K v Australian Crime Commission

[2006] HCATrans 200

[2006] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S114 of 2006

B e t w e e n -

K

Plaintiff

and

AUSTRALIAN CRIME COMMISSION

Defendant

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 21 APRIL 2006, AT 9.37 AM

Copyright in the High Court of Australia

MR A.M. THOMAS:   May it please your Honour, I appear for the plaintiff.  (instructed by Cosoff Cudmore Knox)

MS S.J. MAHARAJ, QC:   If it please your Honour, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Thomas, what do you move on?

MR THOMAS:   Your Honour, I move on an application by the plaintiff ‑ ‑ ‑

HIS HONOUR:   Well, wait a minute.  Where is the summons?

MR THOMAS:   I move on the summons numbered S114 of 2006 filed on 19 April 2006.

HIS HONOUR:   Yes, and what affidavits do you move on?

MR THOMAS:   I move on the affidavit of Kevin Pathinather which was sworn on 18 April 2006 and filed in the Court on 19 April 2006 and I also seek the leave of the Court to ‑ ‑ ‑

HIS HONOUR:   Well, there are two affidavits, are there not?

MR THOMAS:   There is a second affidavit of Kevin Pathinather which was sworn on 20 April 2006 and filed on that same day.

HIS HONOUR:   Do you have these affidavits, Ms Maharaj?

MS MAHARAJ:   Yes, I do, your Honour.

HIS HONOUR:   Thank you.

MR THOMAS:   Your Honour, it may be convenient to dispose of the procedural matter at this stage.  I would ask your Honour that an order be made that the second affidavit sworn on 20 April 2006 and its exhibit not be disclosed to any person other than the parties.

HIS HONOUR:   Just a minute.  The first question is, how do you start this proceeding in this Court with an anonymised plaintiff without an order?

MR THOMAS:   Your Honour, we start this case in this Court ‑ ‑ ‑

HIS HONOUR:   No, how do you do it procedurally?

MR THOMAS:   Procedurally we do it because we had no choice, given the effect of the notation on the summons.

HIS HONOUR:   No.  Under what rule of Court permits a person to come to this Court and conceal their name without an order?

MR THOMAS:   The rule of the Court which enables the Court to dispense with formal requirements.

HIS HONOUR:   Formal requirements.  It is a matter of substance to know who the plaintiff is.

MR THOMAS:   Your Honour, this matter has been ventilated in the Federal Court on a number of different ‑ ‑ ‑

HIS HONOUR:   I am not interested in the Federal Court.  I am interested in this Court and our Rules and how this can be.  I am not saying it cannot be done, but if it is to be done, it has to be done properly, and it cannot be done properly simply by filing a document in this form to initiate a proceeding, as far as I can see.  You need leave, as I understand it, to institute this proceeding nunc pro tunc identifying the plaintiff in this way.  Now, I will ask Ms Maharaj if she opposes that.  Do you oppose that, Ms Maharaj?

MS MAHARAJ: No, we do not oppose that, your Honour, but we just note in short that it appears that the plaintiff has misconceived the purport of section 29A and 29B of the Australian Crime Commission Act.

HIS HONOUR:   Let me just have a look.

MS MAHARAJ: Your Honour, there are two short points we make. It is rather difficult to see how an administrative act of the examiner can control the processes of the Court. In any event, your Honour will see from the terms of section 29B(4)(b) that there is an exception granted by that section to a legal practitioner to use the full name for the purposes of making representations.

HIS HONOUR:   Yes, I see.

MS MAHARAJ:   Now, whilst that section is not expressly or clearly crafted, that appears to be the intent of the provision.

HIS HONOUR:   Yes, very well.

MS MAHARAJ:   And we do not oppose the making of the order nunc pro tunc, your Honour.

HIS HONOUR:   Yes, thank you.  Very well then, having heard what Ms Maharaj says, the plaintiff has leave nunc pro tunc to institute and prosecute action S114 of 2006 with an anonymous identification, namely K.  Now, is there any objection to either of these affidavits, Ms Maharaj?

MS MAHARAJ:   No, your Honour.

HIS HONOUR:   Very well.  Now, you have an affidavit as well?

MS MAHARAJ:   Yes, we do, your Honour, and that is the affidavit of Michael Outram dated and sworn 21 April 2006, and we seek to read that.

HIS HONOUR:   Yes.  Have you seen this, Mr Thomas?

MR THOMAS:   I have, your Honour.

HIS HONOUR:   Any objection?

MR THOMAS:   No, your Honour.

HIS HONOUR:   Well, Mr Thomas ‑ ‑ ‑

MR THOMAS:   Might I just ask your Honour in relation to the second affidavit of Mr Pathinather, the affidavit sworn on 20 April 2006, given that the affidavit has exhibited to it the summons which was issued to K, I would also ask your Honour for an order that the affidavit and exhibits not to be disclosed to any person other than the parties except upon an order ‑ ‑ ‑

HIS HONOUR:   Did the Chief Justice make an order to this effect in ‑ ‑ ‑

MR THOMAS:   The Chief Justice did make an order to the same effect.

HIS HONOUR:   Let me just have a look.  Yes.  Is there any opposition to that, Ms Maharaj?

MS MAHARAJ:   No, your Honour.

HIS HONOUR:   Very well.  So order 2 then will be the affidavit – this is the 20 April one, is it not?

MR THOMAS:   That is so, your Honour.

HIS HONOUR:   Order 2 will be the affidavit of Kevin Rohith Pathinather filed 20 April 2006 and exhibit KRP‑1 not be disclosed to any person other than the parties except upon an order of a Justice of this Court.  That follows the terms of order 1 of the orders of the Chief Justice in the other matters made by him on 10 March 2006.  Yes, Mr Thomas.

MR THOMAS:   Your Honour, by summons dated 29 March 2006 the plaintiff K was served with a summons requiring her to attend before an examiner of the ACC ‑ ‑ ‑

HIS HONOUR:   Yes, I have read those materials.

MR THOMAS:   Your Honour, in that case, perhaps I could ‑ ‑ ‑

HIS HONOUR:   I have read the Full Court decision and I am aware of the listing of the application for special leave in March.

MR THOMAS:   I skip to the material differences that are said to exist between today’s proceedings and the proceedings on 10 March.

HIS HONOUR:   Subject to anything else you want to say, what I would like you to address yourself to is paragraph 16 of the affidavit of Mr Outram.  Now, if an undertaking is given that the only offences that are being considered and pursued in this examination are federal offences, specifically – and it would have to be specific I think – those in paragraph 10 of Mr Outram’s affidavit, where is the constitutional point?

MR THOMAS:   I will deal with this in two parts.  The constitutional ‑ ‑ ‑

HIS HONOUR:   Where is the constitutional point for your client at this moment justifying this form of relief?

MR THOMAS: If I might take your Honour to section 28(3) of the ACC Act, please.

HIS HONOUR:   Yes.  Well, I have a compilation prepared on 27 May 2004.  Do you have that?

MR THOMAS:   I have a slightly different version.

HIS HONOUR:   Yes, that is what worries me.  Anyhow, it is 28(3), is it?

MR THOMAS:   The relevant part of 28(3), your Honour, is the last three lines.

HIS HONOUR:   Yes, just let me read it for myself.  Just sit down for a minute, Mr Thomas.  So you fix on the words “nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation”?

MR THOMAS:   I do, your Honour.  What the effect of that subsection is is to call up the ambit of the relevant special ACC investigation, which is of course set out in the determination of 16 May 2003.

HIS HONOUR:   Yes, let me just look at that.  Where do I find the text of the determination?

MS MAHARAJ:   It is KRP‑1, your Honour, in the affidavit ‑ ‑ ‑

MR THOMAS:   It is exhibit KRP‑1, approximately eight pages in.

HIS HONOUR:   It is the confidential exhibit?

MR THOMAS:   That is right, it is the confidential exhibit.

HIS HONOUR:   Eight pages in?

MR THOMAS:   Approximately eight pages in.  Your Honour will see the crest and then “Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003”.

HIS HONOUR:   Yes, I do, thank you.  Now, what do we get from that?

MR THOMAS:   May I walk your Honour through that determination?

HIS HONOUR:   Well, I am not going to walk but I will use my brain.  Now, what do you want to rely on?

MR THOMAS:   Your Honour, the starting point is clause 5, under the heading “Determination”, which, as your Honour can see, says:

Pursuant to paragraph 7C(1)(d) and subsection 7C(3) of the Act, the Board:

. . . 

(b)determines that the investigation mentioned in Schedule 1 is a special investigation.

HIS HONOUR:   I am not sure we have the right document.

MR THOMAS:   It is the version dated 15 May 2003.

HIS HONOUR:   2003?

MR THOMAS:   2003.

HIS HONOUR:   How many pages?  When you are preparing these documents you put numbers on the pages you see.  It helps things.

MR THOMAS:   I apologise for that, your Honour.

HIS HONOUR:   Now, starting with annexure A, how many pages in?  Annexure A is written at the top of the document, the bottom of which says “Issued 27 May 2005”.

MR THOMAS:   The first page is the letter to K signed by Chris Bonnici.

HIS HONOUR:   Yes.

MR THOMAS:   The second page the summons, followed by the second page of the summons.  We then have annexure A, the first page.  We then turn over the page to the Amendment No 1 of 2004.  We turn over the page to the Participants Determination 2003, schedule 1.  We then have the Australian Crime Commission (Money Laundering and Tax Fraud) Determination 2003, which was made on 15 May 2003.

HIS HONOUR:   Yes, thank you.  Where do we go from there?

MR THOMAS:   We go from there to clause 5, which is over the page.

HIS HONOUR:   It is not over the page.  You had better show me your document.  Just hand it up and mark the particular bit you want to rely on.  Yes, I have it, thank you.  Yes, clause 5?

MR THOMAS:   Clause 5, “Determination”, which provides, as your Honour can see, that pursuant to the relevant provisions of the ACC Act, being section 7C, the Board:

(b)determines that the investigation mentioned in Schedule 1 is a special investigation.

Of course “special investigation”, as your Honour is aware, is defined in the Act.  For the present purposes we now turn to schedule 1 over the page, “Authorised Investigation”:

1.        Investigation

An investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, federally relevant criminal activity:

(a)     was . . . 

(b)     was . . . 

(c)     may in future be committed.

HIS HONOUR:   Yes.  Now, the statutory definition of “federally relevant”?

MR THOMAS:   The statutory definition of “federally relevant criminal activity” is found in section 4 of the Act:

federally relevant criminal activity means:

(a)a relevant criminal activity, where the serious and organised crime is an offence against a law of the Commonwealth or of a Territory; or

(b)a relevant criminal activity, where the serious and organised crime:

(i)is an offence against a law of a State; and

(ii)has a federal aspect.

Of course “federal aspect” is defined and it then cross‑refers to section 4A(2).

HIS HONOUR:   Yes, but the nub of Ms Maharaj’s proffered undertaking, I think, is to, as it were, limit that definition to paragraph (a).

MR THOMAS:   That is entirely so.  We say that the undertaking is ineffective.  If I take your Honour to ‑ ‑ ‑

HIS HONOUR:   What do you mean “ineffective”?

MR THOMAS: Given the effect of section 28(3), which provides that nothing limits the examiner from questioning a witness about a matter in connection with a special investigation, step two is to look at what the special investigation’s ambit is. We are currently in schedule 1 of the determination setting up that special investigation. If very briefly your Honour could turn to clause 3 of schedule 1 under the heading of “Allegations”, which talks about what the allegations of federally relevant criminal activity are. If your Honour will permit me to read ‑ ‑ ‑

HIS HONOUR:   Now, (a), (b), (c), (d), (e), (f), (g), (h), (i) ‑ ‑ ‑

MR THOMAS:   If we stop at (i) firstly ‑ ‑ ‑

HIS HONOUR:   They are all federal, are they not?  They are federal laws.

MR THOMAS:   We certainly concede that (a) to (h) are entirely federal.  We concede that.  In (i), (i)(vii), “perverting the course of justice”, is open to be either federal or State.

HIS HONOUR:   Yes.

MR THOMAS:   Now, (i)(xiii), incidental offences, is open to be either federal or State.

HIS HONOUR:   Is there any definition of “incidental”?

MR THOMAS:   I do not believe so, your Honour.

HIS HONOUR:   No, all right.

MR THOMAS:   It certainly is not in the definition section of the ‑ ‑ ‑

HIS HONOUR:   Yes.  Anyhow, you say at best it is at least ambiguous.

MR THOMAS:   It is at least ambiguous.  Then over the page:

(j)other unlawful activities that are related to or connected with these activities and that involve relevant offences against a law of a State that have a federal aspect.

HIS HONOUR:   Yes.  Is your point that on the face of the statute an undertaking cannot properly be given that would fetter the power in 28(3)?

MR THOMAS:   That is exactly so, your Honour.

HIS HONOUR:   Or at least there is a question about it.

MR THOMAS:   Can I ask your Honour to turn to the affidavit filed by the ACC this morning, and turn to the exhibit to that affidavit, the exhibit marked MO1 ‑ ‑ ‑

HIS HONOUR:   Yes, I have that.

MR THOMAS:   ‑ ‑ ‑ which is a letter from the examiner, Tim Sage, who is – the ACC comprises, among other things, the examiners, so he is the ACC for relevant purposes.

HIS HONOUR:   Where do we see that?  Can you just take me to the section that ‑ ‑ ‑

MR THOMAS:   Certainly.  If your Honour would turn to section 7 of the Act, please:

(2)      The ACC consists of:

(a)     the CEO; and

(b)     the examiners; and

(c)     the members of the staff of the ACC.

HIS HONOUR:   Yes, okay.  Now back to this letter.

MR THOMAS:   We have this letter.  The key to this letter is obviously paragraph 3 which seeks to shall we say run the plaintiff’s argument off at the pass by saying:

Notwithstanding sub‑section 28(3) of the Australian Crime Commission Act 2002, and for the purpose of clarifying that your examination will be confined to questions that relate to Commonwealth offences, I hereby undertake to you that your examination will not include any questions which relate to State offences having a federal aspect.

It is an undertaking from the examiner to K herself.

HIS HONOUR:   Say that again.

MR THOMAS:   It was an undertaking from the examiner to K herself.  It is not an undertaking to the Court.

HIS HONOUR:   No, it would have to be an undertaking to the Court.

MR THOMAS:   It would have to be ‑ ‑ ‑

HIS HONOUR:   They have now proffered it as an undertaking to the Court.

MR THOMAS:   It is proffered to the Court by a member of staff of the ACC, not by an examiner of the ACC.  There is a real and significant difference there, particularly, your Honour, when you take into account section 36 of the ACC Act, which deals with the protection of examiners.  Now, your Honour, section 36(1) was not designed with this argument in mind, but it does provides that:

An examiner has, in the performance of his or her functions or the exercise of his or her powers as an examiner in relation to an examination before the examiner, the same protection and immunity as a Justice of the High Court.

HIS HONOUR:   Yes.

MR THOMAS:   If the undertaking was to be given, it ought to have been given to the Court by the examiner himself.  The examiner falls under section 7 of the Act into a different category to the member of staff who is providing this undertaking.  The member of staff is covered in section 7(3).

HIS HONOUR:   But the letter of 21 April is signed by the examiner, is it not?

MR THOMAS:   The letter of 21 April 2006 is signed by the examiner, who has given his undertaking to K.

HIS HONOUR:   Anyhow, the undertaking is about to be given on behalf of the Commission, if it is going to be accepted, it would be given by the Commission who is Ms Maharaj’s client.

MR THOMAS:   The Commission is Ms Maharaj’s client ‑ ‑ ‑

HIS HONOUR:   And the defendant.

MR THOMAS:   ‑ ‑ ‑ and the defendant.

HIS HONOUR:   So what are we squabbling about these internal management operations?

MR THOMAS: We are squabbling about the internal management operations because the undertaking cannot be effective. Section 28(3) is what it is.

HIS HONOUR:   That is another point.  There are two points:  firstly, the competence of the individual or body giving the undertaking – and that is the internal management rule, if you like – and, secondly, whether in any

event, if competently given by the defendant through its counsel to the Court, the undertaking can be effective in the face of these statutory provisions you have been taking me to and, in particular, whether there can be some qualification or waiver inter partes of the operation of 28(3) of the Act.

MR THOMAS:   Yes.

HIS HONOUR:   All right.

MR THOMAS:   Your Honour, if we might go to section 6…..clause 16 of the affidavit of Michael Outram itself, the undertaking is such as it is:

On behalf of the ACC, I am authorised to confirm that the examination that the ACC wishes to undertake in relation to the Plaintiff relates solely to the Investigation –

Now, I think there is perhaps a third argument and that is whether this affidavit here constitutes a formal undertaking in the usual sense or a confirmation contained in an affidavit.  I would argue they are not the same thing.

HIS HONOUR:   Do not get enmeshed in the world of undertaking inter partes.  In the High Court a substantial Commonwealth statutory body, the Commission, represented by counsel is proffering an undertaking to the Court.  Now, the question is:  what is the impact on the utility of that undertaking of the section.  Right?

MR THOMAS:   The argument again then rests on the very simple proposition that the undertaking is ineffective when read with 28(3).

HIS HONOUR:   Yes, all right.  I will ask Ms Maharaj what she says about these matters.  Yes, Ms Maharaj, am I right in thinking that an undertaking would be proffered by you as counsel for your client, which is the Australian Crime Commission?

MS MAHARAJ:   Yes, your Honour.

HIS HONOUR: Yes. What do you say is in this point about the paramount effect, if you like, of section 28(3)?

MS MAHARAJ:   In short, your Honour, I would just take you to the precise terms of the section and the terms of the section is permissive in the sense that it empowers or enables the examiner to ask questions in relation to other matters.  It is not a mandatory obligation on the examiner to do so.  In other words, in short, your Honour, there is nothing in the terms of the section that prohibits the giving of the sort of the undertaking that is proffered by the Commission or the examiner in this matter.

The other point, your Honour, is that your Honour may be familiar with the line of authorities which indicate that, for example, estoppel cannot operate against the Commonwealth in the face of certain types of express statutory provisions.

HIS HONOUR:   Yes, that is what is worrying me basically, I suppose.

MS MAHARAJ:   Yes, your Honour, and there is an authority – one of the leading cases by yourself when you were on the Federal Court, Kurtovic’s Case, but those cases operate, your Honour, in the context where the express terms of the section impose a mandatory obligation which cannot be administratively compromised. Quite simply, section 28(3) is not such a provision. Therefore, there is no good reason or no serious question to be tried in relation to that issue.

HIS HONOUR:   Yes, let me tell you what is on my mind, Ms Maharaj.  It cuts both ways really.  Experience teaches that one of the objects to try and be avoided in the Court receiving undertakings is to receive an undertaking which itself is then productive of further disputation at a later stage.  Now, I can see, given the stance of these parties, such disputation arising as to whether the examiner was strained beyond the terms of the undertaking in the course of particular examination which would be invidiously resolved on a contempt application here from the point of view of your client. 

On the other side of the balance, if I did grant any interlocutory relief, it would have to be on the basis on which I do not necessarily express my views, but it would have to be on the basis that commended itself to the Chief Justice in formulating the orders in the matter of C and Others of 10 March.  Now, that relief extends only until 4.30 pm on 19 May which is the hearing date for the special leave application in respect of the Full Federal Court decision in the matter of S. 

So on the other side of the equation is the duration of any interlocutory relief would not be all that long.  Now, I am very well aware that what Sir Anthony Mason said in Castlemaine Tooheys 161 CLR 148 that:

In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.

Nevertheless, there is this injunctive relief on foot for a short period in the other matters and I have to, I think, act on that basis.  Is there anything you want to say about that?

MS MAHARAJ:   Your Honour, there is ‑ ‑ ‑

HIS HONOUR:   I am sorry, the net effect would be I would have to grant that interlocutory relief until that time and then it would have to be looked at again after the outcome of the special leave application.

MS MAHARAJ:   With respect, your Honour, there is a great deal of force in what has fallen from your Honour, but what we invite your Honour to do is to simply take a principled approach to this particular case and other cases which ought to be determined on the precise facts which are before the Court.  In this case your Honour would have to be satisfied that there is a serious question to be tried.

Now, the undertaking answers the issue that is raised about the federal aspect in State offences. A second issue that appears to be flagged by the plaintiff is the construction point in relation to section 28(3). Again, your Honour, we would say that a principled approach would dictate that there be a serious question to be tried in relation to that issue and it is rather difficult to see how, in the face of the clear terms of section 28(3) which appears to be simply permissive, one could say that there is a serious question to be tried in the terms ruled upon by Chief Justice Mason in Castlemaine Tooheys Case that there would be a probability of substantive relief being granted in the end.

Whilst, your Honour, on the face of it it is an attractive proposition that similar cases ought to follow suit, which is interlocutory relief granted and matter stood over till 19 May, all the Commission is respectfully asking the Court to do is to look at each of the matters on a case to case basis because the ramifications of such injunctions are understandably quite massive in the sense that they could amount to a stultifying of several investigations by the Commission in various types of matters.

We would say, your Honour, that faced with the clear undertaking that is given by the Commission and the examiner in this particular case, with no serious question to be tried, the injunctive relief ought not to be granted.  Your Honour may accept the undertaking that is given but the matter could be revisited on 19 May but in the time being the Commission would be able to proceed with the examination that is listed for 24 April.

Just to answer one question that your Honour had posed, this is the definition of “incidental” in the Act, your Honour may derive some assistance, though not complete assistance, from section 4(2).  Your Honour

will see under the expression “the Commonwealth Minister or the Minister” – that is a phrase that sits just above subsection (3) – subsection (2), the concept of “incidental offence” is touched upon.

HIS HONOUR:   Yes, thank you.

MS MAHARAJ:   How helpful that is is another matter.  Those are our submissions.

HIS HONOUR:   Yes, thank you, Ms Maharaj.  Yes, Mr Thomas.

MR THOMAS:   I have nothing further to add, your Honour.

HIS HONOUR:   What do you say in response to Ms Maharaj’s submission that this undertaking can produce a workable examination system without the risk of contempt proceedings for straying outside the bounds of the undertaking?

MR THOMAS:   Your Honour, the examiner has given an undertaking to the plaintiff that notwithstanding 28(3) he will only examine her about Commonwealth offences.  If, during the course of the examination ‑ ‑ ‑

HIS HONOUR:   The examination presumably will be in a detailed, factual level.  It will not always be immediately pegged to some particular statutory offence.

MR THOMAS:   That is exactly right, your Honour, and given the ambiguity in several sections of the determination and, in particular, in clause (i) of schedule 3 from memory – schedule 1 clause 3(i), in particular perverting the course of justice springs obviously to mind.

HIS HONOUR:   Yes.

MR THOMAS:   It would be altogether risky for – the examination may be conducted in unsatisfactory circumstances which again may lead to further problems down the track for the Commission.  We have 20 working days or so between now and the hearing of the special leave application.  Your Honour will note the acknowledgments that are contained in the submissions about the effect of the special leave application.  In the circumstances the appropriate course is to grant the injunctions in the same form as were granted by the Chief Justice.

HIS HONOUR:   Thank you.

Any undertaking accepted by the Court should be clear in its terms and also in its operation. The reason for this is the avoidance of what I might call construction issues later arising on a contempt application or upon a further application to modify the terms of the injunction. The form of the undertaking proffered this morning to the Court by counsel for the defendant necessarily, or at least as a very substantial prospect, has the potential for such disputation. There is also a real question as to the utility and effectiveness of the undertaking in the face of the concluding words of section 29(3) of the Australian Crime Commission Act 2002 (Cth).

I bear in mind the comparatively short period of the restraint as sought by the plaintiff and the form of the relief given in somewhat similar circumstances by the Chief Justice on 10 March 2006 in matter No S65 of 2006.  I also bear in mind the proposition for which Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 is authority. This is that subject to the qualifications referred to by Sir Anthony Mason and in the absence of compelling grounds, the Court must defer to the enactment of the legislature until it is adjudged ultra vires. Nevertheless, in all the circumstances, on the summons filed 19 April 2006 and upon the receipt, which I will now seek, of the usual undertaking as to damages by the plaintiff I would grant relief to similar effect of that of the order of 10 March 2006.

Now, are you instructed to give the usual undertaking as to damages, Mr Thomas?

MR THOMAS:   I am, your Honour.

HIS HONOUR:   Well, upon the giving by counsel for the plaintiff to the Court of the usual undertaking as to damages, I order in addition to orders 1 and 2 made earlier this morning that the defendant be restrained, whether by itself, its employees, agents or otherwise, howsoever until 4.30 pm on 19 May 2006 or earlier further order from requiring the plaintiff to appear before an examiner of the defendant to give evidence or produce documents or other things in accordance with the summons referred to in paragraph 32 of the statement of claim in this action. 

Costs of the summons will be disposed of how, Mr Thomas?  Costs in the cause I would have thought.

MR THOMAS:   If your Honour will permit me to take you to paragraph 11 of the first affidavit of Kevin Pathinather dated 18 April 2006.

HIS HONOUR:   Yes.

MR THOMAS:   Paragraphs 10 and 11 speak of correspondence between the plaintiff and the Crime Commission seeking the adjournment of the summons until the special leave application.  The plaintiff sought the adjournment on several occasions.  It was not given.  The Crime Commission was put on notice that we would have to issue these proceedings if it did not give us an answer.  It did not give us a satisfactory answer.  We are here today.  We say that given the result we are here today unnecessarily.  Your Honour, on that basis we would be asking for our costs.

HIS HONOUR:   I think there was an entirely proper approach taken by the Commission in proffering the undertaking.  It is just that that way of getting at the matter has the difficulties to which I have referred.  What do you say on this question of costs, Ms Maharaj?

MS MAHARAJ:   In short, your Honour, we respectfully submit that the Commission’s approach was proper and traditionally undertakings like these are offered and we would say that there is no good reason as to why your Honour ought not to follow the course followed by the Chief Justice, which is that costs be costs in the cause.

HIS HONOUR:   Yes.  Costs of the summons filed 19 April 2006 will be costs in the cause.  Is there anything else?

MS MAHARAJ:   May I tax your Honour for another short order?

HIS HONOUR:   Yes.

MS MAHARAJ:   Your Honour, this is in relation to paragraph 20 of the affidavit of Mr Outram.  Because of the speed with which the matter has travelled, I have not had the opportunity to take this matter up with my learned friend.  We would ask for a similar indulgence, your Honour, that is a confidentiality order simply in respect of paragraph 20 of that affidavit.

HIS HONOUR:   Yes, just a minute.  Order 2 was that the affidavit filed on 20 April 2006 and the exhibit, and I should just add to that, subject to what Mr Thomas says, and paragraph 20 of the ‑ ‑ ‑

MS MAHARAJ:   Affidavit of Michael Outram sworn on 21 April 2006.

MR THOMAS:   Your Honour, I am having trouble seeing how paragraph 20 is relevant.  I think my friend might mean paragraph 17 in the exhibit thereto.

MS MAHARAJ:   No, it is paragraph 20, particularly the last sentence, your Honour, starting “This has”.

HIS HONOUR:   Yes, all right.

MR THOMAS:   Might I then also ask your Honour for an order suppressing the exhibit which refers to ‑ ‑ ‑

HIS HONOUR:   You do not make suppression orders.  This is newspaper talk.

MR THOMAS:   I apologise, your Honour.

HIS HONOUR:   You are in a court now.  You want another order about what paragraph?

MR THOMAS:   A similar order in respect of the exhibit which refers to the plaintiff by name.

HIS HONOUR:   Yes, just a minute.  Should I add paragraph 17, Ms Maharaj?

MS MAHARAJ:   Yes, your Honour, that would be prudent.

HIS HONOUR:   Yes, paragraphs 17 and 20 of the affidavit of Michael Outram sworn 21 April 2006.  So order 2 will now read:  the affidavit as indicated filed 20 April 2006 and exhibit KRP‑1 and paragraphs 17 and 20 of the affidavit Michael Outram sworn 21 April 2006 not be disclosed, et cetera.  Now, do you need an order to file this affidavit in Court?

MS MAHARAJ:   I may, your Honour, yes.

HIS HONOUR:   Yes, all right.  I grant leave to file that affidavit in Court.

MS MAHARAJ:   If it please your Honour.

HIS HONOUR:   All right.  Yes, Mr Thomas.

MR THOMAS:   Your Honour, taking my life into my own hands, the order in respect of the affidavit of Mr Pathinather also refers specifically to the exhibit.  I might ask for the same in respect of exhibit MO1.

HIS HONOUR:   Sorry, which affidavit?

MR THOMAS:   The exhibit of Michael Outram.

HIS HONOUR:   Yes.  We will say:  and paragraphs 17 and 20 and exhibit MO 001 to the affidavit of Michael Outram.  Does that meet that case?

MR THOMAS:   Thank you, your Honour.

HIS HONOUR:   I will read that second order again.  The affidavit of Kevin Rohith Pathinather filed 20 April 2006 and exhibit KRP‑1 thereto and paragraphs 17, 20 and exhibit MO 001 to the affidavit of Michael Outram sworn 21 April 2006 not be disclosed to any person other than the parties except upon an order of a Justice of this Court.  Is there anything else?

MR THOMAS:   Thank you, your Honour.

HIS HONOUR:   I will now adjourn.

AT 10.28 AM THE MATTER WAS CONCLUDED