, Mr Blackburn, there is some change in circumstances, then they can be dealt with on the 14th.

MR BLACKBURN:   Thank you, your Honour.

HIS HONOUR:   Subject to the question of directions, I will just read out two orders for the comments of counsel.  I order:

1.That the hearing of the applicant’s application for special leave to appeal be expedited and fixed for hearing on 14 December 2007 in Sydney.

2.Until further order that the discharge of the orders of the New South Wales Court of Criminal Appeal dated 3 October 2007 be stayed until 14 December 2007 or, if special leave is granted on that day, until the determination of the appeal.

MR BLACKBURN:   May it please the Court.

MR BABB:   May it please the Court.

HIS HONOUR:   There is one more thing we have to work out.  Would counsel prefer now to engage in negotiations with the Registry on a timetable or would they prefer to have me fix a timetable which they can deal with the Registry in relation to if it turns out to be inconvenient?  My thinking was this, that if we were to have a timetable direction number one might that by 28 November the applicant should file a summary of argument and a draft notice of appeal.  By 3 December, which is next Monday, the respondent file its summary of argument and a draft notice of appeal and by 5 December the applicant file its reply and the application book which would allow enough time for the material to go the Justices who will actually be hearing the special leave application.  Do you have any problem with that timetable, Mr Blackburn?

MR BLACKBURN:   I am sorry, your Honour, there is one matter that I just have to ‑ ‑ ‑

MR BABB:   Your Honour, could I ask for ‑ ‑ ‑

HIS HONOUR:   Perhaps we had better wait until ‑ ‑ ‑

MR BABB:   Yes, certainly.

HIS HONOUR:   Given Mr Blackburn cannot hear two conversations at once.  You were summoning your courage up, Mr Blackburn?

MR BLACKBURN:   I am, your Honour.  The difficulty I have is simply this, your Honour, that at the moment I do not have instructions.  Those instructing me do not, as I understand it, at this moment have instructions to proceed to defend or oppose the application for special leave.  That is the difficulty I have at this moment, your Honour, so it may be, if it is possible and I realise that time is short, but could we perhaps suspend for a short time the question of directions and perhaps agree some directions with the Registry and agree some directions and file them or something?

HIS HONOUR:   Do you have any problem with that course that he proposes?

MR BABB:   No, I do not, your Honour.  The one thing I was going to raise is that in a case like this where both parties are aware of each other’s arguments, I would have asked that we have another two days ‑ ‑ ‑

HIS HONOUR:   That is an argument for a shorter period not a longer period.

MR BABB:   Yes, but, in any event, your Honour, I would have asked for until 30 November for the applicant to put on their submissions, but I am happy to talk to the Registry.

MR BLACKBURN:   Or alternatively, your Honour, your Honour can make some orders now on the proviso that if my clients are not going to proceed, then they should not consider themselves bound by the order.  We can get some instructions fairly rapidly I suspect, your Honour, but the orders could be made on the ‑ ‑ ‑

HIS HONOUR:   Litigants are bound by orders whether they consent to them or not.

MR BLACKBURN:   Yes, that is the difficulty, your Honour.  I am in your Honour’s hands.  Perhaps the order could be expressed in terms that if the respondents do not propose to contest the application for special leave that we will file a notice of something of that kind and we are discharged from complying with the orders.  I am in the Court’s hands.

HIS HONOUR:   I think it is best if you place the problem before the Registry and Ms Carlsund will deal with it.  There is nothing more then.  I will make those two orders. 

I order:

1.That the hearing of the applicant’s application for special leave to appeal be expedited and fixed for hearing on 14 December 2007 in Sydney.

2.Until further order that the discharge of the orders of the New South Wales Court of Criminal Appeal dated 3 October 2007 be stayed until 14 December 2007 or, if special leave is granted, until the determination of the appeal.

Thank you.

AT 9.59 AM THE MATTER WAS CONCLUDED