Johns v Australian Securities Commission

[1992] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M38 of 1992

B e t w e e n -

IAN MALCOLM JOHNS

Appellant

and

AUSTRALIAN SECURITIES

COMMISSION

First Respondent

ANTHONY GEOFFREY HARTNELL

Second Respondent

NOREEN CLAIRE MEGAY

Third Respondent

ALBERT EDWARD WOODWARD

Fourth Respondent

DOUGLAS GILBERT WILLIAMSON

Fifth Respondent

Johns(2)	71	5/11/92
BRENNAN J
DAWSON J
TOOHEY J
GAUDRON J McHUGH J

THE HERALD AND WEEKLY TIMES LTD

Sixth Respondent

AUSTRALIAN BROADCASTING

CORPORATION

Seventh Respondent

THE STATE OF VICTORIA

Eight Respondent

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 NOVEMBER 1992, AT 9.48 AM

(Continued from 4/11/92)

Copyright in the High Court of Australia

BRENNAN J: Yes, Mr Dreyfus?

MR DREYFUS: If it please the Court. One of the advantages

of having had the evening to think about it is that

I may, indeed, be able to be briefer than I.might

have been had I addressed the Court yesterday. I
have made some minor changes to the outline of

submissions that I handed to the Court yesterday,

and would now hand to the Court that revised

outline to replace the one that was handed to the

Court yesterday. The changes simply relate to a

correct citation of Marcel's case which now

appeared in the authorized reports· and the addition

of some authorities in relation to the question of

whether confidential information can be said to

have entered the public domain.

Primarily, Your Honours, I wish to address the

Court in relation to questions of relief, that is

the availability of relief, and discretionary

matters that go to whether or not relief ought to

be granted. But before going to that I should say

that it is now clear that the appellant puts his

case in relation to the obligation of confidence,

squarely on a notion that there is an obligation of

confidence to be implied from the ASC law. It is

now clear that it is not put on any other basis.

It is not put on any basis that arises from the conduct of the ASC or from the conduct of the appellant himself.

It is solely, therefore, in relation to the

obligation of confidence, a proceeding by way of

Johns(2) 72 5/11/92

judicial review of the decision of the ASC to

release the material to the Royal Commissioners.

BRENNAN J:  Why do you say that? It is one thing if the

obligation of confidence arises out of the ASC Law;

it is another thing to say that the only remedy is

one which arises under the AD(JR) Act.

MR DREYFUS:  The only other way, Your Honour, is that there

is - it is a question of the way you put it,

perhaps, Your Honour, but the other basis upon

which it is put, and Mr Merkel made this clear

yesterday, is that he says that there is an

equitable right to relief against the sixth and
seventh respondents because of the obligation of

confidence, but it is a necessary step in order to

found that cause of action that there be this

obligation of confidence arising by implication

from the ASC Law. Perhaps what I mean to say is

that in all senses such cause of action as the

appellant has, arises from, or is said to arise by

implication from the provisions of the ASC Law and

not in any other way.

DAWSON J: 

It is not said that there is some right by way of

the nature of a propriety right in the confidence
of the information.

MR DREYFUS: 

I had not understood my learned friend,

Mr Merkel, yesterday to say that there was any

cause of action based on propriety rights.

McHUGH J: Well, I must say, until Mr Myer's argument

yesterday, I was under that impression that that
was the whole thrust of Mr Merkel's argument.

Indeed, I have got to get my mind back into gear

again. I have some difficulty in understanding

what his argument is, I think, unless it was based

on some concept of a propriety nature of the

answers that he gave. That was the mistake I was

labouring under for much of the argument, but it

now seems that his case is really based on the fact

that the statute has been breached, and that gives

him some right to restrain the information or the

use of the information simply because the statute

has been breached.

MR DREYFUS:  Perhaps it is a matter for my learned friend

Mr Merkel to explain in reply. But as I had

apprehended the way in which the case was put, Your

Honour, it was that at least on this equitable

basis that some right to restrain the sixth and

seventh respondents arose because there was this

implied notion of confidence arising from the

statute.

Johns(2)	73	5/11/92
DAWSON J:	It could not arise in any other way.	You could

put your case in that sense, could you not? There

was no agreement between the parties - or any

relevant agreement. Certainly no agreement between

your clients - anyone. The information was not

inherently of a confidential nature. There is

nothing that you can rely on other than some

statutory implication, an implication as far as the

statute is concerned. But that is the way you

could put it.

MR DREYFUS:  I am indebted, Your Honour, that is accepted.

GAUDRON J: But I have not understood that to be accepted by

Mr Merkel. I am sorry. I had understood there

really to be an assertion that once you were

claiming - at least once you were claiming a

privilege against incrimination, and you were

dealing in a context where the interrogator said

she suspected you had committed a crime, you got to

something that was inherently confidential in

nature.

MR DREYFUS:  I defer to Your Honour.

BRENNAN J: But what it comes to is this, is it not: that

one, you have to address the problem of whether

there is a right to relief against your clients on

a variety of bases, rather than assuming that the

case in limited in the way which you have just

suggested. It may be that you may have some

support for the view that the Court may not accept

one aspect or another of the argument but you, to

be safe, need to address all of them.

MR DREYFUS:	I can, with respect, Your Honour, only rely on what was said by my learned friend, Mr Merkel,
yesterday - - -

BRENNAN J: Quite.

MR DREYFUS:  - - - as to the way in which his case was put

and, from yesterday's argument, what I apprehend as

to the way in which the case is put is that he says

that there is some notion of confidence and

obligation of confidence to be implied from the

statute or - and the alternative basis is this a

breach of natural justice.

BRENNAN J: Whether your apprehension is right or not will

be revealed on the transcript. If it happens not

to be right on examination of the transcript then

you will be left with, perhaps, a limited argument.

MR DREYFUS: That is so, Your Honour. In any event, I did

not propose to address the Court further in

relation to the questions of the powers of the

Johns(2) 74 5/11/92

Australian Securities Commission or the

requirements of natural justice. There is nothing

that I think I can usefully add to what my learned

friend, Mr Myers, has said and I adopt the

submissions of the Australian Securities

Commission, particularly in relation to the arguments that no obligation of confidence does arise from any of the provisions the ASC Law.

DAWSON J: But what about otherwise?

MR DREYFUS:  I am sorry, Your Honour?

DAWSON J: What about an obligation of confidence that

arises other than by implication from the statute?

In other words, having regard to the statute, is

there an obligation of confidence which extends

beyond those to whom the statute is directed, to

others such as your clients, into whose hands the

information falls. What do you say about that?

MR DREYFUS:  It is submitted on behalf of the sixth and

seventh respondents that there is no such

obligation and certainly there is no

obligation - - -

DAWSON J: What do you say to what Justice Gaudron puts to

you?

MR DREYFUS: It is a matter, as my learned friend,

Mr Merkel, I took to concede in argument yesterday, has said, that is determined by the statute, that

the statute itself - - -

TOOHEY J:  The flow of the argument is really channelled by

the fact that it is an application under the

(Judicial Review) Act and it is decisions made

under an enactment that are under attack. I am not

suggesting that does not let in concepts of common

law and concepts outside the language of the

statute but it is easy to lose sight of the fact

that it is an application under the (Judicial

Review) Act. It is not an application in equity.

MR DREYFUS: That is so, with respect, Your Honour, and it

is important to focus also on what the decision

under attack is, being simply the decision of the

Australian Securities Commission to release the

documents to the Royal Commissioners, and not any

other decision. Certainly, as was pointed out by
the majority in the Full Court below, there was no
decision by the Australian Securities Commission to

release publicly; that was a decision made by the

Royal Commissioners that had to await the

consideration of the Royal Commissioners to

determine what would happen once there was release

Johns(2) 75 5/11/92

by the Australian Securities Commission to the

Royal Commissioners.

Your Honours, if I could turn to the outline

of argument, on page 2 I have set out there some

propositions relating to the availability of

relief. What, it is submitted with respect, needs

to be focused on here is that the sixth and the

seventh respondents are not connected with the

making of the decisions under review. As

Your Honour Justice Toohey has just pointed out,

this is a proceeding to review decisions of the

Australian Securities Commission to release these

documents to the Royal Commissioners.

The sixth and the seventh respondents are not

parties to that decision and indeed, it is rightly

said that they stand some steps removed from it. information; they received it only after a decision

the sixth and seventh respondents have

had been made by another party - the Royal which

obtained, to tender these documents in open public -,

hearings. That is a long distance, it is

submitted, from the decision that is under review.

As I have said already it was for the Royal

Commissioners to decide, it was a decision for the
Royal Commissioners that made these documents

publicly available, not a decision of the

Australian Securities Commission, and on no basis

can it be said that the sixth and seventh

respondents were connected to the making of that

decision. They are simply in the position of all

other members of the public to whom these documents

were available as soon as they were publicly

tendered.

DAWSON J:  Why do you say section 16(1) only relates to the

parties to the decision rather than the parties

before the court?

MR DREYFUS:  Your Honour, that is essentially a question of

statutory construction. What my learned friend,

Mr Merkel, put - - -

DAWSON J: Your clients were parties before the court, were

they not?

MR DREYFUS: Indeed, Your Honour. They were made

respondents to the application to the Federal Court

from the outset.

DAWSON J: Yes.

Johns(2) 76 5/11/92

MR DREYFUS:  The State of Victoria stands in a somewhat

different position. It sought to be made a party

and that was not opposed by any other party, and

was not originally a respondent. It sought to be

joined as a party because it had an interest in

looking after the interests of its agents, the

Royal Commissioners. The sixth and seventh

respondents were in this proceeding from its

inception.

What my learned friend, Mr Merkel, says is that, as I understand it, section - - -

DAWSON J: That does not answer - why, as a matter of

construction, should parties be read as meaning

parties to a decision rather than parties before

the court?

MR DREYFUS: It is a condition, with respect, Your Honour,

on the opening words of section 16 which read:

On an application for an order of review in

respect of a decision, the Court may, in its

discretion, make all or any of the following

orders.

And then certain powers are given to the court to

deal with relief that is to be given if the

application for the order of review is made out in

respect of a decision that can be reviewed under

this Act.

It is not a provision, with respect, that can be read as my learned friend, Mr Merkel, would wish

to read it, as giving some additional jurisdiction
to the court to deal with a whole range of matters

that may be well downstream, or down the track from

the making of the decision. And yet, that is

precisely what he seeks to do here.

DAWSON J: For example, you would say the Court could not

reverse its proprietary rights which your clients

have in the documents which they received.

MR DREYFUS: Indeed, that is so, Your Honour.

DAWSON J:	You cannot turn the clock back.
MR DREYFUS:	Yes, and indeed, even the minority in the Full

Court, His Honour Mr Justice Davies, used that

exact phrase, saying one cannot turn the clock

back. He was speaking in relation to the position

of the Royal Commissioners, but it is submitted

strongly that that is the position, that the clock

cannot be turned back, and nor can these downstream

questions that are not related to the making of the

decision - - -

Johns(2) 77 5/11/92

DAWSON J: And if Mr Merkel is right, then the newspapers

and the ABC could be ordered to hand back the

documents.

MR DREYFUS:  If he is right that this section allows,

because of section 16(l)(d) on its face, allows the
making of a whole range of orders, it is not so

much the nature of the order as to whom the order

can be directed, Your Honour, and what is submitted

on behalf of the sixth and seventh respondents is

that an order cannot be directed at strangers to

the decision who stand in the position of parties

such as the sixth and seventh respondents here.

DAWSON J: Because their rights and obligations are not in

any relevant sense dependent upon the decision,

they were acquired or incurred by the actions of

someone else, not the decision maker.

MR DREYFUS: That is so, Your Honour. Such rights as the

sixth and seventh respondents have to these

transcripts arise because they were publicly

tendered at the Royal Commission.

DAWSON J: Yes.

MR DREYFUS:	I have referred the Court to two decisions of the Full Federal Court, one of them predates
Park Oh Ho, that is Pearce v Button, and the other
is a decision of the Full Federal Court, made after
Park Oh Ho, both of them are decisions - that is Controller General of Customs v Kawasaki Motors. I
do not propose to refer the Court to the particular
passages there, but they are both decisions of the
Full Federal Court dealing with the width of the powers that are available to the Court under section 16. They do not deal directly with this question of whether or not section 16 gives
jurisdiction to make orders, or power to make orders, against strangers to the decision, because
appear to have been the decision maker and the
in both cases the only parties to the proceeding
person aggrieved.
But, there is certainly no support in the analysis in the first case, that is Pearce v
Button, section 16(l)(c), nor in the second case
which is Controller General of Customs v Kawasaki Motors which was concerned with section 16(1)(d), no support for the proposition that is now advanced
by my learned friend, Mr Merkel, that relief can be
granted against strangers to the decision.
TOOHEY J:	If the complaint had been that Ms Megay had handed the documents to your clients, then
presumably the decision there to be attacked would

Johns(2) 78 5/11/92

be that decision, and in that sense your clients

would not be strangers to the decision.

MR DREYFUS:  That would be an entirely different position.

TOOHEY J: But your argument, as I understand it, is that

obviously that is not the decision that is

complained of because there was no such decision,

but the decision being one to hand the documents to

the Royal Commissioners, then to whatever happened

thereafter your clients are strangers.

MR DREYFUS:  Yes, as would be every other person who has

obtained the transcripts, and yet it follows from

the proposition being advanced by my learned

friend, Mr Merkel, that one could trace ad

infinitum parties into whose possession these

transcripts have come.

DAWSON J: Indeed, if your clients published it, they could

order the destruction of the newspapers, on this

argument.

MR DREYFUS: Hypothetically, there is no limit, on

Mr Merkel's submission, as to the width of the

power or, indeed, jurisdiction that is given to the

Court under section 16(l)(d). It is submitted,

with respect, that that cannot be right, that it is

more limited. The purpose of this provision is to

allow the court to deal with the parties to the
decision, being the decision maker and the person

aggrieved, and it is possible to conceive of other

situations where there is some other party to the

decision.

I have referred the Court in paragraph 3 on

page 2 of the outline of submissions to Marcel's

case. What was said there was that - perhaps I

might take the Court to that passage in Marcel's

case, (1992) Ch 225, at page 235H. This was a

passage in the judgment at first instance where the	court was considering what possible cause of action	there might be in relation to - so as to enable the
recovery or restraint on the use of the documents in question. The first matter that is dealt with
is whether or not there might be some remedy by way
of judicial review rather than the assertion of a
private right of action, it being said that:

the claim against the police relates to the
exercise of statutory powers by a public

authority. This suggestion was not taken up

and I express no view on it. But in any

event, so far as I am aware the court in

exercising its jurisdiction by way of judicial

review would not have power to order third

parties (ie Mr Jaggard and his solicitors) who

Johns(2) 79 5/11/92

have unlawfully received property from a

public authority to return that property.

Such right, if any, must be based on a private law cause of action.

My learned friend, Mr Merkel, relies on the

Drake-Brockman decision to say that that is an

indication that the court in judicial review can

make orders against what he says are other parties,

but an examination of that decision makes it quite

clear that the parties being dealt with by the

court were the parties to the decision. They were

in particular the central reference board which was

the decision maker, and it was the subject of an

application for prohibition, the union which was

the applicant before the central reference board,

and the employer which was the party that brought

the proceedings in the High Court challenging the

central reference board.

What the High Court said is that relief is

available to grant prohibition against not only the

board as the decision maker but also against the

union as the applicant, that is the person who had ..

sought the decision of the board which was under

attack. That does not, with respect, provide

support for the proposition that my learned friend

Mr Merkel is advancing, which is that any party

connected even well down the track from the

decision, can be made the subject of an order in

the context of an application for judicial review.

TOOHEY J: Does cross-vesting have any implications in this

case? I mean, I am not suggesting that cross-

vesting can extend the jurisdiction under

section 16, but does it make available to the

Federal Court other jurisdiction that you would not otherwise have?

MR DREYFUS:  It may, Your Honour, but it is accepted

in - - -

TOOHEY J:  I appreciate that has not been argued in this

case.

MR DREYFUS:  And perhaps I should say, Your Honour, that it

is accepted that the Federal Court had jurisdiction

to deal with the claim for equitable relief, if I

can describe it in that way. But it has not been

contended by any party to the contrary at any level

below and I do not contend that now. That is the

claim, as I understand it, says that there is an

obligation of confidence arising from the statute.

Once the third party, being the sixth and seventh respondents, becomes aware of the obligation of confidence, they can in equity be restrained from breaching it. That is a claim that does not arise

Johns(2) 80 5/11/92

by way of judicial review, it is a claim in equity.

It is not contended that that claim cannot be made

in this Court and has not been contended in any

stage.

BRENNAN J: What has not been contended at any stage?

MR DREYFUS: That there is not any jurisdiction for the

Federal Court to deal with a claim in equity as I

have described it.

TOOHEY J: What is your argument, that although jurisdiction

exists, that jurisdiction has not been invoked in

the present case, or do you put it differently?

MR DREYFUS:  No. In relation to that equitable claim, what

I say is that it rests on the obligation of

confidence being found to exist. And what is
submitted is that there is no such obligation of

confidence. It is not an attack. There is no

attack made on the jurisdiction, though, of the

Court to deal with it as such.

BRENNAN J: What do you say about

Sir Nicolas Browne-Wilkinson's comments at page 237

of Marcel's report, letter C, where he says:

the underlying principle is that private

information obtained under compulsory powers

cannot be used for purposes other than those

for which the powers were conferred.

And then goes on to deal with the remedy which

might be available.

MR DREYFUS:  It is submitted, Your Honour, on behalf of the

sixth and seventh respondents, that whatever may

have been the position in England in relation to

that particular compulsory process, the statute

with which this proceeding is concerned

specifically authorizes what has occurred.

BRENNAN J:  I can understand that argument. But if that

fails in the sense that the power to disseminate is

limited by the implied requirement of

confidentiality, then do you have anything to say

about it? In other words, that there has been a

dissemination here in excess of what is

justifiable, because it was a dissemination which

allowed the breach of the confidentiality which it

was the obligation equally of the ASC and of the

Royal Commission to preserve.

MR DREYFUS:	If it be right, Your Honour, that there is such an obligation of confidence, then I accept that
third parties or strangers, people who receive the
confidential information later, such as the sixth

Johns(2) 81 5/11/92

and seventh respondents, may be amenable to being

restrained because that is the proposition that

emerges from Fraser v Evans and Commonwealth of

Australia v John Fairfax, that relief may be given

against third parties who become aware of the
obligation of confidence. But what is submitted
there - and this is the last part of the argument -

is that for all of the discretionary factors that

have been considered, some of which have been

considered in the court below, no relief ought to

be given.

TOOHEY J:  I am just having a bit of difficulty with what

your argument is, Mr Drefus, because earlier on you

seemed to be putting it in terms of section 16(1)

of the (Judicial Review) Act and the extent to

which that jurisdiction having been invoked, orders

could be made against persons who were not parties.

I understand that argument but you now appear to be

saying that you do not question the jurisdiction of

the Federal Court in these proceedings to make

orders binding your clients, if there, in fact, is

an obligation of confidence which affects them.	If.
that is so, then we have really left section 16

behind, have we not? The question, from your point

of view, is solely one of whether there is an

obligation of confidence or not.

MR DREYFUS: With respect, no, Your Honour, because the

appellant puts it also that the equitable cause of
action only deals with the obligation of

confidence. But there is another claim to relief

that is based on natural justice and what the

appellant puts is that if it is so that there was a

breach of the requirements of natural justice in

respect of these documents then section 16(l)(d),

which is the vehicle for that application, empowers

the granting of relief against the sixth and

seventh respondents. So it is important, even if

the equitable claim does not stand, to examine what

might be the consequences under section 16 against

the sixth and seventh respondents if the natural

justice claim is successful.

TOOHEY J: Right, and it is in that area that you say,

"Well, we're not parties to that decision."?

MR DREYFUS:	Yes.
TOOHEY J:	"And therefore section 16 cannot reach us."?

MR DREYFUS: That is so, Your Honour.

McHUGH J:  Mr Dreyfus, I cannot help but think that some

confusion has been injected into the argument

generally by use of the expression "in confidence".

Either there is a confidence in relation to the

Johns(2) 82 5/11/92

information which would be protected by injunction

in a court ·of equity or there is not. But

superimposed above that there is a question of

breach of a statute requiring information not to be

disclosed.

I thought that the appellant's case was

concerned with the first aspect and that the

section 16 proceedings were invoked so as to set

aside what could lawfully authorize the publication

of confidential information. But, subject to what

Mr Merkel says, it seems to me that at the moment

the case is really based on a breach of a statutory

right, and that is a right not to have this matter

disclosed, whether or not it would have attracted

equitable remedies, independently of statute.

At the moment it seems to me that using the

words "in confidence" really confuses the argument,

straddles two different concepts, in the sense that

the appellant's case is really that there is a
breach of the statutory right not to disclose this

information. So then a question arises: what

remedies has he got in respect of a breach of that ·

statutory right?

MR DREYFUS:  That is where the section 16 question must be

considered.

McHUGH J: Yes, and from the point of view of the appellant,

it does not matter whether what was done was ultra

vires the statute or whether, in breach of the

rules of natural justice, there has been a breach

of the statute, in both cases the appellant would

say that the decision was of no effect.

MR DREYFUS:  And he is entitled to relief under the AD(JR)

Act.

McHUGH J: Under the AD(JR) Act, and it is another question

though whether section 16 extends to you as opposed

to bringing proceedings against you in the Supreme

Court of Victoria.

MR DREYFUS:	I have only raised, Your Honour
McHUGH J:	I know, I know that, yes.
MR DREYFUS:	- - - the equitable claim because that is

another way in which the appellant has put the

case.

MCHUGH J: Yes.

MR DREYFUS: If I could conclude, Your Honours, I have set

out in the last section of the outline of

submissions some discretionary matters, some of

Johns(2) 83 5/11/92

which were considered by both the trial judge and

the Full Court. In particular, and this is perhaps
the most telling point, there is this question of
delay which by itself, it is submitted, would be a

sufficient reason for declining - if the appellant

is otherwise entitled to relief that, by itself, it

is submitted, would be sufficient reason for

declining to grant any relief. I refer the Court

to findings of the trial judge about the

appellant's knowledge of what was occurring, which is at appeal book 384, and to what the majority in

the Full Court said at appeal book 505 and 517, as

to the questions of the appellant's knowledge and

what he ought to have done, that is to act promptly

if he sought to challenge what had occurred.

Even His Honour Mr Justice Davies, in the Full

Court, as I have said earlier, and this is at

appeal book 546, said, "it is too late to put the
clock back". And it is the fact that most likely the sixth and seventh respondents certainly would not be here had there been prompt action in respect

of the complaint that has now been brought.

GAUDRON J:  I do not follow that. The sixth and seventh

defendants would not be here if there had been

prompt action. What do you mean by that?

MR DREYFUS:  Your Honour, the consequence which is said to

have occurred as a result of the giving of the

documents to the Royal Commissioners was that the

Royal Commissioners then decided to publicly tender

some of them. As a result of - - -

GAUDRON J: All of that happened _almost instantaneously.

MR DREYFUS: Only, it was a sequential tendering, with

respect, Your Honour, and it may be that the

appellant was only advised on the same day of the

tender of the first of the transcripts, but as has

been found below he knew that the process of

tendering was ongoing, and ought to have complained

straight away once he knew that there was some

interference with this - - -

GAUDRON J: Should have objected to the tenderer, you say?

MR DREYFUS:	Should have raised the objection that he now makes on all of the bases which are in effect
saying, "My rights have been affected by these
documents being released".

BRENNAN J: But that step not having been taken as between

you and him, why is it that this is a discretionary

bar?

Johns(2) 84 5/11/92

MR DREYFUS:  It is perhaps linked to the next point,

Your Honour, which is as to the documents being in

the public domain. As between the sixth and

seventh respondents and the appellant, the sixth and seventh respondents are not the only persons

who have obtained access to these documents. These

documents have been generally publicly available

for several months and have become generally

publicly available for several months through a

process of public tender at the Royal Commission and it is submitted, on the authorities that are there set out which are examples of where this

question of the public domain has been looked at,

that any confidentiality has simply been lost as a

result of the public tendering of these documents.

In Marcel's case, which is the first case

cited there, Sir Nicolas Browne-Wilkinson concluded

without hesitation that the public tendering of one

group of the documents meant that they had lost

their right to confidentiality altogether, and he

did not then deal further with those particular

documents. That mere fact of public tendering in

court was enough to destroy the right of

confidentiality.

BRENNAN J: Are they still available as transcripts?

MR DREYFUS:  Not through the Royal Commission, as I

understand it, Your Honour.

BRENNAN J:	Why not?
MR DREYFUS:	Because the Royal Commission has handed back

their letters patent and made their report.

BRENNAN J: And what has happened to all their files?

MR DREYFUS:  I must confess that I do not know, Your Honour.

BRENNAN J: Is there a Freedom of Information Act in

Victoria?

MR DREYFUS:	Yes, there is.
BRENNAN J:	Is there anything to stop anybody getting access

to these document?

MR DREYFUS:  It may be a matter that my learned friend,

Mr Myers, can assist the Court with.	I
frankly - - -

DAWSON J: There may have been a big shredding operation.

MR DREYFUS: My learned friend advises that all documents

have gone back to whence they came so that in the

case of the transcripts they have been returned to

Johns(2) 85 5/11/92

the Australian Securities Commission. That is as
to their physical location of the Royal

Commission's copies of these documents, but as to

the location of other copies of the documents, that

is simply a matter of speculation. As is deposed

to by Ms Arendsen in her affidavit, a number of

identifiable persons have obtained copies of these

transcripts - this is at appeal book 250 to 251 -

and it is not known to the sixth and seventh

respondents how many other persons have availed

themselves of the opportunity to obtain access to
these documents. But it is the fact that they have

been generally publicly available for several

months.

To conclude on this point, there is some

inconsistency, it is submitted, in the appellant's position here. At sometimes the appellant appears

to be saying that such release as has occurred is

very limited, but at one point yesterday my learned

friend, Mr Merkel, referred to publication at large

in response to a question from Your Honour

Justice Brennan about what had occurred, and it is

submitted that the second of those is the correct

position, that there has been publication at large

through the process of public tendering.

DAWSON J: What do you say to the proposition that in view

of pending trials - there are pending trials, are

there not?

MR DREYFUS:  Yes, and as is set out, I think, in the

judgments below, particularly that of the majority

in the Full Court, the trial is anticipated to

commence in February.

DAWSON J: What do you say to the proposition that if the

documents do tend to incriminate the appellant,

then your clients would be risking contempt of

court if it published the documents?

MR DREYFUS:  I would say, Your Honour, that there would be

no risk of contempt of court because the
subject-matter of these transcripts is entirely

separate from the subject-matter of the criminal

trial.

DAWSON J: That may be so, but assuming that they do tend to

incriminate the appellant in relation to the

matters which are in issue in the trial, there is

no question, is there, that your client would be in

danger of proceedings for contempt of court if it

published the material, just as it published prior

convictions or identity if that was in issue?

MR DREYFUS:  It is a matter that would have to be

considered, Your Honour, but it would be considered

Johns(2) 86 5/11/92

in the context of there having been a huge amount

of publicity about the appellant, the fact that

there has been no restraint made on the making

of - - -

DAWSON J: But it goes further than that. When we talk

about confidentiality, that may not be really the

issue. That is what I am putting to you; that the

mere fact that something may incriminate the

appellant, which is really the matter of complaint,

in relation to that there may be adequate

protection which the statute itself provides, and

that throws light on the matter.

MR DREYFUS:  There may be a risk of contempt; I would

concede that, Your Honour.

DAWSON J: This is not really a question of confidentiality

at all; it is something else that the appellant is

complaining about, that is, that this material may

be used to his disadvantage in a criminal trial.

That is something which the statute provides. It

cannot be.	But, on the other hand, if your clients __
were to publish it and the potential jurors would	·
come to know it, that is a different situation.

MR DREYFUS:  It must remain a hypothetical question,

Your Honour, because the transcripts are not before

this Court and they were not before the Full Court

either.

DAWSON J: And should not under the statute be before the

trial court if they tend to incriminate the

appellant. That is what the statute says; they

are not admissible.

DREYFUS: That is so, Your Honour.

DAWSON J: So that if your clients, in view of that, were to

go ahead with the knowledge they have and were to

publish those transcripts, if indeed they did have

relevance in the trial, there would be a question

of contempt of court, would there not?

MR DREYFUS:  Yes, that is so, Your Honour.

DAWSON J: So really when talking about confidentiality, we

may even be going off on a side track which has

nothing to do with the matter.

MR DREYFUS:  I can only approach the case as it has been put

by the appellant, Your Honour.

The final point that I would raise as to the

relief is the futility of making an order against
only two of the recipients of the information, when

there are in fact others who have this information

Johns(2) 87 5/11/92

and the appellant has made no attempt whatsoever to

restrain in any way their use of the information.

It must, it is submitted, raise some questions

about the genuineness of the application when there

has been a selection of only two of the media

organizations who have obtained these transcripts

and no attempt made to restrain anybody else's use

of the material. An affidavit has been filed, last

week I believe, that exhibits - I do not know
whether the Court has it - an article which

appeared in the Melbourne Age on 11 July.

BRENNAN J:  How is that admissable in this Court on an

appeal from the Federal Court? Is it not fresh

evidence?

MR DREYFUS:  It is indeed fresh evidence and I do not

seriously press it, Your Honour, although it might

be taken as an indication that the Melbourne Age

does not regard itself as bound by the direction of

the Royal Commissioners. It has got these

documents, it does not regard .itself as restrained

in any way, and nor would it be restrained by an

order that was directed to the sixth and seventh
respondents. There is no reason why my learned

friend can say that there is a utility in simply

restraining the sixth and seventh respondents when

there are all these other parties who have the

documents.

Your Honours, unless there are other matters I

can assist the Court with, that would conclude the

submissions in relation to the arguments here. On

the question of costs, I am instructed that both

the sixth and seventh respondents are happy to make

written submissions and do not wish to address the

Court in relation to questions of cost.

BRENNAN J: Thank you.

MR DREYFUS:  As the court pleases.

BRENNAN J:	Mr Merkel?
MR MERKEL:	If the Court pleases, I fear or suspect the

transcript may convict me yet of what I said

yesterday. Hopefully our outline does not, and can

I just clarify the confusion that appears to have

crept in to the way in which we put our case.

We have maintained, and we certainly make it

clear in our outline that we maintain, that our

right in respect of the information arises

independently from two sources: one is the statute

and two is an equitable duty of confidence. We

made that very clear in paragraph 6(b) where we set

Johns(2) 88 5/11/92

out the two concepts, one of statutory confidence

in 6(a) and equitable confidence arising from a

series of circumstances in 6(b), and finally,

although it appears elsewhere in paragraphs 17 and

18, we make it clear that the source of relief

arises, one, under the AD(JR) and independently in

respect of breach of the equitable duty of

confidence. Now - - -

DAWSON J: In the attached jurisdiction of the Federal

Court, is that what you are saying?

MR MERKEL:  Yes, Your Honour, andthere has never been an

issue that the jurisdiction of the Federal Court in

this case, as my learned friend conceded, is not

properly invoked on both grounds because it is the

one matter, and indeed there was an order of cross-

vesting sought in the application, never needed to

be made because there was never any relief.

TOOHEY J: Yes, we sorted that out in my discussion with

Mr Dreyfus. You do not rely upon the cross-vesting

apparently?

MR MERKEL:	We do not.
DAWSON J:	You would not need to, would you?
MR MERKEL:	We do not need to, but if we ever had to we

would have sought the order, but as relief was

never granted, the order never had to be made, and

no one ever objected that there is any

jurisdictional bar.

Having said that, may I say t~at what Your Honour Mr Justice Toohey said was correct, the

reason why the focus is resorted back constantly to

the ASC Law is because if there was a lawful

disclosure of the information in the manner that

enabled it to be public, then that lawful
disclosure would be a defence against our claim for

both breach of statutory duty and breach of

confidence, because there could be no confidence if

a decision was validly made under the Act which was

binding on us, that removed the confidence in

respect of the information, and certainly the

matters that Justice Dawson and I were discussing
yesterday, about whether the duty of confidence

must be a question of statutory construction or

whether it can arise independently of the statute,

is a very important matter, and can I just identify

the first - - -

DAWSON J: Just before you get to that, where does the

equitable duty of confidence arise here?

Johns(2) 89 5/11/92

MR MERKEL: 

What we say, Your Honour, is that the equitable

duty of confidence arises by reason of the matters
set out in paragraph 6(b), that we rely on those

matters. But if I could develop my reply in two

parts: the first is that it is said that there is

no obligation arising under the statute; and the

second is that it is said against us by our learned

friends that there is no obligation arising

independently of the statute. And what I would

like to do is deal with each of - - -

DAWSON J: 

I just want to know, really, where this duty of

confidence arises. The statute says that other

people in the ASC who have this information may

disclose it and may, in the proper circumstances,

disclose it publicly.

MR MERKEL:  Yes, and, Your Honour, if the statute - if we

fail on our two challenges to the - - -

DAWSON J: Now just let me follow it through. If in fact

they do disclose it publicly, and they do so on

wrong grounds - and that is what you allege - and,

indeed,that is the foundation of your action under

the AD(JR) Act, do you say that because they have

made a wrong decision, somehow or other a duty of

confidence arises in relation to that information?

Is that the way you put it?

MR MERKEL:  Yes, Your Honour, but we put it in two parts.

We say the duty arises under the statute, which is

the part I wanted to address first.

DAWSON J: A duty to do what?

MR MERKEL:  A duty not to disclose the information publicly.

DAWSON J: But there is not a duty. There is a duty which

is imposed on the various people in relation to the

ASC which allows them to disclose the information publicly. They may do so wrongly, but they may do

so rightly. If they do so rightly there is no duty

of confidence, is there?

MR MERKEL: If the statute was interpreted as - - -

DAWSON J: Look, just - - -

MR MERKEL:  Yes, if they do so correctly, Your Honour, and

the - - -

DAWSON J: There is no duty of confidence.

MR MERKEL:  There can be no duty of confidence if the

decision is valid.

Johns(2) 90 5/11/92

DAWSON J: And if you say they do so incorrectly, a duty of

confidence arises which stretches down the line to

whoever receives the information?

MR MERKEL:  Yes, Your Honour.

DAWSON J: That is the way you put it?

MR MERKEL: Yes, Your Honour.

DAWSON J: All right, at least I know now.

MR MERKEL: That is under the statute.

McHUGH J: Perhaps there is an intermediate position. You

see, must not the obligation of confidence arise

independently of the disclosure provisions? You

either, by reason of equity or by reason of

statutory provisions - the information the moment

you give it has an obligation of confidence
attached to it. Then the next question is: to

what extent does the statute authorize the

disclosure of it. It may authorize the disclosure ..
of it to some individuals, it may authorize a

disclosure to the world. If it authorizes a disclosure to the world it may be subject to conditions.

MR MERKEL: Yes, Your Honour.

McHUGH J: But it seems to me that the question of

confidence and the question of disclosure are two

separate matters.

MR MERKEL:  With respect, that is right, Your Honour. We

want to say - if I can just adopt what Your Honour

has put - that two duties arise which may be one in

truth. One is - I want to base this upon a House

of Lords decision - that there is a duty in such
circumstances not to publish, and not to make the

information available to the world at large. A

separate duty, which may be just a part of the same

duty, and I accept that, may be that there is a

duty of confidence. On both grounds we say the
next question is: has the statute authorized the

decision to disclose publicly? If we lose on that

point we must fail. But we say that if we win on

that second point, on either of the two grounds

that we have relied on, authorization or denial of

justice by not being afforded an opportunity to

hear, then the decision so made is one that can be

set aside.

It can be set aside ab initio. The voidable debate is resolved by section 16(l)(a) of the

AD(JR) Act which says that the Court can set it

aside, with effect, as from the date it was made.

Johns(2) 91 5/11/92

That removes the authority of the newspapers that

they rely upon to say that the information was

given pursuant to a lawful decision and then we say

they fall into the position, on any view, whether

through the AD(JR) section 16(l)(e) or in equity as
innocent recipients of information which we say

they are obliged to maintain in confidence.

Whether that entitles us to get an order in

respect of the document, a physical document, would
depend upon what equity will provide in respect of

equitable relief for breach of confidence. But our

primary relief is to restrain publication.

They are the separate steps. I may be guilty

of confusing or merging two separate matters and I

have tried to avoid that by dealing with the
statute at one level and the separate features of
the case involving Mr Johns at a different level.
The reason why I wanted to do that, really, stem

very much from the matter Justice Dawson raised with me yesterday: is it not a question of the construction of the statute?

Possibly I allowed some confusion to creep in

by confusing what it really means. We say what is

a question of construction of the statute is

twofold: one is, "What is the duty to an

examinee?"; and twofold, "Is there an authority to

disclose publicly?".

The decision I wanted to hand up to

Your Honours which was really the source, in

effect, of the reasoning in the decision of

Permagon Press, was the.House of Lords, in Hearts

of Oak Assurance v Attorney-General - if I can hand

up photocopies to Your Honours - (1932) AC 392.

This is, in effect, the sources of the

reasoning in Permagon Press. May I say it confirms very much what Your Honour Justice Dawson put to me yesterday that whether a hearing is to be in

private and what may follow from that requirement

is a question of construction.

The case concerned an inspector under the

Industrial Assurance Act to inquire into the

affairs of the company. The relevant statutory

provision is at 395 at point 6 which is expressed

in the broadest of terms and is silent on whether

the proceeding will be in public or in private.

What was sought, because the investigation was

to take place at the local city hall, was
declaratory relief that the examination could not

be held in public and that is in paragraphs (1) and

Johns(2) 92 5/11/92

(2) at 396, at point 2. Importantly, at

paragraph (3), at point 5 at 396:

A declaration that an inspector so appointed

for the said purpose is not entitled to make
public the information gained by him in the

course of such examination -

Then, Lord Thankerton, at 396, at the last

paragraph, and then the middle of 397 stated the question in terms of statutory construction - as

Your Honour Justice Dawson put to me yesterday -

where His Lordship said - this is the middle of

397:

Except in so far as the statutory

provisions otherwise direct, it seems to me

that the affairs either of a collecting

society or of an industrial assurance company

are their own domestic matter, and that,

therefore, in the absence of any statutory

provision providing otherwise, the

examination ..... ought not to be conducted in

public.

DAWSON J: It is always cited as a case of a classic example

of the court filling in a gap in the legislation.

MR MERKEL:  Yes, Your Honour, that is certainly so.

Lord Thankerton made the declarations twofold at

the bottom of 398. He made the two declarations

that, one, they were not entitled to proceed in

public, and two, that they were not entitled to

make public the information. His Lordship made

what Your Honour put to me very clear at point 2 at

399:

While the agreement of parties cannot

relieve your Lordships of the duty of putting

a proper construction on the Act of

Parliament, I am of opinion that a declaration

in those terms will accurate express the

conclusion -

Lord Macmillan approached it very much in the same

way, making the point again Your Honour made at

point 5 of 399:

The statute itself is silent on the subject -

and in effect the intention of Parliament had to be

discerned.

DAWSON J: It is a case of legitimate judge-made law, is it

not?

Johns(2) 93 5/11/92

MR MERKEL:  That is what Viscount Dunedin said, Your Honour.

He was in dissent - 4:1 - at page 405.

BRENNAN J: The result was a good one.

MR MERKEL:  The result was 4:1 with His Lordship in dissent.

We say it is an important case and the underlying policy reasons were very important, but

Viscount Dunedin said the statute was silent;

therefore it left a discretion to proceed in public

or private. I will not read the other passages,

but I would say we rely very much on Lord Macmillan

at page 403 and Viscount Dunedin makes the point

that Your Honour Justice Dawson made to me, namely

that there was no authority for the court to fill

the gap.

Can I say that we derive two conclusions from

this decision. One is that section 22 has dealt

with the matter as Viscount Dunedin would say it

should have been, but the second is that

Their Lordships found that if the statute provides

for the matter to be heard in private, it follows

that you cannot make the information so acquired

public. We say that is a duty arising under the

statute and it is a duty enforceable by the

examinee who imparts the information.

So the first leg of our analysis is that this

case assists in construing section 22 as at least

preventing the transcript being made public.

McHUGH J: That is when your argument gets into some

difficulties, does it not, so far as the newspapers

are concerned, because you may hav~ a right to

restrain a breach of publication, but it must be a
right conferred by the statute - it is a statutory

right - but once there has been a breach and once

the information is got out, where do you get your

right then to restrain the recipient of the

information?

MR MERKEL:  Your Honour, to the extent that we are confined

by the statute, it would appear - I would not like

to say it is a concession to that effect - that we

may be confined to the remedies that the AD(JR) Act

afford us in challenging that statutory decision,

unless the breach of statutory duty cause of action

could take us downstream, as it was put. It is a

difficult question, but we see how the AD(JR) Act

is a very important question there.

I would not like to concede that the statutory

duty aspect would be a source that we could not

use, because the duty goes to what is really meant

when you are not allowed to make it public. What

we really say is that that means confidence in

Johns(2) 94 5/11/92

respect of the information imposed by statute - and

we say there is no reason if the information is

therefore confidential without resort to the

equitable duty - that it should not be able to be

the subject of relief in an innocent recipient's

hands, but that may be equity that takes us there.

DAWSON J:  I thought you would have said it was equity that

takes you there. I do not understand all this. You

say, all right the statute gives permission to

disclose in certain circumstances, but the

equitable duty of confidence remains and if that
permission is wrongly exercised, power is wrongly
exercised, then it does not affect the equitable

duty of confidence; that goes on.

MR MERKEL:  Yes, we say that, Your Honour, and that is the

step I am about to come to. The courts have picked

that up and treated information acquired in these

circumstances as attracting that duty of

confidence, and that was precisely the underlying

rationale in Marcel's case. And can I just take Your Honours just briefly back to Marcel's case, because the matter was dealt with by

Their Lordships on that basis, and we say that that is the next stepping stone, that once one finds

that through the statute or through these

independent sources that we rely upon, the

information is confidential in that way, we say

that equity protects it and protects us.

McHUGH J:  I must say, I would not think it was the next

step; I think it has got to be your first step if

you are going to get any relief.

MR MERKEL:  Yes, Your Honour, I accept that.

BRENNAN J: What are the passages?

MR MERKEL:  Your Honour, the passages in Marcel's case are,

if I can just give Your Honours the references:

page 234 paragraphs D and E and C and D at

page 235; page 235 paragraph D and E; page 240 to

241, page 240 at paragraph Band E and page 241 at
c and D; page 255 paragraph A and B; page 261 at

paragraphs B, C and D; page 262 at paragraph D and

E and page 265 at paragraph E. And may I say that

the entitlement to be heard referred to by

Their Lordships at page 258-9 and page 266-7 is

founded on the notion that there is confidence in

the information acquired under compulsion.

And what we say in those circumstances is that

- can I move separately to what we say are

circumstances additional to the statute, that

imposed a right of confidence in our client to the

information.

Johns(2) 95 5/11/92

BRENNAN J: This arises by way of reply, does it?

MR MERKEL:  Yes, Your Honour, because it is said by our

learned friends, and in particular in Mr Myers'

submissions at page 6, that there is just no

confidence and in paragraph 18, in particular, that
Johns did not seek to impose an obligation of
confidence and our response to that is that

Mr Johns gave the information in confidence by

reason of the provisions of section 22, but also by
reason of each of the circumstances set out in
paragraph 6(b). And, may I say that the first

circumstance, where information is given under

compulsion of law, Marcel's case, and the passages

I took Your Honours to, suggest that where a

citizen is required to give information under
compulsion of law, the recipient receives it in

confidence. In private hearing I have addressed

Your Honours on the Hearts of Oak and the

circumstances I have identified.

In paragraph 4, the right of

self-incrimination, may I say that the reasoning of

the Vice-Chancellor in Marcel's case equated the

right of a person giving information under statute

under compulsion and with the legal professional

privilege, and he discussed it in terms of

Lord Ashburton v Pape. Lord Ashburton v Pape has

always treated legal professional privilege or

privileged information as confidential; we say it

must be right and it must be correct that

privileged information, and we say under

section 68, is received in confidence.

The last item, that is paragraph 5, we find

rather strange against my learned friend's

submissions, that there was no assurance sought.

Mr Johns was given each of the transcript marked as

transcript-in-confidence. Now we say that our

learned friend's submissions - - -

DAWSON J: Apart from that he made a blanket objection, did

he not?

MR MERKEL: Yes, Your Honour, of course he did, to

giving •••.. but he was overrode under section 68.

So that we say that is how we derive our right in

respect of the information.

Can I deal with a number of other points put

by our learned friends against us. It was

suggested by my learned friend, Mr Myers, that the

decision of the ASC was just to give it to the

Royal Commissioners. We would not be here if the

decision was given to the Royal Commissioners in

the terms of the original decision which maintained

confidentiality and restricted use to within the

Johns(2) 96 5/11/92

Commission. The issue arose as to whether the

decision to allow publication was authorized under the Act, and my learned friend said that there was a finding to the effect that that was for the

purpose of assisting or enabling an agency to

fulfil its functions.

Not only was there no evidence to that effect,

but can I give Your Honours transcript references

which showed that the Commissioners themselves

never saw it in that light and never sought to use

it in that light. In their ruling, at pages 148 to

149, which is the first ruling, the Commissioner

said these transcripts were "preliminary proofs of

evidence" to be used for the public examination.

Paragraph 9 at page 153 and paragraph 10 at

page 154, they made it clear that the receipt and

tender of these transcripts in public really was

quite unnecessary to their functioning, and before

about what has happened to the transcripts. The

leaving that can I mention a matter raised by

ruling, at page 149, of the Commissioners directed

that the transcripts that were public be removed

from public tender and made the direction, "there

be no further publication". So that the

information, to the extent that it had been released, had been released and it was very

restricted, but there is no right of access to it

as a result of that ruling.

My learned friend said there was no duty

imposed upon the ASC in respect of examination to

Mr Johns to act fairly. Can I just say to

Your Honours that re Pergamon Press, a decision

that Your Honours applied in Ainsworth, said that

there is a duty on an examiner to act fairly in

relation to the examinee under a Part 7

examination. The written submissions, my learned

friend suggested, that we should only be entitled

to declaratory relief and we have no other right.

We, in our orders yesterday, said that our main

relief is substantive, we did not need declaratory

relief, but if the Court for any reason found we

were not entitled to substantive relief we would

seek declaratory relief as in Ainsworth. And can I

just say that our notice of appeal at pages 564 to

565 we set out the relief that we seek.

I had mentioned that section 16(1)(a) shows

that under the AD(JR) that the decision can be set

aside ab initio. Can I then deal with a number of

discretionary matters my learned friend,

Mr Dreyfus, put to Your Honours. He said that his

client were not parties to the decision.

Johns(2) 97 5/11/92

We say that under section 16(1)(d) and (e)

they are parties to the proceeding and the
proceeding relates to the matter; and we say they
are parties in respect of the matter, namely the

publication of the material. So they are within

the reach. But, in any event, Fraser v Evans and

Coco's case make it clear that the jurisdiction of equity will reach them both in respect of the

information and the documents which record them.

In so far as he said there are discretionary

reasons, we say there are none.	He does not come
to the matter as strangers - - -

BRENNAN J: Just before you leave Fraser and Coco, those are

principles which have been laid down with respect

to information which, by its nature, is

confidential. Your argument, as I understand it,

is not based upon the nature of the information contained in the transcripts but on the duty of non-publication which flows from the statute.

MR MERKEL:  We put it wider than that, Your Honour. We say

that it is confidential information for the	reasons
we have set out and we say that it attracts	a duty
of confidence.

BRENNAN J: Let us assume against you that the distinction

is made between non-publication of that which is in

the transcripts and the confidentiality of the
information. Is there any case which deals with
the duty of the recipient of information which is

not to be published, equivalent to the cases that

you just referred to?

MR MERKEL:  Yes, Your Honour, we say that Marcel's case is directly in point.

McHUGH J: Spycatcher must be

MR MERKEL:  Yes, the Spycatcher must be another

example - - -

McHUGH J:  The Official Secrets Act?

MR MERKEL:  Yes, Your Honour, that is another case. We

would add that the principles that would give the

right to such protection, on Marcel's case

reasoning, would have higher public policy reasons

or certainly at least as high a public policy

reason to afford relief as the principles in

equity.

My learned friend criticized our delay. We

remind Your Honours that he had no knowledge of his

right on any view of the evidence until 20 January.

His first step was to move the Royal Commissioners

Johns(2) 98 5/11/92

to make the orders that he did. Secondly, the

press cannot display or demonstrate - never have

sought to - any prejudice· that could be attended by

the passage of time. Thirdly, the reliance on

Justice Davies on the question of delay was quite

misleading. His Honour found that delay could have

disqualified us from the relief we sought in

respect of the continuation of the Royal Commission

because of the prejudice that it would suffer if

there was intervention at this late stage. None of

those arguments apply in respect of the press.

We say that the limited circulation identified in the material makes it quite clear on the

passages we relied upon that there is no loss of

secrecy and that the Court's order will not be

futile. There is a very limited circulation.

There has been virtually no publication of any

significance and the only reason the ABC and the

Herald were singled out as defendants is they are

the only one who threatened to publish.

But we say if the Court grants the relief that

is sought there could be little doubt that the

other media organizations would likewise follow

suit and could be subject to suit if they did not.

So we say that to say it would be futile is quite wrong.

We finally say that on the question of the

section 68 incrimination matter and the possible

proceedings in court, the outcome of the present matters is not just simply a matter of contempt.

But the matter raised by Justice Dawson is a perfect example of the kind of adverse effect on

our interest that we have by having information of

this kind allowed to be set at large. They are the

submissions we wish to put in reply.

Could I just finally conclude on one matter

that may be a matter of importance: we would ask

if the Court would reserve us liberty to apply or

possibly to a single Judge for a stay of the costs

orders. Apparently, there are proceedings that are

taking place in Melbourne on the part of the media
to tax costs and enforce costs orders by the media

of the Federal Court and I do not want to ask this

Court, at this moment, for a stay. We do not have

material but we would ask for liberty to apply for

a stay if they seek to, in effect, enforce those costs orders in a way that could have adverse or

serious consequences against Mr Johns. I would ask

if such an application could be made in writing

unless it is sought by the other parties, we would

ask for that leave.

BRENNAN J:  Why do you need liberty to apply?

Johns(2) 99 5/11/92

MR MERKEL:  Well I raise it, Your Honour, I foreshadow it

may be necessary, I probably do not need liberty to

apply.

TOOHEY J:  Mr Merkel, could I just ask you one question, it

is a request for information and I do not want

anything more than page or page references.

Having regard to the limited nature of the

order granting special leave to appeal and the decisions that are identified in that grant of

special leave, can you tell us where precisely we

find thos.e decisions, either in the application for

review under the (Judicial Review) Act or in the

statement of claim. I am just having some

difficulty in identifying it.

MR MERKEL:	Your Honour, the decisions are identified in our chronology as item 22, that is where they appear in
the material and in the -

TOOHEY J: Yes, I appreciate that. The question is directed

to the initiating process.

MR MERKEL:  Yes, Your Honour, in volume 1 in the

application, Your Honour, at page 3 paragraph 1.1.6
and that refers to 13 at the statement of claim
which is in paragraph 17, and the paragraphs

(d){iii) at page 18, and {f) and (g) at page 19,

are where the matters are set out in the statement

of claim, and can I just mention that, try and find the passage, it was suggested that we had not raised all those matters, and Their Honours

set out in the majority judgment where they had

been raised, both in the pleadings and in argument,

and I am told that is at page 488 it is referred

to, Your Honour.

TOOHEY J: Thank you, Mr Merkel.

MR MERKEL:

As the Court pleases.

BRENNAN J: The Court will consider its decision in this

matter.

AT 11.04 AM THE MATTER WAS ADJOURNED SINE DIE

Johns(2) 100 5/11/92