Chief Commissioner of Police (Victoria), Applications by

[2004] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne Nos M49, M50, M102 and M103 of 2004

In the matter of –
Applications by the CHIEF COMMISSIONER OF POLICE (VICTORIA)

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 10 AUGUST 2004, AT 11.10 AM

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

MR D.F.R. BEACH, SC: If the Court pleases, I appear with my learned friend, MR A.T. STRAHAN, for The Age Company Ltd in all matters. (instructed by Minter Ellison Lawyers)

GLEESON CJ: Yes, Mr Costigan.

KIRBY J: Mr Costigan, I notice that the reasons of the Court of Appeal are in the confidential supplementary.

MR COSTIGAN: Yes, they are, your Honour.

KIRBY J: I have to say to you I am not very happy about that. I do not think even in wartime the High Court of Australia dealt with cases on appeal from judgments which were not available to the general public. I do not really see why the whole of the judgment of the Court of Appeal – at the least, some surgery should be done on it. I feel very uncomfortable sitting in a case where this judgment which is before us today, about which we are going to have submissions and dialogue, is not available to the general community. I do not believe in secret courts.

MR COSTIGAN: Your Honour, I can understand exactly what your Honour’s feelings are. The difficulty is that at the heart of our application is a problem which some parts of the judgment deal ‑ ‑ ‑

KIRBY J: At the very least, we ought to use the Leveller expedient. There ought to be some little excision if there are particular parts. Is this judgment of the Court of Appeal – it is given a media neutral citation. I notice there is an “R” at the end of it. Is it on the Internet or not?

MR COSTIGAN: I believe not, your Honour.

KIRBY J: I mean, that would make us look ridiculous, if we are sitting here solemnly with a confidential judgment and it was available to all and sundry. The court was open when the Court of Appeal heard the case, was it not?

MR COSTIGAN: It was, although there was an application at the commencement of the hearing before the Court of Appeal that the hearing should itself be confidential, and that was acceded to by the President of the Court, although no formal order was made. We feel difficulty with it, too, your Honour, because the way in which this matter has proceeded has been awkward. What we have been attempting to do is to, at the very edge of open justice, keep secret a certain type of evidence, but in order to make that application we have had to indicate, to some extent, what that evidence is. So there is a real problem, your Honour.

KIRBY J: Well, I would only make two comments. First, the Court of Appeal recognised this and said they had expressed their reasons in very general terms in order to avoid unnecessary difficulties, and, secondly, both of the parties have raised no point under the Constitution, and say that there is none to be raised. Well, I want to make it plain that, as far as I am concerned, I do not put the Constitution out of my thinking, and, as far as I am concerned, Chapter III of the Constitution, of which this Court is part, imports notions of openness of the administration of justice. Just in case anybody wants to say anything about that ‑ I do not want to be criticised for dealing with it later ‑ I mentioned this in Roy Morgan – as far as I am concerned, the Constitution is not silent on the issue of the openness of the courts in this country and particularly of this Court.

MR COSTIGAN: Your Honour, we are not challenging the proposition of open justice being central to the way in which the courts of this country operate. What we are saying is that that is not an absolute principle and that there can be modifications of it, at which courts will look very carefully, but there are modifications which have been expressed in the authorities and which have also been dealt with by statute.

KIRBY J: Can you give me a single precedent where this Court in wartime has dealt with a case where the reasons of the Court a quo under consideration in an appeal to the Court have not been open to the public, so that what we do may be judged? I know of no such case, but if there is one, and before we are out, I would like you to cite it to me, please. I do not believe there is such a case, ever.

MR COSTIGAN: I am not able to cite any such case, your Honour.

KIRBY J: Why should we be starting such a precedent?

MR COSTIGAN: I am sorry, your Honour?

KIRBY J: Why should we be commencing such a bad precedent, totally excluding from the public the reasons of the Court of Appeal of Victoria, one of the constitutional courts of the country, from consideration? I just express my extreme disquiet about being involved in such a matter.

MR COSTIGAN: We are not reacting adversely, with respect, your Honour, to your Honour’s disquiet, but what we are saying is that the particular problem that my client is concerned with needs a modification of the general principle and ‑ ‑ ‑

GLEESON CJ: You may be right or you may be wrong about that, but we are not dealing with this as an abstract or hypothetical question. You have a notice of motion which appears on page 125 of the appeal book. Are you moving pursuant to that notice of motion?

MR COSTIGAN: I was proposing to move in accordance with that notice of motion.

GLEESON CJ: That is what we are dealing with, an application by you, as appears from page 125 of the appeal book. When are you going to make the application and what are you going to say in support of the application?

MR COSTIGAN: I was proposing to make the application at the end of my submissions rather than at the beginning, because otherwise it would distract from the submissions I am making. That was a matter of choice, your Honour, and if that is not acceptable to the Court, of course, I will deal with it in a different way. I am not anticipating that my general submissions on the appeals will be lengthy, because the ‑ ‑ ‑

GLEESON CJ: All right. We know that at some stage before you complete your submissions you are going to make an application of the kind of which you have given notice on page 125, and, in due course, we will hear that application and deal with it.

MR COSTIGAN: Yes, your Honour.

GUMMOW J: You must understand, at the moment, there is no order in this Court.

MR COSTIGAN: I do understand that, your Honour, yes.

GLEESON CJ: Yes, Mr Costigan.

MR COSTIGAN: I am assuming that if ultimately the Court made our order, it would be respected by the interveners.

KIRBY J: I am not hearing everything you say, Mr Costigan. The acoustics are not modern.

MR COSTIGAN: I am sorry, your Honour, I am not sure that what I said was of any benefit ‑ ‑ ‑

KIRBY J: I heard what you said before, but every now and again your voice drops. We all have to speak up. This is 19^thcentury, not 21^st century. We hope the law has kept pace.

MR COSTIGAN: If the Court pleases, we rely on the submissions that have been placed before the Court. If I could just briefly put the matter in context. As appears from the papers, the order against which an appeal was sought had suppression ceasing on 10 October, which was 14 days after the order was made. It was in order to achieve an extension of that we had to lodge a notice of appeal and make application to the Court of Appeal prior to 10 October.

GLEESON CJ: This brings us to something that agitated us at the special leave application. Did you lodge a notice of appeal or did you merely make an application for leave to appeal? Or did you do both?

MR COSTIGAN: We did both, your Honour, and, indeed, there is a notice of appeal on page 5 of the joint appeal book.

KIRBY J: This is the open book?

MR COSTIGAN: This is the open book, your Honour. That is a notice of appeal dated 1 October which was stamped by the Court of Appeal on that day and given a number. When your Honour raised this on the application for special leave, the document in the application book was a copy of the notice of appeal which did not have the stamp on it and did not have the number on it, and it was because ‑ ‑ ‑

GLEESON CJ: So you say the procedure that was followed – which I think is not uncommon in a case where there is doubt about whether leave is required – is that you filed a notice of appeal, and, in case you needed leave to appeal, you also filed an application for leave to appeal?

MR COSTIGAN: That is so, to which application was attached a draft notice of appeal in the same terms as the original notice.

GLEESON CJ: Now, can I ask you a question of fact about a matter relating to the procedure? It is raised by what appears on page 7 of your written submissions, line 2 and following.

MR COSTIGAN: What paragraph is that, your Honour?

GLEESON CJ: Paragraph (ii), page 7 of 16.

MR COSTIGAN: I am sorry, the document I am looking at I had enlarged, so I have 18 pages with gaps in it.

GLEESON CJ: I will hand you down my copy of it.

MR COSTIGAN: I am sorry.

GLEESON CJ: There is a sentence commencing:

As a result of some informal indication –

I am not sure I understand that sentence and I am not sure what, if anything, relevant to your procedural fairness argument went on, that is, being referred to there.

MR COSTIGAN: It was stated elliptically as the history which justified the memorandum that was filed on behalf of the Chief Commissioner in December and which was some few days later followed by a supplementary memorandum on behalf of the intervener. What it is saying, your Honour, is that as a result of some indication from the Court of Appeal Registry, it became apparent that there was a possibility that the Court of Appeal was about to hand down judgment on the substantial matter.

GLEESON CJ: I am afraid I do not understand that. If it is important that it be capable of understanding, we may need to be better informed. If it is not relevant, then I am not sure why we are being told it.

MR COSTIGAN: It was put in the submissions to explain why it was that the Chief Commissioner chose to file a memorandum to the Court of Appeal after the hearing on the application for leave to appeal.

KIRBY J: Is it to rebut an inference that would otherwise arise that you had put in the materials relevant to the substance, because of the way in which the matter had been argued in the Court of Appeal, and that you were, as it were, joining issue with the substance before their Honours and dealing with the matter which you knew was to be resolved in the decision of the Court of Appeal?

MR COSTIGAN: It was certainly that, your Honour.

KIRBY J: I have the Chief Justice’s uncertainty as to what it means. Does it mean that the Court of Appeal gave you some informal indication so that you could deal with the substance and you had that opportunity and did it?

MR COSTIGAN: No, we do not say that.

KIRBY J: Does it mean that some officer of the Court of Appeal breached the confidentiality of the Court of Appeal and informed you, the Chief Commissioner of Police, about what was happening? I can think of no other inference.

MR COSTIGAN: We have chosen not to make that allegation, your Honour ‑ ‑ ‑

KIRBY J: Yes, but you have put it before us.

MR COSTIGAN: We put it before the Court as a matter of history, but in one sense ‑ ‑ ‑

KIRBY J: I have never heard of such a thing. This is the second thing I have not heard of before in my life in the law today, a judgment that the public cannot look at and secret communications between the registry of a Court of Appeal of this country and the Chief Commissioner of Police. Never heard of it, never.

MR COSTIGAN: Your Honour, the gravamen of our case is that whatever the reason why we did what we did, we were careful to tell the Court of Appeal after the oral argument had finished that it should not be said against us that we had finished or even started the argument on the substance of open justice. That was the purpose of that memorandum, and it is from that that we would say the Court of Appeal should have been alerted to the desire of the Chief Commissioner to have an opportunity to canvass at depth the question of open justice. To some extent, the counsel for the intervener have adopted it.

KIRBY J: We had a case once, Mr Costigan, where jury lists were being privily given by the registry in Victoria to the Chief Commissioner of Police. It was something that came before the Court, and I remember I thoroughly disapproved of it. I do not know whether this is an indication that that sort of thing is still going on. The Chief Commissioner is just another citizen in the eye of the courts.

MR COSTIGAN: We would certainly not suggest otherwise, your Honour.

KIRBY J: Well, the document you put before us suggests something otherwise. You need not have told us this, but you have told us it now. I have never seen any suggestion ever, in my whole life, that such a thing happens, except the case that I mentioned, also in Victoria, also the registry in Victoria giving jury lists only to the Commissioner and refusing it – as I remember the case – to the accused. Equal justice under law, Mr Costigan.

MR COSTIGAN: Yes. Your Honour, I am not sure I can say more about that except that, so far as this appeal is concerned, whatever the reason why we did it, we did in fact send a memorandum to the Court of Appeal making it clear that there were substantial submissions that we wished to make on the substantive question, and it is in relation to that that we complain that the Court of Appeal went ahead and delivered its judgment without giving us the opportunity to do that.

Perhaps I should say, to put this in context, that when we appeared before the Court of Appeal on 9 October, which was the last day before the suppression orders ran out, we spent an hour and a‑half, both parties, before the Court of Appeal. The substantial argument put on behalf of the Chief Commissioner was that she had a right to appeal, and it was desired to make an application for an extension of the existing suppression order until such time as the appeal was determined. That was the context.

In the course of that application, lest we were wrong about that, there was an application for leave to appeal if leave was needed, and there was some discussion in general terms about the question of open justice, but only in general terms. There was pressure on both the Court of Appeal and the parties to deal with the matter that afternoon. The Court of Appeal said, “You have to make application to the trial judges”, and we went back to the trial judges at about four o’clock that afternoon and got extensions. So it was in some ways quite a short hearing and a simple application to get on track the basis upon which we could apply for an extension.

The memorandum made it clear that we desired to file further material which was directly pertinent to the application for leave to appeal and to make further submissions on that material. Indeed, a further note by counsel for The Age newspaper also told the court that it wished to make submissions on the substantive issue, so that however this may have arisen, your Honour, it had been made clear to the court that there was a substantial issue to be litigated before the court and both parties wanted to make submissions on it. I am not sure I can ‑ ‑ ‑

GLEESON CJ: Do we have in our appeal book the memorandum of 8 December 2003 and the supplementary note?

MR COSTIGAN: Yes, your Honour.

GLEESON CJ: What page is it?

MR COSTIGAN: The memorandum of 8 December is at page 45 of the appeal book, that is the open book.

GLEESON CJ: Thank you.

HEYDON J: That is the 10^th.

HAYNE J: I think page 23, is it not, is the 8 December memo, Mr Costigan?

MR COSTIGAN: Yes, 45 is the supplementary note, and 23 is the memorandum.

GLEESON CJ: Thank you.

MR COSTIGAN: Then 51 is the supplementary submissions of The Age. We would say it is clear from all those memoranda that both parties wish to make further submissions on the substantive issues in the appeal, and the Court of Appeal was advised of that, bearing in mind the nature of the first application on 9 October, which was a short one and which was designed to get on track the ability to make an application for extension of the suppression order.

HAYNE J: While it may not much matter, was the hearing on 9 October brought on on an applications day, or as a special ‑ ‑ ‑

MR COSTIGAN: No, it was a special hearing at 2.15 in the afternoon, because the applications day was the following day, which was too late. Our submissions in relation to that are really quite simple. I mean, they may not be correct, but they are simple. We had very short oral arguments on 9 October. Both parties sought to make it clear to the Court of Appeal that before any decision on the substantive question of open justice was given, both parties should be given the opportunity to make substantial submissions.

KIRBY J: Could you tell me why the Court of Appeal does not have a running transcript of its proceedings? It used to. I can remember reading argument in the Court of Appeal.

MR COSTIGAN: I suspect the answer is financial, your Honour, but I do not know why they do not.

KIRBY J: How long is it – I mean, at least in New South Wales, in years gone by, before we had running transcript of argument, and in cases where the judge dispensed with running transcript, the court reporter had the duty to take down the principal events and times and, in brackets, a very short summary of what was said. Now, do we have that in the Victorian Court of Appeal or not?

MR COSTIGAN: No, we do not, your Honour.

KIRBY J: We have no record at all, not even that the court sat and that so and so appeared, and it began at a certain time? Do we have that?

MR COSTIGAN: I cannot answer that last question because I suspect that somewhere within the registry would be ‑ ‑ ‑

KIRBY J: It would be on the back of a court file, but we do not have that either in the open book or in the closed book.

MR COSTIGAN: No, we do not, your Honour.

HAYNE J: The Court of Appeal, since inception, has never had a running transcript of argument.

MR COSTIGAN: That does make it difficult, I accept, but, on the other hand, there seems to be no significant dispute between the parties here as to what happened on that day. I am not sure to what extent the Court wishes me to take this particular matter further, because, as I said to the Court, the submission is really a straightforward submission that we ‑ ‑ ‑

GLEESON CJ: Yes, we just want to have an accurate and complete understanding of the facts upon which we have to decide the procedural fairness argument.

KIRBY J: Speaking for myself, it is a very serious thing to charge and find against a court – especially a Full Court, an appellate court – and experienced judges that they have not accorded procedural fairness to anybody, and it is not a decision that one comes to lightly, because the inference is that experienced judges do provide procedural fairness. Anyone can slip and mistakes happen, but it has to be established pretty clearly as far as I am concerned.

MR COSTIGAN: Yes, we accept that, your Honour.

KIRBY J: Save for the fact that some written submissions were put before the court saying that they wanted to make submissions on the substantive issues, it is not unknown for an appellate court, if it reaches a firm view on the substantive issues that seem to be clear, cut and dried, to say, “Well, we feel able to deal with the substantive issues here and now”. Why would that not have been an appropriate course in this case, especially once you filed, pursuant to this private communication, which I still do not understand, written affidavits and materials dealing with the substantive question? And given what we understand about the substantive question in the reasons, which we, at least, have had the privilege of reading, from the Court of Appeal.

MR COSTIGAN: Your Honour, the sequence of events in the Court of Appeal were set out in an affidavit, which is on the Court’s file, of my instructing solicitor, Jenny Pavlou, dated 26 February this year. That was an affidavit which was filed on the application to his Honour Justice Hayne ‑ ‑ ‑

KIRBY J: Is that before us?

MR COSTIGAN: It is in the ‑ ‑ ‑

GLEESON CJ: It is not a question of whether we can read what is on the paper, Mr Costigan, but it is a question of whether you are leading evidence in this appeal in support of your argument about denial of procedural fairness. We have assertions in your written submissions about what happened and what did not happen, and we have in the appeal book copies of, for example, an affidavit that was used in some proceedings before Justice Hayne, but we need to get our own procedural record straight. What are the facts upon which you invite us to determine your procedural fairness argument? As to those facts, are they either admitted or proved by evidence? If you are relying on evidence to prove them, what is the evidence?

MR COSTIGAN: First of all, the facts do not seem to be in dispute as between the intervener and ourselves. Secondly ‑ ‑ ‑

GLEESON CJ: Could you tell us what the facts are? Is it possible for you, so that we may write a judgment – perhaps even more than one judgment, in the end – to state onto the transcript what you say are the facts relevant to your procedural fairness argument and then to show us that they are either admitted or proved?

MR COSTIGAN: The facts are set out in the affidavit of Jenny Pavlou, dated 26 February 2004 ‑ ‑ ‑

KIRBY J: Justice Heydon has drawn my attention to the fact that that is not reproduced.

MR COSTIGAN: That is so. That is document 34 in the appeal book.

KIRBY J: So we do not have it before us?

MR COSTIGAN: My understanding was that ‑ ‑ ‑

KIRBY J: It is “NR” in the index to the papers.

MR COSTIGAN: It was not reproduced because it was already in the court file.

KIRBY J: Sorry?

MR COSTIGAN: My understanding was that it was not reproduced because it was already in the court file. If my understanding is faulty, your Honour, then ‑ ‑ ‑

KIRBY J: I looked through the confidential documents in the supplementary materials and they have a number of affidavits of Ms Pavlou, but none of them bear the same date as the document before Justice Hayne, which is the affidavit that you identify as one which we should look at. It may be that the word processor has simply regurgitated for Justice Hayne an affidavit which was earlier before the Court of Appeal, and in that event you can just identify it and we have it then before us.

MR COSTIGAN: The reason it was described in the appeal book as not reproduced is that our understanding was from the Court that that particular affidavit was in the court file and would be available to the Court. Now, if we are wrong about that, your Honour, I apologise, but it was that affidavit which set out the sequence of events on 9 October and subsequently dealing with the memorandum.

KIRBY J: Well, I think, in answer to the question from the Chief Justice, you are just going to need to put that before the whole Court. It is not reproduced, we do not have it and it seems to be relevant to your complaint about the denial of procedural fairness. We have lots of other material and even more in the supplementary confidential papers, but we do not have the one document which seems to be crucial to your establishing what you claim to have been a denial of procedural fairness to you by the Court of Appeal.

MR COSTIGAN: One reason, although not an excuse, but one reason why that might be so is that on the application for special leave and again on this appeal, a statement of the facts was set out in the applicant’s and the appellant’s submissions which was acceded to by the intervener.

KIRBY J: That is just an intervener. You are establishing before the highest court in this country a complaint that a constitutional court of the State has denied you procedural fairness. We do not have the ordinary combatants before us and, speaking for myself, if you want to establish that, I am not just going to accept that as the agreement between you and a newspaper. As far as I am concerned, it will have to be established to the satisfaction of the Court, and that requires affidavit material.

GLEESON CJ: Mr Costigan, do you read the affidavit of J Pavlou of 26 February 2004?

MR COSTIGAN: Yes, I will.

GLEESON CJ: Do you object to that, Mr Beach?

MR BEACH: I do not have a copy with me at the moment. I have sent away for a copy, your Honour. I suspect my position will be that we do not object to your Honours having the material before you, subject to weight and relevance matters, but I can say no more in the absence of having a hard copy of the affidavit in front of me at the moment.

GLEESON CJ: Mr Costigan tells us that you agree with all the facts stated in his written submissions. Is that true?

MR BEACH: No, it is not correct, your Honour. We dispute the proposition that our learned friends or the Chief Commissioner were denied natural justice by the Court of Appeal ‑ ‑ ‑

GLEESON CJ: No, but let us go to the primary facts. We have before us an argument that there was a denial of procedural fairness. I have to say that, for my part, I do not yet understand what are the facts upon which that argument is to be decided and how they are said to be established. So far as I can see at the moment, there are only two ways in which they could be established, one is by evidence and the other is by admission. I really do not think I can add anything to what I have said.

MR BEACH: Well, your Honour, perhaps a difficulty we face is, like your Honour, we do not understand the facts upon which it is said there has been a denial of procedural fairness, and the only real way to answer it is for me to tell the Court what we say are the facts of this application for leave to appeal before the Court of Appeal. I am happy to do that now if that is what ‑ ‑ ‑

GLEESON CJ: Well, I am not sure that we are happy to be told things from the Bar table if they are in dispute.

MR BEACH: I am sorry, I do not mean to tell your Honour facts from the Bar table. We would say that the documents speak for themselves and I can take your Honours through them ‑ ‑ ‑

KIRBY J: What documents? I do not know what documents are being referred to.

MR BEACH: What I am referring to, your Honour, is I would start by telling your Honours what occurred before the trial judges, which demonstrates that the application for the order appealed from, which is ultimately an order refusing a suppression order beyond 10 October, is interlocutory. That, in our submission, is beyond doubt. Then when one sees that, as the Chief Commissioner was bound to do, she applied for leave to appeal, the test the Victorian Court of Appeal applies in appeals from interlocutory judgments is whether the decision is attended with doubt and whether there is substantial prejudice if the decision is left unreversed.

So the application for leave to appeal raises squarely the question of whether the decision of the trial judges was attended with doubt. There might have been a perception in the Chief Commissioner’s counsel’s mind that somehow he was dealing more with the jurisdiction question at the time that the application for leave to appeal came on before the Court of Appeal, but in fact what he was dealing with was an application for leave to appeal which she had to make. It was a complete application for leave to appeal. There was no order that the application for leave to appeal be divided and the question of jurisdiction be tried first, and then, subsequently, if there was jurisdiction, the next issue, be it the substance or some other issue, be determined later.

It must be remembered that this was all being done in the context of the suppression order that the Chief Commissioner had the benefit of at the time she went to the Court of Appeal. It was not one that she had obtained on the merits, but one that she had just to preserve the subject matter of the litigation. This was not a case ‑ ‑ ‑

GLEESON CJ: Mr Beach, I am sorry to interrupt you, but I think you and Mr Costigan are now well and truly on notice that we require any facts upon which either of you may rely in relation to the procedural fairness argument to be established either by admissible evidence or by admission. You are both on notice of that and the cards will lie where they fall.

MR BEACH: With respect, your Honour, we would say that just reading what is in the confidential materials in the application book discloses a fact situation which does not lead to the conclusion that there was any denial of procedural fairness in the Court of Appeal.

GLEESON CJ: All right. Yes, go ahead with your argument. We have got to the stage, Mr Costigan, where you had read an affidavit of J Pavlou of 26 February 2004 and Mr Beach has not yet been in the position to indicate whether he objects to it because he does not presently have a copy of it.

MR COSTIGAN: Yes. I only have the one copy, but I can get photocopies made, I understand.

GLEESON CJ: Well, we…..give Mr Beach the degree of procedural fairness involved in letting him have an opportunity to have a look at this affidavit before we rule on its admissibility, if there is any dispute about its admissibility.

MR COSTIGAN: What I will need to do is to make photocopies of this affidavit, your Honour. If I could put that issue on one side just for the moment and if I could ask by instructor to do that.

GLEESON CJ: Yes.

KIRBY J: Mr Costigan, you know that line of authority in the Court that says that in appeals we are a strict Court of error and can only deal with matters on the basis of the record – Mickelberg and so on, confirmed in Eastman.

MR COSTIGAN: Yes.

KIRBY J: Now, the reception of new evidence in the form of affidavits does not infringe that rule, does it? I do not know, has there been a case that says that in matters where natural justice is involved you can bring supplementary material beyond the record to assist the Court?

MR COSTIGAN: I do not know of such a case, your Honour, but, of course, in a case such as this, where the allegation is a failure to accord procedural fairness, one has to establish material, which may not have been produced in the Court of Appeal, against whom the complaint is made.

KIRBY J: In a sense, you are supplementing the record to provide, as it were, the transcript and other materials which, had a transcript been taken, would have been before the Court anyway. I think Sir Garfield Barwick said something about that in a case involving the Government Insurance Office (NSW) v Fredrichberg 30 years ago.

GUMMOW J: That is right. It is 118 CLR 403 at 410, 416 to 417 and 422. It is mentioned in Eastman in 203 CLR 1 at 59.

MR COSTIGAN: Yes, I have read Eastman since the application ‑ ‑ ‑

KIRBY J: I just would not want to have the Court fall into the error of allowing evidence on an appeal when it was forbidden.

MR COSTIGAN: As your Honour has indicated, if there was a full transcript of what had occurred before the Court of Appeal, then insofar as we were attempting to allege lack of procedural fairness and insofar as that related to events which occurred after the hearing and therefore are not on the transcript, it would be necessary to adduce some evidence to justify that allegation.

KIRBY J: Does Ms Pavlou’s affidavit, which I have not yet received, stick to that or does it go beyond that?

MR COSTIGAN: It tells the story, and therefore it goes back to the original applications before the trial judges. It takes it up to the hearing before the Court of Appeal and then the subsequent memorandum is filed before the court and the delivery of judgment by the court. It covers all those matters, not all of which fall within the strict ‑ ‑ ‑

KIRBY J: Well, I am looking forward to reading it, Mr Costigan, if ever I receive this document.

MR COSTIGAN: Would it perhaps be convenient to move from that subject, your Honour?

GLEESON CJ: Yes, please do. Go ahead with what is available to you at the moment.

MR COSTIGAN: The first issue that we raise by way of appeal was the question of jurisdiction. Our primary submission to the Court of Appeal was that we had a right to appeal, having regard to the provisions of the Supreme Court Act, and it was that matter which occupied the major part of the argument on that afternoon on 9 October. The judgment of the Court of Appeal reflects the fact that that matter was discussed in some detail. Indeed, the Court of Appeal quite properly analyses the line of authority and the changes in the statute over the years. It came to the view that the submission made on behalf of the Chief Commissioner had some difficulty, having regard to previous decisions of the Court of Appeal.

The Court of Appeal acknowledged that the view it had taken in the past seemed to be inconsistent with some statements of this Court and also seemed to make nonsense of the amendments to the Supreme Court Act. It is at that point, without deciding the question of jurisdiction, it said, “We have come to an united view anyway, and we will make the assumption that what the Chief Commissioner has said is correct, but it does not matter because we are going to find against the Chief Commissioner on the basis of the substantive issues”.

Now, our submission sets out the line of authority. We have not gone into great detail about that because the judgment of the Court of Appeal itself does that task. It takes itself through the line of authority and it said in the judgment at page 186 of the confidential supplementary material, line 20:

The meaning which has been given to the words of s.14(3) of the Supreme Court Act by the High Court in Smith – and applied to s.17A(3) by the Court of Appeal in Lewis – and the effect of that interpretation, would appear to us to produce consequences which are the opposite of those intended to be produced by the legislature of this State when enacting the sub‑section.

KIRBY J: I notice you are now reading from the judgment of the Court of Appeal, which is in the confidential section. Is there any reason why this part of the judgment should not be publicly available? It is dealing with a dry, tedious but necessary point of law.

MR COSTIGAN: No reason at all, your Honour.

KIRBY J: Well, maybe over the adjournment you can give thought at the very least to identifying those parts of the judgment of the Court of Appeal of the Supreme Court of Victoria which can be on the public record.

MR COSTIGAN: Yes, I will certainly do that, and there is only ‑ ‑ ‑

KIRBY J: Justice Gummow raised a question in the special leave hearing as to whether or not it was not the duty of the Court of Appeal, before going forward, to identify what its jurisdiction was and whether leave was necessary or not necessary; in other words, to identify the jurisdiction that it was exercising. Do you support that submission?

MR COSTIGAN: We certainly support that view, your Honour, because, in our submission, the Court of Appeal should have decided that we had a right of appeal. It should then have allowed us at an appropriate time to argue the issues on the appeal, and, in the meantime, continue the suppression order until that was determined. That was the gravamen of what we were attempting to do on 9 October.

KIRBY J: That is subject to your having already had the opportunity to put all the relevant material before the court – it being assumed that there is a right of appeal – on which it could proceed to determine the appeal. That is the matter on which we have to look at this hidden affidavit that has not yet being handed up.

MR COSTIGAN: Yes, your Honour, but it was contemplated that if we either got leave to appeal, if that was needed, or if we were acting on our right of appeal, there would be a substantial hearing upon which such factual material as was desirable was tendered before the court and an analysis of the authorities in England, Canada and the United States was done.

GLEESON CJ: Mr Costigan, having regard to the form of the order at page 61 of the appeal book, is there any doubt about the nature of the jurisdiction the Court of Appeal was exercising?

MR COSTIGAN: Sorry, your Honour, I have picked up the wrong book. There is not much doubt at all, your Honour, as to what the Court of Appeal said it was doing.

GLEESON CJ: Well, it dismissed an application, not an appeal.

MR COSTIGAN: It has decided the application for leave to appeal but has not dealt with the question as to whether we had a right of appeal.

GLEESON CJ: But if you had a right of appeal, bearing in mind that you had lodged a notice of appeal, then your appeal has not been disposed of.

MR COSTIGAN: It has not been disposed of.

GLEESON CJ: There was a suggestion on the special leave application that if that had happened, under the Rules of Court, by now your appeal would have been deemed abandoned. Do you want to say anything about that?

MR COSTIGAN: I would want to think about that, your Honour. We would certainly fight to the death to object to any suggestion in the Court of Appeal that by taking the course of coming to the High Court, as opposed to pursuing our appeal in the Court of Appeal, we had abandoned our rights.

GLEESON CJ: I assumed, without Mr Beach having gone into any detail, that what he had in mind was something rather different; that you had failed to comply with procedural steps under the rule by way of prosecution of the appeal. I thought that is what he must have been referring to.

MR COSTIGAN: I assume that is what he was referring to, your Honour.

KIRBY J: Surely there is a power in the Supreme Court of Victoria to enlarge or vary or nunc pro tunc correct that, in the event that by reason of

their dismissal of an application you have been misled into thinking you did not have a right of appeal.

MR COSTIGAN: There is certainly that power, your Honour.

KIRBY J: Well, we have better had reference to the Rules of the Supreme Court of Victoria on these matters.

MR COSTIGAN: I now have those affidavits, your Honour.

GLEESON CJ: Thank you.

KIRBY J: There is nothing in these affidavits that is the proper subject of any restriction that you ask this Court to make?

MR COSTIGAN: No, your Honour. Would the Court like me to read the affidavit, or are you happy ‑ ‑ ‑

GLEESON CJ: Well, we can read it to ourselves but we need to know whether Mr Beach objects to any part of it, and he has not yet had an opportunity to refresh his memory of its contents.

KIRBY J: Just whilst Mr Beach is looking at it, I noticed the names of the accused in the two cases where the orders of a limited kind were made are mentioned in paragraph 2 of the affidavit. Can we take it that they are aware of these proceedings? The determinations were made in relation to their proceedings; they may have some interest in the proceedings that are now before us. Are they aware of those proceedings?

MR COSTIGAN: They were not served with the notice of appeal at the time we came before the Court of Appeal because there was no requirement under the Rules of the Supreme Court to serve them – it was 14 days. They have subsequently been served, and, as I understand it, both of those men have appealed to the Court of Criminal Appeal in relation to their conviction and sentence. They are aware of the fact that we have taken the proceedings.

GLEESON CJ: Now, Mr Beach, do you object to this affidavit or any part of it?

MR BEACH: Yes, your Honours. Paragraph 6, we would say, is argumentative. Consistent with what we had said in our written submissions, the documents that are already before the Court in the confidential material and in the application book disclose what occurred before the Court of Appeal. To say in paragraph ‑ ‑ ‑

GLEESON CJ: Just a moment. Do you press paragraph 6, Mr Costigan? It is plainly inadmissible in form, telling us that somebody was “at pains to emphasise” something is not really evidence.

MR COSTIGAN: We do not press that part, but the last sentence, of course.

GLEESON CJ: Just a moment.

MR COSTIGAN: No, we do not press that either.

GLEESON CJ: So paragraph 6 is objected to and rejected. Any other objection?

MR BEACH: Well, again, the second sentence of paragraph 7 ‑ ‑ ‑

GLEESON CJ: Third sentence, do you mean?

MR BEACH: And the third.

GLEESON CJ: How can you have the third sentence as a matter of form, Mr Costigan?

MR COSTIGAN: The third sentence?

GLEESON CJ: The third sentence in paragraph 7, commencing with the words “As a result of some informal indication”.

MR COSTIGAN: I do not press that.

GLEESON CJ: All right. That sentence is objected to and rejected.

MR COSTIGAN: Before my defendant stands up, the next words “Such was the concern that” can go out.

GLEESON CJ: Yes, those words are rejected.

MR BEACH: In paragraph 8, the second sentence.

GLEESON CJ: Do you press the second sentence of paragraph 8?

MR COSTIGAN: Not the whole sentence, the ‑ ‑ ‑

GLEESON CJ: It begins with the word “despite” and ends with the words “those issues.”

MR COSTIGAN: The first three and a half lines can go out, your Honour. It is a matter of fact that the Court of Appeal delivered its decision ‑ ‑ ‑

GLEESON CJ: The whole of the second sentence in paragraph 8 is rejected.

MR COSTIGAN: Yes.

GLEESON CJ: Anything else, Mr Beach?

MR BEACH: No, your Honour.

GLEESON CJ: Yes, we have read that, Mr Costigan.

MR COSTIGAN: There does not seem to be much dispute on the facts, your Honour, and they are set out in a sensible way there. We say that justifies the complaint by the appellant that although it indicated to the court after short oral arguments that it wished to make substantial submissions in relation to the substantial issue in the case, the court went ahead and delivered its judgment without allowing that opportunity.

KIRBY J: Now, in a sense, this Court might be able to place the issue of procedural fairness or unfairness to one side if you were right that you had a right of appeal which has never been formally heard and decided. So is that not, in a sense, a preliminary legal question which could properly engage the Court on the majority of the reasons, without getting into a matter dependent upon these additional factual questions which are not really answered by a party with an interest to answer them?

MR COSTIGAN: The end result of a finding that we had a right of appeal and that that had not yet been dealt with by the Court of Appeal would be a direction that the matter be sent back to the Court of Appeal to be determined according to law. That, in fact ‑ ‑ ‑

KIRBY J: Well, if you are right on the right of appeal, then, on the face of the order actually made, it has been treated as an application for leave to appeal; then you have never had that right discharged. Subject to the question of the rules and enlarging the rules, I would have thought, if that point succeeds, then this Court’s order, sending the matter of the appeal back to be determined, would require the Court of Appeal to then determine that appeal.

MR COSTIGAN: That is so, your Honour.

KIRBY J: The problem, as I understand it, was twofold: first, the amendment – I think it was 17A – that inserted an exception to the right of appeal, which is debated in the Court of Appeal’s reasons; and, second, that on general principles the order made which you are seeking to challenge is an order (a) which appears on its face to be interlocutory, and (b) is made by a non‑party to the proceedings, which would seem to suggest that it is a matter that requires leave to appeal. So you have two, or possibly three, legal hurdles to overcome in establishing a right of appeal, if you wanted to argue that point.

MR COSTIGAN: Yes. Perhaps I cavil, your Honour, at this, that when we submitted to the Court of Appeal that we had a right of appeal and the argument took place and the authorities were canvassed, there was no suggestion by the intervener that that argument itself required leave to appeal because it was an interlocutory matter. Indeed, the intervener accepted our argument that there was a right to appeal. So, ultimately, there was no dispute about that.

KIRBY J: In any case, it is for a court to determine the basis of its jurisdiction. This is what I took to be behind Justice Gummow’s question in the special leave hearing. It is not just for the parties to agree upon it. The Court has to know whether it is dealing with an application for leave to appeal, where quite different considerations come into play than if you have a right to appeal, where you just can say, “Well, you sit there, listen and decide”.

MR COSTIGAN: Yes.

KIRBY J: Whereas leave to appeal you have to mount the usual considerations for leave, which are different from appeals as of right.

MR COSTIGAN: Yes. We were not asked to do that by the Court of Appeal. The argument was simply on the question whether we had a right of appeal under section 17 or not. There was no suggestion either by my learned friend or by the court itself that we were required to seek leave in that sense because it was an interlocutory matter or because we were not a party.

Now, it is true that we were not a party in the criminal proceedings. The parties were the Crown and the accused. We made an application for suppression. To that application we were a party. That application was granted and it was the final result so far as we were concerned in that we were precluded from suppression after 10 October. When we came to the Court of Appeal we were not coming as a party in the criminal proceedings, we were coming as a party to that application. So we say that in that sense we did not need leave to appeal because we were a party to an application in respect of which a determination had been made by the trial judge, and we had a right to appeal that determination insofar as it was adverse to us.

KIRBY J: Do we not have to take it step by step if we are dealing with this issue? The first step is there is an exception to the right of appeal which is generally granted against determinations, in respect of proceedings relating to criminal proceedings.

MR COSTIGAN: Yes.

KIRBY J: Therefore, the first question is whether or not the right of appeal, which is otherwise granted, is excluded by that exception, having regard to the true construction of the legislation.

MR COSTIGAN: Yes.

KIRBY J: Now, if you are arguing this point we would have to decide that point.

MR COSTIGAN: Yes.

KIRBY J: You have to argue it.

MR COSTIGAN: That is the argument that we ‑ ‑ ‑

KIRBY J: What is the subsection?

MR COSTIGAN: The primary section is section 17.

KIRBY J: It is on page 183:

“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.”

MR COSTIGAN: Yes. That is section ‑ ‑ ‑

KIRBY J: On the face of things that would seem to be engaged in this case.

MR COSTIGAN: That is section 17A, and that is the exception. What this Court said in Roy Morgan Research was that if a right of appeal is given, as it is in section 17, that right should not be written down without express words which exclude the appeal. What we said about that was that this was a determination; true it was ancillary to a criminal prosecution, but it was a determination which was quite separate to that in the sense that it was an application to suppress certain evidence which was not, in our submission, in relation to the trial, a proposed trial of a person on indictment or presentment.

KIRBY J: But as the Court of Appeal pointed out, the words “in relation to” are words of the widest possible connection.

MR COSTIGAN: Yes.

KIRBY J: They quote a decision in this Court which had given support to that approach. They complain that it led to a result which they did not feel was actually intended by Parliament but was upheld by the wide view of the language and the interpretation adopted earlier by this Court.

MR COSTIGAN: The difficulty was the Court of Appeal had had a previous decision of Legal Aid v Lewis in which there was an application made in respect to the obligation of Legal Aid to pay the costs associated with a criminal trial. In that case they had decided that it was covered by the exception and there was no right of appeal. Now, we say, of course, that decision was wrongly decided. We would say consistent with what was said by this Court in Roy Morgan that one has to be very careful about identifying an exception against a right of appeal which is given, as in this case under section 17.

Now, the Court of Appeal did not determine that matter because it formed a view on the main issue in the case. Our submission is that the court was wrong and that it should have decided that the appropriate meaning of the legislation, section 17A(3), was very much related to stopping serial applications for appeal in the course of a criminal trial by the accused. It was not directed to applications, for example, by a person who may be in contempt - a third party who may be in contempt; a person, in the case of the Chief Commissioner, who is making an application for a suppression order; or a person in the position of Legal Aid who is concerned with a quite ancillary matter. Our submission was that having regard to the quite strong words of this Court in the Roy Morgan Case one has to be very careful to ensure that a suggested exception to the general rule had been made out.

GUMMOW J: What was the source of the jurisdiction to make these prohibitory orders? Was it section 18 of the Supreme Court Act?

MR COSTIGAN: Section 18, which was based on section 19.

GUMMOW J: Yes, with the circumstances in 19 and the order under 18.

MR COSTIGAN: That is right, it was section 18.

GUMMOW J: Now, putting to one side section 17A(3), it seems to me at the moment that 17A(4) applied here to require leave because this was interlocutory, not final, unless this order under 18 could be classified as an injunction, an interlocutory injunction under subsection (4)(b)(ii). Now, unless we are satisfied in your favour on this interlocutory question, a lot of the case goes away, does it not, in this Court?

MR COSTIGAN: That is probably so, your Honour, but we would ask you not to be satisfied against us on that. Section 18 gives a quite specific power to the court on an appropriate application to either close the court or make an order ‑ ‑ ‑

GUMMOW J: There are a lot of orders that prohibit people or require people to do things, but they are not injunctions.

MR COSTIGAN: No. Insofar as it is an order suppressing publication of certain parts of the evidence until a certain time, we say that unless there is a challenge to that, that is a final order. As from 11 October this material, this evidence could have been made public ‑ ‑ ‑

GLEESON CJ: Now, when you say it is a final order, could it have been changed by the court? Could the court just change its mind about it?

MR COSTIGAN: Well, your Honour, we went back to the court ‑ ‑ ‑

GLEESON CJ: Well, does that not indicate its interlocutory nature?

MR COSTIGAN: The view of the court was that it would only extend the order because the Court of Appeal was hearing an appeal. It is interlocutory in the sense that it went until 10 October, but if nothing happened to extend it prior to 10 October it was final.

GLEESON CJ: Take a classic example of a decision that is not a final decision, a ruling on evidence. You can always go back to the judges the next day and say, “I’d like you to reconsider that in the light of this authority I have found overnight.”

MR COSTIGAN: Yes.

GLEESON CJ: Would there have been anything to stop either party going back and saying, “We’ve discovered this decision of the Canadian Supreme Court and we’d like you to reconsider what you’ve done about closing the proceedings in the light of that decision.” Is there anything – would there be anything to stop the judge reconsidering the matter?

MR COSTIGAN: Prior to 10 October no, your Honour. We, in theory could have gone back, but the court had made it quite clear that it was not prepared to extend the suppression order beyond 10 October, and that our only recourse was to go to the Court of Appeal and seek relief from that court. So as far as the trial judge was concerned, he had made a final order and would not change it unless directed to do so.

GLEESON CJ: I was only seeking to test your proposition that an order made under section 18 is of its nature a final order.

MR COSTIGAN: It depends what the order is, your Honour. I suppose if the court refused to grant a suppression order at all, then that is a final order as far as the applicant is concerned, unless it is challenged in the Court of Appeal. The difficulty, your Honour, is that this was not put to us by the Court of Appeal. It was never suggested in the short hearing on 9 October that it was necessary for the Chief Commissioner to do other than either establish that there was a right of appeal or to set out reasons why there should be leave to appeal in the general sense, and it was never suggested by the intervener. Now, I accept, of course, that it is for the court to determine jurisdiction but, nonetheless, the court did not require of us any argument or any material which would justify the leave to appeal on the interlocutory basis.

KIRBY J: Did the intervener argue that you did not have a right to appeal, as distinct from a right to make an application for leave to appeal?

MR COSTIGAN: The intervener did not argue that we had no right. In fact, he submitted no arguments on that question at all.

KIRBY J: I suppose it could be said that it would have been in the interest of the intervener to confine you to an application for leave to appeal, because that was somewhat more difficult to get than if you had a full‑scale right of appeal, but essentially their interest is not that of the ordinary adversary.

MR COSTIGAN: No, it is not.

KIRBY J: They are not here to assert really any right except the right of the freedom of expression on matters coming before courts. So it is not conclusive that they did not take these points or argue them fully because that was not really the focus of their attention.

MR COSTIGAN: Your Honour, I am not suggesting it was conclusive. I am just telling your Honour what happened. Again, to put in context, this was a rushed application on the afternoon before the suppression order was to expire to provide a basis for either asking the Court of Appeal to extend the suppression order pending the determination of the appeal, or to go back to the trial judges and do the same thing. The Court of Appeal, with respect, properly said to us, “You’ve got to go back to the trial judges. We think it’s sensible to do that, but we’re not going to make the suppression order. Go back to the trial judges.” That is what we did, that afternoon.

GLEESON CJ: A classic example of an interlocutory application of the kind referred to in section 17A(4) would be an application for a change of venue, would it not?

MR COSTIGAN: Yes, your Honour.

GLEESON CJ: Why would an application for a change of venue be any more or less interlocutory than an application for a restriction on publication?

MR COSTIGAN: An application for a change of venue, if granted, would then produce an order changing the venue.

GLEESON CJ: Unless the judge changed his or her mind.

MR COSTIGAN: Or unless an application was made.

KIRBY J: One could understand in a case of a suppression order. You remember in the Spycatcher Cases orders were made in I think the United Kingdom and in Hong Kong, but in other countries the view was taken - I think in New Zealand – because of the worldwide publicity given to the book that it was futile, and I think the Court of Appeal here used a word “absurd”, or something to that effect, to impose a suppression order. “Fatuous” was the word the Court of Appeal used in this case. Now, would that not argue that of their nature suppression orders are interlocutory because circumstances can change and information can get out extraneously – especially in the age of the Internet.

MR COSTIGAN: Yes, your Honour, that could be argued. It was not argued.

KIRBY J: Yes, but we have to give meaning to – we start from Smith’s Case. We have a phrase in the Victorian statute “in relation to” and “proposed trial”, so it is very, very broad and general, and we have the possibility that circumstances can change and that that suggests that it is appropriate for reapplication. All of this rather suggests that this is an interlocutory order and not one that is one that is final and a formulated order of a court that is complete.

MR COSTIGAN: The difficulty with ‑ ‑ ‑

KIRBY J: Added to that is the fact that you were not a party to the original proceedings.

MR COSTIGAN: No. We were party to the application for the order though.

KIRBY J: Yes, but the words are “in relation to a trial”, and you were not a party to that trial.

MR COSTIGAN: That is so, we were not. We were a party to the application for a suppression order, just as – one of the difficulties, your Honour, is that the suppression order was expiring on 10 October. We approached the Court of Appeal on the afternoon of 9 October. Now, if no order was made ‑ ‑ ‑

KIRBY J: I understand the exigencies, but they do not alter the legal character of the order. They cannot alter the words of the Victorian statute, which are in very broad terms.

MR COSTIGAN: We would say that by the end of 10 October, if no step had been taken or no extension had been given, that suppression order would have ceased to operate and in that sense would have been final. If we had waited until 4 o’clock on the afternoon of 10 October and gone to the Court of Appeal and said, “We want an extension of the suppression order beyond today because we’ve lodged a notice of appeal and we want to debate the substantial issues” the Court of Appeal could have said to us, “Well, that order’s final. We can’t extend that now.”

What I am really saying is there is a point at which, even though one should look at the nature of the order to determine whether or not it was interlocutory, there is a point at which that order becomes final. We were very close to that point on 9 October. I am not suggesting that there was a breach of procedural fairness in the Court of Appeal not raising this matter, nor am I suggesting that there was some difficulty in the intervener not raising the problem. The fact is that the debate on 9 October was on the basis of whether there was a right of appeal or not and it was there, in the context that everybody there realised that unless an application was made that afternoon to either the Court of Appeal or to the trial judge, the suppression order would be left. So it was a difficult application argued over a short period, and with the direction of the Court of Appeal resulting in applications being made to a series of judges late that afternoon to extend the suppression order until the Court of Appeal had dealt with the matter.

Certainly, the question of whether it was an interlocutory order or whether leave to appeal should be sought because it was an interlocutory order, was not the subject of any argument and was not raised by either the court or by us or by the intervener then, or on the application of the special leave. I would assume there is a difficulty if I am to go back to the Court of Appeal and say, “We want leave to appeal”, the Court of Appeal would say to me, “Well, look we’ve delivered judgment on the substantive matter and we’re not going to give you leave to appeal”. Then we would be back here again, perhaps.

It sounds as though I am – it may sound that I am complaining about the pressure that was brought to bear that afternoon, not unfairly, but brought to bear because of time constraints. The fact is - it was our submission we had a right of appeal; the court did not decide that. We did not apply for leave to appeal on the basis of it being an interlocutory order. We applied for leave to appeal on the basis that it was a matter of substance which led it to be debated, and that application was dismissed. I am not certain I want to say any more about that, unless the Court ‑ ‑ ‑

McHUGH J: But is not one of the difficulties about classifying it as a final order is that it is not really an order concerning the exercise of judicial power. It is an order that happens to have been brought – or made, at the behest of the Chief Commissioner of the Victorian Police, but any citizen may well have moved the court for such an order. It does not bind any particular individuals. It is more a legislative Act, or perhaps an administrative Act, and it could be revoked at any time. If on 23 September details of this technique had been published on the Internet, what would stop any media company from asking the court to revoke the order before 10 October? Does that not demonstrate almost beyond a shadow of a doubt that it is not a final order in any shape or form? It does not determine any rights of parties.

MR COSTIGAN: It is difficult to answer that, your Honour. Of course, a media company could have attended. Indeed, they were present before the trial judge and they were heard on the question whether there should be an order or not, and they were rejected in the sense that the order went until 10 October. They were informed that we were making an application to the Court of Appeal, which is why they were there on that day.

McHUGH J: Yes.

MR COSTIGAN: So your Honour is absolutely correct in the sense that they could have gone back to the trial judge – by this stage there were three trial judges with a few more coming up in the list. They could have gone back to the trial judges and asked for a lifting of that order, but it was already in the Court of Appeal and they chose not to do that. But they could have, yes.

McHUGH J: I mean, it has happened in New South Wales on a number of occasions that orders have been made in the absence of the media and then they have come along the next day and asked – or a couple of days later – for the order to be revoked, and have succeeded. I think I sat on one of those cases in the New South Wales Court of Appeal.

KIRBY J: It is referred to in the written submissions. It is the Police Tribunal Case.

MR COSTIGAN: Yes, that is right. I have been in those cases too, your Honour. They are a constant source of litigation with the media.

KIRBY J: It is a classic statement of the law.

GLEESON CJ: If you are wrong in your argument that this was a final order and leave was necessary because it was interlocutory in nature, is it fair to say that in substance the Court of Appeal disposed of your leave application by refusing leave on the ground that there were insufficient prospects of success of an appeal to warrant a grant of leave?

MR COSTIGAN: I think it is fair to say that the difficulty we have with that is that we say that the Court of Appeal came to that conclusion that there were insufficient prospects of our success, without giving us the opportunity to argue in depth the substantive matter.

GLEESON CJ: You would only have 20 minutes in this Court.

MR COSTIGAN: Yes.

KIRBY J: And you would have had to be ready for everything.

McHUGH J: Your response would be though that you were to file a 20‑page written submission.

GLEESON CJ: This raises the question of the extent to which a Court considering a matter of leave has to deal with an argument in depth.

MR COSTIGAN: It does, but we put it to the Court of Appeal – as we put it on the application for special leave, this case raises real questions at the outer extremity of the meaning of open justice. We have never attempted to test that the principle that justice be done in open court is a basic proposition in the courts in this country. But what we have suggested, and, indeed, the statutes indicate, is that it is not an absolute principle but it is susceptible to modification, as it has in the Supreme Court Act. It has been modified, for example, with blackmail victims, whose identity is kept secret. It is not just to protect the identity of the particular victim, but also not to discourage other blackmail victims in the future from coming to court and complaining.

We say that there is a really significant question to be answered in this case, but it is a question which only deals with a very narrow element in the principle of open justice. Perhaps I can put it this way, to ask rhetorically, what is the harm done to the principle of open justice if the suppression orders are continued?

McHUGH J: Well, can I answer your rhetorical question, Mr Costigan. When you read the scenarios, it may well be that a considerable body of opinion in the community may not think that the police force should go into this sort of detail or do what was done in this particular case. Other people may say, if it gets the criminal, well and good. But is it not the sort of matter that the public should be informed about, so that there can be a public discussion on it?

MR COSTIGAN: My answer to that I think, your Honour, would be this, that the essential elements in the techniques which are the subject of criticism, and which no doubt would form the basis for a notice of appeal by the convicted defendants, are that the confessions tendered in evidence against them were obtained in a way which the court should not sanction. We would say to that, the confessions that were obtained by the use of these techniques, first of all, they are discussed and analysed in open court. They are done in the presence of the accused and of counsel, they are done in front of the jury, they are subject to the control and direction of the trial judge, and they are subject to appeal to the Court of Appeal and ultimately to this Court.

The only restriction is on the electronic and print media discussion of the techniques. Not of the result of the trial, not of the evidence of the trial generally, but very specifically limited just to that. Looked at in that way, we would say, there is no significant erosion of the principle of open justice, which should affect the balance which a court should bring to bear in determining whether the principle of administration of justice on the one hand, as opposed to the principle of open justice on the other, requires a result.

KIRBY J: I would add to Justice McHugh’s question or comment that these matters are already the subject of quite a lot of discussion. In the very latest part of the Criminal Law Journal, (2004) 28 Crim LJ 217, Mr Andrew Palmer, who is a Reader in Law in Melbourne, analyses six years of experience since the Swaffield and Pavic cases, the variety of steps that have been taken by police forces to tread the line that was explained by this Court in Swaffield and Pavic, the different steps described as subterfuge ruses and tricks that have been adopted and when they are legitimate and when they are not. One really asks the question, what is so different about this case?

MR COSTIGAN: We would say what is different about it is, we do not have an objection to a discussion of these techniques in open court, in law journals, among lawyers. The way in which the techniques are used requires a very disciplined and analytical selection of targets who are unlikely to – they are not targets in gaol, who are talking to the prison population and who hear how they were caught, although the Court of Criminal Appeal did not seem to quite understand that. The selection of a target is of someone who is unlikely to know anything about any law journal, who would not be reading law reports, but who would read the Herald Sun or The Age or the Sydney Morning Herald, and it is a good story.

KIRBY J: Yes, but the Court of Appeal pointed out that it is fatuous to believe that the “underworld”, being able to be present in open court when the case was fought, and perhaps having the ear of the accused in those cases, would not have got to know about this methodology. I mean, it just seems amazing to think that they would not ‑ ‑ ‑

MR COSTIGAN: It is at that point that – I am sorry, your Honour.

KIRBY J: Fatuous, the Court of Appeal called it.

MR COSTIGAN: It is at that point that we say the Court of Appeal did not give us the opportunity to explain the way in which targets are very carefully selected. The great bulk of these investigations are domestic, private murders. They are not underworld murders. They are of people who are not associated with people who might be able to talk to them about what has happened to X or Y or Z. The techniques will only work – and they have worked very successfully – if the target is chosen who is not likely to know about it.

GLEESON CJ: Mr Costigan, I am sorry to interrupt you. We are going to adjourn now, but there is something I would like you to think about and you might need to take instructions on it. What I am about to say is not intended in the slightest degree to foreshadow any course that we might take, because I have no view on that matter, and I have not even discussed it with the other members of the Court. But, as a matter of practice, I suppose there are people out in the field right now, operating on the basis of these techniques. One possibility is that this case will come to an end today and be finally disposed of today. I am not saying it is likely; I am just saying that it is one possibility. In that event, there might be the position of people of the kind that I have mentioned to be considered or taken into account. So you should turn your mind to that over the adjournment.

MR COSTIGAN: We have turned our mind to that and I was proposing to say something about that at the end of my submissions, because we had that in mind at the time of the application for special leave. Thank you, your Honour.

GLEESON CJ: Thank you. We will adjourn until 2.00 pm.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

GLEESON CJ: Yes, Mr Costigan.

KIRBY J: Mr Costigan, I mentioned a case this morning in this Court about jury lists. That case was Katsuno v The Queen (1999) 199 CLR 40.

MR COSTIGAN: Thank you, your Honour. If I could turn immediately to the matter your Honour raised with me at the commencement of this appeal, namely the judgment of the Court of Appeal as to whether any part of it could be excised so that it could be published, we have looked at that over the luncheon adjournment and if one goes to the confidential supplementary materials on page 178, paragraph 8 offends what we were attempting to keep quiet, and that could go out. On page 189, paragraph 24, the words “Crime Boss” we would like deleted and the whole of note 20 which sets out the scenarios. If not for those passages, there could be no objection to the judgment being public.

KIRBY J: These are matters which are already on the public record as a report of a case.

MR COSTIGAN: It has not been reported, your Honour. It is available, as I understand it, from the Supreme Court.

KIRBY J: I understand. This is a matter in the judgment of the court in the case mentioned in paragraph 24?

MR COSTIGAN: Yes, your Honour. It is only that limited material in the judgment which we find offensive. If that were removed or attached to the judgment by way of a confidential addendum, there would be no objection to the whole of the judgment being made public.

GLEESON CJ: That presumably is a qualification to the notice of motion on page 125?

MR COSTIGAN: Yes, it is, your Honour.

KIRBY J: Justice Heydon has just drawn to my notice in [2001] 3 SCR 467 where that paragraph, which is paragraph [41] of the reasons of the Supreme Court of Canada, appears in a published report. This is in the published report of a Supreme Court of another country. That would be on the Internet and it would be asking a lot to suggest – indeed, it might almost border on the fatuous, to quote the Court of Appeal at page 200 in its reasons – that that was something that was not known to the “underworld”.

MR COSTIGAN: It may be known to some members of the underworld; it would not necessarily be known to a chosen target, which is really the heart of our problem. If I could then turn to our submissions at paragraphs 46 and 47 which deal with the orders that we had sought in this appeal, at paragraph 48 we had omitted to seek as an order that we should get special leave to appeal from the trial judges. That was an omission which I would wish to correct.

So far as the matter your Honour the Chief Justice put to me just before lunch, we were very concerned at the time the application for special leave was made that there should be no possibility of jeopardy to the persons of the undercover people and we were able to accommodate that. There are currently three operations going but for an abundance of caution there is nothing happening at the moment which would cause a problem. I am not in a position to speak for the other States, your Honour.

I accept, of course, what your Honour put to me that no decision has been made on this appeal, but if, in fact, there was to be a decision either in the near future or as a result of reserving judgment, we would ask if it was to be this week that we have a few days notice before a judgment was handed down. Alternatively, if it was reserved, that we were given by the Court a couple of days notice prior to the handing down of a decision so that we could ensure that any undercover operatives were taken out of action before any publicity might be given to what they were doing. Subject to that, unless the Court wants to put something further to me, they are our submissions.

GLEESON CJ: Thank you, Mr Costigan. Yes, Mr Beach.

MR BEACH: If the Court pleases. If I could start with the issue as to whether there was a breach of procedural fairness by the Court of Appeal and start by taking your Honours to the confidential materials at page 84. This is the transcript ‑ ‑ ‑

KIRBY J: Your client has access to these confidential materials. How does that come about?

MR BEACH: It comes about, as I understand it, your Honour, that an agreement was reached between my instructing solicitor and my learned friend’s instructing solicitor that we would receive this material on a confidential basis pending the resolution of – originally it was the special leave application; now it is pending the resolution of the High Court appeal.

KIRBY J: But I am talking about an order of the Supreme Court of Victoria of limited access to this material. I am just asking how you, effectively an intervener, have access to that document.

MR BEACH: Which document, your Honour?

KIRBY J: The document you are about to take us to.

MR BEACH: The transcript is an exhibit to affidavits that we have been provided with as ‑ ‑ ‑

KIRBY J: What happened, as I understand it, was that there was an original order by two trial judges in the Trial Division of the Supreme Court of Victoria. That was limited to a certain time. That time was about to expire. The Court of Appeal extended it until its determination. Then after its determination there was I think a temporary extension and then there was an application to Justice Hayne who sent the parties back to the trial judges who extended it until this decision, did he not?

MR BEACH: Yes, your Honour. The material has always ‑ ‑ ‑

KIRBY J: Paragraph 2 says that “There be no access by the press or the public to the exhibits”. Your client is a member of the press.

MR BEACH: That is true, your Honour, but paragraph 2 is not appealed. If one goes to the notice of appeal in that case, your Honours will see the scope of the appeal. Page 5 of the open book sets out paragraph 1 of the order that pursuant to section 18, various matters are suppressed. It then asserts that paragraph 2:

That such order remain in force up to and including 10 October 2003.

There is no appeal from paragraph 2 which appears on page 2 of the open book that “There be no access by the press or the public to the exhibits”. That order lapsed on 10 October 2003. So what has been extended beyond 10 October 2003 on a number of occasions is paragraph 1 of that order and the equivalent order in Favata.

Your Honours, coming back to page 84 of the confidential book, this is the transcript of the appearance before Justice Osborn in Tofilau and is at the conclusion of the examination of the witness who was called on the application and the argument. His Honour says at line 5:

Well, Mr Silbert, I am prepared to accept that there is an immediate risk that current investigations into three homicides will collapse and that there is a threat to the safety of the officers involved, and I’m minded to make a suppression order for the period of three weeks, which is the estimate for this case, which would be to Friday fortnight.

I interpolate there Friday fortnight is, in fact, 10 October 2003. His Honour goes on:

But I have to say to you that at the expiration of that time I am unlikely to make any definite order . . .
I think that whether I refer it to the Full Court or whether you have to approach the Full Court, there’s some real prospect that if that’s what you’re seeking, you’ll have to do.
MR SILBERT:   Yes.
HIS HONOUR:   So I don’t pre-judge what material you may present to me at that time.
MR SILBERT:   No, sir.
HIS HONOUR:   But I’m very troubled by the notion –

and his Honour goes on. Over the page, after a suggestion by Mr Silbert that perhaps the matter could be referred to the Court of Appeal under section 17B of the Supreme Court Act, his Honour at line 15 says:

I’ll consider it but I’m rather inclined to the view that I should grasp the nettle, and form the view one way or the other.

KIRBY J: Which judge is this?

MR BEACH: This is Justice Osborn in the Tofilau matter. What we say about that is that those passages demonstrate beyond argument, if it be necessary, that what was being sought by Mr Silbert was an interlocutory order. That is, he had persuaded his Honour that he ought to have an order up to 10 October but that it was open to come back to his Honour before 10 October on better material perhaps or on the same material with further argument to seek an order beyond 10 October. What is appealed against here is a failure by his Honour to make an order beyond 10 October.

It really could not, in our respectful submission, be suggested that that failure was final in that it finally determined the rights between the parties after 10 October. To take this example, assume that on 9 October the Chief Commissioner gained access to some further additional material that touched the point and was highly relevant to the safety of her officers or the administration of justice. It could not seriously be suggested that she could not approach the court on 9 October, or indeed 10 October, or indeed on any other date, with the new material and say, “Now I need a suppression order from 10 October 2003 on the basis of this material”. It could not seriously have been suggested by The Age, “Sorry, you’ve got a final order back on 22 September and that binds you and it’s determined the rights between us and you cannot come back now on this new material and seek the extension of that order”.

GLEESON CJ: Was there ever any suggestion that what was going on in the Court of Appeal on 9 October was an application to the Court of Appeal to make a fresh order for a different period?

MR BEACH: No, your Honour. We would say that such a suggestion would be fraught with the difficulty that the Court of Appeal – if that was a course that was proposed, our learned friends would have had to have obtained an order under section 17B, referring the matter to a Court of Appeal and then a subsequent corresponding order from the Court of Appeal accepting the referral.

HAYNE J: Why would it not have been in the nature of interim relief pending the Court of Appeal exercising whatever its jurisdiction was, be it consider the application for leave or consider the appeal according to whatever the result is?

MR BEACH: Certainly that step could be taken. It would appear that that was a step. At least, the Court of Appeal were asked to do that.

HAYNE J: Were they asked by summons, were they asked orally? What does the material that is properly before us show about what was happening in the Court of Appeal on 9 October?

MR BEACH: The material does not show anything on that issue. Mr Costigan has told the Court that, having got before the Court of Appeal on 9 October and sought an extension pending the determination by the Court of Appeal, the Court of Appeal said to him, “Go back to the trial judges and get an extension of their orders”, and that is what he did. On our understanding of the material, that is precisely what occurred. I cannot point your Honours to any page in the application book or the confidential material because there just is not one, but that is what occurred.

GLEESON CJ: So by sending Mr Costigan’s client back to the trial judges, one thing the Court of Appeal made quite clear is that it was not itself dealing with an application for an extension of the order.

MR BEACH: Correct. What the Court of Appeal was dealing with, we would say unarguably, was an application for leave to appeal from the trial judges. I should, just to complete ‑ ‑ ‑

GUMMOW J: Where do we then find those orders that were made by the primary judges?

MR BEACH: The orders extending?

GUMMOW J: Yes.

MR BEACH: Can I just tell your Honours, at appeal book 99 and 100 are the final orders extending by the Trial Division judges made on 27 February in each of the matters of Tofilau and Favata. In each of those orders it is recited that extensions had previously been granted on 9 October 2003 and 24 February 2004 but those orders are not in either of the books.

GUMMOW J: Thank you.

HAYNE J: So after the Court of Appeal proceedings on 9 October there appears to have been some application to the single judges for extension granted.

MR BEACH: Exactly, initially on 9 October pending the outcome of the Court of Appeal’s determination of the application for leave to appeal, then on 24 February after the Court of Appeal had handed down their decision, pending the making of an application for special leave.

HAYNE J: Something may turn on – may not turn on – the precise form of that order made by the single judges on 9 October. How did they describe the duration? Are we permitted to know what is in those orders of 9 October?

MR BEACH: Your Honour, if I have seen them I have forgotten about them. As I say, they are not in the material. I do not know what is in them. I will have some inquiries made if that would be of assistance to your Honour. It may be that - your Honours, I have been handed what appears to be the suppression order made until 10 October in the matter of Tofilau, which has a handwritten annotation on it which is very hard to read.

HAYNE J: Lawyers are criticised for insisting on forms and solemnities and actually taking out summonses, taking out orders, recording things properly. Perhaps this might stand as a good demonstration of why there is such insistence.

MR BEACH: Your Honours, whilst it looks like at first blush one handwritten annotation on this order, it would appear that in fact the order has been written on twice, once to extend – no, I take that back. I am happy to read the annotation:

Having heard evidence – subj to clarifica – will extend order made on 22 Sept 2003 primarily on basis that of opinion that reg under s19 “necessity” is satisfied by the criterion experienced re prej of admin of j –

presumably “justice” –

which req that a parties appeal rights be protected & where necess the status quo be preserved & also ‑ ‑ ‑

HAYNE J: It is the articled clerk’s note of reasons by the sound of it, Mr Beach, rather than the judge’s annotation on the order. What I want to know is what form of order, if any, was taken out on 9 October.

MR BEACH: This is what was served upon us, your Honour, under a document headed “NOTICE OF SUPPRESSION ORDER” and we read this annotation to be either the associate to Justice Osborn or perhaps Justice Osborn himself – more likely the associate to Justice Osborn because the typed order is – I apologise, your Honour. I am now told that is my instructing solicitor’s handwriting. The short point is, your Honour, we do not have copies and there is not in the appeal book the extensions made on 9 October 2003 or 24 February 2004. What your Honours have are the original suppression orders made at appeal book pages 1 and 53 and the last extension made on 27 February at appeal book pages 99 and 100. I will endeavour to see whether we have copies of the extension orders ourselves or whether they have been communicated to us orally and we have never seen them. I do not know the answer to that. We will make inquiries.

If I could come back, your Honours, just to complete the factual issue as to how the matter came before the Court of Appeal, in summary the passages I have taken your Honours to in the Tofilau matter suggest that this was an interlocutory matter and that his Honour would have been receptive to further material filed on or before 10 October if the Chief Commissioner wished to have a suppression order beyond that date. Then if your Honours go to page 101 of the confidential materials, your Honours will see that so far as the Favata matter in front of Justice Teague is concerned, at line 16 of the transcript Ms Mendes Da Costa, who appeared for the Chief Commissioner, right up front said:

I am instructed to seek an order in the terms and for like duration to the order granted by his Honour Justice Osborn yesterday, and that is, until 10 October.
That is the only order she sought from Justice Teague. Indeed, the material discloses that the Chief Commissioner did not seek any extension or fresh order from either Justice Teague or Justice Osborn beyond 10 October other than to come back on 9 October and say, “I’ve already gone to the Court of Appeal and I’m seeking leave to appeal there if leave be necessary and I want an extension pending the outcome of that application.

GLEESON CJ: So there were two applications on foot at the commencement of the proceedings of 9 October in the Court of Appeal, that is to say, an application for leave to appeal if leave be necessary and an application for an extension of the order in the interim, that is to say, between 9 October and the decision of the Court of Appeal.

MR BEACH: Yes, that is so, your Honour.

GLEESON CJ: The Court of Appeal then in relation to the second application said, “Go away and make that to the trial judges and we’ll reserve our decision in respect of the first application”.

MR BEACH: Indeed, your Honour. So the Chief Commissioner applied for leave to appeal, as she was bound to do, we would say, and the application was heard. Our learned friends tendered before the Court of Appeal the evidence that was given at first instance before the trial judges. Argument was clearly put on the merits, and so much is demonstrated by paragraph 31 of the Court of Appeal’s judgment which can be found at the confidential materials, page 194.

GUMMOW J: Do we know how long the argument took in the Court of Appeal?

MR BEACH: We accept it was concluded in the afternoon. My learned friend says it took about an hour and a half. My instructions are that is correct and he spent his entire time on his feet. Mr Gilbertson, who acted for The Age, had filed written submissions which dealt with the substance of the matter and he relied upon his written submissions. Those are found in the appeal book, that is the open book, at page 46.

KIRBY J: We have two appeal books, one of which is confidential. Documents are all over the place. If ever there was a case that needed a chronology, it is this one, with reference to the appeal books. The appellant says in the written submissions that no chronology is needed in this case. It really is a case where there ought to have been a chronology, otherwise we are battling our way through all these references and we will have to go back to the transcript.

MR BEACH: I accept what your Honour says about that. I am sorry. My learned friend Mr Costigan says there was a chronology but I do not believe it addresses your Honour Justice Kirby’s concern.

GLEESON CJ: What page of the appeal book did you say we should look at?

MR BEACH: The written submissions to the Court of Appeal by The Age are at page 46 of the open application book. Your Honours will see they deal with background matters as to who the parties are on page 46, then a submission as to the width of the orders that have been made. Over the page at page 47, section C, they deal with the leave to intervene position, then straight into the substance of the matters on page 48.

GUMMOW J: Including that Supreme Court of Canada decision.

MR BEACH: Yes.

KIRBY J: That we are supposed to suppress.

MR BEACH: Yes. Just to complete the picture in relation to the Court of Appeal’s decision, to answer one of your Honour Justice Kirby’s questions to my learned friend, the Court of Appeal decision in fact found its way onto the Net and was on the Net for some days before it was removed from the Net. If one goes to ‑ ‑ ‑

KIRBY J: Who removed it? Why was it removed? Was it on application?

MR BEACH: No, we know of no application that was made for its removal.

KIRBY J: Maybe it was somebody in the registry.

MR BEACH: Indeed, your Honour. While we are on this topic, the voir dire judgment of Justice Osborn in Tofilau, which dealt with the admissibility of the confession evidence, was also on the Net for some time. Your Honours will see that Mr Silbert made application at confidential book page 86 for that voir dire ruling to come off the Net and his Honour said it was too late and he would not take it off the Net. For your Honours’ information, that is a ruling of 6 June of last year. If your Honours look for it on the Net, you will be singularly unsatisfied. You will find it in the index but it will return the message that the file is not found. Notwithstanding what Justice Osborn said, that he would not have it removed from the Net, it has been removed from the Net, although a hard copy of it exists in the lever‑arch folders held by the Supreme Court of Victoria in its library. That is open to somebody to go and take and copy.

So far as the hard copy of the Court of Appeal judgment that is in the confidential book is concerned, that similarly, as I said earlier, has been removed from the Net. If one goes to the Supreme Court library, you will not find it in the folders of unreported Court of Appeal decisions but if you ask the librarian for it, he has it. If you ask if you can have a copy of it, he says he will have to check with the Court of Appeal. He does not know why it is confidential. I do not know beyond that how you get hold of it.

KIRBY J: This is very good evidence from the Bar table. Normally where it is permissible we receive evidence on affidavit.

MR BEACH: Your Honour asked the question and I did not ‑ ‑ ‑

KIRBY J: I know I did but I did not expect a whole lot of statements which may be disputable because they reflect upon the internal arrangements of the Supreme Court of Victoria.

MR BEACH: I accept what your Honour says and ‑ ‑ ‑

KIRBY J: It just leaves me in a state of puzzlement and confusion and anxiety.

MR BEACH: I accept that, your Honour. All I am endeavouring to do is, if your Honours were looking for these decisions, by all means, attempting to short circuit what might otherwise be a fruitless exercise. If I could come back to why we say there has been no breach of procedural fairness ‑ ‑ ‑

KIRBY J: Can I just indicate that in the back of our mind has to be kept the fact that this case, which raises methodology of law enforcement officers, may at some stage down the track have some relevance to something that may come before this Court soon or at some day in the future concerning the provisions, the meaning and validity of federal legislation which has been enacted, I think, in the Anti‑Terrorism Act 2004 (Cth), putting a 20 year ban on the revelation of matters of methodology of the security services of this country. Therefore we have to proceed with a degree of care in this case, because of the possible implications of what is decided here for that legislation.

It may not be relevant, but it may be. I do not know, I cannot see into the future. But these are important issues. The Chief Commissioner says, either through a mistake or a misapprehension of what was going on, or because of the Court of Appeal’s dealing with the substance when she thought they were only dealing with the procedure, she has not really had a chance to put the matters relevant to the non‑revelation of the methodology and have that properly passed upon by the Court of Appeal. Now, if that were a possibility, that could arguably be a matter of concern.

MR BEACH: Your Honour, we would say that that could not be a reasonable view of the facts. These were applications made to trial judges and the Chief Commissioner was duty bound – they are very serious applications, to suppress the publication of evidence and what is going on in a court. They are the sort of applications that one would expect great care would be taken over to produce all the matter, all the material that could be produced to the trial judges, they being charged with the initial responsibility of either making the suppression order or not. They are matters about which the Chief Commissioner has known since at least 1999, because the technique has been in use since 1999. They are matters on which she has been on notice that at least the Supreme Court of Canada, since 2001, has determined they should not be suppressed.

These trials came on in 2003. It is not as if there was some time pressure to make this application for suppression. One would have thought that the lead time involved in making these applications for suppression was either two years if not four years, and the material that could be put before the trial judges would be the best material that could be put. On the other hand, we hear from our learned friends that in fact they have jumped to the Court of Appeal before giving the trial judges the further opportunity to decide whether or not, on better material or better argument, they would be prepared to extend the suppression orders or make fresh suppression orders beyond 10 October, and then they say to this Court, “We were denied the opportunity to put fresh material, new material, before the Court of Appeal”.

On what possible basis could they have put new material before the Court of Appeal? Where was this material when they were before the trial judges? Why was it not obtained? There is not a skerrick of a suggestion that this was new material that had only just come to light and could not have been found with reasonable diligence. Instead, our learned friends’ case, with respect, proceeds on the implied assertion that you can go to the Court of Appeal and seek leave to appeal in an interlocutory application or in respect of an interlocutory judgment and then produce whatever further material you wish to produce. Now, we would say this was ‑ ‑ ‑

KIRBY J: I take the force of those complaints and they are significant, but as against that we have the fact that the Chief Commissioner of Police of a State of the Commonwealth obviously considers this to be important. We have the fact that the procedures affect allegations concerning alleged murderers, that they concern undercover agents, whom the law has traditionally protected, and, however it happened, the position is being advanced to us that there was never really a proper consideration of the full force of the Chief Commissioner’s brief that she wanted to have considered by a court before operational methodologies were revealed.

Now, I think the legislation in the security area I referred to was the ASIO Legislation Amendment (Terrorism) Act 2003 (Cth), not the Anti‑Terrorism Act, but a similar sort of question may arise under that Act. If, however it happened, a mistake has occurred and a court has not really fully passed upon this, and given the risks that are said to exist, may it not be a proper course to say that if there is any doubt it ought to be specifically addressed by the Court of Appeal, which does not, in its reasons on the substance, really address all of the evidence that is said to be relevant to making a fully informed decision on the substantive point that the Chief Commissioner wanted to argue?

MR BEACH: With respect, your Honour, the problem with our learned friends’ approach on that basis is we have been saying at least since we filed our submissions in the special leave application that this is interlocutory. If you truly have new material, new arguments, go back to the trial judges. If you say you have been denied, what is this material? Identify it for us, tell us what it is. Instead, we get a high level of generality that “We have more material and we were denied the right to put it to the Court of Appeal”.

Do not put it to the Court of Appeal; go back to the trial judges. You have obtained the continuation of the suppression order pending appeals up the hierarchy through the Court of Appeal, the High Court. You have now had an extension beyond 10 October last year to this date on the basis that you have good arguments in this Court. We would say that what they ought to have been doing, and at least since they have been invited to do it from April of this year and since, is identify this material, go back to the trial judges, and, frankly, make an application which, if there is any substance in it, will be considered. As Justice ‑ ‑ ‑

GLEESON CJ: That is a very modest submission on your part, Mr Beach. Just at the moment I cannot understand why any evidentiary material on which the Chief Commissioner wants to rely should not have been before the trial judges in the first place, before they made the orders.

MR BEACH: I accept that, your Honour, that they would have to go back and explain why it was not there when they first made the applications, but we have heard nothing. We have not even got, “Well, here is the material. Terribly sorry we did not get it to the trial judges before 10 October, but we thought we overlooked it or we made some other error”, but there is not even the suggestion of what this further material is. For example, if I could go forward a little to the open book at page 45, in the supplementary submission, paragraph 2 – that is incorrectly dated 10 September and should be 10 December – the Chief Commissioner says:

Nor does [she] wish at this stage to make submissions on the substantive issues which will be raised in the Appeal if the Court either assumes jurisdiction or grants leave to appeal. Those substantive issues are complex and may require analysis of interstate and overseas authorities.

KIRBY J: When is this document – this is 10 September?

MR BEACH: No, it is 10 December. It is incorrectly dated 10 September.

KIRBY J: I really must insist on a proper chronology in this case. I really must insist. It is completely unreasonable to ask us to try to piece together this mosaic.

MR BEACH: I accept what your Honour says. I can only ‑ ‑ ‑

KIRBY J: One of you or both of you in my opinion have got to get a chronology. The Court’s rules require it. It is just not acceptable.

MR BEACH: Can I just say in my client’s defence, your Honour, it is only the intervener ‑ ‑ ‑

KIRBY J: With the references to the date, the evidence and the reference to the appeal book, open or closed. I speak only for myself, but I am not going to deal with this matter and write my reasons without a proper chronology.

MR BEACH: So, your Honours, notwithstanding the concern about which there was discussion this morning, that is, the concern caused by some informal indication from the registry that a decision might extend beyond jurisdictional argument and move into substantive issues, our learned friends file a note saying that there are complex matters, but they fail to identify the overseas and interstate authorities that they wish to analyse.

McHUGH J: They say “may require”. One can think of arguments that can be put. Supposing Coca Cola or Kentucky Fried Chicken recipes had to be disclosed in a court in a breach of confidentiality suit. Surely a court would make suppression orders in those cases, and why cannot it be argued that the Commissioner is in the analogous position? They have certain techniques which produce results, and they want to conceal those techniques from those who would benefit by publicity concerning them.

MR BEACH: Certainly it is open to the Commissioner to make those arguments. The Commissioner having a concern that the Court of Appeal was going to deal with the matter on the merits, chooses to file further affidavits and a desultory submission saying, “There may be more that we wish to say. Do not do anything”. This was an application for leave to appeal which came on for hearing. It was not dissected into parts so the order of the court is today we will deal with jurisdiction and tomorrow we will deal with something else. It was an application which came on and was heard and stood over for judgment.

If the Commissioner had wrongly taken the view that only part of the application was going to dealt with and suddenly had a concern that perhaps her apprehension was wrong and that further material needed to be filed, she did, as she chose to do, file the additional affidavit. It was open to her, and, indeed, one would say the only reasonably course she could do would be to then file the additional argument, if there were additional argument.

McHUGH J: Say it was a leave application. Was there any detailed argument as to the merits? Did the parties address the court on the assumption that leave had been granted?

MR BEACH: No, the parties addressed the matter – it is a leave application so, is it attended with doubt, is there substantial prejudice if it is unreversed? Counsel for The Age, who then appeared, filed a written submission which dealt with the substantive issue and took very little of the court’s time by way of oral argument, but Mr Costigan dealt with the substantive issue, presumably on the basis that he had to show that the decision was at least attended with doubt to get leave, if leave was required, demonstrated by paragraph 31 of the Court of Appeal’s judgment, where they set out the arguments that the Chief Commissioner advances. I take your Honours to page 194 of the confidential material.

KIRBY J: Is the whole of the reasons of the Court of Appeal still confidential? Is there no expurgated version that is now out of the confidential book?

MR BEACH: No. There is no expurgated version or other version that is ‑ ‑ ‑

KIRBY J: Even the material in the Court of Appeal judgment dealing with the question of the analysis of the Supreme Court Act and whether it is interlocutory or final – this is still in the confidential book?

MR BEACH: That is so, and there is nothing on the ‑ ‑ ‑

KIRBY J: Well, I find that astonishing and offensive.

MR BEACH: And as I said to your Honours earlier, it is not on the Net ‑ ‑ ‑

KIRBY J: I realise that, but we had some discussion this morning as to whether – you remember in The Leveller Lord Scarman said the way courts handle these things often is by handing up a piece of paper and the name of the person is written on it, and courts get around the problem in practical ways. It just seems to me that there are practical ways whereby this judgment should be mainly available to the community of Australia.

MR BEACH: We would obviously agree with your Honour.

KIRBY J: And as far as I am concerned, it is really outrageous that in wartime, in the greatest peril of this nation, we were able to deal with cases on the record and in this case it is so secret it cannot even be available. I do not know what I can do about it, but I feel extremely frustrated that I cannot do something about it. I think this Court should order that all of it except perhaps one or two paragraphs should be available, transferred from one book to the other, put on the Net at once.

MR BEACH: Well, obviously, your Honour, I would urge your Honours to take that course if it was a course that your Honours were inclined to take. Paragraph 31, over the page to page 195, their Honours set out in substance the Chief Commissioner’s submissions on the substantive issue, if I could call it that.

KIRBY J: Is there any contest in that affidavit which was read to us this morning by Mr Costigan that those things were not submitted?

MR BEACH: No, there is no suggestion that they were not submitted.

KIRBY J: So we would normally assume that the Court of Appeal has accurately stated what was put to it by the Chief Commissioner of Police in the hearing?

MR BEACH: Yes, no one has ever suggested that the Chief Commissioner of Police did not put what the Court of Appeal said she put.

GLEESON CJ: As I understood the written submissions of your client, your client was seeking to persuade the Court of Appeal that no orders should have been made at all?

MR BEACH: That is so, your Honour, save that the identity – my client has never sought to contest suppression orders as to the identity of the various undercover operatives. It has said in the past and we will say again, it has no wish to publish anything that might identify undercover operatives. It is the methodology that is in issue.

KIRBY J: The question of the methodology almost certainly would arise in the appeal of the two offenders who, I assume, were convicted.

MR BEACH: Yes.

KIRBY J: And their appeals, as we were told, I think, this morning, are still pending. Is that correct?

MR BEACH: I understand so, your Honour.

KIRBY J: So that issue would, in the normal course, become a relevant matter in that appeal, particularly if those appellants sought to challenge their conviction on the basis of a Swaffield or Pavic type argument that their confessions should be excluded because unfairly obtained.

MR BEACH: Indeed, your Honour.

KIRBY J: So if we refused to disturb the judgment of the Court of Appeal, that would leave the Court of Appeal’s orders standing, or protecting the utility of the appeals of the two appellants in those cases, the Court of Appeal in respect of those cases could hear the additional material that the Chief Commissioner wishes to press as having been overlooked in this case or not having been heard and considered in this case?

In short, if Mr Costigan says, “For whatever reason, a mistake was made in the Court of Appeal in this case, and it may have been our mistake and we may not have put all the material before the Court of Appeal”, but your argument, as I understand it, would be defensive of the hearing of the proceedings in the two appellants’ case, the jurisdiction of the Court of Appeal or of the trial judges remains to make orders protecting those suppression orders on the basis of whatever additional material the Chief Commissioner wishes to put, if anything.

MR BEACH: Subject to abuse of process type arguments or other discretionary considerations as to why the court should not permit Mr Costigan or his client to put in material that was available, or would have been available with reasonable diligence, had it been looked for in September 2003 – yes, your Honour.

GLEESON CJ: Was the Court of Appeal told in the course of argument that there would be an application to lead new evidence?

MR BEACH: Other than by our learned friends’ note and supplementary note, I am not aware of the Court of Appeal being told any such thing, your Honour. My learned friend, Mr Costigan, is nodding in agreement with me.

KIRBY J: In the practice of the Court of Appeal of Victoria, after a matter stands for judgment, is it competent for a party to the appeal to simply send in additional materials and affidavits relevant to the hearing, or do they need the leave of the court?

MR BEACH: They need the leave of the court, your Honour, although it is frequently done without the leave of the court being obtained.

KIRBY J: And in this case, as I understand it, following some informal signification, materials were just sent in. Is that correct?

MR BEACH: That would appear to be so, your Honour.

KIRBY J: And copies to you?

MR BEACH: Yes, your Honour.

KIRBY J: And did your client protest at what had been done, or not?

MR BEACH: No, it did not, your Honour. It submitted its own supplementary note which can be found ‑ ‑ ‑

HEYDON J: Page 51.

MR BEACH: At page 51 of the open book, which we would say effectively was a note to the court in response to the two notes and further affidavits that had been submitted by the Chief Commissioner saying that the application for leave is concluded, but, of course, if leave is granted, we wish to be there to make submissions about the substance of the matter.

KIRBY J: Does not that expression rather support Mr Costigan’s argument that you, too, thought you were only standing at the threshold? You were only arguing leave, and, as in this Court, you would come back on a later day if leave were granted and you would argue the appeal.

MR BEACH: That is right. Your Honour, we agree that we were only arguing leave, but the leave question encompasses, is the decision below attended with doubt and substantial prejudice if it is unreversed? Mr Costigan asserts, no, no, it is even more confined than that. You are not even arguing that. On 9 October what was being argued was the jurisdiction of the Court to hear an appeal. My client took the approach in the Court of Appeal that it did not want to say anything on jurisdiction, that is, whether this was an otherwise order situation in section 17A(3). That was ‑ ‑ ‑

KIRBY J: So you say it is entirely analogous to this Court. There is the jurisdiction question, which is not usually in doubt, then the leave question, and, if leave is refused, you do not come back for the third stage.

MR BEACH: Correct, yes.

KIRBY J: And you say that is how it was argued, the two points. Mr Costigan says only the first one.

MR BEACH: Precisely. We say nothing in the material suggests that the court had ordered that there be a preliminary determination of the jurisdiction question. The summons seeking leave came on for hearing and it was heard and the Court reserved its decision at the conclusion of the argument.

HAYNE J: The summonses for leave are those at pages 3 and 54, is that right?

MR BEACH: Yes, that is so, your Honour. So, for those reasons, your Honours, we say there was no denial of procedural fairness by the Court of Appeal. Your Honours, we would say that disposes of the appeals in matters 102 and 103 and then there remains the special leave applications which have been referred to this Court in matters 49 and 50. Consistent with the approach we have taken all along, that our learned friend is correct that the court had jurisdiction – that is, the Court of Appeal had jurisdiction to entertain an appeal if it was minded to grant leave – we would say that the applications in M49 and M50 for special leave to appeal from the trial judges ought be refused, because, of course, there was the right of appeal to the Court of Appeal.

KIRBY J: But you will remember in the special leave hearing Justice Gummow at least raised the question of whether, in principle, the Court should get its basis of jurisdiction right, because if there is an appeal as of right, then you do not have the gateway of leave, and therefore, in a sense, would one not have to determine that question? Mr Costigan asserts as of right, so are you not approaching it in an illogical way? Do we not first have to decide, was there an appeal as of right? And that then raises that question of section 17A(3), I think it is, which excludes interlocutory criminal appeals in matters relevant to the trial of a person.

MR BEACH: Yes, but we say we did not contest his submissions on that point. He comes to the Court of Appeal, then, with the problem created for him by the fact that he is not a party to the proceeding below, so needs leave, and the additional problem ‑ ‑ ‑

KIRBY J: He says he is a party to the particular proceeding, which was the proceeding for a suppression order.

MR BEACH: But there was no proceeding, your Honour. He came along and intervened in the criminal proceeding. If he wants ‑ ‑ ‑

KIRBY J: Was it given a separate number or not?

MR BEACH: No, he came along and intervened in the criminal proceeding. The only time he launches into a separate proceeding is when he comes to the Court of Appeal and he is given a number for his notice of appeal. The application for the suppression orders made by Justice Osborn and Justice Teague were made in the criminal trials. So he comes to the Court of Appeal not being a party to any proceeding, but seeking to appeal in respect of orders made in the criminal proceedings. He needs leave, in our submission. He needs leave for another reason, because, for the reasons I have already submitted, the orders he appeals against are interlocutory, that is, they are orders that do not determine the rights of the parties finally. He appeals against a failure to obtain suppression after 10 October.

KIRBY J: I understand those two arguments, but is there not a logically and legally anterior one which is the principle in the Supreme Court Act (Vic) which says whoever you are and whether you are a party or not a party, whether you are intervening at an interlocutory stage or not, you cannot appeal in criminal cases.

MR BEACH: Yes, but then the Court of Appeal assumes that in his favour, so they ‑ ‑ ‑

KIRBY J: I know they do, but I have a problem with that assumption. The language of the Act and of Smith’s Case seems to stand against it.

MR BEACH: Your Honours, we have never sought to argue the point. It is not a point that my client is interested in, with respect, and it is not a point that avails Mr Costigan because it makes no difference, we would say, to him whether the Court assumes the point in his favour or whether it actually determines it in his favour. Where he loses is on failing to establish that the decisions below were attended with doubt.

KIRBY J: Yes, but the correct answer of the Court of Appeal, if the legal point under section 17A(3) is good, is not that it is not attended by doubt; it is just that he cannot appeal. In law he cannot appeal. There is no appeal.

MR BEACH: That is so.

KIRBY J: One can understand a policy of the legislation against about that. This Court in Elliott’s Case spoke of the undesirability of interlocutory appeals in criminal matters and that may well be the explanation of the Victorian provision.

MR BEACH: That is so and that then gives rise to the special leave applications in M49 and M50. All I was submitting to your Honours is we hear nothing from our opponents about wanting to put M49 and M50 on because it is contrary to their principal submission, which is that the Court of Appeal has jurisdiction. But if your Honours wish to hear me on the special leave applications in M49 and M50 on the basis that the Court of Appeal may not have had jurisdiction, I will now deal with those special leave applications.

KIRBY J: I must confess, I think there was a lot of point in Justice Gummow’s question at the special leave hearing. I think it is a preliminary threshold question. If the Chief Commissioner cannot appeal, that is the end of the matter. It may be an odd result and perhaps an undesirable result because it means then cases have to come direct to this Court, but if that is what the law of Victoria provides, then that is the legally correct answer to the Chief Commissioner’s appeal.

MR BEACH: Your Honour, we never took that position below.

KIRBY J: I know you did not. We do not have a real contradictor here. You have your focus, but the Court has to deal with the matter according to law.

MR BEACH: On the assumption that there was no jurisdiction in the Court of Appeal, I will now turn to the special leave applications in matters M49 and M50.

McHUGH J: Then that raises a question, does it not, as to whether it is the judicial order?

KIRBY J: The Act talks of determination.

McHUGH J: Does not our jurisprudence hold that, under section 73, there is no appeal unless there is a judicial order? For instance, there is no appeal against an advisory order of a Full Court of the Supreme Court of a State.

MR BEACH: Your Honour, I am, of course, happy to accept what your Honour Justice McHugh says as it effectively finishes the submissions that I need to make, if that is the view ‑ ‑ ‑

GLEESON CJ: No, we are not engaging in a negotiation. This is your opportunity to say whatever you want to say about these special leave applications.

MR BEACH: Your Honour, all I would wish to say on the special leave application concerns the merits of the so‑called open justice point.

GLEESON CJ: That goes, I would have thought, to all four matters before us because the decision of the Court of Appeal to refuse leave appears to have been based upon the conclusion that there was insufficient merit in Mr Costigan’s argument to warrant a grant of special leave. At some stage, before we get much older, we ought to take a passing glance at the merits.

MR BEACH: I would only say this in respect of that, your Honour, the notice of appeal from the Court of Appeal is confined solely to natural justice issues. There is no appeal that the Court of Appeal was wrong in its consideration of the substance of the matter or the substance of the application for leave. So, in our submission, it does not arise in proceedings M102 and M103. If your Honours take the view that there was no denial of procedural fairness in the Court of Appeal, that disposes of those appeals.

KIRBY J: Except, as I have said, that they have dealt with the matter on an assumption that it was one which was properly before them and they had a leave jurisdiction and if they had no jurisdiction then that is what they ought to have said.

MR BEACH: I think I can see which way the wind is going and I am happy to ‑ ‑ ‑

KIRBY J: Do not assume, just because I say these things that – the wind may well be blowing in a different direction, but it is a question of being legally accurate. Whatever parties come here, we have to ultimately keep our eye on the statute or certainly, at the very least, reserve the statutory question which is very live in my mind, as it appears to have been in Justice Gummow’s mind in the special leave hearing.

MR BEACH: Can I come now to the open justice point and make these submissions to your Honours. Putting the safety of the officers to one side, which I will deal with later, it appears that the Chief Commissioner’s case is effectively, “I have a new technique which is useful in solving unsolved older crimes. Disclosure of that or publication widely of that technique may make it less effective in that some of the targets for it might find out about it and thus are less likely to be susceptible to its use.” Therefore, the case appears to be, as I say, putting safety to one side, that publication prejudices the administration of justice because this newly acquired beneficial technique may not be as useful as it would be if there was no publication.

We say that those matters are not sufficient to justify the permanent suppression of the technique as has been sought by the Chief Commissioner and that publication was correctly limited by the trial judges for a number of reasons. The first, knowledge of a technique cannot be suppressed for all time simply to solve a greater percentage of crimes that might otherwise be solved. Otherwise, your Honours, when fingerprints first came into existence hundreds of years ago ‑ ‑ ‑

McHUGH J: More than hundreds of years ago.

HAYNE J: Well, I think fingerprints came into existence ‑ ‑ ‑

MR BEACH: I apologise. The technique of using fingerprints or detecting fingerprints and matching them to solve crime would, on our learned friend’s argument, be one that was a useful one which should be suppressed for all time and today we would not even know about it unless we were part of that group of people in the know.

McHUGH J: I do not think much of that analogy.

KIRBY J: No, that is like the analogy of the Court of Appeal about DNA. You cannot change your fingerprint and you cannot change your DNA.

MR BEACH: No, but the argument would run that if we suppress the knowledge that fingerprints can be detected and found and are unique then criminals will not ‑ ‑ ‑

KIRBY J: People will wear gloves.

MR BEACH: Yes, they will wear gloves, exactly. Or, to pick up the Court of Appeal’s example, they will not leave their DNA or they will take steps to prevent leaving their DNA at crime scenes.

McHUGH J: They do now. That may be the downside of the revelation of this. I mean, any professional burglar will wear gloves.

MR BEACH: We would say there is no distinction in principle between suppressing that sort of technique or knowledge than this particular one. It is a technique; it is useful; it will be less useful if criminals learn about it and think of ways to thwart it.

McHUGH J: What do you say about the civil cases where people have secret processes, techniques not covered by the patent laws or other intellectual property laws but the courts will protect them by making non‑disclosure orders?

MR BEACH: They are protecting the subject matter of the litigation and there simply would be no litigation in those areas if the very having legal proceedings ‑ ‑ ‑

McHUGH J: That is the Commissioner’s point. There will not be any convictions for murder or any prosecutions for murder in these old cases if this is revealed.

MR BEACH: No, with respect, the Commissioner’s point is that it may be that in respect of some people they will not be able to obtain a conviction by the use of the technique, but we do not have a legal system which embraces the notion of the one imperative is the detection and conviction of every criminal. There are balances in respect of this and we would say that when one balances up principles of open justice and the ability to give a fair and accurate report of a case and the other considerations that are referred to in the Court of Appeal’s judgment – and I will come to them in a moment – as against the doubtful benefit of supposedly suppressing from wide publication the use of the technique, the balance is all one way.

McHUGH J: Yes, but you are asking for a free ride on the court proceedings. You want to publish the details of the court proceedings. There is nothing to stop you doing the hard yards and getting your investigative reporters to go and flush these techniques out by whatever methods they can and run big stories on them. There cannot be any prohibition about debating these issues, but you want to publish the evidence in a particular court case.

MR BEACH: Your Honour, it would be a brave publisher that published after asserting that it had gone out to find the material itself and it had not learnt anything from a court case. Presumably the Chief Commissioner would take the matter very seriously and say, “I’ve got court orders in place which prevent the publication of this technique, that is what they are designed to do, and you have published the technique”. A brave publisher who is then put in the position of saying, “I’ll publish anyway and I’ll come along and I’ll defend it. I’ll say I got it from somewhere else.” “Where did you get it?”

McHUGH J: If they did get it from somewhere else ‑ ‑ ‑

MR BEACH: “Where did you get it from?” “My sources are confidential.”

McHUGH J: What is the problem?

MR BEACH: Your Honour, it is the issue of determining where you got the knowledge from. Can you truly prove that you got it from a third party source or is any knowledge you got from that third party source infected by the fact that you learnt some of the matters in a court case while you were sitting listening to the evidence. We would say all of these matters take one to the point where, as the Court of Appeal, we would say with respect, correctly said, the impractical difficulties associated with this make the suppression of the ‑ ‑ ‑

McHUGH J: It is not ideas that courts can prohibit; it is, in effect, the copyright in the evidence. It is the evidence that they can prohibit, the evidence that has been given. What authority have they got to prohibit ideas being discussed?

MR BEACH: We would say none, your Honour.

KIRBY J: Justice McHugh’s point comes close to the matter that I raised at the very outset this morning concerning the constitutional implication of the openness of courts. Just as the Court has held there is a constitutional implication about the effectiveness of the representative democracy, there must be a similar implication concerning the operation of the courts mentioned in Chapter III, in my opinion.

MR BEACH: Yes, and, your Honours, we took the approach that what Justice McHugh said in John Fairfax v Police Tribunal of New South Wales represented the law and it was unnecessary to further add to the length and complexity of this case which, after all, is one where my client has been, since 10 October, trying to get suppression orders lifted rather than ‑ ‑ ‑

KIRBY J: I understand that but, as the Court of Appeal pointed out, since that decision was written the Supreme Court Act (Vic) has included section 18 and that, subject to the Constitution, must be given effect. That is why the issue of the constitutional context may yet have significance for matters of this kind, at least in the way we read provisions such as section 18.

MR BEACH: Yes, I understand what your Honour has said. We have limited ourselves, as your Honours will see, to what we say is the proper operation of sections 18 and 19 without reference to the Constitution and without giving section 78B notices.

KIRBY J: I know you have.

MR BEACH: Yes. Can I come back to Justice McHugh’s question as to the publication of ideas. Your Honours will see, if your Honours go to Justice Osborn’s suppression order starting at page 1 of the open book, that the publication is not limited just to the evidence but, on page 2:

(vi) details of the sixteen scenarios comprising such methodology –

and:

(ix) the fact of the use of any of the sixteen scenarios as an investigative tool used by the Victoria police.

Contrary to our learned friend’s submission, if I could just interpolate here, the ban on publication is not just one in the media. Of course, if one goes to paragraph 1, it is “Publication by print or electronic means”. One assumes that is by print of any kind or any kind of electronic means. There is, as we say in our written submissions ‑ ‑ ‑

McHUGH J: Speaking for myself, I think paragraphs (vi) and (ix) would be of very doubtful utility, having regard to what I said in John Fairfax v Police Tribunal, among other things.

MR BEACH: Coming back to the reasons I was submitting that the publication was correctly limited, as the Court of Appeal say in their judgment ‑ ‑ ‑

GUMMOW J: Just looking at section 18 again, Mr Beach, on the face of it this order is directed to the world.

McHUGH J: Exactly.

MR BEACH: Yes, your Honour.

GUMMOW J: And it looks like a legislative activity, but the only obligation to notify the world is subsection (3), is it, “on a door of the court house”?

MR BEACH: Yes, your Honour.

GUMMOW J: And then it is a criminal offence.

MR BEACH: That is so, your Honour.

HAYNE J: Which may or may not cast light on what is meant in 18(1)(c) by:

publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding.

It may perhaps suggest some narrowing or some particular reading of “derived from” in such a context.

MR BEACH: We would certainly contend, your Honour, that the suppression orders in their current form, particularly paragraphs (vi) and (ix), are wider than is permitted by section 18(1)(c).

GUMMOW J: Does subsection (4) supplement or substitute for the contempt power?

MR BEACH: Supplements, I think, your Honour. At paragraph 40 of the judgment of the Court of Appeal they referred to the proposition that it is important that “the factual and legal foundations underlying” convictions and decisions to set aside ‑ ‑ ‑

GUMMOW J: But the contempt powers concern the judicial orders, surely.

MR BEACH: I am sorry, your Honour, I did not catch that.

GUMMOW J: A contempt power is concerned with judicial orders. It is an aspect of judicial power.

MR BEACH: Yes, your Honour.

GUMMOW J: These orders do not look like an exercise of judicial power at the moment and that would suggest that subsection (4) is ‑ ‑ ‑

McHUGH J: These are common rules, in effect, binding on anybody.

MR BEACH: I take your Honour’s point.

GUMMOW J: The old Conciliation and Arbitration jurisdiction would have illustrations.

GLEESON CJ: What would be the mental element necessary for an offence against subsection (4)?

MR BEACH: I do not know that there is any authority on that point, your Honour. One can obviously see arguments both ways as to whether one has to know of the existence of the order, but one could obviously see arguments that somebody seeking to enforce such an order might make that it is irrelevant, that you did not see the order on the door or you were not there when you did not hear it.

I was taking your Honours to paragraph 40 of the Court of Appeal judgment where they referred to the fact that it is important “the factual and legal foundations underlying a decision” to set aside or not set aside should not be concealed. It is a related point, but paragraph 37 of the judgment, and also picked up in R v Mentuck, the difficulty of living with an acquittal where the public believes it was gained on a technicality.

If I can come finally to the issue of safety, which I said, when I started this submission, I would come to. We would submit to the Court that the evidence of danger to operatives if the technique is revealed, as compared to evidence of danger to operatives if their names or identities are revealed – which, of course, we do not take issue with – is far from compelling.

If your Honours look in the confidential book at pages 79 to 82 where the witness was asked questions by counsel for the Chief Commissioner about the issue, your Honours will see – and I do not propose to read the whole passage, but it starts at page 79, line 27, where the witness is asked about the safety of “undercover operatives in the event of dissemination of the methodology”. Your Honours can read the

next three pages and your Honours will see very little that is responsive to that question, in spite of efforts made by Mr Silbert to draw the witness back to the issue at the top of page 82, line 3, where he is asked:

Do any of the suspects in the three scenarios currently under way have prior convictions for violence . . . I can’t answer that question.

Really, there is little of substance, other than the assertion that if the technique becomes known it may impact on the safety of the offices. Again, we would say, if one reads the scenarios, one observes that they are all conducted in an atmosphere where there is one target and many police. Far from being able to suggest, we would say, realistically, that if a target finds out about the method the operatives might be in danger, far more likely, if a target finds out about the method, the ability to manipulate the method and thus be exonerated, to use the Chief Commissioner’s words, by not, if I could say, falling for it, is a far more likely scenario.

Ultimately, we would conclude, your Honours, by saying that these were discretionary decisions by the trial judges. Sections 18 and 19 give the trial judges, if satisfied that it is necessary to protect the administration of justice, a discretion to make the orders sought. There is nothing in the material which shows that the trial judges erred in the exercise of that discretion. If the Court pleases.

GLEESON CJ: Yes, thank you, Mr Beach. Yes, Mr Costigan.

MR COSTIGAN: In response to your Honour Justice Kirby’s legitimate complaint about the chronology, what we said in our submission, that we were not providing a chronology, was picked up immediately by the Registry in Melbourne, who contacted us and said a chronology must be provided, and we did so.

KIRBY J: I know, but it is not a chronology in accordance with the Rules. It simply has a date. First of all, it is a chronology that takes up about a third of a page of double spacing. It does not cover all of the events that have been given to the Court in the course of this day and, most importantly, it gives no transcript reference. I mean, I hate to say this to you, Mr Costigan, I believe almost everything you told the Court, but we do tend to check and it is useful when you are writing reasons to be able to go straight from the chronology to the item in the appeal book. It is just fundamental, really.

MR COSTIGAN: Your Honour, we are satisfied beyond discussion, as a result of the discussions in the Court today, that the chronology is not adequate for the purpose for which it should have been put in and ‑ ‑ ‑

KIRBY J: That is a mild way to describe the chronology.

MR COSTIGAN: I was doing my best to ‑ ‑ ‑

KIRBY J: However, if you would provide a chronology, I would be grateful.

MR COSTIGAN: Certainly. I will speak to my learned friend ‑ ‑ ‑

KIRBY J: What about the reasons for judgment of the Court of Appeal? I thought you agreed with me this morning that the greater part of them – certainly so far as they deal with the issues of leave and the need for leave, that there is no reason whatsoever that they should not be available.

MR COSTIGAN: Yes, I do agree with that.

KIRBY J: Well, about the rest of it?

GLEESON CJ: I thought you dealt with that after lunch.

McHUGH J: After lunch. You said that only paragraphs 8 and 24 and note 20 need to be suppressed.

MR COSTIGAN: There are only two paragraphs that need to be excluded in our view.

KIRBY J: They are the ones that refer to the Supreme Court of Canada?

MR COSTIGAN: The references I gave were page 178, paragraph 8.

GLEESON CJ: I thought that after lunch you were modifying your application in the notice of motion on page 125 of the appeal book.

MR COSTIGAN: Yes, your Honour. Yes, I was indeed, your Honour.

GUMMOW J: All that is left is those designated paragraphs?

MR COSTIGAN: Yes. So we have no objection to the whole of the judgment being made public, except for the matters I referred to immediately after lunch.

McHUGH J: Paragraphs 8, 24 and note 20.

MR COSTIGAN: That is right, your Honour.

GLEESON CJ: Or, to put it another way, the notice of motion is now not pressed insofar as it relates to any part of the reasons for judgment of the Court of Appeal, apart from paragraphs 8 and 24 and note 20.

MR COSTIGAN: That is so, your Honour. The second thing I would like to mention, I indicated to your Honour the Chief Justice after lunch that we had a concern about existing operations and the necessity to have perhaps a short time in which to make certain that no one was at risk. It appeared, as I looked at the orders that were made when my friend was addressing the Court, that the orders suppressed various things until 10 October, and they have been continued, but one of the things that they suppressed was the names of the undercover persons.

Now, I know my learned friend has said that there is no desire that they should be made public, but I am slightly troubled, if this Court should dismiss the appeal and there is then no longer an order suppressing the names of the operatives, that there is a window of opportunity for somebody else to publicise it and it is another reason why we would like just a short time, after this Court decides, for us to go back to the trial judges and get an order limited to the names of the operatives.

GLEESON CJ: Whenever we make an order in the matter, would your problems be accommodated by us simply suspending the operation of the order for a period of seven days after we make it?

MR COSTIGAN: They would indeed, your Honour.

GLEESON CJ: Whatever the order is and whenever we make it.

MR COSTIGAN: Whatever the order this, that would meet our needs, your Honour.

KIRBY J: Mr Costigan, did you say everything you wanted to say on the merits of the issue that the Court of Appeal dealt with. You contend, contrary to your understanding of the proper procedures in that court ‑ ‑ ‑

MR COSTIGAN: Yes, I did.

KIRBY J: Because I did not hear you arguing at any length or in any substance that the Court of Appeal, if it was right to deal with the merits, got it wrong to the extent that they did deal with it. I would not want you later to be saying that we had committed any injustice to your client by dealing with those merits to the extent that it is necessary.

MR COSTIGAN: No, I would not be saying that for a number of reasons, one of which is, I rely, of course, on our written submissions, particularly in relation to the open justice, and to the quite short oral submissions I made this morning on that matter, and I do not wish to add to that, except to remind myself and the Court that at the grey end of open justice, when one takes into account section 18 and section 17, there is a balance to be drawn, and it is for the Court to do so on appropriate judgment.

KIRBY J: You have slipped back now to the natural justice point, but I am asking you to address the issue of whether, if it is relevant to the disposition of this Court’s order, looking at what the Court of Appeal did, to consider whether there is substance in the contention that a court in Australia should suppress information concerning the police techniques that are dealt with, to the extent that they are in the Court of Appeal reasons, given that, on one view, similar techniques have been made public in foreign countries in reasons of courts, and secondly, that given Swaffield and Pavic and the article that I have mentioned, it is not at all unusual in Australia for techniques of deception to be used, and sometimes quite properly used, in the public interest by police in pursuing crime on behalf of society.

MR COSTIGAN: Your Honour, I expressed myself badly in response to what your Honour said. I was not attempting to go back to the natural justice argument. I was restricting my comments to what we have said about open justice and what we have said in terms of an appropriate balance to be drawn, and I do not wish to add to that.

KIRBY J: I must say to you, I am left in the position which is rather similar to the Court of Appeal, that there is nothing particular revealed, at least in the record as I understand it at the moment, and especially because the trials of the accused were in open court. I would like you to respond to the suggestion in the Court of Appeal judgment at page 200 of the closed book, presently closed, that it would be fatuous to suggest that revelation of this information would come as a big surprise to those in the underworld or potential targets who would not already have learned of this or known of it before.

MR COSTIGAN: Your Honour, I think it would be fatuous to suggest that if the Victoria Police Undercover Unit was to target somebody in respect of a crime when that person had been in gaol with other people who had been subject to these techniques, it would be fatuous to suggest that he would not know that.

McHUGH J: The story in relation to the two people involved here would be all over the gaols in Victoria, would they not?

MR COSTIGAN: Of course it would, your Honour, and we have never suggested otherwise, but what we were hoping to be able to say to the Court of Appeal and, indeed, to the trial judges was that the targets are very carefully selected by the Undercover Unit to be people who would not be in the climate of those ‑ ‑ ‑

KIRBY J: But they tend to get visitors in gaol and have talks.

MR COSTIGAN: These people are not in gaol.

KIRBY J: They can even phone.

MR COSTIGAN: The targets are not in gaol, your Honour. That is the distinction that ‑ ‑ ‑

KIRBY J: Well, the targets are not, but the suggestion in the Court of Appeal reasons is that the types of targets that you are concerned with are people who are very likely to be in communication with others in society.

MR COSTIGAN: And that is why we say they got it wrong, your Honour, because the evidence we would have wished to have led in respect of applications on the substantive issue were that the targets were carefully chosen by the Undercover Unit not to be people who would be likely to have heard about it, unless it appears in the newspaper ‑ ‑ ‑

GLEESON CJ: Why should you not have led that evidence before Justice Osborn and Justice Teague?

MR COSTIGAN: There was some evidence called but, in fact, there is in one of the affidavits – I will ask my junior to locate it – there is a statement, as I recall it, that the targets are chosen with care not to be people – your Honours, we made the applications before Justice Osborn and Justice Teague and succeeded in persuading them both to give a suppression order, and they made that order on the material that was available. The difficulty was that they had a limitation on the period of the suppression order. We were then faced with a decision as to whether we went back to them within the 14 days after the conviction, or after the order was made, or whether we went to the Court of Appeal to challenge their verdict.

GLEESON CJ: In the event, you did both.

MR COSTIGAN: We did both but in a different order. We went to the Court of Appeal – we had asked Justice Osborn whether he would refer it to the Court of Appeal and he said, “No, but you can go if you like”. We chose to go to the Court of Appeal and they heard what we had to say. In response to my suggestion that they extend the suppression order, they said, “Go back to the trial judge”. At that stage, we did not need to call additional evidence, because what we were merely seeking was a continuation of the suppression orders until the Court of Appeal had delivered judgment.

GLEESON CJ: Could I just get clear in my own mind how long you wanted and still want these suppression orders to last for? For ever?

MR COSTIGAN: We want them without a time limit but, of course ‑ ‑ ‑

GLEESON CJ: You mean you want them to be made indefinite?

MR COSTIGAN: Indefinitely, but they are always subject to an application for change.

GLEESON CJ: I think that was pointed out to you this morning.

MR COSTIGAN: Well, I accepted that the ‑ ‑ ‑

McHUGH J: But is not one of your problems that the court can only:

make an order under section 18 if . . . it is necessary to do so in order not to –
. . .
(b) prejudice the administration of justice; or
(c) endanger the physical safety of any person –

Now, Rogerson’s Case in this Court holds that investigation by police is not part of the administration of justice, not part of the course of justice. So you would have to point to something in an individual case that might prejudice the administration of justice and, likewise, to “endanger the physical safety of any person”, you would be probably talking about the individual officers involved in a particular case. How can you get continuing orders that are not related to some aspect of a particular case or the identity of particular officers involved in a particular case?

MR COSTIGAN: One example of that, your Honour, is the blackmail cases, where a court will make an order suppressing the name of the victim of the blackmail attempt.

McHUGH J: Yes, but the rationale for that is that unless you make such orders the administration of justice as a continuing concern will be hampered because blackmail victims will not give evidence.

MR COSTIGAN: That is so, your Honour.

McHUGH J: But that is not this case, is it? You are trying to conceal from the general public a particular technique of investigation. It is not going to stop anybody giving evidence.

MR COSTIGAN: It is going to stop the successful investigation of criminal offences, which is part and parcel of the administration of justice.

McHUGH J: Well, it is not. This Court specifically held in Rogerson’s Case that it was not. If I could just read to you a passage from what Chief Justice Mason said in 174 CLR 268 at 276:

In this respect, it is important to note that the expression “the course of justice” is synonymous with the expression “the administration of justice”. In no relevant sense do the police administer justice, notwithstanding that they investigate crime, institute prosecutions (where appropriate) and assist in bringing prosecutions.

And the headnote of the case says:

Investigations by officers of the law of actual or suspected crimes are not part of the course of justice for the purpose of the common law offences concerned with perverting the course of justice.

MR COSTIGAN: I do not challenge, of course, what that case said, but the question under section 19 is slightly different, namely, is the order which is sought under section 18 necessary so as not to prejudice the administration of justice. In that sense, but not in the Rogerson sense, part of the administration of justice which would be prejudiced would be if the successful prosecution of criminals was in some way impacted.

McHUGH J: This is using the term “administration of justice” in a rather loose sense, is it not?

MR COSTIGAN: We would say the section uses it in a not loose but in a general sense.

McHUGH J: Can I ask you one other question, Mr Costigan. You rely on breach of the rules of natural justice of procedural fairness, in effect, as a ground of appeal. Now, historically natural justice was something that was dealt with by the prerogative writs, and the prerogative writs do not go to superior courts. How does it come about that this Court can deal with issues of natural justice in hearing an appeal under section 73 of the Constitution from a Supreme Court of a State? You are not asking the Court to make the order that the court below should have made. You are, in effect, wanting to do something. In effect, it is an order almost in the nature of mandamus to the Supreme Court.

MR COSTIGAN: Yes, it is really a request for a remittal of this case back to the Supreme Court to deal with a matter which it has not dealt with. Now, whether one tries to frame that in terms of the classic prerogative writs or not, what we are saying is that we had a cause of action which we wished to put before the Court of Appeal and it has not yet heard it, and we were disadvantaged by that.

McHUGH J: Well, do you go so far as to say that “appeal” in section 73 of the Constitution covers any ground that would indicate that the order made by the court was erroneous?

MR COSTIGAN: I am not sure I need to go that far, your Honour, and I step back from going that far if I do not need to. What we say is that the Court of Appeal was wrong. The reason it was wrong in its decision on the question of open justice was that it paid no attention to the submissions which it had been asked to receive on that question and, therefore, it made the wrong decision. It is not for this Court to step into its shoes and make what it thinks is the right decision, but it is appropriate that the Court of Appeal should be asked to revisit this question on the issue of open justice and to hear appropriate submissions on behalf of the Chief Commissioner and on behalf of the intervener.

GUMMOW J: But you said “had been asked to receive”. Is it not the position that that required leave itself after the conclusion of the hearing and that leave was not sought?

MR COSTIGAN: We say the hearing was not completed. What was ‑ ‑ ‑

GUMMOW J: Well, after judgment had been reserved.

MR COSTIGAN: It is a question, your Honour, on what matter was judgment reserved.

HAYNE J: Matters raised by your summonses that appear at pages 3 and 54.

MR COSTIGAN: Yes. They were the applications for leave to appeal, but there was also the issue of the notice of appeal and the application to the court to extend the suspension orders, which it correctly said go back to the trial judges and deal with.

HAYNE J: That was dealt with on the spot. But the application for leave, you say that was part heard or completely heard?

MR COSTIGAN: Insofar as it is now categorised as being an application for leave to appeal from an interlocutory order, it was part heard.

HAYNE J: The court announced, I assume, at the end of the hearing that it would consider its decision. Is that so?

MR COSTIGAN: It did so announce that but ‑ ‑ ‑

HAYNE J: And is it the position in Victoria that leave is necessary before submissions may be filed and relied on after the conclusion of oral argument? I thought the Court of Appeal had said that.

MR COSTIGAN: It is quite common in Victoria for submissions to be put to the Court of Appeal ‑ ‑ ‑

HAYNE J: I understand that, but I thought the court – I would be glad of reference to any authority. I have a memory that the Court of Appeal has said positively that leave is necessary if you are to rely on material after the court has reserved its decision.

MR COSTIGAN: I have a similar memory, your Honour, but that is a different matter to attempting to put further submissions as opposed to putting further material by way of evidence.

HAYNE J: I am sorry, my memory of it was that further submissions were not to be filed, save by leave. It is a matter of fact which we can find out and, subject to anything other members of the Court may say, I would want a note of any authority in the Court of Appeal that would show whether the court has said, “No more submissions after reservation, save by leave”.

MR COSTIGAN: We will prepare that note and get it to the Court. I do not think there is anything further I want to put to the Court.

GLEESON CJ: Very well. We will adjourn for a short time to consider the course we will take in these matters.

AT 3.48 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.05 PM:

GLEESON CJ: At least a majority of the Court is of the opinion that in matters M102 of 2004 and M103 of 2004 the appeal should be dismissed, and that in matters M49 of 2004 and M50 of 2004 each application should be dismissed for the reason that there are insufficient prospects of success of an appeal to warrant a grant of special leave. We will publish our reasons in due course.

The Court makes those orders, their operation being suspended, until 4.00 pm on 17 August 2004. The effect of that condition relating to suspension is that existing orders for suppression in the Supreme Court of Victoria will continue until 4.00 pm on 17 August 2004.

Mr Costigan, does that condition cover your position?

MR COSTIGAN: Yes, I believe so, your Honour.

GLEESON CJ: Where does that leave the notice of motion on page 125? Is there any need for us to make any order about that?

MR BEACH: No, your Honour, we have treated the material in the confidential book as confidential, and consistent with the orders that your Honour has proposed will become effective on 17 August, would accept that the material in that book is confidential until the time at which your Honour’s orders become operative.

GLEESON CJ: Thank you, but you are not the only publisher.

MR BEACH: That is true.

GLEESON CJ: Therefore, I need to ask Mr Costigan whether he needs any further order in relation to what appears on page 125, subject of course to the qualification that we know he is not pressing paragraphs 8 and 24 and note 20 in the reasons of the Court of Appeal. It may be, for all I know, Mr Costigan, that everything that is in that confidential book is already covered by those orders in the Supreme Court of Victoria. I just do not know.

MR COSTIGAN: I believe it is, your Honour, and as my friend indicated, some of those documents were provided to him or his client on undertakings about them not being publicised and pending the determination of these matters.

GLEESON CJ: If overnight you have a change of mind about that, you can come back to us tomorrow morning.

MR COSTIGAN: Yes, thank you, your Honour.

McHUGH J: You will need to go to the trial judge, will you not, to get some further orders to protect the detectives who have given evidence?

MR COSTIGAN: Yes, I will. I am just wondering whether the Court would be prepared to extend that slightly, bearing in mind that not only the two trial judges in the two cases under appeal but there are similar suppression orders in a number of other cases and ‑ ‑ ‑

GLEESON CJ: Mr Beach, would it make any difference to you if instead of 7, we said 14?

MR BEACH: Could I just seek some instructions about that, your Honour?

GLEESON CJ: Yes.

MR BEACH: No, your Honour.

GLEESON CJ: Then in the orders that have just been announced the date “17 August 2004” will be changed to “24 August 2004”.

MR COSTIGAN: Thank you, your Honour. In the meantime ‑ ‑ ‑

KIRBY J: There is no reason now, is there, that the reasons of the Court of Appeal, save for those paragraphs, should not be immediately available?

MR COSTIGAN: No, there is no reason.

KIRBY J: Perhaps the Court of Appeal registry might be informed of that.

MR COSTIGAN: Yes, your Honour. In the meantime, we will provide the chronology and also the note in relation to the submissions to the Court of Appeal.

GLEESON CJ: Thank you. Now, does any question of costs arise?

MR BEACH: Yes, your Honour. I would seek the costs of all four proceedings, including the special leave applications that gave rise to 102 ‑ in 102 and 103.

GLEESON CJ: What do you say about that, Mr Costigan?

MR COSTIGAN: I have not heard the basis on which my friend says he as an intervener should get costs, and we would ‑ ‑ ‑

GLEESON CJ: He is here as a party, is he not? Does not the fact that he was an intervener in the Court of Appeal produce the result that he is a party here?

MR COSTIGAN: I think it produces the result that he was a party in the Court of Appeal which would make him a party here, I guess, your Honour.

GLEESON CJ: Is he called the respondent?

MR BEACH: No, I think I am called the intervener in all matters.

MR COSTIGAN: Yes, I think he is called the intervener.

KIRBY J: The practical matter is that without the intervener, we would not have had a contradictor, we would not have had the assistance to sharpen the issues, and, therefore, in a sense, it has been in the public interest that we should have The Age newspaper here. Is that not correct?

MR COSTIGAN: That is correct, your Honour. I have nothing further to say.

GLEESON CJ: The order of the Court is that the appellant and applicant must pay the intervener’s costs of the appeals and the applications.

MR COSTIGAN: If the Court pleases.

MR BEACH: If the Court pleases.

GLEESON CJ: We will adjourn until 10 o’clock tomorrow morning.

AT 4.11 PM THE MATTERS WERE CONCLUDED

[2004] HCATrans 286

Key Legal Topics

Areas of Law

Administrative Law

Civil Procedure

Legal Concepts

Judicial Review

Standing

Procedural Fairness

Natural Justice

Jurisdiction