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)

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)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] HCATrans 323
Decision Date

CaseChat Overview and Summary

In *Johns v Australian Securities Commission*, the appellant, Mr Johns, sought judicial review of a decision by the Australian Securities Commission (ASC) to release material to Royal Commissioners. The High Court of Australia was required to determine the basis of Mr Johns' claim for relief and the availability of such relief.

The central legal issue was whether an obligation of confidence could be implied from the *Australian Securities Commission Act* (ASC Law), and if so, whether this implied obligation provided a cause of action for Mr Johns. The appellant's case was framed as a judicial review of the ASC's decision, with the sole foundation for his claim being an alleged obligation of confidence arising by implication from the ASC Law. The Court considered whether this statutory implication was the only basis for the appellant's cause of action, or if other grounds, such as equitable rights or proprietary rights in the information, were also advanced.

The Court's reasoning focused on the nature of the obligation of confidence and its statutory source. It was clarified that the appellant's case was not founded on any conduct of the ASC or the appellant himself, nor on any proprietary right in the information. Instead, the argument was squarely based on the contention that the ASC Law itself created an implied obligation of confidence. The Court grappled with whether a breach of this implied statutory obligation gave rise to a right to restrain the release of information, and the extent to which relief was available and discretionary.

Orders