Marsden v Amalgamated Television Services Pty Ltd

[1996] HCATrans 149

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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HIGH COURT OF AUSTRALIA

GUMMOW J

No S87 of 1996

MARSDEN

and

AMALGAMATED TELEVISION
SERVICES PTY LIMITED

SYDNEY

10.36 AM, FRIDAY, 3 MAY 1996

Continued from 2.5.96

MR G. REYNOLDS:   I appear for the applicant.

MR J.R. SACKAR:   I appear for Amalgamated Television Services with MR S. WHEELHOUSE.

HIS HONOUR:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honour, I think there are a few administrative matters to tidy up to begin with.  First of all can I tender if that is the ‑ ‑ ‑ 

HIS HONOUR:   The first question is, is there any evidence to be tendered?

MR REYNOLDS:   Your Honour, on that question, I have the affidavit of my instructing solicitor, Mr Potter, sworn 26 April, 1996, which was before the judge at first instance and before the Court of Appeal.

HIS HONOUR:   Have your opponents seen this?

MR REYNOLDS:   Many times, your Honour.

HIS HONOUR:   Is there any objection to it?  That is what I am trying to find out.

MR SACKAR:   Your Honour, I do not imagine - I have not seen what is in that folder today.  May I just have a quick look?  I do not imagine it will be ‑ ‑ ‑ 

HIS HONOUR:   Well, you had better have a look at it.   Yes, well, the affidavit of Richard William Potter sworn in proceedings No 20223 of 1995 in the Common Law Division, Defamation, of the Supreme Court of New South Wales, will become exhibit E.

EXHIBIT E - AFFIDAVIT OF RICHARD WILLIAM POTTER SWORN IN PROCEEDINGS NO 20223 OF 1995 IN THE COMMON LAW DIVISION, DEFAMATION, SUPREME COURT OF NEW SOUTH WALES

MR REYNOLDS:   Thank you, your Honour.  There is no other evidence for the applicant, your Honour.

HIS HONOUR:   Mr Sackar?

MR SACKAR:   Yes, your Honour, we tender a folder of material which was before the Court of Appeal, copy of which I have given to my learned friend this morning.  Your Honour, the material is described in the index on the first page of that.  Some of them were exhibits to an affidavit of Mr Angus and then there are some pleadings which are before the Supreme Court in matter No 2023 of 1995 and I gather, your Honour, last night - perhaps if I deal with that one first.

HIS HONOUR:   Yes, let us do it step by step.  Any objection to this, Mr Reynolds?

MR REYNOLDS:   Your Honour, I understand from my friend's instructing solicitor that it is the same document that was before the Court of Appeal and on that basis we have no objection, your Honour.

EXHIBIT F - FOLDER OF MATERIALS TENDERED BY THE RESPONDENT

HIS HONOUR:   And I should inform the parties that before coming into court this morning, I looked at the tapes being exhibit C and D.

MR SACKAR:   Your Honour, one last matter, there was a good deal of audio-visual material in addition to the proposed broadcasts before the Court of Appeal.  We have this morning produced one such example only of the 7.30 Report which was also an exhibit to Mr Angus' affidavit.  It is a 7.30 Report excerpt of 28 February 1995 and it was played to, certainly, Levine J.  I am not certain whether it was played in the Court of Appeal but I understand it was tendered.

MR REYNOLDS:   Your Honour, if this was an exhibit below, I have no objection.

HIS HONOUR:   Is this a tape of a program referred to in the Court of Appeal judgment?

MR SACKAR:   I think it is, your Honour. 

HIS HONOUR:   This is not the initial program of your client which triggered the pending defamation action?

MR SACKAR:   No, your Honour.  This is publicity ‑ ‑ ‑ 

HIS HONOUR:   This is referred to on page 16, is not it?  Is that the one of the Court of Appeal ‑ a video of an ABC Channel 2 program, is that the one?

MR SACKAR:   I understand it is, your Honour, yes.  Yes, that is the one, your Honour. 

HIS HONOUR:   Any objection to that, Mr Reynolds?

MR REYNOLDS:   No, your Honour, on the basis I indicated.

HIS HONOUR:   This is a portion of the program, is it?

MR SACKAR:   No, it is the 7.30 Report.

HIS HONOUR:   The whole 30 minutes?

MR SACKAR:   No, it is the relevant segment of that report, your Honour. 
EXHIBIT G - VIDEO TAPE OF THE SEGMENT OF THE ABC CHANNEL 2 7.30 REPORT PROGRAM FOR 28.2.95, BEING THAT REFERRED TO ON PAGE 16 OF THE COURT OF APPEAL JUDGMENT

MR REYNOLDS:   Your Honour, I do not think it is necessary for me to formally tender these documents but both the ‑ ‑ ‑ 

HIS HONOUR:   Well, let us see if Mr Sackar has got any more.  Do you have any more to tender?

MR SACKAR:   No, I do not, your Honour, thank you.

MR REYNOLDS:   I am sorry, your Honour, I knew what my friend was going to tender.  I do not think I need formally tender these documents but both the further amended statement of claim in the proceedings and the amended defence were before his Honour at first instance and before the Court of Appeal. 

HIS HONOUR:   Yes, they are referred to in the Court of Appeal judgment.  It would be useful to have them I suspect.

MR REYNOLDS:   They are documents which would normally be in the application book and on that basis I hand them up. 

HIS HONOUR:   Well, I will mark them.

MR REYNOLDS:   I am sorry, my friend reminds me that ‑ ‑ ‑ 

HIS HONOUR:   Will they be in Mr Sackar's bundle, exhibit F.

MR REYNOLDS:   My friend reminds me they are part of that bundle and it is unnecessary for me to hand them up.

MR SACKAR:   Your Honour, I think it is items ‑ ‑ ‑ 

HIS HONOUR:   6 and 7 - or 8.

MR SACKAR:   Yes, perhaps 7 and 8, your Honour.

HIS HONOUR:   7 and 8, amended defence of 15 December, further amended statement of claim ‑ ‑ ‑ 

MR REYNOLDS:   Your Honour, just to final administrative  matters, first of all I forgot to give your Honour a reference to section 18A of the Royal Commission's Act.

HIS HONOUR:   Yes, I have got that.  Not only section 18A, it is 18B as well, is not it?

MR REYNOLDS:   Yes, your Honour. 

HIS HONOUR: But anyhow I have the pamphlet. I also have the Defamation Act 1974 as amended.

MR REYNOLDS:   Your Honour, one final matter, I just, for more abundant caution, want to check that the tape that your Honour saw this morning included the uncensored version.  So what I would ask your Honour to do with respect, is to go to Mr Potter's affidavit, the folder, behind tab 11, and if I can just indicate briefly, your Honour, behind tab 11 is the so-called uncensored version.  Behind tab 12 is the censored version and behind tab 13 ‑ ‑ ‑ 

HIS HONOUR:   Censored part 1.

MR REYNOLDS:   That is correct, your Honour.  Sorry, uncensored part 1 is behind tab 11.  Censored part 1 is behind tab 12 and part 2 is behind tab 13.  But your Honour, there is one important matter to note about part 2 and this is a matter of agreement between the parties, that if your Honour goes to tab 13 line 208 at page 13, there is no dispute that The Beat there is my client and that, in fact, this is a censored version of part 2 and that on the uncensored ‑ ‑ ‑ 

HIS HONOUR:   Everyone keeps using the word "censored", they mean edited.

MR REYNOLDS:   The edited version.

HIS HONOUR:   Governments censor things; people edit them.  Yes?

MR REYNOLDS:   And your Honour will notice there there is mention of Mr Westwood, who is the gentleman referred to on the previous page, at page ‑ ‑ ‑ 

HIS HONOUR:   Well, I noted when looking at it that there was a Beat there, and the agreement is that it is the name of your client.

MR REYNOLDS:   That is so, your Honour, and that it is mentioned in conjunction with Mr Westwood's name and your Honour will see what is said about him on the previous page.

HIS HONOUR:   And Mr Ventin, obviously.

MR REYNOLDS:   Yes, he is quite a fellow.  Your Honour, if I can take your Honour to tab 11, I just want to check that your Honour has, in fact, seen the unedited version.  To check that can I respectfully ask your Honour whether your Honour saw lines 18 to 29 on the tape and another quick check, your Honour, would be to go to lines 143 following. 

HIS HONOUR:   Yes.

MR REYNOLDS:   If your Honour saw a tape with those passages then there is no doubt that your Honour saw the unedited version.

HIS HONOUR:   Lines 152 and following, they have been removed from the edited version and the accompanying visuals. 

MR REYNOLDS:   I think that is right, your Honour. 

HIS HONOUR:   Yes, all right.

MR REYNOLDS:   Your Honour, yesterday I made certain comments about the nature of the application before your Honour and I think I described my application as an application for an injunction, itself pending an application for an injunction, pending an application for special leave to appeal.

HIS HONOUR:   Yes, well, one of those steps has been elided.

MR REYNOLDS:   I think, and this is what I was going to say, your Honour, there is practically speaking no point to draw the distinction so this is really an application for an injunction pending an application to this court for special leave to appeal and I am proceeding on that basis, your Honour.

HIS HONOUR:   Leave to appeal from two courts; two applications I suppose.

MR REYNOLDS:   Your Honour, I will explain that in due course but I am going to suggest that either alternative is available to the court and consequentially to my client, but I will explain that in due course.  I should begin by reminding your Honour of the principles to be applied.  Can I begin by reminding your Honour of your Honour's own judgment delivered only very recently on 4 April in the matter of De L v Director-General of the New South Wales Department of Community Services and Another.  In that case your Honour considered the principles applicable to the granting of a stay pending an application for special leave to appeal and at the top of page 4 your Honour quoted a statement from a judgment of the Chief Justice in the Jennings Construction case. Your Honour said that there were four ‑ ‑ ‑ 

HIS HONOUR:   What is the citation of Jennings?

MR REYNOLDS:   I am sorry, your Honour, it is not on our list.  It is in (1986) 161 CLR page 681 and the particular passage is at page 685.  Your Honour there set out four relevant factors deriving from the Chief Justice's judgment, the first being whether there is a substantial prospect that special leave to appeal would be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and, fourthly, where the balance of convenience lies. 

Your Honour, it is my submission that those four factors are equally relevant to the application that is before your Honour.  Now, having said that ‑ ‑ ‑ 

HIS HONOUR:   There is this about it, though, as I got the Registrar to draw the attention of the parties to Gaudron Js decision in Mr Elliott's litigation.  It is a slightly different focus when it is an injunction.

MR REYNOLDS:   That is so, your Honour, and I should make it clear that I am going to suggest that your Honour notwithstanding what Gaudron J has said in that case, has a very broad discretion in exercising your Honour's inherent jurisdiction, obviously to do justice in the particular application before your Honour and although one may articulate relevant factors and we concede those four factors are relevant, your Honour's discretion ought not in my submission to be hidebound by previous decisions or the articulation of special tests, difficult hurdles which an applicant has to hurdle.

Can I come then, your Honour, to an earlier decision of Deane J as his Honour was then, in Attorney-General for the United Kingdom v Heinemann Publishers Australia Pty Ltd, reported in (1987) 61 ALJR 612, a case your Honour will remember well and, in particular, at page 614 there is a reference there in the first column at about letter (c) to (d) to the Jennings Construction case and his Honour comments that:

Those same principles lead to the conclusion that the court has jurisdiction to grant positive injunctive relief to preserve the subject matter of litigation pending the hearing of an application for special leave to appeal.

HIS HONOUR:   What is the positive injunctive relief his Honour is - does that mean mandatory relief.  Why does it have the word "positive" in that phrase?

MR REYNOLDS:   Your Honour, with all respect to his Honour, it does seem to be a slight misnomer because if your Honour goes briefly to the headnote, for example, at page 612 at about (c), it is clear that they are talking there about an injunction restraining publication. 

HIS HONOUR:   Yes, that is what I thought.

MR REYNOLDS:   Your Honour perhaps thought that because of the mandatory nature of the injunction there was some special test being articulated, but I think on a reading of his Honour's reasons that is not what his Honour is saying.  His Honour refers there at about (f) saying that the jurisdiction is an extraordinary one.

HIS HONOUR:   Yes, I see that.

MR REYNOLDS:   And that is the comment which ‑ ‑ ‑ 

HIS HONOUR:   Which Gaudron J picks up in Elliott.

MR REYNOLDS:   That is so but I should point out, your Honour, at the bottom of the page, that his Honour says that, "The jurisdiction to grant", he says again, "positive injunctive relief is a fortiori".  Now, your Honour, if it is necessary for me so to submit, I submit that is not with all due respect a correct statement in this sense that your Honour is exercising a very broad discretion in that there is no reason a priori to determine that even more special circumstances need to exist on an application for an injunction. 

Your Honour has mentioned the decision of Gaudron J in Elliott v Seymour in 68 ALJR 173. If your Honour goes to page 175, the last paragraph on the page.

HIS HONOUR:   What, beginning at (c)?

MR REYNOLDS:   No, I am sorry beginning at about (f), "It was argued for the applicants".  Your Honour will see the relevant passage is down there.

HIS HONOUR:   And over the page as well.

MR REYNOLDS:   Down to about (d).  Her Honour refers there to a "probability that final relief will be obtained, probability that special leave would be granted".  I would respectfully suggest that her Honour is using that particular word in the sense of a serious question.  So that your Honour taking all of those passages, it may be that this is, in the present case, academical, but I do not want to mislead your Honour about the state of the authorities on the application.

There is also, as your Honour knows, and Mr Nicholas' reference to it yesterday, the decision of Kirby J as a judge of this court in Bryant v Commonwealth Bank reported in (1996) 70 ALJR 306.

HIS HONOUR:   That is a stay case, is it?

MR REYNOLDS:   It is a stay case, your Honour, but there is what I submit with respect, is a useful collection of, or summary of the applicable legal principles from pages 308 to 309 and in the context of the submission that I am making, I would draw your Honour's attention particularly to paragraph 3, which contains a reference to a decision of the New South Wales Court of Appeal in Alexander v Cambridge Credit. 

Your Honour will recall that prior to that decision in 1995, that the authorities in this state indicated that it was only in very exceptional circumstances that one could obtain a stay pending an appeal.

HIS HONOUR:   I must say I may part company with his Honour there.  I do not think what happens in intermediate courts of appeal in Australia is particularly significant as to what happens here.

MR REYNOLDS:   It may well not be, your Honour, but as I say in the context of the submission I am making ‑ ‑ ‑ 

HIS HONOUR:   Simply because it comes here having gone through the intermediate court of appeal.  There has been two stops, note one.

MR REYNOLDS:   I concede that, your Honour.

HIS HONOUR:   Now, is there anything else you wanted to get out of this?

MR REYNOLDS:   Not really, except to remind your Honour that on page 309, the first column (d) that when his Honour articulated those four factors your Honour quoted in L's case, that they were premised upon the first words in that quotation, namely, "In exercising the extraordinary jurisdiction to stay", so that in the end those factors are the factors that the court takes into account in determining whether there are special circumstances which warrant the granting of either a stay on the one hand or an injunction on the other.

Your Honour, I am going to focus my submissions on the four matters that your Honour referred to in L's case and I would like ‑ ‑ ‑ 

HIS HONOUR:   It is not me, it is the Chief Justice.

MR REYNOLDS:   But your Honour quoted from the Chief Justice in L's case, and I would like if I may to try and dispose of the second, third and fourth matters fairly briefly as I think your Honour did in L's case.  The second relevant factor is whether a stay had been sought below.

HIS HONOUR:   Yes, well you explained this position yesterday.

MR REYNOLDS:   Mutatis mutandis.

HIS HONOUR:   And Mr Nicholas agreed with your account of what had happened?

MR REYNOLDS:   That is so, your Honour.

MR REYNOLDS:   Secondly, whether the grant of a stay will cause loss to the respondent.  There is, of course, no evidence of that before your Honour, and thirdly, on the question of balance of convenience, given that there is no loss, which is in evidence, that the respondent would suffer and that there is, I submit, a real prospect of the interference with or destruction with my client's fair trial of his defamation proceedings and if it be necessary for me further to submit, with the investigation and inquiry into his alleged activities by the Royal Commission and also that the injunction is necessary to preserve the subject matter of the proceedings, pending the appeal, I would ‑ ‑ ‑ 

HIS HONOUR:   Yes, now, that is a slightly difficult concept in this case, I mean.  What is one talking about when it talks about "the subject matter of the proceedings"?  Firstly, what are the proceedings?

MR REYNOLDS:   Your Honour knows that I am glossing over the concept in the submission and I return to it in this way, it is difficult to articulate in precise terms what the subject matter of the proceedings is within that proposition.

HIS HONOUR:   Relevantly for this morning here.

MR REYNOLDS:   Relevantly for this morning it is my client's right to obtain injunctive relief so as to enable two things to take place.  (1) a fair trial of his defamation proceedings to occur untrammelled by what I shall later call trial by the media, and, secondly, that his right to have the Royal Commission investigate and inquire into his alleged acts of pederasty, again without that inquiry being trammelled by this sort of broadcast.

HIS HONOUR:   Well, the alleged acts are acts of prostitution with minors.

MR REYNOLDS:   Not only that, your Honour, the formulation your Honour mentions would include pederasty generally because that simply assumes there is no exchange of money, or does not raise the question of money. 

HIS HONOUR:   The material does, does not it?

MR REYNOLDS:   It does, some of it does, but not all of it is predicated upon the exchange of money between the alleged victim and my client.

HIS HONOUR:   Yes, but the alleged victims all assert, I think, that these events happened in circumstances where they were homeless and destitute.

MR REYNOLDS:   Your Honour, on the question of balance of convenience, the question of my client's prospects of obtaining special leave would also be relevant on that question, and that is the issue that I propose to ‑ ‑ ‑ 

HIS HONOUR:   Now, the application you had before Levine J and from which you seek special leave as another approach, that was an application for an injunction to restrain the transmission of this program pending the trial of the defamation action.

MR REYNOLDS:   That is so, your Honour. 

HIS HONOUR:   That defamation action itself arising out of an earlier transmission by Mr Sackar's client last year.

MR REYNOLDS:   That is so, your Honour. 

HIS HONOUR:   That is the subject matter of the litigation, relevantly that application to Levine J.

MR REYNOLDS:   That is what my client really wants to preserve.  So it is metaphysically a form of subject matter, but it is not tangible.

HIS HONOUR:   So implicit in that is the idea that the utility of any such injunction will be diminished, if not destroyed, if before there is any appeal from the judge's refusal, the transmission had taken place?

MR REYNOLDS:   That is so, your Honour.  Your Honour has already raised with me the obvious distinction between the application for leave to appeal from his Honour's decision at first instance and the application to appeal from the decision of the Court of Appeal.  I am going to submit that there are real prospects of success that my client would have on an application for special leave to appeal from either or both decisions.  Can I deal with the appeal from Levine J first, and I am going to submit in due course that that would be, or is likely to be, the course which might commend itself to this court on the application for special leave?

Your Honour, can I begin by making this concession, that it would be an unusual course for this court to grant special leave to appeal from the decision of a single judge of the New South Wales Supreme Court.  However, your Honour, I submit that in unusual circumstances this court can and will grant special leave to appeal.  One species of unusual circumstance is where the intermediate court of appeal is itself bound by an earlier decision of that intermediate court of appeal, and, a second ‑ ‑ ‑ 

HIS HONOUR:   Sorry, can you just say that again, Mr Reynolds?

MR REYNOLDS:   When the intermediate Full Court is in the particular case already bound by one of its own earlier decisions.  Your Honour, I am absolutely certain that there is authority for that proposition because I have found it before but in the limited time ‑ ‑ ‑ 

HIS HONOUR:   I have been in cases where that has happened.  I do not know what force that has, but I can certainly remember it happening.

MR REYNOLDS:   There is certainly authority for it, your Honour.  There is also and I am less ‑ ‑ ‑ 

HIS HONOUR:   But it has to be said where there was some general importance in the point.

MR REYNOLDS:   Yes, your Honour, I concede that.

HIS HONOUR:   That was the first example.

MR REYNOLDS:   And I am less certain of this as a question of authority, if there was a binding determination of this court which ‑ ‑ ‑ 

HIS HONOUR:   Which was sought to re-open.

MR REYNOLDS:   Correct, and that there were real and substantial grounds for so doing.

HIS HONOUR:   (a) that it would be reopened, and (b) if reopened, it would succeed.

MR REYNOLDS:   Well, a real prospect that it would succeed.

HIS HONOUR:   Yes, there are two steps.

MR REYNOLDS:   One cannot simply say after a decision at first instance, I say the decision of the High Court in Xs case is wrong and I am therefore entitled to appeal to the High Court.  I concede that.  Perhaps the reason, or one of the reasons for that general principle, is that there is little utility in parties being put to the extra expense and inconvenience of appealing to the intermediate court of appeal in those circumstances.

Your Honour, my submission is that there are unusual circumstances in this case which would warrant the grant of special leave to appeal from Levine J.  Can I proceed to indicate what those special circumstances are?

HIS HONOUR:   Yes.

MR REYNOLDS:   The first special circumstances, your Honour, is this, that the New South Wales Court of Appeal, although its decision was in strict terms interlocutory, has given in substance a decision in this case on the merits of the appeal.  The court has simply held that for one particular reason, the appeal has no real prospects of success.

HIS HONOUR:   That reason being, what, as you see it?

MR REYNOLDS:   Essentially this your Honour, that the publication of these tapes, the court has held, has no real tendency to interfere with either my client's defamation proceedings, or alternatively with the inquiry into the allegations against my client in the Royal Commission and that is a very real difficulty which I face in this court and which I will have to deal with in due course.  The point that I am making is that in substance the reasons that ‑ ‑ ‑ 

HIS HONOUR:   I hear what you say about that.  There may be some strength in it but it is a double-edged sword in a way as you have just indicated.

[11:10am]

MR REYNOLDS:   It is, your Honour, and I have to face up to that.  My second submission is that this case involves a number of highly significant questions which either individually or collectively would ultimately warrant a grant of special leave in this case.

HIS HONOUR:   Well, you say it involves them, but should they really be determined?

MR REYNOLDS:   Your Honour, I am going to have to deal with that later on in my submissions, I am simply ‑ ‑ ‑ 

HIS HONOUR:   But I mean it is double interlocutory way?

MR REYNOLDS:   Your Honour, I have to deal with that as I say.

HIS HONOUR:   What I am really asking you is and I know you will come to it, but what I am really marking at this stage is this, both the primary Judge in ergo the Court of Appeal were looking at an interlocutory application.

MR REYNOLDS:   That is probably so, your Honour.

HIS HONOUR:   For a significant miscarriage in the principles applicable as to interlocutory applications, quite distinct from the factor that goes in of the prospects of success and substantive issue at a trial.

MR REYNOLDS:   Your Honour, I do have to put a submission on that but the submission I will be putting is that one cannot ‑ ‑ ‑ 

HIS HONOUR:   I mean the courts may decide substantive legal questions on interlocutory applications or they may not, but there is no real rule about it, but there are interlocutory rules which can obviously only ever be decided at an interlocutory hearing.  What I am really trying to find out is, is there any point in that second category, and if so, what?  You do not need to tell me now.

MR REYNOLDS:   Your Honour, I do not think so, is the short answer, but your Honour, if I can anticipate things a little, I really need to breach what I will call metaphorically a bulkhead against me which is that question of tendency and if I can show I submit, that there is an important question of principle that arises on that issue such as to indicate that there is a real prospect that the decision of the Court of Appeal was wrong in principle, not on the facts, in principle, then once I have breached that bulkhead as I have put it, there are a number of significant issues which this court would and should entertain on a final hearing of the appeal.  Now that is where I am going, your Honour.

HIS HONOUR:   All right, you were telling me about Levine Js judgment and I deflected you.

MR REYNOLDS:   Your Honour, really I was trying to indicate the unusual circumstances and my final point is that I submit that if the judgment of the New South Wales Court of Appeal is treated as it were as a final appeal on the merits and it is capable of that categorisation then I submit that special leave would have been granted or there is a real prospect that leave would have been granted from that decision.  In other words the decision that your Honour has that the document from the Court of Appeal, if one excises the words about the interlocutory test, amounts to a decision on the merits of my clients application.

HIS HONOUR:   Yes, I hear what you say, I cannot understand the force of it.

MR REYNOLDS:   Your Honour, at the end of the day what I have to appoint to and as I have said I concede this is an error of principle and an error of principle on a question important enough to justify the grant of special leave to this court and I have indicated the problem that I have and I have tried to be up front about it but there is that finding.

Your Honour, can I take your Honour to the judgment of the Court of Appeal and your Honour will appreciate having read both judgments that things have moved pretty swiftly.

HIS HONOUR:   Yes, can I just raise this with you and I am sorry to deflect you from your course but it is best to be done this way I think.  The Court of Appeal did not embark on the question of standing in relation to Royal Commission content.

MR REYNOLDS:   No, they did not.

HIS HONOUR:   The primary Judge did.

MR REYNOLDS:   Yes, he did and he held that my client had no standing.

HIS HONOUR:   Yes, what do you say about that?

MR REYNOLDS:   I say a number of highly important ‑ ‑ ‑ 

HIS HONOUR:   Well, tell me now.

MR REYNOLDS:   Your Honour I say that my client had standing on three basis.

HIS HONOUR:   Of course the real question is, standing to seek what relief I suppose.

MR REYNOLDS:   Injunctive relief.  Does your Honour want me to divert and deal with that whole question now?

HIS HONOUR:   Yes, if you will.

MR REYNOLDS:   Is that convenient?

HIS HONOUR:   Yes it would assist me.

MR REYNOLDS: Your Honour, might I start by referring your Honour to a decision of the New South Wales Court of Appeal called John Fairfax Publications and Doe which is reported in 1994 37 NSWLR 81. Your Honour will see that that was an application by a person as your Honour will see from page 83E:

By a private individual to restrain a newspaper publisher from publishing a record ...(reads)... contrary to the Telephonic Communications and Deception Act.

and I add, your Honour, where it would also be a contempt of court.

Your Honour the first basis upon which the applicant in that case was held to have standing is a ‑ ‑ ‑ 

HIS HONOUR:   Well, there is a Gourier question.

MR REYNOLDS:     There is indeed, your Honour.  Does your Honour wish me to deal with that immediately?

HIS HONOUR:   But what does this case decide, there is some uncertainty about what it actually decides is there not?

MR REYNOLDS:   Yes, there is a narrow ratio and there is a wider proposition.

HIS HONOUR:   Well, I will have to read it to myself over the weekend, but what is the narrow view and what is the ‑ ‑ ‑ 

MR REYNOLDS:   The narrow one is, your Honour will see ‑ ‑ ‑ 

HIS HONOUR:   Is there a particular passage which encapsulates it?

MR REYNOLDS:   Yes, page 84C in the Judgment of the Chief Justice who said this:

Where the threatened breach of the law consists of conduct which at the same time ...(reads)... of pending criminal -

and I interpolate or civil proceedings:

- then that person has the necessary special interest which operates ...(reads)... may enforce the criminal law.

So, your Honour, we say that this case is on all fours because my client is seeking to restrain a publication which is (a) a contempt of court, namely of civil action in which he is a party and secondly, a breach of this statute namely section 18A of the Royal Commissions Act.

HIS HONOUR:   But can one divorce, this is what I mentioned to you before, can one divorce 18A from 18B, I mean this is a special creature of contempt.  Contempt is an attribute of judicial power it has got nothing to do with the executive, it has got nothing to do with Royal Commissions.  If the legislature deems it is here under 18A and 18B.  Now, does it follow from 18B that contempts can only be punished in accordance with that procedure.  In other words, that the judicial power is only enlivened by the activity of the Commissioner?

MR REYNOLDS:   Your Honour, it would be ‑ ‑ ‑ 

HIS HONOUR:   But then how does that connect with the Gourier question?

MR REYNOLDS:   All right, can I say this, your Honour, section 18A enacts an offence.  There is jurisdiction in a superior court of record in some circumstances ‑ ‑ ‑ 

HIS HONOUR:   When you say it enacts an offence ‑ ‑ ‑ 

MR REYNOLDS:   It says he is guilty of contempt of a Commission.  There is at least a serious question, your Honour on whether it enacts an offence.

HIS HONOUR:   Well, it does not specify any punishment.

MR REYNOLDS:   No, it does not, but ‑ ‑ ‑ 

HIS HONOUR:   You will have to get that out of B.  Does it come from anywhere else than B, the punishment?

MR REYNOLDS:   I do not think so, your Honour.  But, your Honour, because a superior court has that jurisdiction it would require I would submit very clear words to oust the court's jurisdiction to enjoin in some circumstances the Commission of that offence.  The real question here is, does my client have the standing to enjoin the Commission, of that offence.

Your Honour, Gleeson J ‑ ‑ ‑ 

HIS HONOUR:   In the face of the statute which creates the creature.

MR REYNOLDS:   That is so, your Honour.

HIS HONOUR:   It is not a general law creature.

MR REYNOLDS:   Provides for punishment but does not I submit, purport to oust the jurisdiction of a superior court to grant injunctive relief.

HIS HONOUR:   Well, there would not be any.

MR REYNOLDS:   I am sorry.

HIS HONOUR:   You say, purports to oust but it becomes a circlet problem.

MR REYNOLDS:   That assumes ‑ ‑ ‑ 

HIS HONOUR:   It certainly has to be cut, I agree.

MR REYNOLDS:   It assumes that the court does have that jurisdiction to begin with, I concede that, but cases such as Doe make it clear that in some circumstances and I underline those words, the court may have that jurisdiction.

Your Honour is, with respect, no surprisingly perhaps more interested in the Gourier proposition and can I deal with that by ‑ ‑ ‑ 

HIS HONOUR:   Well, I am interested in it because it is essential to your argument I hope.

MR REYNOLDS:   Your Honour, I was submitting that it was a mere academia interest ‑ ‑ ‑ 

HIS HONOUR:   Now page 84 was the Chief Justice's narrow formulation, is there a broader one?

MR REYNOLDS:   Yes, your Honour there is.  Can I take your Honour to page 99 and following of the judgment of the ‑ ‑ ‑ 

HIS HONOUR:   That is the President's judgment.

MR REYNOLDS:   The President's judgment, and Mr Hughes who appeared before John Fairfax in that case began, your Honour will see at page 99F with a citation of Gourier's case and there is reference on page 100B to the well-known statement of Lord Wilberforce in that case which would prima facie be against my client.

HIS HONOUR:   Now, as far as I am concerned and that is why I took you to it really.  The law as far as I am concerned as it is set out by Sir Anthony Mason in Fairfax which is set out on page 100F and G.

MR REYNOLDS:   Yes, your Honour, there is reference your Honour ‑ ‑ ‑ 

HIS HONOUR:   Inadequate penalty immergence, that sort of case.

MR REYNOLDS:   That is so, at letters D to G.  Your Honour will see there is reference to learning and to Mason Js decision and Kirby J at the bottom of that page 100 ‑ ‑ ‑ 

HIS HONOUR:   Now this may not abound in New South Wales Court of Appeal.

MR REYNOLDS:   No, but ‑ ‑ ‑ 

HIS HONOUR:   I would have thought it carried a certain amount of weight.

MR REYNOLDS:   Your Honour, his Honour, I think at least implicitly acknowledged that it carried some weight and then proceeded to distinguish the proposition.  Can I indicate where the point of departure between Kirby J and Sir Anthony Mason is to be found in his Honour's judgment.  At page 101F his Honour says that:

In Gourier, it was acknowledged that an exception from the general rule ...(reads)... nor that of a busy body.

And of course that is the rational behind the rule as articulated by Lord Wilberforce and applied by Sir Anthony Mason but his Honour in that passage really flecks out a qualification which, as his Honour points out, was itself mentioned in Gourier, that is, a special interest, perhaps a very special interest.

Your Honour, while I am on that topic and this is implicit really in what your Honour has been putting to me, I would submit that that question of standing to restrain the Commission of a contempt of a Royal Commission is ultimately an important enough question ‑ ‑ ‑ 

HIS HONOUR:   Well, I do not think it is in the sense that as far as I am concerned, Sir Anthony Mason has decided.

MR REYNOLDS:   Well, your Honour that ‑ ‑ ‑ 

HIS HONOUR:   And anyone who came up here to deny that proposition would be pushing a fairly heavy barrow, frankly.

MR REYNOLDS:   Well, your Honour, there is as that case makes clear ‑ ‑ ‑ 

HIS HONOUR:   Not just because the office of the person who said it, but because of his reputation as probably the most distinguished equity lawyer in this generation and public lawyer in this generation.

MR REYNOLDS:   Your Honour, can I say two things in response to that.  The first is ‑ ‑ ‑ 

HIS HONOUR:   And something which he is joined by Lord Wilberforce who occupies a similar position in Britain.

MR REYNOLDS:   Your Honour, the first thing is that his Honour was purporting to apply Gourier and as Kirby J, now a judge of this court pointed out, the qualification he there applied was itself mentioned in Gourier.  So, one would be entitled to develop an argument ‑ ‑ ‑ 

HIS HONOUR:   But that is the Boyce qualification.

MR REYNOLDS:   I am sorry, your Honour?

HIS HONOUR:   That is just Boyce's case.

MR REYNOLDS:   Yes, your Honour, but I submit that this is a Boyce type case, as was those cases.  I say that it is really on all fours.

HIS HONOUR:   Boyce applies to a wider universe which just includes statutory prohibitions.

MR REYNOLDS:   That is so, your Honour, but your Honour will ‑ ‑ ‑ 

HIS HONOUR:   This is the criminal law ‑ ‑ ‑ 

MR REYNOLDS:   As your Honour knows well, there are statutory prohibitions which amount to offences ‑ ‑ ‑ 

HIS HONOUR:   Of course that is what I am saying.

MR REYNOLDS:   ‑ ‑ ‑ and they have been held, and this is the argument ultimately I would want to develop on the special leave application, I would submit that the Boyce principles the Onus and Alcoa line of authority ought to be extended to the situation at least before the court in this case.

HIS HONOUR:   Yes, all right, now is there anything else you want to put on this question I raise with you and diverted you?

MR REYNOLDS:   About standing?

HIS HONOUR:   Yes.

MR REYNOLDS:   Only this, your Honour, that there is a third submission that I submit could be put which is that because this section 18A brings about a situation where so far as the legislature can, Royal Commissions are placed on all fours with courts and if a private individual as standing to restrain a Commission of a contempt of court viz-a-viz a case in which he is a party, then by like reasoning if the Royal Commission is investigating allegations about him and is in the process ‑ ‑ ‑ 

HIS HONOUR:   What evidence is there of that actually, that there is such an investigation?

MR REYNOLDS:   Your Honour, there is a huge volume of it in Mr Potter's affidavit and I do not think ultimately ‑ ‑ ‑ 

HIS HONOUR:   It is said to be so in the Court of Appeal judgment but I can assume that.

MR REYNOLDS:   Yes, your Honour.  Your Honour will see in the black folder the folder in evidence that there is reference to ‑ ‑ ‑ 

HIS HONOUR:   That is exhibit F.

MR REYNOLDS:   As your Honour reminds me, exhibit F.  There is included there behind tab 3 a copy of a statement by the Royal Commissioner about the - what I shall refer to as the Peterist allegations, I am not in this context going to take your Honour to anything more than a 10 line passage on page 21951, that is the second page at lines 36 to 46 where his Honour sets out what the Commission's aim is in the context of allegations of Peter Philair and Peter Asti and at lines 40 to 41:

It is first to identify significant offenders -

And at line 43 to 44:

To come up with appropriate recommendations for their prosecution.

Now, your Honour, since these allegations are currently before the Royal Commission and the Royal Commissioner is looking at those two issues, I submit that by a very close analogy with the rules of standing on contempt that my client has standing to enjoin a breach of section 18A. In that regard, your Honour, can I give your Honour a brief reference on standing and contempt to the decision of the New South Wales Court of Appeal in Waterhouse and the ABC 1986 6 NSWLR 733, where the Court of Appeal held that a private litigant had standing to restrain the Commission of a contempt of court.

We say that it is relevantly speaking, no much different.

So they are the three bases upon which were this court to grant an injunction, pending special leave, that my client would want to raise with this court on the special leave application.

HIS HONOUR:   I am not trying to hurry anybody, but how much longer do you think you will be, Mr Reynolds?  I ask you because I have got in mind the temporal duration of the undertaking.

MR REYNOLDS:    Your Honour the way things are currently going, I am going to be at least until lunch time.

HIS HONOUR:   Yes, all right, how long do you think you will be, Mr Sackar?

MR SACKAR:   Your Honour, I would hope to finish within 30 to 45 minutes perhaps.

HIS HONOUR:   So, I will finish comfortably this afternoon?

MR SACKAR:   Yes, certainly, your Honour, I think so.

HIS HONOUR:   On that footing I wish to consider my decision over the weekend and give an oral judgment on Monday morning and it is now 11.30, it might be useful if Mr Angus could get some instructions about the extension of that undertaking.

MR SACKAR:   I shall your Honour, immediately.

HIS HONOUR:   To Monday morning and then after the decision well things will fall one way or the other.

MR SACKAR:   Yes, your Honour.

HIS HONOUR:   All right, there is no need to do it right now.  Yes, Mr Reynolds?

MR REYNOLDS:   Sorry, your Honour.  Your Honour I think your Honour with respect diverted me to the question of standing and my come back then to what amounts on this application to my central submission which is that there is an error of principle in the reasons for judgment of both the Court of Appeal and of the single judge and I begin by taking you Honour to the decision of Levine J at page 11 of his judgment, and at about 8 lines down, when your Honour reads these reasons it is clear what his Honour does is to summarise the arguments that were being made on behalf of the plaintiff then summarise the arguments on behalf of the defendant and then to provide fairly brief reasons as to why the defendant should prevail on the application and his Honour is picking up there, no doubt, some of his Honour's notes about unpopular cause and I will explain that in a moment.

Your Honour will see at about point 6 he says:

Particular alliance was placed by me on certain authorities.

And for present purposes, the two important authorities that I want to mention are the Commercial Bank of Australia and Preston in the Attorney General and Times Newspapers ‑ ‑ ‑ 

HIS HONOUR:   Well, I am familiar with the Times Newspapers, I am not familiar with the Commercial Bank and Preston though.

MR REYNOLDS:   Well, your Honour, perhaps if I can take your Honour to that because there was extensive citation from that case in argument together with extensive citation of the decision of the House of Lords in Sunday Times case.

HIS HONOUR:   The Sunday Times introduces Sir Frederick Jordon's Bread Manufacturers ‑ ‑ ‑ 

MR REYNOLDS:   That is one of the reasons it is important, your Honour.

HIS HONOUR:   ‑ ‑ ‑ theory.  Was there much discussion of Hinch, the decision of this court and Hinch?

MR REYNOLDS:   No, there was not, your Honour.

HIS HONOUR:   Well, why?  Why do people rush to cite House of Lords cases when the decisions of this court which bind these people?

MR REYNOLDS:   Your Honour, I will explain that in a moment.  The short answer to your Honour's question is that there is no decision in this court which articulates what I will call the Sunday Times principle or adopts it or applies it so that it was necessary to ‑ ‑ ‑ 

HIS HONOUR:   What do you say the Sunday Times principle is?

MR REYNOLDS:   Well, your Honour, that is not easy to formulate in a line, but I will attempt to do so, it is that there can be, well your Honour I would really rather avoid trying to do that in a single proposition, not because - I will attempt to do that in due course your Honour, but I want to take your Honour through the speeches in that case, but I would first refer your Honour to a decision ‑ ‑ ‑ 

HIS HONOUR:   I suggest there is no proposition.

MR REYNOLDS:   Well, your Honour that two may well be correct.

HIS HONOUR:   I invited you to take me to Preston.

MR REYNOLDS: In Commercial Bank of Australia and Preston reported in 1981 2 NSWLR 554 is a statement which I quoted to both his Honour and the Court of Appeal. At the top of page 567 where his Honour refers to the Sunday Times case which he says are unanimous, the speech is unanimous on the point:

It is a far reaching nature of its side effects which make ...(reads)...  objectionable -

HIS HONOUR:   I am sorry, letter?

MR REYNOLDS:   A, 567A:

- in that to permit such publications will permit also other ill informed slap dash ...(reads)... and unpopular causes.

That is what Levine J picked up in his notes, I suspect will fair very badly if a trial by Newspaper is encouraged and there were then references to the speeches all of them in the House of Lords which I duly took his Honour to and your Honour, I confess that it is usually inappropriate to take the court to any detail of a decision, I mean, to quote extensively from judgments, but I do wish to take your Honour to a decision in the Sunday Times case reported as Attorney General and Times Newspapers because it is the focus of my entire submission on the critical aspect of this application.

The report in that case is 1975 Appeal Cases, 273 and again I will not actually read these out to your Honour unless your Honour wants me to but if your Honour goes to page 300, the whole of that page.

HIS HONOUR:   This is the Thalidomide case was it not?

MR REYNOLDS:   Yes, your Honour.  Your Honour will see what I am getting at when your Honour sees that at letter E on page 300 it talks about prejudging a case in a manner likely to affect witnesses, and that was certainly one of the submissions that was put here.  It says:

Very little has been said about the wider proposition the trial by newspaper is intrinsically objectionable.

HIS HONOUR:   Well that assumes one knows what trial by newspaper means.

MR REYNOLDS:   It does your Honour, but your Honour I submit that there is at least a serious question and I will come to that designation in a moment that there is trial by newspaper within that proposition in this case where one has at least four witnesses coming out and giving versions of what they would give ultimately as evidence on justification, viz-a-viz a criminal offence at the ultimate trial.  So that whatever the leaps and bounds of this principle be, your Honour, my client is able to point to it in this case.

HIS HONOUR:   I think it says in the script that they had made statutory declarations.

MR REYNOLDS:   Indeed and here are the witnesses, one, two, three, four, etcetera.

Your Honour at page 304 perhaps the whole of that page and over to page 305D.  I will not read all of that to your Honour but if your Honour reads down to 305D your Honour will see what Lord Morris thought.

Lord Morris' is important because his statement was quoted by the Chief Justice in this court on this precise question and I will be submitting to your Honour in due course that the so called Sunday Times principle has been adopted by at least two justices of this court, for Brennan J and second Deane J.

Your Honour, Lord Diplock at page 309 from about letter B over to the whole of the next page that is 310 and down to the bottom of page 310, page 320 is Lord Simon, the whole of that page and the whole of 320, 321 and over to 322.

If I just mention one passage briefly, your Honour, at 322A, his Honour talks there about an inherent danger of interference with the due course of justice ‑ ‑ ‑ 

HIS HONOUR:   What is his Lordship saying?

MR REYNOLDS:   322A he says:

There is an inherent danger of interference with the due course of justice.

in the case of the Civil Aviation Authority v the Australian Broadcasting Corporation which is an unreported decision of the New South Wales Court of Appeal, which has been kindly provided for your Honour by my friends ‑ ‑ ‑ 

HIS HONOUR:   Yes, I have that.

MR REYNOLDS:   Kirby J discussed this principle and the discussion I am going to his Honour before the High Court references, if I may explain, because there is a convenient collection of authority.  If your Honour goes to page 19 of his Honour's judgment - I must say I do not know why this has not been reported, your Honour, but if your Honour goes to page 19 at about point 8, you will see the question of pre-judging.  It is sometimes called pre-judging, your Honour, it is sometimes called trial by media.  His Honour dealt with a submission there about pre-judgment or trial by media.  This was the interviewing a number of witnesses who were to give evidence at a coronial inquest. 

It was said to be an unwarranted usurpation of the function of a coroner's court and a punishable contempt.  There is then a reference, page 20, to the Sunday Times case and a summary briefly of it.  There are some quotations over the page, 21, to various statements which I have already quoted or referred your Honour to, then his Honour at the bottom of page 21 turns to a critique of pre-judgment contempt and he points out, at the top of page 22, that a majority of the European Court of Human Rights determined that that case breached the United Kingdom's obligation under the European Convention on human rights. 

Lord Diplock would no doubt have felt suitably chastened.  He then refers to that decision and to a couple of brief dicta in later cases.  I do not think I need trouble your Honour with page 23.  His Honour suggests, and this is the nub of the argument, in a way, at page 24.  He talks about the decision in John Fairfax and Sons v McCray which has been oft quoted and cited and applied not only in the High Court but elsewhere.  There is reference to a couple of cases where the distinction between the test in McCray and the Sunday Times test was adverted to, for example, at about point 8 his Honour on page 24 refers to a decision of Kay J in Victoria where his Honour reached the same result no matter which test was applied.

On page 25 his Honour refers to the Preston case and his Honour also talks - and I would like to focus on this for a moment - about various criticisms of the principle, at page 25 ‑ ‑ ‑ 

HIS HONOUR:   That assumes there is a fixed meaning ot the term trial by media as well.

MR REYNOLDS:  Your Honour, I concede that.

HIS HONOUR:   It is just a pejorative expression.

MR REYNOLDS:   Yes, it is.

HIS HONOUR:   It should not find its way into considered judgments.

MR REYNOLDS:  Yes, your Honour, one of the difficulties with it is to enunciate its precise metes and bounds, and I concede that.

HIS HONOUR:   I do not see why it has any metes and bounds, it is devoid of legal content. 

MR REYNOLDS:   Could I retreat to this submission, that whatever its metes and bounds, if there is an interview ‑ ‑ ‑ 

HIS HONOUR:   This is the point, you see.

MR REYNOLDS:   ‑ ‑ ‑ before witnesses about the evidence they are going ot give, then it comes within whatever this principle is.  Your Honour, I am conceding the lack of metes and bounds.

HIS HONOUR:   Full abeyance of the law of contempt.

MR REYNOLDS:   It is.  Now there are very important passages, your Honour, on page 26 where the President says at about point 2:

There has been no definitive rule laid down by the High Court of Australia in relation to the applicability of the Sunday Times case.

He then refers to Mason J who, in the BLF case, and I will come to that in a moment, did not really decide the question of Sunday Times but suggested that the rule would probably be confined to the situation where a prejudgment was designed to influence a party to litigation.  We would submit at any rate we would come within that principle.  But the most important reference, your Honour, is Brennan J who, as Kirby J there says:

Appears to have accepted the general rule as propounded in Sunday Times as a way to protect unpopular people and their causes from calumny and pre-trial prejudgment in the media.  This court is not bound to either approach by a holding of the High Court.

Just a few lines further down, your Honour, this is I would submit an important passage, he refers to the Australian Law Reform Commission being critical of this principle, and it is important that your Honour note why.  It is because:

That a prejudgment which shows no tendency to interfere with the administration of justice in a particular case...

HIS HONOUR:   Just pardon me a minute, I am just trying to get it into my head.

MR REYNOLDS:   Page 26, about point 6, this is their point‑ ‑ ‑ 

HIS HONOUR:   Just let me read it to myself.

MR REYNOLDS:   We have given your Honour reference to the Australian Law Reform Commission report but the passage he is talking about there ‑ ‑ ‑ 

HIS HONOUR:   That is all very interesting, that is just an agency of the executive really.

MR REYNOLDS:   But the important point for present purposes is that it is not necessary to come within this principle that an applicant for an injunction prove that there is prejudice, that is there is a tendency to interfere with current proceedings.  That is precisely the point that the Australian Law Reform Commission was making there.  Your Honour, that is why ‑ ‑ ‑ 

HIS HONOUR:   The Sunday Times case is taken on one footing as resting on some proposition that is protective of the institution in a general sense of a fair trial, even if in the particular case there may be no peril.  That in turn is criticised.

MR REYNOLDS:   Your Honour, that is why notwithstanding findings by the trial judge and by the Court of Appeal that there is no relevant tendency which we dispute, but for present purposes I do not want to refer to that.

HIS HONOUR:   So where do you say that means the Court of Appeal fell into error?

MR REYNOLDS:   They fell into error in that their Honours, notwithstanding ‑ ‑ ‑ 

HIS HONOUR:   In a particular passage?

MR REYNOLDS:   Yes, your Honour.  Again one is dealing here with a judgment which was reserved for about 24 hours and handed down ‑ ‑ ‑ 

HIS HONOUR:   Sir George Jessell used to hear cases that went a hundred days and then deliver an extempore judgment.

MR REYNOLDS:   Your Honour, Sir George Jessell was ‑ ‑ ‑ 

HIS HONOUR:   In a complicated commercial dispute.

MR REYNOLDS:   Although never in doubt also occasionally wrong your Honour will recall.

HIS HONOUR:   Yes, less often than some of his successors.

MR REYNOLDS:   At page 10 there is reference at about point 4 to this proposition - I should go back a bit, your Honour.  Their Honours refer at page 7 - there is a quotation from Attorney General and TCN Channel 9, itself picking up Hinch which itself picked up McRae's case ‑ ‑ ‑ 

HIS HONOUR:   That is what I had in my mind.

MR REYNOLDS:   That is so, your Honour, and I might add that that passage was not a passage that I took them to although I took them to all those passages in Times Newspapers and Prestons case, and over to page 10 their Honours are referring back to that saying:

In every case the court must apply that basic test, namely, whether publication would have a clear tendency as a matter of practical reality to interfere with the course of justice.

Your Honour, the problem is that that is, I submit, at least arguably wrong as a matter of law and that where their Honours have fallen into error is that their Honours have failed to appreciate, notwithstanding extensive citation of the Sunday Times case and the decision in the Commercial Bank and Preston, and I might add a great deal of reference to the Civil Aviation Authority and the ABC.  Their Honours failed to appreciate that their task did not begin and end with a discussion of that precise narrow question.

Your Honour, that is, if I may so submit, the bulkhead which I need to breach and I submit I have breached it by submitting that there is a prima facie case for consideration by this court of an application for special leave by reason of that error of principle.

Can I give your Honour a reference to those two decisions in this court which adopt this principle.  The first is a statement by Brennan in the Victoria and the BLF case which is reported in (1981) 152 CLR, the first page is page 25 and the relevant passage that I want to take your Honour to is at pages 167-168.  Your Honour will see that at page 167 at the top his Honour quotes Lord Diplock in the Sunday Times case.  He then talks about usurpation of the function of the court and he says:

What is prescribed is the public prejudging of a case or...

and this is important:

...the issues in it.  Whether or not the public discussion is likely to affect the judge...

or I interpolate:

...any other tribunal of fact.  In other words, whether or not there is any tendency to interfere with the administration of justice, and the reason is that his function is not to be usurped by public prejudgment.

His Honour goes on to adopt Lord Reid's speech in the Times Newspaper case.  Again, your Honour will see this is referred to in Levine J's judgment talking about unpopular people and unpopular causes, I add like my client, will fare very badly.  Further down the page:

If the public mind is swayed to a finding in favour of one party the protection which scrutiny would ordinarily assure the other party is diminished and a finding in his favour require the more conscious employment of the virtue of judicial impartiality than otherwise would be the case.  The usefulness of public scrutiny is impaired and confidence in the work of the courts is prejudiced.

That is important I respectfully suggest.  It is what the Chief Justice is worried about there.  If I can just add this, your Honour, it is not quite like a scandalising contempt but it is a form of contempt which runs a risk of bringing the administration of justice into disrepute.  In other words, if we have mock trials of matters which are before the courts then it is going to entail all sorts of problems.

If public prejudgment is invited before the court hears the evidence...

I might add or a Royal Commission

...and finds the facts upon which its judgment must depend and this is so whether or not...

and this is also very important

...whether or not it can be predicated of a publication that it has a tendency, in other words absent tendency, the doctrine still applies.

Your Honour, there is an important reference which I did not give your Honour on that same page.  About point 3, it is right at the end of the quotation from Lord Diplock, which says:

Which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.

That statement assumes by the use of the disjunctive word "or" that exhypothesi this species of contempt applies even where there is not the requisite tendency either to interfere with judges or witnesses or jurors.  Over the page his Honour quotes Lord Morris, and I have already given your Honour this reference, but I would like to mention the fourth line down:

Furthermore, not only is it from the public point of view unseemly...

this is going to the dignity of the courts and the administration.

HIS HONOUR:   Royal Commissions have no relevant dignity because they are not exercising judicial power, they are just executive.  These distinctions may become blurred in New South Wales, in my mind they are quite distinct.

MR REYNOLDS:   Your Honour, I would with all due respect not want to enter the fray on that particular question at this stage, but at any rate so far as the courts are concerned the law of contempt has always looked very carefully at the importance of upholding the administration of justice and maintaining the standards of the courts and maintaining public confidence in the fact that this is where ultimately matters of great moment in litigation are resolved, not elsewhere, and in particular not on the television in 20 minutes putting the witnesses up in current proceedings.

He says:

In respect of a cause awaiting the determination of a court there should be public advocacy in favour of one particular side or some particular points of view, in other words, the evidence.

And further down:

Owe to the parties to protect them either from the prejudices of prejudgment or from the necessity of having themselves participate in the flurries of pre-trial publicity.

The problem is, your Honour, that once this starts everyone feels that they have got to get into the act and once broadcasts like the defendant's go to air then my client will feel that he has got to go out and put his witnesses to air, etcetera, and as a natural and probable result of the broadcast there will be further media discussion of Channel 7's programme.

Your Honour, that is what Brennan J had to say but, your Honour, Dean J has also put his name to this particular doctrine and he did that in a decision known to your Honour called Hinch and Attorney General, your Honour has already mentioned this.  In 1987 164 CLR the report begins at page 15, but I only want to refer your Honour to the passage at page 55 at about point 2.  If I may start at the bottom of page 54 his Honour refers back to a decision of his own I think as a judge of the Federal Court on the Full Court in the BLF case and there is an epigrammatic statement of principle that his Honour requotes and endorses I might add at page 55, point 2, referring to the Times Newspaper case.

But most importantly is (iii) on page 55 ‑ ‑ ‑ 

HIS HONOUR:   The passage that Sir William Dean refers to is at 308 of Times Newspapers which is Lord Diplock.

MR REYNOLDS:   Yes, your Honour.  He says at (iii) there:

One species of contempt is where there is a publication which prejudices or biases the public mind in favour of one side as against the other side and thereby substitutes prejudgment...

so prejudgment is one thing

...or in some cases pre-trial by the media for determination by the courts of the land.

If your Honour goes back to page 54 at point 9 it is made clear that his Honour is quoting his own statement of principle as a proposition which he endorses in the context of that particular case.

So, your Honour, we are dealing here with a situation where at least two judges of this court have in my respectlful submission put their names to that particular doctrine.  Your Honour, if I can take your Honour back to the decision in the Civil Aviation Authority and the ABC.  I am sorry to be lengthy about this but from my client's point of view and I will be submitting ultimately the court's there is an important question here.

If I can take your Honour back to the Civil Aviation Authority case your Honour will see at page 26 that his Honour has various criticisms of the notion of prejudgment and Sunday Times.  He comes at the bottom of page 27 to the International Covenant on Civil and Political Rights which I think notwithstanding Teo is now by legislation rendered irrelevant.  Your Honour, we come to an important passage at page 28 because what his Honour does there if I may sum it up briefly is to say that by reason of the statement of principle in Theophanous and like cases that that is a reason in a matter of constitituional law why the Sunday Times view of the common law is incorrect.  In other words it is like Theophanous in that in Theophanous the court held that the common law of defamation was deficient and his Honour is suggesting that that same proposition involves necessarily an acceptance of a view in this country for constitutional reasons that the Sunday Times case is incorrect.

Can I just follow on from that briefly and can I do this to try and defend his Honour's statement there by reference to a narrow point of principle without going to Theophanous.

HIS HONOUR:   There is nothing in those cases that talk about chapter 3. Contempt of court is relevantly part of chapter 3.  There is in Sir William Dean's judgment I know.

MR REYNOLDS:   There is and that is referred to at page 30 where his Honour makes it clear it would not apply to contempt.  Can I come back to that, your Honour, because there is a judgment of the Court of Appeal that says it is a defence, Theophanous is a defence to contempt.

The point that I am making for present purposes is simply this ‑ ‑ ‑ 

HIS HONOUR:   Is this view shared by the others?

MR REYNOLDS:   There is mention of Theophanous in this context but the other members of the court do not from recollection accept what his Honour says in that regard.  They do not say that it is incorrect either, I might add.  But, your Honour, the point I am getting to is this that if ultimately on a special leave application this court were to think that the Sunday Times case was an arguable issue upon which special leave should be granted that this court would be more likely to consider that question given the importance of the Theophanous principle in the constitutional jurisprudence of this country.

Your Honou, there would be two issues at least which would arise.  The first is the narrow issue referred to by Dean J in Kirby J's judgment at page 30, namely whether or not the principles in Theophanous apply at all to restrict the law of contempt.

HIS HONOUR:   Was this point taken in the Court of Appeal, your Theophanous point.

MR REYNOLDS:   Your Honour, the only reference ‑ ‑ ‑ 

HIS HONOUR:   No, no, in argument.

MR REYNOLDS:   Not mentioned, your Honour.  Can I mention why?  If your Honour goes to the judgment of Levine J made clear why it is not, this is made clear in oral argument by Mr Sackar, but the problem was if your Honour goes to page 21 of Levine J's reasons for judgment, is that because the case came on so quickly,the defendant wanted it on so quickly, it was incapacitated from sending out section 78B notices.  Because the matter then came on immediately in the Court of Appeal they were likewise disabled from running that sort of argument against us, notwithstanding our citation of Sunday Times.

Your Honour, there was no reason for me to raise Theophanous at all and I did not.

HIS HONOUR:   No, I understand that, Mr Reynolds

MR REYNOLDS:   My learned friends, and I am not being critical of them, by reason of the constraints of time also ‑ ‑ ‑ 

HIS HONOUR:   Does it not make it an attractive vehicle to reagitate Theophanous I must say.

MR REYNOLDS:   Except this, your Honour, the Court of Appeal could say nothing really about Theophanous given that they were bound to follow it and,your Honour,we say this is another reason why this court would be likely to grant special leave in this case.  I have sought specific instructions on this, your Honour, and if special leave were granted in this case, my client gives an undertaking that he would in turn seek the leave of this court to overrule Theophanous.

Your Honour, unless I thought to be unreasonably provocative in that submission can I refer your Honour to a recent decision of this court in McGinty and the State of Western Australia in (1996) 70 ALR, page 200.  There are two brief passages that I would like to take your Honour to.  The first is the judgment of McHugh J at page 242 second column at letter D over to page 243 in the first column.  This is all under the heading of the authority of ‑ ‑ ‑ 

HIS HONOUR:   I am familiar with that passage, the other passage is in my judgment, what page is that?

MR REYNOLDS:   The other passage your Honour knows is in your Honour's judgment at pages 274-275.  Your Honour, on the basis of those passages I respectfully submit, especially given the vigorous dissents of Brennan, Dawson and McHugh JJ in Theophanous itself, that there is a very, very serious question now about the standing of that decision in this country and that there is a real public interest noted in your Honour's judgment in this court determining as expeditiously as possible the precise status of that case.  If it is to be followed or if there is to be some revision of the principles in it or if, as I have submitted, leave should be given to hear argument on the question of whether it should be overruled.  Because inevitably if the Sunday Times principe is agitated in this court then it must follow that the court would need to look at the relationship between that principle and the principles articulated in Theophanous for the very reasons that Kirby J mentions.

HIS HONOUR:   But you say Theophanous helped you.

MR REYNOLDS:   Your Honour, I say that the current uncertainty about the status of Theophanous is, assuming The Sunday Times question was otherwise thought to be an appropriate question for this court's consideration on special leave, that the existence of uncertainty about the status of the Theophanous principle is a reason why the judges of this court would be more likely on a special leave application to accede to my client's application to grant leave in his case, because it would raise a matter of critical public importance inevitably as part of the argument.  And that is the basis upon which I put the submission.

Your Honour, in that regard can I just give your Honour a reference to Doe's Case (1995) 37 NSWLR 107-111 where his Honour looks at the question of constitutional free speech, pages 107-111. Can I just show your Honour one passage. There is a quotation from an unreported decision of this court on a grant of special leave or the refusal of it at the top of page 110, where a full court comprising Mason CJ, Brennan and Toohey JJ, in refusing special leave in a contempt case said this:

The question of whether the implication of freedom of communication in those four cases extends -

They then talk about the particular contempt in that case:

- might in an appropriate case warrant the grant of special leave.

But in that particular case their Honours said it would no enjoy sufficient prospects of success on the case.  One wonders how it could when there is a publication of a photograph interfering with a criminal trial.  So your Honour has the submission.  Your Honour, can I mention, in the context of Kirby Js discussion of the Sunday Times case - - -

HIS HONOUR:   Yes, just pardon me a moment.  Yes?

MR REYNOLDS: That it is clear that to his Honour Theophanous was very important and the relationship between Theophanous and Sunday Times was critical to his reason. Can I indicate why? It is because there is a decision, an earlier decision of his Honour in a case called X v Amalgamated Television Services reported in 1987 9 NSWLR 575 and there is a particular passage at page 592 to the top of 593 where your Honour will see, and his Honour was in dissent in this case, his Honour held that - and I will not read your Honour the whole of that passage, just emphasise at G:

These are the reasons why pre-trail assertions of guilt are not permitted when matters are before courts.

His Honour, I might add, was not talking there about a matter which was before a court but which was before the Medical Tribunal, an administrative agency, an arm of the executive like the Royal Commission.  Now, this was a decision decided before Theophanous and his Honour, in this very passage, embraces the principles in Attorney-General and Times newspapers which his Honour ultimately rejected, I submit for constitutional reasons, in the Civil Aviation Authority case.  So this is, if I may say so, proof of the pudding in terms of the importance of the inter relationship between Sunday Times principle and Theophanous.

HIS HONOUR:   Yes, all right.

MR REYNOLDS:   Your Honour, can I raise a decision of a judge of this court - - -

HIS HONOUR:   Are you leaving Theophanous?

MR REYNOLDS:   Not quite, your Honour.  I am not leaving Sunday Times but I am leaving Theophanous.  Your Honour, in making these submissions I have to again 'fess up to a difficulty.  It arises by reason of a decision of your Honour's brother Toohey J in a case called National Mutual Life Association v General Television Corporation in 1988 80 ALR page 555.  The application which was before his Honour in that case was in substance on all fours with the application that I am presently making.  If your Honour goes to the top of page 558 your Honour will see 10 lines down that:

Counsel for the applicant contended for a separate principle being this alternative way in which the contempt of court proposition was put.  It was this -

And then there was quotation from Lord Diplock, I add only quotation from Lord Diplock.  And the submission that was made is the same as that which I make now, namely that notwithstanding that these matters were placed before the full court of the Supreme Court of Victoria, that that court had simply decided the question on the issue of tendency.  Now, this decision is to some extent against me.  Can I indicate to your Honour briefly why it is that your Honour, in the circumstances of this case, should not follow or should distinguish this judgment.

Your Honour, my submission is, in short, that the decision is per incuriam and that it is clearly per incuriam from the text of his Honour's judgment.  If your Honour goes to the top of page 559 he makes clear that:

Counsel did not explore before me the other judgments in Attorney-General v Times Newspapers.

HIS HONOUR:   Yes, I have seen that passage.

MR REYNOLDS:   Nor did they refer to other decisions in which the particular passages of Lord Diplock's judgment may have been considered.  I add such as the statement of Brennan J and the statement of Deane J.  Or I can now say the statement by Kirby J which obviously had not been written at the time of his Honour's judgment.  His Honour goes on to say at about line 12:

Nor in my view can it fairly be said that the second programme exposes the applicant to public and prejudicial discussion of the merits or the facts of its case.

He says:

The word prejudicial is crucial, that appears clearly enough from  Lord Diplock's judgment read in its entirety.

Your Honour, I have already said that his Honour does no refer to the other speeches.  His Honour does not refer to the other decisions which make it, as I have been at pains to point out, quite clear, as the Australian Law Reform Commission noted, that this principle operates independently of prejudice.

HIS HONOUR:   Yes, I understand that, Mr Reynolds.

MR REYNOLDS:   So that by reason of the, I have to submit, inadequate presentation of argument to his Honour on the issue, his Honour was not adequately informed of the other authorities in the other speeches or of the other decisions or statements in this court, and that it was not made sufficiently clear to his Honour that there was a distinction between the two principles.  Your Honour, there is a further submission I make on this issue which is that his Honour's statement - - -

HIS HONOUR:   Now, was the New South Wales Court of Appeal referred to Deane and Brennan JJs passages?

MR REYNOLDS:   No, they were not.  They were not, your Honour.

HIS HONOUR:   All right.

MR REYNOLDS:   And again, if it is anyone's fault it is mine and I accept responsibility for the failure to cite those passages.  But as your Honour would appreciate and when your Honour reads the judgments this is clear, this case has been up and on in a hell of a hurry at first instance - - -

HIS HONOUR:   I know and that is what will be put against you as rendering it an unsuitable vehicle for dispassionate and, indeed, lengthy consideration of what you say is this underlying question.

MR REYNOLDS:   Your Honour, I would want to be given the opportunity of submitting on behalf of my client that there is no reason, in the circumstances, why this court could not deal with the Sunday Times principle were leave to be granted and that there are sufficient discussions of the principle in the Court of Appeal and in statements of this court and in the United Kingdom in Sunday Times itself, and in later decisions in the United Kingdom which would mean that this court is not, in effect, disadvantaged on the hearing of the appeal, particularly, may I add, where inevitably by reason of the operation of the Theophanous principle this court - and the argument that I wish to advance on behalf of my client - this court ultimately would have to deal with the question because it would be impossible to resolve it without reference to Theophanous.  And if Theophanous is referred to by the defendant then my client - - -

HIS HONOUR:   What I am really putting to you, Mr Reynolds, is that an appropriate vehicle will emerge when someone has actually been charged with contempt and there has been an adverse finding and that person seeks to bring that case here and rely upon what was said in the - - -

MR REYNOLDS:   Your Honour, I can see that that would be a suitable vehicle but in my submission the present case or for that matter any other injunctive case is also a suitable vehicle and there is no reason why this court could not consider the question on my client's application, particularly where my client has this prejudice which one must assume ex hypothesii if the Sunday Times case is arguably applicable.

And this court would not, in the face of that submission, simply shrug its shoulders and say well, notwithstanding, Mr Reynolds, that your client suffers all that prejudice, we think that it is better to have a case involving a conviction rather than an injunction to consider these issues.  Your Honour, my response to that is first of all it is unfair to my client and secondly, that as a matter of convenience to the court, the present case, or any other injunction case, would provide - - -

HIS HONOUR:   It is not a question of convenience to the court.

MR REYNOLDS:   Your Honour, I did not mean that offensively.

HIS HONOUR:   I know you did not.  But it is not a question of convenience to the court, it is a question of the convenience of the corpus juris of the country.

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   That is to say the context in which the case is decided, thereby having an effect on its precedent effect in later cases.  And if it is decided on standing on the left foot, the other foot in the air, that - it is a defect in the case, it is a cogent exposition of principle in later decisions.  That is what one means by appropriate vehicle.

MR REYNOLDS:   Again, your Honour, I say there is no reason why this case could be an inadequate or inappropriate vehicle on that question.

HIS HONOUR:   All right.  Where do we go from here?

MR REYNOLDS:   Your Honour, we go hopefully and quickly to the end.  Except that I want to give your Honour this reference to - in the context of Toohey Js decision can I refer your Honour back to the BLF case to the judgment of the Chief Justice, where there is a quotation from Lord Diplock at page 167 of volume 152 CLR.  Your Honour, the submission is simply this, that even in Lord Diplock's judgment as quoted by Brennan J, in the last two lines I stress the disjunctive "or".  It is clear, I submit, that one does not need, within the terms of Lord Diplock's principle, to find prejudice as the Australian Law Reform Commission pointed out.  Prejudice, in effect, is - - -

HIS HONOUR:   Well, the prejudice is to the system.

MR REYNOLDS:   Indeed.

HIS HONOUR:   I understand that.

MR REYNOLDS:   And presumptively for all litigants, particular those in that case.

HIS HONOUR:   The prejudice is to future litigants using the system, apart from anything else, because the system is undermined.  That is the proposition.

MR REYNOLDS:   And undermined, I might add, for those presently in the system as well.

HIS HONOUR:   Yes.

MR REYNOLDS:   Including my client.  Your Honour, so on that basis I respectfully suggest that his Honour's decision was per incuriam for the reasons that I have attempted to indicate.  Your Honour, can I briefly indicate some other issues which would - I want to try and do this very quickly.

HIS HONOUR:   You do it as expeditiously or as slowly but not as delinquently slowly as you see fit.

MR REYNOLDS:   Your Honour, I am grateful to your Honour.  I have made a submission about getting over my difficulty on tendency.  Once through the gate, as it were, I submit that on a special leave application this court would want to determine, and your Honour should look prima facie at this moment, at whether or not in addition to the three points we have now discussed, Sunday Times, Theophanous and Standing, whether there is any other issue in the case which is sufficiently important to warrant this court's attention in the exercise of its appellate jurisdiction.

Can I indicate what the other issues are which I submit are of importance.  The first is that this question of Sunday Times or pre-judgment contempt, is also of critical importance in relation to contempt of Royal Commissions.  Your Honour, there is not much authority on that issue for obvious reasons, but can I give your Honour first of all reference to section 18A which your Honour has.  Your Honour, that is what experts in this area seem to call a deemed contempt provision.

HIS HONOUR:   Well, that is the obvious way of stating what we have been debating.

MR REYNOLDS:   I was not saying otherwise, your Honour.  There is another deemed contempt provision in section 6O, subsection (i) of the Commonwealth Royal Commissions Act.  I give your Honour this reference:  section 6O, subsection (i) of the Commonwealth Royal Commissions Act 1902.  Your Honour, in this Australian Law Reform Commission report at page 442, at point 2, there is a quotation from a statement made by Hope J, ex cathedra, sitting as a Royal Commissioner.  Your Honour will remember that his Honour, along with Wood J would probably have sat on more of these Commissions over the last 20 or 30 years, possibly, than anyone else. 

He said, sitting as a Royal Commissioner on the Commission investigating ASIO, issued the following warning to the media, and I quote:

Statements which are intended to produce a pre-judgment of any of the issues is a form of contempt and is an offence under the Act.

So there is - and I am only looking at whether there is a serious questions here - a real issue so far as contempt of the Royal Commission is concerned on that issue.  If I can take your Honour back to Mr Angus's exhibits in the black folder, if your Honour goes to the statement by the Royal Commissioner at page 21953, it is clear - I know this is not a judgment, your Honour, but it is a statement obviously carefully compiled by the Royal Commissioner - it is clear from page 21953 that Wood J regards such pre-judgment publicity as being an interference with his role.

I just give your Honour the line numbers.   Lines 2 to 8 - behind tab 3 in the black folder, lines 2 to 8:

It is essential talking to the media that you - particularly on television - exercise extreme care before rushing to judgment on individuals who might be named before the judgment is examined in depth.

Really, from line 10 down to line 17:

... compelling need to avoid speculation.  Speculation is dangerous and likely to be very counter-productive.

An interference in other words.  Lines 23 to 30:

Potential for error enormous.  Examination in the witness box here -

Your Honour, there is a misprint.  It says "on both"; it should read "on oath", I would imagine:

... is the most potent weapon in testing the veracity of information.

Not, I might add, witnesses giving statements to the whole of Australia over Channel 7.  And lines 32 to 40, there is a reservation there about something which initially appears truthful and reliable, and there is a reference to resisting the temptation to rush to conclusions.  That is also an additional point which, with respect, I suggest is relevant. 

The next issue is - and this was not raised, I concede, for reasons I have explained, before the Court of Appeal or his Honour at first instance - whether Theophanous is as any operation as a defence or otherwise, in the area of contempt, and I have given your Honour a reference to Doe's case, Doe v John Fairfax, I think at pages 107 to 111 which Kirby J seems to suggest that is an important question.

The next principle which I respectfully suggest is also a matter which would warrant the attention of this court is the ambit of the Bread Manufacturer's principle.  Your Honour might fairly say to me that that has recently been considered in Hinch's case.  Your Honour, I do not want unnecessarily to go to a whole string of passages, but the point is this.  There is no ratio of Hinch which indicates precisely what the Bread Manufacturer's principle is, and how it is to be applied, and if your Honour reads the judgments in that case, your Honour will see all manner of varying statements as to what the principle is.

Can I just, without taking your Honour to passages - - -

HIS HONOUR:   There is no judgment in Hinch, is there?

MR REYNOLDS:  No, there is not.  There are five judgments.  Can I just summarise.  There are various views.   One is that on the question of Ten, who interfere with the administration of justice, that the operation of this public interest principle goes to liability, and the question is, how can it go to liability when there is a direct conflict between the notion of tendency to interfere with the administration of justice on the one hand and the public interest, in some cases, in publication, on the other.  How do their Honours deal with that?

Some suggest a balancing test;  others suggest some independent operation of the two principles.  It is not clear, I submit, which view is the correct one.   Others suggest that it operates as a form of defence.  In other words, if the defendant can prove that it comes within the principle in the Bread Manufacturer's case, then it gets off.   In other words, it does not go to the initial liability to be proved by a plaintiff or attorney-general.  There is a third version which is that it operates as a sort of what I call a quasi defence.

Can I explain what I mean by that.  That there is an evidential onus which the defendant bears to somehow prove prima facie that its publication is in the public interest.   Once there is evidence of that, or a suggestion of the applicability of the principle, the legal onus then passes to the plaintiff to negative the applicability of the principle.  That is also a possibility from what Wilson J says, because he is uncertain about where the onus is.  Another possibility is that it is simply relevant to a balance of convenience.  There is a passage at page 48.1 in Hinch which suggests that it may be relevant in that way on an injunction application.

At page 40.6, there is a quotation from Brennan J who suggests he did not sit on that case, your Honour, that the importance of the principle is that if the principle operates it would convert what was otherwise a punishable contempt into a purely technical contempt;  but that it does not operate on liability, it operates as somehow being relevant to the distinction between those two forms of contempt.  Finally, that it is relevant to penalty only.  That is self-explanatory.

Your Honour, there are any number of other views in between.  My submission is simply this.  That in subsequent cases - and I will just give your Honour references to two - the first is Attorney-General v TCN Channel 9, in volume 20 of the New South Wales Law Reports, at page 368.  Your Honour will see from that case how judges have sort of treated Hinch subsequently.  The judgments, paraphrasing them, are like this.  They say, well, whatever Hinch says, the Bread Manufacturer's principle - whatever Hinch says, because we are not quite certain what it says, it will not apply here because - and then there is a narrow statement of inapplicability.  In that case at page 384 from B to D, the Chief Justice says, well, it will not apply here because - and he shortly states why.

He adopts the same technique in Doe's case at page 84D where he says - well, the fact that there was a breach of statute here means that Bread Manufacturer's will not apply.  So there is no subsequent adoption that I know of, your Honour.  I have had some time to look at it - I do not know of any subsequent adoption by a lower court of a ratio which emanates from Hinch's case.

HIS HONOUR:   All right.  Now that is three points.

MR REYNOLDS;   Your Honour, my final point is simply this.  That there are in section 18A of the New South Wales Royal Commissions Act and section 6O of the Royal Commissions Act Commonwealth, these deemed contempt provisions that I have referred to.   I will be brief about this.  If your Honour goes to section 18A, your Honour will see there is a defence created which we looked at before, but the section really begs all sort of questions because it is a transportation of a notion - and this is a criminal provision - of a notion in broad terms applicable to courts, relevant to the administration of justice, and transports or purports to transport it holus bolus to an exercise of the Royal prerogative with statutory powers.

Now, there has got to be a real difficulty in that on that question - - -

HIS HONOUR:   I can understand all that, but what is the special leave point all about?

MR REYNOLDS:   The special leave point, your Honour, is - and I only put it as a supplementary point which, if - - -

HIS HONOUR:   Just tell me what it is.

MR REYNOLDS:   It is simply that this court would be given an opportunity inevitably to say how those provisions work, and given the importance of Royal Commissions in this country and in particular reports of them and investigations into matters which are current before them or may be current before them, it is important as a matter of public interest that first of all the media and secondly the community generally know just what the meets and bounds are of that criminal offence, because that is what is created.

Can I just refer your Honour very briefly to page 442 at about point 2, point 3 of the Law Reform Commission Report, where they say there are serious doubts as to whether a deemed contempt provision includes a protection afforded to courts under the sub judice rule:

These doubts arise because the sub judice rule is formulated in terms of protection of the administration of justice.  It is doubtful whether Tribunals and Commissions actually administer justice.

Another reference, your Honour, to page 431, at about point 8, where it is said that:

It is difficult to transplant the notion of contempt from its judicial context to the administrative context of Tribunals and Commissions.

Your Honour, I do not suggest for one moment that that issue would on its own be important enough to warrant the granting of special leave, but if on a special leave application the court were to suggest to me an argument that it was in doubt about whether leave should be granted, that is an additional matter which I would want to put before the court which I would suggest needs must be resolved by the court to deal with the major issue and issues which would otherwise be before them.

Your Honour, unless there is anything your Honour wishes to raise with me directly, those are my submissions.

HIS HONOUR:   Yes, thank you, Mr Reynolds.  I think it will be best if I adjourn until 2 pm and give you some time to consider what has been said, Mr Sackar.  I will adjourn until 2 pm.

LUNCHEON ADJOURNMENT

[2:02pm]

HIS HONOUR:   Yes, Mr Sackar?

MR SACKAR:   If your Honour pleases.  May I try to deal with, as best I can, the issues that have been raised by my learned friend, Mr Reynolds.  Your Honour, it is unnecessary perhaps for me to go to in the matter of DL or in the matter of Seymour, but we do put a slightly different emphasis on Gaudron J and my learned friend, and where she talks about, with respect, probability, we say she means probability in the sense of evidence. 

Your Honour, the fact that arises - - -

HIS HONOUR:   So this is a reference to 68.

MR SACKAR:  At 176.  It is to be remembered that this application is for an interlocutory injunction, not for a stay, of a final judgment.  Interlocutory relief always depends on there being a probability that final relief will be obtained;  never to be the question whether there is a prospect of being granted involves - depends on whether there is a probability of its success.  A matter to be approached on the basis of on its substantial prospect, and so on.

Your Honour, what we say in respect of this matter is this.  That there are below findings of fact, both by Levine J - - -

HIS HONOUR:  But only at the interlocutory level.  For example, it is said that Mr Wells' client may be fairly be described as a public figure.  That would not have been so at the time of these alleged events in 1974, obviously, would it?

MR SACKAR:  Well, your Honour, he was a solicitor in 1974.

HIS HONOUR:   There was a couple of thousand of them.

MR SACKAR:  Well, there are, but your Honour, it is not a question of when the events occurred in 1974, it is a question, we submit with respect, of when the proposed publication takes place.

HIS HONOUR:   Yes, I see that, but I am just wondering at what stage he became a public figure.

MR SACKAR:  Your Honour, one of the things that really is involved in the analysis of both Levine J and the Court of Appeal, and both were affected very greatly, clearly by the facts.  And the facts, your Honour, are, as will appear in a moment when I briefly point some of these things out to your Honour, that starting back in 1994 at least with allegations made by a Member of Parliament, Ms Grusovin, then dealing with the plaintiff himself in the public arena and making all sorts of counter-accusations.

HIS HONOUR:   The facts at an interlocutory level are incomplete.  I do not know, for example, whether there be any allegation; whether the persons participating in this broadcast, as these four witnesses, were paid, not only in 1974 but paid again in 1996.

MR SACKAR:  Your Honour, what I am really about to say, I think, is consistent - - -

HIS HONOUR:   By your client this time.

MR SACKAR:   Quite so, but what I am really about to say and it perhaps is consistent with what your Honour is saying, that there are a number of unsatisfactory features to dealing with this matter at this stage.  For example, matters of that sort.  What is, or appears to be so, even at this stage, leave aside questions of whether the witnesses were paid or not, is that there was a considerable amount of publicity generated about and generated by Mr Marsden concerning these allegations, when they arose, and they arose and have continued to arise from time to time.

The problem your Honour faces which I will come to in a moment, which manifests - - -

HIS HONOUR:   I do not face any problems;  the parties face problems.

MR SACKAR:  The problem that the party faces, namely the moving party, is being able we say, with respect to persuade your Honour that this is indeed a satisfactory vehicle to raise a number of these issues;  not the least of which is that this court would have to theorise very largely in a number of areas.   Importantly, your Honour, the two questions, or the two aspects in which the court would have to speculate in a number of respects and which goes to a central plank, if you like, in the defendant's case or the respondent's case, is this question of practical reality, because the McCrea test for contempt which we say is the law in this country, not only involves the notion of tendency, but has as the sting in the tail for anyone pointing to an actual contempt or a threatened contempt, this notion of practical reality. 

In a sense that deals with Attorney-General v Times for this reason:  that whether or not or, rather, whatever the House of Lords were talking about in that case when they talked about trial by newspaper, they clearly were talking about obviously a species of contempt.  It is a pejorative and it is clear when one reads the speeches of the House of Lords that they were discussing a species of contempt which must turn on its own particular facts because whether something is a "trial by newspaper"; in other words, whether it has the tendency to pre-judge, is going to be a question of not only an evaluation of the facts of the particular matter said to amount to the contempt or the threatened contempt, but importantly as we say, one has to have all the facts on the question of practical reality.  

Their Lordships were not talking about a theoretical contempt.  In the BLF case at 167-168, and in Hinch in the judgment of Deane J, but certainly in the judgment of Brennan J, in BLF.  Whilst his Honour, Brennan J - my learned friend referred to the statement of Brennan J, or statements of Brennan J at 167-168 and a passage which he referred your Honour to which included a disjunctive - - -

HIS HONOUR:   Yes, that is from Lord Reid and Lord Diplock, I think.

MR SACKAR:   Yes, but what Brennan says at 168, having discussed times and having discussed earlier Packer v Peacock and McCrea at 166, he says at about a third of the way down 168:

In the light of these observations, it must be determined whether there was any evidence to support the conclusion.

Now, your Honour, essentially if the notion of practical reality is part and parcel of the test, and we say that it clearly is on any view of the law of contempt, then it will turn on, obviously, the facts of any particular case.  The facts thus far, admittedly on an interlocutory basis, point, we say, inevitably in one direction; namely, when one goes through the press clippings and when one looks at that excerpt from The 7.30 Report, it is a very murky factual situation.

HIS HONOUR:   Yes, I have not looked at that yet.

MR SACKAR:  No.  And, your Honour, that 7.30 Report which is dated 28 February 1995 preceded by about seven or eight days the first alleged libel in this case.  The first libel - - -

HIS HONOUR:   March, 13 March.

MR SACKAR:  Yes, that is right.  Now, in that excerpt which your Honour will have a look at, it is a short excerpt, Mr Marsden is responding there to the Grusovin allegations which were identical in substance.  She made the allegations in Parliament;  namely, that he in effect engaged in paedarast activities.  They were precise allegations;  however, he responded in a number of ways, and your Honour will see reading through this black folder, news clippings which cover various matters to do with those allegations.

HIS HONOUR:   Yes, in the letter there was one matter I wanted to ask you, just pardon me a minute.  There is a statement I cannot up my finger on at the moment as to some of these witnesses to use that expression, that these are fresh allegations.  Does that mean that the portion of the program which has the longest - the witness who has the longest segment of the program and who was actually filmed without obscuring, were they not new allegations and have they been made in some of these other programs?

MR SACKAR:   Your Honour, the words "fresh allegations" ‑ ‑ ‑ 

HIS HONOUR:   But that is made in relation to later.

MR SACKAR:   That is so.  We would say that - I will perhaps turn up the - your Honour, I will go to that phrase but it is my recollection that it refers to one of two things, either different people making the same allegations or to allegations made after this segment but I will find that precisely and come back to it if I may, actually.  But, your Honour, there is no doubt when one looks at the earlier materials that these allegations, whether they be made by different people, are certainly to the same effect and the substance of them is identical.

So what one has ultimately to come up against and the applicant has to, we submit, deal with, is if the notion of practical reality is part of the test, whatever the test ultimately is, and we submit it has to be part of the text because if it be the fact that the contempt, whatever species of contempt it is, does not have this notional concept or tendency to prejudge as a matter of practical reality we submit that has got to be the law and that we say is the law, McCrae, and we say with great respect, there is a great deal of factual material here pointing only in one direction.  These newspaper articles are not going to change upon the hearing of the matter ultimately.

The fact that the plaintiff or applicant participated in television discussion concerning his own social life on the 28th, and your Honour will see the graphic description he gives to us personal life there, one assumes by invitation allowing the media to come in and interview him.  Your Honour will see footage of him and his office, footage of him sitting as president of the Law Society of New South Wales, footage of him dealing persons who appear to be clients in his practice.  Now, that all precedes the allegations on 13 March and those allegations, as I have said, succeeded - I am cutting a lot of newspaper material out in between - but followed the allegations of an identical nature or in substantially no different allegations made by Ms Gruzman.

Now, your Honour, on 13 March proceedings are issued in respect of the Today/Tonight program and that program makes allegations of, again, a substantially similar nature.  A few days later, your Honour, a major article appears in the Sydney Morning Herald and your Honour, in the black volume your Honour will see that one large - does your Honour have the Malleson's volume there?

HIS HONOUR:   Yes.

MR SACKAR:   It is behind tab 2 where your Honour sees the commencement of these press clippings but it is the one that should be in a sleeve.  It is quite a substantial article in a plastic sleeve.

HIS HONOUR:   15 March 1995.

MR SACKAR:   That is it.  When your Honour goes to that, this is an article which your Honour would infer was a substantial interview given by Mr Marsden with respect to his background,  with respect to these allegations and I shall not read the detail of it to your Honour, your Honour I would invite to look at it, but in the left hand column there are mentions of him using his political influence to get visas and then various other matters.  A little further down in the left hand column, the mention of the Today/Tonight program and if your Honour sees almost to the end of the left hand column:

That today Channel 7's Today/Tonight program Marsden repeated his denials saying he would start legal action.

Then in his Mercedes he drives around and then over on the right hand side your Honour he takes the journalist with him to Kings Cross and along The Wall and makes some remarks about ‑ ‑ ‑ 

HIS HONOUR:   We do not need to go into too much detail.

MR SACKAR:   We do not need to go into detail about it, your Honour, but if the test involves a notion of practical reality.  There is a lot of factual material here that both courts had before them and which ‑ ‑ ‑ 

HIS HONOUR:   The question is do I go into the nature of this proceeding beyond what was said about the facts by the Court of Appeal?

MR SACKAR:   No, your Honour.  We would say that that is an accurate rendition of the factual material but what we do say, your Honour, is this that a consideration of the ultimate chances of success by the applicant in this case will naturally, we submit, involve the question of the practical realities, namely, the question of whether as a matter of practical reality the program has the requisite tendency and your Honour there are findings, albeit, at an interlocutory level that we would submit, with respect, it is very difficult to see how that position will change.

There are considered factual analyses of this material which, on any view of it, shows a very murky, factual situation and we say one which is not yet finally determined so far as the parties are concerned and one which your Honour may think, both parties but certainly the respondent may have a good deal of additional material if the matter if the matter goes to a final hearing.  Now, your Honour, we do submit with respect that ‑ ‑ ‑ 

HIS HONOUR:   There will be some cross-examination for a start I suppose.

MR SACKAR:   That is right.  And thus far, you see, there is evidence your Honour has from the applicant but the applicant so far has alluded to certain matters by way of information and belief via a solicitor.  There is no criticism about that because it is an interlocutory hearing.  There may well be cross-examination and of course this does raise again the unreality in one sense of this application.

HIS HONOUR:   But on both sides.

MR SACKAR:   Both sides, quite.  Now, your Honour, it does raise to some extent the unreality of, we submit, this application in general and we took the point before Levine J and the point was taken before the Court of Appeal.  There is no express reference I think to it in the Court of Appeal but your Honour no suppression order was asked for until very late in the day before Levine J as to the extent of the proceedings.  No suppression order was asked for.  It was rejected by Levine J late in the day on the first day of and ex parte application was made.  No application was made before the Court of Appeal.  But the fact is that in both venues, certainly before Levine J, the programs be edited and unedited form, were published in open court.

HIS HONOUR:   What flows from that?

MR SACKAR:   What flows from that is, your Honour, that a fair report of those proceedings is open to the parties and rather renders somewhat futile the notion of an injunction restraining it.  Your Honour, in Mr Potter's affidavit, there are two examples of some press which followed the proceedings.  Your Honour, we have a situation where other media organisations have and were perfectly entitled to make fair reports of these proceedings and therefore, your Honour, one has to look at the practical effect of restraining the further hearing of this.

May I come back, your Honour, to make this point shortly, so far as the test is concerned and Times Newspapers is concerned, we say that when one looks at Brennan J in BLF 411, look at Dean J in Hinch, the concept which is embodied in all of those judgments as part of the general test applied is the motion of practical reality and insofar as that is said not to be necessary, so far as Times Newspapers are concerned, then we submit with respect that could not be what their Lordships were talking about.  In other words, if you can imagine a situation factually, where you could show that it could not have any effect whatsoever on the outcome, then were their Lordships really saying, there is a species of contempt, namely  prejudgment, that of course involves itself in evaluation of the allegations to determine whether or not it is a prejudgment, then your Honour, we would submit with respect that that is not part of the law of Australia and it is clear on the decision of Hinch and MacRae.

HIS HONOUR:   Mr Reynolds says Hinch is teeming with obscurities.

MR SACKAR:   Well, he might say it is teeming with obscurities, one thing that is very clear is, we say, the notion of practical reality and it is part of any test ever enunciated recently by the High Court in terms of the notion of interference.  So far as potential witnesses are concerned I will not go to the decision of Civil Aviation Authority but that is important, your Honour because judgments there are divided as follows.  Kirby J and Sheller J determined as a matter of practical reality that the program there, a program on Radio National, would not as a matter of practical reality have had the requisite tendencies so far as those witnesses are concerned. 

Again, a decision on the facts.  Your Honour, the decision which has been alluded to below and is referred to in the judgments, namely an early decision of Attorney General and Mirror Newspapers which involve the inquest into Luna Park.  That again was a decision on the facts.

HIS HONOUR:   Ghost train.

MR SACKAR:   Ghost train.  That again was a decision on the facts, again the question of practical reality there of course on the facts. The person was about to give evidence the next day before the coronial inquiry not a Royal Commission and the press got to him first and published an account of what he was about to say.  Now here, your Honour, the notices which are passed between the Royal Commission's Office and Mr Marsden certainly ask for information, there is no doubt about that.  Your Honour, they nominate no hearing date.  They nominate no process whatsoever, it is purely as one sees, a series of notices to date at least which travel from some date in 1995 ‑ ‑ ‑ 

HIS HONOUR:   What did the Court of Appeal say about it?

MR SACKAR:   Your Honour, the Court of Appeal deal with it at, your Honour, 12.

HIS HONOUR:   Yes, but the particular point you are making Mr Sacker, as to the status of the inquiries of the Commission ‑ ‑ ‑ 

MR SACKAR:   Your Honour, it was dealt with at pages 12 and 13, that is where the Royal Commission is dealt with.

HIS HONOUR:   Yes, but you told me that earlier, is it not the fact that there are pending inquiries, I may be wrong.

MR SACKAR:   Levine J deals with it at length, your Honour, I will come to that in a moment.

HIS HONOUR:   Is that what it is?

MR SACKAR:   Your Honour, at page 12, the Court of Appeal says our conclusion is that the claimant has not made good any argument which arguably might persuade the court on application for leave that Levine J was wrong as a matter of a practical reality the proposed broadcast, etcetera.  Your Honour, Levine J dealt in a  number of places with the Royal Commission but importantly, yes, and in particular my learned junior points out, at the bottom of page 12 a further ground relied upon, your Honour, under this head was based on a statement in evidence before Levine J as to the reference of the Royal Commissioner and then the fact that his statement was made public.

HIS HONOUR:   Here it is, top of 13.

MR SACKAR:   Top of 13, yes.  Submitted material showed that the claim that was being investigated ‑ ‑ ‑ 

HIS HONOUR:   Do you dispute that sentence beginning, "It was submitted -"?

MR SACKAR:   No, it was submitted.

HIS HONOUR:   By whom?

MR SACKAR:   We object to this extent, your Honour, that it is clear that the facts are that as the judgment goes on, the argument was then that the broadcast would arguable interfere with - in terms of the contempt earlier mentioned - the claimant was asserting that it was arguable - a matter of practical reality.  Now what Levine J dealt with, your Honour, at some little length was the fact that notwithstanding the fact that the Royal Commission had sent notices to Mr Marsden asking for information, after he dealt with the issue of standing, he then went on to deal with the factual material.  If, your Honour, I must just have a moment to find that?

HIS HONOUR:   Yes.

MR SACKAR:   Page 19, your Honour, Levine J ‑ ‑ ‑ 

HIS HONOUR:   Bottom of page 8 is it?

MR SACKAR:   Bottom of page 8 and page 8, certainly -

Charged....etcetera....I mentioned this particularly in the light of the evidence...... First there is no evidence before me that Mr Marsden has been identified by the Royal Commission as a significant offender or is about to be if that is a matter that could be the subject of evidence, or recommendation.....

The a little further on where he looked at the question again on the facts and at page 19, he says:

Earlier in these reasons I have set out the terms of reference.....I have however stressed that there is no evidence of any prosecution by the relevant authorities as well as there being no evidence that Mr Marsden's conduct with underage boys has been the subject of evidence before the Royal Commission.

A little further down on 20:

The fact that the witness interviewed by Mirror Newspapers....

He was dealing there with Luna Park -

there is no indication as to what if any role Mr Marsden will play in the Royal Commission Inquiry.

Your Honour, they were, a number of other matters of a like nature which Levine J looked at and what is clear on the facts is that Mr Marsden and if your Honour goes again to 26 where he does deal with the issue of standing and I will come back to that shortly.  He says:

As to the contempt of the Royal Commission I formally hold that does not have standing and I am not persuaded by Doe's case....in any event to put it shortly the inquiry of the Commission is wide-ranging.....the evidence before me discloses in the scheme of things a connection between Mr Marsden and the Royal Commission of a formal nature only. He has been required to produce documents.  There is no evidence of specific inquiry into the activities in terms of the matters being heard by the Commission...

HIS HONOUR:   What does it mean, in the middle of 26 - "As to contempt of Commission I formally hold, Mr Marsden has no standing to seek the leave"?

MR SACKAR:   I do not know what that means, your Honour, in this sense that I made a submission before Levine J and I put it to him that it was a formal submission that Mr Marsden lacked the requisite locus to make application.  I then went on to deal with the assumption that even if he did, he could not show the requisite practical reality problem.

HIS HONOUR:   Yes, I see.

MR SACKAR:   Now, the Court of Appeal, your Honour did not deal with standing.

HIS HONOUR:   Yes, I know that.

MR SACKAR:   But importantly, at 26 and 27, I do not want to go on for too long:

The evidence before me discloses in the scheme of things....formal nature.....has been required to produce documents.  There is no evidence of specific inquiry into his activities in terms of the matters being investigated nor any evidence of any finding about him within the terms of reference.

So, your Honour what the facts are, at the moment on an interlocutory basis is that although there were, and are, in Mr Potter's affidavit a series of requests for information, there is certainly no evidence that Mr Marsden is to appear at any particular point in time before the Royal Commission. There is just no indication at all, Mr Marsden will be called formally to give any evidence or indeed if at all, he will ever be charged with anything. 

[2:31pm]

MR SACKAR:   Your Honour, so far as the requisite tendency and the practical reality is concerned may I hand up to your Honour one or two decisions unreported?  One of them, your Honour, is that of Hunt J in Attorney General v TCN Nine of 6 July 1990.  This is a case, your Honour, that bears a very marked similarity to the present. 

Your Honour, I will not go through the judgment in detail but this was a case where Mr and Mrs Derryn and another person, Ms Muir had been the subject of committal proceedings concerning what has been colloquially called in New South Wales, Mr Bubbles allegations.  This was an application to restrain the publication on Sixty Minutes of a alleged contempt amongst other things.  There were three sets of proceedings which it was said the broadcast would interfere with.

HIS HONOUR:   Is there any matter of principle that comes of out this?

MR SACKAR:   There is one important principle of relevance and it is this, your Honour, at page 12.  His Honour says:

It is important to emphasis that other than in the two situations upon which the Attorney General relies it is not a contempt of court merely to repeat the allegations which are already the subject of an action for defamation inter alia.

He refers to page 301 which I think is the speech of Lord Reid in Attorney General v Times Newspapers.  What we say, your Honour, is that one has to look at the question of whether the requisite publication is indeed a repetition.  That will not of itself lead to a finding, but as a matter of practical reality it would interfere with the administration of justice.  Your Honour, therefore we submit with respect again, one has to come back inevitably to an evaluation of the factual material because the objective test to be satisfied, whatever it is, has got to be satisfied on the facts as we submit is the case here. 

So your Honour, to sum up our point on Attorney General v Times what we say is this.  That first is it not inconsistent with Attorney General v Times that there be a motion of practical reality as part of the test, namely as part of the test which describes the tendency being one of practical reality.  The statement of Brennan J in BLF where he describes the necessity for evidence and nothing we submit Deane J says in Hinch.  Indeed all of the judges in Hinch appear to adopt McCrae which indeed formulated the tendency as a matter of practical reality test.  We submit that that is clearly, we say, the law in this country. 

On the interlocutory findings to date, page 10 of the Court of Appeal does not therefore show any deviation from principle.  It rather shows an application of what we say is the classic principle concerning the law of contempt and therefore we submit that there is no error.  So far as the issue of standing is concerned, your Honour, Levine J raised it and made that finding but then went on to - as is clear from the passage at page 26 and earlier - to dismiss the notion as a matter of fact on an interlocutory basis.  The Court of Appeal did not dwell or were not asked to dwell on the issue of standing and looked at the question on the assumption that Mr Marsden did have standing. 

So your Honour, one has to look at the question of what practical utility there would be in raising the issue of standing, it having been looked at on an interlocutory basis and therefore, we say as a matter of fact below, given the qualification that it is interlocutory.  Your Honour there is no charge for contempt here, obviously, and what I have said in respect ‑ ‑ ‑ 

HIS HONOUR:   Pardon me a minute Mr Sackar.  We heard four points, Mr Reynolds, before lunch.  The fourth one was the Deane contempt provision, construction of that; the third one was the ambit of Bread Manufactures v Hinch.

MR REYNOLDS:   Yes.

HIS HONOUR:   The second one ‑ was standing the first or the second?

MR SACKAR:   Standing your Honour ‑ I am sorry, it is Mr Reynolds argument.

MR REYNOLDS:   If I can handle it this way, your Honour had adverted me to standing first up, then I dealt with Sunday Times and that led into a discussion of Theophanous.

HIS HONOUR:   Yes.

MR REYNOLDS:   The next thing was the notion of Sunday Times prejudgment trial by media, vis-a-vis a Royal Commission and I quoted Wood and Hope JJ.  Then Bread Manufactures is another special leave style point and then contempt of the Royal Commission under a Deane contempt provision, how your Honour would construe that.

HIS HONOUR:   Yes, that was the last one. 

MR REYNOLDS:   I think they are all the points, your Honour.

HIS HONOUR:   So there is five, not four.  The first one is standing re the Commission.  The second one is Sunday Times.

MR REYNOLDS:   Third is Sunday Times prejudgment vis-a-vis a Royal Commission.

HIS HONOUR:   Yes.  Is it Sunday Times vis-a-vis Royal Commission or vis-a-vis pending action or both?

MR REYNOLDS:   Both.  I put it in the alternative.  I should also mention, your Honour, that I raise Theophanous as a separate question, namely whether that would be a defence.

HIS HONOUR:   Yes, that is right, I have got that.  Number four is Bread Manufactures v Hinch and the obscurities you say in Hinch.  The last one is Deane contempt.

MR REYNOLDS:   Yes, and how you construe that.

HIS HONOUR:   Yes.

MR REYNOLDS:   Theophanous is a defence.  Theophanous relevant to Sunday Times.

HIS HONOUR:   Yes Mr Sackar, I just wanted to get it quite clear.

MR SACKAR:   Certainly your Honour.

HIS HONOUR:   I should add, it is clear that none of those, as Mr Reynolds said at the beginning of his address, none of those really go to the administration of interlocutory remedies in the present context.

MR SACKAR:   No.  And of course a number of those matters in any event were not raised below.

HIS HONOUR:   It is not a debate about the test for an interlocutory injunction at first instance, or that sort of point.

MR SACKAR:   No it is not, I accept that, but a number of the matters, your Honour, also were not raised below.  Theophanous for example was raised by us but not run because of the 78B notice.  Bread Manufactures I should tell your Honour, and I only put a formal submission on before Levine J and it does not appear to have emerged as a relevant factor in any of the judgments. 

That there is public interest in the debate was certainly a matter vigorously contested below and seems to have been found on an interlocutory basis by at least the court of appeal and we would say by Levine J.  But the precise mechanism by which the so-called Bread Manufactures defence arises is not the subject of any deliberation by the court below and indeed, as I have said, it was formerly put by me only.  So far as Theophanous is concerned, your Honour really has to determine whether or not this is an appropriate vehicle to re-argue, and we would submit just quite simply that it is not.

HIS HONOUR:   Now, the Sunday Times criticism, the references to what Mr Reynolds says is the adoption of Lord Diplock's passage for example, by Brennan and Deane JJ in this court.  That was not put to the Court of Appeal as I understand it.

MR SACKAR:   I was not in the Court of Appeal, Mr Nicholas was there, but Mr Reynolds said he did not put it.

HIS HONOUR:   Yes, that is all one needs to know.

MR REYNOLDS:   Perhaps I should clarify that, your Honour.  I did not cite Brennan J or Deane J read in both courts large slabs of the passages from Sunday Times and Commonwealth Bank v Preston and advance a submission on that basis.  But no I did not refer to either High Court passage.

HIS HONOUR:   Yes.

MR SACKAR:   Your Honour, I shall not repeat myself overly, but what we have said in response to that quite simply is that nothing that could be read in Brennan Js judgment in BLF nor in Hinch, given even any ambiguity on any other point, even in the notion of there being something which might be called and is called I think in one of the speeches, something which is intrinsically contentious if you like. 

We submit with respect that the notion of practical reality which is deeply embedded in the law of contempt in this country, if that is correct then it will essentially come down inevitably to a factual evaluation on the requisite tendency in the circumstances.  And the cases, your Honour, repeat over and over again that one must look at each case on its facts.

[2:41pm]

Without taking your Honour to them in any detail, may I give your Honour two examples where the kind of factual excursion was looked at, namely, the effect which publicity has had or might have on the matter in terms of the practical reality aspect, Waterhouse v Australian Broadcasting Commission in the Court of Appeal, 1986 6 NSW Reports.   I have brought photocopies of these decisions, I shall not take your Honour to them.

HIS HONOUR:   Yes, I was referred to that.

MR SACKAR:   That is on the list, I am so sorry.  Is Bacon on the list?  I do not know that Bacon is.

HIS HONOUR:   No.

MR SACKAR:   May I hand up a copy of Bacon to your Honour, particularly the judgment of McHugh J, where he looks at the factual material surrounding that matter in the context of the test which he enunciated as including notions of practical reality.  The Waterhouse matter which is not on my learned friend's list did go by way of special leave application, where special leave was refused.

HIS HONOUR:   That is right.

MR SACKAR:   May I hand up for your Honour's convenience a photocopy of the ALJ Report of that.  On the question of prejudice, if you like, and the presumptive nature of the prejudice, that is partly incorporated I think into the notion of practical reality and it is a factural consideration.  When your honour looks at Waterhouse or at Bacon the question of prejudice is looked at both in terms of the time frame, in terms of the quality of the accusations, in terms of what has gone before and certainly in terms of what may follow in terms of how long it may be before a person is brought before a tribunal or brought before a court and all those matters are factual considerations whiich, of course, at the moment for example as far as the Royal Commission is concerned one is only speculating as to what may or may not occur there.

As far as the defamation trial in New South Wales is concerned your Honour will see that in the Court of Appeal judgment the very reduced role of the jury.

HIS HONOUR:   Yes.  It repealed Fox's libel act in New South Wales, in effect.  It used to be regarded as the bastion of British Constitutional theory.  Is that the situation in any other state, or is New South Wales the ground breaker, if that is the word?

MR SACKAR:   I think it is a ground breaker.  It is largely due to activities of I think, partly, Justice Samuels and it is alleged, aided and abetted by Justice Hunt although it is not entirely - - -

HIS HONOUR:   I am not interested in how it came about.

MR SACKAR:   I am not entirely sure.

HIS HONOUR:   It has come about not in an insignificant matter, though.

MR SACKAR:   Quite.  We would submit with respect that my learned friend as he described it as a bulkhead, does not get through th bulkhead for the reasons we have submitted.  We say in any event there are any number of reasons why this is a totally unsatisfactory vehicle to grant leave in the circumstances and therefore the other matters, some to which I have referred, we simply say just do not arise in the present context because even the section 18A point, interesting though it is, we submit does not have any practical significance in this case.  So, for those reasons, we submit that the application should be refused.

HIS HONOUR:   Yes, thank you, Mr Sackar.  Mr Reynolds

MR REYNOLDS:   Your Honour, my friend says this is an unsatisfactory vehicle to deal with questions I have attempted to raise.  In my submission one could not have a better vehicle.  This is a case where, when one goes to the facts as my friend has asked your Honour to do, there can be absolutely no doubt at all that this proposed broadcast is as prejudgment and a trial by media within the Sunday Times principle.  There may be cases where there would be some residue of doubt as to whether factually the relevant broadcast or proposed publication came within that principle.  In mu submission there cannot be the slightest doubt about that, vis-a-vis this particular broadcast.

My friend has talked about a need for a tendency to interfere with the administration of justice as a matter of practical reality and that is indubitably the McRea test but, your Honour, the question of law that I have submitted as being the central issue, ultimately, for this court's determination applies a very different test, applies a test quite different from McRea as Justice Kirby said in the Civil Aviation Authority case, so that all the emphasis that my friend put on matters of practical reality really are posited ex hypothesi upon the application of the McRea test.  I am happy to leave the McRea test to one side.  I have submitted that this is a Sunday Times case and that it is a different, in effect, species of contempt altogether.

There has also been reference and there has been all the way through this case, to great wads of newspapers and additionally to that some broadcasts on the television.  There is one critical aspect of all of that material for present purposes and that is there is not only example of wholesale interviews with a number of witnesses with statements asserting the guilt of my client on the basis of those interviews with witnesses, persons who will be witnesses in the ultimate hearing of these proceedings. 

All that those publications, really, have in them is a repetition of the base allegations by Ms Grusovin, the entering of a denial on the public record by my client and a discussion generally about my client, that he is a solicitor, and as to his sexual preferences.
The important thing about the facts is that there is no item of evidence which goes anywhere near being a prejudgment or trial by media of the kind present in this broadcast. 

[2:50pm]

I concede that if there was that would be a reason, a very good reason why this case would be an inappropriate vehicle, but there is not I submit one example of that in all of the material and it is really only if my friend could have pointed to examples of that that the application for special leave would be an inappropriate vehicle on that point.  As it is this proposed broadcast is in a very special category because of the interviews with all these witnesses giving their versions and the very clear imputation of guilt.

HIS HONOUR:   He was fairly succinct actually.

MR REYNOLDS:   Your Honour, I was not meaning to be critical and about prejudice, and of course background matters in the media on that issue, but the whole point on my submissions about Sunday Times is that that principle proceeds again ex hypothesy on the basis that there is no proved prejudice in the particular case.  So that all the submissions on tendency, practical reality, prejudice and the like really do not, in my respectful submission, address the issue that is really before your Honour and that is as the Australian Law Reform Commission said, as Kirby J said, this is a species of contempt which does not depend upon the proof of that sort of prejudice.  If it did then there would be a need to look at a lot of factual material, but your Honour all your Honour needs and all the court would need to determine whether this is a
pre-judgment, a trial by media using witnesses, is to look at the film that is all that is necessary, look at the film and there you have it.

One can categorise the relevant proposed broadcast as being the sort of publication which was within the Sunday Times principle without need to resort to any other material and that is the only way and I hope your Honour if I was frank about it that I could get around the difficulty posed for my client by the findings of no tendency below.  It would be very difficult for my client to come to this court and ask this court in effect to review findings of fact below on tendency and I have not asked your Honour to do that, but the submission is again that Sunday Times is a special species of contempt.

Your Honour, there was also some emphasis by my friend on the proposition that because this was interlocutory we should wait for a final hearing and then the issue would not be moot, but would be appropriate for consideration by this court.  Your Honour, my friend has emphasised the concept of practical reality and I would also like to emphasise that in the context of that submission.  It is, I submit, verging on the ridiculous to suggest that if this broadcast goes to air my client, with a bosom full of civic minded zeal would come forward to this court and prosecute Channel 7 for contempt.  Why would he bother?  It is a situation where the ‑ ‑ ‑ 

HIS HONOUR:   Well, all these matters which I well understand Mr Reynolds, go to your strong case on balance of convenience.

MR REYNOLDS:   That is so your Honour, I mean the horse has bolted, my client needs an injunction to protect his rights.  He is not going to be bothered I would not imagine, I have not sought his instructions, but why would anyone be bothered going ahead at their own cost, prosecuting Channel 7 for contempt after the broadcast, when no doubt every other media agency in the country will pick up the allegations and repeat them.  I mean, my friend emphasises practical reality, but is it seriously suggested that that is what my client is going to do?

HIS HONOUR:   Yes, I know, but that is a bit of a double-edged sword too.  If Mr Sackar says, of course your client may not want to do that, not only because of the broadcast, but also because of the anticipatory reports which offend - permitted reports, but what happened in this litigation in other media outlets.  He says the horse is already partly out of the gate.

MR REYNOLDS:   Well, your Honour, I heard that submission and can I deal with it directly?

HIS HONOUR:   Yes.

MR REYNOLDS:   First of all, I think at its highest there is no more than a couple of lines which, "What has actually been on this tape", that is the first thing.  So, this is something that both the Court of Appeal and Levine J emphasised, Levine J at page 20.

HIS HONOUR:   Well, I do not need to go to all of that.  Your reply to that is that the visual image is enormously patent, the visual image has not yet been decided.
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MR REYNOLDS:   Not only that your Honour, but there has only been a tiny snippet published.

HIS HONOUR:   Well, it is understood this could be extremely damaging, because they lack the specificity, people like to condemn people in the round, rather than in the particular.

MR REYNOLDS:   They can be, but again I go back to my base proposition which is that a tiny snippet does not amount to trial by media and there is nothing like that which is abroad.  I also need to address the submission that my friend made that the fact that the tapes were originally played on the ex parte application before Levine J in open court somehow means that any one in the community can make a fair report of them, that once they were played I might add on an application for an injunction to restrain a proposed contempt, that there is some kind of judicially conferred alsatia that falls on the whole of the community and enables them to publish with impunity broadcasts which ex hypothesy one assumes to be gross contempts.  One really only has to state the submission in that form to realise that it cannot be true. 

Your Honour, my friend also submitted that Sunday Times was not law in Australia and my submission was that that was an open question and one worthy of consideration by this court.

HIS HONOUR:   Yes, I understand that.

MR REYNOLDS:   Would your Honour pardon me for a moment?

HIS HONOUR:   Yes, the question is whether it should be considered in this case, that is your point.

MR REYNOLDS:   Your Honour, there were also some mentions about the Royal Commission, can I just focus on that for a moment?

HIS HONOUR:   Yes.

MR REYNOLDS:   The Court of Appeal said at page 13.2 of the judgment that the evidence shows clearly that there is a Royal Commission inquiry into allegations of pederasty by my client.  Now, there have been some focus in the judgments below on the fact that there has been no public evidence of those matters and public hearing of those allegations viz a viz my client.

HIS HONOUR:   Well, I think Mr Sackar referred in particular to the primary judge at page 8 as to the present state of your client in the Commission.

MR REYNOLDS:   Well, your Honour, the evidence on this is that my client has been asked for a whole lot of material which obviously relates to pederasty allegations.  He is, I submit, on the basis of that material ‑ ‑ ‑ 

HIS HONOUR:   I just want to know.  But what material is there before me that controverts what was said by the primary judge at page 8.

MR REYNOLDS:  Your Honour, I do not seek on this application to challenge that finding.

HIS HONOUR:   All right.

MR REYNOLDS:   My only statement is ‑ ‑ ‑ 

HIS HONOUR:   But you have got the Court of Appeal in his favour which is somewhat less but you say sufficient.

MR REYNOLDS:   If one goes to these statements of Mr Potter's affidavit then your Honour would need ultimately, I would submit, to read some of these annexures fairly carefully but they show, for example, exhibit 3.  The schedule talks about all documents which relate to allegations that John Robert Marsden is a pederast.

HIS HONOUR:   Now, this is an affidavit that was before the primary judge?

MR REYNOLDS:   Yes, it was.

HIS HONOUR:   As we said this morning.

MR REYNOLDS:   I am not going to bore your Honour by going through all of those documents but they show, I say, at least on an interlocutory level that the Royal Commission is inquiring into these allegations of pederasty against my client.  That is what all this material relates to.

HIS HONOUR:   Is that the only summons?  Is that the only notice?

MR REYNOLDS:   No, your Honour.  There are about eight of them.

HIS HONOUR:   They are at tabs 3, 4 ‑ ‑ ‑ 

MR REYNOLDS:   I think they are at 1, 2, 3, 4, 5, 6, 7.  Six in particular has got some affidavit material I think at the back of it.  No, not 6.  Seven, 8.

HIS HONOUR:   So that is 1 to 6?

MR REYNOLDS:   1 to 8, your Honour.  Your Honour will see when your Honour actually reads the ‑ ‑ ‑ 

HIS HONOUR:   Is that the lot, 1 to 8?

MR REYNOLDS:   Yes, your Honour, and also the affidavit from paragraphs 3 through to paragraph 15.  There is an attempt to summarise the effect of the documents and it shows not only that there are allegations of pederasty which come within the terms of reference but there are allegations of police interviewing of my client who was a member of the Police Board which, of course, picks up the reference to police misconduct vis-a-vis the allegations of pederasty against holders of public offices.  Your Honour, just on that question of the terms of reference your Honour will have noted from the exhibits to Mr Angus' affidavit were exhibit 1 in the black folder that in the terms of reference D1, D2, D3 but particularly F which is in the widest possible terms.  Does your Honour have that?

HIS HONOUR:   No, whereabouts?

MR REYNOLDS:  Mr Angus' black folder, exhibit 1.  Your Honour will see that the terms of references therein contains and it is clear from a welter of material that allegations of pederasty generally are within - and in particular in relation to someone on the Police Board and in particular where there are allegations of police interview and police misconduct come within D, D1, D2, D3 and with a very wide catch-all in paragraph F.  I am sorry, your Honour, I did not mean to labour the point which I concede that I have done.

The other point is this, your Honour, to emphasise hearings in this context is in my submission to misconceive what the Royal Commission is all about.  As Wood J said in his statement there are a variety of activities which take place as part of the Royal Commission's functions.  Part of it is open public hearings but the greater part of it is behind the scenes investigation and inquiry into the allegations.

HIS HONOUR:   Yes, I understand that.

MR REYNOLDS:   Your Honour, I will be very ‑ ‑ ‑ 

HIS HONOUR:   That why to some minds it is inapt to attach to judicial characteristics such as contempt but the New South Wales Parliament has done so.

MR REYNOLDS:   Your Honour took the words out of my mouth.

HIS HONOUR:   The court processes being public, executive processes being to a significant degree, private.

MR REYNOLDS:   Would your Honour just pardon me for a moment?  I do not think there is anything more.

HIS HONOUR:   Yes.

MR REYNOLDS:   Your Honour, just finally my friend mentioned Waterhouse's case and the refusal ‑ ‑ ‑ 

HIS HONOUR:   There seems to be a plethora of Waterhouse cases.

MR REYNOLDS:   Your Honour, he is a very keen litigant in this area.  Just two points I would make about that, your Honour.  The first is that that case did not involve the Sunday Times' proposition.  The second is if your Honour goes to the refusal of special leave your Honour will see at page 25 in the first column at B that the Chief Justice noted that it was important to note that with one small exception the proposed publication does not deal with the subject of the charge.  In other words it was not a Sunday Times' case and that is a matter which had been referred to by Mahoney J in the Court of Appeal in volume 6 of the NSWLR at 378B.

So it is a very different case from the one that has been mounted before your Honour today.  Your Honour, unless there is anything that your Honour wanted to raise with me particularly and I am eager if the suggestion is being made that it is an inappropriate vehicle to deal with any reason that your Honour can see in that regard would render this an inappropriate case for special leave.

HIS HONOUR:   Well, I will hear whatever you say, Mr Reynolds.

MR REYNOLDS:  Your Honour, I have made my submissions, all I am saying is if your Honour has anything further to ask me on that in particular then obviously I will do my best to respond.

HIS HONOUR:   All right.  Yes, thank you, Mr Reynolds.

MR SACKAR:   Would your Honour just pardon me one section?  Your Honour, I have given my learned friend something which he is looking at.  I do not want to make reference to that at the moment.  May I just give your Honour a reference to a case in addition to the matters that are already on our list, Chappel v TCN9 (1988) 14 NSWLR.  It dealt with the question of granting injunctions restraining a defamation not a contempt but the question of public interest in debate, etcetera, which is discussed at pages 163, 164 I wish to draw your Honour's attention to.

HIS HONOUR:   Anything you want to say about Chappel, Mr Reynolds?

MR REYNOLDS:   No, your Honour.  Your Honour, my friend has put before me for the purposes of procuring my consent to a tender of two additional articles.

HIS HONOUR:   Well, were these before the primary judge?

MR REYNOLDS:   Your Honour, I have made my submissions, all I am saying is if your Honour has anything further to ask me on that, in particular, then obviously I will do my best to respond.

HIS HONOUR:   All right.  Yes, thank you, Mr Reynolds.

MR SACKAR:   Would your Honour just pardon me one second?  Your Honour, I have given my learned friend something which he is looking at and I do not want to make reference to that for the moment.  May I just give your Honour a reference to a case in addition the matters that are already on our list; Chappell v TCN Nine 1988 14 NSWLR.  It dealt with the question of granting injunctions restraining a defamation not to contend, but the question of public interest in debate, etcetera, which is discussed at pages 163, 164, I wish to draw your Honour's attention to.

MR REYNOLDS:   Anything you ought to say about Chappell, Mr Reynolds?

MR REYNOLDS:   Your Honour, my friend has put before me, for the purposes of procuring my consent to a tender of two additional articles ‑ ‑ ‑ 

HIS HONOUR:   Well, were these before the primary judge?

MR REYNOLDS:   That is the point I was about to raise; they were not, and your Honour knows that there is a section 73 problem ‑ ‑ ‑ 

HIS HONOUR:   Well there is a constitutional problem.

MR REYNOLDS:   Exactly.

HIS HONOUR:   You had better say no more.

MR REYNOLDS:   Thank you, your Honour.

HIS HONOUR:   Well, I am indebted to counsel for their assistance in this matter.  There is this result of what Mr Sackar said before the luncheon adjournment, now in operation an undertaking by the respondent by its counsel to the court that without earlier further order it will not, before 4 pm on Monday, 6 May 1996, broadcast or transmit the material contained in exhibits C and D, or either of them.  I will adjourn my decision; I will deliver an oral judgment commencing at 10.30 am on Monday next and I adjourn the court to that time.

AT 3.08 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 6 MAY 1996