Marsden v Amalgamated Television Services

[1999] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S135 of 1999

B e t w e e n -

JOHN MARSDEN

Applicant

and

AMALGAMATED TELEVISION SERVICES PTY LIMITED

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 9.00 AM

Copyright in the High Court of Australia

MR G. O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicant, with my learned friend, MR R.G. McHUGH.   (instructed by Phillips Fox)

MR J.R. SACKAR, QC:   I appear for the respondent, with MR J.S. WHEELHOUSE, for the respondent.  (instructed by Mallesons Stephen Jaques)

HAYNE J:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, the issue raised in this case is the applicability of principles in Anshun to interlocutory procedural orders.  That was an issue which was adverted to by your Honour - - -

HAYNE J:   Well, is that the question, or is the question, in the circumstances, was it open to the trial judge to order differently from the order that the Court of Appeal had made?

MR REYNOLDS:   The latter, your Honour, but that involves a consideration of the Anshun principles of whether it was open will depend upon the principles to be applied by a judge in that situation.  That was a question which your Honour the presiding judge adverted to in a decision to which we have referred in our outline of argument contained at page 451 of the application book.  If I can take your Honours briefly to that, that is to page 451.  Justice Brooking, in that decision of Christie v Baker, said that:

The present case does not require us to decide whether the determination on the merits of an interlocutory application in a pending action as a matter of practice or procedure will or may give rise to an issue estoppel.  It is arguable –

referring to what Chief Justice Barwick said in a case –

that, questions of practice and procedure being under the control and generally within the discretion of the court in which the action is brought, it is, generally speaking at all events, open to the court to exercise wide discretion in the interests of justice in considering whether an applicant who has failed on the merits may nonetheless succeed on a second application.

That was an issue which the court left open in that case and your Honour, at the bottom of the page, adverted to this particular issue which arises in this case.

Now, if the Court were to apply the test adverted to by Justice Brooking, picking up High Court authority that the only question is whether, in the interests of justice, there ought to be re-agitation of the issue, then we say that, applying that test, my client would be able to re‑agitate this issue before the trial judge.

HAYNE J:   That is to analyse it as a question of preclusion.  What does the trial judge here do?  The Court of Appeal has ordered X may have leave to inspect.  What, in truth, is the trial judge doing at the stage of the second order?  What is he or she then directing?

MR REYNOLDS:   He is the trial judge.  He has the documents, the subject of the subpoenas, before him.  As the trial judge, he has a discretion of the most adjectival kind about how those documents are to be deployed in the proceedings before him.  He must consider various matters.  He must look at possible conditions; possible deferral of a grant of access; who gets access and when, and at what times; whether it goes to an expert; whether there are undertakings to be given and the like.

HAYNE J:   All of that may be well accepted but the Court of Appeal said, “These people may have leave to inspect.”  The matters you urge might perhaps be said to suggest that the first order of the Court of Appeal may have been improvidently wide.  That is a separate question.

MR REYNOLDS:   Your Honour, I submit not.  There is no issue, we say, of power in the trial judge to vary any interlocutory order.  That is well established and we have dealt with that in our submissions.  Indeed, the Court of Appeal do not, for reasons we have tried to explain in our submissions, take that as a point of issue.  Your Honour Justice Callinan, I see is perhaps getting ready to ask me a question because your Honour asked me about this on the stay application, and your Honour asked me whether there was any decision which dealt directly with the question of a trial judge varying an interlocutory order on a matter of procedure made by the Court of Appeal.  Your Honour, there are decisions on that issue.  Two that we have found; one that we have referred to in our outline which is Raybos v Tectran which deals with this precise issue in terms.

CALLINAN J:   Before you come to that, is not the trial judge disobeying the order of the Court of Appeal?  Is it not as stark as that?

MR REYNOLDS:   I submit not, your Honour.  If one assumes power in my favour - - -

CALLINAN J:   What is the point of going to the Court of Appeal?  It is just a futility; just ignore it.

MR REYNOLDS:   Except this, your Honour:  if the Court of Appeal assume original jurisdiction as they said they did, they have to look at this question of the exercise of what we will call the Waind v Hill discretion.  Now, they did not even deal with that issue.

HAYNE J:   But that may suggest that the first order was improvidently wide.  But you are not here to challenge that first order.

MR REYNOLDS:   No, I am not because, I submit, I do not need to challenge that order, your Honour.  If one assumes jurisdiction in the court at first instance to vary, I do not need to worry about whether it was improvidently wide.  It may have been; it may not have been.  I do not need to concern myself with that.  What I do need to concern myself with is two things:  first of all, whether the trial judge had power, and indubitably he did, to vary the order of the Court of Appeal.  Secondly, and this is the special leave point we suggest, what are the principles to be applied by him. 

Going back to this statement by Justice Brooking, if those principles are applied there in this case, my client must succeed because there has never been any determination of this issue of the exercise of the discretion except by the trial judge.  He held, and the Court of Appeal did not disagree with him, that it was vital to the elucidation of the truth in this case that certain of the defendant’s witnesses not see these documents before they were cross‑examined.

CALLINAN J:   Now, that is an order – I have a lot of trouble with that.  I am not too sure whether a trial judge can make a direction of that kind.  It might very well affect, if the documents are seen, views on credibility and ultimate conclusions, but I do not know whether such an intrusion into the trial process is even proper.  I would need a lot of persuasion about that.

MR REYNOLDS:   Your Honour raised this with me on the stay application.  What we are dealing with here is the application, I submit, of a well-established discretion in the trial judge - - -

CALLINAN J:   No, the parties present the case.  The parties present their evidence.  If a person is entitled to look at a document or if, perhaps, counsel is imprudent enough or solicitors are imprudent enough to give a witness a sight of a document that might give rise to comment in circumstances which might give rise to comment, then that may be a consequence that that party has to suffer but I really do not understand the role of the trial judge in doing this.  It is very unique.  I have never struck it in other jurisdictions, I must say.

MR REYNOLDS:   Your Honour, it may well be that that is because we are dealing here with a decision of the New South Wales Court of Appeal in Waind v Hill which is applied in this State, effectively, as the locus classicus on the issue, and - - -

HAYNE J:   It is not confined to this State, Mr Reynolds.

MR REYNOLDS:   Of course not, your Honour, and I rely upon that in answer to your Honour Justice Callinan’s question.  But in direct answer to what your Honour is putting to me, this is dealt with in terms in Waind v Hill, the question of deferral of inspection of documents produced on subpoena for the looking at the elucidation of the truth and, in particular, where the witnesses are tipped off and, your Honour, it is dealt with in two unreported decisions which are referred to at pages 317 and 318 of the appeal books where Justice Clarke and Justice Santow - - -

CALLINAN J:   Yes, but has it been dealt with in the High Court?

MR REYNOLDS:   No, your Honour, but, with respect, that is a matter which one would consider would be most unlikely to reach the echelons of the High Court given that it is purely procedural and how - - -

HAYNE J:   And am I right in thinking that the issue in this case, as it now stands, is not whether access should occur but when it should occur?

MR REYNOLDS:   Your Honour, the order his Honour has granted is that the defendant not be permitted access.  That was not, in terms, stated to be for the time being but we would concede that because it is interlocutory, inevitably it is for the time being.  So, the short answer to your Honour’s question - - -

HAYNE J:   Is it not inevitable that at some point in this set of proceedings the opposite party will have access to these documents, given the rulings that now have been made as to privilege and the like?

MR REYNOLDS:   I would not like to make that concession.  It is absolutely inevitable that the defendant will seek access.  It may very well be that after these witnesses are, in fact, cross‑examined that we are talking about, that the trial judge would say to Mr Marsden’s counsel, “Well, what reason is there for not handing them over now?”

HAYNE J:   This leads to the fundamental difficulty that on its face at least either this or earlier proceedings in this matter seem to be questions of practice and procedure involving the exercise of discretion which seem somehow to become translated from the trial judge to the Court of Appeal.  Do I mischaracterise the course of events in this trial?

MR REYNOLDS:   Well, your Honour, can I say this:  the question I am raising, and it is an issue your Honour adverted to in Christie v Baker, is on that question, what are the principles to be applied when there is an Anshun argument in relation to a matter of practice and procedure.  Now, it is not just a question of practice and procedure, it is question of the applicability of the Anshun principles.  If, as I say, this principle adverted to by Justice Brooking in the High Court is correct, my client must succeed.  If the principle is - just going over the page to page 452 - the principle referred to in Pocklington – that is page 452 at the bottom and over to 453 – it is said there that if the ruling on the first application was not based on the merits but on a technical objection - your Honours, here, there was never any decision on the merits at all by the Court of Appeal.  Only one judge has looked at it and his decision was our way.  In fact, he held it was vital for the elucidation of justice that the decision go our way.

The Court of Appeal say they can see no error in his approach.  Further than that, down the page at about halfway down 453, his Honour suggests that, “The way to achieve justice” in cases like this may very well be to make an order for costs simply when the question is re-agitated.

Now, these statements and the statements made by Justice Hunt in Haines all assume two things:  first of all, that there has to be a hearing on the merits and, second of all, that the overall requirement is the interest of justice.  Now, here, in my respectful submission, they are all one way.  This is not a situation even where my client ran the argument and lost it and the issue is whether or not the issue should be re-agitated.  Here, there are not two decisions on this issue by the court.

HAYNE J:   Why is that not a complaint about the first order rather than the second?

MR REYNOLDS:   Your Honour, it does not need to be because given the first order is interlocutory, given the trial judge has the power to vary it, the question then becomes, “What principles does he apply?”  Your Honour realised, I submit, in Christie v Baker, that there was going to be a problem with Anshun.  When we come to orders of practice and procedure, your Honour - - -

HAYNE J:   You attribute to me great prescience, Mr Reynolds, and flattery will get you anywhere.

MR REYNOLDS:   Well, your Honour, one always tries to flatter if one can but it is an issue which your Honour will recall took up a lot of time in the Court of Appeal in Victoria in Christie v Baker.  No doubt there was argument by counsel, referring your Honours to these High Court cases, in saying, “But this is interlocutory” - - -

HAYNE J:   But Christie v Baker was a repeated application to a trial judge, not application to a trial judge after an unsuccessful appeal.

MR REYNOLDS:   But, more importantly, to extend the limitation period.  We are not talking about an issue like that here.  The statement, for example, from Justice McLelland which is quoted in the application book at page 405 needs to be looked at in context.  Your Honours have been given a copy by my learned junior of the full context of the statement of principle there by his Honour and it is interesting to see what the Court of Appeal have left out of this quotation.  Do your Honours have that unreported decision out of Ritchie’s Supreme Court Procedure?  If your Honours go to the second page, at page 8594, about halfway down the page there is a paragraph beginning, “The overriding principle”:

The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require n the particular circumstances of the case.  In giving effect to that general principle –

and there is reference to the discretionary power.  But then there is this statement which their Honours in the Court of Appeal left out:

Not all kinds of interlocutory orders attract the same considerations.  For present purposes one may put to one side orders of a merely procedural nature –

That is the type of order that we are dealing with here and that is the submission I put to the Court of Appeal relying on what your Honour said in Christie v Baker.  I said, “This is the issue you have to determine.”  What did the Court of Appeal do?  They cited against me the next paragraph which talks about “an interlocutory application of a substantive nature” - that is not here – “after a contested hearing”.  That is not here.  There was no determination by the Court of Appeal of the issue.  They then refer to “an ordinary rule of practice” which, of course, would be subject to qualifications.

HAYNE J:   You have omitted reference to “in contemplation that it would operate until the final disposition”.  Is that not the affect of the Court of Appeal’s order, that leave was granted once for all?

MR REYNOLDS:   Your Honour, one cannot have an interlocutory order which is final.  As your Honour accepted, when we started discussing this about deployment of documents, inevitably once the matter is before a trial judge he has to consider from time to time the deployment of documents before him.  One cannot avoid that, whether the Court of Appeal have even given a decision on the merits or not, and here they have not even adverted to it.  What Waind v Hill says – and I will not take your Honours to the judgment – is that even if a party does not take the point, the court, in exercising original jurisdiction, must consider how the documents are to be deployed in the interests of justice. 

So, it is not to the point to talk about whether or not my client raised the issue in the Court of Appeal.  The issue is whether or not the Court of Appeal has exercised the discretion, and they have not.  They just have not adverted to the issue at all. 

HAYNE J:   In their first order.

MR REYNOLDS:   Indeed.

HAYNE J:   And that is a complaint about that order.

MR REYNOLDS:   No, your Honour, it is not.  I submit it may have been possible to have appealed that order to this Court but one can well imagine why your Honours would be extremely disinterested, with respect, in that question about that question of power, particularly, as your Honours would have said to me - - -

HAYNE J:   But the wider question of the intervention of an intermediate appellate court in trial proceedings may, perhaps – I do not say would – have attracted different considerations.

MR REYNOLDS:   But your Honour would have said to me, if I had come up on that occasion, “But, Mr Reynolds, you can go back down to the trial judge.  This is only interlocutory.  You are not Anshun.  It is only an interlocutory question of practice and procedure.  Why should we grant special leave in a situation like that?”  But that is the very question which is raised by this case, is, what are those principles that are to be applied in this situation?

CALLINAN J:   But, Mr Reynolds, why did you not agitate this matter when you were given an opportunity to put on a notice of contention?  Why did you not agitate, in specific terms, because I thought you were given an opportunity to raise anything you wanted to raise?

MR REYNOLDS:   Can I say two things about that?  The first is the invitation that was given to us was, in terms, only in relation to the argument about public interest immunity.

CALLINAN J:   Well, I was looking at page 391:

It was made crystal clear during the leave argument and in the reasons delivered at the end of that day that it was up to the respondent to file a notice of contention if he wished to argue that Levine J’s orders withholding inspection from the appellant should stand –

That seems to be put very broadly.

MR REYNOLDS:   Your Honour, that is the way his Honour has put it but for reasons we have set out in our submissions, and it is not taken up in response by the respondent in their written argument, the invitation that was issued to us was in these terms, “Well, if you want to raise public interest immunity, we want you to argue that on a notice of contention.”  I concede that.  But Waind v Hill, there was no such invitation.  The second response to your Honour’s question is this:  that what your Honour puts to me, even assuming it against me, is a matter which a trial judge could take into account in the formulation of the factors to be applied in determining an Anshun argument in this context but even then it would not be determinative.  He would say to the defendant, “It may very well be that the plaintiff could have raised that argument but I’ve got a trial to run here and I have to look at the elucidation of truth in the interests of justice here.”; and, addressing counsel for the defendant, “That means I’ve got to look at the running of this trial and what’s the best thing for it.  And the fact that an argument, perhaps, could have been put upstairs is no reason – is a matter that I take into account.  But it cannot be decisive of what is in the interests of justice in this case.” 

So, in short, your Honours – I know my time is about to expire – we say there are two issues: first of all, the applicability of Anshun but, secondly, the injustice of the result in this case.  Any lay person standing in this Court and hearing this argument would say, I respectfully submit, “What in heaven’s name is going on here?”  One judge has made a decision in the interest of justice.  Three judges in the Court of Appeal say he made the right decision.  They never looked at the issue previously.  Then, for some technical reason, which I submit is fallacious, they say that notwithstanding the merits of the argument, notwithstanding the interests of justice, that this point is never to be agitated.  And, your Honours, for those two reasons we say there should be a grant of special leave.

HAYNE J:   Thank you, Mr Reynolds.  Mr Sackar.

MR SACKAR:   If your Honour pleases.  There is an important question ‑ ‑ ‑

CALLINAN J:   Excuse me a moment.  Did you want to add something, Mr Reynolds?

MR REYNOLDS:   I am sorry, your Honour, I have just been informed for the first time that we were to be given an extra 15 minutes by my instructing solicitor beyond the normal time.

HAYNE J:   It comes to me as a great and interesting surprise, Mr Reynolds.

MR REYNOLDS:   Your Honour, I cannot say that I prepared my submissions assuming an extra 15 minutes.  I did not.  I have said what I need to say.

CALLINAN J:   There is nothing more you want to say?

MR REYNOLDS:   No, your Honour.

CALLINAN J:   Because if you do, for my part, I would give you some further time.

MR REYNOLDS:   I am grateful to your Honour for the invitation but I have put what I needed to put.

HAYNE J:   Yes.  Thank you, Mr Reynolds.  Yes, Mr Sackar.

MR SACKAR:   Your Honours, there is an important question that arises in this case.  It is not, however, the question that is posed by the applicant.  There is no complaint made nor was there leave sought from the initial order made by the Court of Appeal.  What was made abundantly clear in the proceedings by way of the leave application on 6 April and, subsequently, on 13 April is that by reason of the fact that several floors below in the building a trial was going on, in relation to which these documents bore some relevance, the Court of Appeal wanted to be seized of any argument which the applicant in this proceeding could put in order to oppose inspection.  That was made abundantly clear, even though our learned friends indicate that it was not, for some reason.

First of all, in the initial direction, at 185 – and I will not take your Honours to too much of the argument which preceded that, but it was made abundantly clear in the course of that argument, for example, at 168, first, where the President said:

For my part I would join what Handley JA’s put to you, I wouldn’t want to encourage you to assume that the public interest immunity point can be left for another day before Levine J.  If it’s a good point, you at the very least ought to raise –

et cetera.  The direction was then given at 185, in which the President indicated that there would:

be a grant of leave limited –

to certain documents, and that:

The appellant is to file its notice of appeal and any additional submissions…..The respondent is to file his notice of contention and any submissions –

Now, what was made abundantly clear then and it became even clearer a few days later was that the Court of Appeal was not interested in despatching one single issue because it had been told and was to be told again – and in a moment I will come to it – that multiple arguments had been put to the trial judge, only one of which he found need to make a decision about.

HAYNE J:   Thus, am I to understand you, Mr Sackar, the way it comes to the Court of Appeal is a wholesale transfer of the trial judge’s discretion from the trial judge to the Court of Appeal?

MR SACKAR:   We would say that it came to the Court of Appeal on the basis that the Court of Appeal would ultimately have to make a decision what part of the case remained with it and whether or not it was ever going to be in a position to exercise a discretion.  But it was in control of the proceedings and it had - - -

HAYNE J:   Oh?

MR SACKAR:   It had control of the application for leave and the issues which were likely to arise and consequently it - - -

HAYNE J:   No, its function was very limited.  Its function was to hear an application for leave to appeal.  If leave was granted, to dispose of that appeal, was it not?

MR SACKAR:   Yes, it was, but what it directed the parties to do for good reason, namely good case management reasons, given the fact that the trial was occurring downstairs, was to raise not just one point but any other point by way of notice of contention.  Now, we submit, with respect, it was seized of the matter.  It was able to give directions to the parties and the question remains who was in control of those proceedings, the Court of Appeal or the party before it? 

Now, my learned friends characterise the direction as a mere invitation.  Well, it was much more than that and it is obvious from the judgments of the Court of Appeal that they clearly intended to try to bring a speedy end to any dispute about inspection.

HAYNE J:   All this is directed, is it not, Mr Sackar, to supporting the validity of the order made on the first journey to the Court of Appeal, a validity which is not challenged?

MR SACKAR:   Quite so.

HAYNE J:   Speaking only for myself, I would not think it productive to spend time on that, though there may be much to be said about the way in which the matter was dealt with on that first time, but that is not before us.

MR SACKAR:   I accept that, but what is before your Honours is an attempt to agitate what we say is a principle which, in truth, does not arise because the principle that, in effect, arises is whether or not it was appropriate for my learned friends, in the face of what the Court of Appeal clearly intended to effect, was to go back to the trial judge and invite him to do what the Court of Appeal directed should be, as it were, put before them and for them to make a decision as to whether it should be remitted or not.  Now, the Court of Appeal was entitled, with respect, to direct the parties to raise all of the relevant issues before it, and on that basis - - -

HAYNE J:   Well, entitled or not, you say they did and that led to an order.  Why do we need to get to the question of entitlement?  As I say, I am not immediately struck by the strength of the case you would have to advance on that.

MR SACKAR:   For the reason, with respect, that the second application or the application to the trial judge, we say, was misconceived in the face of the order of the Court of Appeal.  Indeed, when my learned friend appeared before the Court of Appeal, at 228, he debated with them, first of all, we will see at line 35, he indicated that he had been told that the Waind point had been put to the trial judge.  That is the first point.  The second point is that there were multiple reasons advanced and his application was that it be remitted.  Now, that is when he turned up in the afternoon to address the question of whether the notice of appeal should – or leave should be granted to amend the notice of appeal.  What we say, with respect, is that the Court of Appeal having become seized of that matter, quite frankly, the trial judge should not have entertained an application to re-agitate a matter which was properly before the Court of Appeal in terms of whether or not it ever went back to the trial judge.

The trial judge says in his judgment that it was bound to be remitted to him.  It does not necessarily follow the reasons we say the Court of Appeal put in their judgment of 31 August.  So, with respect, your Honours, we, in our submission, have put forward what we say is the appropriate point here, namely, it cannot be open, in circumstances such as these, where the Court of Appeal expressly directed the parties to raise all issues, for a party to simply go to a judge lower in the hierarchy and raise before that judge, for whatever reason, forensically or otherwise, a matter which was before the Court of Appeal and was truly before that court, as to whether or not the trial judge ever exercised that discretion at that point.  It may well have been for the reasons the Court of Appeal says in their judgment of the 31st, that it may well be that they would have looked at the issue.  It may be that they would not.  But it is a question of presumption and we say it was entirely a matter for the Court of Appeal to dispatch its business including when and, if so, to what extent any issue was remitted to the trial judge.

This is not a case where my learned friends can find any comfort in authority because all of the authorities that we have been referred to and we have looked at involve inevitably a change of circumstances and one can understand that justice would naturally have to respond to changed circumstances.  There were no changed circumstances here at all.  Your Honours will see in the argument before the Court of Appeal ‑ ‑ ‑

HAYNE J:   Do I understand that submission to acknowledge a power in a trial judge on change of circumstance to make an order contrary to the order made by the Court of Appeal, an order of the kind now in question made by the Court of Appeal?

MR SACKAR:   It would depend very much on the order of the Court of Appeal and how widely it was drawn.

HAYNE J:   Do you say then that where the Court of Appeal, as here, has ordered leave to A, B and C to inspect, it would be open to the trial judge on a change of circumstance to direct otherwise?

MR SACKAR:   Your Honour, in principle, I would have to concede that that would be so on changed circumstances on the authorities, but the order here was such that once the Court of Appeal was seized with the matter, it would certainly be – there were certainly no changed circumstances suggested here, so the point is moot, we say, here.  What is said here is that the Waind v Hill argument simply was not put and no discretion was exercised.  That avoids the issue as - - -

HAYNE J:   No discretion exercised by whom?

MR SACKAR:   By the Court of Appeal.

HAYNE J:   And why was it for the Court of Appeal to exercise that discretion?

MR SACKAR:   It may not necessarily have been for them but the fact it ‑ ‑ ‑

HAYNE J:   If that is so, why does that not lead to the result for which the applicant contends?

MR SACKAR:   For this reason, your Honour:  the way the system, we suggest, works is that the Court of Appeal was in control of who and when that discretion would be exercised by and the President adverts to it in the judgment at pages 402 to 403 where he says, line 25:

The first is that the order made…..no doubt…..was denying the respondent the right to seek to undermine its order by ventilating elsewhere issues which should have been ventilated in the Court of Appeal.  I also reject the respondent’s submission that the Waind v Hill discretion is incapable of exercise by any person other than the trial judge.  There may be circumstances where it is appropriate for a judge other than the trial judge to look at sensitive documents.  And since the exercise of the discretion is itself amenable to appellate review, it must follow that the matter is not by its nature outside of the purview of the Court of Appeal.  This is not to say that the Court would not have been responsive to an application to remit –

Now, the point of it is that the Court of Appeal is simply saying, and we say with some justification, “We clearly directed you to raise the issues here so that we could make a decision as to what was in the best interests of the

trial, having come to the view the trial judge was in error in relation to the principal issue that he made the decision on, to stop the defendants from getting access to these documents.  Having come to the view that he was in error in that respect, we are seized of all matters; we want to be seized of all matters and we direct you to put all issues to us, so that by way of the review process, we can determine what we think is best on this issue, to try and bring it to finality as quickly as we possibly can and we are going to do just that.”, and that is what they said in clear and unequivocal terms.

Now, they surely were seized of the matter.  They are a court of competent jurisdiction.  They were perfectly entitled to do that, including the question of who should exercise the discretion and when.  It was not for the applicant to unilaterally decide, as it seems he did, to take that out of the hands of the Court of Appeal when they directed that they were going to do just that.  That is our point.

HAYNE J:   It seems, if I may say so, undesirably and unnecessarily to segment the issue in a way that may, perhaps, explain some of what has happened here.  The Court of Appeal made an order.  The order was for leave to inspect.  That order may have been rightly made or wrongly made but it was made.  That seems to me to be the focus for debate.

MR SACKAR:   I am trying to focus on that issue, your Honour, and what I am saying is that in the course of making - - -

HAYNE J:   But looking behind the order to what issues the court took to account in making of that order may be of great relevance in deciding whether that order was properly or improperly, rightly or wrongly made, but once made, it is made.

MR SACKAR:   That is our point and what we – well, your Honour, I will be repeating myself if I put anything further.

HAYNE J:   Yes.  Thank you, Mr Sackar.  Mr Reynolds.

CALLINAN J:   Could I just ask you a question, Mr Reynolds, before you start.  It seems to me, on the best view of the case, from your point of view, it should have been apparent, should it not, that your side would be taking an enormous risk in not responding to the notice of contention by at least flagging the possibility that you would seek to have the trial judge’s discretion, assuming full discretion in this matter, enlivened after the Court of Appeal dealt with the matter?

MR REYNOLDS:   Your Honour, the passage my learned friend read to your Honours from - - -

CALLINAN J:   No, but what I have asked you does not depend upon the passage.

MR REYNOLDS:   But it does, with respect, your Honour, because when their Honours talk about a notice of contention, they do not talk about Waind v Hill at all.  They only talk about public interest immunity.

CALLINAN J:   I understand that is your submission.  Accept that is so, to put it at its best, it is at least ambiguous and it seems to me that your side must have decided to have taken the risk.

MR REYNOLDS:   Your Honour puts, with respect, your Honour’s finger on it when your Honour says, “that, at best” from my learned friend’s point of view - - -

CALLINAN J:   I meant “at best” from your point of view, not from Mr Sackar’s point of view.  From your point of view.

MR REYNOLDS:   Your Honours, it is this difficulty:  if you want to cut a party out for all time during the running of a hearing on an interlocutory question from taking a point, a guillotine, so that you cannot later agitate the question, there must be, I respectfully submit, an unequivocal indication given to you that that will be the consequence of it.  Secondly, let - - -

HAYNE J:   That is a fairly bold submission, Mr Reynolds.  Parties are expected to bring forward their arguments in relation to issues. 

MR REYNOLDS:   They certainly are, your Honour.  They certainly are.

CALLINAN J:   You do not ration them to the Court, “Well, have a go at this here and a go at that at another court at another level.”

MR REYNOLDS:   No.  But, your Honour, when we are talking about an interlocutory question - - -

HAYNE J:   I know, interlocutory questions which may, on one view of things, be subject to review by a trial judge from time to time, but parties are expected to bring forward their cases once for all, not to dole them out in neat bite-sized pieces.

MR REYNOLDS:   But your Honour must recall that the only issues agitated before Justice Levine were legal professional privilege and public interest immunity.  The exercise of this discretion was not even agitated before Justice Levine.  It is a matter which was part of the exercise of his discretion as a trial judge and inevitably for him.

If the Court of Appeal – and this is part of the difficulty, we suggest, with interlocutory appeals – was going to cut my client out from an argument, it had to make it clear that that was an issue which had to be raised on a notice of contention.

CALLINAN J:   No.  The court does not have to make it clear.  The parties bring forward the issues.  There was an invitation to your side – and let us not argue about the extent of it – to bring forward an issue.  Let me accept what you say, and you say it was an invitation that was confined.  Nonetheless, you must have known, at the very least, that there was a risk that an order disposing of the matter might be made.

MR REYNOLDS:   Not at all, your Honour.

CALLINAN J:   But courts do not define the issues, Mr Reynolds.  That is part of the problem.  The parties define them.

MR REYNOLDS:   Your Honour, the difficulty is with an interlocutory appeal.  It is a question of how much of the case goes up and how much of it is determined.  Here, the only decision by Justice Levine was on legal professional privilege.  I concede, we were on notice about public interest immunity but there was no statement by the Court of Appeal that part of their function would be to deal with the trial judge’s exercise of discretion about the deployment of documents.

HAYNE J:   Were you not on notice that an order was sought that there be leave to inspect?

MR REYNOLDS:   No, and that is the key to it.  It was not until the appeal was over that we were apprised that that order was sought and it was sought on an amendment.

HAYNE J:   Exactly so.  You were apprised by the application for amendment that that was what would be sought.

MR REYNOLDS:   At that point, at the heel of the hunt, at 4.15 after the appeal had been heard when we were not there.  Now, looking at that issue, it is hardly fair, given that we said, “Well, these are issues we are going to raise with the trial judge, the trial judge has jurisdiction”, what is the trial judge to do?  If one imagines the debate before his Honour, he might well say to the defendant, “Well, this is all a bit uncertain, isn’t it, what the Court of Appeal dealt with but I  have to look at the interests of justice in the case

before me.  I have to make orders about the deployment of the use of the use of these documents from time to time in this trial.  I have to make that decision.  The Court of Appeal have never even looked at it.  Now, I take into account as one relevant factor that there might – it is not certain – have been an opportunity to have raised it in the Court of Appeal but that is only one factor to be taken into account.  The two primary things I need to take into account is, first, has there been any decision on the merits of this issue and, secondly, the requirements of the interest of justice in this case.  Now, what am I to do?  I have determined that it is absolutely vital in the interests of justice that an order be made restricting inspection at this stage.  Now, to me, speaking as the trial judge, that is the point which determines this case” and looking at the relevant factors to be applied by a trial judge on an Anshun issue, the question of whether there was any prior decision on the merits and the interests of justice are the two vital factors, and they have, with respect, been ignored in this case.

The question that is raised by this leave application is what are those tests.  The test that is applied by the Court of Appeal is absent changed circumstances and my friend concedes there would be jurisdiction in that event; absent changed circumstances, there could be no variation.  The trial judge says, no, the two key factors are whether there is any decision on the merits and the interests of justice and that is why, with respect, there ought be an application for leave in this case, both as a matter of principle and because of the interests of justice.  Those are my submissions.

HAYNE J:   Thank you, Mr Reynolds.

In In re The Will of F.B. Gilbert (Deceased) (1946) 46 SR(NSW) 318 at 323, Chief Justice Jordan said of orders made in the exercise of a discretion on points of practice and procedure, that:

if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

Although the present application was said not to relate to a point of practice or procedure, the disposal of the applicant’s action seems to have been greatly delayed by appeals to the Court of Appeal on matters which might seem to bear that character.  No doubt, as a result, costs have greatly been heaped up.

The trial should not be delayed further by appeal to this Court.  In the circumstances of this case, the Court of Appeal was plainly right to hold that in the face of its order granting leave to particular persons to inspect certain documents, it was not open to the trial judge to order, as he did, that those persons not have leave to inspect those documents.  In truth, many of the complaints which the applicant now makes are complaints about the first order of the Court of Appeal and what preceded it.  But that order is not the subject of the application.  Special leave is refused.

MR SACKAR:   I seek an order for costs.

HAYNE J:   Can you resist that, Mr Reynolds?

MR REYNOLDS:   No, your Honour.

HAYNE J:   Special leave is refused with costs.

Court will adjourn to reconstitute.

AT 9.44 AM THE MATTER WAS CONCLUDED