Commonwealth of Australia v Toohey

[1988] HCATrans 197

~ ~ ,, ... -~

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl5 of 1988

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Plaintiff

and

BRIAN TOOHEY

First Defendant

and

DAVID SYME & CO LIMITED

Second Defendant

Notice of Motion

DAWSON J

(In chambers)

Toohey

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 SEPTEMBER 1988, AT 10. 15 AM

(Continued from 1/9/88)

Copyright in the High Court of Australia

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MR S.P. CHARLES, QC: If Your Honour please, I appear with

MR C. MAXWELL for the plaintiff. (instructed

by the Australian Government Solicitor)

MR J. BASTEN:  I appear for the defendant, Your Honour.

(instructed by R.B. West, Public Interest Advocacy

Centre)

MR J. WINNEKE, QC: Your Honour, I appear with my learned friend,

MR J.H.L. FORREST, for David Syme & Co, not

yet a party but will be added, I think, Your Honour,

during the course of the proceedings. If we can

announce our appearance in anticipation?

(instructed by Minter Ellison)

HIS HONOUR:	Yes, Mr Winneke.
MR CHARLES:	Your Honour, I do not know if the Court has had

the opportunity of seeing an affidavit by Mr Toohey,

filed last week.

HIS HONOUR: 

Yes, I have read that.

MR CHARLES: 

That would disclose the interest of my friends in

these proceedings and we would ask that David Syme & Co
Limited be joined as a second defendant.

MR BASTEN: 

We have no objection to that, Your Honour.

HIS HONOUR: 

I have assumed that from what you said at the

commencement. Very well, I will make that order.

MR WINNEKE: If the Court pleases.

MR CHARLES:	Your Honour, the affidavit discloses that certain material had been provided by Mr Toohey to The Age.
That material was, in turn, provided to us yesterday
and we have been engaged in looking at it very
closely since.  We have not been able to have our
affidavitmaterial completed in the time that has been
available to us since then and, accordingly, it is necessary for us to ask for an adjournment to some future time. The time presently suggested,
Your Honour, is Thursday.
HIS HONOUR:	What course are the proceedings likely to take if

the adjournment is granted, Mr Charles?

MR CHARLES:  The course the proceedings would take, Your Honour,

is a hearing of the order of a day and a half.

There would be affidavit material filed by the

plaintiff by one or two deponents; there might

be some cross-examination on that material; it may

be expected that there will be some dispute of

fact and opinion between the parties and it may be

that one or other defendant would want to put in

answering material - that has already been canvassed

between us.

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Toohey

HIS HONOUR:  So there is a full-blown contest looming up?

Tl	MR CHARLES:	One would have to say so, Your Honour, yes.
HIS HONOUR:	Why should I not remit the matter to the Federal

Court in those circumstances?

MR CHARLES: If I may say so, I was wondering when that

question was going to be asked. Obviously -

HIS HONOUR:  I wonder why the proceedings were not commenced in

the Federal Court in the first instance?

MR CHARLES:  A number of matters, Your Honour, such as

the importance of the issues to the Commonwealth

but, accepting that the matter has now been

raised, Your Honour, I cannot put forward any

reason why the matter should not now, in the
light of what has happened, be remitted to the

Federal Court.

HIS HONOUR.	I will hear what Mr Basten has to say first?
MR BASTEN:	I have nothing to say in relation to that matter,

Your Honour. It probably might well have been

started there and there is nothing we can say

in relation to opposing that course. It seems

appropriate.

HIS HONOUR:  Thank you. Mr Winneke?

MR WINNEKE:  No, we do not oppose the course, Your Honour.

We are quite happy to have it remitted.

HIS HONOUR:  Which Federal Court, or where, is the convenient

thing?

MR CHARLES; There seems to be a super-abundance of Melbourne

counsel here, Your Honour, but my instructions

are to ask - - -

HIS HONOUR:	Mr Basten is not from Melbourne.
MR CHARLES: If it will help my friend, my instructions

are to ask for Sydney, Your Honour.

HIS HONOUR:  Mr Winneke?

MR BASTEN:· Certainly we would support Sydney, Your Honour.

Mr Toohey lives in Sydney and also Mr Toohey

is unwell at the moment and it would suit him

for that reason if it is to come on promptly.

HIS HONOUR:  Very well. Mr Winneke, you have nothing

to say under those circumstances?

MR WINNEKE: Reluctantly we are outvoted, Your Honour.

We would have much preferred Melbourne.

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Toohey

MR CHARLES:  The weather is also better in Melbourne,

Your Honour.

HIS HONOUR:  I take it the proper thing to do would be to simply

continue the orders which have already been

made?

MR CHARLES:  I have had a discussion with Mr Basten about

that, Your Honour. We are prepared to accept

a variation of the orders. My friend has put to me a variation of the order in l(a) which

he could more readily accept as being more precise

and we are prepared to accept that.

HIS HONOUR:	Would you tell me what that is?
MR BASTEN.	Your Honour, what concerns the defendant, Mr Toohey,

was the breadth of the orders which had been
made in terms of injunctive relief of the four

paragraphs, (a) to (d) in the order 1 made by

His Honour the Chief Justice. My instructions

are to indicate that Mr Toohey will give an

undertaking in relation to order (a). The

undertaking would be in these terms:
"That the defendant undertakes not to publish
or communicate to any person any documents"-
and I take in paragraph (a) -"or copies thereof

or extracts therefrom referred to in an article

entitled "The Hayden Papers" on pages 7, 8,

9, 10 and 11 of "The Eye" dated September 1988,

being approximately 10,000 pages of material

received by the defendant between 27 July 1988
and 1 September 1988 until 4. 15 pm on Friday,

9 Septembertt - would Your Honour pardon me a moment?

HIS HONOUR:	Yes.
MR BASTEN:	Your Honour, Mr Charles was saying to me, after

'·'being approximately 10,000 pages of material",

insert the words, "or any classified official

documents of the Australian Government received

by the defendant without authorization" - and

then it continues between the dates I indicated.

HIS HONOUR:  You say Friday the 9th. Is that a convenient

date? You mentioned Thursday, Mr Charles.

Is Friday, 9 September the appropriate date?

MR CHARLES:	For the matter to be adjourned, Your Honour?
HIS HONOUR:	Yes.
MR CHARLES:	I think Thursday, that is what the parties - - -
MR BASTEN:	There was some discussion which was in relation

to Friday, but Thursday, if that is appropriate,

at 4.15.

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Toohey
HIS HONOUR:	Thursday, 8 September.	So the undertaking will be:

without authorization, referred to in an article

"That the defendant undertakes to refrain from
publishing or communicating to any person any
documents or copies thereof or extracts therefrom,
being approximately 10,000 pages of material,

or any classified official documents of the

entitled 'The Hayden Papers,. on pages 7, 8,

9, 10 and 11 of "The Eye' dated September 1988" -

I am sorry, that is not correct.

MR CHARLES:  I am sorry, Your Honour, it is because this has

developed in running - - -

HIS HONOUR:  Would you read the whole undertaking out to

me now?

MR BASTEN; "Undertaking not to publish or communicate

to any person any documents or copies thereof

or extracts therefrom" - and I insert a phrase

I left out - "or information derived therefrom".

HIS HONOUR:	Yes.
MR BASTEN:	And then continues: "referred to in an article

entitled 'The Hayden Papers' on pages 7, 8,

9, 10 and 11 of 'The Eye' dated September 1988,

being approximately 10,000 pages of material

received by the defendant". And then it inserts

the "or any classified official documents of

the Australian Government received by the defendant

without authority", and then, "between 27 July

and 1 September 1988 until" - the time.

I think, Your Honour, I may have misled

Your Honour as to where that insertion of the

"or any classified official documents" went.

(Continued on page 24)

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Toohey

HIS HONOUR:  Now, as I have it, the undertaking is thus:

that the defendant undertakes to refrain from publishing

or communicating to any person any documents
or copies thereof or extracts therefrom, or
information derived therefrom, referred to in

an article entitled, "The Hayden Papers" on pages 7, 8, 9, 10 and 11 of "The Eye" dated

September 1988, being approximately 10,000 pages

of material received by the defendant or any

classified official documents of the Australian

Government received by the defendant without

authorization between 27 July and 1 September 1988

until 4. 15 pm on Thursday, 8 September.

MR CHARLES: If Your Honour pleases.

HIS HONOUR:	Do I have it right?
MR CHARLES:	Yes, Your Honour.
HIS HONOUR:	You give that undertaking on behalf of your

client, Mr Basten?

MR BASTEN:	Yes, Your Honour.
HIS HONOUR:	And I will make an order in the usual terms

remitting this matter to the Federal Court in

Sydney. It is unnecessary for me to do more than that, is it?

MR BASTEN:  Except in so far as the exact terms of the

order should include a note that the orders

made by His Honour the Chief Justice on 1 September no longer continue in force.

MR CHARLES:	Yes, Your Honour.
HIS HONOUR;	All right. They probably would be dissolved

automatically but I make that note.

MR BASTEN: I wondered,yes -for clarity, thank you, Your Honour.

HIS HONOUR: Is there anything else, gentlemen?
MR BASTEN:	The only other matter is the question of costs of
this hearing, Your Honour.  We would seek to

make an application for our costs of today which

have been wasted in the sense that we were prepared

for an interlocutory injunction - - -

MR CHARLES:  We are prepared to pay the first defendant's

costs of the day, Your Honour.

HIS HONOUR:  Very well, I make an order for costs.

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Toohey

MR WINNEKE:  Your Honour, can we have the costs of the

application as between the plaintiff and the

now defendant, David Syme & Co, reserved?

HIS HONOUR:  Yes, I will reserve those costs.

MR CHARLES: Certified for counsel, Your Honour?

HIS HONOUR:	I will certify for counsel and for senior counsel.
MR CHARLES:	Thank you.

HIS HONOUR: The matter is adjourned.

AT 10.28 AM THE MATTER WAS ADJOURNED SINE DIE

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Toohey