McLachlan v Australian Stock Exchange No. Scgrg-98-573 Judgment No. S12

[1998] SASC 12

MALCOLM BOYD McLACHLAN V AUSTRALIAN STOCK EXCHANGE LIMITED

[1999] SASC 12

LANDER J.       There is a plethora of applications before me this afternoon which are consequent upon decisions I gave in this court on Friday, 18 December 1988.  On that day, I dismissed proceedings brought by Mr McLachlan against the Australian Stock Exchange, in which he sought an injunction to restrain the Australian Stock Exchange from continuing with disciplinary proceedings in relation to his conduct between 1992 and 1997. 

On the same day and at the same time I dismissed applications for the suppression of two reports prepared by the Australian Stock Exchange in relation to that conduct, a letter enclosing those reports to Mr McLachlan, and a document entitled 'Notice of Charges', which was prepared consequent upon the preparation of the draft and final reports. 

In relation to the suppression orders, I noted that previous orders had been made by the Chief Justice and by a Master of this Court.  Out of an abundance of caution and consistent with my refusal to accede to the applications for suppression, I discharged those orders. 

It has been pointed out to me today by Mr Short, who appeared on behalf of The Advertiser and Business Review Weekly in opposition to all of the applications which have been made to me today, that the two orders of the Chief Justice expired in their own terms prior to me discharging the orders.

He also pointed out to me that an order of the Full Court, which continued the order of the Master, was in terms that the order expired upon the hearing and determination of the action in which I gave judgment immediately before judgment in the suppression proceedings. 

It seems to follow, from what Mr Short says, that all of the orders for suppression expired, at the latest, immediately upon me giving my decision in the substantive proceedings and there was no necessity for me to make the further orders which I made. 

The plaintiff has applied for a stay of my orders made on 18 December pending the filing and service of a notice of appeal and the hearing of that appeal.  In making that application, Mr Dal Cin, who appeared for the plaintiff, said that he had no instructions to undertake to prosecute the appeal expeditiously. 

Two of the three directors, whom Mr Lane represented on the hearing for the application for suppression, also sought a stay of my orders made on 18 December, in order that they may file and prosecute an appeal.  Mr Lane has advised me that he does have instructions to undertake to prosecute that appeal expeditiously. 

The company, Thompson Brindal Limited initially made an application to me for an interim order for suppression until 5 January 1999, in order that it could consider its position as to whether it would appeal from my decision made on 18 December.  Mr Whitington QC, who appeared on behalf of the company, indicated that his client had not been able to give him instructions whether it wished to appeal from my decision but would be able to give those instructions by 5 January. 

During his submissions to me in relation to the application for the interim order, he indicated that it would have been his submission, if he was making an application for a stay or of an order of that kind, that I ought to desist from hearing such an application upon the principle expounded in Paringa Mining and Exploration Company Limited v North Flinders Mines Limited (1988) 165 CLR 452.

That was a case for an interlocutory injunction which was refused pending trial.  After the refusal of that interlocutory injunction, an interim injunction was sought from the same judge pending an appeal from his refusal to grant the interlocutory injunction. 

The judge refused the application for the interim injunction and an application was then made to the High Court for an injunction in the terms refused by the trial judge.  The High Court indicated that, in its opinion, it was inappropriate for the trial judge to have heard the application for the interim injunction in circumstances where he had been the judge who had refused the interlocutory injunction. 

It indicated that it would have been appropriate for another judge of the Court to hear the application for the interim injunction so as to relieve the trial judge of the embarrassment of assessing the prospects of success of an appeal from his own decision. 

Mr Whitington said that an application for a stay or an order of that kind under s69a of the Evidence Act was of a similar character to that considered in Paringa Mining v North Flinders Mines, and in those circumstances he said if he was arguing for a stay, he would argue that I should desist from hearing the matter further. 

The matter was adjourned over lunch for the plaintiff and Mr Lane's clients to indicate whether they wished to adopt that submission and for Mr Whitington to obtain whatever instructions he could.  After the luncheon adjournment, the plaintiff and Mr Lane’s clients indicated that they supported and adopted the submissions made by Mr Whitington.  It was therefore put that in the circumstances of this case that I should desist from hearing the further application for a stay and allow the matter to be heard by another judge of the court. 

In response to that application Mr Short took me to the decision of the Full Court, Inre F (1989) 51 SASR 141. In particular, he took me to the reasons of the former Chief Justice in which his Honour indicated the appropriate procedure in circumstances where a judge had refused a suppression order and when the party who had made the application wished to appeal from that refusal. It seems to me clear from his Honour's reasons in InreF, that the appropriate judge to hear such an application was the judge who, in the first instance, had refused the application for an order for suppression.  

A decision to the same effect was made in State of South Australia v Carter and Myers (Judgment No.3019, 18 September 1991, Full Court). 

Both In re F and State of South Australia v Carter and Myers were heard subsequent to Paringa Mining v North Flinders Mines.  Paringa Mining v North Flinders Mines is not mentioned in either decision and it seems likely that the court was not referred to that decision in either case.  However, the decision in Paringa Mining v North Flinders Mines is so well known that it cannot be thought that the members of both Full Courts were not aware of that decision. 

After lunch, Mr Whitington advised that his client had now given him instructions to file and prosecute an appeal from my decision of 18 December.  That meant that his client was able, in less than an hour and a half, to give him instructions which he indicated earlier that morning he could not obtain for two weeks.  It is not clear why his client could not instruct him before today, and it is not clear why, except that Mr Whitington said he insisted on the instructions over the luncheon adjournment, his client was able to instruct him in so short a period of time that it wished to appeal from my decision. 

I indicated that I would not desist from hearing this matter and therefore continued with the hearing.  I did so because I thought that was the appropriate procedure having regard to decisions of the Full Court to which Mr Short had directed me. 

It is probable that the parties do not, in fact, seek a stay.  What they seek is an interim order that there be a suppression order pending the hearing of an appeal from my refusal to make a suppression order. 

If I was to refuse the application made, then that would have the effect, I accept, of rendering their appeal rights nugatory in relation to my refusal to make orders on 18 December.  I accept that it would be inappropriate to render a person's rights nugatory unless satisfied that such an extreme result is required by reason of the circumstances of the particular case. 

An order made under s69a involves the exercise of a discretion. It requires the judge to have consideration to a number of competing factors, and then to determine whether or not those competing factors would prejudice the administration of justice. In determining whether there might be prejudice to the administration of justice, then the judge must have regard to the matters referred to under s69a(2) of the Evidence Act. 

In this case, Mr Whitington says that his client will be seeking to agitate before the Full Court that I failed to have sufficient regard to the fact that the publication of the matters, which had previously been suppressed, might prejudice the administration of justice by reason of discouraging parties to use the court processes.  He accepts for the purpose of the argument that I had regard to those matters, but his argument before the Full Court would be that I gave insufficient weight to those matters. 

Mr Dal Cin says that his client would argue that point, and the further point that the proceedings which are to be heard before the disciplinary tribunal established by the defendant, The National Adjudicatory Tribunal, will be in private, and in refusing to make orders for suppression the allegations made against his client would be published in public, but his client’s denials will never be heard in public because the proceedings before that tribunal will be heard in private. 

Mr Lane also adopted the first submission made by Mr Whitington.  However, he said that his client would argue the further matter, on appeal to the Full Court, that his clients did not bring these proceedings before this Court and in those circumstances were subject to publication of matters said about them in circumstances where they had and could reasonably have expected the report made about them to be confidential.  He told me from the bar table, and I accept, of course, what he said, that his clients had been subsequently dealt with by the National Adjudicatory Tribunal but that I could not assume that his clients were charged with or found guilty of the matters alleged against them in the final report written by Mr Francese.   He said in those circumstances his clients' reputation would be seriously and adversely affected by the publication of this material.  More importantly, however, he said that would reflect on the administration of justice because his clients would be subject to publication of serious and damaging material in circumstances where they cooperated in the compilation of that material and in the disciplinary proceedings that followed upon an understanding that those proceedings and the information giving rise to those proceedings would be confidential.  

Mr Short argued that none of the grounds which had been raised had any prospect of success on appeal. He pointed out that these matters had been suppressed for some time and, if I was to allow those applications, the matters would not come before the Full Court for some considerable time. That, he said, would be contrary to the provisions of s69a(2) and also contrary to the views expressed by the Chief Justice in In Re F.  

That is not, in my opinion, necessarily a complete answer to the applications.  I think, if the appeals were pursued vigorously, that they could be heard early next year.  Delay, therefore, whilst relevant, is not decisive.

In the end the question to be determined on a question of this kind is whether it is in the interests of justice, bearing in mind that a negative answer will render the applicant’s rights of appeal nugatory, to make the orders sought.  Whether it is in the interests of justice to make the orders depends upon an assessment of the applicants’ prospects of success on appeal.

In my opinion it would be inappropriate to grant a stay or more precisely an interim order in relation to these matters unless I was satisfied that there were some prospects of success on appeal.  In that respect, although Mr Dal Cin said otherwise, I think it is not suggested that I did not have regard to relevant matters or had regard to irrelevant matters.  I think, in the end result, the matters which would be pursued by the Full Court boil down to whether or not it was appropriate to exercise my discretion in the particular way that I did.  The parties would have the difficulty of overcoming the dicta in House v R (1936) 55 CLR 499 and would have the very difficult onus of trying to persuade the Full Court that, in the circumstances where all relevant matters were considered and irrelevant matters ignored, the exercise of discretion was inappropriate.

In my opinion, the prospects of success are not sufficient for me to accede to the applications either for a stay or for an interim order pending appeal.  I dismiss the applications.