Commonwealth of Australia v Toohey

[1988] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl9 of 1988

B e t w e e n -

THE COMMONWEALTH OF 'AUSTRALIA

Applicant/Plaintiff

and

--:

BRIAN TOOHEY

Respondent/Defendant

Application for injunction

DEANE J

(In Chambers)

Toohey

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 NOVEMBER 1988, AT 8.05 ·pM

Copyright in the High Court of Australia

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MR M.E.J. BLACK, QC:  May it please Your Honour, I appear with

my learned friend, MR C. MAXWELL, for the

Colillllonwealth of Australia in an ex parte application.

(instructed by

HIS HONOUR:	Yes.
MR BLACK:	Your Honour, the application is for an interim injunction and for other relief but the basic application for an interim injunction is to restrain
the publication of material which, it is submitted,
is injurious to the national interest and potentially
very injurious to individuals.  The matter is urgent
because it is apprehended that the publication may
occur at any time and we do not know precisely when
but it could be tomorrow.  We just do not know. But
one apprehends that it would be very soon.
Your Honour, I will be seeking in due course to put some material before the Court in confidence and
subject to various orders, but I will go obviously
as far as I possibly can before making that applicatton
to Your Honour. Might I take Your Honour then first to the - - -
HIS HONOUR:	Mr Black, in view of the manner in which this

application comes on, you should proceed on the

footing that the transcript will be available to the

public unless there is a specific order to the contrary.

MR BLACK:  May it please Your Honour.

If I might take Your Honour perhaps conveniently

first to the writ issued a few moments ago and to the

endorsement of the claim on that writ. There is an

allegation about the jurisdiction of the Court. It

is then claimed that the defendant edits and publishes

a publication called The Eye and in paragraph 3 it is

asserted:

The defendant proposes to publich, and unless

restrained will publish, an article purportedly

outlining intelligence operations of the

Australian Secret Intelligence Service ("ASIS")

in another country and also purportedly

disclosing the· identity of an ASIS officer

involved in those operations.

T2

It is asserted in paragraph 4 that the -

Information of the kind referred to in paragraph 3 hereof is of its nature

confidential to the plaintiff -

and that -

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Toohey

The imparting of information of that kind

necessarily involves or results from a breach

of an obligation of confidentiality owed to

the plaintiff.

It is then alleged:

The defendant has no authority to publish

or communicate information of that kind,

and publication of such information would

constitute a breach of an obligation of

confidentiality to the plaintiff and would

be inimical to the public interest.

The endorsement of the claim concludes with various claims for relief to which I will take Your Honour

in due course.

Might I immediately then take Your Honour to the supporting affidavit of the Minister for Foreign

Affairs and Trade, Senator Gareth John Evans. It is

an affidavit sworn today and if I might take Your Honour

to that. Senator Evans deposes, in paragraph 1 -

Your Honour has the affidavit?

HIS HONOUR: Yes, Mr Black.

MR BLACK:

I am the Minister of State for Foreign Affairs

and Trade of the Commonwealth of Australia and,

as such, am the Minister responsible for the:

Australian Secret Intelligence Service ("ASIS").

I am, and have been since March 1983, a member

of the Cabinet and of its Security Committee.

2.      The main function of ASIS is to obtain, by

such means and subject to such conditions as

are prescribed by the Australian Government,
foreign intelligence for the purpose of the

protection or promotion of Australia or its

interests. This function can be effectively

performed only if the activities of ASIS,

and of its officers, are kept secret .

3. Information as to activities of ASIS and

identities of its officers, agents and

contacts, apart from the identity of the disclosed to authorized persons.

4.       On the basis of the document which is now

produced and shown to me which I have signed -

HIS HONOUR:  What does that mean, Mr Black, paragraph 3?

MR BLACK: What it means, Your Honour, is that - - -

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Toohey

HIS HONOUR:  Is authorized by whom?

MR BLACK: Authorized, Your Honour, by the people who have

ultimate authority over those officers who, of

course, are members of the public service and

employees of the Connnonwealth. That is what it is

intended to mean, Your Honour. In a sense, Your Honour,

it says perhaps in a slightly round about way perhaps

no more than would be said of any public servant, only

it arises here, of course, in an acute form.

4.       On the basis of the document which is now

produced and shown to me which I have signed, I

verily believe that the defendant proposes to

publish in the next edition of "The Eye" an

article purportedly outlining ASIS activities

in another country and also purportedly

disclosing the identity of an ASIS officer

(other than the Director-General) involved in
those activities.

5.      "The Eye" is published as a monthly j ournaf:

As far as I am aware the last edition was

published in early October 1988 and no edition

for November has yet been published.

6. Disclosure of information of the kind

referred to in paragraph 4, if true, would in

particulan ·have the following effects. First,

the further utility to ASIS of an officer or

agent whose identity has been disclosed would
be adversely affected and he, his family and

his Property, could be en~angered.

(Continued on page 5)

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Toohey

MR BLACK (continuing):

Secondly, such disclosure would assist

a hostile intelligence service to identify

the contacts or successors of ASIS officers.

Thirdly, other contacts, agents and

officers would become fearful of like

disclosure and, accordingly, would be

likely to seek to dissolve their relationships

with ASIS. Fourthly, persons who are

potential contacts, agents or officers

would be discouraged from making their

services available to ASIS by reason of

their perception that their identities

may be disclosed.

Further, disclosure of information of the

kind referred to in paragraph 4, if true,

could cause the abovementioned country to

adopt counter measures. Furthermore, the

possibility that such measures were being

adopted would itself inhibit ASIS operations.

In addition, disclosure of information of the
kind referred to in paragraph 4, whether or
not true, could prejudice Australia's

relations with the abovementioned country,

in particular by damaging its trust in

Australia and causing it to reduce its

co-operation with Australia.

Publication of an article of the kind

referred to in paragraph 4 would prejudice

ASIS's ability to perform its abovementioned

function and would thus prejudice Australia's

national security. Such publication would

also prejudice Australia's foreign relations

interests, particularly as they relate to the

abovementioned country. Accordingly, in my

view, such publication would be inimical to

Australia's public interest.

Your Honour, that lays, as it were, bare, in

our submission, plain terms the general basis of

concern. Your Honour, there are more specific matters,

the nature of which Your Honour might infer and in

relation to those more specific matters, Your Honour,

I would seek an order from Your Honour that the matter

be heard in camera. Might I put to Your Honour the

general basis and the cases upon which that application

is made? I feel no difficulty in doing that without

Your Honour making such an order. Your Honour, there

are two bases: the first is a statutory basis in section 85B' of·: the CRIMES ACT. Might I hand to

Your Honour what is known as a paste-up copy of the

Act but I believe it to be correct and up to date.

That section, Your Honour, 8SB(l) provides that:

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-,.Toohey

At any time before or during the hearing

before a federal court -

et cetera -

the judge or magistrate ..... may, if satisfied
that such a course is expedient in the

interest of the defence of the Commonwealth

(a) order that some or all the members of

the public shall be excluded ..... order that

(b) order that no report -

shall be made or may -

(c) make such order and give such directions
as he thinks necessary for ensuring that no

person, without the approval of the court,

has access, either before, during or after

the hearing of the application ..... to any affidavit,

exhibit, information or other document -

et cetera. And there is a penalty provision.

C3T3	Your Honour, as to that, we would submit that in matters of security, it follows that the interests
of the defence of the Commonwealth are involved
particularly, Your Honour, although not exclusively,
of course, where security in intelligence matters outside Australia are concerned. That is the first
basis upon which it is put, Your Honour.

HIS HONOUR:	Yes.
MR BLACK:	And the second basis, Your Honour, invokes the inherent
jurisdiction of the Court essentially to mould its
proceedings so th~t they will not be, in a sense,
rendered futile so that proceedings may be brought where they might not be brought if there were no possibility
of hearing certain matters in camera. An obvious
example, Your Honour, of course, is trade secrets and
Your Honour, with respect, from the authorities, that other examples should come to mind. It would appear, the touchstone is not national security or any other
matter as such but rather the need for the Court to be open to litigants with all sorts of causes and the
need that those causes can be ventilated without, as
it were, destroying the very subject-matter of the
action. Your Honour, the case perhaps most - - -
HIS HONOUR:	Mr Bla:ck, you need not trouble yourself about persuading me I have power to order that the Court
be closed.

MR BLACK: If Your Honour pleases. Well, Your Honour, it is

then a question of the exercise of the power in this

case. Your Honour, in persuading Your Honour whether

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or not Your Honour should exercise the power - of
course it is difficult to proceed without going

further into the matters that we respectfully submit

should not be disclosed.

HIS HONOUR:  Is it because you want to say something or because

you want to put some evidence before me?

MR BLACK:	I want to put some evidence before Your Honour and, in particular, I want to place before Your Honour the document upon which the belief has been deposed to and also, Your Honour, I wish to tender a further
affidavit.
HIS HONOUR:	You can proceed on the basis that I am not prepared to close the Court at this stage but I am prepared to
look at the material and then give you the option of
whether you want to tender it or not.
MR BLACK:	May it please Your Honour. Might I hand to Your Honour
two documents which are self-explanatory.
HIS HONOUR:	I note that I have had placed before me a supplementary

affidavit. There is no problem in identifying the

deponent, is there, Mr Black?

MR BLACK: No, Your Honour.

T4 HIS HONOUR: A supplementary affidavit of Senator Gareth John Evans

and the document referred to in paragraph 4 of the

principal affidavit of Senator Evans. I propose to

act on the basis of that affidavit and that document

for the purposes only of the present application for

ex parte relief. I initial the documents.

Mr Black, when we conclude these proceedings

which,I regret to tell you, need to be concluded by

10 pm, what do you want me to do with these documents?

To return them to you on an undertaking by your

solicitor that he will retain them in his personal

possession or to place them with the Court file?

MR BLACK:	Your Honour, either course, but it may be preferable
if they are returned to my instructing solicitor on
his undertaking as to which I would now seek instructions.
HIS HONOUR:	I think the fewer people outside you and your solicitor,

and "you", I naturally include Mr Maxwell, who see the

documents the better in case their contents subsequently

do become public - - -

MR BLACK:  Yes. Your Honour, it may, in fact, if I may say so with great

respect, be easier for the Court if they come back

into our custody upon the appropriate undertaking being

given.

HIS HONOUR:  Very well. So we do not .overlook it, what is

the name of the particular solicitor?

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MR BLACK:  It will be Mr T. Sherman, Your Honour.

HIS HONOUR:  Very well. Mr Sherman, you are prepared to undertake

to the Court to keep the two documents in your personal
possession and to produce them to the Court when

requested so to do.

MR SHERMAN: Yes, Your Honour.

MR BLACK:	Your Honour, I should indicate that I inadvertently - and for this I apologize - handed Your Honour true
photocopies of the documents. It was only by touching
them that I realized that the - - -

HIS HONOUR:  Very well. I note the documents handed to me are

photocopies.

MR BLACK:  May it please Your Honour. Your Honour, in the

circumstances now before Your Honour it is submitted

that the Connnonwealth has made out certainly a

case to be tried in relation to the misuse of its

confidential information.

Your Honour, a matter of somewhat similar nature

was dealt with by Mr Justice Mason, as he then was,

in COMMONWEALTH OF AUSTRALIA V JOHN FAIRFAX & SONS

LTD, (1980) 146 CLR 39.

HIS HONOUR:  Mr Black, I do not think you need trouble about

taking me to the case, I am fairly au fait with it.

What I would like you to address yourself to is

paragraph 5 of the endorsement on the writ which is

not a self-evident proposition to me.

MR BLACK: Yes, Your Honour.

HIS HONOUR:  That is that all the Connnonwealth needs to establish

is that somebody knows something about the identity or

activities of an ASIS officer and that n~cessarily

involves a breach of confidentiality.

MR BLACK:	Your Honour, all one can say is that it very probably
does as matters stand at the moment because it is
conceivable that somehow or another, although it may be difficult to conceive, a person watching somebody
who was an ASIS officer and knowing other facts obtained
properly might draw inferences about what that person
was and what he or_she did.

TS HIS HONOUR: Not really. I mean, a person speaking to somebody

whom an ASIS officer has sought to involve in activities

could very well find out all about it without any

breach of confidentiality.

MR BLACK: Well, Your Honour, might I take this situation:

let us assume there are five people who are in a

particular section of government who - and just to keep
the numbers low, they are all, as a matter of the

duties of their employment, required to keep complete

,,.C3T6/l/PLC 8 8/11/88

Toohey

confidence about what they do and so forth. Now,

Your Honour, in our submission, if anything is learnt

about what those people do or who they are, assuming

that their employment obligations preclude them from

saying what they do and who they are and assuming

also they write documents and things, Your Honour,

if somebody then says they know who they are and what

they do, the inference from those small numbers is

that somehow or another confidence has been broken;

a document has disappeared or been copied or,

indeed, I suppose, one goes further to say

one of the officers themselves has broken confidence

although, no doubt, would be a most - - -

HIS HONOUR: Yes. I am just wondering about whether it is even

a legal inference. I mean, get away from this case:

assume Xis or was an English spy in Nazi Germany and his activities become known to a journalist, I would have thought the likelihood was that X had been,

as it were, exposed by people in Nazi Germany with

whom he had dealings rather than that X or somebody

else within the English Secret Service had leaked

information.

MR BLACK:  Your Honour, in those circumstances - -

HIS HONOUR: All I am trying to put to you is that it is not

apparent to me that your paragraph 5 of the endorsement

on the claim which really goes to the heart of your argument amounts to more than the government saying if anybody finds out anything about ASIS the Court

should act on the basis that it is a breach of

confidentiality and grant an injunction. That is not

apparent to me.

MR BLACK:	Your Honour, might I take the example, far from this
case, that Your Honour gave. In those circumstances,
as a matter of law, the person who found out about the English person may well, in law, have been - according
to English law anyway - guilty of an improper use
of confidential information subject to any public
interest defence available under another legal system.
But, Your Honour, the confidentiality in those
circumstances would very probably attach to the other person who ultimately, on Your Honour's example, did
the disclosing. Now, Your Honour, if one has, as it
were, a closed system of persons who are - they could
be working in a factory on a secret process, and
it is probably easier to talk about those persons - - -
HIS HONOUR:	Translated to that, you have X Proprietary Ltd and Y Proprietary Ltd. Y Proprietary Ltd finds out that
one of its employees - no, that somebody active in
its plant is gathering information for X Propretary Ltd,
your proposition~ that that information must have come
from a breach of confidence from X Proprietary Ltd and
not from the observation and information obtained from the activities of the person concerned.

C3T6/2/PLC 9 8/11/88

., .. Toohey

MR BLACK:	Your Honour, it would depend on how the victim company set up its operations, but if it set up its operations
with everyone - with signs up and locks on the doors
and so forth and everyone sworn to secrecy, working
in that way, then the inference, if somebody else got
the information, would be, in our submission, that
it had been improperly acquired either because somebody
in the victim company had said something wittingly
or unwittingly that they should not have said and
broken their obligation of confidence or somebody had
come in and photocopied a document.

T6 HIS HONOUR: It may well be. The only point I am making to you

is it is not apparent to me that it is more than a

matter of speculation.

MR BLACK:	Your Honour, the other aspect of the right to restrain the use of such information is either that it has been
improperly obtained in some way, surreptitiously
obtained or imparted in confidence.  So that there
are various improper ways in which confidential
information can be obtained all of which, in our -:,
submission, give rise to the right in the "owner" of the information to have it protected. So that even-reverting to the case of the person walking around the works of Y Proprietary Ltd, keeping a good
lookout, even that, in certain circumstances, in our
submission, would give the victim company a right to
restrain the use of the information by the observer
who was observing what he should not have been
observing in all the circumstances.
HIS HONOUR:	Does that mean that the proposition is that the

Cormnonwealth needs show no more than that the press

has obtained information about the activities of ASIS

to entitle it to an injunction restraining that being

published?

MR BLACK:  Your Honour, two things: it would depend upon the

type of information and its specificity and this

information, if true and,if as apprehended, is

very specific information and is information related

to particular things. Now, Your Honour, the inference

to be drawn from that is that the information is not

something that somebody has just guessed at or worked

out or concluded something about on overtly observable

and properly observable matters but the inference from

that, having regard to the specificity of the matters,

is that the information has somehow or another then

surreptitiously or improperly obtained or obtained in

breach of somebody's direct obligation of confidence.

Your Honour, if the apprehended harm came from

broad stories about ASIS or any other organization,

that may be a different matter.

HIS HONOUR:  I follow the way you put it.

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Toohey

MR BLACK:	Your Honour, in the FAIRFAX case Mr Justice Mason as he then was, in admittedly somewhat different
circumstances, used the sort of reasoning that we
seek to use here. His Honour said, at page 50 of
the report in 147 CLR, at the bottom of its page:

The plaintiff had within its possession

confidential information comprised in the

documents published in the book. The probability

is that a public servant having access to the

documents, in breach of his duty and contrary

to the security classificiations, made copies of

the documents available to Messrs Walsh and

Munster or to an intermediary who handed them

to Messrs Walsh and Munster. In drawing this

inference I am mindful that no claim is made

that copies of the documents came into the

possession of Messrs Walsh and Munster with

the authority of the plaintiff.

Now, Your Honour, that is a document case, of course, which makes it easier. I am bound to say

that. But the inference was drawn there that -~

somehow or another these documents have got out and-

the reasonable inference was that they had got out

improperly.

Now, Your Honour, all I can say - and I am really

in danger of repeating myself - is that if one has

a security organization whose job it is,in the

national interest, to act with circumspection and

complete secrecy - and those are the matters that I

would underline, Your Honour.- if one has such an

organization then when specific matters alleged about
that organization are sought to be published, then

it is a reasonable inference that that information

T7 has been acquired in breach of confidence. And

there is a further matter we would put, Your Honour:

where the material is, if true, highly confidential

there would, in our submission, be a strong presumption,

indeed, that it has been obtained in breach of

confidence because it is the sort of information

which, as a matter of ordinary conduct of a person's

affairs, would simply not be imparted. It is the

duty of those involved in such work to keep it very

much to themselves, in the national interest and

because of their various duties.

So, Your Honour, it is not just the specificity

of the information, it is the extreme sensitivity of

it. I really cannot take it any further than that.
I am reminded, Your Honour, of course, by my learned

junior that we do not seek, and do not need, in our submission, to prove matters to a very high degree.

It is sufficient if there is a serious issue to be tried and the relief here, of course, is interim relief subject, no doubt, to an undertaking as to

damages .

. C3T8/l/PLC 11 8/11/88

HIS HONOUR:	Yes.
MR BLACK:	Your Honour, I really would only be playing variance on the basic theme if I addressed Your Honour more on that.

HIS HONOUR:_ Yes, I follow.

MR BLACK:	But it is specificity, sensitivity and the particular
nature of the organization in respect of whom these matters are said.

HIS HONOUR: Well now, where do we go from there?

MR BLACK:	Your Honour, where we go from there, in our submission,
is for me to satisfy Your Honour that in those
circumstances an interim injunction ought to be
granted. Your Honour, if these matters are true
and if they are published the evidence, in our submission, is - - -
HIS HONOUR:	You need not trouble about the balance of

convenience on an ex parte application.-

MR BLACK:	May it please Your Honour.
HIS HONOUR:	- - - for a strictly limited interim injunction.

MR BLACK: Yes, Your Honour. In one of the documents that

Your Honour was handed Your Honour will have noted

a time, the time of receipt, in the top right-hand

corner.

HIS HONOUR:	Yes.
MR BLACK:	So that it cannot be said, Your Honour, that this
matter is not urgent and has not been brought with
proper speed.

HIS HONOUR: There are a number of matters, of course: one is

why is this matter before me and not before a judge

of the Federal Court?

MR BLACK:	Your Honour, in our submission, there is considerable
doubt as to the initial, if I might so call it,
jurisdiction of the.Federal Court. It is not as though an injunction is sought against an officer of the
Commonwealth; it is the Commonwealth seeking an injunction at common law. Your Honour, if what was
sought here were to protect certain types of statutory
property, the Federal Court would have jurisdiction
but, Your Honour, it does not seem to us the Federal
Court would initially be seized of jurisdiction in
this matter.
HIS HONOUR:	In that case why is it not before the ACT Supreme

Court or the Supreme Court of New South Wales?

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~_.Toohey

MR BLACK:	Your Honour, what we would say to that is that this
publication is Australia - I am sorry, that is overstating
it.  It is certainly published in several States. I
was about to say "Australia-wide", I am not sure about
that but it is published at least in New South Wales
and Victoria and the ACT.  The matter, Your Honour,
is obviously urgent. The matter had to be prepared in
Canberra and was, indeed, prepared, ,in Canberra and, Your Honour, it really could not have been prepared
anywhere else having regard to what the deponent is
doing at the moment.  I say that, of course, with no
disrespect to the Court but it was simply a matter of
coming before a court on a matter of, we would submit,
great national importance, in the shortest possible
Its jurisdiction is Australia-wide and it was the time. In our submission, this Court has jurisdiction.
appropriate Court to come in the circumstances.
With greater time and perhaps a publication confined
to one State, a different view might be taken.

HIS HONOUR: I do not really see that the publication in more

than one State has much to do with it when the

single defendant is an individual who is obviously

in one State if he is not in the ACT. I think this

has been made clear in at least one recent case.

Ihe Judges of this Court do not regard this Court	as
an appropriate place for proceedings such as this	if
another court is available. You know there are a	variety
of reasons for that.

MR BLACK: Indeed, Your Honour.

HIS HONOUR:  Including the natural structure of the appellate

process and the burden upon the Court with only seven

members. Now, having said that you could pass from

that matter.

MR BLACK: If Your Honour pleases.

HIS HONOUR:	But I do hope that those instructing you will take note of those connnents because I do not think that
on future occasions the approach will be quite as
amenable as that that I am now displaying.

MR BLACK: If Your Honour pleases. Might I just say, Your Honour,

in this matter, I can assure the Court it really was

prepared in circumstances of very great urgency and

in Canberra.

HIS HONOUR:	I notice the date on the documents that you - - -
MR BLACK:	If Your Honour pleases. As to the orders sought, the
first order, Your Honour, sought is an injuctive order.
Your Honour, it is wide.  Does Your Honour have the proposed
short minutes of order? If not, might I apologize and
hand them to Your Honour.
HIS HONOUR:	I do not seem to have them, Mr Black.

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·Toohey

MR BLACK: Might I hand a copy to Your Honour's associate?

HIS HONOUR:	Thank you.
MR BLACK:	I should add, Your Honour, these short minutes follow
fairly closely an order made by the honourable
Chief Justice on 1 September this year in a matter
of the COMMONWEALTH V TOOHEY concerning some papers
attributed to Mr i:iayden. Your Honour, the first
order sought is in wide terms. It is submitted
that it is properly in wide terms because the
Commonwealth is obviously unaware of the precise -
or, indeed, has any awareness of the breadth of the proposed publication of the countries to which it might refer and, Your Honour, there is a need not to be too specific to, indeed, avoid disclosing matters
that it is the object of these. proceedings to avoid disclosure of.

(Continued on page 15)

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Toohey

MR BLACK (continuing): Further, Your Honour, if the matter is

wide, we would say it is intended to last but a short

time and it is really no wider than is appropriate in
the circumstances of the case. It can, of course,

immediately be - or shortly be narrowed, and indeed,

Your Honour, if any of those matters are matters that

Mr Toohey has in mind publishing, then prima facie we

would say precisely the same things about them as we

say about the very specific matters which have been

placed before Your Honour. So it is submitted it is

not too wide, although it is submitted that it is wide.

It would be difficult to see how it could be

narrowed, though, without frustrating the purpose of
the application. It covers the matter of complaint

and to narrow it further -

HIS HONOUR:  It would, for example, restrain Mr Toohey from

publishing in The Eye extracts from the judgments of

this Court in - what was it, AV HAYDEN?

MR BLACK:  I say "yes" to the identification, not to Your Honour's

question.

HIS HONOUR: Well, it would, would it not? It would restrain

The Eye publishing a story that the High Court of

Australia roundly condemned actions of officers of

ASIS in relation to - what was it, the Hilton Hotel in

Melbourne, or whatever it was.

MR BLACK:	The Sheraton.
HIS HONOUR:	The Sheraton, was it, on whatever day it was.
MR BLACK:	No, Your Honour, because that would not involve the

identification of the officer.

HIS HONOUR:	Why would not that identify a former place of operation of ASIS?
MR BLACK: Yes, Your Honour, it would.
HIS HONOUR:	And why would it not describe intelligence

operations of ASIS?in that place?

MR BLACK:	Because it would be information that came into the defendant's possession or control - I was about to say
without the plaintiff's authority, but of course -
Your Honour, certainly in spirit it would come into the
possession of the plaintiff with the plaintiff's
authority. You could read it in the Commonwealth
Law Reports and the matter was debated in public.
HIS HONOUR:	What if they read it in the Sydney Morning Herald?

C3Tl0/l/RB	15	8/11/88
Toohey
MR BLACK:	Your Honour, I see the point.	But that is -

HIS HONOUR:  Mr Black, to save you trying to deal with

unidentified problems, my current thinking is I am

prepared to grant - my inclination is to grant a much

more limited interim injunction than the one indicated

in paragraph 1 up until Thursday, with liberty to

Mr Toohey to apply before Thursday to have it dissolved.

It would be a matter for you and those assisting you to suggest a form of injunction which does not disclose

than through breach of confidential information.

the material, in particular the identity that you are
concerned with, but which does not effectively inhibit

discussion of public information about the activities of

MR BLACK:	Yes, Your Honour.
HIS HONOUR:	I mean we are dealing with restraining publication

by the press of the country, whether or not you like

the particular publication.

MR BLACK: Indeed, Your Honour, but also, with respect, it is

a balancing exercise and both matters, in our submission,

TlO	are weighty matters to be balanced; each, we would
respectfully submit.

HIS HONOUR:  That is the reason why I am prepared to grant you a limited interim injunction until Thursday.

MR BLACK:  Yes. One possibility that occurs to me on my feet

is that the matters could be limited by reference to

what might be termed"other countries" so that that

would not inhibit the discussion of the matter that

Your Honour raised or, indeed, of general matters, but

would cover the sort of - particular matter that is of

concern here without disclosing anything that in the

public interest we say should not be disclosed.

It may be that Your Honour would grant us a

short time to have a think about that.	If Your Honour
would give us that indulgence.

HIS HONOUR:  Let us deal with the matters in principle and I

will then adjourn until you have had that opportunity.

MR BLACK: If Your Honour pleases. The second order is simply

sought to retain the evidence which ought to be retained

if the matter proceeds. Its origin is in the ANTON

PILLER case, (1976) 1 Ch 55, where the concern was,

in the words of Lord Denning, that vital evidence be

destroyed, and the words of Lord Justice Shaw, that

the proceedings be rendered nugatory. Your Honour,

there is other affidavit material which I can take

Your Honour to very briefly that shows that Mr Toohey
does destroy material when it is of no use to him and -

I should say no further use to him - and that is the

C3Tll/l/RB	16	8/11/88
Toohey

affidavit of Barry Haynes Leader which is directed to

this very point. Mr Leader is a legal practitioner in

the Attorney-General's Department and in substance

what his affidavit does is to exhibit affidavits sworn

by Mr Toohey in other matters in this Court in which,

in substance, Mr Toohey deposes to the fact, amongst

others, that he has destroyed various papers.	I might
take Your Honour to those affidavits.	The exhibit BHLl

relates to a matter in 1983 and on page 2, paragraph 4,

he refers to various documents and on page 3 he recites that he got rid of them; in paragraph (b) on page 3, as

to some documents marked"'Secret' and above", they

were burnt in his fireplace at home.

l. ~

I took care to ensure that they were

totally burned. I also burnt another

document marked "Confidential" ..... This

was a copy of the Hope Report on Protective

Security ..... were of no particular journalistic

interest.

Then other documents were disposed of. In exhibit BHL2,

sworn in proceedings earlier this year, in September

of this year, Mr Toohey deposes to the fact that he

destroyed a number of documents. At page 2 of the

Tll affidavit, paragraph 6.(l)(a) he says:

The vast majority of such documents were

not the subject of any apparent

classification and I determined at a glance

that they contained no information of interest to the public. Those documents were destroyed

by me in or about mid-August 1988.

(b) The remainder of the said documents

were read by me and a further selection

made of those which contained information

of interest to the public. The remainder

were destroyed.

(c) The documents which had been retained

were used by me to prepare written material

for publication 1 -

and then I skip a few lines -

Having prepared the said material, I then destroyed those remaining documents on or before the evening of Tuesday 30 August 1988.

He refers to other documents that he showed to other

people.

HIS HONOUR:	I have read it, Mr Black.
C3Tl2/l/RB	8/11/88
Toohey	17
MR BLACK:	Your Honour, the third order sought is that the

defendant, by a particular date, and we would

respectfully submit Thursday would be an appropriate

date, specify the people to whom he has supplied any of those documents. · That order is sought because

Lt is submitted - indeed, as we have submitted, these

documents are confidential, then the Connnonwealth should

have the capacity to protect that confidentiality and

an order in those general terms was made by the

Chief Justice in the earlier matter this year.

HIS HONOUR:  If you want to press for that you should act on

the basis that I would not, as I presently see it, be

prepared to make such an order without hearing

Mr Toohey. I think it would be, on the material before

me, a denial of natural justice to make such an order.
I am not addressing myself to the material before the

Chief Justice,but here it seems to me that the material

in breach of confidentiality is just adequate to grant

interim relief in the light of the very strong

considerations going to balance of convenience, appearing

from paragraph 6 of Senator Evans' principal affidavit.

MR BLACK: Yes, Your Honour. The remaining order sought - - -

HIS HONOUR:  As I say, I was not diverting you from paragraph 3,

I simply was alerting you to the fact that you would

need to persuade me.

MR BLACK:  Your Honour, the only basis upon which that can be

put, and is indeed put, is that given the nature of the

material, it is important and proper, in our submission,

that the Connnonwealth be able to know where the material

has gone if, on the hypothesis which we contend, the

material has been obtained in breach of confidence, then

if it has been further disseminated, that further

dissemination is a breach of confidence and although

the ANTON PILLER case was, of course, dea~ing with

matters ·of conmerce, so too here in matters of national

security, the same sort of relief should be afforded.

Now, that is the argument; I cannot take it any

further than:_1.that. · _-_,' ·· · . ::. :'. ·=

h:

The final matter, Your Honour, the final order

sought in the alternative, is that the documents be

placed in the custody of the Registry of this Court,

and the point of that is that it simply, as it were,

freezes the documents. It can do Mr Toohey no harm.

If the injunction, indeed, is made, then the documents
cannot be used by him by way of publication and they

are then placed in a secure place. In effect, it

perfects the order. Again, since that is sought in

respect of a short period at this stage, it is submitted

the balance of convenience would favour making such an

order. And indeed such an order was made in the other

case although, as Your Honour point out, other cases

are other cases. But there is a precedent for it.

C3Tl2/2/RB	18	8/11/88
Toohey

HIS HONOUR:	Very well.
MR BLACK:	Your Honour, those are the submissions that we

desire to make. As to the width of the order, I would

be grateful if Your Honour would grant us a short

indulgence so we can reframe the minutes and come back

Tl2 to Your Honour in a short time.

HIS HONOUR:  If it is of assistance to you, Mr Black,

provided the terms of an interim injunction can be

framed in~ manner which is sufficiently related to

the issue covered by the evidence in this case, and
which does not restrain publication in this particular

journal of matters that are within the public domain,

I will grant an interim injunction, as I said, up until

Thursday. I will make orders restraining destruction

of documents if a satisfactorily narrow interim

injunction can be framed. I do not propose to make

orders in terms of prayers 3 or 4.

MR BLACK:  May it please Your Honour. So our task would be tq__

narrow 1 and 2 would follow on the basis of the	·-
narrowed order 1.

HIS HONOUR:  Then the next question to be addressed is what

is the best course to follow in relation to remitting
this action to either the Federal Court or a supreme

court.

MR BLACK:  Yes. I am mindful indeed of what Your Honour has

said. We would nevertheless submit that until

Thursday it may well be better that the matter remain

in this Court. If Your Honour pleases.

HIS HONOUR:  If you are preparing short minutes of an order

you can proceed on the basis that I will adjourn -

is there a summons that needs to be served or what

is the·. procedure?

MR BLACK:  The procedure is that we would serve a motion to continue the injunction and I think that needs two

days but if Your Honour would - - -

HIS HONOUR:  You can proceed on the basis that the motion to

continue the injunction should be made returnable for Thursday.before this Court.

MR BLACK:	May it please Your Honour.
HIS HONOUR:	Presumably in Canberra, I suppose.
MR BLACK:	Yes, Your Honour.
HIS HONOUR:	And if that needs some order in relation to time- - -
MR BLACK:	We will have that specifically worked out, Your Honour.

C3Tl3/l/RB	19	8/11/88
Toohey

HIS HONOUR:  Now, is there anything else we need to discuss before I leave you to your drafting?

MR BLACK:  No, Your Honour. If Your Honour would grant us -

I hesitate to ask for 20 minutes but I just know

that drafting takes a little time.

HIS HONOUR:  Why do we not adjourn fior 20 minutes and if you

are not ready then there will 1be no problem about further ti.m::.

MR BLACK: If Your Honour pleases.

HIS HONOUR:  The short minutes of order should reserve leave

to Mr Toohey to apply to dissolve the orders on -

how many hours notice, two?

MR BLACK:  Yes, Your Honour. Well, that may be creating a burden

for the Court, Your Honour.	Two hours' notice is rather
short.

HIS HONOUR:  What I was thinking about,what time of the day it

might be. I think ..... exhaust the evening sittings o-f

this Court for this week anyway.

MR BLACK:  Yes, Your Honour. Two hours' notice expiring

between the hours of 9 and 5 - within the hours of 9 and 3, because then there would be another night

sitting ..

HIS HONOUR:  I think the best thing is to presume that people

will act sensibly. That being so, let us just say

two hours' notice.

MR BLACK: If Your Honour pleases.

AT 9.10 PM SHORT ADJOURNMENT

C3Tl3/2/RB	20	8/11/88
Toohey
UPON RESUMING AT 9.54 PM:

HIS HONOUR:  Yes, Mr Black.

MR BLACK: · I am indebted to Your Honour for the time. One's

drafting really is as slow as it always was but I

think - we have given Your Honour a document in

handwriting for which I also apologize but it seemed

to us to be of more assistance, Your Honour, if you

had that than nothing. Your Honour, the limitation

is a limitation by geographic area which is broad.

It would cover about seven or eight countries but,

in our submission, it does narrow the matter

sufficiently witho.ut running into the other difficulty.

As to paragraph (b), two forms in effect are

suggested. The first, the form for which we would

primarily contend, is just generally an officer or

former officer, but there is a limitation, that is to

say, any person serving or who has served in that

service in any such country. But the problem with the

limitation is that with it it might enable the

publication of a name which other people would identify but with the words of limitation the class is narrower, but the potential for detriment is wider.

Your Honour, all I can say is we would, in view

of the short duration of this order, respectfully urge

Your Honour to adopt the wider version without the

words of limitation. If Your Honour took that view,

then (b) would read, "identifying any person as a

current or former officer, agent or contact of that

service", with some verbal changes to bring about that

shorter result.

We cannot think of any narrower limitation.

HIS HONOUR:  "Published" is a rather ambiguous word, is it not?

MR BLACK:  Yes. Your Honour, the notion being - - -

HIS HONOUR:  I mean if Mr Toohey has it it has been published

in one sense.

MR BLACK:	Yes.
HIS HONOUR:	It has been published to him by somebody.

MR BLACK: Yes. Well, Your Honour, published in the - it

would be sufficient, in our submission, if the restraint -

I am sorry, if the limitation of the restraint were

"matters published in the news media". That would

then - or "made available to the public generally"
might be a better - "published to the public generally",

Your Honour, that would cover the Commonwealth - - -

C3T14/l/RB	21	8/11/88
Toohey

HIS HONOUR:	Or "published to the public".
MR BLACK:	"Published to the public", yes, that would cover

the Commonwealth Law Reports and the Sydney Morning

Herald.

Tl4. HIS HONOUR:· Yes, I will change "further order", Mr Black, to

"until 4 pm on Thursday, 10 November 1988".	I will
include the words of qualification in (b).	Now,
what other orders?

MR BLACK:  Apart from the order in the original paragraph 2

of the short minutes of order - - -

HIS HONOUR: I have to find that. Before I do anything else

I hand to Mr Sherman through you, if we have not lost

it, the photocopy of the supplementary affidavit of

Senator Evans and the document referred to in

paragraph 4 of Senator Evans' main affidavit.

MR BLACK:  If Your Honour pleases. I should add, Your Honour,

I am instructed to, and do, give the undertaking in~

terms of the short minutes.

HIS HONOUR:  We will proceed by steps.

(Continued on page 23)

C3Tl5/l/RB	22	8/11/88
Toohey

HIS HONOUR (continuing):  I note the undertaking by the plaintiff

set out in the first paragraph of the short

minutes of order initialled by me and placed with the

papers. I think it would be a foolhardy plaintiff

who would give as an undertaking the second - - -

MR BLACK:	Yes, I was worried about that too, Your Honour. Would Your Honour so direct -
HIS HONOUR:	Perhaps the answer is there is not much one can

do to the Commonwealth except fine it for contempt of court where it would get the money back anyway.

MR BLACK:	Yes.
HIS HONOUR:	I will change that to "I direct that the plaintiff

serve on the defendant on or before 9 November" -

well, it will not be before but, I suppose, theoretically

it is possible. I will change that to "on" - "on

9 November 1988 writ of sunnnons generally endorsed

and to file and serve on that date a notice of motion

to continue the injunctions".

MR BLACK:	Would Your Honour at that point perhaps consider
directing the Registrar to use his best endeavours
to read to the defendant the terms of the order by
telephone?

HIS HONOUR:  Yes. I will not direct because that does have

problems. I will authorize.

MR BLACK: 

May it please Your Honour.

HIS HONOUR: 

Well now, the other orders will be "plaintiff to be

given leave to serve short notice of motion to continue
the injunctions granted herein returnable at

Canberra on 10 November 1988 at 10.15 am,- the High

Court at Canberra." It is a bit difficult to talk

about "these short minutes" because we hc;1ve not -

"a sealed copy" I will say "of the short minutes".

MR BLACK: If Your Honour pleases. 

HIS HONOUR: 

I do not need to reserve costs, do I?

MR BLACK: Actually, if Your Honour would reserve costs and

certify. Your Honour, there was the matter too;

Your Honour has ordered although not formally that

Mr Toohey has liberty to apply.

HIS HONOUR:  What, on two hours notice to the Crown Solicitor

for the Commonwealth?

MR BLACK:	The Australian Government Solicitor, Your Honour.
HIS HONOUR:	What, I am ten years out of date, am I?
MR BLACK:	One remembers nostalgically those times, Your Honour.

. C3Tl6/l/PLC	8/11/88
,.Toohey	23