Hogan v ACC & Ors

[2010] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S289 of 2009

B e t w e e n -
PAUL HOGAN
Appellant
and
AUSTRALIAN CRIME COMMISSION
First Respondent
THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION
Second Respondent
NATIONWIDE NEWS PTY LIMITED AND JOHN FAIRFAX PUBLICATIONS PTY LIMITED
Third Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 FEBRUARY 2010 AT 10.16 AM

MR J.T. GLEESON, SC: May it please the Court, I appear with MR F. KUNC, SC and MR P. KULEVSKI for the appellant. (instructed by Robinson Legal)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR D.F.C. THOMAS for the first and second respondents. (instructed by Australian Government Solicitor)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR T.D. BLACKBURN, SC and MR T. MALTZ, for the third respondent. Your Honours, may I say that as between the first and second respondents and ourselves we have agreed, subject to the Court, that I go before my learned friend the Solicitor‑General. (instructed by Blake Dawson Lawyers)

FRENCH CJ: That seems an appropriate course, Mr Jackson. Thank you. Yes, Mr Gleeson.

MR GLEESON: Your Honours, if it is convenient, I propose to deal first and briefly with the facts which are essentially common ground, save for two or three matters, then to go straight to the construction of section 50 and associated provisions and then to deal with the errors, particularly in the judgment of Justice Emmett.

In relation to the facts, your Honours will have seen that the ultimate subject matter of Mr Hogan’s proceedings, which is found at page 2 of the book, was an assertion that his documents had been wrongfully seized by the Australian Crime Commission by reason that they were the subject of client legal privilege. That proposition involved a further proposition that section 29 of the Australian Crime Commission Act did not abrogate client legal privilege.

GUMMOW J: I am sorry, page 2?

MR GLEESON: At page 2 is the claim that the Crime Commission “be restrained from using” what was described as “Privileged Material” and that they destroy it or deliver it up. The underlying claim was that section 29 of the Australian Crime Commission Act, which your Honours have, which authorised the seizure, did not abrogate client legal privilege. That proposition your Honours will not see in any of these materials. It was the assumption of the case and it followed an earlier concession by the Commission. If I could simply give the reference - it was in the decision of MM v Australian Crime Commission (2007) 244 ALR 452 at [30]. Accordingly, the two issues that ‑ ‑ ‑

HAYNE J: Sorry, what was conceded there?

MR GLEESON: That section 29 did not abrogate client legal privilege.

GUMMOW J: What is that citation again?

MR GLEESON: (2007) 244 ALR 452 at paragraph [30]. Accordingly, the two issues which were joined in ‑ ‑ ‑

GUMMOW J: So what was the nature of this proceeding in the Federal Court? It was an application for an injunction, was it, under – what is the jurisdictional basis?

MR GLEESON: It was a proceeding against the Commonwealth, accordingly under the ‑ ‑ ‑

FRENCH CJ: A matter arising under.

MR GLEESON: Yes, a matter arising under a law, namely that section 29 did not authorise a notice which extended to privileged documents.

GUMMOW J: So it fits in at least one and probably more heads in section 39B, is that the idea?

MR GLEESON: Yes. So two issues came to be joined: The first was whether the documents were properly the subject of a privilege claim and that would be a privilege claim at common law. Secondly, if they were, was that prima facie claim defeated by the Cox and Railton Case, the assertion that ‑ ‑ ‑

GUMMOW J: It was before Cox and Railton?

MR GLEESON: That is the way it has been referred to here. The assertion that the documents were sufficiently associated with something which involved a crime or a fraud to defeat the privilege. The court proceeded to deal with the case in two stages. The first stage determined that the documents were, prima facie, the subject of the privilege. The second stage involved the court proceeding to, as a matter of procedural fairness, make directions for the preparation of the trial on the allegations being made by the Crime Commission.

In the course of that stage of the proceedings the court did a number of things. The first was the direction for the preparation and service of what was called the inference schedule. Your Honours will find that in a supplementary book of materials at tab 1, and its evident purpose was to provide procedural fairness to Mr Hogan and ultimately assist the court to know what exactly was the allegation or allegations the Commission wished to have tried. We know a little more about the content of that inference schedule. At page 31 of the application book, at paragraph 17, Mr Rydon opposed – near the end – that:

the document contains allegations made by the ACC . . . said to derive in part from material filed on a confidential basis by the ACC which appears . . . to relate to [Mr Hogan’s] personal financial and taxation affairs.

That is a reference to the fact that the underlying evidence which the ACC wished to ultimately advance on that case was filed in court but was subject to confidentiality orders, such that much of it was not even shown to Mr Hogan. So the inference schedule served a procedural fairness function to enable the case to be articulated and prepared for, and was a summary of in turn material subject to confidentiality.

Your Honours, apart from the sentence I have just been to, with respect to the judges below, the best assessment of the confidential nature of the inference schedule was given by Justice Gilmour in the Full Court at two places – firstly at page 266, paragraph 83, and secondly at page 271, paragraph 107 and particularly at paragraph 107, Justice Gilmour correctly, with respect, analysed that the document had a number of confidential qualities to it, firstly being the product of the Commission’s own secret inquiries; secondly, summarising affidavits which themselves were subject to confidentiality; and, thirdly, confidence was protected between the parties by reason of the implied obligation at law. His Honour correctly cited this Court’s authority in Hearne v Street.

To those three confidential aspects to the inference schedule could I add but one extra one which is under the statute itself, section 51 of the Australian Crime Commission Act, officers of the Australian Crime Commission were required to observe secrecy in documents which were the product of performance of office save where the disclosure was in connection with the performance of a duty.

HAYNE J: It is a provision in form similar to that found in, for example, tax legislation. I think it was section 16 of the 1936 Act.

MR GLEESON: Yes. So in addition to the Harman obligation protecting confidence between the parties we would have submitted that an officer of the Commission would not be free to simply publish the inference schedule to anyone without fear of breach of this Act and that would be a matter that is such a threatened breach which could certainly be restrained by injunction at the suit of the Attorney‑General if there was a threatened breach of section 51 by an officer, and arguably at the suit of an individual whose information was being wrongly released. I simply mention that as a further underpinning of the confidential character of the inference schedule.

GUMMOW J: I wonder if anyone in the whole of this litigation has ever read R v Cox and Railton actually. Cox and Railton were two partners. They were not suing one another. It is in 14 QBD 153. Anyhow, you just referred us to treatment in the minority judgment which does not manifest any familiarity with the case.

MR GLEESON: Yes. Can I come back and I would like to deal with that shortly?

GUMMOW J: Yes, all right. It is throughout your submissions, too.

MR GLEESON: Yes, but perhaps it would be better to source the case sought to be made in relation to this Court’s decision in Propend as an allegation that where there was a sufficient colour of ‑ ‑ ‑

GUMMOW J: My complaint is about general level of competence, but go on.

MR GLEESON: If your Honour pleases. The point I had reached was that one step of the preparation of the case for a trial on these allegations was the service of this schedule. The second step was that the Commission was ordered to give discovery of documents.

KIEFEL J: Forgive me for interrupting you, Mr Gleeson, but at some point are you going to explain what you mean by the confidential nature of the document and whose confidence and how it arises, and whether you mean should not be made public, or those sorts of nuances. Are you going to explain that further for us at some point?

MR GLEESON: Let me deal with it directly, your Honour. There are two categories of documents. So far I have referred to the inference schedule which has the qualities which Justice Gilmour identified at paragraph 107 and the effect of that would be as his Honour said, that it was sourced in secret inquiries by the Commission which involved the use of notices. The notices in turn were to obtain documents about the confidential affairs of Mr Hogan.

By that means it is likely to be a derived record of his confidential information; that is one aspect. Second is it was a summary of material on the court file but itself protected by confidentiality orders, so in that sense also it is derived from ‑ ‑ ‑

KIEFEL J: That is in affidavit material or documents?

MR GLEESON: In affidavit material filed by the Commission, in turn containing information about Mr Hogan’s affairs, so again tracing back to his information, and a document derived from that confidential material. The third aspect which his Honour mentioned was the fact that it was protected as between the parties via the Harman undertaking, namely, neither party was free to use it other than for the purposes of litigation. For that purpose Mr Hogan would be entitled to restrain the ACC had it wanted to publish the document for some extraneous purpose. The fourth step I mentioned was Mr Hogan’s interest in seeing the enforcement of section 51 of the statute if there were a threat to make it public.

HAYNE J: You are eliding, are you not, whether someone may outside the court processes take a document and publish it otherwise than in court with the question of what is to happen within the court process, whether the document that is filed in the court is itself to be treated differently from the ordinary run of documents that are filed in a court?

MR GLEESON: In attempting to answer Justice Kiefel’s question, I was seeking to establish that there were underlying qualities of confidence in the document which were protectable at the suit of Mr Hogan. I fully accept that for the purpose of our case, which is section 50, one then must move to the question of, “In the light of the use someone made of it in the proceedings are you entitled to an order under that section?” In terms of the building blocks of our case our position is that immediately prior to the tender of the material on 19 May 2008 for a limited purpose that I will come to, its confidential qualities had been protected.

FRENCH CJ: The schedule of inferences was in the nature primarily, was it, of a particularisation of allegations to be made by the ACC in support of its case against the privilege claim.

MR GLEESON: To be made at the time when that case came on for trial.

FRENCH CJ: Yes, indeed.

MR GLEESON: That is its primary character, but also critically being a purported summary of the underlying material which had been placed on the affidavits which were on the file and protected by the confidentiality.

FRENCH CJ: Were the particular inferences cross‑referenced to specific affidavit material by identification of the paragraph numbers and ‑ ‑ ‑

MR GLEESON: Yes, and of annexures to documents.

FRENCH CJ: Yes.

MR GLEESON: I think I can say enough to say that it would say from document 10 one would infer X might have been the purpose. So there is one other aspect of the ‑ ‑ ‑

HAYNE J: Let me just explore that a moment. This is in connection with an allegation of there being no privilege because the documents were created or used in connection with or in furtherance of crime or fraud. Is that right?

MR GLEESON: Yes.

HAYNE J: The inference schedule, presumably, was directed ultimately to the proposition, “Documents identified” - let me hypothesise – “Documents 1 to 10 were produced in furtherance of crime or fraud”. The allegation is, one might hypothesise, the inference schedule would go on to say the allegation was that the fraud or crime concerned was – here identify fraud or crime. Are we to assume as a necessary step in your argument that the inference schedule goes beyond saying “From paragraph 3 of document 5 it is to be inferred that” – this is all to do with tax, is it not, and evasion of tax – “it is to be inferred that a purpose, the purpose, the substantial purpose of this transaction was the evasion of Australian income tax”. Your case depends, does it not, upon saying that the inference schedule somehow goes further than that by revealing what was – let me avoid confidential for the moment – a private communication?

MR GLEESON: Yes.

HAYNE J: Are we expected to examine the validity of that step? Are we to assume that that step is valid? How are we to proceed on this appeal?

MR GLEESON: The reason I have taken your Honour to this paragraph of Justice Gilmour is that in my primary submission that paragraph is a sufficient basis for your Honour to proceed, that is paragraph 107, together with paragraph 83, as a description of the character of the document from which one can conclude what its broad nature was and that it had qualities of confidence otherwise protectable in law at the date it was tendered.

GUMMOW J: I still do not – I am probably being slow‑witted, but I still need to know, looking at the second further amended application, you wanted injunctions and the injunctions I think are on the footing that the members of the Australian Crime Commission and the CEO and board members, examiners, that they are all officers of the Commonwealth. Is that right?

MR GLEESON: Yes.

GUMMOW J: Now, what is the source and nature of the equity for an injunction against those people? What are they doing that is wrongful that should be restrained?

MR GLEESON: What they did which was wrongful, the primary wrong, was the seizure, under colour of a section 29 notice, of documents which that section did not, on its proper construction, authorise them to seize.

GUMMOW J: The seizure then being, what, a conversion?

MR GLEESON: The seizure being an act beyond the statutory power which would involve at common law a conversion of the property in the documents, but then the secondary wrong which is ‑ ‑ ‑

GUMMOW J: You are not just interested in property in the documents?

MR GLEESON: No.

GUMMOW J: You are interested in the information contained by the documents which is a different thing.

MR GLEESON: Exactly.

GUMMOW J: So you then have to, right at the beginning, lift the nature of the equity out of the tort into some notion of confidential information, do you not?

MR GLEESON: Yes, and for that purpose, there being two categories of documents, the inference schedule that I have spoken about so far and the second category I am coming to, which are the confidential accounting advices, the basis upon which ‑ ‑ ‑

GUMMOW J: There would be copyright in these documents, too, but that is not what you are interested in, I do not think.

MR GLEESON: No.

GUMMOW J: You are interested in the information.

MR GLEESON: In the information. The proceedings – as the primary wrong identified the seizure and as the secondary wrong identified the consequent use or threatened use of the information.

FRENCH CJ: Is the position the same if you do not rely upon the status of respondents as officers of the Commonwealth but simply invoke this as a matter arising under a law of the Commonwealth and then the general powers available to the Federal Court under section 23 of its Act?

MR GLEESON: Yes, we would use that.

FRENCH CJ: But you still have the same issue to address that Justice Gummow ‑ ‑ ‑

GUMMOW J: You then have to find what the content of the matter is.

MR GLEESON: Yes. What his Honour ruled – I have not yet proceeded to the end of it – was stage one; they were the subject of privilege; stage two, they were wrongfully seized; and then stage three, they make this other allegation, they abandon it. When they abandon it the ultimate exercise of judicial power in the matter was a very simple exercise – which is found at tab 3 of our supplementary bundle – which occurred on 4 July 2008 where the parties by consent agreed to return of the documents, destruction of any information derived from them, a verifying affidavit, and then ultimately in terms of paragraph 7 the Commission was relieved from the obligation to give Mr Hogan the further discovery which had been ordered on 19 May 2008. For those reasons he achieved by consent what I have called the relief in respect to the primary wrong. The fourth stage of the proceedings which your Honours are not directly troubled with ‑ ‑ ‑

GUMMOW J: So you no longer need this injunctive relief for destruction of the documents.

MR GLEESON: At the fourth stage of the proceedings his Honour considered whether he would give broader – your Honour is correct; we do not need it for that because they have been destroyed – in terms of whether he would give broader relief restraining persons from continuing to act in an investigation which might involve use of information derived from the documents his Honour refused to give any further relief.

So one of our central points is in terms of the ultimate exercise of judicial power in the matter, it occurred on 4 July 2008 in the orders that your Honours see. It occurred by consent. Your Honours see that at the previous tab with the transcript, page 3 lines 15 to 25. So Mr Hogan by consent obtained the primary relief he sought in the proceedings in respect of the documents that were privileged.

FRENCH CJ: This simply relates to documents that remain on the court file. There has been an application for access to them in face of the section 50 order.

MR GLEESON: Yes. Then one asks the question: how did they come to be on the court file; for what purpose; and what is the relevance of the fact that the ultimate exercise of judicial power did not, as we would contend, involve the court making determinations about the contents of the truth of the inference schedule or the contents of the confidential accounting advices.

HAYNE J: The documents in issue in this proceeding are different from and distinct from the documents that were the subject of the order by consent for delivery up or destruction.

MR GLEESON: Undoubtedly.

HAYNE J: And they are not themselves documents for which there is a claim for client legal privilege.

MR GLEESON: Correct.

HAYNE J: Is that right?

MR GLEESON: That is correct. So the central issue which ‑ ‑ ‑

GUMMOW J: I am sorry to interrupt. So what is left of the underlying application that appears at page 2?

MR GLEESON: Nothing.

GUMMOW J: There is no order actually dismissing it, is there?

MR GLEESON: The final orders are made in his Honour’s fourth judgment which is reported in 72 ATR 107, where his Honour’s conclusion at paragraph 62 would be that:

There should be no further substantive orders in the proceeding.

If I could observe in that judgment, if one goes to paragraphs 3 and 4, one sees a simple summary of the procedural history in which Mr Hogan obtained his order for further discovery which was then vacated once the Commission abandoned any further opposition to his claim. In paragraph 5:

Mr Hogan accepts that the respondents no longer have any copies of the disputed documents in their possession.

That is the ones the direct subject matter of the suit. He then asked for some broader substantive relief which his Honour declined to give.

FRENCH CJ: The order in issue in this case stood at that time as an interlocutory order. It had been made by Justice Emmett on 29 August 2008. Then that was the subject of a stay, the order vacating by Justice Foster, so the interlocutory appellate process, if you like, was still on foot at the time that this order was made.

MR GLEESON: Yes, that is correct, your Honour. Could I just draw attention to paragraphs 49 to 50 again, where his Honour gives a description of what occurred at the stage of the proceedings that is relevant today. At paragraphs 56 to 58 in the context of the costs application, his Honour said as was the fact it was not clear why the Commission had abandoned those contentions. At 57, “mere abandonment” did not “give rise to an inference” of unreasonable adoption in the first place and 58, the ordinary costs order would follow.

I draw attention to that because in terms of the claims of open justice in this case, our basic submission is that one can see from the public record that I have been to briefly this morning, the fundamentals of what occurred during the interlocutory stage of these proceedings, and one knows that at the final stage of the proceedings Mr Hogan obtained his relief by consent. The proposition put by the media seems to be whenever a party settles proceedings, including abandoning a serious allegation it might have made, the public has an interest in speculating as to why the settlement was adopted by that party, and for that purpose it must have access to anything which is on the court file or a fortiori has been tendered in evidence at any earlier stage in order to speculate as to why the Crime Commission gave up.

We submit on that, if that is the public interest that is being invoked this Court should reject it. There is no requirement on any party who settles to disclose their reasoning let alone their legal advice. The law has a policy of encouraging settlements. Open justice does not require the public to look at these two categories of documents to speculate why the Crime Commission decided to settle.

GUMMOW J: Just looking at that judgment in 72 ATR of 22 December 2008, paragraph 62, the very last paragraph:

There should be no further substantive orders in the proceeding –

that is to be understood as “The proceeding is otherwise dismissed”. Is that right?

MR GLEESON: Yes, subject to the matter raised by Chief Justice French concerning the stay.

GUMMOW J: Then it says:

I propose to direct the parties to bring in short minutes -

Were those orders ever made? Are they in the record?

MR GLEESON: Can I look for those, your Honour.

GUMMOW J: Yes. It is quite important really because that illustrates the beginning. Page 2 is the start of the application book and these orders will be the end of that litigation.

MR GLEESON: They are the end of litigation and the ‑ ‑ ‑

GUMMOW J: With these documents however, remaining in the registry.

MR GLEESON: Yes.

GUMMOW J: Then the subject of an access application by the newspapers, and then that has provoked the dispute that brings us here today.

MR GLEESON: Yes, your Honour.

KIEFEL J: Could I just clarify some matters about the inference schedule. So far as may be described, the subject matter of the information itself, upon which comments I take it are made in the schedule, may be described as documents or communications concerning the appellant’s financial affairs.

MR GLEESON: Personal taxation and financial affairs.

KIEFEL J: However, they do not reveal in any way the content of the matters of legal professional privilege.

MR GLEESON: Correct.

KIEFEL J: The inference schedule itself is of the nature of written submissions. I know that you have described it as a document which was produced by order of the court to address a procedural fairness issue, but as a document itself on the court file you would describe it as of the nature of written submissions, drawing in an argumentative way, the best inferences from facts.

MR GLEESON: The description I proffer is that it is halfway between a pleading/particulars document and a submissions document. In brief form it is saying, from document X, document X being attached to an affidavit on the court file subject to confidentiality, one might infer a purpose, an intent, a scheme, a transaction, so on and so forth.

KIEFEL J: So it is putting forward the Crime Commission’s case?

MR GLEESON: Yes.

KIEFEL J: Thank you.

MR GLEESON: Yes. It is of that character and then related to the underlying material. Your Honours, the second category of material I describe as the confidential accounting advices. Those documents are described by Justice Gilmour at page 266 at paragraph 84 where they are described as:

confidential file notes and memoranda of accounting advice from the appellant’s Accountants.

The underlying evidence to support that is found at page 31, paragraph 18.

HEYDON J: Can I ask you this question? The first page of the appeal book index uses the abbreviation “REP”. To what does that refer? For example, paragraph 7 describes Mr Rydon’s affidavit and then 7.1 describes the exhibit and 8.1.1 describes “Exhibit DPR 1”. Both exhibits contain references to REP. An index usually tells you where you look in order to find something. I just want to find those things, but if it is holding you up we can put this away for the time being.

MR GLEESON: Your Honour, I believe it means reproduced at item 13 below.

HEYDON J: Yes, I see.

GUMMOW J: This motion bearing date 5 August 2008 at page 17, that was rooted in Order 46, rule 6, was it?

MR GLEESON: Yes.

GUMMOW J: Was not this motion a new matter, in the constitutional sense?

MR GLEESON: If one applied the learning on preliminary discovery applications under Order 15A being part of the same matter as the substantive proceeding which might be brought one might take a view that where there are existing interim section 50 orders over a certain category of documents restricting publication for a third party to come along and say, “I wish to assert a right under the Rules to inspect” would be sufficiently connected to fall in the same proceedings. That appears to be the basis upon which the parties in the court below proceeded.

GUMMOW J: It may be the same proceedings but it may be another matter, may it not?

MR GLEESON: Another matter, yes.

GUMMOW J: The proceeding may have many matters in it. We know that.

MR GLEESON: Yes, yes. Well, your Honour, one issue ‑ ‑ ‑

FRENCH CJ: It is quite a distinct dispute in a way, is it not?

MR GLEESON: One distinct dispute.

GUMMOW J: Which has a life beyond the orders that were eventually made by Justice Emmett on 22 December.

MR GLEESON: Yes. One issue I should confront perhaps is how the applications interrelate because in one sense the Order 46 application logically came before the question of the continuation of the section 50 orders. If the court was satisfied there was no proper basis to depart from the ordinary position under Order 46, namely, affidavits are not the subject of inspection, then the need for non‑publication might be weaker. The manner in which the matter was approached really went to the end point first, was a section 50 case made out? If it was, inspection would be refused. If it was not, inspection would be permitted.

GUMMOW J: After these orders of 22 December 2008 there was no remaining controversy between Mr Gageler’s clients and your client, was there? Hence, you are both on the same side of the record here.

FRENCH CJ: On this matter.

MR GLEESON: Yes, on this matter, that is correct. So what we would seek to crystallise as the relevant question, we may be right or wrong in that, is that on 19 May 2008, which is the date when our side took the step of tendering into evidence material which up to that point retained a confidential character and was susceptible of protection under various branches of the law, is there an interest in the administration of justice which on that date had the matter been fully considered by the court would have justified the non‑publication order, and for that matter refusal of any application to inspect?

That brings us to what we wish to submit, which is the central issue, which is where a party at the interlocutory stage of the proceedings, solely for the purpose of seeking to ensure that there is a fair preparation for a later trial on allegations being made by another, tenders material for a limited purpose of showing that the other may be in default of an existing order.

KIEFEL J: Could we just get the sequence right? On 19 May, is that also the time that the ACC tells the court it no longer supports the section 50 orders?

MR GLEESON: Exactly, your Honour.

KIEFEL J: So in what order did it occur, and can you take us to material that shows us the sequence of events?

MR GLEESON: Yes.

KIEFEL J: I think you would say that it was subsequent to the Commission having those affidavits that it later abandons its claim of fraud.

MR GLEESON: Yes. So the relevant sequence of events is, step one, the Commission places affidavits on the file on a confidential basis concerning Mr Hogan’s personal taxation and financial affairs. Step two, the inference schedule, under court order is served. I will say “served” and I will come back and ‑ ‑ ‑

KIEFEL J: Do you have a date for that?

MR GLEESON: Yes.

KIEFEL J: Perhaps you could come back to it, Mr Gleeson?

MR GLEESON: The inference schedule was directed on 19 December 2006 and it was served on 8 February 2007. I have had inquiries made between the solicitors for the parties as to whether the document was ever filed. The result of those inquires is to the best of the knowledge of the solicitor for the appellant and after inspecting the Federal Court record, the inference schedule was not in fact filed.

HEYDON J: Was that not an extraordinarily important fact?

FRENCH CJ: It is fairly fundamental.

MR GLEESON: That is why I had the inquiries made, your Honour.

HEYDON J: If that is correct ‑ ‑ ‑

MR GLEESON: Such that, and I will come to may affidavit, it only came to be filed as part of an annexure to the 19 May affidavit under confidentiality and what ‑ ‑ ‑

KIEFEL J: Sorry, whose affidavit?

MR GLEESON: Under the affidavit which was read on our side on 19 May where we put the inference schedule and the confidential accounting advices before the court. So the chronology I am seeking to put is this: 19 December it is ordered; 8 February 2007 it is served- it does not appear to be filed; then on 19 May 2008 Mr Rydon’s affidavit is filed under interim section 50 orders which attach the inference schedule and the confidential documents as part of his application for further discovery and then the final step to the sequence is that on 4 July 2008 the Commission abandoned the allegation and accordingly consent orders are made in favour of Mr Hogan to recover the privileged documents.

HEYDON J: The confidential affidavit of 13 February 2008 was filed in court on 19 May 2008.

MR GLEESON: Yes.

HEYDON J: What about the exhibits, in particular DPR 1?

MR GLEESON: Your Honours will see what happened on that day from page 175. At line 14 Mr Kunc said that he sought to read Mr Rydon’s affidavit which had not been filed at that point in time. His Honour described them as “annexures”. I presume his Honour is referring to the exhibits, and at that point of seeking to file the document at line 34 Mr Kunc handed up the proposed confidentiality order, and the order was sought at line 43 in relation to the exhibits.

HEYDON J: It looks as though his Honour had received what he calls the “annexures” but were the exhibits in advance of Mr Kunc’s presentation in court.

MR GLEESON: Not as part of the court file, as an advance.

HEYDON J: You draw a distinction between something that was filed and placed in the court file and something that was sent to the judge which he kept with the papers he was going to use for the hearing, do you?

MR GLEESON: Yes. The application is made at line 43 and our side had been taken somewhat by surprise because the Commissioner changed its stance and immediately Mr Kunc moved for orders in relation to the relevant parts on an interim basis with the court to revisit the matter in full later. The relevant parts were then identified on page 176, and at about line 31, Mr Kunc said that material had not been filed. So he is there speaking of the relevant exhibits which are sometimes referred to as A, B, C, D and E. It is C and E that are relevant to us.

So there is some discussion about the practicality of an interim order. Mr Game at page 177 says the Commission has changed its view. As Mr Gageler points out, when the matter came on for full argument the Commission did not oppose a continuation of the orders; they simply took a neutral position. At line 23 on page 177 his Honour sought to ascertain whether Mr Game was not opposing the interim order. That was the position he took. Then at page 178, line 11, his Honour made the interim order and that order the Court will see on page 180 as order 1.

FRENCH CJ: What was the ultimate fate of the affidavit?

MR GLEESON: On that day, your Honour? The fate was that the affidavit was filed in court, was read, but publication of the critical sections – I am reading from page 180, order 1 – was restricted.

FRENCH CJ: It had become evidence before the court. It had proceeded beyond mere filing in court.

MR GLEESON: Yes. It became evidence. It was read on the application but immediately the subject of an interim protective order. Just to explain those orders on pages 180 to 181, order 1 is the interim section 50 order; orders 2 to 6 were orders to prepare for a further hearing on section 50 questions on a more permanent basis. After there had been full argument on the motion that day order 8 was the result of ‑ ‑ ‑

GUMMOW J: When you say order 1 is an interim order, why? It does not say “until further order”, does it?

MR GLEESON: I say that by reason not of the words of it, your Honour, but the intention expressed in the transcript. What I mean by “interim” is it is an order which (a) the court was capable of revising at a later date, and (b) as a matter of the exercise of judicial power the judge had made clear he was doing it acting largely on a consensual position of the parties without ‑ ‑ ‑

GUMMOW J: Orders should be understandable on their face, not by foraging around in some transcript which people do not necessarily have. Judges making these orders should be aware of that.

MR GLEESON: I agree with your Honour.

FRENCH CJ: Just so I understand the status of the schedule of inferences, it came before the court as an exhibit to an affidavit which was read in evidence, albeit the proceedings ultimately evaporated. So it is subject to the restriction in terms of access even after having been read in evidence under Order 46, rule 6(3).

MR GLEESON: Yes.

FRENCH CJ: So there is not just a section 50 question, there is a leave question, is there not?

MR GLEESON: Yes.

FRENCH CJ: Was the leave question separately addressed in the judgment?

MR GLEESON: No. It is dealt with as if it follows from ‑ ‑ ‑

FRENCH CJ: Automatically.

MR GLEESON: ‑ ‑ ‑ the section 50 as I have sought to respectfully suggest it may be the logical order is ‑ ‑ ‑

HAYNE J: Why, why does it? Does one not begin with prayer one in the motion of the media defendant for leave to inspect? That takes you to Order 46, rule 6. In particular it provides, as the Chief Justice has pointed out, subrule (3):

Except with the leave of the Court or a Judge, a person who is not a party . . . must not inspect –

amongst other things, affidavits subject to a presently irrelevant exception.

MR GLEESON: I agree, your Honour.

HAYNE J: Has this litigation gone forward on some unstated assumption that leave would be given, should be given, might be given for inspection unless considerations of the kind engaged in section 50 are met? Have we not elided distinct questions? I do not know.

MR GLEESON: I raised that matter earlier in an attempt to confront it because it appeared to me to be a matter that did arise and in terms of your Honours looking at the principle of this case, not just the fate of our desire to enhance what we claim to be the administration of justice. The relationship is clearly important. The media motion assumed that ‑ ‑ ‑

GUMMOW J: That is the media motion at 17.

MR GLEESON: At 17 assumed that ‑ ‑ ‑

GUMMOW J: Seems to be based on Order 46, rule 6(3) which gives rise to a matter arising, I guess, under the Federal Court Act, I suppose, the rule‑making provision of the Federal Court Act in section 59, I think it is. So that is the matter. How does then section 50 get into that matter?

MR GLEESON: The logic of their motion is then under order 2, if they have got leave under order 1, they are then currently facing an order under section 50 which, if you view the inspection as of itself involving a publication, and certainly as an Act which is calculated to cause much further publication, then they would say “We would like to have our relief made ultimate by vacating those orders”. So that was the way they approached it. Mr Jackson refers me to page 207 at paragraph 73 where the trial judge dealt with the relationship between the two issues.

FRENCH CJ: This was all under the rubric of 50. The reasoning that led to that was all about section 50, was it not?

MR GLEESON: Yes. One of the respectful criticisms we make of the trial judge’s approach is his Honour has, in effect, said once it is admitted into evidence, then unless you fall within one of a narrow category of exceptions which extend to trade secrets, which extend to the bare facts of ABC v Parish but no further, there is really a bright line that once it is in evidence, unless there is something quite extraordinary, you take the consequence, it all must be public.

GUMMOW J: But is that reasoning bearing upon rule 6(3) of Order 46?

MR GLEESON: Sub silentio his Honour has applied the same reasoning to Order 46 and in each case we respectfully disagree with it. As to section 50, the fact that it is in evidence is the groundwork for the power arising for the order ever to be made in the first place. It should not be treated as an ordinary criterion by which the power will not be exercised. We put that there. As to Order 46, rule 6(3), it draws no distinction between affidavits read and affidavits not read and so to erect as a bright ‑ ‑ ‑

FRENCH CJ: That distinction might well inform the discretion.

MR GLEESON: It may inform the discretion, but to erect it as a general rule in the exercise of the discretion, once you read you perish, we submit would be to unduly fetter the considerations which bear on order 46, rule 6(3).

FRENCH CJ: There is a curious little nuance in this as well. Section 50 is not inconsistent with proceedings in open court.

MR GLEESON: Exactly.

FRENCH CJ: So, for example, it could be a section 50 order affecting publication of oral testimony given in open court affecting all persons present in the court, and I suppose at least in theory it might be possible to give someone leave to inspect consistently with the continuance of a section 50 order. You can look at it but you are not allowed to repeat it. I mean, fairly useless sort of liberty from the point of view of the media, but I am just looking at the way the two interact.

MR GLEESON: We would embrace that, your Honour. If one thing solved many equity suits where the equity in a valid confidence is in fact protected, sometimes without need for even a section 50 order in the first place because the case can be presented in a particular way, in terms of reasons of judgments of court often the reasons can be presented in a way which protects a legitimate confidence without need for a formal non‑publication order and we would say there is no destruction of open justice for those sorts of practical steps which have always been taken in equity and other courts to respect other legitimate public interests. They sit together with section 17, section 50 and open justice.

What I have sought to take your Honours to is that on 19 May and the transcript that the Court has at pages 175 to 178, in one sense that is the critical focus of the administration of justice issue. The trial judge and the majority in the Court of Appeal have in effect said, by the tender of the evidence your confidence, whatever it is, must perish and you must pay the price of the tender because what you are tendering today is not the very documents which are the ultimate subject matter of the suit.

FRENCH CJ: The schedule of inference, of course, was never evidence even though it was put in as an annexure to an affidavit.

MR GLEESON: Yes. In a sense, the truth of the inference schedule was never adjudicated upon and the contents or the proper inferences from the confidential accounting advices was never adjudicated upon because the matter was disposed of without need to do so.

HAYNE J: But had it been filed in court, otherwise than in the fashion you have indicated, it may be that it would be regarded as falling within Order 46, rule 6(2)(c) or possibly (2)(g) as either particulars of a pleading or a written submission or some other uncomfortable amalgam of both and therefore, prima facie, open to inspection.

MR GLEESON: Yes.

FRENCH CJ: If having that character, even if annexed to an affidavit, that character and the separate provision made in the rule to which Justice Hayne referred would well inform the discretion as to whether leave would be granted to inspect.

MR GLEESON: It certainly would govern leave to inspect. Our submissions would be that it would not be strictly either pleading particulars or written submissions. It is a document ad hoc.

FRENCH CJ: I am talking substance not precise form here.

MR GLEESON: In substance we would accept that is of a similar character but in terms of that question one would then in the discretion also clearly bring to account. It contains serious allegations destructive of a citizen’s reputation. They were not allegations made by a prosecuting authority with the duties of a prosecutor. They were made to the lower standard of the civil case they were in. They were abandoned without ever being tested. No opportunity was given to the citizen to vindicate his reputation by the defeat of them in the case and one asks what interest of justice is served by allowing bare untested withdrawn allegations to be published for the likely purpose of the destruction of reputation.

FRENCH CJ: What is the difference between the position where you have a statement of claim filed in proceedings which include allegations of impropriety, fraud, obviously subject to the particular duties and responsibilities that go with making such an allegation? What is the difference, in substance, between that situation where the pleadings are, prima facie, open to inspection and this situation?

MR GLEESON: First filing ‑ ‑ ‑

FRENCH CJ: Assuming discontinuance, for example, of the proceedings.

MR GLEESON: There are cases where parties say the mere fact that it has been filed, if it has not come to public attention already in the course of the court’s process, if there has been a discontinuance, if there has been no exercise of judicial power over the truth of those allegations, there is no reason for the public to actually know the allegations even in the statement of claim in order to understand and keep confidence in the judicial process.

Now, in a case where the content of them has become public, eg, they had been debated at a directions hearing, too late. But in a case where the contents has not been made public, where the purpose for which that document is filed has been overtaken, we would submit there would be a powerful case in the discretion to say what interest of the administration of justice requires bare, untested allegations – withdrawn allegations to be made public.

HAYNE J: You are putting the question in a way which is not to be analysed as an onus of proof issue, but you are putting it, why should it become public. Perhaps the answer is different if the question is approached, this is part of the public process of the court, why should it not be? Why should it be kept private?

MR GLEESON: Yes, and if I approach it from that angle – and the error we argue occurred in the trial judge’s judgment - is when one focuses on 19 May and says what interest was served, interest of justice – not just a private interest – by the tender of that material, the interest served, one which is part of the administration of justice, was the fair trial interest, namely, your Honour may doubt what I am saying, but the interest in there being a procedurally fair preparation for the ultimate hearing of certain allegations.

The citizen had two choices on that day. The first choice is to say, “I think I have received deficient discovery from my quasi‑prosecutor. I cannot challenge that in court because I will have to disclose what is a legitimate confidence”. The second choice is, “I will pursue my right, I will challenge it, I will obtain the protection of an interim order, and of course I must accept that that order can be revisited as the matter plays out”.

We submit that the interest of justice in allowing a fair preparation of that issue for hearing would have been a valid ground for Justice Emmett to make the section 50 order on a considered basis had he had the opportunity on 19 May to do it on a considered basis. If that is right, one then looks at the later date and says if we have now moved to the trial of the allegations, the claims of open justice are going to be stronger. It is going to be more difficult to say, “I can keep these matters of confidence confidential”, not impossible, because it will depend upon their materiality to the issue, to the public’s need to have access to them in order to keep faith in what is occurring at the trial and such considerations.

However, where the case is abandoned it then becomes a powerful case for saying that which I did on an interim basis to protect an interest of justice on 19 May should properly be continued. So taking on the onus your Honour has said that is how we would ‑ ‑ ‑

GUMMOW J: Mr Jackson’s client’s motion at page 17 had two branches to it in a way. Firstly, they were moving under Order 46, rule 6, as we have seen, for leave to inspect. The first question that might arise would be, is inspection something that falls – would the inspection amount to a contravention of a subsisting section 50 order, I suppose? It seems to me that the assumption is, rule 6(3) when it talks about “must not inspect” carries with it the idea that the court can control what happens after the inspection, if you see what I mean.

MR GLEESON: Yes.

GUMMOW J: Therefore they needed to vacate the section 50 orders, and that assumes that section 50 or some other provision empowers the court to vacate an order under section 50 by reason of the circumstances as then appearing at the time of the vacation order.

MR GLEESON: Yes.

GUMMOW J: So would not one then be asking whether at the time of the vacation order – not necessarily at the time the order was made – the circumstances as they now exist, having regard to the conduct of the litigation in the meantime, that it was necessary to prevent prejudice to the administration of justice? Is that not the temporal framework to it?

MR GLEESON: Yes, your Honour, I accept that. So at that date a part of the exercise would properly be what was the interest in the administration of justice, if any, that was served by the original making of that order? In circumstances where his Honour had not adjudicated on that on a contested basis one must look at that objectively and say, was there a valid interest that was served? Then more critically in the light of what has happened in this piece of litigation, is there a reason now to deprive the litigant of the benefit it has of existing protection? That would clearly and squarely bring in the fact that these are now allegations ‑ ‑ ‑

GUMMOW J: In circumstances where the litigation between your client and the Commission is at an end at the time this vacation order is going to be contested.

MR GLEESON: Yes, and that is why we respectfully say that it is of assistance in the temporal sense to say, what is the judicial power which has been exercised in the matter? The ultimate judicial power was 4 July bringing to an end the claim for return of the documents by consent, and that is crystal clear, perfectly understandable by the world, read the order, read the transcript. So the media says, and I think I have characterised their submission fairly, but there is an interest in speculating why the Commission gave up. Now, if that were right that would undermine ‑ ‑ ‑

HAYNE J: If we take out the pejorative “speculating” – examining.

MR GLEESON: Their words, your Honours – examining. If that were right, that every time a case settles and the parties present consent orders to the court, instead of receiving, as one occasionally but not always does, a polite acknowledgment of the contribution to the administration of justice ‑ ‑ ‑

KIEFEL J: But for the section 50 order it might be said against you that even without a trial the inference document in particular forms part of the record showing how the matter came to be resolved using the processes of the court, it allows that examination. It allows the steps to be seen towards the resolution made by the parties.

MR GLEESON: Your Honour, it is impossible for us to put that it cannot be said to have had any possible causal connection because there is no doubt for Mr Kunc to try and get his further discovery – as his Honour squarely said in the judgment, it was impossible for him to do other than tell the court the case he was facing so the judge could assess was there some reason for further discovery. In terms of a judgment of the materiality of its significance to the resolution of the case and the exercise of the judicial power, we do maintain the submission that you would put it in the low category.

FRENCH CJ: Mr Gleeson, I appreciate that the schedule of inferences came before the court ultimately as an exhibit to an affidavit read in court, but was the schedule of inferences itself evidence within the meaning of section 50? Section 50 applies only, does it not, to the publication of evidence or the name of a party or witness.

MR GLEESON: Our submission is that it is within the concept of evidence being part of an exhibit to an affidavit read in court.

FRENCH CJ: So it is really just allegations by a party by way of particularising as a matter of procedural fairness, as you have explained, the basis upon which it is resisting the privilege claim.

MR GLEESON: That is also completely true, and one of our points is that the claim of open justice in relation to evidence is clearly at its strongest when the court is asked to adjudicate upon the ultimate allegation and to find truth or falsity of facts. So it is difficult in those circumstances to say the central issue in the case is “Did I lie to X?”. I wish to have the evidence bearing upon my conduct kept secret, but although it is strictly evidence within section 50, its character is what your Honour has put to me and it was put forward not to prove the truth of it or the falsity of it but to say that is what I face.

FRENCH CJ: I wonder whether, and how, merely exhibiting something to an affidavit makes it evidence, if it is in fact just the assertions of one party.

MR GLEESON: Yes. Well, if the alternative view were taken, your Honour, it is to be ‑ ‑ ‑

GUMMOW J: Well, consistently with that, this is the point Justice Heydon was making to you about paragraphs (c) and (g) of 6(2), namely a pleading or a written submission or an amalgam of them. It is an argumentative assertion, you can certainly say that.

MR GLEESON: Yes. If that were its character either directly or in the exercise of the power, if it were to be viewed as analogous to that, the case which we then put is its materiality to the exercise of judicial power was minimal. It is not much different to the judge, before going on for a directions hearing, reading the statement of claim in a case where only the parties are in court and the matter has attracted no publicity, and then the proceedings are abandoned.

At that stage, after they are abandoned, after the matter is quelled, judicial power has been exercised, the media comes along and says because of the bare fact that the allegation was made, even though it has been abandoned, the public cannot have confidence in this court system unless we can publish to the world that which was once alleged.

HAYNE J: But one of the chief underpinnings of the serious obligations that counsel have in signing pleadings is that documents that are to go onto the court file are going into the public domain and that the privilege that attaches to the document, despite it having the largest and most adverse allegations against another party, will go into the public domain. That is why counsel have the obligations they do.

MR GLEESON: And it may be, your Honour, that that leads to why the word “pleading”, and “particulars” as used there, ought to be given, given their strict meaning where those obligations have that sanction. But can I come back to your Honour Chief Justice French’s question as should we treat this as not evidence. I do wish to reaffirm that its character was to take the underlying evidence on the court file from the Commission which was subject to the complete confidentiality regime ‑ ‑ ‑

FRENCH CJ: But it did not disclose the content, it just referred to it by affidavit and paragraph number and so forth, did it not?

MR GLEESON: No, more than that, by saying, this is the inference from that paragraph, it is ‑ ‑ ‑

FRENCH CJ: Yes, it is the inference, but it did not recite, for example, a quotation from the relevant paragraph. Is that right?

GUMMOW J: Did the primary judge see this document?

MR GLEESON: Yes, it was all before the primary judge.

GUMMOW J: Why is it not in our record?

HEYDON J: Why do we not have it?

MR GLEESON: It has not been put in the appeal books, I have it available.

HEYDON J: Mr Gleeson, that index said, “REP at 13”, go to 13. Was this part of the redacted parts?

MR GLEESON: Yes.

HEYDON J: Does it correspond with some of the white pages like the Rhodesia Herald just after UDI had been censored? Your case might be weakened or it might be greatly strengthened depending on the actual contents of that inference schedule. I do not personally like dealing with something just on the strength of the reasoning, for example, that Justice Gilmour employed saying it must be confidential because of section this of that Act and because of Harman’s Case and so on. I think it is nice to actually see the primary document, and if it was before Justice Emmett why cannot we see it?

MR GLEESON: Your Honours can. Can I just ‑ ‑ ‑

HEYDON J: Can I raise another matter? Apart from the Chief Justice’s point about was it evidence, Justice Emmett never said, “I receive that as an exhibit and it will be marked exhibit A or it will be exhibit “something, something R1”. Do you submit that it was never actually received into evidence or not? I know Mr Kunc was asking for an order under section 50 which assumed it was in evidence, but form is important and there was never a reception by the primary judge of this as evidence. Is that true or false?

MR GLEESON: Can your Honour give me a moment?

FRENCH CJ: There is a reference to DPR1 at page 178.

HEYDON J: I see. Yes, it was received at 178, line 13.

MR GLEESON: As evidence.

HEYDON J:

will be marked as exhibit DPR1 on the hearing of the motion.

Does that mean marked as evidence?

FRENCH CJ: The bundle of documents that are referred to in the affidavit as DPR1 is that – so the affidavit is read, and then the documents themselves are marked DPR1. Is that how it happened?

MR GLEESON: Yes, and DPR1 contains five sections and the critical ones are C and E.

FRENCH CJ: The inference schedule is one of those, is that right?

MR GLEESON: The answer to your Honour’s question is, yes, it was received as evidence on the motion.

HEYDON J: When can we have a look at it, and for that matter, that is part of C, I think - E is the confidential accounting. Are they are in the appeal book?

MR GLEESON: No, it is in the material, not in the appeal book. I will need to do two things, one is to maintain my submission that the inference schedule was never filed prior to 19 May which is the matter I asked for the solicitors for both parties to seek to reach common ground on. I have an affidavit of Mr Rydon of 3 February 2010 which I would seek to file in Court and read.

GUMMOW J: What will that tell us?

MR GLEESON: It will tell your Honours that to the best of the inquiries that have been made by the solicitors on both sides the inference schedule was not filed prior to what happened on 19 May as part of the exhibit to the affidavit.

FRENCH CJ: If it had been filed it would have been placed on a registry file and indexed accordingly, albeit it might have been marked confidential.

MR GLEESON: Yes. One of the inquiries that Mr Rydon undertook was that inquiry of what can be ascertained by the e‑file record maintained by the Federal Court and that indicated that no document was filed in or around the period of February 2007 when it was handed over to us. He searched his own records. He cannot find a file copy on our record. He has spoken to Mr Geary, the solicitor for the respondent, and his information is they did not file it.

FRENCH CJ: We can just take that as common ground, can we not?

MR GLEESON: That is what I ask your Honours to do.

FRENCH CJ: Yes.

MR JACKSON: Your Honours, we are not, I think, party to that discussion, in a sense, but we have no information to suggest that the document went into evidence prior to the hearing that has been adverted to.

HEYDON J: You mean was filed prior to the hearing?

MR JACKSON: I am sorry, yes. I am sorry I answered incorrectly. Yes, we do not suggest it was filed before then. We do not understand ‑ ‑ ‑

FRENCH CJ: Or at all. There is no suggestion it was filed at all, is there?

MR JACKSON: Your Honour, as to that ‑ ‑ ‑

HEYDON J: Filed in court, I think it was. Page 175, line 36, “the affidavit can be filed in court.”

MR JACKSON: Your Honour, there is a reference in the primary judge’s reasons to whether these documents were in evidence. It is at page 200, paragraph 47 and then you will see at paragraph 51 that he refers to:

The affidavit exhibited a bundle of documents which was admitted into evidence in connection with the discovery dispute.

FRENCH CJ: Yes, Mr Gleeson.

MR GLEESON: Your Honours, the course I propose to take, mindful of the terms of Part 8, rule 7 of this Court’s Rules is to hand to the Justices of the Court five copies of the full affidavit of Mr David Rydon of 13 February 2008. That is all I propose to do immediately. I indicate in advance that I would be opposing any application for Mr Jackson to have access to the document I hand to the Court.

HEYDON J: You said Part 8, rule 7. That seems to deal with bail.

HAYNE J: That is bail. I do not think we at a stage of bail, are we, Mr Gleeson?

MR GLEESON: On my reading of the rule it extends beyond bail, particularly the opening words of subrule (1) but also subrule (2)(d). I understand that is the rule upon which the Court has been asked to act in previous cases. At the moment what I am seeking to do is indicating material which was before the trial judge.

GUMMOW J: And before the Full Court?

MR GLEESON: And, I am told, was handed to the Full Court. I wish to hand to the five Justices of this Court and I have indicated in advance I propose to oppose any application that might be made and if so I would refer to that rule. On that basis - if your Honours will forgive, which you probably will not, the bulldog clips – can I hand up five copies of it and indicate where the relevant material is found.

Your Honours should find the inference schedule commencing at schedule C which is page 62 at the bottom right‑hand corner. Immediately after page 61 there is a document which has headings “Fact Inference, References to Evidence”. There is reference to particular affidavits.

FRENCH CJ: There is no reference to the content of the evidence apart from the inferences themselves that are offered. That is right, is it not? There is reference to particular records, dates, references to affidavit paragraph numbers and if they happen to be in evidence an exhibit number.

MR GLEESON: Your Honour, that is probably a fair characterisation. It may be that from, for instance, the identification of persons who are the authors of documents, dates of documents, what the character of the documents is, one might deduce a little bit about them but that is it. If one takes, for instance, item 25 which I will not read out – I do maintain the submission that if one published that item, for example, just from the first sentence of it, it contains a statement that one can find that fact either directly or indirectly deposed to in paragraph 32.4 of an affidavit of a particular date and one can find the fact from particular accounting advice. So by that derived means one might readily infer that, if I did have access to the primary accounting advice and the affidavit, I would learn that fact from them. It is, we would submit, reflective of a degree of the content of the underlying material.

The accounting advices commence at page 111 and following. We would submit that Justice Gilmour’s characterisation that these were confidential accounting advices, which from their character would impose upon Ernst & Young an obligation in contract or in equity to protect the substance of the material involved was a correct characterisation. The degree of detail in them is, of course, significant.

HEYDON J: Much of your argument is that if the appellant, for example, were about to start some proceedings or start a step in proceedings, and he said to himself, “If I am going to get anywhere with this I am going to have to rely on certain documents, but it will be worse for me if those documents are tendered and become public than if I do not try and pursue my legal rights, so what I will have to do is simply not press for those legal rights”, that is a sort of analogy with Parish and World Series Cricket. Deterred from seeking justice by reason of a detriment that will be suffered in the course of trying to get justice.

MR GLEESON: Yes, there seems to be an acceptance by all judges below that where you can say, for instance, in a confidential information or or a patent suit, “The very subject matter I seek to protect is X”, the court would take steps reasonably available to protect the confidence in X because otherwise the subject will be deterred from commencing the proceedings, or will do so at a harm, which would be regarded as a significant deterrent to others.

The step that three of the judges below have declined to make is to say that where in the course of proceedings, in order to ensure that one can come to a fair trial upon an issue where the ultimate issue concerns confidence, it is necessary to deploy other documents which are confidential to get your modest claim for further discovery. You do not have any such protection, you must simply take your choice; you either give up on your further discovery, or you ask for it and you have your confidence destroyed. Now, that, we would submit as a bright light being erected between the ultimate subject matter and something related to it would be wrong in law, and would have the deterrence that Parish and Justice Deane spoke of.

GUMMOW J: In Parish there was some apprehended step in the commercial law that was going to happen, was there not, with some competitors?

MR GLEESON: In Parish the evidence is, if the document which is the subject of the Part 4 challenge comes out publicly, that may lead me to have to reconsider my adherence to the document, so the concern was in part if the ABC won its case the document would be invalidated by legal process. Fine. If the ABC lost its section 46 case, the document might lose its commercial value by reason of the parties having to reconsider it anyway, so that the result which had not been achieved through the direct legal process was achieved through the bare fact of publicity. That, we submit, is a fairly close analogy to what our situation is here.

GUMMOW J: Is now, or was at the time when the section 50 order was made? Hence, the importance of the second paragraph of Mr Jackson’s client’s motion to vacate now in view of some apprehension, you would say?

MR GLEESON: Was at the date. It was originally made on ‑ ‑ ‑

GUMMOW J: I assume you are correct about that.

MR GLEESON: Was true as of the August date when the order was being revisited in circumstances where ‑ ‑ ‑

GUMMOW J: The controversy between the Commission and yourself is, for practical purposes, finished.

MR GLEESON: It being finished, remains true for all time thereafter, because for all time - subject to a change in circumstance no one here can currently foresee - because the message that sends is, when the proceeding has been resolved the confidence which we were prepared to protect in order to allow procedural fairness is one which the court now sanctions the destruction of for no identifiable purpose.

FRENCH CJ: There are two levels at which your argument operates. There is the particular in terms of the impact on your client of vacation of the section 50 order. Then there is the general, in terms of deterring people from pursuing their rights for fear of unacceptable transaction costs, if you like, in terms of exposure of private matters. But you would not contend, would you, that there is any construction or constraint which can be imposed upon – I am sorry, any construction of section 50 which would guarantee to any party approaching the court with private material and material for which it seeks section 50 protection, certainty that it will be granted that protection? In other words, anybody who comes to court files a document and then seeks a section 50 order is subject to at the very least some form of evaluative process. I know there is a debate about discretion, but put that to one side. I just wonder how significant the, if you like, “deterring other litigants’” argument is in that context?

MR GLEESON: We accept there is an evaluative process and the decision we have proffered as to the guide to what is occurring which is closest is R v Mitchell which is where the appellate court does ask if there has been error in the construction and application of the critical phrase and the court looks at the manner in which a balance has been struck between competing considerations bearing upon the two outcomes which are available.

Now, whether in the end that is much different to House v The King may be for debate. We certainly oppose a view that there is simply an unfettered discretion that sits over the whole of the section, and we oppose a view which says you erect an exceptional circumstances requirement where you can virtually never get there unless you are within a narrow category. But to come back to your Honour’s question, there is an interrelationship between the private interest and the public interest in the protection of confidences.

The approach that has been taken in the Supreme Court of Canada in the decision we have cited, Sierra, which has of course a very different background, is that if it were merely a private interest in confidentiality and nothing more you could point to, if there were no larger public interest involved in the protection of your confidence in the circumstances, that would not be enough in Canada. Your Honours, you will see that in [2002] SCR. I fully recognise the different jurisprudential framework. We nevertheless offer it to the Court for some assistance.

The test which has been adopted in Canada is found at paragraph 45. It is clear that in Canada some Charter values and common law values which approximate the Charter are built into particularly the second stage of the test. Perhaps under section 50, our language is closer to the first stage and so the matters raised in the second stage, we submit, to the extent they are relevant are part of a single stage test.

Your Honours will observe at paragraphs 49 and 50 that the court in that case started with the immediate private confidentiality interest and then in paragraph 50 moved to a public interest arising out of that very same confidentiality. What they seized upon about eight lines down was whether, absent the protection, would there be a hindering of the party’s capacity to make full answer and defence or express more generally the right as a civil litigant to present the case. So the failure to make the confidentiality protection would be seen to conflict with a fair trial right. I do not put it that directly but I have attempted to build procedural fairness into the relevant interests. Your Honours will see a similar expression over the page.

Then, could I go to paragraph 55 where again there is an emphasis that the private interest should be reflective in some larger public interest. As to how much needs to be proved of the confidential character of the material paragraph 60 may be of assistance for the Canadian position. One looks at whether the information has been relevantly treated to date as confidential and on the balance of probabilities its interest could be reasonably harmed by the disclosure. We submit that on the present facts we would have established such a test. To go on as the trial judge did and say that you must lead evidence of specific harm or damage would be a mistake.

Could I then refer to paragraph 76 where the Court is discussing whether the confidentiality order would in one sense impede open justice. Critically, paragraph 78 near the end says that that:

value of the search for truth which underlies both freedom of expression and open justice would be promoted to a greater extent by –

allowing the documents to come into evidence under the confidentiality order than – and I come back to Justice Heydon’s question – than denying the order and preventing the parties and the court from relying upon that material in the course of litigation. That sort of evaluative assessment, to come back to your Honour Chief Justice French’s question, we would accept is within section 50. Open justice is then seen as important but as part of a larger range of administration of justice questions.

In paragraph 79 the court then, as did all the judges in Parish, treats it as relevant to assess the degree of intrusion on the open court principle. We submit that is part of Australian law, that an error of Justice Emmett was he never really asked “If I continue this order, how is there a real and substantial intrusion in open justice in the context of this proceeding, given the course it played out?”

Finally, perhaps, paragraph 85 is a discussion of the proper role of the media, that the media do not have a separate interest in section 50 but they are at best a reflection of the public interest, perhaps not always a perfect reflection of that public interest, and the focus must always be on the public interest. Then over the page at paragraph 86 near the bottom there is a discussion again of the weighing of open justice, and if I could be permitted to read out the last paragraph which we put as submission:

One thing seems clear and that is that one should not balance one value at large and the conflicting value in its context. To do so could well be to pre‑judge the issue by placing more weight on the value developed at large than is appropriate in the context of the case.

So, your Honours, if I could just go to Justice Emmett’s critical reasoning, commencing at page 202? Paragraphs 53 and 54 sit together. His Honour takes as the commencing point the decision of the Full Federal Court in Herald & Weekly Times 130 FCR 435.

That case, of course, was in a very different context. In that case Mr Williams had brought proceedings in the AAT which were the subject of statutory privacy rules. He lost and he brought judicial review proceedings challenging that decision and he lost again. His argument was that section 50 should have translated into it a derivative confidentiality flowing from the underlying administrative proceedings. The court perhaps unsurprisingly, particularly at paragraphs 28 and 33, rejected that argument, and said that one could not infer from protections within the administrative process that the court would accord the same protection when you came on judicial review, particularly where your case has been run, fought to a finish, and lost accordingly. He could not obtain suppression of his name; very unsurprising result.

It is in the context of that case that at page 444 of the report in paragraphs 33 to 34 the Full Court cited what Justice Kirby had said in the New South Wales Court of Appeal:

that embarrassing, damaging and even dangerous facts occasionally come to light –

if you go to court. That must give way to a larger interest.

Now, that has not been set up in a context of a case where a party is asserting a public interest in the protection of legitimate confidences and Justice Kirby was not considering that issue, and indeed I might observe he was dissent in that case, Justice Mahoney gave the principal judgment. In any event, that seems to be the launching point for Justice Emmett’s judgment that one should view this case as mere embarrassment, damaging, or dangerous facts, which we respectfully disagree with.

At paragraph 54, and again he has not brought confidence into the analysis, his Honour says, if the embarrassment or damage might deter you from proceeding that could be weighed in the mix. We would not embrace the proposition in that form. If the proper vindication of legal rights necessarily involves something which may lead to embarrassment and damage and nothing more, and a person chooses not to litigate merely because they do not wish to be embarrassed and nothing more, we do not invoke an administration of justice which says that gets you a section 50 order. We do not treat that as the touchstone. What his Honour concludes at paragraph 54 is:

That, however, is not this case.

We would respectfully commend how Justice Gilmour dealt with the issue of deterrence at pages 269 to 271, particularly at paragraphs 104 and 105 citing Justice Deane, that it is the dilemma arising from whether your confidence must be destroyed if you wish to assert your right that the court would take into account.

Secondly can I move to Justice Emmett’s paragraphs 55 and 56 which sit together. This is the point where his Honour has invoked Chief Justice Bowen’s approach in Parish. Paragraphs 55 and 56 are an almost verbatim report of part, but not all of what Chief Justice Bowen said. If your Honours have the Federal Law Report for Parish. Chief Justice Bowen’s analysis commenced at page 132 and at about point 8 he referred to proceedings concerning a secret process and proceedings to restrain the publication of confidential information where –

Disclosure would prejudice the court’s proper exercise of the function . . . to do justice between the parties.

GUMMOW J: Which parties? In which suit? It is a question which did not have to be faced in Parish but has to be faced in this case.

MR GLEESON: If one conceptually treats it as two matters within the one court proceeding, in relation to the matter between the ACC and Mr Hogan, the interest of doing justice between the parties has little to commend the publication of this material in the circumstances we have been through. If one treats it as a separate matter ‑ ‑ ‑

HAYNE J: Sorry. Just before you come to treating it as a separate matter, why does it have little to commend it as between ACC and Mr Hogan?

MR GLEESON: As between those litigants, firstly, the ultimate subject matter of the claim was legal professional privilege in documents category A.

HAYNE J: Yes. Answer: In furtherance of crime or fraud. Reply: No. See these further pieces of evidence which I put on, and we are concerned with those further pieces of evidence which I put on in answer to the allegation of furtherance of crime or fraud, are we not?

MR GLEESON: With respect, your Honour, not quite. Claim: legal privilege. Answer: Crime or fraud. Procedural request: In order to be able to fairly meet your case of crime and fraud, may I be permitted to see your documents? Answer: Yes. Have you in fact, when you tell me you have no relevant documents, complied with your obligation to the court by way of discovery? Answer: No, there is a need for a further review of discovery. At that point proceedings withdrawn. So that in terms of moving to the substantive stage of here is the evidence which is to be deployed to defeat crime and fraud, these proceedings ceased long before that stage.

HAYNE J: Why should that all not be played out in the ordinary fashion of the courts?

MR GLEESON: Everything has been played out in open court. On 19 May, when that occurred, the argument for further discovery was played out in open court. It led to an order for further discovery. The public knows that occurred. The Commission then abandoned the case. 4 July which is the public acknowledgement that the case is finished all plays out in open court.

One of the points we make is that the media has never in any submission taken this Court to any part of the transcript of 19 May, which is the 60‑page document which is available here but not in the appeal book, or 4 July and said it is not possible to intelligibly understand and comment on what happened on those days. It never attempted to look at whether there is a true derogation from the public’s ability to understand what occurred. That is the error, we submit, Justice Emmett fell into because the degree of derogation has never been assessed.

But to seek to answer your Honour Justice Gummow’s question, if one views as a second matter that invoked by the motion of the newspaper interests, at that point there are two aspects to it. One is can we have the exercise of a discretion under the rules as a third party to what is now effectively a terminated proceeding to see an affidavit which was dealt with in the circumstances we have discussed.

Secondly, but necessarily in that process, can I have a discharge of orders that were made when I was not heard by the court. To do that, we would submit, one would then ask is there some other element of the administration of justice which has not yet been adequately factored into the analysis in the first matter, which gives some larger claim which requires the discharge of the section 50 order.

GUMMOW J: The question really is, what is implicit in section 50 and I think there seems to be an assumption that when it says:

The court may . . . make such order forbidding or restricting . . . as appears to the Court to be necessary in order to prevent prejudice to the administration of justice –

it is treated as implicit the court may, at any time having made such an order, revoke it on the basis that it is no longer necessary in order to prevent prejudice to the administration of justice. Is that the idea?

MR GLEESON: We would accept that is implicit in the opening line. One then asks, in the circumstances where a party comes forward ‑ ‑ ‑

GUMMOW J: When I – just going back for a second – no longer “necessary in order to prevent prejudice to the administration of justice” and then one picks up Parish, in the action between those parties to that action, not the position of vis-à-vis the applicant under rule 6 of the Federal Court order.

MR GLEESON: Yes. Bearing in mind that because the original order, although made, I have said on an interim basis, in its terms purported to bind everyone who was capable of being bound by such an order or who came to its knowledge in terms of a contempt action and so one can see there is standing for the media to come along and say, “I wish to argue for revocation” but the essential interest of justice between the parties we submit did focus on the controversy which the court was quelling in the document at page 2.

Your Honours, just in Parish, I have dealt with page 132. At the foot of the page and over the page his Honour says, “The categories of this public interest are not closed”. He then refers to the common law authorities and indicates that they are “illuminating and helpful” but “not decisive”. It is the statutory text that must be dealt with. Then the paragraph commencing, “Open justice is the underlying assumption” plus the following paragraph are the two cited by Justice Emmett at paragraph 55.

The jurisprudential issue we have sought to raise about those paragraphs is that in Chief Justice Bowen’s analysis “prejudice to administration of justice” becomes confined to the interest of doing justice between the parties to the suit and then the claims of open justice are treated as an external criterion which somehow sit on the other side of a set of scales and the two are weighed in some unspecified fashion.

The alternative that we proffer, which is closer to Justice Deane, is that the claims of open justice always remain a legitimate part of the exercise but they must be factored into a proper assessment of what is involved in “prejudice to the administration of justice”. In the next paragraph which commences, “It is not possible to define in advance the degree of prejudice” we would emphasise the sentence which says:

The collocation of the alternative phrase “security of the Commonwealth” suggests Parliament was not dealing with trivialities.

The Solicitor‑General’s submissions in favour of there being a stage two discretion say that there must be because there would be cases where there would be found to be a trivial or not material prejudice to the administration of justice and the court must have some residual discretion to decline to make the order. We would simply proffer, as per Chief Justice Bowen, that the law is never, and certainly not here, concerned with trivialities. If it is not a material prejudice, the case will be dismissed at stage one.

At the foot of that page Chief Justice Bowen speaks of the metaphor of weighing the scales. To the extent his Honour seems to be putting open justice in one side and prejudice to the administration of justice on the other, we disagree. On page 134 in the second last paragraph his Honour correctly recognises the public interest in the Court’s proceedings not being:

permitted to destroy or seriously depreciate the value of such confidential information.

We embrace that statement. Likewise at the foot of page 135 is a very important statement that there is a:

public interest in preserving the privacy of confidential arrangements so far as practicable ‑

and it is part of a public interest in “doing justice between the parties”. What we are seeking to flesh out is that “justice between the parties” means not just a fair hearing on the final issue but includes, of course, procedural fairness. If your Honours could then go to page 136, the second paragraph commencing: “Although the principle of open justice is of great importance” et cetera, that is the only other part of Chief Justice Bowen’s judgment that Justice Emmett cited. He did so at paragraph 56. It indicates that his Honour’s focus was not upon the public interest in protecting legitimate confidences.

That paragraph, which correctly states that you must look at the degree of derogation, the Court will see that although his Honour has cited it at paragraph 56 there would appear to be an inconsistency because when his Honour comes to paragraphs 60 to 61 – and that very argument is put at the end of paragraph 60, namely:

the material that is otherwise available to the public ought to satisfy the public interest in open justice without destroying his right to preserve confidentiality ‑

his Honour simply says in paragraph 61 that:

reverses the correct approach. The question is not whether the public has access to sufficient information to enable it to understand the nature and outcome of the proceeding.

We respectfully disagree. That is an important part of the question. So what his Honour is here doing is putting, we respectfully submit, open justice on each side of the scales as an undifferentiated heavy mass. The balance of Chief Justice Bowen’s judgment considers the reason that the trial judge Justice Brennan erred. That is of some little importance to see what the error was. If your Honours could go to page 135 – I am going back one page – in the second last paragraph his Honour seeks to summarise the essence of the trial judge’s reasoning, and that was that on one side of the scales was the private commercial interest of the respondents in confidentiality and on the other side was a derogation from open justice. The error in that was that – this is the passage I had referred to – it is not just the private interest but a public interest that is being brought to account.

Could I go finally to page 138 in the judgment to the paragraph commencing “At the trial of the matter”. His Honour contemplated that even at the final hearing, even with these allegations of public significance concerning breach of the Trade Practices Act, it may well still be possible to conduct a case with the confidential material maintained confidential, and that illustrates, we submit, the correct approach to the confidences.

In the judgement of Justice Franki could I refer to simply to three parts. On page 145 in the middle paragraph the second sentence reads:

The legislature has seen fit to include specific powers in ss. 17(4) and 50 of the Act. It must have been intended that the court would exercise those powers where it seemed desirable so to do in the interests of justice.

We do not wish to draw too much from that, but it is an indication that what his Honour was contemplating was that if there has been a proper and full consideration of prejudice to the administration of justice in all its aspects, in all its evaluation, and if necessary has been satisfied, the legislature then intended the power would be exercised as opposed to there being some further discretion on unstated grounds to then permit something which has already been found to be a prejudice to the administration of justice and that is why we suggest there may not be a stage two discretion. Chief Justice Franki at page 146, in the long paragraph about 10 lines down said:

I do not see how justice can be done between the parties when a document is made public, not for the purpose of the judge coming to the correct conclusion, but merely for the purpose of enabling the public to perhaps more fully appreciate the nature and course of the proceedings . . . in circumstances where –

there may be harm arising from the destruction of confidence, and again at 147, in the middle paragraph Justice Franki appears to have contemplated that the power was coupled with duty. Then in Justice Deane’s judgment which we would ‑ ‑ ‑

FRENCH CJ: I note that he addresses the question of removal of the protection also.

MR GLEESON: Yes, and the essential error of discretion which was found in this case was, at the early stage of the matter when there was going to be a destruction of confidence, and it was certainly not clear that the confidential material was going to be central to the outcome, the proper exercise of discretion was to preserve the confidence, at least to the hearing, and then our case becomes an a fortiori, that was the reason to make the order, when there will be no hearing that interest should lead to the order being permanent.

KIEFEL J: How much weight do you give though to the making of a confidentiality order at the time that material is introduced into evidence when the public interest aspect has not been considered?

MR GLEESON: We do not give it weight in terms of the court saying there has been a prima facie adjudication of a legitimate public interest which someone needs to persuade me should be departed from. It is not that sort of case.

KIEFEL J: Do you approach it rather from the state of mind of the part providing the information?

MR GLEESON: No, I do not do that, because that is an error, but the order having been obtained in circumstances which occurs frequently in court whereby a matter cannot be given the fullest of attention, but it having been obtained, one looks back objectively and says, did that order advance the administration of justice by what it enabled to occur? It did enable that procedural stage of discovery to proceed further as it should, and it did so preserving a confidence and without any need to understand the content of the document to keep faith in the system.

One can look back and see that was a proper purpose achieved by the order, and put differently, had Justice Emmett had time to make the order on a considered basis on 19 May, the correct exercise in the power would have been to make it for those reasons. Then one comes to August, looks back and says has anything changed to weaken that interest? No, there is something which had added to it.

FRENCH CJ: He made it generally subject to liberty to apply as between the parties.

MR GLEESON: Liberty to apply as between the parties. So in Justice Deane’s judgement, at 149 in the last paragraph, I recognise that Justice Deane as did Chief Justice Bowen but not explicitly Justice Franki proceeded on a basis that a House v The King approach was to be adopted. That is the approach that has been generally followed in the Federal Court. If we are confined to House v The King, we do submit there is an error within the first limb for the reasons I have been advancing and in the second limb, if necessary, there is a clear injustice, but I have proffered that it is more an analysis of Mitchell rather than House v The King.

Then in his Honour’s judgment at page 155, the part where his Honour departs from Chief Justice Bowen jurisprudentially, and we submit correctly, is the last paragraph, that it is an assessment of “overall prejudice”. Open justice comes in as part of that assessment. It is not some freestanding counterweight. Then further over the page at 156, his Honour says that the claims of:

open administration of justice will vary from case to case according to the nature of the case and the materiality of the evidence.

They are critical variables. His Honour says if the case is a civil one and if the evidence can be perceived to be of little materiality to the outcome, the claim of open justice is weak. That is correct, we submit, and that is our case. The protection of legitimate confidences the Court is aware of. Justice Deane dealt with that at page 157, second-last paragraph, and this Court has cited that paragraph of Justice Deane’s judgment.

Could I then go to, just finally, at page 161, why it was that Justice Deane did not find appealable error notwithstanding the approach he had taken. His Honour said that it caused him:

more than ordinary difficulty . . . whether Brennan J was in error in declining to preserve confidentiality –

on an interim basis. Justice Deane said:

It may be that, for one reason or another, the proceedings will come to a premature end. It may, be that, in the event, the detailed financial provisions . . . [will be seen] to be of little significance in –

then I emphasise the phrase –

the presentation or resolution of the case.

That prescience of his Honour is, with respect, exactly our case. That was the reason the order should have been made on 19 May on a considered basis if time available. Once the proceedings had come to a premature end, and as his Honour says the information was of little relevance to the “presentation or resolution of the case”, and that invokes the notion of judicial power, what is being exercised to quell the controversy, then the claim to protect a confidence becomes a particularly strong one.

Justice Deane went on to acquit the trial judge of error on the ground that in the particular circumstances of the case the parties had in effect agreed to have it decided once and for all at the interlocutory stage irrespective of what might happen at the trial, and so in that particular context said, well, perhaps the trial judge’s decision just scrapes within an available exercise of discretion. So, your Honour, just as briefly as I can returning to the balance of Justice Emmett’s judgment ‑ ‑ ‑

HAYNE J: Just before you do, Mr Gleeson, may I take you back to see whether I understand the essence of the proposition you were advancing? I am looking at paragraph 2(d) of your written outline, the statement of issues. Do I understand the fundamental proposition you advance to be that there is “prejudice to the administration of justice” to permit “publication of evidence” – let us leave aside “permit” – but to have “publication of evidence” if that would destroy confidence, “a legitimate confidence”?

MR GLEESON: Absent an overriding matter and so the “particularly when”, the “particularly when” at the end of our proposition builds in the notion of materiality to ‑ ‑ ‑

HAYNE J: I understood that, but the “particularly when” clause is the public has no need to know. I understand your basic proposition to be this accounting information, or accounting advice rather, was delivered privately and was confidential – the accountant giving it was obliged to keep the advice confidential. Is that right?

MR GLEESON: Yes.

HAYNE J: Your basic proposition is, is it, that there is prejudice to the administration of justice to permit publication of evidence which is a communication by the accountant to the client and the prejudice is identified by the observation that the accountant was bound to keep his advice to his client confidential – was bound to his client to keep the advice he gave his client confidential. Is that right?

MR GLEESON: Your Honour, that is close to the heart of it, but we have accepted as per Justice Deane’s judgment that there is ultimately a single criterion in section 50 which is looking at overall prejudice. So I am not putting a proposition that every time there is the tender of material of that character an order must be made; that would overstate the position. If that were the only fact, that it was a tender of material where the publication would destroy the value of that – of the confidence in that material, otherwise respected in other branches of the law, the law would regard that as prejudice.

Then one says, what else might there be about the circumstance which says that the concept of administration of justice would be done short service if you stop there. So the hardest case would be if one comes to a final hearing, if the centre of the action, the fundamental element of the action, requires the court to adjudicate upon matters going to the heart of the content of that document the case becomes harder but not impossible.

GUMMOW J: I am sorry, could you say that again, Mr Gleeson?

MR GLEESON: If at the final hearing ‑ ‑ ‑

GUMMOW J: Final hearing of what?

MR GLEESON: Of a claim directly concerning a confidential document, a claim for enforcement of the right of confidence, a claim that no confidence exists, or whatever, if, in that context, at the very centre of the case the court must adjudicate upon the content of the document and there is therefore evidence bearing on the content, there is cross‑examination on it, there is submission directly upon it, it becomes harder to say that this Court is bearing the functioning hallmarks of an open court if I make a wholesale confidentiality order which is almost in camera but it is not impossible because as Justice Deane said, one looks at the nature of the case.

If it is a civil case the claim is not as great as it would be if it was a matter of status or a criminal case. One assesses materiality of the evidence and, in effect, as Chief Justice Bowen said, the court is astute not to allow the destruction of the confidence until it becomes necessary and when it comes to the reasons the court may be able to frame its reasons without setting out the precise content of the document. It would strive to do so, it does every day of the week.

In some cases the judge will ultimately say, “I can do nothing but record some aspect of this document in order that the public can see what justice I have exercised in the case”. That is why, your Honour, we cannot put a bright line rule that as long as I establish A I must have an order.

HAYNE J: But the “particularly” clause directs attention to the fact that you say, do you, that the inquiry for a court is, or at least includes, does the external observer need to know what these documents say to understand what is happening in the litigation. Is that right?

MR GLEESON: It is a relevant matter.

FRENCH CJ: Is that not reflected – the issue at (d) to which Justice Hayne directed your attention, is that issue dealt with, in effect, in your submissions in (g) and (h)? Are they the two propositions? That is (g) and (h) at paragraph 35 on page 7 of your submissions.

MR GLEESON: Yes.

FRENCH CJ: The second one seems to deal with the schedule of inferences, I think, does it not?

MR GLEESON: Yes.

HAYNE J: Let me pursue that a little further, if I may? Leaving aside the schedule of inferences, do I understand the essence of the procedural circumstances that give rise to the immediate question to be these, that Mr Hogan filed some evidence which it was to be submitted would show that ACC may not have made proper discovery? The documents which are the immediate focus of these proceedings, other than the statement of inferences, were private accounting advices. Is that right?

MR GLEESON: Yes, your Honour.

HAYNE J: So is it the position that you say that at least at the time of the first making of a section 50 order, and there may be a number of intermediate steps that then arise and must be confronted about what to do on the motion brought by the media interests after termination of the action, but at least at the time of the first making of the section 50 order the section 50 order should have gone – it went by consent – but should have gone because disclosure of the documents would have disclosed material which the creator of the document, the accountant, had been bound to his client to keep confidential?

MR GLEESON: Yes, for a number of reasons. Because (a) it ensures coherence of the law with the protection it would otherwise give in the confidential jurisdiction, but (b) in terms of administration of justice, which is the touchstone, that for the law to do otherwise is for the law to say to a party you cannot make use of the interlocutory processes otherwise available in order to see a matter come to a fair hearing without peril of destruction of your confidences, and that that is a prejudice to the administration of justice to say that is the way the court treats the citizens, and it opens up a disconformity in the final suit for protection of confidential information that I was discussing with Justice Gummow where it is everyday the position the party says, “I tender it, I seek a confidentiality order, the subject matter of my whole action is X”.

It would make a nonsense of the proceedings for the other party to be able to say, “Open justice means I must see it” even though the other party is the alleged infringer. That is not difficult to grasp. One moves back to the interlocutory stage and says, “What I am tendering are not the documents which are the ultimate subject matter”, which would be kept confidential and were in this case, “but I am tendering a related set of documents – closely related – also confidential, not with a claim of legal privilege but with a confidential claim for a limited purpose”, a limited purpose of establishing a procedural right. Should I be told by the Court I must elect. My election is give up my procedural right, or accept that once I tender I lose my confidence, and that, we submit, involves the very deterrence factor which Justice Deane referred to. Your Honours, the only other – what Justice Emmett seemed to contemplate is that, and can I refer to paragraph 64 ‑ ‑ ‑

KIEFEL J: Just before you go to it, when you say “confidence”, in a sense you are saying “privacy”, are you not?

MR GLEESON: More than privacy, your Honour.

KIEFEL J: If you take away confidence – “confidence” has a number of connotations, legal and moral. There might be a moral obligation on the part of the accountant to hold the confidence, but from the client’s perspective, it is the notion of privacy, is it not, that is involved?

MR GLEESON: The client would have a right to hold the accountant to the obligation, either in contract or in equity.

KIEFEL J: But you are not asserting that the making of a section 50 order attaches to a legal obligation in this case?

MR GLEESON: We are not asserting and I think we are at the same level as the ACC on this point, at least, that within the section 50 proceeding, the applicant is not required to prove the full elements of a cause of action against a third party. That would make a nonsense of the section 50, but the test we propose is using the words “appears to be necessary”, the court looks at the material which is available to it and says by reference to what is known about the character of the document, the circumstances of its creation, the obligations which the law is otherwise likely to protect in such a document, is it of a character that it is susceptible of proper protection under the law. If it is, and these documents pass that threshold, then the interest is invoked. That is the level we would put it at.

I just want to indicate in Justice Emmett’s reasons, 61 we have submitted is the correct approach, 62 you do not need evidence of specific damage, 63 there is an error at the end which infects the ultimate decision. His Honour in the last sentence focused on the Commission’s interest in obtaining the original orders and thought that was the only relevant interest. Paragraph 64, which I am coming to, his Honour – in a sentence we disagree with – seems to have considered that if you tender the information and you make a public election that I will not tender unless I get a permanent section 50 order, then I have a fairness interest. Apart from the practical considerations of what the judge is likely to say, namely take your own course, we would submit that that does not reflect the fairness interest between the parties and is not a course that the Court would require as an element of the order.

His Honour comes back to that concept in paragraph 65 at about line 25; perhaps it might have been different if the Court had been told unless there was a permanent order “the evidence would not be tendered”. Paragraph 66 is critical to our case in terms of there being a prima facie confidence. What happened was the proceedings were actually adjourned to allow the intervenors to go away and get evidence, to see whether the material was in the public domain, and that included both the confidential accounting advices and the allegations in the inference schedule, and the intervenors failed in that task, we see that from the last sentence. So that was an important step in the finding that the material not being in the public domain was otherwise susceptible of protection in law. Paragraph 67, his Honour comes back to the failure to prove specific harm in relation to the accounting advices. That, we submit, overlooks the question. Paragraph 68, his Honour correctly accepts that Mr Hogan was prompted to tender the evidence because of his need to pursue his interlocutory claim. The error comes back in in the last two sentences. His Honour said the order:

was made at the behest of the Commission, in order to preserve the integrity of –

its processes. That cannot be true for the order on 19 May, it was made at Mr Hogan’s behest. Paragraph 69, his Honour deals with the inference schedule. Again, about eight lines down comes back to this idea of, you might have got the order if you had an expectation they “would continue in perpetuity”, which can hardly be the test. His Honour then correctly finds that Mr Hogan could not prosecute this right without the tender of the material – a critical finding in our favour – and says that is not enough.

In paragraph 70, his Honour comes back to the error:

The orders were made for the purposes of protecting the integrity of the Commission’s fresh investigations.

So that what has happened in the end is his Honour has, in effect, said ‑ ‑ ‑

GUMMOW J: What do you say is the error in that second sentence of 70?

MR GLEESON: The error is that the critical order, the one made on 19 May, was made on Mr Hogan’s application, not on the Commission’s application.

GUMMOW J: Were any relevant orders made on the Commission’s application?

MR GLEESON: Some were, and some were made on Mr Hogan’s application, but the 19 May order was clearly made on Mr Hogan’s application. It was made by him asserting the public interest in confidence, that not being adjudicated on on that day, but that being the asserted basis. Now, it had absolutely nothing to do with protecting the integrity of their investigations.

FRENCH CJ: Just remind me, when did the Commission say that it no longer needed section 50 protection?

MR GLEESON: What it said was it wanted to keep section 50 protection for its material that had been filed, but not led.

FRENCH CJ: That is right, it had agreed with Mr Hogan originally, yes.

MR GLEESON: Yes. It wanted to keep that, but it then said, so far as it is your material all bets off.

GUMMOW J: When did that happen?

MR GLEESON: That happened a day or two before 19 May, or the morning of it.

HEYDON J: It informed the court ‑ ‑ ‑

MR GLEESON: It informed the court.

HEYDON J: ‑ ‑ ‑ on 19 May.

MR GLEESON: Yes. So what, in effect, has happened in the end is that his Honour has not directed attention to – coming back to your Honour Justice Kiefel and Justice Hayne’s question – would there have been a legitimate interest in the preservation of the administration of justice in making the order on 19 May had there been a considered debate of it, and would confidentiality in the appropriate sense have justified the making of the order? So his Honour’s ultimate approach in 71 is, well, there is no longer a justification for continuation, that seems to be heavily tied to paragraph 70, that the only legitimate basis ever established was the Commission’s basis; that is gone, no orders. Your Honours, we commend the whole of Justice Gilmour’s careful ‑ ‑ ‑

GUMMOW J: Just a minute. At page 207 his Honour indicated he was going to make various orders, particularly upon the application for access to material, is that right?

MR GLEESON: Yes.

GUMMOW J: Did that ever find its way into an order? All we seem to have are the orders at page 210 which is just talking about section 50. Has there ever been an order made disposing of the application of the Federal Court Rules? Order 46, rule 6?

MR GLEESON: Yes, it is page 183. His Honour proceeded in two stages. At page 183 ‑ ‑ ‑

GUMMOW J: That was on 21 August.

MR GLEESON: On 21 August his Honour in orders 1 to 3 dealt with the media application, save for the critical documents which are in paragraph 4. Your Honour’s analysis is correct, that the ultimate order which is at page 210 has vacated the section 50 order but has not granted the access.

GUMMOW J: Order 3 on page 183 remains, does it not?

FRENCH CJ: That is covering other documents, is it?

MR GLEESON: Order 3 remains intact but item 8 excludes the critical material.

FRENCH CJ: That is DPR1, the relevant parts?

MR GLEESON: Yes.

FRENCH CJ: That covers the schedule of inferences and the accounting advices and the like?

MR GLEESON: Yes.

GUMMOW J: So there has never been an order under Order 46, rule 6 relating to those vital matters in item 8 on page 184?

MR GLEESON: That seems correct, yes, your Honour. Whatever view is taken of the ‑ ‑ ‑

FRENCH CJ: How much longer are you going to be, Mr Gleeson?

MR GLEESON: I am trying to sit down in two minutes.

FRENCH CJ: Okay.

MR GLEESON: If I am permitted to hand up two documents I will sit down. The first document seeks to summarise the eight errors in Justice Emmett’s judgment, which on any view of appellate intervention required the Full Court to intervene. The second document seeks to pull together what we have said on the construction question.

FRENCH CJ: Well, maybe you had better give some consideration to the significance of the absence of any order under Order 46.

MR GLEESON: Could we think about whether that affects us, or helps us?

FRENCH CJ: Do we have a controversy?

MR GLEESON: Could we consider that, your Honour?

FRENCH CJ: Yes, all right. We will adjourn until 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

FRENCH CJ: Yes, Mr Gleeson.

MR GLEESON: Could I inform the Court that there is an agreement between the appellant and the third respondent, to which the first and second respondents have no interest and do not oppose, that two things will happen. Firstly, the parties will approach Justice Emmett to ask him by consent to amend the order at page 210 to include access to the disputed documents, such that the order is brought into line with his Honour’s conclusion on page 207 at paragraph 73. Secondly, the parties will approach a judge in the appellate jurisdiction of the Federal Court to extend the stay at pages 282 to 283 so that it ‑ ‑ ‑

GUMMOW J: The order of the Full Court needs some adjustment, does it?

MR GLEESON: The Full Court order ‑ ‑ ‑

GUMMOW J: Page 280, appeal from what is dismissed? That is what we have before us.

MR GLEESON: Yes, your Honour. The agreement extended as far as, (a) amending Justice Emmett’s order, (b) fixing up the stay which is pages 282 and 283, and I propose, subject to anything Mr Jackson says, to make the necessary amendments to the order at 280 or to ask for that to be done by the Full Court and for us to provide this Court, if possible within seven days, with a copy of those three amended orders. Apart from that, we have provided your Honours with a copy of the order your Honour Justice Gummow asked for of finally disposing of the proceedings, and I suggest that go behind the final tab of our supplementary materials. May it please the Court.

FRENCH CJ: Thank you, Mr Gleeson. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I just say something initially in response to what your Honour Justice Gummow said at the start of the proceedings? May we, your Honours, with respect to the case described as Cox and Railton plead not guilty? Your Honours will see that there is no reference to that case in our written submissions.

GUMMOW J: No, that is right.

MR JACKSON: Your Honours, could I then go on to this? This is a case where one is dealing really in an area of public law, not the private type of civil case in the sense that was being referred to in the passage from Justice Deane in Parish that our learned friends read this morning. It is extremely important, in our submission, to identify the nature of the proceedings in which the present issues arose and how they arose. In that regard, and, your Honours, I do not intend to go into the great deal our learned friend has been into, but may I just say these things? The proceedings which gave rise to the present issues were not ancillary to any other proceedings, they were freestanding.

Your Honours have been taken to the application that was made and to the final disposition of them, but they arose, as your Honours will see, from the reasons for judgment of Justice Emmett at page 188, paragraphs 3 to 5 because the first respondent required production to it of documents pertaining to, amongst others, the appellant. You will see that in paragraphs 3 to 5 and you will see, in particular paragraph 3, the purported exercise of the relevant statutory power by the public body.

Now, the appellant then caused proceedings to be commenced in the Federal Court contending, to put it shortly, that the documents were the subject of legal professional privilege and thus could not be used by the first respondent. That claim, it may be noted, ultimately succeeded in respect of most of the documents in respect of which the legal professional privilege had been claimed. Those in respect of which the appellant succeeded were ordered to be returned to the appellant, and you will see that at page 191, paragraphs 15 and 16. Now, your Honours, in respect of such documents in respect of which there had been a claim to legal professional privilege which failed, there was no appeal, and the documents which are in question in these proceedings are not the privileged documents.

We have not seen the privileged documents, we do not seek to see them, and the first respondent, whatever they contain, is not able to rely upon them. To put it shortly, in the substantive matter, the appellant succeeded and the privileged matter remains privileged; it cannot be used by the first respondent. Now, your Honours, in the proceedings the first respondent contested the claim made for legal professional privilege on two bases; the first was that the documents were not the subject of legal professional privilege in the sense that, leaving aside any question of a crime or fraud exception, that they had not been made or prepared in circumstances that attracted that, and the second was that even if they were they were created in, to put it shortly, in pursuance of a crime or fraud.

As your Honours will see from the reasons for judgment of Justice Jessup at page 237, paragraph 12 – I am looking at about line 20 – the parties had requested the primary judge:

to examine the documents and to make a prima facie (but not final) ruling whether they . . . would sustain a claim for privilege.

He held they were “prima facie, entitled to privilege”. Now, your Honours, one then sees – if one just goes to the next page in paragraph 14 in the recitation of events – one then sees that the appellant sought discovery from the first respondent in relation to the contention that the crime or fraud exception applied, and an order for discovery was made. The discovery was apparently regarded as unsatisfactory and a further order was made.

Your Honours will see that at page 239, lines 28 to 34. I am using the lines on the left‑hand side of the page. One will see that also at page 241 in paragraph 18 where it is recorded that the primary judge had:

ordered the Commission to conduct a further review of the documents in its possession, and to assess each document with respect to relevance and to its tendency to affect adversely, or to support, any allegation made in the inference schedule.

Now, your Honours, the order then made is the one your Honours will see at page 181, and you will see in particular paragraph 8 of that order. I will not read it out, your Honours, but it is to the effect as has just been summarised. Now, what your Honours see is that the first respondent then abandoned its reliance on the crime or fraud issue. You will see that recorded, cited, at page 241, paragraph 18.

Now, your Honours, in the course of obtaining the further order for discovery, the appellant had put in evidence the documents which fell into two categories, or two groups, to which reference has been made earlier. One was the document prepared by the first respondent, the inference schedule. It was, as we would understand it, a document which refers in a summary way to the respects in which a criminal or fraudulent purpose was said by the first respondent – it is not the first time I have used the expression I am about to use, and it will not I suspect be the last – a public body to be inferred from documents in the position of the first respondent.

Now, that document, your Honours, the inference schedule, was a document which was prepared by the first respondent. It was prepared by it in pursuance of a direction of the court. It was not a document prepared by or on behalf of the appellant, and it is difficult to see how any claim to confidentiality of that document could be made as being a document over which there was any control.

I will come in a moment, your Honours, to the reference that was made to the Hearne v Street Case by Justice Gilmour, because Justice Gilmour’s reference did not refer also to the qualification in that passage to which he referred, namely, that the confidentiality in the sense of not being able to be used for a purpose other than in the court, other than that of litigation, did not apply once a document had gone into evidence, but may I come back to that?

Now, your Honours, the other documents were documents as appears from page 239, paragraph 15, documents which were obtained from the appellant’s accountants. Now, your Honours, the ‑ ‑ ‑

HEYDON J: I am sorry, 249, paragraph?

MR JACKSON: I am sorry, 239, paragraph 15, your Honours, in particular. Your Honours will see them referred to as e. in the indent of the quoted part. Now, your Honours, could I just say this? The accountants may have been subject to a duty of confidentiality as between themselves and the appellant. The appellant, however, could use those documents as the appellants chose, or for whatever advantage he might see by using it.

Now, your Honours, neither the inference schedule nor the accounting documents was relevantly the subject of a claim for legal professional privilege. You will see that referred to in the Full Court by Justice Jessup at page 251, paragraph 41, and the relevant passage, your Honours, is in the first sentence of that paragraph and it goes on a little. Now, the documents, your Honours, were documents which the appellant put in evidence as part of defeating the contention that the privilege documents, the subject of the proceedings, were brought into existence in pursuance of or a part of a crime or fraud.

If I can go for a moment to the argument advanced before your Honours on behalf of our learned friend? That argument rather treats the case as turning entirely on the appellant’s own interests. The matter, however, was to a degree and to a significant degree one which was in the public domain, and there were two sides to the case. One had a situation where the ACC had resisted unsuccessfully a claim that documents it had acquired compulsorily were the subject of legal professional privilege. It was not just that. The ACC, the public body, had also alleged crime or fraud against the appellant, a public figure.

Could I pause at that point, your Honours, to say this? If one goes to page 205, paragraph 66, you will see the results, and my learned friend has taken your Honours to this paragraph, but you will see about halfway through the paragraph it says:

The searches revealed that it has been reported that the applicant has personally asserted in public that his affairs are the subject of an investigation by the Commission.

You will also see, your Honours, in the last sentence:

the searches did not reveal information concerning the personal, financial or taxation affairs of the applicant in the detail contained in the evidence.

Now, could I return to what I was saying a moment ago, your Honours, and that was that the first respondent had alleged crime or fraud against the appellant. He had, in effect, forced it to withdraw the allegation. He had only been able to do so after obtaining in the first place an order for discovery, and your Honours, the making of the subsequent order suggests that the first order for discovery had not been complied with satisfactorily by the ACC.

The withdrawal of the allegation was one made only after he had obtained another order for further discovery, and that, your Honours, was an order which the ACC had elected not to comply with and then withdrew the allegation of crime or fraud. Now, your Honours, apart from the individual interests, whatever they might have been, of the appellant, the conduct of the ACC itself gave rise to some questions of public administration and the conduct of litigation by a publicly funded body, and there is too narrow a focus to treat the case as one which concerned only Mr Hogan’s private affairs. Your Honours, as of course, Oscar Wilde found, as often happens with litigation, if one starts the hare running, one cannot always predict where the hare will end up. Your Honours could we just say this also? One notes in passing, if one goes to the reasons for judgment of Justice Gilmour at page 276, paragraph 124, that his Honour said that there was a second factor which was not considered:

It is that the respondents abandoned the Cox and Railton point –

as his Honour put it –

before complying with the further discovery orders of 19 May 2008. There was no justice then to be done between the parties at that time and on that question. It was as if it had never been raised. The legitimate interest of the public in the full disclosure of the evidence tendered by the appellant on that day is, in my opinion, in these circumstances, marginal and of little weight –

et cetera. Could we just say this, your Honours? That, with respect, takes an unduly limited view of the matters. The fact was that the issue had been raised. It had been raised, presumably seriously, by the ACC. The ACC, however, had chosen to resile from the allegation when it was ordered to discover the material relied on to justify it, and the public body, the ACC, had done so only, your Honours, after there had been a second order requiring compliance with discovery and that second order being one with which it chose not to comply.

Your Honours, one might well take the view that this was a case where the conduct of the ACC itself was something that the public was entitled to scrutinise. Your Honours, there is a further feature which arises from it, and it is this; Justice Gilmour at page 275 – it is in the passage which, your Honours, starts at paragraph 119 and goes through to paragraph 124. His Honour said – and I am referring particularly to paragraph 120:

The transcript of the hearing is available. It runs to some 60 pages of argument by the parties to the motion. The orders made on 9 August 2007 and 19 May 2008 are quite detailed and publicly available. It is quite evident that the primary judge was satisfied that insufficient enquiry had been made by the Commission in supposed compliance –

et cetera. Now, his Honour took the view that the public had, in effect, sufficient information but, your Honours, that looked at matters, we would submit again, from too narrow a point of view. Why should not the public be entitled to know what case had been alleged against the appellant which the first respondent had abandoned in order to judge relevant conduct and your Honours to have also available the material which had been relied on successfully to demonstrate that that case was insubstantial?

Now, your Honours, it does not matter in that regard that the case was over because it was something that had occurred. Could I just deal with one, with respect, relatively trivial aspect arising from the observation about the availability of the transcript. Our learned friend said, well, the transcript is 60 pages. It is available. If we say it was not good enough – we, our side - say it was not good enough then we should have said something about it. The burden, we would submit, lies on the party seeking non‑publication and if it is sought to say the transcript is good enough then surely that can be put before the court.

Could I refer also to what has been said by the first and second respondents in their outline of submissions at paragraph 46 and in particular to the last five lines of that paragraph. We would submit this is correct:

It is also important to recognise that the making of a s 50 order on the basis of an applicant’s fear of embarrassment may adversely impact upon the position of third‑parties, who may be subject to unwarranted speculation in light of the inability of the public to know who or what is the subject of the Court’s proceedings.

Your Honours, applying that, mutatis mutandis, to the present case we would submit it is a case where the public had an interest in knowing the reasons for the conduct of the matter and the way in which it was resolved. It is not at all this case. It is not at all one which can be compared in a very quick and dispositive manner by saying this is just a case where the parties disagreed and then they agreed everything that happened should be kept between them. I have submitted the reasons for that already.

Could I come then, your Honours, to the place which section 50 occupies. Section 50 has to be considered in the context of the Federal Court of Australia Act. It is not in that sense – in that context, your Honours, a dominant provision, rather, it is one of the exceptions to the more general statement contained in section 17(1). Your Honours will see, of course, that section 17(1) says:

Except where, as authorized by this section or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.

Now, your Honours, in our submission one should not underestimate the effect to be given to the value or ethic reflected in section 17(1). It reflects a view, long held in relation to courts as distinct from tribunals not answering that description, that a hallmark of their performance is that the performance takes place in public. One of the reasons commonly assigned for that view is that it enables the performance of all those engaged in the litigation to be observed, scrutinised and commented on – sometimes very harshly and unjustifiably by litigants or other persons who may be involved. That applies to the conduct of the judge or judges or judge and jurors, the counsel and solicitors, the witnesses, to a degree the parties; that is all those involved in the administration of justice.

Could we refer your Honours to the references we have given in our written submissions in paragraphs 12 to 14 – if we could take your Honours to those for a moment - particularly paragraph 12 where we give a number of references in that regard. I do not intend to go to the detail of those cases but could I take your Honours to one relatively recent reference and that is some observations by your Honour the Chief Justice in K‑Generation v Liquor Licensing Court (2009) 237 CLR 501. If I could go to page 520, paragraph 47 through to paragraph 49, in paragraph 47 there is a reference to the:

well established and conservative principle of interpretation that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law.

Your Honour goes on to deal with that more fully or in a manner more related to the present case in paragraph 49.

The open court principle is of long historical standing -

and, your Honours, that goes through to the end of paragraph 49. Could I just pause to say, your Honours, the leading English case is of course Scott v Scott. In Dickason v Dickason this Court in one paragraph in I think the same year of reporting at least simply applied Dickason v Dickason – or treated Dickason v Dickason ‑ ‑ ‑

HEYDON J: Scott.

MR JACKSON: Scott v Scott – I am sorry, your Honours.

HEYDON J: Lord Shaw in Scott.

MR JACKSON: ‑ ‑ ‑ as stating the law applicable here.

Your Honours, one might perhaps add that performance in public, of course, is in one sense a corollary of, and perhaps part of that quid pro quo for, the immunity from suit which exists for judges, witnesses, legal practitioners and to a degree parties. Your Honours, considerations of the kind to which I have referred suggest, we would submit, that the general principle referred to in section 17(1) should be given its full weight, and that the exceptions contemplated by the opening words of that provision should not either be treated as dominating or be given an operation wider than their terms require.

Your Honours, the relevant exceptions to section 17(1) contained in the Federal Court of Australia Act seem to be section 17(2), section 17(4), section 23HC and then section 50(1). Coming, your Honours, to section 50(1), we would submit that its terms suggest that it is not to be applied especially broadly. One sees, first of all, the reference to “forbidding or restricting the publication of particular evidence”. One sees the requirement that forbidding or restricting the publication of that evidence “be necessary”, and thirdly, that it be necessary “to prevent prejudice to the administration of justice”.

Now, your Honours, if one turns for just a moment to the reference to particular evidence, no doubt that reference might in some circumstances relate to the whole of the evidence in a proceeding, but the reference to “particular evidence” does suggest that the application of the provision in the more ordinary course will require attention to be paid to particular pieces of evidence to see if they give rise to the need later referred to in section 50(1).

GUMMOW J: Section 23HC is only included in 2009, was it not?

MR JACKSON: I think that is so, your Honour, yes.

GUMMOW J: At 106 of 2009.

MR JACKSON: Your Honour, yes.

GUMMOW J: It is after the events, is it not, in this case?

MR JACKSON: Yes, it is, yes.

FRENCH CJ: It contemplates the conferring of criminal jurisdiction on the Federal Court, does it not?

MR JACKSON: It does, your Honour, yes. You will see the reference to “indictable primary proceedings”. I am sorry, your Honour is right. It is one of the current list, I think it was not the list at the time of these proceedings.

GUMMOW J: And the same act amended section 50, I think.

MR JACKSON: Your Honour, our learned friends note that amendment and do not suggest it affects the provision, nor do we. Your Honours, if one comes to the concept of being necessary, that suggests that the making of the order is required in order to prevent prejudice the administration of justice, not really just a matter which is purely optional but something that is actually required. The third thing, your Honours, preventing “prejudice to the administration of justice”.

That requirement is expressed in relatively strong terms, the word “prevent”, and it is a reflection of the concept that the ability to prevent publication of evidence should be used only when necessary in order to ensure that justice can be done. And, your Honours, it is interesting to see that the combination of concepts that one sees in section 17(1) on the one hand and this part of section 50(1) on the other, was adverted to in the speech of Viscount Haldane in Scott v Scott.

Could I take your Honours to that for a moment in [1913] AC 417. I wanted to refer to the paragraph commencing at about point 4 on page 437, and the point which I seek to make about it, your Honours, is that his Lordship, in terms that seemed to involve the same concepts as those in those two provisions, speaks of the circumstances in which there would be an order prohibiting publication. Your Honours will see in the second sentence of that paragraph he refers to the broad principle of administering justice in public. He then says in the next sentence, the fifth line of the paragraph:

But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done.

He then speaks in the next few lines about the position of wards and of lunatics, and he goes on to say then about three‑quarters of the way down the page:

The broad principle which ordinarily governs it therefore yields the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject‑matter –

meaning the subject matter of the suit –

illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which . . . can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

Your Honours, that passage - I appreciate it is dealing with general law rather than particular provisions - does reflect concepts which we would submit are apposite to the consideration of section 17 and section 50(1) and your Honours will note the reference to the burden. Your Honours, by reason of considerations of that kind we would submit that it has been on so many occasions said that the exercise of power under section 50(1) and similar provisions should be treated as being exceptional, and could we refer, your Honours, to our written submissions in paragraphs 25 to 35.

FRENCH CJ: Accepting the generality of the principles to which you have referred, does section 17 itself actually address the question of non‑publication when it speaks of open court?

MR JACKSON: Your Honour, section 17(1) says “the jurisdiction” is to “be exercised in open court”. Exercising jurisdiction in open court means in the ordinary course of events, we would submit, that first of all the court is open; secondly, that proceedings take place in open court, meaning that any person may go and listen to the evidence or take notes of it and so on and may publish what has taken place there. It is a large proposition, your Honours, which is subject then to, for example, the qualification in section 4 of section 17. There may be an exclusion of persons from the court which may happen in relation to witnesses who have not yet given evidence or persons whose conduct is said to be potentially threatening to a witness.

FRENCH CJ: You say the concept imports the notion of freedom to publish what happens within the proceeding?

MR JACKSON: Yes. One does see exceptions - subsection (4) keep people out of court, then section 50(1) there can be orders:

forbidding or restricting the publication of particular evidence, or the name of a party or witness –

Could I come then to say a little more about the particular case? The particular case is, as your Honours have heard, one which concerns some allegations against the appellant which in the end he succeeded in having not pursued. It concerns some material not legally privileged relating to his affairs on which he relied in order to obtain further discovery. It falls, in our submission, within the category referred to by the Full Court in the Federal Court in Herald & Weekly Times v Williams (2003) 130 FCR 435 and in particular could we refer to paragraph 29, the quotation from Justice Gibbs in Russell v Russell and then more particularly to paragraph 34 and where there is the quotation from Justice Kirby in John Fairfax Group.

Your Honours will see that it may be that even if the evidence that a party chooses to put before the court is evidence that the party would prefer not to there is still no general reason for saying that that material should be the subject of an order under, say, section 50(1). Take a case, your Honours, where an employer sues to get the money back from an employee whom it is suggested has been embezzling the employer’s firm. It commonly happens that the employer may be in a situation where there has been some material concerning the employer’s own conduct of his business which the employer would prefer to keep quiet for either perfectly good or perfectly bad reasons but it is necessary to disclose them for the purpose of obtaining the money back.

It may also be there has been some additional relationship between the plaintiff and defendant, as often happens, one might think, in embezzlement cases, and that has to be disclosed or is likely to be disclosed in the proceedings.

Now, if I could go to a matter relied on by our learned friends and referred to by your Honour Justice Heydon earlier today, this is not, in our submission, a case where it can be said that the case would not have gone ahead if a section 50 order would not have been made. In relation to that if I could go first of all to Justice Moore’s reasons at page 234, paragraph 5. His Honour disagreed and, in our submission, correctly with the view that had been taken by Justice Gilmour on this issue. He said:

It was clear that the tender by the applicant’s counsel on 19 May 2008 of the contentious documents involved a forensic risk that the s 50 regime . . . might unravel having regard to the events set out by Jessup J at [16] and following.

I will come to that in a moment. He refers to the passages from the appellant’s solicitor’s affidavit that Justice Gilmour quotes and says, after reciting it – going down to about line 22:

For my part, I think this is something of a gloss on what occurred and the position the solicitor and his client were in on the morning of 19 May 2008. What was said by counsel for the respondents at the hearing and before the tender . . . plainly put the applicants on notice that the confidentiality regime . . . was at risk because the respondents no longer contended that confidentiality was necessary.

If one goes to Justice Jessup at page 239, your Honours will see at paragraph 16, particularly the last four lines:

This left counsel for the applicant in some difficulty –

Your Honours will see that set out there. Then he says in paragraph 17:

The solution adopted to this dilemma was a pragmatic one.

Of course, your Honours, what might have happened was an application for an adjournment to consider the matter further. There is not, we apprehend it, material saying that this was the only material that was available. When I say this was the only material, I am referring to the accountant’s advices. There was not material to suggest that if that material were not used, then the application could never proceed. What seems to have happened was that there was a forensic choice made and the choice made was to take, in effect, the chance.

Your Honours, could I say this. The case was one, simply put, in our submission, where, as so often happens in order to achieve a particular result in litigation a difficult choice has to be made, otherwise private information has to be made public. Privacy, from the point of view of the possessor of material, should not be the criteria. The criterion is what is contained in the statutory provision.

We would submit, your Honours, that what is said by Justice Gilmour at page 269 in the paragraphs that go from paragraph 95 through to 104 really, with respect, overstate the position. At the time when these events occurred there had been a confidentiality regime. It was apparent that it might not continue. What was done was to set up something to keep things in a kind of status quo until the matter was resolved. That was the choice that was made, and the issue had to be resolved on the merits at the time when it arose.

A section 50 order might or might not have been made and, your Honours, that is apparent from the transcript references your Honours have been given, page 175 and following. I mentioned before, your Honours, a reference by Justice Gilmour to Hearne v Street. That reference, your Honours, is at page 272 and it concerns the inference schedule. The reference commences about line 15 on the page, where he said:

It was provided to the appellant by the Commission for the purposes of the proceedings, rather in the same way that affidavits are served inter partes. While not confidential as between the appellant and the Commission, the inference schedule was confidential as against the rest of the world as neither the Commission nor the appellant could use it for any purpose other than in connection with the proceedings without the express leave of the Court.

His Honour then cited in support of that proposition Hearne v Street, the reference there given, your Honours. Could I just say this? What his Honour said may well, by analogy with Hearne v Street, be correct up until the time when the document was put in evidence. If one goes to that paragraph, 96 of Hearne v Street 235 CLR 125 at page 154, your Honours will see the proposition in the last five lines on page 154 and then the qualification contained in the last few words on that page:

unless it is received into evidence.

What was being spoken of in this case was a document that had been received into evidence.

GUMMOW J: Say that again, Mr Jackson.

MR JACKSON: I am sorry. What was being spoken of in this case was a document that had been received into evidence. Your Honours, the concept to which his Honour was referring was one that may have been apt temporally, and temporarily perhaps also, but in reality the operation of it had ceased to be relevant.

Your Honours, might I go then to the arguments that our learned friends have put in the document which they gave your Honours this morning. There are two documents. The one I wanted to refer to first was the one headed “Appellant’s Supplementary Note on The Proper Construction of Section 50 Federal Court Act”, and, your Honours, whilst one might think inevitably we would join issue on some of the matters here, may I endeavour to say what our contentions are in relation to that approach.

Your Honours, what is set out as the first proposition in paragraph 2 does not seem to be particularly a matter in dispute. It is simply a reflection of the terms of the provision. The paragraph numbered 3, the first sentence of it again appears correct; ordinarily there will be an applicant for such an order, but your Honours, one might doubt, with respect, what is in the second sentence. The applicant for such an order would of course need to demonstrate that an order should be made.

Now, your Honours, a sufficient interest in the evidence or name in question and the need for standing to seek the order, and that there will be invariably a private interest in seeking the order, may mostly be true, but may not necessarily be so. The issue might well arise in cases where an issue concerning the national interest – if I could put it loosely – arises in proceedings where the Commonwealth or a State body is not a party to the proceedings, but the judge draws the attention of the parties to that and says, “Do the parties submit I should make an order in terms of section 51? Is this a matter of national interest?” Now, in one sense you have an applicant for the order, but the applicant does not have a particular interest in the making of the order.

Your Honours, the first sentence of the paragraph numbered 4; so far as it does no more than reflect the words of the section, appears to be non‑controversial, calling it a “legal norm” as well as criterion, it does not seem really to add much. But your Honours, if one comes to the sentences at the top of page 2:

The legal norm does not invite or permit the Court to engage in an open ended and unguided “discretion” ‑ ‑ ‑

FRENCH CJ: There is no such thing, is there, as an open‑ended and unguided discretion?

MR JACKSON: One would think, your Honour, not if one is in court. Your Honour, I accept that and insofar as so read then your Honour, probably paragraph 4 is innocuous.

Your Honours, if one goes to paragraph 5(a) we would say in relation particularly to the second sentence it says:

Necessary in this context emphasises that the order must be more than merely desirable –

that is true, of course –

but it does not mean essential.

Your Honours, we would simply submit that synonyms tend not to assist a great deal. The question is really whether the order is necessary. That is all I think I want to say about paragraph 5(a).

FRENCH CJ: It rather suggests, does it not, that the scope of an order under section 50 must be the least that will achieve the end posited?

MR JACKSON: Yes, I think that is so, your Honour. So far as paragraph 5(b) is concerned, subject to what I think your Honour the Chief Justice has just put to me, there probably is not a great difference between us on that. In relation to paragraph 6, the reference to “overall prejudice” seems to be, and I reference to an observation by Justice Deane in Parish – we would doubt the correctness, with respect, of that observation. If what it means is that one derogates from the general proposition in section 17(1) and really levitates, as it were, section 50(1) so it and 17(1) rank, as it were, pari passu because the broad situation, we would submit, the generally applying situation is 17(1). Section 50(1) is the exception.

Your Honours, one comes then to paragraph 7 and underpinning it is the concept of legitimate claim of confidence. Now, legitimate as between whom? One can understand as between a person and a person’s accountant if the accountant without authority deals with one’s materials. One can complain against the accountant and maybe obtain orders that the accountant be restrained from so doing and perhaps other orders as well, but one is dealing here in relation to a situation where a body concerned with the enforcement of federal laws has served notices on an accountant requiring that documents be produced.

There is then litigation about that. In the course of that litigation one finds the appellant volunteering material that has been prepared by the appellant’s accountant to go in evidence. This speaks of the legitimate claim of confidence but it is a claim really in the air. One is moved altogether from the area of dealings between the accountant and the appellant. One is in a situation where the appellant is a litigant. It is immaterial to the accountant, one would expect, whether he does or does not use the material and it is immaterial legally, and if he chooses to use it, it is to his own, with respect, lookout. The claim for confidence does not really have an application.

Your Honours, what I have said applies also I think, your Honours, to paragraph 8 and if one goes to paragraph 9 one sees, with respect, a rather curious observation that:

the interlocutory processes of the Court turned from an instrument of ensuring procedural fairness between the parties in advance of a trial into a means by which a party achieves, through bare publicity, that which cannot be achieved through the Court process . . . that constitutes prejudice to the administration of justice.

Well, that is not, your Honours, this case at all. If one is speaking about “bare publicity”, we are seeking to be able to inspect material which was put in evidence in a Federal Court. Your Honours, if one goes to paragraph 10, could we respond to it by saying simply “Why not”.

GUMMOW J: Well, that may be dependent upon the nature of the party or the nature of the case.

MR JACKSON: Yes, your Honour, it may, it may.

GUMMOW J: But you say you have the advantage of that.

MR JACKSON: Yes, I do, your Honour. But could I just say, and I put it to you shortly because I suppose it is capable of subdivision. If a party abandons allegations, and one is speaking for the moment about serious allegations that are made, then it does give rise to questions about why they were made in the first place and what were the circumstances that brought about abandonment.

Take a case, your Honours, where there was a claim made in civil litigation of fraud and to make an allegation of fraud requires consideration of the material by the legal practitioner making the allegation and, of course, it can be the situation that a professional misconduct proceeding can be taken against a person who makes an allegation without sufficient justification.

If the allegation is later withdrawn, then there is no reason why the making of that allegation is not itself a matter that deserves publicity. It will hurt or may hurt the person against whom it was made, but the person has relevantly been vindicated and there are other public interests that are to be served. Your Honours, if one settles a case, one of the reasons for settling a case is sometimes to avoid litigation, avoid things becoming public.

But the fact of settlement and the fact of the case one way or the other until settlement is a matter that ordinarily would not be the subject of a court order. It may well be that parties agree to keep themselves mute in their settlement documents, but that is a different thing. Your Honours, there are circumstances in which the public needs to be permitted to investigate, as is put here, the why.

Your Honours, if I could come then to paragraph 11. We would submit, as do the first and second respondents, that there is a legislative power not to make an order under section 50(1). The word “may”, your Honours, is used in the provision and there is not a very good reason, we would submit, why satisfaction of the other requirements of section 50(1) would bring about the result that there must be an order. We would submit that there are circumstances where the relative triviality of the contravention might have the result that it was within the power of the judge to say, “No, I do not need to make an order”.

HEYDON J: If we take the consideration you referred to earlier, prejudice to the security of the Commonwealth, if it were established that publication would prejudice the security of the Commonwealth, is there a discretion in the court to say, “Who cares about the security of the Commonwealth?”

MR JACKSON: Your Honour, the answer is yes, but most applications of the doctrine would result in an order, one would expect. But if what happened really was that someone who was charged with the disposition of obsolete infantry rocket launchers had, instead of performing the duty of disposing of them as an army officer, had in fact sold them, then your Honours, the fact that those rocket launchers, though perhaps mature in one sense for military purposes, could be used to attack institutions of the Commonwealth here, for example, would be something that would be adverse to the security of the Commonwealth. I have forgotten the exact word - “prejudice”, I think, your Honour. But it would not be an appropriate case to make an order, we would say.

HEYDON J: The whole section perhaps assumes non‑trivial things, non‑trivial prejudice to the administration of justice and non‑trivial prejudice to the security of the Commonwealth, but once you get over that line it does seem strange to think that a judge might be able to say “There is prejudice to the security of the Commonwealth, but I think open justice is more important”.

MR JACKSON: I suppose, your Honour, in a slightly parasitic way we would say, if that were the view that were taken and applied to, as it were, big things, then there would be more to be said for the notion that there was no discretion. I do not really know that I can advance it more than that. Your Honours, I think comments we would make in relation to 12 and 13 follow from what I have said so far.

Your Honours, could I go then to the primary judge’s reason and the attack which is made upon them. There was no suggestion in the Full Court that the primary judge had misunderstood the issue. You will see that referred to both by Justice Jessup at page 250, paragraph 38, about line 22 and Justice Gilmour at paragraph 91 at page 268.

GUMMOW J: There does not seem to be any reference to the Federal Court Rule, though.

MR JACKSON: I am sorry?

GUMMOW J: There does not seem to be any reference to paragraph 1 of the notice of motion. Page 17 was the motion that triggered all this off and there was an application under Order 46, rule 6 and caught up with that, then, was Order 2 which was the vacation. There does not seem to be any treatment of the primary matter which was Order 46.

MR JACKSON: No, I am sorry, your Honour. With respect, we would submit that is not correct. Could I just go through his Honour’s reasons to indicate that? Page 187 ‑ ‑ ‑

GUMMOW J: No, but I mean at page 250, there is not, that is what I am trying to get at. You were taking us to page 250.

MR JACKSON: No, I had gone to page 250, Justice Jessup, paragraph 38 and also to page 268, paragraph 91.

GUMMOW J: Yes.

MR JACKSON: That may well be, your Honour, because there was no appeal on the issue. Could I just indicate where the issues were dealt with in the primary judge’s reasons?

GUMMOW J: Yes.

MR JACKSON: At page 187, paragraph 2 he refers to Order 46. It goes over to the top of the next page. You will see then, your Honours, at page 190, paragraph 13 he sets out the orders that were sought by the interveners and that picks up the rule as well. He then lists at the top of page 191 the four categories of material involved. First of all he deals with the privilege documents in paragraphs 15 and 16 and orders that – he says we had not contended that the privilege had been waived and orders that they be taken out of the court file so that has resolved that issue. Then, your Honours, paragraph 17. You will see at the end of the paragraph he said:

The question is whether such leave should be granted pursuant to Order 46 r6(3).

That is in respect of affidavits and exhibits on the court file but not in evidence. He rules against us on that and you will see that at paragraph 20. He has dealt with that issue. The next issue about identity which is paragraph 21 and goes on for quite some time, he revokes the section 50 orders that were made in that regard and you will see that at paragraph 43, page 199.

One then sees the access to evidence issue commencing at paragraph 44, page 199. You will see, your Honours, in paragraphs 47 to 50 he deals with categories of evidence. He then deals with the affidavit at paragraph 51. He refers to A, C and E and the two dot points in paragraph 52 which deal with the material presently in question.

FRENCH CJ: Now, that is all a reference to DPR1, that bundle of exhibits, in other words?

MR JACKSON: Yes, your Honour. Now, he discusses that issue until one comes to page 207, paragraph 70:

I do not consider that any basis has been established . . . for the continuation of any order under s 50 . . . The only question is whether there should continue to be an order in force prohibiting the publication of material that was in evidence before the Court, apart from the documents that have been found to be the subject of legal professional privilege.

He is speaking of them as a matter developed before him. Then you will see in paragraph 72:

any of the documents . . . subject to legal professional privilege remain on the Court file, the copies should be returned to the applicant.

Then in paragraph 73 he says:

The application by the Interveners for access to material in the Court’s file should be granted to the extent of permitting them ‑

and your Honours will see how it goes. So, your Honours, he has dealt with it, but the problem was that the formal order did not deal with that aspect of it. That is not a matter that was dealt with separately on appeal. It is one we are endeavouring to fix ‑ ‑ ‑

GUMMOW J: The ground of appeal, how was that structured?

MR JACKSON: Well, the ground of appeal, your Honours, is ‑ ‑ ‑

GUMMOW J: Page 219, is it?

MR JACKSON: Now, the ground of appeal, your Honours, I think – I am sorry, your Honour mentioned a page before, I think I ‑ ‑ ‑

FRENCH CJ: 220 I think it appears at.

MR JACKSON: Thank you, your Honour. Well, you will see that it was said that what was sought was that:

Order 1 made on 29 August 2008 be varied.

You will see, your Honours, at page 210, which said that:

1. All current orders . . . be vacated.
2. Order 1 be stayed.

Now, the current orders – if I could ask your Honours to hold that page? You will see that at page 220, paragraph 2 sought a variation of that order:

by adding after “vacated” the words “other than Order 4 made on 21 August 2008”.

You will see that order at page 183, and you will see Order 4 at page 184.

The problem that arises in relation to the formal orders is that the paragraph 8 in the schedule of orders on page 184 should not have included the words italicised “But not tabs C and E”,et cetera.

GUMMOW J: Yes, so the appellant was complaining against an order that had not been made in part.

MR JACKSON: Was complaining, I am sorry, your Honour?

GUMMOW J: Complaining about C and E of exhibit DPR1, amongst other things.

MR JACKSON: In the appeal, yes.

GUMMOW J: But it had no ground for complaint because it did not have the order about that.

MR JACKSON: That is so, your Honour, yes. Now, your Honours, could I just go briefly to the reasons for judgment of the primary judge, and to page 204. Your Honours, we would submit, if one goes to paragraphs 60 and 61, his Honour is, in our submission, perfectly correct in paragraph 60 in saying that the nature of the case advanced on behalf of the appellant was that the material, he said, would permit delving into his “personal, financial and taxation affairs” in a way inconsistent with his right to maintain confidentiality in relation to those affairs and if there was “material that is otherwise available to the public ought to satisfy the public interest”, et cetera. You will see then that the judge said, and in our submission correctly, in 61 that:

The question is not whether the public has access to sufficient information to enable it to understand the nature and outcome of the proceeding. The question is whether, once material has been introduced into evidence, it is necessary –

and then he simply recites the terms of section 50. Now, your Honours, that, in our submission, is a perfectly appropriate way of setting out the issue in the proceedings. If one goes to paragraph 62, the judge did not say you cannot make an order, absent evidence, of specific damage or prejudice, et cetera. What he said was that there was no evidence that there was “any specific damage or prejudice” and he recorded then in the second sentence of paragraph 62 how the case was simply put, on the basis your Honours will see there.

Your Honours, if one goes to paragraphs 63 to 65, we would submit it is perfectly correct to say, in paragraph 63, that it was for the present appellant to establish a case for making or maintaining orders under section 60, and he said:

The highest that the applicant puts it is that his solicitor understood that the Commission would either consent to or not oppose the making of an order under s 50.

But, your Honours, the case had gone a little beyond that at the time when the material was put in evidence.

Now, your Honours, if one goes to paragraph 65, we would submit, it is correct to say, as he said in the third line:

it is entirely a matter for the Court, having regard to the criteria set out in s 50, whether any order . . . should be made. It is not a matter for agreement between parties as to whether an order under s 50 will be made or . . . whether a subsequent order might be made varying or discharging the order.

Your Honours, there is a public interest in these matters, even if the parties agree, it does not necessarily follow than an order should be made; often it will be, maybe only for a short time. It does not follow that it should be made. Your Honours, if one goes then to paragraph 69, he says – and I am looking at about line 39 – he does not consider –

that it was only because of the expectation that s 50 orders would continue in perpetuity that the other material in question was tendered.

Your Honour, his Honour goes on to say that it is fair to assume that the reason for tendering it was to be successful in the proceedings, and one is unlikely to succeed in the proceedings unless making it possible for the court to understand what the issue was. But, your Honours, that is not uncommon in proceedings. Why does it follow that the material that was used in the proceedings – successfully as it turned out – is material that, because of the success, is not to be available to the public. Your Honours, could we just say that the judge, of course, did advert to the contention of confidentiality. He referred to it twice in paragraph 60 and in paragraph 62.

Your Honours, those are, I think the submissions we wish to make in addition to our written submissions on the matter, but could I just give your Honours two further references in dealing with the role of publicity and the courts being conducted in the open. One is what was said by Justice Kirby in Raybos Australia v Jones (1985) 2 NSWLR 47 at page 55 E. This deals, your Honours, in passing with the role of the media.

His Honour said, and it is just a short passage under the heading “Power to forbid publication of proceedings”. He said:

The principles which support and justify the open doors of our courts likewise require that what passes in court should be capable of being reported. The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the court of those members of the public who choose to attend.

Your Honours, in John Fairfax Publications v District Court (NSW) (2004) 61 NSWLR 344, at page 353, paragraph 20, Chief Justice Spigelman said:

The entitlement of the media to report on court proceedings is a corollary of the right to access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings.

GUMMOW J: It is really a liberty rather than an entitlement, I would have thought.

MR JACKSON: Your Honour, I do not know that his Honour was drawing the ‑ ‑ ‑

KIEFEL J: This probably puts the court in a social setting, that may be what his Honour is alluding to and open justice might be contextually part of the court as an institution where allegations are brought by members of the public against each other and aired.

MR JACKSON: Yes, and, your Honour, if I might say so, not just by members of the public but many, many governmental and corporate bodies are litigants and frequent litigants and, of course, the question of excessive or inadequate breach by public institutions is sometimes a matter of considerable significance and comment long term, not just in the short term.

Your Honours, could I just say that before Justice Emmett considerations of the kind I was referring to about the ACC’s conduct were adverted to in written outline submissions on our behalf. I mention that because one does not see too much of them in the reasons.

FRENCH CJ: Thank you, Mr Jackson. Mr Solicitor.

MR GAGELER: We have noted in paragraph 10 of our written submission the 2009 amendment to the Federal Court of Australia Act. The Act in the form relevant to the appeal is Reprint No 6. In point of principle, and I confine myself to points of principle, there are two separate but overlapping issues. The main issue, of course, is the proper approach to the making or non-making of an order under section 50 of the Act, but there is another issue as to the proper approach to the determination of an appeal under section 24(1A) from the making or non-making of such an order.

Can I turn to that second issue first. On that issue, in our submission, the proper approach to the determination of an appeal under section 24(1A) from the making or non-making of a non-publication order under section 50 was correctly identified in Parish as being that set out in House v The King. We make that submission irrespective of the resolution of a subsidiary issue joined in the written submissions as to whether the word “may” in section 50 is to be interpreted as permissive or facultative, on the one hand, or as imposing a requirement on the other.

In our submission whether or not “may” means may the conclusion of the court that a particular order is or is not necessary in order to prevent prejudice to the administration of justice involves an exercise of discretion, or as is sometimes said, discretionary judgment in the relevant House v The King sense. That relevant sense was usefully described in the judgment of Justices Mason and Deane in the case of Norbis v Norbis 161 CLR 513. Your Honours, I hope, have a folder containing some supplementary authorities from us.

GUMMOW J: We have read Norbis often enough. Which page do you want us to look at?

MR GAGELER: I want you to look at 518. Your Honours are also familiar with the structure of section 79 which, on one view, could be said to impose a jurisdictional requirement that the court be satisfied of justice and equity before making an order. It is the middle paragraph and it is particularly the last two sentences.

HEYDON J: Could I just ask this, Mr Solicitor. What is the underlying point of your submission? Are you submitting that Mr Gleeson really cannot win because he cannot point to a House error because this is a really fundamentally important and interesting subject but one would not want to spend three or four months on it unless it was crucial in some way to the outcome of the appeal. The question of what a discretionary judgment is is a fascinating one.

MR GAGELER: I am going to spend 10 minutes on it, your Honour.

HEYDON J: To what purpose, though? To constrict the appellant’s right to appeal?

MR GAGELER: Absolutely not.

HEYDON J: Or, to throw light on some other aspect of the construction of section 50?

MR GAGELER: Neither.

HEYDON J: What?

MR GAGELER: To address an issue that arises in the appeal as to whether or not the Full Federal Court adopted the correct approach to the exercise of its appellate jurisdiction in the reviewing, the making or non‑making of an order under section 50. That is a point of general importance and I am addressing that only. The point is that House v The King applies. It has always applied or been seen to apply in the Federal Court. My point is that that is the correct approach, the exercise of the appellate jurisdiction. I say nothing, absolutely nothing about the outcome of the appeal, applying the principle in House v The King.

GUMMOW J: But Mr Gleeson relies on the dissenting judgment of Justice Gilmour.

MR GAGELER: Yes.

GUMMOW J: Do your submissions tend to suggest that that reliance could be misplaced because the dissenting judge was taking a view of the appellate jurisdiction which is not the view that you are advocating?

MR GAGELER: All members of the Full Court applied House v The King in the present case, including Justice Gilmour and before the Full Court it was common ground between the parties that House v The King applied. The point is raised in this Court. It is an important point of general significance.

KIEFEL J: Do you mean the Full Court applied House v The King, but Mr Gleeson’s argument does not?

MR GAGELER: A ground of appeal is to the effect that House v The King should not have been applied. I am simply addressing that, saying nothing about the outcome of the appeal if House v The King is applied. The relevant discrimen, if I can put it that way, in our submission, is that properly identified by Justices Mason and Deane at page 518 of Norbis v Norbis, a judgment with which Justice Brennan at page 536 relevantly agreed, the critical factor there identified being that the order under appeal is a product of an evaluative judgment, not whether or not the existence of that evaluative judgment might be described as a jurisdictional fact or a condition precedent to the making of an order.

Can I take your Honours in that respect also to the case which is tab 1 within our bundle of additional authorities. It is Singer v Berghouse 181 CLR 201. It is a case that some of your Honours recently looked at in the case behind tab 3, the case of Vigolo. Singer v Berghouse, if your Honours go to page 209, concerned some provisions of the Family Provision Act (NSW) which are summarised in the middle of the page and are described in the joint judgment at the bottom of page 208 as involving a:

two‑stage process. The first stage –

which was the section 9(2)(a) stage was described as calling –

for a determination of whether the applicant has been left without adequate provision for his or her maintenance, education and advancement in life. The second stage –

which was the section 7 stage –

which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made . . . The first stage has been described as the “jurisdictional question”. That description means no more than that the court’s power to make an order in favour of an applicant under s. 7 is conditioned upon the court being satisfied of the state of affairs predicated in s. 9(2)(a).

If your Honours then go to page 211 it is said after the quotation from Justice Gibbs at about point 3 of the page that that first jurisdictional question involves making was in essence a value judgment ‑ ‑ ‑

KIEFEL J: You will have to forgive us if we are not following quite, Mr Gageler. We have every second page photocopied.

HAYNE J: So confine yourself to the odd‑numbered pages, would you Mr Solicitor, and we will follow you.

MR GAGELER: I am really sorry because the crunch point is on an even page.

HAYNE J: An even‑numbered page - we are in trouble.

MR GAGELER: I will mention the crunch point. It is at page 212, where it is said that the proper approach to the appellant review of the determination of that first jurisdictional question was that of House v The King, and one gets that from page 212, the first paragraph. The second paragraph then introduces the issue. The third paragraph referring to Justice Kirby resolves that issue in favour of the application of House v The King.

That particular point was accepted in Vigolo v Bostin which your Honours have behind tab 3. I hope your Honours have the even pages there. At page 220 in paragraph 82 in the joint judgment of your Honours Justices Gummow and Hayne that particular aspect of Singer was accepted.

GUMMOW J: Assessment of general damages involves all sorts of views being taken but that does not produce a discretionary judgment, does it?

MR GAGELER: Not every case, certainly. Can I give your Honours just one other illustration. This is the case of BHP Billiton Limited v Schultz. I am mentioning this because it contained language somewhat similar to the present. Your Honours have that behind tab 4. That was a case that involved the application – an appeal to this Court from an exercise of the power conferred by section 5(2)(b)(iii) of one of the cross‑vesting Acts. The relevant provision your Honours can find at page 479 set out in the judgment of Justice Callinan. The provision is section 5(2)(b)(iii). Your Honours will recall that relevantly it says in paragraph (b) that where:

it appears to the first Court that:

Then going to (iii) across the page:

it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

There was of course no question of discretion in the narrow sense of that term. Once the court determined that it was otherwise in the interests of justice to do so the court was required by the word “shall” to make the order of transfer. That was the point your Honour Justice Gummow made in paragraphs 62 and 63 of the judgment.

Nevertheless, and without, I accept, reference to House v The King in the disposition of the appeal all members of the Court appear to us to have approached it on the basis of finding an error of the House v The King variety. The relevant error in the judgment at paragraph 27 was identified as taking into account an irrelevant consideration and in your Honour Justice Gummow’s judgment at paragraph 77 characterised as an error of law. In our respectful submission the application implicitly in that case of House v The King criteria to the appeal was entirely correct.

So far as Mitchell is concerned, the case upon which the appellants rely chiefly in this respect, I ask your Honours to turn to it, it is 184 CLR 333. It does no more than illustrate the difficulty of placing weight on the precise statutory language and rather illustrates the need to look at the context and the substance of the power in question. Your Honours may recall that the power in that case was a power in a court to make an order that effectively said either “yes” or “no” to the making of a non‑parole order, an order which affected the liberty of the individual, and that was if the court considered that the making of the order was appropriate. In that very particular statutory context it was held that the determination of whether the order was appropriate was not a discretionary judgment of the kind which attracted House v The King.

That, of course, must be contrasted with the later case of Lowndes v The Queen 195 CLR 665, which we have given your Honours at tab 5, the relevant discussion occurring at paragraphs 14 and 15. The language was very, very similar to Mitchell v The Queen. The statutory context was marginally different, and in paragraphs 14 and 15 that statutory power was held in the language of the judgment to involve the making of a discretionary judgment, which was of a kind which attracted House.

So, in our respectful submission, in the context of section 50, not much turns on the precise language of the provision which refers to “as appears to the Court”. Your Honours might note that that is almost identical to the language that appears in section 22 of the Act. Probably not much turns on whether “may” means “must” for this particular purpose. What in our respectful submission sufficiently attracts the principles in House to the determination of the appeal is that asking whether a particular order is necessary to prevent prejudice to the administration of justice or indeed to the security of the Commonwealth, is a multifactorial evaluative judgment, and that is the relevant discrimen. Your Honours, on the question of whether “may” means “may” or ‑ ‑ ‑

GUMMOW J: The Commonwealth might be very unhappy one day.

MR GAGELER: Pardon, your Honour?

GUMMOW J: The Commonwealth might be extremely unhappy if you get wind of something happening in the Federal Court, you turn up, you want an order under section 50, you fail to get it because of a multifactorial discretionary exercise that is adverse to you, and then you want to go off to the Full Court.

MR GAGELER: Your Honour, we have taken that into account in formulating the position.

GUMMOW J: I hope so.

MR GAGELER: We may be unhappy, but we will be orthodox. It has been a position adopted in the Federal Court since its inception.

Your Honours, in relation to whether “may or may” means must, can we make these very short additional points to our written submissions. The first is saying that “may” means may does not mean that in every case the exercise of the power under section 50 is to be approached according to a two‑stage process. In the overwhelming number of cases, and indeed in practice, it is appropriately approached as a single evaluative process.

The second point is the obvious one, saying “may” imports a discretion does not mean that the discretion is unconfined. It is always to be exercised judicially, as in the case of any equitable relief, as in the case of any prerogative relief. The third point is this, really to address something your Honour Justice Heydon raised in the course of Mr Jackson’s argument, and that is how does the discretion apply in a case where it might appear that the making of a non-publication order is necessary in order to prevent prejudice to the security of the Commonwealth?

In that scenario, it is, in our respectful submission, important to recognise the scope of the potential orders that can be made under section 50. It is not an all or nothing publication to the world at large, no publication to the world at large. The power is to make an order forbidding or restricting publication, including, for example, restricting publication to the legal representatives of a party or perhaps to a forensic expert who gives a particular form of undertaking.

It may be, and I do not suggest this is anything more than a possibility, but it may be that a case would arise where such a restriction, that is allowing perhaps publication of evidence, not to a party but to the legal representatives of the party who give a particular undertaking, could be seen to cause some prejudice to the security of the Commonwealth, but that prejudice is outweighed in the circumstances of the particular case by the public interest in ensuring a fair trial. That possibility, your Honour, is encompassed within the discretionary “may”.

HAYNE J: Well, can I just understand that better in the light of what is in your written submissions in paragraph 23, written submissions which the appellant adopted, I think, largely in reply, perhaps not entirely but certainly took up and ran with to a considerable degree.

MR GAGELER: Yes.

HAYNE J: I understand paragraph 23 to say that you have to consider the application of section 50 not in abstract terms but by reference to “the identification of a particular non-disclosure order”. Is that right?

MR GAGELER: Yes.

HAYNE J: You say it is not a two-stage process. Is that right?

MR GAGELER: Not of the kind identified by the appellant in its submissions. Your Honour will see what we are addressing by reference to the first sentence in paragraph 23.

HAYNE J: I understand that, but then taking what you have said in the course of oral argument, a necessary step in consideration of a section 50 application is the identification of a particular non-disclosure order. That must be coupled, must it not, with an examination of whether that order, or some other form or closely associated form of order, is necessary in order to prevent the asserted outcome. Is that right?

MR GAGELER: Yes.

HAYNE J: If it is concluded that that particular form of order is necessary to prevent that asserted outcome may a court decline to make a section 50 order?

MR GAGELER: The burden of the point that I was making was yes, yes, because the prejudice to the security of the Commonwealth – and I recognise the importance of the submission I am now making – the prejudice to the security of the Commonwealth which would ensue if that order were not made may in a particular case need to be balanced against the interests of justice in ensuring a fair trial in that particular case. I am not here talking – the problem would not arise, your Honour, in respect of an order as to whether there should be publication – or a question as to whether there should be publication as to the world at large or not to the world at large. The question would more acutely arise in respect of a restriction on publication to ‑ ‑ ‑

HAYNE J: Disclosure beyond counsel, for example.

MR GAGELER: That sort of thing. My point is that it is conceivable that even disclosure to counsel could involve some prejudice but that prejudice may be outweighed, in the circumstances of a particular case; that was the only point. Your Honours, on the question of the proper approach to determining whether a particular order is necessary to prevent prejudice to the administration of justice can we add these couple of things to what we have in our written submissions, make one qualification, in fact? We accept that necessity is a question of degree. Just as prejudice is a question of degree we therefore withdraw the criticism that we have made in paragraph 14 of our written submissions of paragraph 45 of the appellant’s submission.

We accept that necessity, in this context, is tempered by reasonableness. The second point is that prejudice being a question of degree is nevertheless in every case, in our submission, a real and not speculative prejudice. The third point is that the administration of justice, terminology not really explored in the arguments of any of the parties, clearly enough refers to the administration of justice through the courts, not necessarily confined to the individual case.

In our submission, prejudice to the administration of justice need not be limited to the processes of the court, but ought be construed or accepted as extending to any demonstrable harm that may be caused through the processes of the court to a non-party, or indeed to the public at large, where that harm is disproportionate to the attainment of justice in the individual case. That involves, in some cases at least, a weighing or a balancing exercise that is not very far from the weighing or balancing exercise that may be involved in a public interest community claim, and we read Justice Deane at page 156 of Parish and we read the Chief Justice in Parish at pages 133, about point 5, and 135 as essentially saying that.

Your Honours, can I give an illustration from the appeal book in relation to that point. Included in the appeal book is a judgment of Justice Allsop which begins at page 38, a judgment in 2005 which in terms of the chronology preceded the present proceedings and set the scene for many of the non-publication orders which were made by consent in the course of these proceedings.

The relevant orders really appear at page 46. I am here looking at sufficiently orders 1 and 2. They were orders that the names of the applicants not be published, and the reason why his Honour was persuaded to make orders in those terms appears at page 44 in paragraph 20 in the second sentence. This is the nub of his reasoning: He says:

I am persuaded that in all the circumstances there is a real risk, and one that is far from fanciful, that if the names of the applicants were disclosed and made public that there would be an interference with an investigation being conducted by the respondent into matters of some gravity.

Now, your Honours, except in most abstract way, it is difficult to take that critical and persuasive finding and to translate it into some prejudice to the process of the court in this or some other case. The respondent, the ACC, was a respondent to the proceeding, not voluntarily there in the first place. The investigation being conducted was being conducted pursuant to statute and would be conducted whatever difficulty might be caused through the operation of these proceedings. Nevertheless, in our respectful submission, that specific and demonstrable harm was properly weighed in determining whether or not the publication of the names would cause prejudice to the administration of justice.

Your Honours, so far as the appellant’s supplementary note on the operation of section 50 is concerned, we have no criticism other than those made by Mr Jackson of the propositions in paragraphs 2, 3, 4 and 5. As to the proposition in paragraph 6, if the last sentence is left out, we do not disagree. As to the propositions in paragraphs 7, 8, 9 and 10, we agree with the criticisms of Mr Jackson and we make the point that it will be possible but rare that the destruction of what is described as nothing more than a legitimate claim of confidence will give rise to sufficient prejudice.

What needs to be demonstrated, in our respectful submission, in every case is some demonstrable harm flowing from publication. So far as paragraph 12 is concerned, we agree with that. So far as paragraph 11 is concerned, we disagree and adopt the approach of Mr Jackson. Insofar as paragraph 13 is concerned, we disagree and we have made our submissions on House v The King. If the Court pleases, those are our submissions.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Gleeson.

MR GLEESON: Your Honours, first it was said by Mr Jackson that we should provide the Court with the full transcript of the 60 pages of 28 May. We are happy to do so and I have the five copies. For those who read it, one will find that Justice Gilmour’s summary is correct, that the orders were made after argument, and I might simply observe, in fact, after about 40 pages of argument the ACC made the offer to do further discovery. Justice Emmett did not give reasons ordering them to discover.

The Court will see at about page 38, line 25, that Mr Game said he wanted the motion stood over so that the ACC could redo the job. At page 49, line 9 he maintained that offer. The orders were actually made by his Honour at page 60, line 10, as often happens on an interlocutory matter essentially by consent, subject to a little bit of nudging from the Court. That is what the transcript reveals occurred publicly. We maintain the submission that the public has an adequate understanding of what occurred on that day without invading legitimate confidence.

Secondly, the central public interest advanced this afternoon has been a public interest in scrutinising why a public body consented to final relief requiring delivery up of documents and it is said that our confidential material must be seen so they can understand – they, the public – why that decision was made to consent. Significant emphasis is placed on the public aspect of the body.

Our responses are these, firstly, as Mr Jackson recognised, there is no finding or examination upon that interest by Justice Emmett. Secondly, while he says that the submission was made to Justice Emmett – I wish to hand to your Honours the document which was the submission and you will find it was not made in that form. Your Honours need only look, with respect, to paragraph 4 of the submission to see that the interest asserted did not relate to the decision to settle and instead one sees at the end of the 4 it was what I will respectfully call a woolly assertion that the media could probe into what was described as a multi year federal investigation into taxation fraud, the methods used by the ACC to gather evidence and the rulings by courts as to those methods and the admissibility of such evidence. Justice Emmett exercised no judicial power in relation to the matters identified in that paragraph and one can see why he rightly dismissed that claim.

Thirdly, twice a false characterisation was put upon the role of the evidence in the case. It was said that the material was put into evidence to defeat the contention of crime and fraud. As I have indicated, it was put into evidence for a limited and different purpose. Fourthly, the test proposed by the media, we submit, is too high and does not accord with the interests of justice. The test is where you deploy in evidence confidential material which is not the very subject matter of the suit, your confidence must be destroyed unless the case would not otherwise go ahead.

That, we submit, does not adequately deal with the matter. Fifthly, and second lastly, it was said that Justice Emmett had dealt with the public interest in protecting confidences in two paragraphs of the judgment, 60 and 62. Your Honours will have seen that 60 merely records the submission and does not address it, 62 says evidence was not led. Justice Emmett, with respect, did not deal with the substance of the argument.

Finally, in relation to the Solicitor‑General, if he be correct in persuading the Court that it is House v The King or the Court should proceed on that basis, and that there is a residual discretion, we would still submit to your Honours that each of the eight errors on our document falls within House v The King. Your Honours, unless there were further matters, we proposed as soon as those other orders were made in the Federal Court by consent to provide them to the Court.

FRENCH CJ: Thank you, Mr Gleeson. The Court will reserve its decision. The Court adjourns until 10 am tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED

[2010] HCATrans 4

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