Marsden v Amalgamated Television Services Pty Ltd

[1996] HCATrans 148

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

3.58 PM, THURSDAY, 2 MAY 1996

MR G.O.L. REYNOLDS:   If your Honour pleases, in this matter I appear for the applicant.

MR J.S. WHEELHOUSE:   In this matter I appear for the respondent with MR NICHOLAS, who is on his way.

MR REYNOLDS:   Your Honour, we have in the last hour filed three documents in this court.  The first is an application for special leave to appeal.  The second is a statement in extremely rudimentary form in support of the application for special leave to appeal.   The third is a notice of motion.  Does your Honour have each of those?

HIS HONOUR:   Yes.  Now, you are moving on this motion?

MR REYNOLDS:   That is so, your Honour, but I should make clear this much.  Your Honour will see that that is a motion for an injunction pending an application for special leave to appeal from both a decision of his Honour Levine J and also a decision of the Court of Appeal.  I will explain that unusual feature, I hope, in due course.  I should make this clear, your Honour, that my application is by way of an ancillary application to that notice of motion.  My application is for an injunction pending the hearing of an application for an injunction pending an application for special leave to appeal. 

So, your Honour, what I envisage is that your Honour granted this short interim injunction, say, to early next week, there would be - if your Honour granted the injunction - an application in this court before a single Justice, for an injunction pending an application for special leave to appeal.

HIS HONOUR:   There are no affidavits in support of this motion?  When I say "this motion", the preliminary motion?

MR REYNOLDS:  No, your Honour, there are not.  There are circumstances of urgency and I will want to put various items, various pieces of material before your Honour which I do not think are in dispute.  Principally, the judgments below and the orders that were made below.

HIS HONOUR:   Let me ask Mr Wheelhouse what his attitude is.

MR WHEELHOUSE:   We have no difficulty.  Your Honour should have before you the decision of Levine J.

HIS HONOUR:   No.  I want to know what is to be done overnight, bearing in mind where you are, and that one is not to be rushed.

MR WHEELHOUSE:  Your Honour, we oppose any interlocutory relief of the kind sought by my learned friend.

HIS HONOUR:   So, tomorrow at noon?

MR WHEELHOUSE:  Can I get instructions on that, your Honour? 

HIS HONOUR:   I am not urging you to consent to it.

MR WHEELHOUSE:   I have no instructions to consent.  My instructions are to decline to consent to an injunction till noon tomorrow.

HIS HONOUR:   Yes.  Very well.  I find that an unattractive attitude.  Yes, Mr Reynolds?

MR REYNOLDS:   Your Honour, perhaps if I can put the materials my friend mentioned.

HIS HONOUR:   The first thing, I suppose, one has to have is the judgment of the Court of Appeal.

MR REYNOLDS:   Yes, your Honour, and I have a copy of that together with an uncorrected version of the judgment of Levine J.

HIS HONOUR:   They had better become exhibits A and B at the moment, seeing that there are no affidavits. 

EXHIBIT A - JUDGMENT OF COURT OF APPEAL

EXHIBIT B - JUDGMENT OF LEVINE J (UNCORRECTED)

HIS HONOUR:   The next thing, I suppose, is the tape of this programme that you refer to in your motion.

MR REYNOLDS:   I can deal with in either of two ways.  There was an affidavit below by my instructing solicitor, Mr Potter, which annexed an enormous amount of material, but included in that material were two transcripts which were admitted into evidence.   I have copies of the two transcripts.

HIS HONOUR:   Transcripts are one thing;  images are another.  Has there ever been evidence comprising the tape of this?

MR REYNOLDS:   Yes, your Honour, there has been.  It was tendered before Levine J, originally on the ex parte application and it became an exhibit, and the interlocutory application and it was before the Court of Appeal, and we have not in the rush to get before your Honour, managed to prise those tapes from the Court of Appeal's possession;  nor have we been able to get a - - -

HIS HONOUR:   Was it given an exhibit number?

MR REYNOLDS:   Yes, your Honour.  It was called Exhibit A - or one of the tapes was Exhibit A before Levine J.

HIS HONOUR:   It is the Court of Appeal I have to worry about.   Was it Exhibit A before the Court of Appeal?

MR REYNOLDS:   I do not think it was ever given a different exhibit number, your Honour, it was just treated as Exhibit A before Levine J, if I can put it that way.

HIS HONOUR:   And when was it tendered?

MR REYNOLDS:   It was tendered originally last Tuesday which is 23 April.

HIS HONOUR:   Is that agreed?

MR NICHOLAS:  I am sorry, your Honour, yes, it was.

HIS HONOUR:   On 23 April?

MR REYNOLDS:   And it also became an exhibit on 26 April before His Honour, Levine J, in the interlocutory application.

HIS HONOUR:   What was the occasion of the first tender?

MR REYNOLDS:   On an application for an ex parte injunction.  Your Honour is interested as to how the plaintiff managed to obtain the tapes on an ex parte application, there were proceedings extant in the Supreme Court between these parties and the defendant indicated that it would be present on the hearing of the ex parte application and it produced the tapes pursuant to a notice to produce in those extant proceedings.

HIS HONOUR:   Yes.  You are really moving ex parte, are you not?

MR REYNOLDS:   Your Honour, we are content to move ex parte.

HIS HONOUR:   What do you say about that, Mr Nicholas?

MR NICHOLAS:   Your Honour, it would be quite unrealistic for the matter to be conducted ex parte.  The whole thing has been thrashed out now over, I think, four days.

HIS HONOUR:   It is not going to be thrashed out four days here but it will be thrashed out, however, effectively and soon, and I am minded to sit tomorrow morning at 10.30.  Gaudron J has a single Justice matter at 9.30 which she tells me is likely to be finished by 10.30, and I will then sit to deal with this matter as soon as it can be done.   In the meantime, if your client is presently unrestrained, it should be restrained, I suppose, because that is the subject matter from the court's point of view.

MR NICHOLAS:  Really, your Honour, we would say no to that, with respect.

HIS HONOUR:   I am not asking you to consent, I am just telling you what is in my mind.

MR NICHOLAS:  Yes, I can understand what it in your mind, but really, we get back to where we have been for the last four days, your Honour;  that these things simply are not just for the asking.  Your Honour has been told very little.  You have not been taken to word of - - -

HIS HONOUR:   Yes, I know I am set to hear it, Mr Nicholas.  I would adjourn at six and I would enjoin you overnight while I considered my decision.  If you are going to be realistic, let us get realistic.

MR NICHOLAS:   Could I just take some instructions on that?  I am caught between a rock and a hard place, your Honour.  The answer is, we will have to obviously accept the realities, as your Honour puts it.

HIS HONOUR:   Yes, but what I want to be quite clear about, is the identity of that which you are restrained in respect of.  I need to be clear that that is the relevant program as represented in that exhibit.

MR NICHOLAS:   Your Honour, there were orders ‑ ‑ ‑ 

HIS HONOUR:   Loosely expressed, if I may say so.  I do not make loosely expressed orders.

MR NICHOLAS:   I would have thought it be sufficient for ‑ ‑ ‑ 

HIS HONOUR:   It is not right to restrain a client in your position by anything that is less than precise.

MR NICHOLAS:   Your Honour, what I can say and I would hope that this order be sufficient that the programs which were exhibits A and B before Levine J. and before ‑ ‑ ‑ 

HIS HONOUR:   Mr Reynolds mentioned exhibit A, what was exhibit B?

MR NICHOLAS:   There are two versions, your Honour, one was what was described as an uncensored version, that was one of the exhibits and whichever the other one was was the censored version.  Exhibit A was the censored version, Exhibit B was the uncensored version.

HIS HONOUR:   Restraint should be in respect of both, I suppose.

MR NICHOLAS:   Exactly, what I was going to say to your Honour, is that I would hope it would be sufficient for everyone for this time for me simply to say that we will not be putting to air either exhibit A or exhibit B prior to 10.30 am tomorrow morning.  Your Honour, we are concerned, if I may say so, for anything other than that to suggest, for example, that the court would make an order until further order in matters of that sort because then those things have problems about ‑ ‑ ‑ 

HIS HONOUR:   I do not make orders of that sort.

MR NICHOLAS:   Thank you, your Honour.  Well, that is the situation and on that basis, with respect, nothing more need be done, we would say.

HIS HONOUR:   Well, I think I should probably express it as an injunction, should I not?

MR NICHOLAS:   All I am saying, is you do not need to, your Honour.  We do not want, if I may say so, to have that.  We have given our word and we have told you we will not be doing that.

HIS HONOUR:   Yes. One is going to start at 10.30, it is not going to give you a result by 10.30.

MR NICHOLAS:   Sure, but we are before your Honour.

HIS HONOUR:   That is why I said move, you see.

MR NICHOLAS:   I must say, I did not hear you say that. 

HIS HONOUR:   I propose to start at 10.30 but things might be clear by noon if you see what I mean.

MR NICHOLAS:   I have no problem about that.

HIS HONOUR:   Do you have anything to say about that, Mr Reynolds.

MR REYNOLDS:   Only this, your Honour, I do not want to crave your Honour's indulgence too far.  If your Honour would hear the precise application that I outlined, namely one to preserve the subject matter of these proceedings pending a later application for an injunction, pending the hearing and determination of an application for special leave to appeal, then I have nothing more to say.  If, on the other hand, your Honour, we are to entertain tomorrow the injunction, the application for the injunction pending the determination for special leave to appeal, then your Honour, it is my application that if it is convenient to your Honour and the court that the matter be heard early next week.

For this reason, that the threshold test, which I would have to surmount on that application, would obviously be higher than the one which is before your Honour here today.  We have only just received, it is now two hours ago actually, but we have been busying ourselves with this application, only just got the judgment of the Court of Appeal and I would have to satisfy your Honour that there are, if your Honour sat on that application, real grounds for your Honour thinking that an application for special leave to appeal might succeed.

HIS HONOUR:   That is right the sooner we get to that the better.

MR REYNOLDS:   Indeed, your Honour, but your Honour would appreciate from the nature of this application the prejudice to my client's rights that may be involved in the broadcast of these matters and I would like, your Honour, the opportunity of having enough time properly to prepare submissions to your Honour, on that issue.  I hope I have made my client's position clear.

HIS HONOUR:   Both Counsel are fairly quick witted.  You have both been debating about this four days.

MR NICHOLAS:   The grounds have been trampled on for five very long days, your Honour.  It is hard to imagine anything more that either of us could say.

HIS HONOUR:   Things attain a different conspectus up here of course.  What one really is concerned with, I suppose at the bottom, is this really - is there any error of principle in the way in which the Court of Appeal went about this task.  Was any application made to the Court of Appeal to grant interlocutory relief to preserve the status quo to give you enough time to do what you say you have to do, or in other words, have you come here without going there.

MR REYNOLDS:   Your Honour, I made an application to the Court of Appeal.

HIS HONOUR:   After delivery of these reasons.

MR REYNOLDS:   After delivery of these reasons for an interim injunction to protect my client's rights until such time as I was able to bring the application in this court for an injunction pending the determination of an application for special leave.

HIS HONOUR:   Yes.  What was the outcome of that?

MR REYNOLDS:   It was refused.

HIS HONOUR:   With reasons?

MR REYNOLDS:   Your Honour, there were very short reasons given by the presiding judge, Priestly J, or they might fairly be categorised as simply, statement made to me in general terms about the application that was refused.  My recollection of what his Honour said was simply that it would be clear from the court's reasons for judgment that there was no ground for my application.

HIS HONOUR:   Does that concur with your recollection, Mr Nicholas?

MR NICHOLAS:   That is the substance of it, your Honour.

MR REYNOLDS:   In any event, your Honour would know that there is a decision in this court called, Paringa Mining, I do not have the reference, that indicates that an application of this sort ought be brought in effect to the High Court rather than ‑ ‑ ‑ 

HIS HONOUR:   What happened in Paringa was the unfortunate parties, there was a take over and there was a large parcel of shares, I think about to be allotted and the unfortunate parties were unable to get before the Full Court of the Supreme Court of South Australia.  They had to come here because the doors had been shut to them.  Paringa is a very special case, because the doors had been shut against them and they had nowhere else to go.  The doors have not been shut against you here.

MR REYNOLDS:   Your Honour, the proposition I was thinking of and I am getting this from one of the practices, is that this court said in Paringa, that it is not satisfactory to leave to the Judge and I interpolate all Judges whose orders are under review, the exercise of the appellate discretion to grant or refuse the injunction pending the appeal and it may be that it is that proposition their Honours had in mind.

HIS HONOUR:   What I will think about overnight is just what it is in the Court of Appeal judgment, and I appreciate it has only just been delivered, that would attract a grant of special leave as a matter of principal.  Granted that the balance of convenience is strongly in favour of your client, I think Mr Nicholas would agree.

MR NICHOLAS:   I certainly, would not, your Honour.

HIS HONOUR:   In the sense that - well, maybe you should - the balance of convenience in relation to the leave application, in other words if relief is not given the leave application in a way is going to be something heard after the cat is out of the bag.  It is one of those injunction cases but granted all of that what is the question of principle going to be.  That is what one has to find out and bear in mind it is a principle going to the administration of interlocutory relief in the Court of Appeal.  To be precise going to the administration by the Court of Appeal of its appellate jurisdiction in relation to refusal of interlocutory relief at the primary level.

Now you mentioned your seeking leave against the primary Judge's decision and I did not give you the opportunity to explain why.

MR REYNOLDS:   Would your Honour like me to do that now?

HIS HONOUR:   Yes.

MR REYNOLDS:   Would your Honour like me to deal with that now?

HIS HONOUR:   Yes.

MR REYNOLDS:   It is an unusual situation, I would submit, and may I concede first up that it would have to be a rare case where your Honour or the court would grant special leave to appeal from a single judge.  Can I explain why it would be appropriate in this case?

HIS HONOUR:   Yes.

MR REYNOLDS:   Your Honour would be in a situation where you had before you the reasons of Justice Levine and also the reasons of the Court of Appeal dealing with precisely the same questions but determining that there was no serious question for the grant of leave to appeal.  When your Honour reads the reasons, I submit that it is clear that their Honours in the Court of Appeal have looked at the matter and looked at it in some detail, albeit dismissing my client's application even on that low threshold test.

HIS HONOUR:   Yes.

MR REYNOLDS:   In that situation it could reasonably be anticipated what the result obviously would be in the Court of Appeal were the matter to be heard by those three judges.  The only alternative application which would be open to my client would be to seek special leave to appeal from their Honours interlocutory determination, as it were, in the context of the appeal to them and it would then leave my client in the situation where it had to return to the Court of Appeal to what was virtually a foregone conclusion in that court where that court had given effectively full reasons for refusing leave and for refusing the appeal in due course to that your Honour would not be put and the court would not be put in a situation where there had been no proper consideration of the issues by the Court of Appeal.

Further, your Honour, I would want to submit that there are issues in this case which would inevitably warrant the grant of special leave to appeal to this court in due course and that in the circumstances a grant of special leave would itself not be something which your Honour would reject out of hand.

HIS HONOUR:   That is what I want to know about.  Should I see either of these exhibits, AS or B?

MR NICHOLAS:  I think your Honour is going to need to.

HIS HONOUR:   I would have thought so.

MR REYNOLDS:   The trouble is, one of the things, your Honour.

HIS HONOUR:   How long do they take to run?

MR NICHOLAS:   20 minutes.

HIS HONOUR:   Each ten or 20 minutes?

MR NICHOLAS:   20 and 10.  What the Court of Appeal did, overnight they watched it and came in so we did not have to take up court time doing that.  One thing that was before the court, though, and they refer to it in their judgment of course, is a bundle of material extracted from the exhibits before the trial judge which was relevant to the context and the history and so on.  That is alluded to in the judgments of both the trial judge and, of course, the court but that is material which is necessary to look at in one's assessment of the matter and it is very hard to divorce one from the other.  wwe would be saying it was an important consideration but your Honour, no doubt, will form a view about that as you read the judgments to decide whether or not you feel in the circumstances you ought - - -

HIS HONOUR:   It is up to the parties to tender what they want to tender.

MR NICHOLAS:   Yes.   I would have thought you should have the material that was before the court.

HIS HONOUR:   If it is objected to I will rule on it, a simple position.  On the other hand, if the material gets too voluminous - - -

MR NICHOLAS:   Sure, it has problems about it but we think you need at least to have some of the material.  The Court of Appeal had a truncated - by consent the exhibits were very much reduced before them and we would have thought - - -

HIS HONOUR:   I hear what Mr Reynolds says about appealing from a primary judge but I should really have before me what the Court of Appeal had, maybe less but not something they did not have before them.

MR NICHOLAS:   We can arrange or, my friend has got the carriage of this matter, between us we can arrange for, no doubt, the material that was before the Court of Appeal to be before you or a folder of the material.

HIS HONOUR:   I am worried about the logistics, frankly.

MR NICHOLAS:   If we got it to you tonight, is that acceptable?
HIS HONOUR:   No.

MR NICHOLAS:   Very well, if we got it to you before 10.30

HIS HONOUR:   That is what I was thinking but I would like to use the time if it is possible before 10.30 at least looking at the videos.

MR NICHOLAS:   Exactly, yes.

HIS HONOUR:   Is there any difficulty in uplifting them from the Court of Appeal?

MR NICHOLAS:   I am told we have got them here, your Honour.

HIS HONOUR:   Do you have additional copies, does Miss Miss Wheelhouse have additional copies

MR NICHOLAS:   I am told so, yes.

HIS HONOUR:   Has she got them with her.

MR NICHOLAS:    Oh, we do not let them out of our hands.

HIS HONOUR:   They can be tendered here after Mr Reynolds has looked at them.

MR REYNOLDS:   Your Honour, if my friend says they are the same as exhibits A and B before the primary judge I will have no objection.

MR NICHOLAS:   That is what I am told.  Does your Honour have a copy of Justice Levine's judgment?

HIS HONOUR:   Yes, that is exhibit B at the moment.

MR NICHOLAS:   May I tender the two tapes and tomorrow morning your Honour will - - -

HIS HONOUR:   Which is the longer version?  I see, it is apparent from the description.  The side note says Part 1 and 2, what does that mean?

MR NICHOLAS:   That sounds to me like exhibits may have stayed.

HIS HONOUR:   The censured version, it says Part 1 and 2.

MR REYNOLDS:   Perhaps I can assist your Honour.  There are two parts to the uncensored version and two parts to the censured version.  The second part of each version is identical except that on the censured version my client's name is beeped out once.   As far as the censored version and uncensored versions are concerned there are substantial differences in Part 1 between those two versions.

HIS HONOUR:   I follow, thank you.

MR REYNOLDS:   I am sorry for the way this is presented to the court but the other material which was before Justice Levine and before the Court of Appeal was an affidavit of my instructing solicitor, Richard William Potter, sworn 26 April 1996.  This has been a rush application from go to whoa and I regret having to hand up that material in this form, but I do have a copy of that for your Honour.

HIS HONOUR:   It would be best if you got that in some form overnight, I think.

MR REYNOLDS:   What I was thinking of your Honour is that in that affidavit there are some transcripts which would be useful for your Honour to look at overnight.

HIS HONOUR:   But people looking at this do not have the transcript.

MR REYNOLDS:   No they do not, your Honour, and I concede that.  It would simply be an aid to your Honour.

HIS HONOUR:   Yes, I can have the aids later.  So what I am suggesting to you is that you defer the tender of that affidavit and the transcripts to tomorrow morning.

MR REYNOLDS:   At 10.30, thank you.

HIS HONOUR:   And you will have to do better than a bulldog clip like that, too.

MR REYNOLDS:   I was not going to hand your Honour another document in that form.

HIS HONOUR:   I should say to the parties, I suppose, that in common with a number of members of the court your client is known to me both as a litigation solicitor in active practice in the Federal Court and as former president of the New South Wales Law Society, which is what he was, is not it?

MR REYNOLDS:   Yes, your Honour.

HIS HONOUR:   There it is.  Thank you, Mr Reynolds.  Just pardon me a minute, gentlemen.  Exhibits C and D will be the two video tapes handed up by Mr Nicholas but I will tender them as if they are in Mr Reynolds case.  Exhibits C and D will be the two video tapes, exhibit C being uncensored version and exhibit D being censored version, and as indicated I will have them played to me before the court resumes tomorrow morning.

EXHIBIT C - UNCENSORED VIDEO TAPE

EXHIBIT D - CENSORED VIDEO TAPE

What I propose as a formulation of your undertaking, Mr Nicholas, is upon the respondent by its counsel undertaking to the court that without earlier further order it will not before noon on 3 May 1996 broadcast or transmit the material contained in exhibits C and D, or either of them, upon that undertaking set down for hearing before me at Sydney at 10.30 am on 3 May 1996 the applicant's notice of motion filed 2 May 1996.

MR NICHOLAS:   Your Honour, in the interests of time, would it assist you if I gave you two references which deal with these?

HIS HONOUR:   Yes.

MR NICHOLAS: There are some principles which may be considered by your Honour. The most recent is a case decided by Kirby J in February, it is Bryant and Commonwealth Bank of Australia, 70 ALJR, 306. The other one, your Honour, is referred to in a Jennings Construction of Burgundy Royale, a decision of the Chief Justice.

MR REYNOLDS:   Your Honour, we would expect to seek to tender before you a reduced collection of material at 10.30, and we will obviously discuss that with my friend.

HIS HONOUR:   It would be helpful if there is no duplication.

MR REYNOLDS:   No, there will not be any duplication.

HIS HONOUR:   So you give that undertaking?

MR NICHOLAS:   I am sorry, yes, I do.

HIS HONOUR:   Is there anything else this afternoon, gentlemen?

MR NICHOLAS:   No, your Honour.

HIS HONOUR:   We will adjourn until 10.30 tomorrow.

AT 4.32 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 3 MAY 1996