Her Majesty's Attorney-General in and for the United Kingdom

[1988] HCATrans 36

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll4 of 1987

B e t w e e n -

HER MAJESTY'S ATTORNEY-GENERAL

IN AND FOR THE UNITED KINGDOM

Appellant

and

HEINEMANN PUBLISHERS AUSTRALIA

PTY LIMITED

First Respondent

and

PETER MAURICE WRIGHT

Second Respondent

MASON CJ

WILSON J

BRENNAN J
DEANE J

DAWSON J

Wright(2)

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MARCH 1988, AT 10.21 AM

(Continued from 9/3/88)

Copyright in the High Court of Australia

ClT2/l/ND 219 10/3/88

MASON CJ:	Yes, Mr Turnbull.
MR TURNBULL:	Your Honours, when the Court adjourned yesterday,

I had canvassed the issue raised by Sir Laurence Street,

to wit, the ability of Mr Codd, a representative of

the executive to overcome the unenforceability

of a foreign penal or public law. I do not think

there is any more I can add to that. I would now

pass to the reasoning of Mr Justice McHugh in the

Court of Appeal which was, as stated by His Honour,

equally novel and without precedent.

Mr Justice McHugh said that for the appellant

to succeed he would have to persuade the Court

that the - and I am referring now to volume 7,

page 1686, at about point P, he correctly held

that the plaintiff government would have to persuade
the court that the publication was contrary to
the public interest of Britian because if it did
not do that it would not make out the requirement

of detriment which Mr Justice McHugh held, as did

all the other judges, required by law. And

His Honour held that this was an embarrassing exercise an Australian court should not embark upon.

His Honour said there was no authority for

that. We would submit that the House of Lords'

decision in BUTTES GAS V HAMMER is authority for

that and given that it was canvassed extensively

in dialogue between Mr Simas and Justice Gaudron

I will not take the Court back to that. But there

is a clear analogy, we would submit, between the proposition that the court of the forum will not

inquire into the transactions of foreign sovereign

States and that it will not inquire into matters

of public interest relating to the sovereign government

of a foreign country.

MASON CJ:  But does the principle in BUTTES go beyond non-

inquiry into matters that are the subject of dispute

between international sovereign States rather than

non-inquiry into matters of domestic concern to

a sovereign State?

(Continued on page 221)

ClT2/2/ND	220	10/3/88
Wright(2)

MR TURNBULL:  Your Honour, the decision in the facts of

BUTTES involved matters which were in dispute

between sovereign states and there is certainly

a distinction there between the facts of that case

and this case before us. Mr Simos has, we would

candidly concede, a strong argument against

Mr Justice McHugh's principle in saying that the

British Government has.brought this case, acknowledged

that it is bound by the orders of the Australian

Court and invited the Australian Court to deal

with it. Therefore, says Mr Simos, what embarrassment

could possibly be caused by the Australian Court

dealing with the public interest question.

Now, recognizing the force of that we would

nonetheless submit in the alternative, of course,

because our case is based on other principles,

that Mr Justice McHugh's proposition is correct.

The consequence of his view being sound is that

cases of this kind could not be brought by foreign

governments. Such foreign governments would,

presumably, seek to persuade the Australian Government

to pass appropriate legislation through the

legislature to provide for cases like that and

we would submit that Mr Justice McHugh's proposition,

by putting the ball back firmly into the court

of the parliament, is correct as a matter of prinicple

for the very reasons that Mr Whitlam referred to

in his evidence, namely, that these are issues

that should be dealt with, if at all, by treaty

and convention supported by legislation.
Now, I recognize that is introducing an element of policy into what has, to date, been arguments
of principle but that is where we see the principal

justification for Mr Justice McHugh's decision

lying.

MASON CJ:  Now, Mr Turnbull, there seems to me to be something

curious about the notions that a court says, ~well,

the plaintiff, in order to succeed, must establish

that the public interest of the Unite<l Kingdom"

that is of the foreign country, "favours him", and

yet, at the same time, says, "This court is not

going to inquire into that issue." That seems

to raise a question as to whether the public interest

of the United Kingdom is, in fact, a critical or

relevant consideration at all.

(Continued on page 222)

ClT3/l/AC	221	10/3/88
Wright(2)

MR TURNBULL:  It is relevant in this respect, Your Honour, there are two public interests. The British Government,

in order to get through the hoops we say are correctly

posed in FAIRFAX, has to (l),prove the information was

imparted in confidence; (2), that it is still confidential;

and (3), that its publication would cause it detriment.

Now, Mr Justice McHugh perhaps did not elaborate on

this enough but what he intends, I apprehend, is

to say that where a government seeks to prove detriment

it must prove detriment in the context of public

interest. The Government could not simply come and say

the detriment is of a political kind that will cause the Prime Minister personal embarrassment, or create

a political furore in the House of Commons.	That is
not sufficient.

Now, having proved those three things the plaintiff

Government then has to prove that it is in the public

interest of Australia for the book to be suppressed.

Of course, with a private plaintiff you only have

onepublic interest, the public interest of the forum,

but because this is a governmental plaintiff you get
the public interest of Britain as part of a detriment

condition and then you have the overriding public

interest requirement because it is none the less - even

if a plaintiff could prove confidentiality, continued

confidentiality and detriment, he may still not be

able to persuade a court to suppress a publication if it is in the public interest to publish it, for

instance if it reveals iniquities. So the fourth

element, if you like, is the balance of public interest

which was aptly summarized by Lord Denning in the passage

I quoted yesterday.

MASON CJ: But is not that to equate detriment with public

interest?

MR TURNBULL: Well, it does in the context of this case, Your Honour.

I am only suggesting - if Mr Simos was representing a commercial house detriment would presumably be damage to trade and connections and so forth, but where a

government seeks to prove detriment it can only prove

that by reference to public interest. The British

Government cannot be heard to come - and of course,

that is the only way they have sought to prove it,

if I may so so, so I am not posing something that my

learned friend would dissent from in the context of this

case.

Now, Your Honours, if I may hand to the Court

some further written submissions relating to the

equitable obligation of confidence and choice of law

rule.

MASON CJ: This is the product of the computer, is it?

CIT4/l/JM	222	10/3/88
Wright(2)
MR TURNBULL:	This is a product of our minds per medium of the computer.	Now, Your Honours, in those

submissions - please do not be intimidated by the

bulk of this - there is a large unreported judgment

appended to the end.	The submissions are actually
quite brief.	I do not propose to read passages

from any of the cases here, just to deal with them

very quickly and this relates to the choice of

law rule for the equitable obligation of confidence.

Just starting at the beginning,_we acknowledge

there is no authority which determines this question,
the choice of law rule in an action· for breach of

confidence.

Mr Justice Holland, New South Wales Supreme Court in We refer to tne unreported judgment of

COMMERCIAL BANK V WIMBORNE. That decision is referred

to in HOSPITAL PRODUCTS by Mr Justice McClelland and

in that case Mr Justice Holland says that in a case

where an effort was made to enforce a fiduciary

obligation in the equity court in Sydney that

New South Wales law was the appropriate law to

determine the scope and availability of the

obligation and remedy respectively. We refer to

a number of cases more of which are referred to by

Mr Justice Holland relating to the equity court's

historic jurisdiction over foreign land, if it

can fix on the person who can do something with

regard to the foreign land in the jurisdiction and

I make the observation which I made y~sterday that

the cases that Mr Justice McHugh referred to,

principally AUGUSTUS V PERMANENT TRUSTEE, are

distinguishable because in AUGUSTUS' case, the

Court acknowledged and the parties agreed that the

choice of law for a voluntary settlement was

appropriately the same choice of law rule as the

contract.

CHASE MANHATTAN V BRITISH-ISRAEL BANK did not

decide the question. Over the page we make the point

.that it is conventional law that matters relating to

remedy are always determined by the lex fori and it

follows, we would submit, therefore, that where the

remedies are discretionary, as they are in a case of

this kind, there being equitable remedies, then, the

scope of the obligation is similarly governed by the

lex fori.

Now, turning to (b) on page 2, we would say - if I may just preface this by saying this: the standard

choice of law rule is that the appropriate choice of

law to determine, in respect of a transaction, is the

law that has the closest connection to it and, of course,

that is fairly easy in a contractual situation. It is

generally fairly straightforward in a question of a

foreign tort.

ClTS/1/SH	223	10/3/88
Wright(2)

MR TURNBULL (continuing):  What, however, is the principle

I would ask rhetorically behind that proposition of

private/international law? The principle, we would

submit, is that the Court is looking to the law

that best enables it to justly deal with the issues

which it must deal with to resolve the matter

between the parties. Now in a breach of confidence

action a key element is the public interest of

the forum. That, we would submit, there can be

no doubt. We would submit, therefore, as we have

in (b), that where an Australian court has to

consider the public interest of Australia, it can

only do so by reference to Australian law because

otherwise you could have a situation, for instance,

where you have a jurisdiction which has a law

regarding breach of confidence which recognizes no
public interest element at all. Is an Australian
court to ignore the public interest requirement by

applying the foreign law? And the answer we would

submit to that is certainly'nd'because whilst it

can be said that English law has a close connection

to Mr Wright and the British Government because it

was there that he learnt the secrets, none the less

the task the Court has to undertake is one that involves consideration of the Australian public

interest.

Now my learned friend in answer to that would

no doubt say that can be dealt with by the standard

doctrine of public policy	KAUFMAN and GERSON
and so forth.	The cqurts of the forum will not

enforce a foreign law if to do so would be contrary

to public policy. They will not enforc~ foreign

remedies, either, for similar reasons. Now that

overlooks the very integrated nature of the public

interest inquiry in the task a court has to undertake

in a breach of confidence action. Youse~, the

public interest, Your Honours, is just as important

an issue in a case of this kind -particularly in
a case of this kind- as is the interest and positions

of the two parties to the action.

The third reason flows from the second, is

based on policy, we acknowledge that, and is so far

as I am aware without authority. It is submitted

that Australian courts will not limit the right of

free speech in Australia concerning matters of

public interest other than in accordance with public

law.

ClT6/1/SR	224	10/3/88
Wright(2)

MR TURNBULL (continuing):  The American courts would not limit

free speech in America, other than in accordance with

the first amendment, part of their fundamental law.

No more so should this Court. The principles

regarding free speech are fundamental to any

democracy and no democracy can subordinate those

principles to which it adheres to the principles of

another country. Put another way, a court of

conscience should apply its own conscience only, not

the conscience of other political systems.

Now, turning to a more mundane but perhaps more

fatal matter to the contention that the English law

is the choice of law, in this case there has been no evidence, formally or otherwise, given about English

law. Where a party does not seek to prove foreign

law the court assumes it is the same as the

lex fori, and I have referred to Dicey & Morris there.

It is very trite law. Therefore, in these

proceedings the Court must assume that English law,

be it in respect of contract or any other form of

obligation, is the same as that of Australia.

In a way that is an academic point because

my learned friend and I are agreed that in this case
they are the same, as a matter of fact, but if

Your Honours perceived any difference Your Honours would have to assume, none the less, that they were

the same as Australian law, because you have a very

real problem that Justice Brennan raised yesterday

with SCHERING's case. Is SCHERING's case sound law?

It is a controversial case. It has been criticized -

there are other references where it has been

criticized in journals and Mr Justice Kirby's

judgment, in addition to the Law Commission.	Now, is
that case part of English law?	That is a matter that

could be readily seen to be the subject of
considerable debate, cross-examination and argument.

It has not been argued, it has not been the subject

of evidence and, therefore, Your Honours are bound,

we would submit, to apply Australian principles of law.

_ The third point I make in this document relates

to the relevance of the English SPYCATCHER decisions.

I would say firstly that the only decisions which were of any guidance to Your Honours are those

decisions which deal with the final hearing.	The
interlocutory decisions are quite plainly

distinguishable on the facts and should not, we would

submit, be regarded.

(Continued on page 226)

ClT7/l/HS	225	10/3/88
Wright(2)

MR TURNBUU.. (continuing):  The English courts, Your Honours,

are not about to conclusively determine the nature

of the relationship between Wright and the UK

Government. It has been assumed throughout the

English proceedings that Wright acted wrongfully

in endeavouring to publish Spycatcher. This assumption

is inevitable given that no evidence was given by Wright; the English courts were privy only to one side of the story and the newspaper defendants,

most importantly, did not need, from a forensic

point of view, to justify Wright's position.

They wanted to distance themselves from Wright;

they wanted to be purer than pure. So, what the

English courts say about Wright's position is

irrelevant.

The English courts hav~,however, and presumably

will continue to discuss the scope of the obligation

of confidence owed by a confidant in the position

which, on the evidence before them, they understand
to have been held by Wright. Relevantly it is noted that all four judges who have dealt with

this final hearing have agreed that the absolutest

obligation claimed by the Crown is not sound in

law. They have all held that the obligation is

subject to the same criteria outlined in FAIRFAX. I would refer Your Honours to Mr Justice Scott's

judgment, if I could take Your Honours to my learned

friend's - if I may say, I have submitted to the

Court different versions of these unreported judgments

but I think my learned friend's are better editions,

if you like, so these page references are his.

If I could take Your Honours to page 48 of

Mr Justice Scott's decision. There is a heading,

"The Law and Duty of Confidence", and moving through

it quickly, His Honour refers to a number of -
I just refer Your Honours to page 53, it is a

very conventional treatment of the law of confidence and I say so with no disrespect to Mr Justice Scott. Page 53C, see the reference to the doubt he expresses

as to whether the relationship between Mr Wright and

the Crown is contractual and then a very important
passage begins at G where he refers to the argument

of the Crown:

The duty of confidence applied, he said -

that being Mr Alexander, the counsel for the Crown -

to all information, however apparently

trivial and however much, by reasons of

dislosures made by others, the information

might have beome publicly known.

ClT8/l/SDL	226	10/3/88
Wright(2)

MR TURNBULL (continuing):

I am unable to accept that such an extreme,

absolute approach is correct.

The proposition may be tested by a number

of examples, some more fanciful than others.

Sir Percy Sillitoe's autobiography -

Sir Percy Sillitoe, Your Honours, was a former

Director-General of MIS -

was published with the permission of the

authorities. It contained information about

the workings of MIS. Could it be argued that,

notwithstanding the publication of the

autobiography, other MIS officers were under

a duty not to disclose the information therein

contained? I think not.

And then .he makes the first of Mr Justice Kirby's

canteen menu point and if I just take Your Honours

over the page to page 55 His Honour there refers

to the "public accessibility" question and the

importance of the information being not publicly

accessible. And then at page 56, at C:

The question, therefore whether the public

assessibility of the information sought to

be protected is fatal to an attempt to restrain

the use or disclosure of the information ..... cannot

be answered in any absolute terms. The answer

will depend upon the circumstances of the

particular case.

Now, with respect, we could not put it any better

ourselves. That is precisely the proposition of

law that we are seeking to mount.

(Continued on page 228)

ClT9/l/ND	227	10/3/88
Wright(2)

MR TURNBULL (continuing):  And you can see at page 57 he

adopts what Mr Justice Mason said and then he

refers to JONATHA.~ CAPE and so forth.

Now, just pausing for a moment to foreshadow

a very important issue - actually, I will come

to that, if I may, later. I beg your pardon.

Can I iust take Your Honours now to the Court of

Appeal· decision; Sir John Donaldson at pages 4 to 7.

Sir John Donaldson, it may be fair to say, takes

a more restrictive view of free speech than do

the other members of the Court of Appeal but he,

none the less, summarizes the law on confidentiality

in terms which involve the confidant having a
discriminating obligation, that is to say a contents

oriented obligation. And that goes through to

pages 4 to 7. If I could just refer to you to

point (6) on page 6:

The right will also be lost if the information, which is subject to a right of confidentiality,

is published to the world by or with the consent - a very important concept -

the consent of the confider, but it will not

necessarily be lost -

he does not say it will not be lost, he says, "it

will not necessarily be lost" -

if such publication is by or with the consent

of the confidant.

Now, Lord Justice Dillo~ at pages 56 to 58,

expresses similar sentiments although not in quite

the same detail. He, again, refers to JONATHAN CAPE

and FAIRFAX and then, finally, the most extensive

analysis in these judgments is by Lord Justice Bingham

at page 80. And you can see, Your Honours, at

point Don that page, His Lordship says:

It is thus an essential ingredient of the

duty, and of any cause of action arising on
breach of threatened breach, that the information
should, when imparted, have been and should

remain confidential.

And he refers to SALTMAN and a number of other

cases and at page 81G:

The duty of confidence is not absolute

and comprehensive.

I do not think I need take Your Honours to the

detail of it.

ClTl0/1/AC	228	10/3/88
Wright(2)

Now, all of those judges recognized the need

for the Crown to show detriment and they all

recognized the iniquity defence. Now, all of the

iudges, however, describe Wright as having been

1n breach of his duty; some said "in flagrant

breach of his duty". This expressed opinion is, as stated above, based on evidence only from the

Crown. Then English judges did not see Wright's

evidence in New South Wales. This Court alone

is now seized of the issue of Wright's own position.

This Court alone has the evidence and it alone

can decide whether Wright has breached his obligations,

if any, and, indeed, if they are enforceable.

Even if, therefore, the relevant choice of

law for the obligation's scope is English law the

English decisions are only relevant in defining the scope of the obligation and are irrelevant

to determine whether Wright breached that obligation.

Now, can I take Your Honours back again - I apologize

for this~ to page 74 of Mr Justice Scott's decision.

Now, Mr Justice Scott having stated the law earlier,

as we have seen, applied it to Mr Wright as he

understood it. He said he was:

in clear and flagrant breach of the duty of

confidence.

He refers to Sir Robert Armstrong, and then over the page he says:

Mr Wright's duty of confidence would

not extend to information of which it could

be said that ..... the public interest required

disclosure. Nor, in my opinion, would the

duty extend to information which was trivial
or useless or which had already been disclosed

under the authority of the Government.

(Continued on page 230)

ClTl0/2/AC	229	10/3/88
Wright(2)

MR TURNBULL (continuing):

Sir Percy Silitoe asked for and

received authority to publish his

memoirs. Mr Wright did not ask for

any comparable authority ..... What .....

he would have been permitted to publish

if he had done so, is a matter of

speculation.

Then he goes on to say what the :rPsult would

have been if it had been subjected to judicial review

is speculation and one may say that the proceedings

in this country have in fact been that process

of judicial review in substantive terms. Some

parts of the contents of Spycatcher may be capable

as being described as "trivial" or "useless". What

the result would have been if Wright had published

only those is speculation. Some of them contain

allegations of wrongdoing and so forth. Many

of the allegations contained in Spycatcher had

appeared in previous published works. What would

have been the position if Wright had confined
himself to repeating those is another matter of

speculation.

Now the facts are in these proceedings that

when Wright presented his r_nanuscript to the government

in February of 1986, he asked the British Government

to nominate the passages which it said were

damaging. It said, everything that relates to your

years of service with MIS is objected to. So the

government failed to apply the very discriminating

criteria which the courts of England have said

should be applied. Now Wright never said, and I will

take Your Honours to his evidence, he never said, "I

will publish this book willy-nilly". He said to the

British Government, "I have written a book that I

believe conforms with these principles of detriment,

public domain and so forth.	Now you tell me where
I am wrong".

Now it is obvious that minds will differ on a

matter like that and it is obvious that in a normal

situation there will be toing and froing, and I will

take Your Honours to cases in England and America

where that has been done, and the parties will

resolve on a list of objections and if they cannot

resolve them they may take them to court.

GAUDRON J:  Do you say the failure of the British Government

has any consequence for the granting of relief

otherwise available in these proceedings?

MR TURNBULL:  I would submit that their failure is absolutely

fatal, Your Honour, because the law correctly stated

obliges a government to apply discriminating criteria.

ClTll/1/SR	230	10/3/88
Wright(2)

They failed to do so. The defendant in good

conscience applied them to his own satisfaction and

when the plaintiff was asked to parley it refused

to descend into the level of particularity. Now

the trial judge was placed in an impossible position,

if I may say so, because he was not even given the

mechanism by which he could undertake a blue

pencilling exercise. Mr Simos presented no

evidence, from his side, which would have helped the

judge in a blue pencilling exercise. Mr Simos

did not say, "Well, if we are wrong on the absolute

obligation, Your Honour, we rely on FAIRFAX and

here are the particular passages which we think are

particularly objectionable." There are some
passages in this book, and this is acknowledged by

Armstrong and Codd, that nobody could object to and

one only has to look at it to see, there is some

material that would be unobjectionable for the reasons

articulated by Mr Justice Scott.

Now when this matter came, if I just may go into

a little bit of history, when this matter came to

the Court of Appeal on the first application for an

invited Mr Simos to seek to strike out

interlocutory appeal from a discovery order, both argument,

the public interest defences. That is to say, to put his absolute obligation to the test and if he

failed on that then at least the parties would know

that they were talking about a FAIRFAX obligation,

you would not have this problem of ships passing in

the night. Mr Simos declined to do that, and I

do not think my learned friend would disagree with
this, but if it is in issue I can take Your Honours
to the transcript of the Court of Appeal on that

occasion.

(Continued on page 232)

ClTll/2/SR	231	10/3/88
Wright(2)

MR TURNBULL (continuing):  So this was a very, very live and

troubling issue at the trial and the failure to come

into the particular detail to join battle on these

issues must be fatal and it should certainly be fatal

for special leave. Why should this Court undertake

an exercise applying principles which the British Government has expressly disavowed by the way it

has conducted the litigation? Now, that is all I

wanted to say about that.

If I cou1dmove now to page 39 of our submissions

which deals with the contents of Spycatcher.	Could
I ask Your Honours to take confidential volume No	1
which contains Wright's unexpurgated affidavit.	I

shall not read any parts of his affidavit which were

expurgated in open court.

MASON CJ:	No.
MR TURNBULL:	But it is a lot easier to look at it in toto

rather than in the censored form it appears in the

open transcript.

MASON CJ: What is this going to; Mr Turnbull? Can you

indicate in advance what we should be

MR TURNBULL: This goes to detriment. What I am now going to

deal with - there is a passage called'recapitulation",
but I was intimidated, from your remarks yesterday,

to deal with it, but if I may do that.

MASON CJ: Yes.

MR TURNBULL:  Assuming, just going to paragraph 10.3 on page 38

of my submissions, the appellant has persuaded the

court - I will just start reading from 10.1. The

respondents have sought to establish super-obligations.

We have said they do not arise in law or in equity.

We say that if they do arise they amount to an indirect

enforcement of penal or public laws. Now the appellants

did not plead a FAIRFAX obligation. They claim it as

a fall back relying no doubt on section 63.

that these pr.inciples, on the facts of this case, permit We submit

Wright to publish the book.

The question therefore arises that assuming the appellant has persuaded the Court that a FAIRFAX

obligation does subsist the issue is whether on the

evidence the appellant has demonstrated the information

is still confidential and that its publication would

cause real detriment.

Now, I do not propose to take Your Honours to

swathes of evidence but my learned friend has made

some very fundamental submissions to his case about

the evidence and it is of necessity I must refer to it

as I proceed. So, just setting this part of the argument

up, I want to take Your Honours to what the evidence is

CIT-12/ 1 / JM	232	10/3/88
Wright(2)

about Spycatcher itself, the contents of Spycatcher,

because after all that is what this case is about,

we submit. That is at page 39.

Now, the appellant's submissions, and indeed

Sir Robert Armstrong's evidence in-chief, does not

deal with the book at all, in any particularity at

all. Spycatcher is not a revelatory work. Wright has

made it very clear that there are no secrets in the

book. In his affidavit he divides the information in

the book into four categories: technology - and I

give Your Honours references to the paragraphs; operations;

counter-espionage investigations and his time as a

personal consultant.

Now, if I could take Your Honours to paragraph 14

of Wright's affidavit, which is at page 96 of

confidential volume 1. Wright was not cross-examined

on any of this evidence. We had a no BROWNE V DUNN

arrangement but none the less he was not cross-examined

on it. The trial judge accepted this as did Justice Kirby.
You can see that what he says:

I have taken great care in my book not to disclose anything which in my judgment as a professional

intelligence officer might damage national security.

Now, he then refers to technology and in considerable

detail explains why the references to technology in

his book are all absolutely obsolete and the best

example of that would be that he - there is a lot

of material in his book about means of detecting illegal
radio transmitters. The technology for detection was

predicated on the technology of a valve radio which

ceased to be used even by civilians, let alone

il;ltel.ligence services, more than 20 years ago, in

fact in the early 1960s, and he gave evidence of

this.

(Continued on page 234)

CIT 12/2/ JM 233 10/3/88

Wright(2)

MR TURNBULL (continuing):  Now that information is

unquestionably obsolete. Sir Robert Armstrong

said, "Oh, well, if you refer to old technology

a foreign government may be able to infer the

development of new technology". It is preposterous
to say that if you see a valve radio there, you

can, by looking at that, infer the development

of microcircuitry - and Wright makes this point -

any more than you can infer an Flll from the design
of a Spitfire.

Going over the page to page 40, 11.3 of my

submissions, Your Honours, Sir Robert's evidence

constituted a list of criteria by which a book

of this kind could be judged if a blue pencilling

exercise was to be performed but none was done.

Wright deals, in his affidavit, with every point

of detriment referred to by Sir Robert. For instance,

Sir Robert makes a great point of saying it would

be damaging if the names of informants of MIS were

disclosed. There is no issue on that. Wright

says there is only one informant of MIS mentioned

in his book who is not already publicly known and

his name was a pseudonym - only one and his name

ws a psyeudonym. So it was of no assistance whatsoever

and we were not even asked to take it out.

Sir Robert refers to the problem of identifying

defectors. Fair enough. No defectors have not been mentioned in the book who are not publicly

known and all but two have written their own

authorized life histories. Referring to Golitsin

and Goleniewski is hardly going to tell the Russians

anything they do not know. Their life stories

are available at any bookshop. The premises mentioned

are all well known as such and there was only one
person named in the book who was a serving officer

and, according to Sir Robert, he was about to retire

anyway.

So in practical terms, there are no serving

officers mentioned in the book. If you go to

page 17 of Wright's affidavit, page 108 volume 1,

confidential volumes - and I do not think my learned

friend will object to my reading this because the

book is now in the public domain. He says - this

is at point N:

the events in my book, almost without exception,

are at least twenty years old, except for

certain information which is in the public

domain, such as the conspiracy to subvert

the government of Harold Wilson.

And if Your Honours could go to page 110 he refers

to the fact that:

ClT13/l/ND	234	10/3/88
Wright(2)

So far as individuals are concerned most are

now, sadly, dead.

He refers to the point I made earlier. Then at

point H, on page 110, he says:

Nonetheless we have always offered to remove the names of any person whose identification

in the book would cause any real problem.

So the evidence, therefore, Your Honours, consisted

of Robert Armstrong, and to a lesser extent

Michael Codd, raising possibilities of detriment couched in general terms and the respondent providing

detailed and particular evidence rebutting it.

The appellant took a conscious and deliberate decision

not to mount any case on particular items of
information. It is simply too late for the appellant
to argue that this or that piece of information

in the book was not in the public domain at the

time of the trial or could cause detriment.	The
absolute case of the appellant is either right or it is wrong and if it is wrong his case, we
would submit, must fail.	He cannot claim a fall-

back position since he has provided no evidence

to support it.

At page 41 of our submissions I refer to a

very important passage of the cross-examination

of Armstrong. The question is:

Your affidavits do not particularise

particular passages or secltions of the book

and relate them to particular sorts of

objection do they not? A. No they dont.

There is a general description of the kind

of objections that would apply.

(Continued on page 236)

C1Tl3/2/ND	235	10/3/88
Wright(2)

MR TURNBULL (continuing):  Question:

Given that it may well be that

His Honour would have to consider a

blue-pencilling job, do you wish to
give His Honour ..... particular details

of particular passages in the book to

which you object for particular reasons?

A. No. I don't wish to do that, Mr Turnbull.

I rest on the case that has been made in my

affidavits on the general breach of duty

of confidentiality and the detriment that

is done by publication by an insider or

former insider. Whether material is

material in the public domain or other

channels or whether it is not.

In those circumstances it is hardly surprising,

we would submit, that both Justices Powell and Kirby

reached the conclusion that the book did not contain

any material likely to cause detriment to the

appellant. Mr Justice Street purports to reach a

different view on the facts, and I say purports

because it appears to have been made without any

consideration of the wealth of public domain material.

Indeed, just half-way through the appeal, referring

to page 122 of the Court of Appeal transcript, the

Chief Justice said he was hoping not to have to read

the first 200 pages of Mr Justice Powell's reasons,

which, of course, contain reference to all the public

domain material. It does not appear in his judgment

there is any evidence of him having done so.

He accepts the insider argument without question

and appears to rely for its assessment on the

dust-jacket of the American edition which was (a)

not in evidence, and (b) not published by or with

the authority of either respondent.	Now, if I could
take Your Honours to page 1502 of volume 7.	I am
reading now from line M.	He says:

Sir Robert Armstrong was subject to a

lengthy cross-examination. In the course

of that he made plain that he was not

prepared to descend to specify particular

parts of the contents of Spycatcher .....

The concern was essentially of a

class nature -

Then he says:

It should be noted, however, that the class

was not merely delineated as an autobiography

of a retired officer. It was an

autobiography written in reliance upon

knowledge and information acquired in the

ClT14/l/HS	236	10/3/88
Wright(2)

course of that officer's service ..... not
of mere personal and non-professional
activities, but accounts of actual MIS

operations.

Now, one may well ask how on earth could MIS complain

about an autobiography of a former officer that

contained no reference to MIS.	There is no point
being semantic about it.	The claim of the British

Government is a class claim and the class is any publication by a former officer about his work.

So when Sir Laurence says at E:

It is an objection to a publication -

This is on the following page, I beg your pardon,

page 1503 -

It is an objection to a publication within that class that in fact contains,

as does Spycatcher, a wealth of

confidential information.

He is, with respect to the learned Chief Justice,

mistaken in saying it is anything lesser than a class

claim and there is no basis for saying it contains a

wealth of confidential information. The one thing

that is made perfectly plain is that unless you give

confidential a meaning totally at odds with its

normal English dictionary meaning, there is nothing in Spycatcher which is confidential. So you see,

when Sir Laurence uses the word confidential he means

confidential in Mr Simos' lexicon, that. is to say

something is confidential if it is published without

authority and would cause detriment in the manner

argued by my learned friend.

Mr Justice Street refers to Sir Robert's evidence

as a monolith.	Now, I have critized that metaphor.
I would say this about the monolith.	Monolith comes

from the Greek word monos lithos, one rock or one stone,

and if it is a monolith, then that is the only rock

upon which the appellant's case is based and upon	the Court's assessment of that rock the case will
succeed or fail. Sir Robert's evidence was on a
number of key matters proved in the course of the
trial to be quite mistaken. Accepting he was at all
times truthful and, of course, at the trial it was submitted forcefully that he was, in fact, lying,
it must be concluded that those who were responsible
for briefing him in London failed to properly instruct
him, either deliberately or carelessly. So if he did
not commit perjury he was either a proxy for a
perjurer, or he was the vehicle for carelessness of the highest order.

C1T14/2/HS	237	10/3/88
Wright(2)

MR TURNBULL (continuing):  You can see, Your Honours, that

I have referred at page 43 to passages from

Mr Justice Scott's decision and the page references

there, where I have 25, if Your Honours could insert 23 and where I have 28, if Your Honours could insert 25, you will then have it cross-referenced to

Mr Simos' coplf ..

Now, what Mr Justice Scott, there, is scathing

criticism of the representative of a government.

His reasoning in respect of Their Trade is Treachery is described as shallow and unconvincing and the

judge observes that Sir Robert Armstrong did not

give the true facts to the court in Sydney,

presumably because he was not told them, accepting

he was honest and even now, the English judge doubts

whether the courts have been told the full story.

Now, the implications of that for the monolith, implications unconsidered by Sir Laurence, are quite

fatal because one must bear in mind that in cases

like this where a government comes to court and says,
"You judges do not know enough about national security

and spies to make any sensible decision. Leave it to

us". When a government says that, it takes on a very

high responsibility. It takes on the responsibility

to be candid, to be careful and to be profoundly fair

and not to act like a sort of a self-interested

litigant may occasionally do. It has to put forward

the full case and what we have in this case is a

situation where a representative of a government

puts forward a case which was proved on a number of

issues to be false. Now, there is no proposition

harder to test in a trial than a general and

hypothetical one. The case of the appellant on

detriment is general and unparticularized, listing

possibilities rather than facts. It asks us to

take them on trust. Now, on particular matters

which can be checked, Sir Robert's evidence has

been shown to be false.	My learned friend would
say it was honestly false and I do not cavil with

that for the purposes of these proceedings, at this

level but if it was honestly false either someone

in London knew it was false and was allowing him

to lie as a proxy if you like, or there was

carelessness of a huge magnitude. So the Court

then has to ask whether the more general judgments

and opinions in Sir Robert's evidence were formed

with similar carelessness. This is rather like a

situation where a trial judge is faced with an expert

witness who gives evidence of general opinion about

the prospective medical matters relating to an injured

person. He says he will live for so long. He will

suffer such discomfort and so forth and these are

general things which are hard to test. If he is

proved to be wrong repeatedly on more specific

matters, the court will inevitably give much less

ClT15/l/SH	238	10/3/88
Wright(2)

weight to his more general and untestable matters.

Now, that is precisely what has happened to

Sir Robert Armstrong and to the British Government's

case in these proceedings and that fact cannot be
ignored or swept under the carpet because that is,
as Sir Laurence Street said, the monolith upon which

this case is based.

Now, Miss Hughes reminds me that Sir Robert is

now Lord Armstrong. Well, I think I can continue to

refer to him as Sir Robert. Turning now to another

matter, Your Honours, that is part of this detriment

issue, this is what my learned friend describes as

the non-contents detriment claim. I am now at page 44

of our written submissions. It is plain we say from

the pleadings that the book contains no information
of any substance which has not been previously

published. Indeed, the appellart:s failed to

particularize it. So that the appellant contends

that information is not in the public domain unless it has been published with authority and goes on to

argue that because Wright was an insider, the

publication of information by him gives rise to new
detriment even though is has previously b~en

published by an outsider.

(Continued on page 240)

ClT15/2/SH	239	10/3/88
Wright(2)

MR TURNBULL (continuing): In paragraph 20 of the statement

of claim, the plaintiff says in respect of

information in the book previously published by

a person who was not an officer or former officer:

the plaintiff relies only upon the

detriment -

caused by publication of that information by such

an officer or former officer.	And, as you can see in
12.2, I refer to the balance of that pleading.	Now

at 12.3, common sense dictates, Your Honours, that

there is no clear line between insiders and

outsiders in terms of accuracy, authority, veracity

or indeed any other relevant criterion and

authoritativeness will always depend upon many

different factors, and I have set out some of them

there:  a level of sensitivity; the apparent or

inferrable seniority; the writer's ability to
cross reference and cross check information;

amount of sources; writer's ability to amass several

discrete portions of data into a coherent and

consistent mass of information. And this proposition

was,of course, accepted by both Mr Justice Powell

and Mr Justice Kirby.

Now, Sir Robert Armstrong, in one answer in

his cross-examination, actually agreed with this and

if could take Your Honours to volume 2 of the appeal

books, page 311K, the question beginning "I appreciate

that". Now what we were discussing there was

the allegation in the book that British intelligence

had conspired to assassinate ::he President of Egypt,

Colonel Nassar. That allegation had been published

prior to the trial by Mr Dale Campbell Saivers, MP,

in the House of Commons. And you can see there

that the witness states that the republication of

that allegation in Wright's book would:

only be damaging if there was any

substantial measure of disbelief or

uncertainty about the authenticity of the matter.

So what the witness is acknowledging there is

what common sense dictates, namely, that there may

be additional detriment if there needs to be given

extra authority. Now one of the curious things

about Wright's position, and I take Your Honours

back to the submissions at page 46, is that

Sir Robert conceded, and I have got the references there, I will not take Your Honours to them, that

outsiders differ in terms of credibility, he

agreed that Chapman Pincher had a high reputation

for having good information and for some accuracy.	He
agreed Pincher had good sources and you can see
the question:

ClT16/l/SR 240 10/3/88

Wright(2)

You would agree with me that some

outside authors speak with considerable

authority? A. Certainly they do so

and certainly they are recorded as

doing so.

So it is a question of fact in the particular

circumstances of the case, there is no absolute

rule. Now I refer there to "a matter of trust", which

is a very important element in the public domain

defence which was written by an outsider and since

not an officer of MIS, but clearly obtained
extensive inside sources, and of course that book

was taken to court and a blue pencilling exercise

was performed and agreed on. And I will show

Your Honours the relevant exhibits which demonstrate

how that was done. Now 12.6, Sir Robert agreed

that views differed about the extent of Soviet

penetration in London and he agreed that at the

end of the day conclusions were much a matter of

judgment. He agreed, you can see the reference

there,that the thoroughness of a historian's endeavours
lends it greater authority and he agreed that

Pincher and West were both people who have made it

clear they have spoken to a number of inside

sources.

(Continued on page 242)

ClT16/2/SR	241	10/3/88
Wright(2)

MR TURNBULL (continuing):  One of the scholarly works, more

scholarly works I should say with respect to the
others, on espionage is Secret Service, that is

exhibit 2i. Sir Robert agreed that Dr Andrews

was a respected academic historian, a fellow of

Corpus Christi College at Cambridge, a recognized

reputable historian and had a reputation for being

more likely accurate than not. Now, what more

could be said about any writer, insider or outsider?

It is plain on the evidence that very few

commentators would say that much about Peter Wright,

in fact, Mr Wright seems to be more criticized

than many of the professional writers on this area.

If I refer to Nick Davies articles which were exhibit 17, that information was, according to

Sir Robert, provided by an insider, probably

Michael Bettaney who was convicted of spying.

Refer to the programme by Cathy Massiter, MIS's

Official Secrets, which is exhibit 7. There is

a transcript of that programme, I think the video

is actually with the Court if Your Honours wish

to see it in the flesh, as it were. That programme

was a report involving a lengthy interview with

a woman who had retired from MIS within the year;

it contained detailed up-to-date information.

That was a programme that Sir Robert said they

did not seek to restrain it because it had already

been shown to some MPs. So the public domain

issue was obviously foremost in his mind then,
but a different rule seems to have been applied

to Mr Wright.

Now, I refer there at 12.9 to a number of

other insiders. You have Sir Percy Sillitoe publishing

his memoirs; Jock Kane broadcasting an interview;

Tony Motion; Peter Wright, himself; Cathy Massiter

and then there is the book Conspiracy of Silence,

which is also an exhibit, including attributed

interviews with over 24 insiders. I refer to

exhibit 21 - - -

BRENNAN J:  Is this inviting us to make some findings of

fact?

MR TURNBULL:  Well, my learned friend is inviting Your Honours

to make a finding of fact contrary to the findings

made by Justices Powell and Kirby and what I am

saying is in rebuttal of that; demonstrating to

Your Honours, I trust- I hope the point is getting

across- that you cannot apply an absolute rule.

Now, Your Honours, I am inviting you not to make

any findings of fact by revoking special leave.

But, unless my learned friend's super-obligations

are right I would submit that the Court cannot

C1Tl7/l/AC	242	10/3/88
Wright(2)

avoid, unless it accepts the findings of fact made

by Justices Powell and Kirby going into the same

amount of detail. That is why the case is not

appropriate for special leave on the FAIRFAX issue.

The application of the FAIRFAX principle is not

a matter for this Court.	The revision of that
principle may well be.

Now, I make the point, Your Honours - reference there to Thucydides, it is 12.11, I will not read

that. And if I could just take Your Honours,

finally in this section, to an important passage

in the cross-examination which is set out at the

bottom of page 49 of these submissions:

Q. Your affidavits are a long argument about

why a book, this book, should not be published,

is that so? A. Why books of this kind should

not be published.

So a class claim, once again.

Q. So you would agree with me that your

affidavits are general propositions about

books of this kind rather than particularly

directed at this book? A. They are propositions

about the damage likely or possible to be

done by books of this type published by former

members of the Security Service.

Q. Indeed, if for example, Mr Arthur Martin -

he is another former security officer.-

proposed to publish his memoirs you would have

very little difficulty in using the same affidavits

word for word in a case against him; is that

so? A. Many of the same arguments would

no doubt apply.

Q. I put to you all of the same arguments

would apply? A. I think they would, yes.

Q ..... In preparing your affidavits you have

had no regard to the particular information

in Mr Wright's book? A. Some regard was

had to that in deciding whether to bring these

proceedings.

But just pausing there, Your Honours, "some regard

was had". So, the issue that FAIRFAX directs a

court to have regard to, namely, the particular

contents of a proposed publication, only "some regard"
was had to that in deciding to bring the case but no

regard was had to that in drafting the evidence.

ClT17/2/AC	243	10/3/88
Wright(2)

MR TURNBULL (continuing):  And that is precisely what the

witness says in the next answer:

Q. But no regard was had by you

to that, the contents of the book -

in preparing your affidavit. A. I was dealing

mainly with general propositions.	I was not
addressing the particular matters.

And I make the conclusion there at the bottom of 50,
if the affidavits of Sir Robert are not addressed
to the contents of the book, then they are not

relevant to the task of this Court.

Your Honours, if I may now turn to an important

issue, this issue of authority and acquiescence

because this is something my learned friend has

put in the forefront of his case. We submit, firstly,

that whether something is in the public domain

is just a question of fact.	I will not repeat the
argument on that.

The appellant, however, has submitted that

if material reaches the public domain without being
authorized by the confider it can none the less

not lose its necessary quality of confidence.

That proposition, in its generality and absoluteness

is plainly wrong, with respect. If a journalist

stole a confidential cabinet submission, published

it in facsimile form, it would be a little late

to contend it had not lost its necessary quality of confidence. In other words, as all the cases

and all of the judges below have said, a sensible

approach has to be taken to the facts of each case.

A factual approach has to be taken.

The British Government refuses to officially

admit the existence of MI6 although it did slip

out in one answer of Sir Robert's but that is their

official position. So, can it really be said that

the existence of MI6 is a secret? Certainly, none

of the judges below thought it was. It is referred

to extensively in their judgments.	Does that put
it in the public domain?	The generality of my

learned friend's submission is misconceived. We

did not simply meet that argument by refusing it

in bald terms as I have stated there.

Much of the evidence in the trial was devoted to establishing that most of the prior publications

referred to in the consolidated particulars had

either been actually authorized by government,

like Sir Percy Sillitoe's book or the various

security comission's reports or had been acquiesced

in. And, of course, it is fundamental to our case

ClT18/l/ND	244	10/3/88
Wright(2)

that equity will not distinguish between a

confider who actively authorizes a publication

and one who knowingly sits back and allows it to

be published and, we would submit that must be

correct. I mean, equity would be retreating from

one of its most fundamental principles of not allowing

form to mislead it where substance is all too clear.

The two books - I am now at the bottom of 51 -

which contain the bulk of the prior publication

material are Trade is Treachery and Too Secret

Too Long. At the trial it was contended that those

two books were authorized albeit in a deniable

and covert fashion. Mr Justice Powell, on the

evidence before him then, declined to find

authorization. But he did find the government

had acquiesced in their publication, as did

Mr Justuice Kirby. Mr Justice Street did not deal

with this specifically and, of course, neither

did Mr Justice McHugh.

Trade is Treachery is probably the most

important book in the case other than Spycatcher itself because it contains the bulk of the prior

publication material. The bulk of that material

was provided to the author, Chapman Pincher, by

Mr Wright. There is no issue about that. My learned friend says equity will not allow a man to profit

by his own wrong and he says that Wright acted

wrongfully in providing that information to Pincher.

The evidence discloses that he did no such thing

and the book was, in fact, authorized or consented

to in a way which is not materially different.

Your Honours, there is a bit of history here

if I could take Your Honours through it. My learned

friend will pull me up no doubt if I am wrong.

I will not take Your Honours to any transcript

references unless there are what we could call

contentious inferences. In 1979 a man called

Andrew Boyle published a book called Climate of Treason which effectively exposed Anthony Blunt as having been a Soviet agent. As a result of

that book Mrs Thatcher made a number of statements

in the House of Commons concerning Blunt and they are

annexed to Sir Robert's affidavit.	Your Honours
can see them.

The Blunt expose caused a great political

scandal in Britain which was a grave embarrassment

to the government. So agreed Sir Robert.

MR SIMOS:  Your Honours, if I could just say this and then

I will remain silent: these books were put in

on the express basis that they were not tendered

as proof of the facts referred to in them but

ClT18/2/ND	245	TURNBULL	10/3/88
Wright(2)

(Continued on page 245A)

merely to show that they had been published. of the facts and therefore we submit it cannot

be used for that purpose, Your Honours.

MR TURNBULL:  With respect, Your Honour, I am not relying

on what was in the books as proof of their contents.

Everything in this paragraph - the references to

transcript, are all references to

Sir Robert Armstrong agreeing with these

propositions. So I do not have to rely on the

contents of Climate of Treason as proving this

or that about Blunt.

(Continued on page 246)

ClT18/3/ND	245A	10/3/88
Wright(2)

MASON CJ: Now, Mr Turnbull, is it necessary to go through this?

After all, it is recorded here in detail and I gather from what you are proposing to do, you are not

proposing to do much more than just read it out to

us.

MR TURNBULL: Well, Your Honour, if I could - if I may say so,

I am as conscious of the need to be economical as,

I trust, the Court is. It is necessary to go through

it quickly.

MASON CJ:  I doubt if you are. No one could be as conscious

of it as we are but is it necessary to do it? After

all, we have it in written form.

MR TURNBULL: Well, Your Honour, it is necessary to take

Your Honours - - -

MASON CJ:	We will be reading it.	You need have no concern on
that score.

MR TURNBULL: Well, Your Honours, if I could - - -

MASON CJ: Indeed, I have already read it.

MR TURNBULL: Well, if I could simply flick through it quickly.

I mean, my learned friend has spent close to an hour

on Their Trade is Treachery without mentioning any

of the evidence and, having undue regard to that

would be likely to, I would submit with great respect

to my learned friend, mislead the Court in analysing

it. It is very important. I will just be very brief,

if I may.

MASON CJ: Yes.

MR TURNBULL:	Now, the short point is that following the Blunt expose, there was a great deal of speculation as to
fifth, sixth, seventh, eighth men and, of course,
there was this great whale out in the bay, namely, that Sir Roger Hollis, the head of MIS himself, had
actually been investigated twice as a potential,
suspected spy for the Soviet Union.  Now, there is
a letter that is exhibit 11, written by one
Jonathan Aitken, MP, to Mrs Thatcher in 1980 wherein
Mr Aitken warns the Prime Minister who, at that stage,
had been recently elected, of this whale in the bay
and says, "You must consider making some sort of
public statement. Clean the stables". After all, of course, these spy scandals are scandals of
previous governments.  They could not be laid at
the door of the new conservative government.
Mr Aitken is a conservative MP and not a
backwoodsman as Sir Robert agreed.

DAWSON J: That categorizes his part in it but it does not

categorize the part, really, of the foreign government
but that leads me to ask you what is the reason for not

enforcing an exercise of sovereign rights within the

country?

MR SIMOS: Well, Your Honours - - -

DAWSON J:

Is it because it gets you into an area where there

may be conflicting policies, a political area which

the Court does not usually operate in?

MR SIMOS:  May I answer Your Honour by going to a passage here

which~ I believe is relevant to what Your Honour is

asking me. It is, again, in Dicey and Morris at

page 108,and this, I submit, gives the flavour of

the sort of thing that is involved when people are

talking about assertions of sovereign authority. It

is the last paragraph on page 108:

(Continued on page 307)

ClT59/l/SH	306	10/3/88
Wright(2)
MR SIMOS (continuing):

The issue thus remains open for

decision whether the doctrine that penal

and revenue laws will not be enforced

extends to laws of a political or public

character. If the views of Lord Denning

are to be preferred, which it is submitted

they should be, the public laws involved

would include such topics as import and

export regulations, trading with the enemy

legislation, price control regulations and

anti-trust legislation.

Now, could I pause there to say they are all cases

where the State is imposing obligations as the result of legislation. They are not consensual arrangements

between the sovereign and anyone else. That is what

is the essence, we submit, of this line of

country. May I read on - the learned authors say:

In practise probably the most important

rules falling within the category are

those which authorize governmental

interference with private property.

There is nothing of that nature here. There is a

purely consensual arrangement between Mr Wright and

the Crown and he undertook to serve and, it is

submitted, that that arrangement produced certain

duties on him. It is all voluntary. There is no

exercise of the foreign sovereign power really at

any stage, but certainly not at the stage where the

arrangement has come into existence and it is only

vested rights which are being sought to be

enforced:

In practice probably the most important

rules falling within the category are

those which authorize government

interference with private property, whether in the form of requisition,

nationalisation or confiscation. The

courts recognize the validity of a title

acquired under such rules if the

interference was valid and effective

by the law of the country where the

property was situate at the time when the

transference of interest is alleged to

have taken place.·

These interests, Your Honour, the benefit of these

obligations vested in the Crown at the time when

Mr Wright was employed voluntarily.

ClT60/l/HS	307	10/3/88
Wright(2)

MR SIMOS (continuing): There is no suggestion of anything

being done arising out of any imposed conduct,

any force, any authority exercised over Mr Wright.

Even at the time of the genesis of the relationship

there was nothing of that nature. And a fortiori

there is nothing now. And so we submit that that

is the sort of thing that these rules are talking
about and this case, one cannot say it is miles

away, but it is not within that category, in our

respectful submission.

Your Honours, I will not take Your Honours

to it,but Your Honours may not have in that bundle, but it was on the list of authorities we previously

gave to the Court, the article by. Mr Carter and

Your Honours will get the page reference from the

passage which I have quoted in these written

submissions. Your Honours, however, should have

in the bundle just handed up a reprint of two pages

of an article in the University of Chicago Law

Review.

MASON CJ:	Yes, we have that.
MR SIMOS:	Res judicata, of course, is not what we are talking

about but there is a footnote, Your Honours, on

page 336 in which the author says, if Your Honours

see it:

The Court did not so hold, however, since

it held the law in question not "penal".

The basis for the "penal" exception has

always been shaky. Judge Learned Hand
explained that it would be unseemly if laws

so central to one state's operation were

subjected to scrutiny to determine their

compatibility with another's public policy .....

but the insult seems far greater if the second

jurisdiction refuses to enforce the other's

law altogether as a matter of course.

(Continued on page 309)

ClT61/l/ND	308	10/3/88
Wright(2)

MR SIMOS (continuing): And I know that that proposition

is not given any greater authority by reason of

the fact that it is in the footnote of an author

by Mr David_ P. Currie, but it is, at least,

another manifestation of the same view. And,

Your Honours, I think it is not necessary to take
Your Honours to it - well, perhaps it is.

Your Honours, the case of MOORE V MITCHELL, from which the quotation from Judge Learned Hand

comes, is also included in that bundle that

Your Honours have and at page 603 it is interesting

to read the paragraph prior to the paragraph that

was quoted in GOVERNMENT OF INDIA V TAYLOR.

Judge Learned Hand says - last paragraph in the right-hand column of page 603, this is in the

report of the case of MOORE V MITCHELL, and that

name appears at the top of each right-hand page-

this is page 603 -

We must therefore decide whether a tax

lawfully imposed in a foreign state can be

collected by suit in a federal court sitting

in another state. Our jurisdiction is in

this respect no different from that of a court

administered is certainly not the law of	of the State of New York; the law to be or whether in such cases there is a common
law independent of the laws of any State.

Now, this is the passage we rely upon, Your Honours:

Generally, it is, of course, true that a liability

arising under the law of a foreign state will

be recognized -

so generally it will be recognized -

by the courts of another, and it is not here

relevant whether foreign liability is enforced,

or another, precisely similar, raised by the

law of the forum. A recognized exception

is in the case of criminal and penal liabilities.

And then the last three or four lines:

In some few cases, this exception has been extended to include revenue laws as well.

And then he goes on to say what is quoted.

ClT62/l/AC	309	10/3/88
Wright(2)

GAUDR0N J:	In relation to the passage which you drew to our attention, Mr Simos - - -
MR SIM0S:	Yes, Your Honour.
GAUDR0N J:	- - - there was, however, always the exception

that you could not implead a foreign sovereign.

MR SIM0S:	Yes, Your Honour.
GAUDR0N J:	Now, that seems to be in the same area that we

presently are. I mean I realize that a foreign

sovereign can invoke the jurisdiction but within

limits of course.

MR SIM0S:  Yes, Your Honour.

GAUDR0N J: There is then the other side that a foreign

sovereign cannot be impleaded which seems to suggest

that there is some principle about the interests

attaching to a sovereign not being litigated in

a forum other than that of the sovereign.

(Continued on page 311)

ClT62/2/AC	310	10/3/88
Wright(2)

MR SIMOS:  Yes, Your Honour, we would submit, somewhat

imprecisely no doubt, that if as the cases say,

what is involved can properly be described as

an assertion by the sovereign of his sovereign

authority and we submit for the reason - - -

GAUDRON J:  And not merely the protection of sovereign

interests?

MR SIMOS:  No, Your Honour, and I am indebted to Your Honour,

that is really a very appropriate, if I may say

so, way of putting the other point of view. This

does not involve the assertion of sovereign

interest, it involves the assertion of interests

which came into existence, or the enforcement of

interests, which came into existence in the

sovereigns own territory. And we submit that that

is not in any way inconsistent with any of the

cases, and in particular not inconsistent with
foreign public law. Your Honours, I will not
take Your Honours to it, but the other two
documents in that bundle are the decisions at

first instance and on appeal in the case of the

PROVINCE OF BRITISH COLUMBIA V GILBERTSON, in which

there is some discussion of Judge Learned Hand's
statement in MOORE V MITCHELL.

Your Honours,then the last paragraph deals with the other matter that Your Honour the learned

Chief Justice raised with me, that is WILLIAMS V

HUMBERT and without going to the decision, we

submit that the approach for which we contend is

consistent with that decision when it is put in

the way that it is in that last paragraph in

paragraph 17, and I think I have said in effect

what is there already, and we submit that if that

is a correct description of what is happening

in these proceedings then it is entirely consistent

with the approach of the court in WILLIAMS V HUMBERT.

Your Honours, the last thing I wish to do

if I may, is just give Your Honours a final

reference, it has not been on the list, but it

is another example of the courts having regard to

the views of the executive but in another context.

( Continued on page 312)

ClT63/l/SR	311	10/3/88
Wright(2)

MR SIMOS:  Your Honours, it is a case of RIO TINTO ZINC V

WESTINGHOUSE ELECTRIC CORPORATION, (1978) AC 548, and it concerned an application for letters

rogatory in relation to evidence or witnesses in

the United Kingdom for use in the United States

and - I am reading from the bottom of page 650,

it is only one paragraph:

The exception relating to security is

given statutory effect by section 3(3) of
the Act of 1975, but there is no statutory
exception for cases where the Government of

the United Kingdom considers that its

sovereignty would be prejudiced as in the

present case. Nevertheless I can hardly

conceive that if any British court, or your

Lordships' House sitting in its judicial

capcity, was informed by Her Majesty's

Government that they considered the sovereignty

of the United Kingdom would be prejudiced

by execution of a letter of request in a

particular case it would not be its duty to

act upon the expression of the Government's

view and to refuse to give effect to the

letter. The principle that ought to guide

the court in such a case is that a conflict

is not to be contemplated between the courts

and the Executive on such a matter: see

THE FAGERNES (1927) P 311, 324 per Atkin LJ.

And I will not read it but the same matter is dealt

with by Lord Wilberforce at page 616F over to

page 617. And Your Honours may I just say this

in conclusion, the very last submission I handed

to Your Honours in-chief about the American position

includes some material relevant to the question

when an American court will have regard to what

the executive says about matters of public policy and

matters of that kind. If Your Honours please.

MASON· CJ:  Thank you, Mr Simos. Mr Turnbull, it occurs to

us that we should offer you the opportunity of

responding to that part of Mr Simos' reply that

is based on the document that he handed up. That

part of his reply, of course, is expressly and

directly a response to a question that I put to

him in his address in-chief. Therefore, the Court

is extending you the opportunity of responding

if you wish to.

(Continued on page 313)

ClT64/l/ND	312	10/3/88
Wright(2)
MR TURNBULL:	Yes.	If could do so, very briefly, Your Honours.

I take it Your Honour is referring to this document

my learned friend has handed up.

MASON CJ:	Yes.
MR TURNBULL:	Your Honours, what my learned friend is inviting

the Court to do is to engage in an exercise

of ad hockery, that is to say,to draw an ad hoc

distinction between penal and revenue laws and

public laws and the other. Now, I would repeat the

submission that I made earlier, namely that the

Court has to look at a principle to justify this

exclusion and that principle can only be that which

the learned editors of Dicey and Morris stated it
to be, namely, that the courts will exclude the

operation, or refuse to enforce manifestations of

a foreign sovereign's authority within the bounds

of the jurisdiction of the forum. And Your Honours

are referred to the DEFENCE(VISITING FORCES)ACT as

an example of the proper way a foreign sovereign's

authority can be enforced. in this forum, tnat is

to say, by it being made enforceable by an act of
our soverign legislative process, parliament and

the executive.

Now, the difficu1ty with thP points that are

made on page 2 at point 10 is that my learned

friend is endeavouring to make a sword out of public

policy where it has no such power. Just as it is

not possible to say that because the publication

of material will cause detriment so it therefore

can be injuncted, no more is it possible to say

that because Mr Codd says that the publication of

this unauthorized book would be contrary to the

interests of Australia, it cannot be published,

it is simply not part of our jurisprudence to allow

that kind of executive opinion to be translated

into the force of legislation.

Now, one may ask this question about Mr Codd:

of action suggested ex post facto by Mr Justice Scott	let us assume that Mr Wright had taken the course
and had submitted his book for vetting to MIS and
let· us say that MIS had narrowed it down to 20 passage
which were in dispute and let us say that went
through the judicial process in England and MIS lost,
would Mr Codd still say that this book, still
unauthorized, should not be published in Australia
because an unauthorized book is contrary to the
interests of Australia, So those points in 10,
Your Honours, are only a weight, a counter, in the
scales of weighing the public interest. They do not ground a cause of action. And I would respectively adhere to what Mr Justice Dawson said with respect to the independence of rule 3 in Dicey and Morris.
It is - and until Mr Simos made these submissions

CIT6S/l/JM	313	10/3/88
Wright(2)

it had never occurred to me that it was anything

other than an independent rule expressing a particular

indenennent view sepRrate and distinct from the
view in rule 2. Unless there is anything that I

can assist the Court with, that is the extent of the reply I would seek to make to those matters.

MASON CJ: Thank you, Mr Turnbull. The Court will consider

its decision in this matter.

AT 3.53 PM THE MATTER WAS ADJOURNED SINE DIE

C· '

CIT65/2/JM	314
Wright(2)