Elliott, J.D. v Seymour, D

[1993] FCA 740

740 1 9 3

JUDGMENT NO. ..m.a.am .111111*111.

IN THE FEDERAL COURT OF AUSTRALIA )	No. VG 410 of 1993
VICTORIA DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: JOHN DORMAN ELLIOTT and

KENNETH CHARLES JARRETT

Applicants

AND:  SERGEANT DOUGLAS SEYMOUR

First Respondent

AND:  THOMAS SHERMAN

Second Respondent

AND :  NATIONAL CRIME AUTHORITY

Third Respondent

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF

VICTORIA

Fourth Respondent

MINUTES OF ORDERS

JUDGES MAKING ORDER:	Northrop, Keely and Drummond JJ
DATE OF ORDER:	12 October, 1993
WHERE MADE:	Melbourne
THE COURT ORDERS THAT:
NOTE :	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

1. The motion for leave to appeal is refused.

2. The applicant pay the respondents' costs of the motion and that the orders made on 11 October, 1993 continuing the orders under S. 17(4) and S. 50 the Federal Court of Australia Act are vacated.

IN THE FEDERAL COURT OF AUSTRALIA )	No. VG 411 of 1993
VICTORIA DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: JOHN DORMAN ELLIOTT and

KENNETH CHARLES JARRETT

Applicants

AND:  SERGEANT DOUGLAS SEYMOUR

First Respondent

AND :  THOMAS SHERMAN

Second Respondent

AND:  NATIONAL CRIME AUTHORITY

Third Respondent

AND :  DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF
VICTORIA

Fourth Respondent

MINUTES OF ORDERS

JUDGES MAKING ORDER:	Northrop, Keely and Drummond JJ
DATE OF ORDER:	12 October, 1993
WHERE MADE:	Melbourne
THE COURT ORDERS THAT:

1.        The motion for leave to appeal is refused.

2. The applicant pay the respondents' costs of the motion and that the orders made on 11 October, 1993 continuing the orders under S. 17(4) and S. 50 the Federal Court of Australia Act are vacated.

NOTE:  Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY	NO VG 411 & 410 of 1993
GENERAL DIVISION
B E T W E E N :

JOHN DORMAN ELLIOTT AND KENNETH CHARLES JARRETT

Applicants

A N D :

SERGEANT DOUGLAS SEYMOUR

First Respondent

THOMAS SHERMAN

Second Respondent

NATIONAL CRIME AUTHORITY

Third Respondent

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA

Fourth Respondent

COURT :	NORTHROP J KEELY J DRUMMOND J
PLACE :	MELBOURNE
DATE:	12 OCTOBER 1993

EX TEMPORE REASONS FOR JUDGMENT

NORTHROP J

I also would refuse leave to appeal in each of these two

matters. I agree with the reasons expressed by Drummond J.

I certify that this is a true copy of the Reasons for Judgment

of the Honourable Mr Justice R.M. Northrop.

Associate :  ad-

Date:  13 R93

JN THE FEDERAL COURT OF AUSTRALJA )

1   No. VG 411 of 1993

VICTORJA DISTRICT REGISTRY	1
1 No. VG 410 of 1993
GENERAL DIVISION	1

ON APPEAL FROM A JUDGE

OFTHEFEDERALCOURTOFAUSTRALIA

JOHN DORMAN ELUOTT
and

KENNETH CHARLES JARRETT

Applicants

AND:  SERGEANT DOUGLAS SEYMOUR

First Respondent

AND:

Second Respondent

AND:  NATIONAL CRlME AUTHORITY

Third Respondent

AND:  DIRECTOR OF PUBLIC PROSECUTIONS
FOR THE STATE OF VICTORIA

Fourth Respondent

&ram.

P-	Northrop, Keely and Drummond JJ
Place-
-	Melbourne
Date:
-	12 October 1993

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE - REVISED FROM TRANSCRIPT)

REELY J. The relevant facts have already been stated by Drummond J. and

need not be repeated. Yesterday the court, during a period of four hours, heard two applications for leave to appeal against decisions given on Saturday by Foster J., a judge of this court. The address of Mr Sher of Queen's Counsel occupied most of the four hours. At about 5 o'clock last night, the court was given a five-page outline of submissions by Dr Jessup of Queen's Counsel, who appeared for the first, second and third respondents. He then made fauly brief oral submissions to the court. Mr Costigan of Queen's Counsel, on behalf of the Director of Public Prosecutions for Victoria, also made brief submissions to the court.

Mr Sher took the court at what he described as breakneck speed - an accurate description - to various parts of a large mass of documents. He did not ask the court to adjourn the further hearing so that greater time could be given to the matter - although he did refer in his address to the possibility of taking the court to the material in greater detail than was possible yesterday. None of the counsel appearing for the parties asked the court to adjourn the further hearing of these applications. Foster J. in h s reasons for judgment (at page 23) referred to Mr Sher's submission to him "that this is a very important case involving, as it does, an analysis of the powers of the N.C.A. and its effect upon the lives of responsible persons of good repute" and said that the case "is certainly important in that respect".

In all the circumstances, in my view the two applications should be adjourned to give counsel for all parties an opportunity to put their cases in greater detail than was possible in the time available yesterday, and to enable this court to

give further consideration to the two matters.	I certify that this and the preceding page
are a tme copy of the Reasons for Judgment of his Honour Mr Justice Keely as recorded in the draft transcript and revised by his Honour on 13 October 1993.
Associate:

L'

Date:  13 October 1993

IN THE FEDERAT, COIJRT OF ATJSTRATnTA	)	NO. VG 411 of 1993
VICTORIA DISTRICT REGISTRY	1	No. VG 410 of 1993
GENERAL DIVISION	1

BETWEEN: JOHN DO= ELLIOTT and

KENNETH CHARLES JARRETT

Applicants

AND :  SERGEANT DOUGLAS SEYMOUR

First Respondent

AND:  THOMAS SHERMAN

Second Respondent

AND:  NATIONAL CRIME AUTHORITY

Third Respondent

AND:  DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF
VICTORIA

Fourth Respondent

m:  Northrop, Keely and Drummond JJ

Place: Melbourne
Date:

- 12 October, 1993

EX 'IXMPORE REASONS FOR JUDGMENT

By applications filed on 30 September last, the applicants sought orders against a police officer, the Chairman of the National Crimes Authority, the National Crime Authority ("NCA") itself and the Director of Public Prosecutions for Victoria ("DPP") which included injunctions and orders under the Administrative Decisions (Judicial Review) Act.

As appears from the statements of claim filed the same day, the applicants' cases involve allegations of serious misconduct and abuse of statutory power by the NCA and the DPP. Foster J, who made the orders the subject of the applications to this court, in summarising some of these allegations, said that they included claims that the NCA and the DPP have not been acting bona fide in their approach to the question of charges and some of their activities have not been lawfully authorised and that there is a hidden agenda in which they wish to avoid criticism for dilatoriness in their investigations. His Honour also said:

"The proposed laying of the charge against the first applicant is, [according to the claims made], politically motivated and is part of a conspiracy to damage one of the applicants personally. The NCA, according to the allegations, is involved in this unlawful activity as since early 1990 it has apparently been committing serious breaches of its Act, while leaking information to the media, which is detrimental to the first applicant and his business interests."

Enough was said in argument to indicate that, despite publication of information concerning the proceedings in this	orders that have been made since 27 September prohibiting
court, the media here and overseas are very well informed about these proceedings, as indeed they have been at various stages of the NCA's investigation involving the applicants over the past three years, a matter referred to by his Honour at page 22 of his reasons.
To return to the chronology of the litigation, notices of motion seeking interlocutory orders were also filed on 30 September, although on 27 September the applicants had obtained, ex parte, an order restraining certain of the respondents from charging the applicants and an order under S.
50 the Federal Court of Australia Act 1976 prohibiting
publication of information with respect: to that day's proceedings and with respect to the originating proceedings that were soon thereafter commenced. These orders were in effect continued and other interlocutory orders made between 27 September and Tuesday, 5 October, when the applicants' motions for interlocutory relief came before Foster J for hearing. The relief then sought included orders under S. 50 the Federal Court of Australia Act and orders restraining the respondents from charging the applicants and any other person with any offence under Commonwealth, South Australia or Victorian law with respect to what was called "the foreign exchange matter". In the course of the hearing on 5 October, Foster J made an order under S. 17(4) the Federal Court of Australia Act that
the orders made on 27 September restraining the respondents the proceedings be conducted in camera and he also continued
from charging the applicants.
The hearing before Foster J continued through Tuesday to Friday of last week with his Honour each day extending the orders made under S. 17(4) and S. 50 the Federal Court of Australia Act.
The last extension was to 4.15 p.m. on Saturday, 9 October, 1993. The hearing of the applicants' motions for interlocutory relief is unfinished. However, on Saturday last, Foster J set aside the order that the hearing proceed in camera and the orders prohibiting publication of information with
respect to the proceedings. He gave quite detailed reasons.
He stayed the operation of these last mentioned orders until 4.30 p.m. yesterday, 11 October, 1993, to enable the applicants to seek leave to appeal them. It is the applicants' applications for leave to appeal these orders of 9 October,
1993 that is before us now, to the intent that the resumed
hearing, if leave is granted, will continue in camera and without any publication of information concerning the proceedings being permitted.
The applicants' counsel sought to demonstrate that they had a case for the grant of the interlocutory relief sought, although Foster J has not reached the stage of determining
that. It was then submitted that if the orders of his Honour
of 9 October, 1993 permitting the unrestricted public hearing of the rest of the interlocutory proceeding are not overturned, the proceedings brought by the applicants will be effectively rendered nugatory by the widespread publicity that will inevitably be given to the matter. This was said to be so because of the great harm that would be caused to the reputations of the applicants by this publicity, even if their claims against the respondents turn out to be well-founded.
But the substantial object of the actions as framed is to prevent the prosecution of the applicants. That objective will remain fully capable of achievement, if the applicants' case is well-founded, even if the proceedings continue hereafter in open court. Given this, that the National Crime Authoritv Act places great emphasis on the importance of protecting the reputation of persons caught up in NCA investigations does not require the proceedings brought in this court by the applicants, in my view, to be heard in camera.
It therefore follows that the applicants face formidable barriers in obtaining leave to appeal the setting aside of the non-publication order and the order for the hearing in camera of the interlocutory proceedings. The orders in question are discretionary procedural orders made in the course of a still- continuing interlocutory hearing. The deeply-entrenched reluctance of appeal courts to interfere in such matters is referred to in Adam P. Brown Male Fashions Pro~rietarv Limited v Phillip Morris IncorDorated (1981) 148 C.L.R. 170 at 177 and
more recently by this court in Decor Cor~oration Ptv. Ltd. v Dart Industries Inc. (1991) 104 A.L.R. 621 at 622-623.
I do not accept that there is sufficient doubt as to the correctness of Foster J's decision of 9 October to justify the question whether these proceedings should be continued in camera and subject to non-publication orders being re- considered by this court.
His Honour has summarised his review of the various considerations he took into account in reaching his decision at page 23 of his reasons. He did not there merely state a conclusion unsupported by explanatory reasoning, as was suggested in argument. He had earlier reviewed relevant authorities including Australian Broadcastina Commission v parish (1979) 29 A.L.R. 228. He referred to the special emphasis placed in the cases on the importance of proceedings being conducted in open court. He noted that S. 17(4) the Federal Court of Australia Act required a balance to be struck between the interests of the parties to litigation and "the over-riding interests of the community in open justice". His Honour also identified the considerations relied on by the applicants in seeking the continuance of the non-publication and related orders. He was alert to the impact that publicity might have on the important commercial negotiations in which one of the applicants is currently engaged.
His Honour revoked the non-publication and associated orders before reaching the stage of deciding whether the applicants had established a case entitling them to the
interlocutory injunctive relief sought. He followed this course although, as he noted, counsel for the applicants urged that he should continue to sit in camera and determine the interlocutory claims before deciding this procedural question. Since it cannot be said that the hearing of the matter in open court will render the actions nugatory, even if well-founded, his Honour was not in my view required to determine the interlocutory clalm before deciding the question of non- publication. He did not act precipitately on 9 October, 1993 in deciding to revoke the non-publication and other orders. He said:

"I regarded it as proper that before deciding the

preliminary question I should hear sufficient of the applicants' case to enable me to have a satisfactory grasp of the issues involved, particularly the nature of the factual allegations made by the applicants against the respondents as a basis of the relief sought. This has necessarily taken a great deal of time."

It was open to his Honour in my view to follow the course he took, given that he heard sufficient of the matter over the four days of hearing to give him an understanding of the case the applicants seek to make out against the respondents in the actions to enable him to evaluate properly the competing considerations relevant to the question whether the proceedings should be heard in open court.

I would therefore refuse the leave to appeal that is now

sought.

I certify that this and the preceding

six pages are a true copy of the
reasons for judgment herein of the

Honourable Mr. Justice Drummond.

Associate:

Date:  12 October, 1993

VG NO. 410 of 1993

counsel for the applicant:	m. D.N. Galbally
Solicitors for the applicant:	Holding Redlich
Counsel for the first to third	Dr. C.N. Jessup Q.C. and

respondents:  Mr. B.E. Walters

Solicitors for the first to ~ustralian Government

third respondents:  Solicitor

Counsel for the fourth respondent:  Mr. F.X. Costigan Q.C.
and Mr. P.J. Jopling

Solicitors for the fourth respondent: Mr. J.M. Buckley

Date of Hearing:	11 October, 1993
Date of Judgment:	12 October, 1993
VG No. 411 of 1993
Counsel for the applicant:	Mr. J.L. Sher Q.C.
Solicitors for the applicant:	G.W.P. Aarons & Co.
Counsel for the first to third	Dr. C.N. Jessup Q.C. and

respondents:  Mr. B.E. Walters

Solicitors for the first to Australian Government

third respondents:  Solicitor

Counsel for the fourth respondent:  Mr. F.X. Costigan Q.C.
and Mr. P.J. Jopling

Solicitors for the fourth respondent: Mr. J.M. Buckley

Date of Hearing:	11 October, 1993
Date of Judgment:	12 October, 1993