Grollo, B. v Bates, K.E. & Ors Howard, R.C. v Bates, K.E.

[1994] FCA 132

JUDGMENT No. ........ ........ .. ........ ., 1 3 2 ,44-

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIAN DISTRICT REGISTRY )

GENERAL DIVISION )

No. VG 555 of 1993

BETWEEN: BRUNO GROLLO

Applicant

AND: KIMBERLEY ELIZABETH BATES

First Respondent -

AND: LINDA DESSAU

Second Respondent

AND: PETER MACAULEY

Third Respondent

AND: COMMONWEALTH OF AUSTRALIA

Fourth Respondent

No. VG 6 of 1994

ROBERT CHARLES HOWARD

Applicant

KIMBERLEY ELIZABETH BATES

First Respondent

LINDA DESSAU

Second Respondent

2 8 MAR 1994 AND : PETER MACAULEY

FEDERAL COURT OF Third Respondent

AUSTRALIA

PRINCIPAL AND : COMMOWdEALTH OF AUSTRALIA

REGISTRY Fourth Respondent

MINUTES OF ORDER

CORAM:  Northrop, Spender and Heerey JJ

U: Melbourne

DATE :

-	16 March 1994
-	Settlement and entry of orders is dealt with in
0. 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

the applications for leave to appeal be refused,

with costs.

Note:

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIAN DISTRICT REGISTRY	1
)
GENERAL DIVISION	1

No. VG 555 of 1993

BETWEEN: BRUNO GROLLO

Applicant

AND: KIMBERLEY ELIZABETH BATES

First Respondent

AND: LINDA DESSAU

Second Respondent -

AND: PETER MACAULEY

Third Respondent

AND: COMMONWEALTH OF AUSTRALIA

Fourth Respondent

No. VG 6 of 1994

BETWEEN: ROBERT CHARLES HOWARD

Applicant

AND: KIMBERLEY ELIZABETH BATES

First Respondent

AND: LINDA DESSAU

Second Respondent

AND: PETER MACAULEY

Third Respondent

AND: CO-NMONWEALTH OF AUSTRALIA

Fourth Respondent

CORAM:	Northrop, Spender and Heerey JJ
W:	Melbourne
DATE :	17 March 1994

REASONS FOR JUDGMENT

THE COURT: On 16 March 1994 the Court refused, with costs, applications by Bruno Grollo and Robert Charles Howard ('the applicants') for leave to appeal from the judgment of Jenkinson J given on 15 March 1994 at Melbourne, wherein his Honour refused to grant to the applicants interlocutory injunctive relief sought in notices of motion filed on that day, and ordered the applicants to pay the costs of the first,

- 2

third and fourth respondents ('the authorities') on the
motions.

The motions sought a declaration that the enforcement of and the carlying into effect of the order of MS DeGsau, a Magistrate for the State of Victoria, on 21 December 1993 under S. 464M of the Crimes Act 1958 (Vicl and the use of any fingerprints obtained thereunder amounts to a contempt and that the first and third respondents are or will be guilty of the charges of contempt set out in the statement of charges and orders for the punishment of the first and third respondents for such contempt.

That part of the motions was adjourned to Monday next, 21 March 1994, when a final hearing of an application under the Administrative Decisions (Judicial Review) Act 1977 and under S. 39B of the Judiciarv Act 1903 concerning the validity of MS Dessau's order ('the ADJR application') will be heard by a single judge of this Court.

In addition the motions sought an interlocutory injunction until the hearing of the motion or further order restraining and preventing the authorities by themselves, their officers, employees or agents from using in any manner whatsoever Mr Grollo's or Mr Howard's fingerprints provided in accordance with MS Dessau's order and, in particular, in the case of Mr Grollo, from comparing Mr Grollo's fingerprints with fingerprints found upon any object or thing and, in the

case of M r Howard, from using in any manner whatsoever VC
Howard's fingerprints provided pursuant to MS Dessau's order.

That relief was refused by Jenkinson J. The Court indicated it would give its reasons for refusing leave to appeal from his Honour's decision today. These are those reasons.

The principles governing applications to this Court for leave to appeal from an interlocutory order of a single judge require that leave should only be granted if the Full Court concludes the decision below was attended with sufficient doubt and, if allowed to stand, would work a substantial injustice to the applicant for leave: see Adam P.

Brown Male Fashions Ptv Ltd v. Phili~ Morris Inc. (1981) 148

CLR 170, where Gibbs CJ, Aickin, Wilson and Brennan JJ observed in a joint judgment at 177:

" It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and

necessary consideration. "

The present proceedings have had a short but very

active curial history.

Gray J, on certain undertakings of the authorities, on 27 January 1994 declined to enjoin them from carrying into effect, acting on or otherwise enforcing or seeking to enforce MS Dessau's order.

- 4

In summary form, the undertakings were that if ultimately that order should be determined to be invalid, the fingerprints would be promptly destroyed and the authorities will not indirectly or directly use the fingerprints for any purpose whatsoever; and that pending the hearing and determination of the applicants' application, the authorities will use the fingerprints only for the purpose of their investigation into and prosecution of the offences with which the applicants were charged.

A Full Court on 4 March 1994 refused leave to appeal

from the judgment of Gray J and special leave to appeal from

the refusal of the Full Court was refused by the High Court on

11 March 1994.

The applicants provided their fingerprints on the afternoon of 15 March 1994 and the applicants seek to prevent

the authorities from comparing those prints with other prints on things in their possession until further order, asserting

that such use would constitute a contempt of court. Jenkinson J in refusing the interlocutory injunctions sought to that effect said:

" . . . the matter having come before a Full Court and the contempt point having been adumbrated in written submissions to that: court, the possibility of having the fingerprints taken, and then kept as it were, no further use being made of them, is one of the whole series of possible outcomes, and it cannot, in my view be said that: this question has not been agitated by the parties before a court,

a s i t happens i n t h i s c a s e a Ful l	C o u r t .	And
aga in i t cannot be	s a i d t h a t there	was n o t an

o p p o r t u n i t y t o a g i t a t e i t b e f o r e t h e High

Court when t r y i n g t o e x p l a i n to t h e High

Court the i r remediab le p r e j u d i c e s t h a t might

a r i s e i n v a r i o u s e v e n t s . "

The nub of the applicants' submissions for leave to appeal is that the applicants were wrongly confined by the first Full Court in making submissions on the strength of the asserted case for contempt attendant on the proposed use of the fingerprints, and that it would be unfair and wrong fox this Court to proceed on the basis that the applicants in truth had had an opportunity to argue the matters presently sought to be relied on.

The question of the use, as well as the taking of I4.r Grollo's fingerprints is squarely identified in the undertakings given by the authorities before Gray J.

We do not agree that that matter was misunderstood

by the earlier Full Court. It is, in any event, not competent

for this Court to correct what is said to be an error made by	that Court, particuiarly when the order of that Court was the
subject of a special leave applicstion to the High Court. In our opinion, it is impossible to avoid the conclusion that the question of the use of the fingerprints, in addition to the taking of them, was a relevant matter in the earlier proceedings before the Full Court, and the High Court.

- 6

There is, however, a stronger reason for the refusal

of leave to appeal.

The case for the authorities before this Court proceeded on the basis that the fingerprints of the applicants will be compared with those on things in the authorities' possession, but that the results of that comparison will be kept "internal" to the authorities pending the determination by the trial judge of the applicants' ADJR application.

In our opinion, the proposed chronology of the various court hearings is such that there is no real or substantial prejudice to the applicants by the refusal of special leave.

The ADJR application is to commence on 21 March 1994, and the hearing is expected to last a few days. It is right to recognise that judgment might take some time. On the other hand, the committal proceedings are appointed to

weeks. The authorities have indicated that the committal	commence on 11 April 1994, and are expected to take some six
proceedings will continue, with or without the 'comparison of fingerprints' evidence.

If, pending the trial judge's detenination of the

ADJR application, the comparison is kept "internal", and in

particular is not the subject of 'hand up' material, no
embarrassment to the applicants' legal advisers is possible.

- 7

I f (and th i s i s contrary t o the case put by the authorities t o us i n t h i s court) the comparison results are revealed t o the applicants and their legal advisers prior t o the t r i a l judge's determination, and i f that detenination i s adverse t o the authorities, then, i n our view, even i n that case, no substantial prejudice would have been caused t o the applicants.

For these reasons, special leave was refused.

I c e r t i f y that th i s and the

preceding s i x ( 6 ) pages are a true copy o f the reasons for

judgment herein o f the Court. " -

Associate @?&

Date: 17 March 1994

Counsel for the applicant Mr R. Merkel QC and

(VG 555/93) :  M r J. Beach

Solicitors for the applicant Arnol d B1 och Leibl er

(VG 555/93):

Counsel for the applicant hi- G. Lyon

(VG 6/94]: 

Solicitors for the a&f cant Galbally Fraser & Rolfe

(VG 6/94) :

Counsel for the first, third and hi- N . Young QC and

fourth respondents (both matters): MS R. Carlin

Solicitors for the f irst , third	The Director o f Public
matters)
and fourth respondents (both	Prosecutions (Cth)

JUDGES' CHAMBERS
FEDERAL COURT OF AUSRALIA
450 LITTLE BOURKE STREET

MELBOURNE. 3000

24 March 1994

MS Sonia Cornale
Records Clerk
Library and Information Services
Principal Registry
Federal Court of Australia
Level 16
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Sonia

Re: Com~uterized Leaal Information Retrieval Svstem

I enclose the following judgments for inclusion in the data base of Federal Court Judgments:

1.   Stanlev Lea Holt v Musketts Timber Sales Ptv Ltd No TI 8 of 1993

2.   Wavne Harold Bowman v Redline Coaches Ptv Ltd No TI 3 of 1992

3.    John Stanlev Melbourne v Terrv Fluid Controls Ptv Limited

No VG 283 of 1993
4.	John Colin Maxwell Tresize and Others v National Australia Bank Ltd No VG 489 of 1993
5.	Bruno Grollo v Kimberlev Elizabeth Bates and Others No VG 555 of 1993 Robert Charles Howard v Kimberlev Elizabeth Bates and Others No VG 6 of 1994

The word processing disks containing judgments 1, 2 and 4 are enclosed. Please return the disks to me when appropriate. The Secretary to Gummow J will have forwarded, under separate cover, the disk for judgment 3 and the Secretary to Spender J will have forwarded the disk for judgment 5.

Thank you

W ~ h e Hon &r Justice Northrop

Enc

I,', . , I
1. -	I'
9, '	"..
,	.
, . ".I