Marsden v Amalgamated Television Services Pty Ltd

[1999] HCATrans 283

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 expedition of applicant’s application for special leave to appeal.
Application for a stay

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 12.54 PM

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 W.H. NICHOLAS, QC:   If your Honour pleases, I appear with my friend, MR J.S. WHEELHOUSE, for the respondent.  (instructed by Mallesons Stephen Jaques)

HIS HONOUR:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honour, there are two main orders which we seek in our summons.  The first is a stay pending the determination of an application for special leave to appeal in this Court, and the second main order we seek is expedition of that application for special leave to appeal.

HIS HONOUR:   Could I just say something about expedition.  The matter could be heard on 8 October.  Would that present any difficulty for you, Mr Nicholas?  You are probably just as anxious to get the matter disposed of as Mr Reynolds, I suppose.

MR NICHOLAS:   No, I cannot see any difficulty about that, with respect, your Honour, if there was an application to be dealt with on that day.

HIS HONOUR:   I can offer you that date, Mr Reynolds.  It does not inconvenience Mr Nicholas, so that really disposes, I think, of your expedition application, does it not?

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   The question is of a stay.  Could I just ask this:  findings about the imputations have been made.  Is there any date set down for a hearing?

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   I have tried to read most of this but I have not been able to read it all, I might say.

MR REYNOLDS:   Your Honour, the jury segment of the case is over.

HIS HONOUR:   I understand that.  That is finished.  There has been a finding that the matter was defamatory, is that right?

MR REYNOLDS:   Yes, your Honour.  Now, the only remaining issues are - - -

HIS HONOUR:   The defences.

MR REYNOLDS:   - - - for the determination by the judge:  defences and damages.

HIS HONOUR:   They involve quite a lot of evidence, obviously, because there is a defence of justification been put on, is there not?

MR REYNOLDS:   Yes, your Honour.  That commences on 15 November where the plaintiff will put his evidence on damages and then, I gather, the matter is going to go over at some stage to the new year for completion of the remainder of the proceedings.

HIS HONOUR:   So, the plaintiff’s evidence would be confined now to evidence on damages?

MR REYNOLDS:   That is so, your Honour.

MR NICHOLAS:   When appropriate, your Honour.  We have a different view about that.

HIS HONOUR:   I can assure you, I will certainly give you an opportunity, Mr Nicholas.  In any event, you seek a stay now, assuming you can get a hearing on 8 October.

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   Only until that date and then it would be a matter for the Court on that date.

MR REYNOLDS:   Yes, your Honour, and one assumes if special leave were granted, obviously the stay would be continued.  If it were objected ‑ ‑ ‑

HIS HONOUR:   I cannot speak for that, and that is another matter that I was going to raise with you.  If I were minded to set it down for the 8th, which I am, and if I were to grant a stay, I think I would want to do it on conditions.  One condition that has crossed my mind - and I want to hear what Mr Nicholas says about this – would be that you and Mr Nicholas, if it were possible for him to do so, because you are the one who wants the indulgence, would not only put on whatever material is required for a special leave application but also put on and file whatever is required in respect of an appeal in the event that special leave were granted.  Now, it might be – and I am not holding out anything in this regard at all – that if special leave were granted, the Court might be in a position to deal with it

very quickly.  I do not think it will be, but that is a possibility and it is a possibility for which I would want to be prepared.

I will come back to you, Mr Reynolds, but I wonder if I could just discuss some of these matters with Mr Nicholas because he is not asking for an indulgence.

MR NICHOLAS:   Your Honour, I suppose we have a threshold problem which is thrown up by reason of the application for the stay which attracts the usual principles, and maybe your Honour is going to come to that in due course.

HIS HONOUR:   Yes, I will, and I will give you an opportunity, of course, to argue those matters.

MR NICHOLAS:   Now, assume, for the moment, that my friend persuades your Honour that a stay ought to be granted, then, your Honour, provided appropriate directions are given to the applicant to ensure the documentation is attended to, then there is no reason why, I would expect, we cannot be ready to deal with the matter on the day, if that is what your Honour was putting to me.  I suppose what we would be seeking – what, we are talking about three more weeks, I think, and I am just thinking ahead, your Honour  ‑ ‑ ‑

HIS HONOUR:   I think it is almost exactly four weeks from today.

MR NICHOLAS:   Well then – and, again, obviously, I am thinking out loud – your Honour might impose a term that the material in support of the special leave application, together with such other matter that your Honour may have in mind, be put on within seven days and then we have an appropriate period of time to deal with it.  So long as we are protected that way, your Honour, I have nothing to - - -

HIS HONOUR:   Well, that would be what I would have in mind, if I made an order for expedition.

MR NICHOLAS:   I do not think we would resist that.

HIS HONOUR:   Why should I grant - - -

MR NICHOLAS:   Your Honour, could I just say one thing, I am sorry ‑ ‑ ‑

HIS HONOUR:   Yes.  Could I just ask you one matter before you go on?  You seem to be questioning Mr Reynolds’ assertion about what the limit would be - - -

MR NICHOLAS:   That is what I wanted to deal with, your Honour.  I can deal with it very briefly.  At the moment the trial is set for 15 November and as presently set down, it will continue until the court rises, I think, on 17 December.  That is to say that it will proceed in a conventional way where the plaintiff will call his evidence as to reputation, matters of that sort, and then the expectation is, at the moment, that the plaintiff would give – well, depending on whether he will or he will not – he will go into the witness box or he will not, and plainly enough the defendant would be putting to him, again in the conventional way - - -

HIS HONOUR:   Well, there might be credit issues.  It may not be possible to segment it into damages and other issues.  That is what you are really saying.

MR NICHOLAS:   That is the way things are at the moment.  So, if the plaintiff’s case is closed prior to the end of this legal year, then the defendant would get on with its case and go until stopped and then we would start again on 1 February.

HIS HONOUR:   What you are saying is that inspection – if you are to get inspection ultimately – will be of great utility to you, not only in presenting your own case but also in dealing with Mr Reynolds’ client’s case on damages.

MR NICHOLAS:   Certainly, your Honour, and, of course, in relation to the matters that we would be needing to put to the plaintiff directly.

HIS HONOUR:   To prove truth.

MR NICHOLAS:   Yes.  I should say to your Honour, and your Honour would appreciate, of course, we have not seen these documents.

HIS HONOUR:   No, I understand that.  So you are only speculating about their contents.

MR NICHOLAS:   We are confident speculators, your Honour.  What I should tell your Honour is that on 18 October the matter is before the trial judge for directions and so on.  Now, we do not know, because as we understand it, the plaintiff, at the moment, as far as the trial is concerned, will be acting for himself.  We do not know that.  It may change daily but that is the present situation as we understand it.

On 18 October, or a few days after that, it is expected that directions will be sought by each of the parties as to the future conduct of the trial.  Now, it may be that directions sought on behalf of the plaintiff may be to

the effect that the trial be segmented in some way.  I do not know.  But it certainly has not been ruled upon and I just simply wanted to put to your Honour that as presently fixed, this case will run in the conventional way and we will be required, obviously, to cross-examine the plaintiff’s witnesses and the plaintiff, if he chooses to give evidence, in the usual way to cover all the matters appropriate to put to him, thus the importance of seeing this material has two things about it.  One, it is not appropriate, we say, at this stage, to say we do not need it until February because nothing will happen until then.  That clearly is not correct.  Secondly, that we do not know what is in it but our expectation is that between now and 15 November the information in it may suggest to us that some further inquiry or research or exploration ought to be undertaken.  We do not know but we would expect it to be likely.

So, that is our situation, your Honour, and that is how things are proposed as at the present time, and that will not change unless and until his Honour on his return from – he is away from the court at the moment.  He returns at the end of this month or early next, and unless and until he makes directions to change the structure of the trial, your Honour should proceed on the basis that it will be in the conventional way.

MR REYNOLDS:   I should add, your Honour, that – Mr Nicholas said there are going to be some applications made, I believe, by the plaintiff in person on 18 October and one of those will be that the trial commencing on 15 November will be only on damages and that the trial will then be adjourned to February to enable him to get legal representation.  At the moment, all this is up in the air.  That is the case.

HIS HONOUR:   But Mr Nicholas is right when he says that there have been no orders of that kind yet?

MR REYNOLDS:   That is so, your Honour.  It is going to be a matter for the trial judge’s discretion as to how things proceed.

HIS HONOUR:   Well, you have to persuade me that there should be a stay until, say, 8 October.

MR REYNOLDS:   Yes, your Honour.  Your Honour, if I have persuaded your Honour, I, in a sense, do not need to - - -

HIS HONOUR:   I can give you, I think, a date on the 8th and Mr Nicholas says that he can be ready on that date.

MR REYNOLDS:   Your Honour, we are happy with that.  So far as conditions are concerned, my friend mentioned seven days.  I have a personal difficulty if it is seven days and we would ask for 14 to enable a proper formulation of the special leave application to occur but, other than that, we would not seek any variation from the conditions your Honour ‑ ‑ ‑

HIS HONOUR:   Well, 14 days is, really, too short a time for Mr Nicholas.  And I do not only have in mind that you put on a special leave application and comply with the rules in relation to that, I would have in mind that you put on whatever is necessary for an appeal; a substantive appeal.

MR REYNOLDS:   I understand that, your Honour.  In a sense - - -

HIS HONOUR:   I would not give you 14 days because it is too short a period for Mr Nicholas to deal with.  We have roughly four weeks:  you want the indulgence, you just have to find time, Mr Reynolds.

MR REYNOLDS:   All right, your Honour.

HIS HONOUR:   I mean, I would probably give you 10 days or something like that but no more than that.  Why should there be a stay?

MR REYNOLDS:   Your Honour, we have attempted to formulate that briefly in a written outline of submissions, and essentially for two reasons:  first of all, because there is quite an important question of law that is raised by the application for special leave and, second of all, we say that in the interests of justice there would be a grant of special leave to appeal in this case. 

So far as the question of law is concerned, we have attempted to set that out, as I say, in our outline of submissions.  Essentially, this focuses upon the core holding of the Court of Appeal which is contained in the judgment of the Court of Appeal at paragraph 35 on page 17 of the judgment.  Does your Honour have that? 

HIS HONOUR:   Yes.

MR REYNOLDS:   If your Honour goes there to that paragraph - and this picks up some earlier statements in the judgment but we say this encapsulates the key holding – their Honours say that the:

skirmish should not have been further protracted by the respondent -

that is my client –

revisiting before the trial judge issues which had been agitated before him back in March and which should have been agitated before the Court of Appeal in April had the respondent wished to keep them alive.

So, this is a suggestion at that point, in accordance with Anshun and the principles in Henderson v Henderson, that this was a point which could have been taken earlier, which should have been taken earlier.

HIS HONOUR:   No, that was not the point.  I mean, correct me if I am wrong, but was not the point that the Court of Appeal required notice to be given to your client that this matter had been raised and that that notice was given and there was an amendment to the notice of appeal and your client chose not to be represented in relation to that matter?  Is that right?

MR REYNOLDS:   It is slightly different from that, your Honour.  What happened was there were orders made by the Court of Appeal that if my client wished to put various matters by way of notice of contention, then a notice of contention should be filed.  There was no notice of contention filed and we did not raise any of those issues, obviously, in a notice of contention.

HIS HONOUR:   Notwithstanding that you were invited to do so by the Court of Appeal.

MR REYNOLDS:   Notwithstanding that we were invited to do so by the Court of Appeal.  But our point is that at no stage did the Court of Appeal make it clear to my client, on the leave application, that this point he ultimately succeeded on before Justice Levine on Waind v Hill was a matter which he was obliged to raise.  That was never made clear on the transcript, and I can take your Honour to it, to Mr - - -

HIS HONOUR:   There was no express reference to Waind v Hill but I thought on one view of the transcript the matter was put at large.

MR REYNOLDS:   Not at all, your Honour.  The holding by Justice Levine originally was that a claim for legal professional privilege by my client was upheld.  He did not deal with our argument on public interest immunity and it was made clear to my client that that was a matter which the Court of Appeal did want raised by way of a notice of contention.  But this issue that we ultimately succeeded on, on Waind v Hill, was never run before Justice Levine in the first instance and was never a matter raised with us by the Court of Appeal on that leave application.

HIS HONOUR:   Let me ask you this.  Where do I find the formal order that was entered?  Is that the practice here?  Is a formal order entered or is it down by the registrar when the Court of Appeal determines a matter?

MR REYNOLDS:   Is this the order ultimately made by the court in this case?

HIS HONOUR:   The order against which you are appealing?

MR REYNOLDS:   Your Honour, I have a certified copy of it.

HIS HONOUR:   I am sorry, I should make this clear.  The order which you say did not foreclose the re-agitation of these issues, the Waind v Hill issue that was decided by the single justice?

MR REYNOLDS:   Your Honour, I think we may be at cross‑purposes here.

HIS HONOUR:   We might be, but I do want to look at that order because you say that you are entitled to go back – was it before Justice Levine?

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   You were entitled to go back before him and to ask him to exercise a Waind v Hill sort of discretion, is that right?

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   In order to say that, you have to be able to say that the formal order that was made by the Court of Appeal did not foreclose the re‑agitation of that issue.  Now, where do I find the formal order?

MR REYNOLDS:   That order is contained in the annexures to Mr Potter’s affidavit and the order is behind tab 11 in the judgment of Justice Giles on the last page.

HIS HONOUR:   That is an affirmative order granting leave to inspect the documents.

MR REYNOLDS:   Yes, it is, your Honour.

HIS HONOUR:   Well, how can a judge act otherwise than in accordance with that order whilst it stands?

MR REYNOLDS:   Your Honour, that, in effect, is a challenge to Justice Levine’s jurisdiction to reopen that issue.  It is important for me to note - - -

HIS HONOUR:   I do not think it is a jurisdictional question.  It is a question whether the judge was bound by that order or not.

MR REYNOLDS:   Your Honour, can I answer that in a number of ways?

HIS HONOUR:   Yes.

MR REYNOLDS:   Basically, because it is an interlocutory order – and this is made clear, as your Honour knows, in many decisions – it is subject to variation from time to time, as circumstances dictate.

HIS HONOUR:   Yes, but a single judge cannot vary an order of the Court of Appeal.

MR REYNOLDS:   Your Honour, I submit that where the order is interlocutory, no matter whether it is made by the Court of Appeal or by any judge in any division, it may be varied or supplanted.  It may not be a question so much of variation, as the order that is made of a procedural kind at an interlocutory level is made from time to time.

HIS HONOUR:  

But it is a final order with respect to inspection.

MR REYNOLDS:   I submit not, your Honour.  It is an interlocutory order because it is an interlocutory question and there are decisions in the Court of Appeal in this State which deal precisely with this sort of order and say it is interlocutory.  One may test it this way - - -

HIS HONOUR:   Is there any decision that says that because it is interlocutory it can be varied?

MR REYNOLDS:   Your Honour, it is dealt with in the rules and it is dealt with in many, many decisions.

HIS HONOUR:   Was there any decision that says a trial judge can vary an order, whether of an interlocutory kind of not, of the Court of Appeal?

MR REYNOLDS:   Your Honour, I am not aware of any decision which deals with the issue either way.

HIS HONOUR:   It would be a startling proposition.  What, trial judges can just ignore what the Court of Appeal says?

MR REYNOLDS:   Your Honour, it is a matter of first characterising the nature of the order that is made and, as I say, one starts from the proposition that it is interlocutory.  So that if, for example, Justice Levine had made an order for access at 4 pm one day and he had come back the next day and decided that perhaps he had made too hasty a decision, he would then be able to alter it.  Now, if one starts from that proposition - - -

HIS HONOUR:   Where do I find the basis upon which that can be done?  In a decision of the court or - - -

MR REYNOLDS:   Well, your Honour, there are many decisions.  For example - - -

HIS HONOUR:   Which is the best?  Are they in your authorities?

MR REYNOLDS:   The best decision actually we do not have in our book of authorities.  It is a case in this Court called Adam P. Brown which is  ‑ ‑ ‑

HIS HONOUR:   Is there any decision in the volume of authorities you have given me that says that?

MR REYNOLDS:   Not in the volume of authorities, no, your Honour.  But it is a matter which is dealt with in the rules.  It is also a matter which is dealt with in a decision of this Court called Adam P. Brown where the Court said that where an order is of an interlocutory kind it may be varied.

HIS HONOUR:   What is the reference, do you know?

MR REYNOLDS:   It is in 148 CLR and the particular passage is at page 178 where the Court says:

A court must remain in control of its interlocutory orders.  A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust.

Now, their Honours do not say “an order may be varied”, they say “A further order will be appropriate” and that is because any interlocutory order necessarily only operates ‑ ‑ ‑

HIS HONOUR:   In what circumstances other than the discovery of new facts do you say that that principle can apply?

MR REYNOLDS:   Your Honour, I say it would apply to any interlocutory order, particularly any interlocutory order of a procedural kind of whatever kind.

HIS HONOUR:   It is an astonishing proposition.

MR REYNOLDS:   Your Honour, let me try and develop it a little.  Your Honour knows that in any trial court, orders are made from time to time, from moment to moment by a judge.  They may involve any number of things.

HIS HONOUR:   And they are final when made.  They are binding when they are made.

MR REYNOLDS:   Your Honour, I accept that, but the question is whether or not the judge has any power to vary or supplant those orders by further orders and I submit that there is little doubt that he has.  It is a matter which is dealt with in the practice books at great length.  I do not know if your Honour has a copy of the local practice.  We did put it on our list. 

MR NICHOLAS:   Your Honour can have our - - -

HIS HONOUR:   Thank you, Mr Nicholas.

MR REYNOLDS:   We have a spare copy for your Honour if need be.  If your Honour goes to Part 40 rule 9, page 2857 at the bottom, your Honour, there are a whole lot of notes there under the heading “Variation of interlocutory orders” and there are a whole lot of cases there referred to which talk about interlocutory orders being varied, and over the page, even when made by consent and entered.  As I say, there is a whole lot of learning on that question.  We submit that there is no doubt that a judge can vary such an order.

Can I make that good with a particular order that we are talking about here, an order for inspection, because that has been dealt with in a decision of the Court of Appeal in this State called Waind v Hill which your Honour should have as the second case in the booklet of authorities.  In that case, if your Honour goes to the very last page of the judgment, Justice Moffitt speaking for the court said at 386D:

The order for inspection –

that is the one originally granted as here by the Court of Appeal –

has not yet been carried into effect –

as here –

it is interlocutory and hence is open to review by Carmichael J who can, and no doubt will, review the order as to exercise of the discretion –

So, your Honour, we respectfully suggest that - - -

HIS HONOUR:   What triggered the reopening of the order there?

MR REYNOLDS:   I do not recall the precise facts but - - -

HIS HONOUR:   Might it have been discovery of new facts that made the order no longer appropriate?

MR REYNOLDS:   Your Honour, from recollection, what happened was the judge dealt with an argument about privilege but did not consider the question of the exercise of discretion and therefore it was suggested that the matter ought to go back to him so that he could exercise his discretion if he saw fit.  But at any rate, the point I am trying to glean from that case is that there is no doubt that an order of this kind is interlocutory and that it can be, as Justice Moffitt said, reviewed from time to time.      Now, we say, with respect, that that is a case which is relevantly on all fours with the present situation.

Your Honour, can I deal with the precise point which we say is raised on this case, if I may call it “the Anshun point”, by reference to a decision of the Victorian Court of Appeal which is on our list called Christie v Baker which should be behind tab 3 of your Honour’s book of authorities.  This was a case which considered the question of abuse of process, that is, reopening of arguments in relation to interlocutory questions, but it was not a general interlocutory question but an application for an extension of time to extend a limitation period.  Their Honours considered the question of Anshun and estoppel in the context of such an interlocutory application and, relevantly, at page 597, line 14, Justice Brooking said this:

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 –

by reference to what Chief Justice Barwick said in an earlier 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 a wide discretion in the interests of justice in considering whether an applicant who has failed on the merits may none the less succeed on a second application. 

He then cites further authority including decisions of this case where it is said – and this is important – at line 25:

It has been said that an interlocutory order affecting the procedure of the litigation may be reviewed if circumstances warrant a review during the course of the proceedings.

Your Honour asked me for authority.  There are two High Court cases set out there.

HIS HONOUR:   I can accept that there may be a good arguable point about the application of Anshun to interlocutory proceedings.  I think there is quite authority to the effect that it applies only to final decisions.  I do not know whether Mr Nicholas has to rely upon Anshun.  On one view of the matter, the trial judge simply disobeyed an order or refused to give effect to an order as if it had not been made of the Court of Appeal.  Now, that is not an Anshun point.  The simple question is was the judge bound by the decision – by the order, not the decision – by the order of the Court of Appeal which was unqualified in its terms.  You do not need Anshun for that.

MR REYNOLDS:   Your Honour, again, we come back to the proposition which is mentioned there in Christie v Baker that this is an interlocutory order.

HIS HONOUR:   Look, be realistic about it, Mr Reynolds.  A matter goes to the Court of Appeal.  The Court of Appeal hears argument on it.  It becomes apparent that there may be another matter which could be argued in aid of one side or another.  The party who would be affected by an argument on that point is given notice that the point is being raised.

MR REYNOLDS:   Not at all, your Honour.

HIS HONOUR:   All right, well, exclude that.  Exclude that.  The Court of Appeal has made an order which is absolute in its terms, right?

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   Well, that order must bind everybody until it is set aside or it is appealed from, and there was no appeal against that.

MR REYNOLDS:   No, your Honour, but, again, my point – I keep coming back to it – is because it is interlocutory, it can be varied by any judge within the Supreme Court.

HIS HONOUR:   I do not accept that a judge, sitting alone, can possibly vary an order of the Court of Appeal.  I just do not accept that.

MR REYNOLDS:   I can but rely on these earlier decisions.

HIS HONOUR:   But you cannot point to a case of the kind I have mentioned, can you?  You cannot point to a case in which an order absolute in its terms has been made by an appellate court – it has not been the subject of an appeal – and a judge, sitting alone, then subsequently makes an order which is in collision with the order of the Court of Appeal.

MR REYNOLDS:   Your Honour, I rely on a matter of basic principle.  My learned friend cannot point to a decision which says that this is impossible either. 

HIS HONOUR:   Well, that is not surprising.  It would be very bold to, I think, what has been done, but anyway.

MR REYNOLDS:   Your Honour, again, I go back to the basic characterisation of the order is interlocutory and rely on all these decisions.  Now, I cannot point to a decision in my favour on this precise question.  Mr Nicholas cannot point to a decision in his favour on this question.

HIS HONOUR:   But I do not think it is within the principle either that you have mentioned.  There are no new facts.  There is no new circumstance.  You have just gone back and said, “We are going to have another shot” – “We are going to have a shot at a matter before the judge which is the subject of an order which is covered by an order which has been made by an appellate court.”

MR REYNOLDS:   Your Honour, the argument has never been put to him, that is to the primary judge, where it has never been dealt with by the Court of Appeal, where, when it did go back to the judge at first instance, the judge said, as a matter of the elucidation of truth and the interests of justice in the case before him, it was necessary to make such an order.  That is the particular situation we are dealing with here.  I submit, in that situation, there is no doubt that his Honour did have jurisdiction.  That much is raised by their Honours at paragraph 39.  They say:

Whether the power to stay the order could have been exercised otherwise than by a Judge of Appeal is a nice question.

Well, your Honour, if it is “a nice question”, then all the more reason why it is a matter why this Court should consider the issue.

HIS HONOUR:   Where do you say that appears?

MR REYNOLDS:   It is paragraph 39 of the Court of Appeal where it is said:

Whether the power to stay the order could have been exercised otherwise than by a Judge of Appeal is a nice question.

There is no point taken in this judgment, your Honour, of jurisdiction against my client.

HIS HONOUR:   I do not have page 19.

MR REYNOLDS:   Page 19, paragraph 39.

HIS HONOUR:   For some reason, I do not have that page.

MR REYNOLDS:   I am terribly sorry, your Honour. 

Whether the power to stay the order could have been exercised otherwise than by a Judge of Appeal is a nice question.

Well, your Honour, I am really just picking up the proposition – and there is nothing in this judgment inconsistent with what I am putting to your Honour - but that assumes, although they do not decide it, that there is such a jurisdiction.  The reason there is such a jurisdiction is because it is only interlocutory.

At any rate, I see that my time has expired.  I do not know when the time started.

HIS HONOUR:   If you have anything further, you go ahead.

MR REYNOLDS:   I would like to develop it a little, your Honour.  The difficulty is that there is just no decision dealing with this point.  I say that it comes within general principles.  Their Honours say that the argument that I wish to run may well be correct.  They say it is “a nice question”.  Now, that is an issue which also, in conjunction with the Anshun point, may arise on the application for special leave. 

Now, true it is – and this is the effect of what your Honour is putting to me – that may arise as an anterior point to moving to a discussion of the Anshun principles.  I accept that.  But the difficulty is that this is not a matter which has been dealt with by the Court of Appeal.  They leave the question open.  Indeed, they do not just leave it open, they say it is “a nice question” of jurisdiction.

HIS HONOUR:   That they do not have to deal with because there is no appeal against the Court of Appeal’s decision; the earlier decision.

MR REYNOLDS:   They say they do not have to deal with it, with respect, because they down me - they down my client on the Anshun point.  So, they did not deal with what your Honour is suggesting is the anterior point of whether there is any jurisdiction.  Now, I submit, again, that there is a jurisdiction simply because of the characterisation of the order as interlocutory.

Now, that is a matter which I would want to develop on a special leave application and if your Honours were of the view that that point was arguable, then the other issue of Anshun and the estoppel would also arise.
The difficulty is that this “nice question”, as the Court of Appeal call it, has not been determined by them, and it is a nice question.  There is some difficulty associated with it.  I submit, ultimately, this Court would find that, as a matter of construction of the order, that it is only made from time to time and until varied by any judge of the court.

The provisions of Part 40 rule 9 give any judge of this court the power to vary any order which is made, particularly if it is an interlocutory order.  A final determination of proceedings cannot be varied by a judge after it has been taken out but it is clear that a judge may vary any interlocutory order.  Now, that is made clear by the terms of Part 40 rule 9.  For example, that:

the court may, on terms, set aside or vary any order except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

And in rule (5):

Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order.

Both of those powers, both the inherent power and the rule directly contained under Part 40 rule 9(4), there is a power in this court to vary any order and that is a power which I suggest is a power which a single judge has.  What is more, one can imagine, as a matter of practice, many situations where interlocutory orders may be made for the time being by a Court of Appeal and where it may be necessary for some procedural adjustment to be made when the matter is remitted to the trial judge.

HIS HONOUR:   Anyway, I have given you some extra time, Mr Reynolds.  I think I understand the argument.  Your reliance upon the cases - - -

MR REYNOLDS:   That is the issue we would like to agitate on the special leave application.

HIS HONOUR:   Yes.  Yes, Mr Nicholas.

MR NICHOLAS:   If your Honour please.  Your Honour, in our submission, Anshun has nothing whatever to do with this matter.  Your Honour asked about the nature of the orders.  If you would turn to the volume that you have under tab 9, your Honour sees that that is the judgment which the President delivered on 13 April.  That is when the orders were made, if your Honour has that.  He recites the situation about the notice of contention and, as you see from paragraph 1, about four lines down:

if he wished the Court to consider any basis for withholding inspection –

and so on.  Your Honour is alive to that.

Your Honour, as to the orders, would you come, please, to page 3 of the judgment, paragraph 9:

That said, it is clear that the issues relevant to the making of dispositive orders have been properly agitated and I think it is appropriate that this Court dispose of the appeal so that there be no further impediments as far as this Court is concerned in the continuation of this trial which both parties have made plain they wish to continue without further interruption.

Accordingly, what I propose is that the Court pronounce final orders which I foreshadowed and will indicate in a minute, disposing of the appeal on the basis that the reasons will be handed down on Thursday next.

Justices Handley and Giles agreed.  And you see the orders in paragraph 21, and your Honour has been taken to them, and in paragraph (3) you see is the positive order ordering that there be inspection.

Under tab 11, your Honour, is the judgment of Mr Justice Giles delivered on 15 April where he sets out his reasons for disposing of the privilege point and in paragraph 41, which is on the second-last page of that judgment, your Honour sees that he refers back to the other aspects of the matter that have been agitated:

The respondent had neither filed a notice of contention nor appeared on the hearing of the appeal, so public interest immunity as a ground for upholding the orders made by his Honour was not part of the appeal.  When the respondent appeared later on 13 April 1999 in connection with the amendment to the notice of appeal, the Court indicated that it was disposed to allow the appeal and make orders entitling the appellant access to…..The respondent contended that an order to that effect should not be made, and that it should be left able to present further argument to Levine J in support of public interest immunity or the exercise of a discretion to defer access to the documents or permit access only on conditions.  For the reasons then given, the Court determined to make the orders as foreshadowed.

And then his Honour then reiterates the situation and goes on to reaffirm those orders.

Your Honour, what, of course, you, with respect, has appreciated, that the validity of the order for inspection made on 15 April stands and what did not happen was this, that there was any appeal or challenge to that order.  What happened was the unusual step was taken of inviting the trial judge to disobey it and he did.  The trial judge accepted that invitation and the judgment of 31 August, which is the judgment that is the subject of the appeal, with respect - I would just refer your Honour to the concluding paragraphs of that, if I may - you had it a moment ago, your Honour - just to say a couple of things:  page 19, paragraph 40, his Honour says this:

The order for inspection made by this Court on 13 April stands with all its consequences.  It would be unbecoming for this Court to pronounce it afresh.  It will be appropriate if the orders of Levine J made on 7 May 1999 are set aside –

and so on.

So, your Honour, what my friend is really perhaps putting to this Court is that there be leave granted and ultimately, obviously, a contention that any appeal should succeed.  Now, what would happen, as we see it:  assume for the against us that an appeal is allowed, the consequence can only be that the 13 April order stands, it has not been appealed from; that you have an order allowing inspection and a later order of the trial judge denying inspection, and we would suggest, your Honour, that denying inspection is a situation which is quite unacceptable; indeed, absurd.

While I am on page 19, if I could just take your Honour to paragraph 39.  My friend referred you to the sentence, the second‑last one, saying, “Well, there is a ‘nice question’ and that would be an attractive basis for this Court entertaining an application for special leave.”  He did not go on to read the next sentence, namely, “But no such situation presented itself in this case.”  Nor did he read the preceding sentences in paragraph 39 where his Honour addresses a hypothetical example discussed during argument.  So, we would say, your Honour, that simply no “nice question” arises in this matter at all.

Our submissions, your Honour, without taking you to authorities with which you are familiar, is simply this, that one is simply dealing with judgment of 31 August 1999 in which the court makes plain that it expected the judge to adhere to the order earlier made.  It did not go on to address any of the other matters at all because it was not called upon to do so.  My submission, with the greatest of respect, is this being the judgment sought to be appealed from, no challenge to the validity of the previous orders having been made and, indeed, your Honour, no return to the Court of Appeal, namely, the court which made those orders, no return to that court inviting it with regard to any changed circumstances or any other factor to review or to reconsider those order were or have been made.

Our submission, with the greatest respect, is, your Honour, on any basis, your Honour would not accept that there are substantial prospects of the special leave application being successful.  Our submission is, with respect, that there are no prospects whatsoever and we would thus submit, with respect, that no order seeking a stay in those circumstances and consistent with the authorities of this Court on such matters should be made.  Those are our submissions, your Honour.

MR REYNOLDS:   Your Honour, may I reply to those?  When my learned friend says that Anshun has nothing to do with this case, the whole of the argument before Justice Levine on the point consisted of my friend taking his Honour to Anshun authority.  The whole of the argument in the Court of Appeal consisted of my argument on the Anshun point.  That was the whole of the argument and that is the basis of the decision as seen from paragraphs 33 and 35.  There is no other basis for the decision other than an argument or a finding that my client could and should have put the matter earlier.

Your Honour is raising a question of jurisdiction which the Court of Appeal never resolved and which they leave open.  It is important for me in that context to emphasise this, that they are there talking about a change of circumstance.  The judgments which deal with this sort of issue on an interlocutory level also deal not only with changes of circumstance but also with fresh arguments.  Your Honour, this argument was never put before Justice Levine to begin with.  It was never argued before the judges of appeal.  He allowed the fresh argument to be put before him and he upheld it but, your Honour, most importantly, at paragraph 28 of this judgment of the Court of Appeal, if I can take your Honour to that, at page 13, in the third line of paragraph 28 there is reference to this exercise of the Waind v Hill discretion, and the President says:

For my part, I can see no error in his Honour’s approach. 

So, on the merits of this argument, four judges have looked at it and they all agree that it is in the interests of justice that the exercise of the discretion be exercised in that way.

If your Honour goes to Justice Levine’s judgment, your Honour will see why it was that he wanted to make this order.  Can I take your Honour just briefly to that because I have not had the time to do it.  This is Justice Levine’s judgment – we have a spare copy here for your Honour.  If I can take your Honour to the final two pages, your Honour will see that this argument that was presented by Mr McHugh is dealt with by his Honour from pages 6 to 8, and he is dealing here not with all of the documents which were dealt with earlier by the Court of Appeal but rather with only seven of them, and these seven documents essentially are statements by Mr Marsden and by other witnesses that were provided confidentially to the police and the Royal Commission.

The basis for his Honour’s decision here, and it is made clear at pages 7 to 8, is that he says “the elucidation of the truth” requires that these documents not be provided to the defendant at this stage.  Why?  Because he says if the defendant’s witnesses on truth, the complainants D15 and D16, are tipped off as to the points which are going to be raised with them in cross‑examination, he says at the bottom of page 7:

It would defeat rather than serve the ends of justice and the elucidation of the truth in a case of this special kind…..for such witnesses to be called by the defendant to know in advance and thus be in a position to tailor their testimony –

That is the reason of justice why his Honour, notwithstanding what the Court of Appeal had done, said, “It is absolutely vital for me, as the trial judge in determining these issues, that these witnesses, these complainants who allege under-age intercourse with Mr Marsden, not be tipped off on this point.  If they get these statements then it is going to make it very difficult for me as the trial judge to be able to determine who is telling the truth on this vital issue.”  Because that is what it is, it is a battle of credibility.

HIS HONOUR:   That is not an unfamiliar problem for a trial judge.

MR REYNOLDS:   No, your Honour.

HIS HONOUR:   Witnesses are often tipped off about matters.

MR REYNOLDS:   They are, but his Honour saw this material.  Your Honour has not.  We have it here if it is necessary.  He felt – he was in no doubt about this, notwithstanding what had transpired before the Court

of Appeal and he said, vis-a-vis, “These seven documents alone, it is absolutely vital for the elucidation of the truth and the justice of this case that they not be in a position to know in advance and to tailor their testimony by knowing what Mr Marsden’s version is and what these other witnesses are going to say.”  Because what happened was Mr Marsden forwarded all of these statements to the Royal Commission instead of holding his fire.

Now, he provided them confidentially and the difficulty is that if Channel 7 get them they are going to be able to show them to D15 and D16 and therefore there is going to be a problem in terms of the elucidation of truth for the trial judge in this case.  The Court of Appeal said that they agreed with his Honour’s exercise of discretion and they saw nothing wrong with that on the merits.  So, we have four judges who have looked at this question and they all agree what, in effect, is being taken against my client is a technical point and we submit that it is not even a good technicality. 

Your Honour, so far as the balance of convenience is concerned, I submit that the arguments that I am putting are sufficiently serious; that they may well warrant a grant of special leave to appeal and when one looks at the question of balance of convenience between now and 8 October, then there is no reason why a stay should not obtain.  If a stay is only made for that period until 8 October, if, as my learned friends says, my arguments are no good, then they will no doubt be rejected by this Court on 8 October.  If, on the other hand, their Honours are minded to grant special leave to appeal, any right that my client has to bring an application for special leave to appeal will be rendered nugatory if your Honour does not order a stay.  That is the difficulty. 

We are only looking, in a sense, at the balance of convenience over a period of four weeks.  It is not absolutely vital for the defendant that they get the documents in that case but if there is not a stay, your Honour, I will not be able to agitate any of these issues on a special leave application because they will have the documents and the whole special leave application is nugatory.

Even if your Honour is, on a preliminary basis, against me on the arguments that I am putting, I submit that there is enough force in them that it would warrant the attention of this Court, on a special leave application, to hear full argument before two or three Judges on that point.  Your Honour, those are my submissions in reply.

HIS HONOUR:   In view of the fact that I am able to offer the parties an early hearing of the application for special leave, that is on 8 October next, I am disposed to grant a stay of the orders, the subject of the application today, notwithstanding any doubts that I may hold as to the applicant's prospects of success in obtaining special leave.

I am heavily influenced by the fact that the relief available to the applicant, were the applicant ultimately to succeed, would be of no utility unless I granted a stay.  I will, however, impose conditions.

I order that the application for special leave be heard on 8 October next.  I order that the applicant comply in all respects with the rules and practice of this Court, as if the application for special leave were in fact an appeal, by 18 September.  Now, which precisely are the orders that you want stayed, Mr Reynolds?  Is it all of the orders of the Court of Appeal?

MR REYNOLDS:   If your Honour goes to the affidavit of Mr Potter right at the back of the volume, the last document in it, your Honour will see there is a stay there in the last three lines of order 1:

stay order 3 made –

by the Court of Appeal –

on 13 April as varied by order 3 made on 15 April -

if your Honour would - - -

HIS HONOUR:   So I should make an order to stay order No 3 made on 13 April 1999, as varied by order 3 made on 15 April 1999?

MR REYNOLDS:   That is so, your Honour.

HIS HONOUR:   By granting a stay in respect of that order 3 as amended until 4.30 pm on 8 October next.

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   That disposes of the matter.

MR REYNOLDS:   It does, your Honour.

HIS HONOUR:   Mr Nicholas, I have not made an order requiring you to comply with anything because you have not sought any indulgence.  Could I just say this to you.  I am not disposed to make any order against you but it obviously would assist the Court if you were able to make a response to whatever Mr Reynolds files.  I would not like anybody to have an impression that the matter will in any way be dealt with as if it were an appeal.  But I think it might be helpful to the Court to have that additional material on this occasion.

MR NICHOLAS:   Could we ask your Honour to approach it this way, as far as we are concerned, that you make the order, the kind that your Honour foreshadowed in relation to what the applicant has to do; then, clearly enough, we will endeavour to respond in relation to the special leave questions in the usual way within the fortnight following.  But then we would ask your Honour not to oblige us to go to the extra step of dealing with the appeal points.

HIS HONOUR:   I thought I made that clear.  I was not proposing to make an order against you.  I was merely observing that to the extent that you can, treat it as an appeal in terms of practice and rules, we would be indebted to you to that extent.  But I want to make it clear, there is no - - -

MR NICHOLAS:   If we have some flexibility about that, your Honour, we would appreciate that.

HIS HONOUR:   Yes.  I am not making any order against you.

MR NICHOLAS:   I should ask your Honour for an order for costs of this application.  Indulgence is claimed and that would be one of the terms, we would suggest, that there be the minimum of granting this application.

HIS HONOUR:   What do you say about costs?

MR REYNOLDS:   Your Honour, the usual order that is made on these applications is that the costs of the stay abide the costs of the special leave application.  If the application for special leave is granted then, obviously, it is more than appropriate that my client should have asked for a stay in these circumstances.  I do not remember any case where there has been a stay granted and costs ordered against the applicant.

HIS HONOUR:   I think I should reserve the costs.  I do not think - - -

MR NICHOLAS:   May I say something with respect about that, your Honour?  Your Honour, we had the impression from what you have said, that the fact that you were able to offer the 8 October, obviously, shortens the time for a stay and would be - - -

HIS HONOUR:   Well, it is relevant, I think, to the balance of convenience aspect of the argument.

MR NICHOLAS:   Yes, your Honour.  Now, your Honour, in, if I may say so, the normal course, one would expect considerably more time dealing with the substantial prospects of success point.  Now, your Honour has heard what we had to stay on that.  Now, my submission, with the greatest of respect, is that this application does not sit to enable it to be said, “Well, the usual order ought to apply.”  We say a real advantage has been fortuitously obtained by the availability of this date and that has, really, switched things quite significantly and thus, in the circumstances, we would suggest that it would not be appropriate to deal with it in what might otherwise be called “the usual way”.

HIS HONOUR:   He has a point, has he not?

MR REYNOLDS:   Your Honour, we have applied for a stay.  Your Honour has ordered a stay.  It may well be - we do not know - that an application for special leave to appeal is granted.  As I say, the usual order in those circumstances is that the costs of the stay abide the special leave application.  There is nothing unusual in this case - - -

HIS HONOUR:   Mr Nicholas is saying that, really, he has had to prepare today to meet an argument which, in effect, has not been decisive and he has not really had to present simply because of the fortuitous circumstance that I can offer an early hearing.

MR REYNOLDS:   Your Honour, whether the special leave points, if I may put it that way, are any good is a matter which will ultimately be determined on 8 October.  In effect, what my friend is suggesting is that your Honour should assume in advance against my client that those arguments are not good.  That is a matter for later determination by this Court.  It does not lie in Mr Nicholas’ mouth to say the only reason we got a stay was because the matter can be heard on 8 October.  We submit that your Honour took into account not only the balance of convenience but, obviously, in accordance with the authorities, that my client has an arguable case for special leave to appeal.  There is nothing unusual in this stay application at all and, we submit, no reason why some highly unusual order should be made pending - - -

HIS HONOUR:   I am not bound to make an order if, and only if, I think that there is an arguable case.  There might be cases in which the balance of convenience is so overwhelmingly with a party that the question of the arguability of the case or not pales into insignificance, and a case in which an early hearing can be offered strikes me as that sort of case.

MR REYNOLDS:   Yes, your Honour, I do not dispute that for a moment but, obviously, one relevant matter is the question of - - -

HIS HONOUR:   What I am saying is do not assume, if you get me on the special leave application, that I have formed a view that you have an arguable case.  I have not formed any view about that matter.

MR REYNOLDS:   Precisely.  That is the very point that I am trying to make.  My friend’s supposition in making a costs application is that somehow a view has been formed that there is no arguable prospect for special leave.

HIS HONOUR:   I am prepared to reserve the costs.  I think that is the appropriate order.

MR REYNOLDS:   If your Honour pleases.

HIS HONOUR:   Is it clear then, the orders that I have made?

MR REYNOLDS:   Yes, your Honour.  I am sure that we can have them taken out in a form which can be certified in the Registry.

MR NICHOLAS:   What was the time frame for the applicant, your Honour?

HIS HONOUR:   Filing by the 18th, Mr Nicholas.  That gives you almost three weeks.  Well, it gives you three weeks, I think.  All right, is there anything further?

MR REYNOLDS:   Can your Honour certify for counsel.  I am reminded to ask your Honour for that order.

HIS HONOUR:   Yes, I am certainly prepared to certify for counsel.

MR REYNOLDS:   Thank you, your Honour.

HIS HONOUR:   Adjourn the Court until 2 o'clock.

AT 1.56 PM THE MATTER WAS CONCLUDED