Grollo, B. v Howard, R.C.

[1994] FCA 128

JUDGMENT No. ........ ........ .. ........ - r 2 g l SY

IN THE FEDERAL COURT OF AUSTRALIA ) 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

ROBERT CHARLES HOWARD

Applicant

KIMBERLEY ELIZABETH BATES

First Respondent

AND :  LINDA DESSAU

Second Respondent

Id 2 4 MAR 1994 r8) AND: PETER MACAULEY

FEDERAL COURT OF Third Respondent

AUSTRALIA	AND :	COMMONWEALTH OF AUSTRALIA
PRINCIPAL

REQISTRV Fourth Respondent

MINUTES OF ORDER

CORAM :	Northrop, Spender and Heerey JJ
PLACE :	Melbourne
m:	16 March 1994
Note:	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.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIAN DISTRICT REGISTRY	1 1
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

BETWEEN: ROBERT CHARLES HOWARD

Applicant

AND: KIMBERLEY ELIZABETH BATES

First Respondent

AND: LINDA DESSAU

Second Respondent

AND: PETER MACAULEY

Third Respondent

AND: COMMONWEALTH OF AUSTRALIA

Fourth Respondent

CORAM:	Northrop, Spender and Heerey JJ
PLACE :	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,

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

The motions sought a declaration that the enforcement of and the carrying into effect of the order of MS Dessau, 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

f under the A 1977

and under S. 398 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

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case of Mr Howard, from using in any manner whatsoever Mr
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.

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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,

as it happens in this case a Full Court. And again it cannot be said that there was not an opportunity to agitate it before the High Court when trying to explain to the High Court the irremediable prejudices that might arise in various events. "

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 for 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 Mr 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

that Court, particularly when the order of that Court was the	for this Court to correct what is said to be an error made by
subject of a special leave application 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.

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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 determination 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.

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If (and this is contrary to the case put by the authorities to

us in this court) the comparison results are revealed to the applicants and their legal advisers prior to the trial judge's determination, and if that determination is adverse to the authorities, then, in our view, even in that case, no substantial prejudice would have been caused to the applicants.

For these reasons, special leave was refused.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment herein of the Court.

Date: 17 March 1994

Counsel for the applicant Mr R. Merkel QC and

(VG 555/93):  Mr J. Beach

Solicitors for the applicant Arnol d El och Leibl er

(VG 555/93):

Counsel for the applicant Mr G. Lyon

/VG 6/94]: 

Solicitors for the applicant Galbally Fraser & Rolfe

(VG 6/94):

Counsel for the first, third and Mr N. Young QC and

fourth respondents (both matters): MS R. Carlin

Solicitors for the first, third	The Director of Public
and fourth respondents (both	Prosecutions (Cth)
matters)