Commonwealth of Australia v Toohey

[1988] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl9 of 1988

B e t w e e n -

THE CO:MMONWEALTH OF AUSTRALIA

Applicant/Plaintiff

and

BRIAN TOOHEY

Respondent/Defendant

Application for continuation of

interim injunction and application to remit

DEANE J

Toohey

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 NOVEMBER 1988, AT 11. 16 A11

(Continued from 8/11/88)

Copyright in the High Court of Australia

C3Tl / 1 /SDL 27 10/11/88

MR M.E.J. BLACK, QC:  May it please the Court, I appear

with my learned friend, MR C.M. MAXWELL, for

the Commonwealth of Australia. (instructed by

the Australian Government Solicitor)

MR J. BASTEN:  I appear for the defendant, if the Court

pleases. (instructed by R. West, Public Advocacy

Centre)

HIS HONOUR:	Yes, Mr Black.
MR BLACK:	May it please the Court, this is a motion to

continue orders made by Your Honour ex parte

on Tuesday, 8 November.

Your Honour, service was effected as per Your Honour's directions and telephoned notice was given to Mr Toohey that evening.

Your Honour, we will be applying - indeed,

we now do apply - that the matter be remitted

to the Federal Court - something, of course, that this Court can do on its own motion, in

any event, under section 44(2A) of the JUDICIARY

ACT. The motion, therefore, is to continue

the injunctions granted on an interim basis by

Your Honour until the matter can be determined

in the Federal Court. By "determined" I do not

mean finally determined but at least until the

matter is before a Federal Court judge.

Your Honour, there are a couple of preliminary

matters that I sho1.1ld inform the Court about
before going to what may be apprehended to be
difficulties in the matter and their possible

solution.

Your Honour, it is the fact that an issue of "The Eye" journal appeared on the news-stands

on Wednesday. There is an affidavit filed this

morning in the Sydney registry from the Director

of Legal Services for New South Wales in the

Attorney-General's Department stating, in substance,

that between 6. 15 and 6.35 pm on the Tuesday

he telephoned newsagencies in or around the central

business district of Sydney, made inquiries as

to whether the newsagency stocked "The Eye" magazine

and in each case was informed that the newsagency

Tl normally did. The deponent then says that he

asked whether the agency had the November issue

of that magazine and, in all cases, was informed

that the issue was unavailable.

Your Honour, it does appear, however, that

the issue, though not apparently public available,

was available to some people on the Tuesday for

C3T2/1/SDL	28	10/11/88
Toohey

the reason that matters purporting to be extracted

from it appeared in the daily newspapers on Wednesday

morning. So that the inference must be that

there was some limited availability of the publication

earlier than the deadline for those newspapers

on the Wednesday.

But, Your Honour, it was thought proper

not only to inform the Court, of course, that
the journal did appear apparently on the Wednesday

and that inquiries were made at the very last
possible moment on the Tuesday~ and proper inquiries.

If I might inform the Court of those matters.

HIS HONOUR:  It must be a very secret activity if ASIO

cannot find out about it, Mr Black - or if ASIS

cannot find out about it.

MR BLACK: Well, Your Honour, it - - -

HIS HONOUR:  You need not take further time unless

Mr Basten wants to say something.

MR BLACK:  If Your Honour pleases. Your Honour, the problem,

if I might identify it as such is this: my learned

friend, Mr Basten, is, of course, not aware of the document upon which the minister based his

belief and he wishes to see that document before

moving further in this matter. Your Honour,

that is understood, of course, and what we would

propose, Your Honour, is that the document, which

form the basis of the minister's deposed to belief,

be shown to Mr Basten, he having undertaken to

Your Honour not to disclose the contents of

that document to any person except by the leave

of the Court.

Your Honour, the other way to deal with the matter would be simply to transfer the whole

proceedings to the Federal Court and preserve

the status quo in the meantime. But that would be a course that my learned friend would oppose

and, in those circumstances, Your Honour,

_the preferable course is that Mr Basten

be shown the document on those undertakings being

given.

HIS HONOUR:  I presume Mr Basten is aware that I made it

quite clear that I only accepted and looked at that document for the purposes of the ex parte

proceedings and it is not currently before me

or in evidence before me.	I think Mr Basten
is nodding agreement?

MR BASTEN:  Yes, I took that to be the case from the transcript

which I have had a copy of, Your Honour.

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Toohey

HIS HONOUR: If that course is agreeable to the parties,

I would be prepared to accept an undertaking from Mr Basten, but I would have thought his

assurance would suffice.

MR BLACK:  Your Honour, there can be, of course, no possible

question of Mr Basten - - -

HIS HONOUR:  I was not trying to put you into a position,

Mr Black, but I personally	think it is unnecessary
for counsel of Mr Basten's	standing to give
undertakings to the Court.	I think an assurance
was equally effective.

MR BLACK:	Your Honour, I would simply say that - - -
HIS HONOBR:	As I say, if the parties are prepared to resolve

it on that basis I will accept the undertaking.

MR BLACK:  Your Honour, one would instinctively, if I may

say so, with respect, agree with that in the

case of counsel appearing before this Court.

Yes, Your Honour, the assurance would, of course, be the equivalent of an undertaking.

HIS HONOUR, Very well. Mr Basten, it is noted you give·

an assurance along the lines of what, in effect,

Mr Black said.

MR BASTEN: 

I am happy to do that, Your Honour. Might

I perhaps note, at this stage, one difficulty:
I anticipate that I will need some time to read

the material as that is the basis of my friend's

case.

(Continued on page 31)

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Toohey

MR BASTEN (continuing):  He indicated a level of opposition to the

motion this morning. We certainly would not oppose

the remitter application. Indeed, we would say that

this matter should properly have been started elsewhere.

But in relation to the continuation of the injunctions,

my instructions are to oppose them. My difficulty, of

course, will be that having read that document I may not

be in a position to obtain further instructions,

whatever I would advise my client.

HIS HONOUR:  It is not possible for the parties to agree on a

general description of the contents of the document

which will enable the matter to proceed meaningfully

in public?

MR BASTEN:	Yes.
MR BLACK:	I would be hopeful, Your Honour. The only reason that

my learned friend and I were not able to progress

terribly far in our discussions outside the Court was

that I have constraints in relation to the document.

Now, once my learned friend sees the document, we can

discuss the matter further.

HIS HONOUR:  Very well. How long do you think it is not going

to take you long to read the material.

MR BASTEN:	So I am told, Your Honour.
MR BLACK:	I felt able to say that.

HIS HONOUR:  I would say this to both counsel: the matter will

certainly be remitted if the parties are agreed that

it is to be remitted to the Federal Court in Sydney?

MR BLACK: Yes, in Sydney, Your Honour.

HIS HONOUR:  I will make an order remitting it there. But,

Mr Basten, I would say this to you in terms of

continuing the injunction: as I made quite clear when

I granted the ex parte·injunction in view of the

then perceived urgency, I was very strongly influenced by the statement in Senator Evans' published affidavit

that the publication of the material would pose a

threat or could pose a threat to an individual in the
service of this country overseas. Well now, I am aware,

of course, of the arguments that can be put of

the basis on which injunctions are granted but if there

is a real matter to be fought in that context I would
continue the injunction.

MR BASTEN: Yes.

HIS HONOUR:  Well now, if that is of assistance to you in

discussions it is a matter for you.

MR BASTEN:  Yes. I think I understand what Your Honour is putting

and the issue that we see as being relevant in this

C3T3/l/PLC	31	10/11/88
Toohey

matter is what is the threat upon which the allegatio~

is based, and that is the matter which I would hope,

as I understand my friend, to obtain some assistance

with from the document.

HIS HONOUR:  Yes, I understand that but that is really not the

sort of issue of fact which this Court is the appropriate

place to investigate. If, contrary to your submissions,

I were to continue the injunction, it would be only

until such time as the matter could come before a judge

of the Federal Court.

MR BASTEN:  Yes, I appreciate that, Your Honour.

HIS HONOUR:  And he could become seized of the matter. Very well,

I will adjourn until when?

MR BLACK:	Noon, Your Honour.
HIS HONOUR:	I will adjourn until noon and, Mr Basten, if you need

more time,if you let my associate know, we will not

resume until you are ready.

MR BASTEN:  Thank you, Your Honour.

T3	AT 11.28 AM SHORT ADJOURNMENT
UPON RESUMING AT 12.48 PM:
HIS HONOUR:  Yes, Mr Black?
MR BLACK: If Your Honour pleases, we are indebted to the

Court for the time. There is one preliminary

matter I should mention. Your Honour, it was

thought proper to·show Mr Basten the further

document. He gave me his assurance, of course,

as counsel that he would then give an assurance

he gave in relation to the information document. to the Court in the same terms as the assurance

HIS HONOUR: Is that so, Mr Basten?

MR BASTEN:	I do so, yes, Your Honour.
MR BLACK:	Your Honour, the position that we contend for

now is that my learned friend has a sufficient

basis for considering what position should be

taken in relation to the continuation of the

orders pending the Federal Court being seized

of the mater and, in those circumstances, we

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Toohey

renew our application that the injunctions be

continued until further order of the Federal

Court. We submit that the balance of convenience

T4	is overwhelmingly in favour of that course.
HIS HONOUR:	Mr Black, I should inform you and Mr Basten

that I have communicated with the Chief Justice

of the Federal Court and if I were to continue

the injunction it would be until 4 pm next

Wednesday since I understand that the matter

as it were, deal with it as a matter of urgency

could be listed before a judge of the Federal

before that time.

MR BLACK:	Yes, Mr Honour.
HIS HONOUR:	That does not indicate any view as to whether or not the interim injunction should be continued.
MR BLACK:	I understand that, Your Honour. Your Honour,

the argument in favour of the continuance of the injunction in these circumstances is, as is classical, a balance of convenience argument.

It is not contended that any matter is being

held up in printeries, and so forth. The other

part of the order, namely to prevent the destruction

or disclosure of documents, could, at most, be

a passing inconvenience to Mr Toohey and the

counterveiling matter of risk to individuals and to national interest, in our submission,

in those circumstances, is overwhelming. I say

that in the context, of course, of the short

time for which the injunction that Your Honour

would grant would run. Your Honour, those are

the submissions. We submit that it is as strong

a balance of convenience case as one could find

in all the circumstances.

HIS HONOUR:	Thank you, Mr Black.	Yes, Mr Basten?
MR BASTEN:	Your Honour, might I just· say two things in

relation to what I now know. I am now apprised

_of the basis of the allegation in relation to

the threat to publish and I had no prior knowledge

of that. I have not been able to seek any instructions

and, as Your Honour perhaps was indicating to

me before when I did not know the contents of

the document, it would only give rise, no doubt,

to a conflict on the factual material if I could.

So there is nothing I can put to Your Honour on that.

The other aspect which had concerned me

was that it appeared that the threat had already

been proved to be untrue in so far as the .publication

is now concededly out and contains no such

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Toohey

information. I can now understand why that fact

in itself would not necessarily give the lie

to the rest of the material and there is nothing

I can say about that.

All I can say is that because I have been

unable to get further instructions I would formally

oppose the continuation of the injunction but

I do not wish to make any other submissions to
Your Honour.

The other matters really go to questions of what should happen in the meantime and I can

turn to those, perhaps, now if Your Honour would

hear me on that?

HIS HONOUR:	Yes.
MR BASTEN:	I can indicate that I am in a position to give undertakings that if it were able to be made
available to my instructing solicitor,
Mr Roger West, and the defendant, Mr Brian Toohey,
they would give one of two undertakings and, perhaps, I can put them in this way: either
that they would disclose the contents to no other
person than myself and amongst themselves; or -
and this is the primary request that I would make - that they be allowed to know the contents
of the document on the basis that they disclose the contents to no person other than amongst themselves and the person named as the source
of the threat.

In support of that, Your Honour, I apprehend

that the Commonwealth must be relying upon the
truth of the allegations contained in the document.

If they.are true, nothing in that document would

be disclosed to any person if that extra discussion

were permitted.

The fact that that person may be in a position

to disclose matters is something which is not

presently before this Court and is at large.

TS	Whatever position that person takes is a matter
for them but it would not be that that person
would know any more as a result of discussions
with either Mr Toohey or my instructing solicitors
or myself. The difficulty we face is that we
will have to seek instructions and probably put
on evidence in the Federal Court. In order to
do that it may well be helpful to have that opportunity
to discuss the matter referred to. And, if
there is to be no danger of further disclosure
following from that then, in my submission, it
would be an appropriate allowance to be made.

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Toohey

The only other thing I wish to say is that

we would support this Court taking the undertakings

subject to the possibility of them being varied

in the Federal Court when the matter is remitted because it will not be possible, as I understand

both what Your Honour has said and what the

Registrar has indicated, to go before a Federal

Court judge even to give the undertakings before

next week. There is a date referred to at the

end of the document which falls on the weekend.

What will happen thereafter in relation to the

third person, we simply do now know; whether that
person is going to be in the country for the

period - - -

HIS HONOUR:  You obviously credit me with a better memory

than I have.	I do not know what you are talking
about.

MR BASTEN: Could I show Your Honour a copy of - - -

HIS HONOUR: If it is necessary. As I said earlier, I

MR BASTEN:	Perhaps it is not necessary.
HIS HONOUR:	- - - made it quite clear that that document was

only before me in terms of the urgency of ex

parte proceedings. There are other questions,

of course, involving the extent of the hearsay

involved which would be relevant as to whether

it should be before me in relation to these

proceedings.

MR BASTEN: Yes. It depends, perhaps, in part on what

attitude my friend takes to - - -

HIS HONOUR:  Perhaps I will hear what Mr Black says in

relation to this.

MR BASTEN:	Yes.
MR BLACK:	Your Honour, our primary submission is that

no more disclosure should be given than is necessary
at each stage in the proceedings.	The disclosure

so far given is, in our respectful submission,

ample for the present proceedings. Then, we would submit, it would be preferable to take

it a step at a time; when the matter is in the

Federal Court then the necessary disclosure in

that court could be dealt with. I should add,

Your Honour, immediately, however, we do not contend as a matter of principle that Mr Toohey

should not, on appropriate undertakings of the

narrower -the tighter of the two proposed by

my learned friend - we do not contend that

Mr Toohey should not have access to the document

on appropriate undertakings. But we would submit,

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Toohey

Your Honour, it is better to deal with the matter

in stages; go no further than is necessary at

each stage. And there is a further, perhaps

less strong point, and it is this: that

undertakings of this nature being as serious

as they are, they should not, ideally, be formulated
or given in haste or on the telephone and, if

the matter were to proceed in stages, then that

problem would also be overcome.

If Your Honour is against us on those

points then it becomes necessary to address

Y6ur Honour on the type of undertaking that would

be given. In our submission> the undertaking

should restrict 1isclosure or, indeed, discussion

of the information between the three people who,

on that basis, would need to know it.

HIS HONOUR:  Mr Black, could we come firstly to the question of question of availability. I am reluctant

to become involved in it in that, as I have pointed

out to Mr Basten, the document is not in evidence

before me in relation to what I am now dealing

with.

MR BLACK:  Yes.

HIS HONOUR: Its relevance is in relation to the continuation

of the injunction in that the allegation made
against Mr Toohey, that is that he threatens
to publish information which would place a member
of the security services of this country in danger
in an overseas country, is an extraordinarily

serious one.

T6

MR BLACK:	Yes, Your Honour.
HIS HONOUR:	That being so, I would think if I am going

to continue the injunction, I would be most reluctant
to do it in circumstances where Mr Toohey was

unnecessarily left to speculate about the basis

on which the Court is acting.

MR BLACK: . Very well, Your Honour.
HIS HONOUR:	Having said that, and speaking only from a

recollection of the contents of the document,

I can see little legitimate objection to the

document being made available to Mr Basten's

instructing solicitor and to his client on the
basis that the name of the particular person
is deleted in that, I would have thought if

the allegation is true, Mr Toohey will have no

difficulty in identifying that name. If the

allegation is false, I would think Mr Toohey

would prefer not to know the identity of the

name in that it could be information obtained

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Toohey

under undertakings which would be subsequently

embarrassing to him.

MR BLACK:	Yes, I understand that, Your Honour.
HIS HONOUR:	Now, I am saying that as much for Mr Basten's consideration as for yours but my recollection
of the document, such as it is, is that I would
have thought that course would enable Mr Toohey
to give whatever instructions are necessary for the preparation of his case.
MR BLACK:	Your Honour, as I have indicated, it is not

an objection in principle at all; it is a question

of when it is done. Your Honour referred to

"what is necessary". I cannot say that it is

necessary that Mr Toohey should be denied, subject

to the appropriate undertakings, any longer and

we would not seek to deny it from him.

On that basis, if Your Honour considered

that it was desirable to make the order today,

we would not oppose it subject to argument as

to its terms.

HIS HONOUR:  I would have thought that there would be no

difficulty in arranging for a judge at the Federal

Court to accept the undertakings on Monday of next week.

MR BLACK:	Yes.
HIS HONOUR:	That would enable them to be carefully framed

so that they do not go wider than what Mr Basten

would desire but they are adequate in terms of

protection.

MR BLACK:	Yes, Your Honour.
HIS HONOUR:	What is your reaction to· that, Mr Basten?

MR BASTEN:  In relation to the first matter,. Your Honour, I would see no difficulty with the deletion of

the name but is Your Honour saying .that you

will not accept undertakings in any form today

from me and my client?

HIS HONOUR: No, I am not saying that.

MR BASTEN:	I am sorry, I may have missed part of - - -
HIS HONOUR:	If you can formulate undertakings that

are appropriate by 2. 15, I will accept them then.

MR BASTEN:	I see, yes.	I have nothing further.
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Toohey

HIS HONOUR:  I was suggesting, though, that it might be

better to take time and make sure that they are
precisely what you want and give them to a judge

of the ·Federal. Court.

MR BASTEN:	I have no doubt what my instructions would be in that regard, Your Honour.
HIS HONOUR:	That you prefer it be done now?
MR BASTEN:	Today, yes.
HIS HONOUR:	Very well.

MR BASTEN:  There are other matters; it is not simply

the delay, Your Honour. It is we were brought

her~- there would have to then be another application

to another court, arid so on.

HIS HONOUR:  Then, the orders involved - I should say to

you, Mr Basten, that subject to anything further

you wish to say, I propose to continue the injunctions

until 4 pm next Wednesday.

MR BASTEN:	Yes.
HIS HONOUR:	That being so, the orders to be made and the

undertakings should not involve any great effort.

I would suggest that counsel take until 2. 15

and we deal with it then. I think you foreshadowed

there was something else you wanted to raise,

Mr Basten, and no doubt, right down the end of

the line there are questions of costs if you

are not agreed on them.

MR BASTEN:  Yes, I think that might be the other matter

I had in mind. I think the only other matter

was the one I did raise in relation to the possibility

of then being varied. Although, given in this Court

in these proceedings, once the proceedings were

remitted they could be varied by a Federal Court

judge but I do not know whether that is simply

a matter of form or whether that should be included

in the form of the undertaking?

HIS HONOUR: It probably should be, yes.

MR BASTEN:	Yes, we can attend to that.
HIS HONOUR:	You can do it, surely, by making the undertaking

until released or varied by order of a' Judge

of the Federal Court.

MR BASTEN:  Yes, Your Honour.

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Toohey
MR BLACK:	Yes, Your Honour.	We will work on the words over

the luncheon adjournment.

HIS HONOUR:  Is there anything else that I have to resolve before you people work out the form of orders?

MR BLACK:  No, I do not believe so, Your Honour. I should

add, it is possibl~, although one would hope

not likely, that there could remain a dispute

between us not as to the form of my learned friend's

assurance but as to the form of the undertaking

to be given by Mr Toohey and Mr West. But we

will discuss it over the luncheon adjournment.

If Your Honour pleases.

HIS HONOUR:  There is nothing about costs to be resolved?

Are they simply reserved?

MR BLACK:	Reserved, Your Honour.
MR BASTEN:	I wonder if we could talk about that over lunch, too, Your Honour? If may be I - - -

HIS HONOUR:  Very well. If it is of assistance to counsel,

I have had a copy - you may both have it - of

the remitter order made in the previous proceedings

involving these parties. If you want it it is

available to you.

MR BASTEN:	I think I may have a copy, Your Honour.
MR BLACK:	I am sure I can get one.

HIS HONOUR:  Very well. I will adjourn until 2. 15.

T7

AT 1. 06 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2 .32 PM:

HIS HONOUR:  Yes, Mr Black.

MR BLACK: If Your Honour pleases. The areas of disagreement

between the parties are now very narrow. There

are two areas that I will come to in a moment.

I have asked Your Honour's associate to hand

to Your Honour a draft order which represents

a degree of agreement between the parties and

I will indicate the areas of disagreement as perhaps I take Your Honour through it.

C3T8/1/SDL 39 10/11/88

Toohey

Your Honour, the first proposed order

would refer to a renewal of the undertaking as

to damages which I am instructed to renew and

T8 do renew. The second undertaking - perhaps it

is easier if I simply read it, Your Honour,

and I believe it is self-explanatory: "Upon

the plaintiff by its counsel undertaking to

make available to Mr Basten, counsel for the

def end ant, a copy of the document marked A", and

with today's date,"contained in a sealed envelope

on the Court file", which it will be, 'after deletion

from that copy the name of the person named in

the sixth line of the text of that document, for

the purpose of enabling Mr Basten to show that

copy to the defendant and to his solicitor,

Mr R. West." Your Honour, that is agreed between

the parties and it reflects discussions that

we have had .. It is regarded as convenient to

the parties, Your Honour.

Secondly, "Upon the defendant and Mr West

undertaking by Mr Basten of counsel not to

disclose, whether directly or indirectly, the

contents of that copy document to any person

except by leave of this Court" - which is a technical

reservation, really, Your Honour - "or of the

Federal Court" - and then the order goes on.

Your Honour, there is disagreement as to those words; not as to the words written

but as. to whether there should be a further

exception that my learned friend will make a

submission about in a moment, Your Honour.

HIS HONOUR:  It would be better to put, "or of a jµdg.e of the

Federal Court", would it not?

MR BLACK: Yes, Your Honour. If Your Honour pleases.

Then, Your Honour, the orders follow the orders of the form of the interim injunction save that the country has been identified in a way that

cannot be identified except by the persons who
are affected.	The problem that was apparent

two evenings ago, Your Honour, of course,

can now be solved.

Then there are sane consequential textual changes :

the second order is changed only as to date;
the third order is taken from the earlier matter,

Your Honour, and follows that form. The sixth

order is in contention and the sixth order that

we propose is simply that the costs of the

application be - or that we intend, Your Honour, to

be costs in the cause generally. I ariticipate that

my learned friend will argue either that he should

have his costs or, alternatively, that the costs

should be the defendants costs in the cause.

C3T9/l/PLC	40	10/11/88
Toohey

Then there are consequential orders and

a certificate, Your Honour. Your Honour, I

can argue on the matter of costs now.	I think
I know what my friend is going to say.

HIS HONOUR:  Very well.

MR BLACK: Our submission simply is this: that the Commonwealth

acted in accordance with a proper perception

of its duty; that duty- involved acting quickly

and acting according to a proper perception of what the national interest required. It acted

in a court, this Court, that undoubtedly had

jurisdiction and it acted on the information

then known to it, properly, as a matter of great

urgency. An ex parte application in those

circumstances was appropriate.

Your Honour, as Your Honour, if I may say

so with respect, will know, it is not just a

matter of reeling off documents and coming to

Court in five minutes; the practicalities of

these matters are that they have to be carefully

prepared and that, inevitably, takes time and

time was very much of the essence and reasonably

perceived to be of the essence on Tuesday. So

this Court, in our submission, was appropriate

in the circumstances; the relief sought was,
in substance, obtained and is, in substance,

obtained now. In those circumstances, we do

not ask for costs; we simply ask for the ordinary

order that costs be costs in the cause. That

is the argument, Your Honour.

HIS HONOUR:  Thank you, Mr Black. Yes, Mr Basten?

MR BASTEN:  Your Honour, may I hand up a copy of the same

orders with, handwritten in red ink, an addition

at the bottom of the first page.

HIS HONOUR:  Yes .. I have read that. I will hear you on

that, Mr Black.

MR BLACH:·~·: Yes,. Your Honour.

HIS HONOUR: But I shoold indicate that I am not ordering you

to give any undertakings. This is a way of resolving

it - - -

MR BASTEN:	I appreciate that, Your Honour.
HIS HONOUR:	- - - which means the most I will do is I will

hear Mr Black and I will then indicate whether or not

I think this should be added, but it will not be an

order.

C3Tl0/l/PLC	41	10/11/88
Toohey

MR BLACK: Yes, I understand, Your Honour. Your Honour, we

submit that that should not be added because the

desirability or otherwise of it really involves an

analysis of the document which, in our submission,
ought to be undertaken and should properly be
undertaken in the Federal Court. Secondly, the

terms proposed by my learned friend do, of themselves,

involve further disclosure of what may be in the

document and, finally, Your Honour, an undertaking

in those terms would not necessarily - indeed, may
well not - protect the further dissemination of the

information until such time as the matter can be

argued fully in the Federal Court.

(Continued on page 43)

C3Tl0/2/PLC	42	10/11/88
Toohey
MR BLACK (continuing):	Your Honour,	the undertakings as framed

ori suggested	by us, in our	submission, really do
amply enable	Mr Toohey and	his counsel and solicitor
to go to the	next stage of	these proceedings without
detriment.

HIS HONOUR:  Could this not be limited by reference to what

relates to that person? I mean, that is what

Mr Toohey's advisers are entitled to put to and find

out from that person because that is a basis of the

allegation that is made to him.

MR BLACK: Indeed, Your Honour. At a later stage in the

proceedings that matter would need to be examined but

at this stage the confirmation or otherwise by that

person of matters in the document could not bear upon

what Mr Toohey knows or does not know to be the fact

and the primary need for Mr Toohey to see the document

is so that he can give instructions to my learned friend

as to what he says about the document. Now, further

inquiries about it do not bear upon that primary issue,

in our submission.

HIS HONOUR:  But why should not he be able to say to X, "Grave

allegations have been made against me as to what I

propose to do on the basis of what you are alleged to

have said" and find out, for example, that X says,

"I said no such thing". If that be the case or,

"I did say that but, on reflection, I shouldn't have said it" or, alternatively, "I did say it because it

was completely true"?

MR BLACK: Well, the problem then, it is apprehended, Your Honour,

is that in those circumstances X, who one presumes or

one may presume, may know of these proceedings and

of the subject-matter of them as, I say, a reader of

the newspapers; X then knows matters which, at the

present stage, it is sought to prevent further

dissemination of. It becomes a.very circular matter

and the problem is that one is as, indeed, the parties

between them have tried. to do - one is balancing two

competing interests whilst not destroying the purpose

of the litigation and we would be apprehensive,

Your Honour, that disclosure beyond Mr Toohey, his

counsel and his solicitor - all, of course, are bound

by either assurance or undertaking - would be

unprotected and we would submit, Your Honour, at this

stage in the proceedings unnecessary because Mr Toohey

would now know the substance of the matter alleged and

he can instruct.

HIS HONOUR:  Would you suggest, Mr Black, that this undertaking

would prevent the individual that we have been referring

to as X from being asked what she said or what he said

or what they said.in a conversation with - - -?

MR BLACK:  Yes, it might, Your Honour, I concede that. But that

does not mean that Mr Toohey is forever debarred from

C3Tll/l/PLC	43	10/11/88
Toohey

finding out what X says. If X were to give evidence

and that evidence might well be given in circumstances

of confidentiality, Mr Toohey would have every

opportunity to find out what X said and to test what

X said and, indeed, to obtain further time to then

consider how to test what X said. But all that would

be done in the context of a full appreciation of the
issues and very probably in the, if I may say so

without anticipating what another court would do - but very probably in the context of various orders for confidentiality of the proceedings themselves

either under the inherent power or under the special

powers that the Federal Court has under its Act or

under the CRIMES ACT.

Tll	So, Your Honour, in our submission, it does not mean in any way that Mr Toohey is ultimately shut out from testing that but it would mean that the occasion for its testing would arise, we would submit, in a
protected situation and the security of the information
would be maintained in the meantime. That is why we would urge Your Honour that the matter be kept within close bounds. And, indeed, there may further be a
matter, Your Honour: that my learned friend, when he
is able to show the document to Mr Toohey, might or
might not need to take the matter further, we just: do not know at this stage. So, that is another reason,
in our submission, for considering any expansion of
the exception at a later stage.

Your Honour, I am reminded too that,as a matter

of ordinary human experience, the closer the circle,

of course, the more secure information is. Now, this

would widen the circle to a person who would not be

under the restraints that the three recipients of the
information would be under. At the moment they can

only disclose to persons similarly restrained. Now,

Your Honour, in our submission, we are not saying

that this is what the ultimate result should be but

the ultimate result, we say, should be worked out in

the Federal Court and preferably, we would submit,

under circumstances of confidentiality. Those are our

submissions, Your Honour.

MR BASTEN:. Might I say one thing, Your Honour? I understand

the difficult position Your Honour is put in by this.

The reason why the suggested words were added was

really as a point of clarification. The Commonwealth's

case is that X knows all that stuff and that that

is the truth of the contents of the document; therefore,

because the Commonwealth concedes that it would

to seek instructions from X would involve no disclosure. position

be a breach for him to speak to that person about this

matter. So, the words may, indeed, be no more than a

clarification of what we would submit is permissible

in any event on the Commonwealth's own case.

C3Tl2/l/PLC	44	10/11/88.
Toohey

HIS HONOUR:  Mr Basten, my current inclination is not to express

a view about whether the undertaking you are proffering

should desirably be in a narrower form by reason of a

qualification. I would say this though that if the

undertaking is given in that form, the fact that I have

not expressed a view should in no way deter a judge of	the Federal Court, when he is seized of the way the
case is going to be run, from deciding whether or not to qualify the undertaking.

MR BASTEN:	Yes.
HIS HONOUR:	The other matter, of course, is that if those

instructing you are denied access to an essential chain

in the hearsay chain that underlies this document, it

would be an added consideration as to whether the

judge dealing with the continuation of the application

document. to continue the interim injunctions should act on the

MR BASTEN:  Yes, and perhaps it might also be an added

consideration, in relation to any costs, if a further

application were required because of the undertaking

sought today.

HIS HONOUR:	Very well.	Now, there remains the question of costs.
MR BASTEN:	Yes.	In relation to that

HIS HONOUR:  Have you made your ambit claim or whatever it is

in this document or - - -?

MR BASTEN:  Not in that document, Your Honour, I relied on

Mr Black to do that and he correctly indicated the

ambit claim is that the defendant '.s costs of today

should be paid by the plaintiff or, alternatively,
that the costs in relation to this motion be the

defendant's costs in the proceedings.

Tl3 The basis on which we put that submission in

the alternative~ the submissions, Your Honour,

is that my friend has indicated the Commonwealth

properly came here as a matter of urgency. The

matter was, in one sense, urgent but the Commonwealth

was able to obtain two affidavits from a minister

of the Crown, one other affidavit and make five, I

think, telephone calls to newsagents in Sydney without,
at any stage, seeking to contact the defendant to find
out whether he was willing to give any information

as to the correctness or otherwise of the alleged

threats and give any undertaking without proceedings

being instituted ex parte and him being required to

attend in Canberra by counsel. In colloquial terms,

there was no, as it were, letter before litigation.

In other cases, indeed, in the last case before this

Court, the Commonwealth contacted David Syme immediately

they knew it had or believed it had material and sought

undertakings which were given and, indeed, David Syme

was not joined to proceedings because it had given

C3Tl3/l/PLC	45	10/11/88
Toohey

undertakings. No such courtesy was extended to my

client and, in my submission, he should not have to

pay the costs·of the Commonwealth obtaining this

interim injunction.

Might I also say that the basis on which it was

obtained only became known to his legal representative,

myself, today and is still not known to him and if

that material had been made known to him in some

form it may well have been that an undertaking would

have been given immediately, certainly before today.

Those are my submissions, Your Honour.

MR BLACK:  Your Honour, one of the orders sought and obtained

was an order for the preservation of documents

based upon evidence that there was - in our submission,

proper evidence - a proper apprehension that that

order was necessary. Such orders are inevitably

sought ex parte as this one was.

That, in our submission, is the first answer.	As to
commonplace, a feature of the law and all we can say	the second answer: ex parte injunctions are, if not
is that this one was properly made in the circumstances,
adverting particularly to the circumstances favouring
a balance of convenience in favour of the injunction that Your Honour has already referred to. I really
cannot say any more .than that, Your Honour.

HIS HONOUR:  I gather, Mr Basten that you are prepared to give the undertaking in the unqualified form?

MR BASTEN: Yes, Your Honour, I have instructions to do that.

HIS HONOUR:  Very well.

(Continued on page 47)

C3Tl3/2/PLC 46 MR BASTEN 10/ll/8g

Toohey 
HIS HONOUR:  In view of the fact that the matter is being

Court, I do not consider it to be desirable that	remitted to be heard by a judge of the Federal
I embark upon a detailed consideration of questions
such as whether the document, a photocopy of
which was placed before me last Tuesday night on the hearing of what was understood to be an
extremely urgent application for ex parte relief, should be received in evidence on the hearing
of a contested application for continuation of the injunctions which I then granted and whether the material before the Court, even if regard
be paid to that document, is properly to be seen
as capable of sustaining an inference of breach
of a duty of confidentiality owed by some unidentified
person to the Commonwealth.

As I made clear in the course of the proceedings

last Tuesday night, I was greatly influenced in

granting injunctive relief by considerations	going to the balance of convenience. In particular,
the Honourable the Minister for Foreign Affairs and
Trade has sworn that disclosure of information which the Commonwealth alleges the defendant threatens
to publish could endanger the safety of a person in the security services of this nation in another

Tl4 country. In the context of that evidence, I

propose to continue the interim injunctions for a

period sufficient to enable a judge of the Federal	Court to become properly seized of the matter, namely,
until 4 pm on Wednesday, 16 November.
In relation to the question of costs, it would now seem that the urgency which led the Commonwealth
to apply for ex parte relief in this Court was not as great as was previously thought. In all the circumstances, I do not consider that the defendant should, in any event, be required to pay the costs
of the proceedings in this Court. That being so,
the appropriate order is that the costs of the
application in this Court be the defendant's costs
in the cause.
by its counsel renewing the undertaking as to damages I will now make formal orders. Upon the plaintiff
given on 8 November 1988 and upon the plaintiff by its
counsel undertaking. to make available to Mr Basten,
counsel for the defendant, a copy of a document
marked "A, 10 November 1988" containing a sealed
envelope to be placed - Mr Black, "or on"?

MR BLACK: "In", I think, Your Honour.

HIS HONOUR:	Is it on the Court file yet?
MR BLACK:	I am sorry, as a matter of fact it is not yet on or

in the Court's file.

C3Tl5/l/PLC	47	10/11/88
Toohey

HIS HONOUR: Well, I will change that, if this is acceptable to

you. A copy of the document marked "A, 10/11/88" whicH

will be contained in a sealed envelope to be placed on

the file of the Federal Court.

MR BLACK: Yes, if Your Honour pleases.

HIS HONOUR:  I will add my indecipherable handwriting on this

document - which will be placed in a sealed envelope

on the file of the Federal Court.	Should it read
"subject to deletion"?

MR BLACK:  Yes, Your Honour, the intention being that the complete

document will be in the sealed envelope and then

"subject to deletion".

HIS HONOUR: Right - subject to deletion from that copy of	the name of the person named in the sixth line in the
text of the document, for the purpose of enabling
Mr Basten to show that copy to the defendant and to
his solicitor, Mr R. West. And upon the defendant
and Mr West undertaking by Mr Basten of counsel not
to disclose, whether directly or indirectly, the contents of that copy document to any person except by leave of this Court or of a judge of the Federal

Tl6 Court.

I order that:

(1) The defendant, whether by his servants and

agents or howsoever otherwise, be restrained

until 4 pm on Wednesday, 16 November 1988

from publishing or conmru.nicating to any

person any information purportedly:

(a) identifying the country referred to

in the document as a country in which

the Australian Secret Intelligence Service is or has been operating;
(b)	identifying as a current or former

officer, agent or contact of that

service any person serving or who

has served in that service in that

country;

(cl identifying any intelligence operation

of that service as involving or

having involved any such person or

that country;

being information not previously published

to the public and which came into the

defendant's possession or control without

the plaintiff's authority.

C3Tl7/l/PLC	48	10/11/88
Toohey

(2)	The defendant, whether by his servants and agents or howsoever otherwise, be restrained ~p until 4 pm on Wednesday, 16 November 1988 from destroying,
disposing of or otherwise parting with possession of any documents, or copies
thereof or extracts therefrom (whether in printed, written, electronic,
magnetic or photographic form) containing or purporting to contain information of the kind referred to in order (1) hereof.

(3) That the further proceedings in this

action be remitted to the Federal Court

of Australia at Sydney.

(4) That the action proceed in that court as

if the steps taken in the action in this

Court had been taken in that court and
as if Sydney had been stated in the writ

to be the place of trial.

(5) That the Registrar of this Court forward

to the proper officer of that court

photocopies of all documents filed in

this Court.

(6) That the costs of the application in this

Court be the defendant's costs in the cause.

And it is further ordered that the costs of the action

to the date of remission including the costs of this order are to be according to the scale applicable to

proceedings in this Court and thereafter according to

the scale applicable to that court and in the discretion

of that court. And it is certified that this was a

matter proper for the attendance of senior counsel in

chambers.

(Continued on page 50)

C3Tl7/2/PLC	49	10/11/88
Toohey

HIS HONOUR (continuing): Is there anything else?

MR BLACK:  No, Your Honour.

HIS HONOUR:  Very well. Mr Basten, I wrote on your copy of

the orders so I will keep it if you do not mind.

MR BASTEN:	Yes, that is fine.
HIS HONOUR:	I have altered the orders to reflect the alterations

that were made in the course of ~y making them and
they will be made available to the Court Reporting

Branch. I will now adjourn.

AT 3.03 PM THE MATTER WAS ADJOURNED SINE DIE

C3Tl7/3/PLC	10/11/88'
Toohey	50