Friedrich v Herald & Weekly Times Limited

[1989] HCATrans 301

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IN THE HIGH COURT OF AUSTRALIA

Registry No Cl3 of 1989

B e t w e e n -

JOHN FRIEDRICH

Applicant

and

HERALD & WEEKLY TIMES LIMITED

and DAVID SYME & CO LIMITED

Respondents

Application for a stay

TOOHEY J

Friedrich

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 DECEMBER 1989, AT 8.18 AM

Copyright in the High Court of Australia

C3Tl 1 7/12/89

MR P. O'CALLAGHAN, ~C:  If Your Honour pleases, I appear with

my learne friend, MR J. HAMMOND, for the applicant.

(instructed by Wisewould Schilling Cohens)

HIS HONOUR:	Yes, Mr O'Callaghan.
MR O'CALLAGHAN:	Your Honour, this is a summons seeking - - -
HIS HONOUR:	Mr O'Callaghan, just before you tell me anything about the matter, what is the position regarding
notification to the other parties.
MR O'CALLAGHAN:	The position regarding notification to the

other parties is, so far as the respondents are

concerned, that is the named respondents are concerned

is that last evening I spoke with the instructing

solicitors of other counsel. Mr Sher, senior counsel,

was unable to be contacted, he was delivering an

address, and the solicitors have written a letter to

the Court - I do not know whether Your Honour has

seen that.

HIS HONOUR: Yes, I do have that. That is the letter dated

7 December.

MR O'CALLAGHAN:  Yes, Your Honour.

HIS HONOUR: Apparently there is another one as well that I

had not seen. You have seen the letter of - - -

MR O'CALLAGHAN:	Yes, I have, Your Honour, and all I would say with respect to it in paragraph 3, what I said was
it would be made on an ex parte basis in the sense
that it is impossible to provide you with the documents which we will be putting before the Court at this time.
Likewise, Your Honour, I made it clear that, for
reasons which I will seek to adumbrate later, that
the primary application will be for a stay of the
examination until the application for special leave
can be heard and determined and that would, I think,
logically take me to tell Your Honour that I also
spoke to senior counsel for the liquidator about
mid ... afternoon and informed him of our intention to make
the application this morning and of the general nature
of the application.  I said, half facetiously,
Your Honour, I offered him a seat on the plane but he
declined.

But can I tell Your Honour that so far as the

liquidator, whose name is John Perrins, is concerned,

Your Honour will notice that he does not appear as a

respondent on the sunnnons and, indeed, does not appear

as a respondent in the judgment or the papers before

Tl	the Full Court. In fact the liquidator attended all the proceedings before the Full Court save the second
appeal with which, I tell Your Honour, we are not

C3Tl/2/RB	2
Friedrich

concerned, that is we are not making any application

in relation to the second appeal.

HIS HONOUR:  I was going to ask you about that in a moment.

Perhaps we can put that to one side. The print of

the judgment of the Full Court shows, by way of

appearances, appearances on behalf of the appellant,

namely your client; the respondent, namely the Herald
and Weekly Times and David Syme and Co and an

appearance on behalf of the liquidator and solicitors

on the record in each case.

MR O'CALLAGHAN:	Yes, that is so.
HIS HONOUR:	Did the liquidator take any active part in the

hearing of the appeals?

MR O'CALLAGHAN:  Only in relation to proceedings initially

taken, I think, on 16 November in respect of a stay.

They took an active part in that application for the

stay of the - this was an application made for a
stay pending the hearing of the appeal.

HIS HONOUR:	A stay of what, Mr O'Callaghan?
MR O'CALLAGHAN:	A stay of the examination under section - - -
HIS HONOUR:	As opposed to a stay of publication of the

proceedings.

MR O'CALLAGHAN:  Yes, Your Honour. I will perhaps make it

clearer when I go to a brief history of the matter.

I am just dealing with the liquidator's role in the

matter. He took an active part in argument in .that

situation. In respect of the first appeal in which I

appeared - I did not appear, my learned junior did,

in the second appeal - he did not take an active part

save to make submissions of four or five minutes, but

was present at all times.

HIS HONOUR: Perhaps just returning to the letter from the

solicitors for the Herald and Weekly Times, it is to

some extend - no, that is a letter on behalf of the

Herald and Weekly Times. The earlier letter was on

behalf of David Syme and Co. But I take it the same

counsel are appearing for both companies?

MR O'CALLAGHAN:	Yes, for both.
HIS HONOUR:	So to some extent the letters are the same, but the letter written on behalf of the Herald and
Weekly Times ends up: "For the above reasons" -
and these are reasons to do with notification and
availability and so on - "our client will not be
represented this morning. If, however, any issue is
raised concerning publication of the examination of Friedrich, then naturally our clients have a vital
C3T2/l/RB	3
Friedrich

concern in such proceedings. This was a fundamental

issue before the Full Court of the Supreme Court of

Victoria. Accordingly, if such an issue is raised, we

respectfully submit that such an application should not

be made ex parte by the appellant and we would request

the right to be heard on any issue concerning

publication before any order is made."

MR O'CALLAGHAN: Yes, Your Honour. I think perhaps I can

amplify that best by taking you to a history of the

matter, Your Honour.

HIS HONOUR:  I am sorry to keep diverting you, but there are

a couple of matters I want to nake clear to myself.

There is reference to two appeals and you yourself

have referred to two appeals. The judgment of the

Full Court is in respect of one numbered matter only.

Did both appeals bear the same number?

MR O'CALLAGHAN:  I can only answer that by saying I personally

do not know. I suspect what has occurred, Your Honour,

as does appear from the description in the latter part

of the appeal of the haste with which the applications

were brought on that the formalities may not have been

complied with at all. So I am not really in a position

to answer that. In fact, Your Honour will - if I might

apologize in advance for some of the untidiness of

the documentation consequent upon the haste.

HIS HONOUR:  Yes, I understand that, Mr O'Callaghan. I just

wanted to make sure that I understood what had

happened because that then bears upon what it is that

is being sought in the application for special leave

and, in turn, what is being sought in the present

summons. But from what you told me a moment ago, it

is only the first appeal - that is the appeal in

relation to the examination of your client, as opposed

to the examination of witnesses that is the subject of

this application.

T2 MR O'CALLAGHAN: That is so, Your Honour, and I have now been

handed a document which does show that the application -

that the appeal which we call the second appeal was

apparently treated under the numbering of the original

appeal and if I could hand to Your Honour a copy of

the order which the Court made on 1 December 1989

refusing the application for a temporary stay in that

matter of the examination ofotherwitnesses. So it may

be, Your Honour, that I best express what my application

is, is an appeal from the judgment of the Full Court

given on 6 December in so far as that appeal dismissed

the appeal from the order of His Honour

Mr Justice Cummins.

HIS HONOUR:  And it is that matter only in respect of which

the application for special leave is brought, is

that the position?

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Friedrich
MR O'CALLAGHAN:	Yes, Your Honour.
HIS HONOUR:	And that application, as I understand, is to be heard tomorrow in Sydney?
MR O'CALLAGHAN:	I understand that that is the position,

Your Honour, and we will certainly be available and in

Sydney if - - -

HIS HONOUR:  And just one more question for the moment,

Mr O'Callaghan, and then I will let you proceed. There

is reference in one of the papers to a stay of

examination - as I understood it - made some time in

late November about which I cannot see any particular

details in any of the papers.	Can you tell me
something about that?

MR O'CALLAGHAN:  Yes. The position was that when - if I could

just - - -

HIS HONOUR:  If you are going to pick that up in your history

of the matter, then do so.

MR O'CALLAGHAN: Yes, I am, Your Honour. The initiation of the

matter was the ordering in July of the examination

of Mr Friedrich under section 541 and that required

him to attend before Master Evans on 9 November,

which he did. Application was then made by his

counsel, Mr Hammond, for a number of orders, including

that the proceedings be held in private; that there

be a restriction on publication of the proceedings and

that there be a particular order in which witnesses

were called.

In the result, Master Evans ordered only that

there would be a prohibition on the publication

of the proceedings. He made an order prohibiting any

person publishing or causing to be published the

proceedings of the examination.

HIS HONOUR:  Was that order made in respect not only of the

examination of Mr Friedrich but of any witnesses who

were called at the examination?

MR Q'CALLAGHAN:  It was made only of the examinaion of

Mr Friedrich, Your Honour. At that stage the

respondents, if I might say, intervened in the

proceedings and indicated that they wished to appeal

the order of Master Evans which prohibited publication and Mr Hammond also indicated that he wished to appeal against the refusal of Master Evans to make the other

two orders I have referred to. That appeal came

before His Honour Mr Justice Cummins initially on the

evening of 9 November and then on the morning of

10 November - it was a Friday - and His Honour part

heard the application early in the morning and

disposed of it in the evening and refused - dismissed

C3T3/2/RB	5
Friedrich

the appeal from the orders that Mr Hammond sought

and upheld the appeal of the respondents. On

16 November application was made to the Full Court to

stay the examination pending the hearing of the appeal
and the court did stay the examination subject to
directions as to the lodgment of appeal papers in

specified times and so on.

(Continued on page 7)

C3T3/3/RB	6
Friedrich
HIS HONOUR:	Do you mean stayed the examination until further

order or until a finite date?

MR O'CALLAGHAN:  Yes, until further order, Your Honour.

If I could interpolate,at that time

discussion took place before the Court in which

the liquidator indicated that they were prepared

to proceed with the examination subject to the

restriction on publication and sought to have the

court make a stay in those terms to which the

appellant, Mr Friedrich, offered no objection.	But
the respondents, the Herald and Weekly Times and

David Syme, objected to that and in the result the court made a stay of the examination siMnliciter.

On 22 and 23 November, the appeal was heard

and judgment reserved. On 28 November, the

liquidator applied to the court to vary the order

so as to permit the examination to continue in

respect of other persons. I should add here,

Your Honour, that the proceedings before the

Full Court contained an emphasis upon the problem of the Supreme Court of Victoria not having enough

masters appointed and in consequence the time set

aside for the examination of Mr Friedrich and others

under section 541 was for a period which expires

on Friday next and would then be adjourned over

until February. And what the liquidator had initially

expressed was the desire to call Mr Friedrich first or

examinin~- hi~ .first but following the time in

which the court was considering its decision, as I

say, the application was made on 28 November for a

variation of the stay so as to permit the

examination to proceed in respect of other persons

and the court did so make that variation so that all

that then remained was a stay of the examination of

Friedrich.

HIS HONOUR:  Well, not quite, is it? In ordering that the

examination of witnesses as opposed to

Mr Friedrich might continue, what was the position then regarding any ban on publication?

MR O'CALLAGHAN:  None, Your Honour. And then,

Your Honour, the proceedings commenced by way of
examination, I think, on 29 November and on

30 .November 1989 it was then that Mr Hammond on

behalf of Mr Friedrich made application to the
Full Court for a prohibition of the publication
of the examination of other persons and that was
refused by the Full Court who said that they would

give reasons for the refusal when giving judgment

on the appeal which had been heard on 22 and 23 November.

C3T4/l/JH	7
Friedrich
HIS HONOUR:	So when the judgment of the Full Court speaks

of the second appeal was that an appeal which

was effectively heard on 30 November or had it

already been heard on the 22nd and 23rd?

MR O'CALLAGHAN:  No, it was heard on 30 November, Your Honour,

and disposed of on that day.

HIS HONOUR:  So -~lthou.$ you described it as an application to the

Full Court, was it in truth an appeal from some

earlier order?

MR O'CALLAGHAN:	I am sorry, Your Honour, it was - - -
HIS HONOUR:	It was an appeal froo Mr Justice Vincent.

MR O'CALLAGHAN:  Yes, it was, Your Honour. The same

procedure was followed that they went before

initially Mr Justice Beach then

Mr Justice Vincent who said that the matter was

governed by the proceedings currently before the

Full Court, referred it to the Full Court and

then that was disposed of. And, as I say,

Your Honour, we make no application here in relation

to that.

(Continued on page 9)

C3T4/2/JH	8
Friedrich
HIS HONOUR:	So, so far as witnesses are concerned the

examination is free to proceed and there is no

constraint on any publication of any evidence that

might be given by witnesses.

MR O'CALLAGHAN:	No, Your Honour - - -
HIS HONOUR:	Is that- the :position?

MR O'CALLAGHAN: It is the position, Your Honour, and I might

add, it has proceeded and there has been abundant

publicity, which of course is another reason why it

is pointless to be concerned about it now. But, then

the judgment of the Full Court was given yesterday and

upon judgment being delivered, application was made

for a continuation of the stay of the examination of

John Friedrich - that is, the order of the Court of

28 November 1989 -

HIS HONOUR:  But that is not right, is it, because the order

of 28 November was an order varying an earlier order,

I understood you to say, so that examination of

witnesses might continue?

MR O'CALLAGHAN:  Yes, well that is so, Your Honour, but what

happened was that on 28 November the order was that

the stay, in so far as it related to persons other
than Friedrich, was discharged, but the Court, by a
separate paragraph, imposed a stay of the examination

of Friedrich.

HIS HONOUR:  In effect, a continuation of the earlier order

made on 16 November.

MR O'CALLAGHAN:	Yes, Your Honour.
HIS HONOUR:	So that was a stay of examination?
MR O'CALLAGHAN:	Yes, Your Honour, and then, Your Honour,

the position yesterday was that we sought to have	that stay continued so as to allow an application
for special leave to be made. And then discussion
ensued, or argument ensued, in which the liquidator sought an order that the examination of Friedrich
be permitted, but be subject to an order restricting
publication until midnight on Friday, or some time thereabouts: contemplating obviously that within
that period application for special leave could be
made, and the attitude of the appellant to that
was that it suggested in the circumstances that a
greater period of time than Friday be granted, but
obviously the appellant would have made done with
that situation, but however the respondents objected to that and the Court then refused the further stay saying, as appears from the affidavit of Mr Barrett,
that - - -

C3T5/l/FK	9
Friedrich
HIS HONOUR:	That is the affidavit of - - -
MR O'CALLAGHAN:	There were two affidavits.
HIS HONOUR:	- - - 6 December, paragraph 6.
MR O'CALLAGHAN:	Yes, Your Honour, in which the Court said:

"We are of the opinion that there is strong

public interest in there being no further

delay in the examination of the appellant

and there being no restriction of the

publication of his examination. The Master

will remain in control of the proceedings."

And, we had addressed argument to the court upon

the applicability of JENNINGS C0NSTRUCTION and
thus requiring us to make tne application to the

Full Court rather than initially to this Court,

and the Court considered that JENNINGS was

distinguishable.

HIS HONOUR:  So, at the moment there is no constraint on

examination of Mr Friedrich continuing and no ban

on publication of - - -

MR O'CALLAGHAN: That is so, Your Honour, and Mr Friedrich

is due to be examined at 10.30 this morning.

(Continued on page 11)

C3T5/2/FK	10
Friedrich
HIS HONOUR:	In so far as there is an application for

special leave to appeal, is it the position that

what is there being challenged is the decision of

the Full Court upholding a decision that there be

no restriction on publication of the examination of

Mr Friedrich?

MR O'CALLAGHAN:  Yes, Your Honour.

HIS HONOUR: 1:he order ef the Full Court or the judgment of the

Full Court a.s I understand it\.said nothing about the examination itself proceeaing.

MR O'CALLAGHAN:  No, it does not, Your Honour, because as for

the reasons I had hoped I had indicated in history,

the appellant sought no more than a restriction on

publication, having initially sought to have the
matter held in private and the appellant was really

unconcerned to be examined if there was a

restriction on publication, but that, of course,

was opposed by the respondents who said that it is the

very matter with which they were concerned and so

what we appeal from was Mr Justice Cummins

overturning the order of the master, that there be

a restriction on publication, and in turn, we appeal

from that order of Mr Justice Cummins, which was

dismissed by the Full Court, and we seek special

leave to appeal to this Court against that order,

the effect of which, if the appeal were granted,

would be to revive the order of the master.

HIS HONOUR: If there is, as there is, an application for

special leave to appeal from the judgment of the Full Court, refusing a ban on publication of the

examination of your client, and if that matter is

to be heard in Sydney tomorrow and if the examination

of your client is to begin or proceed at 10.30 am

this morning, why should I be concerned with

staying an examination as opposed to perhaps imposing

some temporary restraint on publication of the

examination?

MR O'CALLAGHAN:  Your Honour, that is not something which would

necessarily concern us. We say that you should

simply stay the examination - - -

HIS HONOUR:	Why should I?
MR O'CALLAGHAN:	Because, Your Honour, we say that there are

two bases for it. Firstly, the appellant and his
advisors are in a constraint·of time and energy in

relation to the pursuit and the preparation of the

application for special leave to appeal and it is

simply stated difficult, in one sense, being in two

places at once. So that is the first thing, Your Honour.

C3T6/l/CM	11	7/12/89
Friedrich

The second thing is that the respondents seek to

be heard in relation to the issue of whether there

be a temporary stay of publication.

HIS HONOUR:  Yes, but as to the first, the constraints of time,

which I appreciate, but I would have to ~easure that

against the very clear statement in the Full Court, that

there is ·a strong public interest in there being no

further delay in the examination of the appellant.

So far as the second, the respondent seeking to be

heard, I see the force of that, but I am not sure

that that can be turned to the appellant's

advantage. That is a position in which the

respondents find themselves by reason of the urgent

nature of this application, but at most all I would

be considering is a restriction on publication until
tomorrow, because if the matter comes before the

Full Court of this Court, as is proposed, and the application for special leave is refused, well that is the end of the matter.

O:'CALLAGHAN:	Yes it is, Your Honour.
HIS HONOUR:	End of the matter in the sense that the

examination proceeds and there is no constraint on

publication. If the Court were minded to grant

special leave tomorrow, then no doubt you could be

heard as to whether there should be either a stay

of the examination or some restriction on publication.

So the most I would be considering, Mr O'Callaghan,

is some sort of order that might cover the situation

between now and close of play tomorrow.

(Continued on page 13)

C3T6/2/CM	12	7/12/89
Friedrich
MR O'CALLAGHAN:	Yes.	Your Honour, I have said all I can say

in relation to that and I appreciate what

Your Honour says with respect to a balancing of,

if I might say, in a sense it is conveninece against

the statement of public interest and I do not wish

to make any further submissions in relation to that

and likewise, with great respect, I accept that it

is not really in my mouth to plead the case on

behalf of the respondents so as to gain some

advantage for my client and I do not seek to do so.

Your Honour, what, in those circumstances, we would

submit Your Honour should do is to simply grant a

stay, the effect of which would be to preserve the

existing order of the master made on 9 November.

HIS HONOUR: Isthere some document that reflects that order,

Mr O'Callaghan?

MR O'CALLAGHAN:  I think I can hand to Your Honour an

exhibit - - -

HIS HONOUR:  I do not mind what form it is in, just so long

as it contains the content of the - - -

MR O'CALLAGHAN:  Your Honour, I will hand it to you 1n a

moment. If I might read the master's handwriting.

HIS HONOUR:	Yes.
MR O'CALLAGHAN:	It says:

The court orders that:

No person publish or cause to be published any report of the examination of John Friedrich pursuant to the order of Kaye J made 20 July 1989.

That is paragraph 1 of the order which was made on

9 November 1989 by Master Evans.

HIS HONOUR:  Thank you. Did you want to say anything else

apart from that

MR O'CALLAGHAN:  No, Your Honour. I have just received some

instructions with respect to what would be the

position of Mr Friedrich tomorrow. That would be

a matter we would have to take up with the master,

that is if there are any problems arising out of

the pursuit of the special leave appeal, qua

Mr Friedrich in his examination tomorrow, but I

do not propose to trouble Your Honour.

HIS HONOUR:  I am not sure that I understand that.

Mr Friedrich would not need to be present on the

application for special leave.

C3T7/l/HS	13	7/12/89
Friedrich

MR O'CALLAGHAN:  No, he would not, Your Honour. That is all

I want to say, Your Honour. As I say, that has

nothing to do, if I might say, with respect, with

my application to you, sir.

HIS HONOUR:	I did not think it did.
MR O'CALLAGHAN:	I suppose hope springs eternal.
HIS HONOUR:	It seems to me that there is no justification

at all for an order in terms of the summons as
presently formulated which is that the examination
be stayed pending the hearing and determination of

the application for special leave and I say that

for two reasons; one is that I have regard to what

the Full Court said following the delivery of judgment

yesterday, namely that there is a strong public

interest in there being no further delay in the
examination of the appellant and, secondly, what is
sought to be challenged by the application for
special leave does not go to the examination itself

but rather to the publication of those proceedings.

Having said that, I suppose it follows that as

the summons is presently formulated it should be

simply dismissed and I take it you would seek some

variation.

MR O'CALLAGHAN:  Yes. We would seek to amend it so as to

seek an order in the terms, or giving effect to

the order of Master Evans, Your Honour.

HIS HONOUR:	What is the justification for doing that?
MR O'CALLAGHAN:	Your Honour, the justification for doing

that is that unless there is such a restriction

on publication the fruits of any successful appeal

by the appellant would be rendered nugatory.

(Continued on page 15)

C3T7/2/HS	14	7/12/89
Friedrich

MR O'CALLAGHAN (continuing): That proposition, we submit, is manifest and that that attracts the jurisdiction of this Court to grant relief of the sort we seek. And

in that context I would refer to the authority of

JENNINGS CONSTRUCTION - - -

HIS HONOUR:  I do not think you need to take me to the content of the authority. I am familiar with the cases.

MR O'CALLAGHAN:  - - - where His Honour Mr Justice Brennan

and, again, His Honour Mr Justice Deane in the

ATTORNEY-GENERAL V HEINEMANN said - His Honour

Mr Justice Brennan said that the fact of the fruits

of a judgment being lost does attract jurisdiction and His Honour Mr Justice Deane in HEINEMANN said:

If the applicant were able to persuade me

that his appeal to this Court would effectively

be rendered nugatory if I refuse to order a
stay or to grant other injunctive relief, I
would be inclined to the view that interlocutory
relief to maintain the status quo should be

granted.

And we would adopt that phrase, Your Honour, as

apposite to the position in this application. The

balance of convenience, in our submission, is weighed

down very heavily in favour of the application because

there is no further delay in the hearing of the

JH	examination - if the application for special leave were
unsuccessful there would only be a delay in publication qua the respondents of 24 ·or 48 hours and, on the other hand, if the application for special leave is successful and a stay is ordered then the
status quo is truly preserved. I do not think I can
add any more force to my submissions than to repeat,
Your Honour, that the appeal would be rendered
nugatory unless the order we seek today is made.
HIS HONOUR:	Just tell me this, Mr O'Callaghan, if I were to

make an order in terms similar to those made by the

master, I would only make such an order of very

limited duration until some time tomorrow.

MR O'CALLAGHAN:	Yes, Your Honour.
HIS HONOUR:	Perhaps the precise hour does not matter and I

suppose I am not sure where this application would

stand on the list or what time it would be reached
but I suppose to be on the safe side an order ought

to be made until perhaps 5.00 pm or something like that.

MR O'CALLAGHAN:	Yes, Your Honour.
HIS HONOUR:	Do you want to say anything about the particular

time to which such an order should be made?

C3T8/l/JH	15
Friedrich
MR O'CALLAGHAN:	Your Honour, other than to say that in

order to be on the safe side it ought to be at
least as long as that because of - well I do not

know what the list is in Sydney tomorrow - but

certainly it should be as long as that and to be

on the safe side we would say 6.00 pm, Your Honour.

HIS HONOUR:	Yes.
MR O'CALLAGHAN:	I should hand to Your Honour some draft

grounds of appeal which are properly qualified by

the word draft, Your Honour.

HIS HONOUR:  Certainly, if the stay that is now being sought

was indefinite or for any length of time, I would

be much more concerned about the prospects of

success of an application for special leave but I

think given the timing of the matter and the

knowledge that the application itself is to be

heard tomorrow, that does not assume the importance

that it might ordinarily assume. In a sense, that

may resolve itself tomorrow if the application for
special leave is refused, well then, that is simply
the end of the matter and if it is granted the

Full Court will have heard argument and is in a better

position to - that it will have argument on both

sides - make that sort of assessment in considering whether there should be a stay until the hearing of the appeal.

(Continued on page 17)

C3T8/2/JH	16
Friedrich

MR O'CALLAGHAN: If Your Honour pleases. In those circumstances,

Your Honour, I do not propose to take Your Honour through

the grounds of appeal or their relationship to the

passages in the judgment.

HIS HONOUR:  Mr O'Callaghan, I have made my position clear

regarding the stay of the examination. As far as the

stay of publication is concerned that is certainly

within the jurisdiction of the Court and a compelling feature of the exercise of that jurisdiction is what the implications would be for an appeal, if successful -

if the stay were not granted - and since the prospective

appeal is aimed at the absence of any restriction on

publication - little doubt, I suppose, that to refuse

even a temporary stay would mean that if special leave

were granted and the appeal were successful, to some

extent the success of the appeal would have been
diminished by any evidence that had been given by

your client during the course of the next two days

and the publication of that evidence. I am therefore

disposed to grant an order restricting publication

but I make it clear, as I have already made it clear

I think, that that is simply to preserve the situation

until the application for special leave is heard

tomorrow.

Therefore, the order that I make is in the

terms sought, namely, that no person publish or

of John Friedrich pursuant to the order of cause to be published any report of the examination order stand until 6 pm tomorrow, 8 December.

MR O'CALLAGHAN:  Or further order?

HIS HONOUR: Well, if a further order is made, it will not

be made by a single Justice unless the - - -

MR O'CALLAGHAN: It is perhaps unnecessary, Your Honour.
HIS HONOUR:	I think I am disposed to simply give it until

that time. It leaves you free, of course, to make a

further application if need be.

Mr O'Callaghan, do you want to say anything about

the form of the order. I have expressed it in a sort

of two-fold manner. It may be that it should be

expressed in terms that "until 8 December at 6 pm

no person publish", that might be perhaps a more

elegant order than the way I expressed it earlier.

MR O'CALLAGHAN: If Your Honour pleases. The words

"publish, or cause to be published"are, of course,

out of section 18 of the SUPREME COURT ACT.

C3T9/l/PLC	17
Friedrich

HIS HONOUR: Well, just to put the matter beyond doubt, the

order I make is in these terms: until 8 December 1989 at

6 pm, no person publish or cause to be published any

report of the examination of John Friedrich pursuant to
the order of Mr Justice Kaye made 20 July 1989.

Now, having said that, what if the application for special leave came on at 2 o'clock tomorrow and was

dismissed? Why should there be any further restriction?

MR O'CALLAGHAN:  I must say, what I was contemplating

in that event when I said, "until further order",

Your Honour, but in any event, Your Honour, the -

HIS HONOUR:  I think that ought to be included because there

is no reason why there should be some unnecessary

restriction if application for special leave has been

refused.

MR O'CALLAGHAN:	No, with respect, I would be - - -
HIS HONOUR:	So, I will have one further attempt at it. The

order then will be: Until 6 pm on 8 December 1989 or
until further order, no person publish or cause to be

published any report of the examination of

John Friedrich pursuant to the order of Mr Justice Kaye

made 20 July 1989. And I direct the Registrar to

notify the Protonotary of the Supreme Court of

Victoria of the order now made.

MR O'CALLAGHAN: If Your Honour pleases.

AT 9.00 AM THE MATTER WAS ADJOURNED SINE DIE

C3T9/2/PLC	18	7/12/89
Friedrich