Police Force of Victoria v Sobh

[1993] HCATrans 159

..

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M35 of 1993

B e t w e e n -

POLICE FORCE OF VICTORIA

Applicant

and

KHODER MOHAMMED SOBH

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Sobh 1 17/6/93

AT MELBOURNE ON THURSDAY, 17 JUNE 1993, AT 3.04 PM

Copyright in the High Court of Australia

MR R.A. FINKELSTEIN, QC:  May it please the Court, I appear

with my learned friend, MS E.J. HOLLINGWORTH, for

the applicant. (instructed by the Victorian

Government Solicitor)

MR D. PERKINS: If the Court pleases, I appear for the

respondent. (instructed by Kuek & Associates)

MASON CJ:	Mr Finkelstein.
MR FINKELSTEIN:	May it please the Court. When the

respondent was 15 years old he was charged, on

summons, with offences of burglary and theft. The

summons was returnable in the Children's Court in

November.

MASON CJ:  We are familiar with the history of the matter.

There is no need to spend time on that.

MR FINKELSTEIN:  May it please the Court. There was an

issue that was dealt with by the trial judge,

Mr Justice Hayne, and if considered by the

Full Court, obliquely considered by it, an issue of

law which we say would have determined the case

against the respondent by the Full Court. The

point that the Full Court did not deal with, as we

say, perhaps obliquely but not directly, can be

shortly stated. Once criminal proceedings have

been commenced in a particular court, those

proceedings are to be determined in accordance with

the rules and practice of that court.

In criminal proceedings, it is generally

accepted that a person does not have a right, that

is, the accused person does not have a right to call for the production of all documents in the possession of the prosecution. That is to say,

there is no rule of law which enables an accused
person to indiscriminately see all documents that

the prosecution holds.

There are a number of Full Court decisions in

Victoria which make good that proposition and to the

extent that it might be helpful, I have collected a

bundle of cases. I will make passing reference to

some only of them, but the two cases which stand for

the propositions which we have just made are

Charlton, (1972) VR 758, at page 761 about line 45

and on to the bottom of the page. I-t! is behind the

second tab in that bundle of cases. The Full Court

says, and we say accurately says, that there is:

no reason in principle or upon authority for

any such right.

Sobh 2

A later decision of the Full Court, Clarkson

which is tab 3, decides much the same point and '

that at page 759, lines 11, 12 and 13, where

Mr Justice Murphy, who delivered the judgment of

the Full Court, said:

there is no rule which enables the accused to

seek at the outset indiscriminately to see the
relevant papers within the possession or

control or power of the prosecution.

MASON CJ: But was this not accepted by the appellate

division?

MR FINKELSTEIN:  In part, yes, but the appellate division -

at least on this point, which is not the

substantive point in the case - accepted that there

was no general right of discovery in criminal

proceedings but Mr Justice Brooking, who delivered

the main judgment on this aspect of the case, said,

in the application book at pages 55 and 56,

especially at page 56, line 17:

Can it in 1993 be doubted that a criminal

court has, to use the words of Cardozo, C.J.

in posing the question, inherent power to

allow by order the inspection of documents or
objects "in furtherance of justice"?

MASON CJ: But that is a different proposition.

MR FINKELSTEIN: Yes, it is.

MASON CJ:  It can be quite consistent with your proposition,

accepted by Mr Justice Ashley, that there is no

right to discovery or to inspection of particular

documents.

MR FINKELSTEIN: That is correct. All I was going to say

about this passage in Mr Justice Brooking's

judgment is that if it is an accurate statement of

the law, it seems to have gone much further than

any previous case that has looked at the question.

It is true that there are cases which have said -

including the Victorian Full Court - that in a

particular case a court has power to order the

prosecution to make available a particular

document. Mr Justice Brooking goes through some of

the cases and the power has been said to exist in a
case where the prosecution, for exa..rnple, has a
statement of a witness which the prosecution does

not propose to call but may be of help to the

accused person.

The issue that has never been determined by any ultimate appellate court is really whether such

a power exists or whether that is a question of the

Sobh 3

duty of a prosecutor to provide such documentation

with a consequence that if the duty is breached

there has been a miscarriage of justice. But it is

true that one finds, even if one goes back a long

way, examples of particular documents forwarded by

the court to be made available to the defence but
they have always been a limited class of document;
documents such as those that relate directly to the

prosection; if, say, for example, an extortionate

letter is written which is the subject of the

charge, the accused person is entitled and it has

been ordered that the accused person can receive

such a document because it goes to the charge.

Sometimes the courts have said that an

accused person may be entitled to documents which

will be tendered in evidence against him by the

prosecution, that is, entitled to them in advance

of their being tendered in evidence. No court has

gone so far as to say that the court has an

inherent power to allow the inspection of documents

or objects in the furtherance of justice. Indeed,

the case where that passage is extracted from, the

judgment of Chief Justice Cardozo, His Honour left

the question open whether there was such a power

and pointed to the very many cases that said that

there was no such power, to the lesser number of

cases that said there may be such a power, and said

that the court was not going to decide that issue.

There are Canadian cases that are on both

sides of the fence; a relatively recent Canadian
case querying - on the question of power, not the

question of discretion - whether the court has

power before trial to order - that is power,

statute apart - the inspection of documents in

favour of an accused person. But whatever the

position is - and at least the Full Court accepted

this proposition, that there is no general right to

unspecified documents and it may be that there is

only a very limited right or no right at all - but

however far the right, if it be called that, that

an accused person has, it is certainly not a
general right,	and that is the point on which we

start our criticism of what the Full Court said,

because our position is a quite short proposition:

if an accused person has recourse to the Freedom of

Information Act to have general access to documents

in the possession of the prosecution, or documents

in the possession of the Crown, to ~btain thereby

documents which he would not be entitled to get, on

whatever view you take of the right of an accused

person in criminal proceedings, by exercising that

statutory right he is obtaining an advantage in the

criminal prosecution which the rules and practices

of that particular court do not afford him.

Sobh 4

We contend that by exercise of a power to seek

to achieve that result, that that in itself

constitutes prejudice to the administration of

justice or the administration of law. We base our

reasoning on the proposition that that type of

conduct could or, indeed, often would constitute a

contempt of court. Two cases - one in the High

Court - that stand for that proposition.

MASON CJ: But if that be so, would that not constitute a

ground which would be an exemption under the

statute?

MR FINKELSTEIN:	To the exercise of the power?
MASON CJ: Yes.
MR FINKELSTEIN:	Your Honour raised that very issue in

Pioneer Concrete v Trade Practices Commission and, as I understood what Your Honour said on that

issue, it did not go to the exercise of the power

because that would be, at the end, too complicated

but, rather, had to be dealt with on the question

of contempt.

MASON CJ: True, but it was not in the context of a freedom

of information statute.

MR FINKELSTEIN:  No, it was in the context of the Trade

Practices Act which gives to the Commission the

right to obtain documents and whatever documents it

seeks. In that case, which is the sixth case in
the bundle, only two members of the Court

considered the point, the former Chief Justice,

Sir Harry Gibbs and Your Honour Justice Mason, but

can I take the Court first to just a sentence in

Sir Harry Gibbs' judgment at page 467, at the

bottom of the page, last two lines, where

His Honour says:

I incline to think that if the power -

that is the power under the Trade Practices Act

which the Commission can avail itself of to obtain

production of documents -

were used to assist a party in proceedings

already pending, in a way that would give such

a party advantages which the rules of

procedure would otherwise den~·him, there

would be a contempt of court.

There was not in this case because the power was

not being exercised for that particular purpose.

However, in the case, the subject of this

application, the only purpose for the exercise of

the power was to obtain the documents for use in

Sobh

those current - which are still current -

proceedings.

Your Honour Justice Mason dealt with the matter at page 473. It is at the top of the page,

about five lines down. Raising the question of

construction that Your Honour put to me a moment

ago, Your Honour says:

A statute expressed in general terms should

not be construed so as to authorize the doing

of any act which amounts to a contempt of

court.

And then there is a reference to Lockwood. Then,

the next paragraph:

Section 155, cast as it is in general

terms, does not address itself to the question

of contempt of court. It should therefore be

read as not authorizing any action on the part

of the Commission which would amount to such a

contempt. Whether this leads to the

conclusion that any action by the Commission

which amounts to a contempt would necessarily

stand outside the power which the section

confers is a larger and more difficult

question. It is possible to read the section

as conferring power on the Commission to act

in accordance with its terms, but subject to

the law of contempt, so that action taken

under the section is subject to the exercise

by the Federal Court of its contempt powers.

This appeals to me as a more sensible

construction of the sub-section, one which

avoids locating the ambit of the power at the

point, not readily identifiable, where

contempt begins. There are advantages in

keeping questions of power and contempt

separate.

Now, we would say either - and for our

purposes it does not matter whether you restrict

the power given to an applicant under the

Freedom of Information Act section to get in the

documents or you construe it as being directly

within the ambit of the exemption. Because, if it

is a contempt of court in the way that at least

Your Honour Justice Mason seemed to have accepted, and the way that Sir Harry Gibbs said in the short

sentence that I read, then it would, by definition,

in our respectful submission, fall within in the

exemption in 3l(l)(a) because it prejudices the

proper administration of the law. The proper

administration of the law being the administration

of justice in this particular instance, this

particular piece of criminal litigation.

Sobh 6

MASON CJ: Are you submitting that because it imposes an

obligation that is different from a right that exists under the procedure of the court, it is necessarily a contempt on that account?

MR FINKELSTEIN: Yes.

MASON CJ: You are?

MR FINKELSTEIN: Yes, because the power in the Trade

Practices Act is coersive. That is, non-compliance

with a section 155 notice can lead to penal

sanctions being imposed, but that is not the

rationale of the point of principle. The rationale

of the point of principle is that when you commit

yourself, or when you are committed to particular

curial proceedings, you commit yourself to the

practices, amongst other things, of that particular

tribunal, and if you seek to get an advantage which

is not available in that tribunal for use in that

tribunal, that constitutes the contempt. That is a

point of principle which does not depend on their
being coersive powers such as exists under the

Trade Practices Act, to make good the right to get the information. That is not the basis and should

not be seen to be the basis of the decision.	The
basis of a point is getting the advantage.

MASON CJ:  Was that submission put in those terms in the courts below?

MR FINKELSTEIN: That was the submission that was put and it

was the only submission on which the trial judge,

Mr Justice Hayne, decided the issue. The

Full Court received the submission, and had the trial judge's reasons before it in any event, but did not address, in terms, our submission at all.

Not only did it not do that, it did not deal with

the cases even to say that they do not apply for

the following reason or reasons. Made no reference

to anywhere in the course of their judgment - - -

GAUDRON J: But do you not have to face the proposition

really, that if the law says you are entitled to a

document, even though the court processes are

limited, then it does not prejudice proceedings.

You are not getting anything to which you are not

entitled to.

MR FINKELSTEIN:  It depends on how you trea~·the expression,

"proper administration of the law".

GAUDRON J: Say for example this: you go along to the

prosecuting authorities and you say, "Do you have

information of such and such and such" and they

say, "Yes, we have it", and it turns out that it is

Sobh 17/6/93

in fact information which would be subject of Crown

immunity and would not be produced on subpoena.

MR FINKELSTEIN: Yes.

GAUDRON J:  How is it that you are prejudicing the proper

administration of the law by obtaining information?

I mean, it may well be that you are assisting the

proper administration of the law by having it,

particularly if it is relevant.

MR FINKELSTEIN:  The view that Your Honour expresses is the

view that was accepted by the New Zealand Court of

Appeal on a similar case, that is, whether or not a

person who is the subject of criminal proceedings

can get possession of Crown material in order to

advantage his criminal case.

GAUDRON J: It is not an advantage to his criminal case. It

is really that it is relevant to his defence. I

mean, we are not talking really about people who

commit themselves to a court, we are talking about

people who have no choice about it.

MR FINKELSTEIN:  I accept that. They may not have a choice

about it, but what we submit is that whether by

choice or otherwise, you commit yourself to a

particular tribunal, you may do it as a defendant

in a suit bought civilly or by prosecuting

authorities, or you may do it as plaintiff and

voluntarily go there if you seek to obtain an

advantage which is not available to you in that

tribunal. That is to say, seek to run your case in

a way that the rules of practice of that tribunal

do not allow, that constitutes an interference with

the administration of the law that is justice in

that case and - - -

GAUDRON J: It is not that the rules do not allow, it is that

to obtain a benefit which is perfect which on one

view is proper and authorized, but by a route

different from that which you would have used if

you were confined to the rules of the court.

MR FINKELSTEIN: In a sense, the trade practices provision

is exactly the same. The Trade Practices Act gives

to the Commission a statutory right to obtain

documents. All they have to do is serve an

appropriate form of notice on a person and say,

"Pursuant to this notice please hand over the

following documents". That is a statutory right

which the Commission has. But the courts have

said, in respect of that statutory right and the

statutory rights given to the Income Tax Department

under similar legislation, that in certain

circumstances, you not cannot use the right because

the power is still there, but your use of that

Sobh 17/6/93

right constitutes a contempt of court. That is not

to say - - -

GAUDRON J:  One can understand in certain circumstances, but

your proposition is that obtaining information

which may be relevant to your defence, which you

could not obtain by the laws relating to subpoena

or notice to produce by the procedural rules of the

court in which you are to appear, invariably

amounts to a contempt of court, even if it would

result in all material facts being before the court

and, in the absence of its use, material facts

might be kept from the court.

MR FINKELSTEIN:  No, that is not to say that criminal

proceedings are not properly and fairly conducted.

GAUDRON J:  It is to say that the courts have very little

role in relation to them, but the prosecutors

discretion is supreme, in practical terms, is it

not?

MR FINKELSTEIN:  It is not a question of discretion though,

Your Honour, it is a question of duty and it is an

enforceable duty.

GAUDRON J: If you can find the information later?

MR FINKELSTEIN: That is a practical consequence but what I

am dealing with is a point of legal principle,

because when persons are committed to a criminal

case - I do not mean committed in the sense of committed for trial, but when a case goes to a criminal court then it is the rules of that court

which one assumes and hopes are fair which regulate

the particular prosecution. And it is wrong, so as

to constitute a contempt of court, to seek to do

something or to achieve a result which the rules of

that court say you are not entitled to. So if the rules of court say you are not entitled to general discovery and a person says, well I have got a way

to get general discovery in any event - - -

GAUDRON J: Well, do they say you are not entitled to

general discovery, rather than this court has not

got power to order general discovery, which is a

different point?

MR FINKELSTEIN:  It is difficult to know what the answer to

that question is; that is a question that has not

been satisfactorily answered anywhere. Some cases

speak about it in terms of it is just a question of

duty of a prosecutor to make information available;

some cases do say that the court actually has power

to make particular types of documentation and other

physical things available for inspection by an

accused and some doubt the jurisdictional power at

Sobh 9 17/6/93

all. And I do not think, yet, there is a

satisfactory answer to the question whether it is

one of inherent jurisdiction of the court, or not. court does have power, in a limited class of case,

to make orders, but it may be doubted that there is

such a power.

MASON CJ:  But why would the power be limited to particular

categories of cases?

MR FINKELSTEIN: In a criminal sense, Your Honour?

MASON CJ: Yes. It rather suggests that in some immutable

way a power has been confined to an exercise in

particular cases, and yet we know as a matter of

history these categories invariably expand and

increase.

MR FINKELSTEIN: But, the way that they expanded was

discovery, was by bill of discovery and courts of

equity, in 1854 by statute went to the common law

courts and then since the Judicature Act, a court

exercising in both jurisdictions has power to make

discovery and in any event is given by the rules,

but there is no similar historical development in

the criminal law.

In the criminal law the courts lacked the

power, exercised it in very special circumstances

and in the number of jurisdictions, were given the

power by statute. For example, in the United

States, where this problem is a very live problem,

and in Canada, where the problem is also a very

live problem, you now have statute regulating

rights of accused persons to obtain documentation

and other information. But the historical

development of the law of discovery tends to

suggest that there may be a lack of power, and you

have to bear in mind, also, that in not the sort of

criminal case we are dealing with here, but in a

general criminal case it is the Crown who

prosecutes and then you have the prerogative of the

Crown to contend with as well.

There is the odd sentence here and there that

says that a justification for a court ordering a

prosecutor to hand over information is because the

prosecutor is amenable to the jurisdiction to the

court, so that the court exercises its power

because it has got an officer of the court amenable

to it, but it does not work in a case like this,

where it is not the Crown who has undertaken the

prosecution, and it is usually not the Crown

undertaking prosecution in most magistrate's court

proceedings in any event, but the jurisdictional

basis of the power might not be explained by saying

Sobh 10 MR FINKELSTEIN, QC 17/6/93

that there should be a gradual development. It may

really be a question of inhibition of power, but

whatever the source is, the courts have steadfastly

refused to recognize or accept that there is a

general power in the court to order general

discovery in favour of an accused person. By

general discovery, I mean all documents in the
possession of the prosecution which are relevant to
the issue in dispute.

And, for whatever historical reason that has

been brought about, that position, constraint
though it might impose on an accused person, is
still accepted as correct and accepted as correct

by the Full Court here. What the Full Court has

done, at least, what Mr Justice Brooking has done,
is expressed the principle in somewhat broader

terms than has previously been expressed, and says

it is a power of the court, without necessarily

explaining how it is that the court has the power. But our point goes back, at the end of the

day, to the short statement of principle of

Sir Harry Gibbs in the Trade Practices Commission

case, which is to the same effect as Brambles,

where the Federal Court held, in relation to the

exercise of statutory powers, that there was a

contempt of court by the Commission because the
Commission sought to obtain documents for the

purposes of the litigation which the Commission was

involved in. It had a statutory right to get those

documents, section 155 gave it that right as a

matter of statute law, but the exercise of the

right for the purposes of using those documents to
further its cause in proceedings where the

Commission did not have the right to discovery in the cause, because they were penal proceedings and the Commission could not get discovery in aid of

penal proceedings, so, in order to overcome that disability in the Federal Court, said, "Well, we

cannot use discovery because we are barred by law,

so we will go to the statute and we will exercise

our statutory right". That got it an advantage in

the litigation which the rules of practice and

procedure did not give to it, and the Federal Court

said that that constituted a contempt, and

Sir Harry Gibbs, in the later case, referred to

Brambles and said he agreed with the decision. And

we say, as a matter of principle, it is right. It

is right because you are circumventing the court

process and it does not make any difference whether

you circumvent it by a statute like the Trade

Practices Act provision section 155, which have

penal provisions for non-compliance, or an Act like

the Freedom of Information Act, which has no penal

provisions for non-compliance.

Sobh 11 MR FINKELSTEIN, QC 17/6/93
The only other authority that we want to refer

the Court to, and it is in passing, because the

legislation is slightly different, is a decision of

the United States Supreme Court - - -

DEANE J: Is not the distinction this, that in criminal

proceedings the accused has an immunity which the

law has long recognized from discovery or

self-incrimination?

MR FINKELSTEIN: Against him?

DEANE J: Yes.

MR FINKELSTEIN: Correct.

DEANE J: Well, there is nothing like that involved when the

law gives a right to a person to find out material
against him. I mean, the trade practices procedure
cut right across the settled principles of criminal

administration if it could be applied.

MR FINKELSTEIN: Except that they were not criminal

proceedings; they were proceedings for a penalty -

DEANE J: But they were penal proceedings.

MR FINKELSTEIN:  - - - and the bar against discovery was

because they were penal proceedings. But the

rationale that made the conduct of the Commission a

contempt of the Federal Court was not because there

was a circumvention of a right to remain silent,
which will not exist, in the sense that Your Honour

puts to me, in non-criminal proceedings; it was a

bar to the obligation to make discovery, because

equity did not lend its aid to the enforcement of

penal proceedings, in a civil course, as it does

not, for example, in actions to recover land when

there has been a breach of lease, because the right

to terminate a lease is treated as a penal

provision in a lease and in an action to recover

applies. land, in those circumstances, the same principle Now, it demonstrates that the principle has

nothing to do with the well-established right of no obligation for self-incrimination, and so on; it is different to that, and that does not explain the

two circumstances. The explanation.; in our

respectful submission, is that it is defeating the

proceedings of the court and all that Brambles and

Pioneer show is that there was a bar to a certain

right in those particular curial proceedings; the

right being, a right of discovery, for whatever

reason.

Sobh 12 MR FINKELSTEIN, QC 17/6/93

DEANE J: But ultimately it was a matter of statutory

construction, was it not? I mean, if the Trade

Practices Act had spelt out "and the provisions of

this Act will be available to the Commission for

the purpose of gathering information for a

prosecution which is pending under this Act,

subject to questions of judicial power and the

Constitution", which were not raised in that case,

as I recall - - -

MR FINKELSTEIN:	Yes, they were.
DEANE J:	Were they?
MR FINKELSTEIN:	But said to be bad points.
DEANE J: Well, subject to those questions, that would be	the end of it.

MR FINKELSTEIN: That is because the High Court has said

that when particular conduct is authorized by a

statute, it can never constitute a contempt, and

there is the Royal Commission case, a 1950s case,

Mr Justice Fullagar decided it, when there was a

royal commission set up to inquire into - it must

have been something to do with the Communist

Party - - -

MASON CJ:	Lockwood.
MR FINKELSTEIN:	Lockwood, that is so, Your Honour; I thank

you, Your Honour. Because that legislation, and

there were current proceedings in court, authorized
the particular royal commission, so

Mr Justice Fullagar said, with respect correctly,

because the statute authorized the particular

conduct, it could never constitute a contempt of

court, but a general statute does not give that

right, nor does it give that protection.

DEANE J: But the only matter I was bringing to your

attention is that there seems to me to be the world

of difference in interpreting the powers of a

statutory authority, which is authorized to bring

proceedings, and interpreting a statute conferring

power on the citizen.

MR FINKELSTEIN: But it did not depend - none of the cases

that treated that sort of conduct as contempt did

it on the basis of the construction·of the statute;

they saw that there was a power to obtain

documentary information or information, and said

that, when you are involved in curial proceedings

where you do not have that right, the exercise of

the right collaterally to the curial proceedings is

an unwarranted interference with the curial

proceedings. And the reason is because you submit

Sobh 13 MR FINKELSTEIN, QC 17/6/93

yourself for determination by that court on the

cause in whichever way the court allows that cause

to be determined.

DEANE J:  So if, in this case, there was a contractual right

to production of the material, you would say it was

contempt of court to enforce your contractual

right?

MR FINKELSTEIN:  No, because the documents could be

voluntarily given over and that would not

constitute a contempt of court either. If a person

volunteers, if the accused went to - - -

DEANE J: Well let us say, if there was a contractual right

which was not honoured, you would say it was

contempt of court to enforce your contractual

right? Or if, for example, they were your

documents that the police had in their - - -

MR FINKELSTEIN:  No, but that could not be described as

conduct designed to circumvent or get an advantage

not otherwise available to you, then you would be exercising a different sort of right. You should

have those documents available to you.

DEANE J: But that brings us right back to point one, does

it not - - -

MR FINKELSTEIN:	I know.
DEANE J:	- - - and where one comes back into the circle?
MR FINKELSTEIN:	It nevertheless remains the exercise of a

statutory power and if the exercise of that

statutory power is for the purposes of

circumventing the rules. of the court which has

taken the cause, then that constitutes a contempt,

and that is what a number of courts have held, and

we say, correctly.

MASON CJ: Well, that is it, is it? That is the point?

MR FINKELSTEIN: That is the point. And it found favour

with the trial judge and was not fairly or at all

addressed by the appellate court. I did say I was

going to refer to the American case; I will. It is

National Labor Relations Board v Robbins Tire and Rubber Company, that is the eighth case. Freedom

of information legislation of the Upited States was

dealt with.	The relevant sections are not
dissimilar to our Act.	The relevant section

appears at page 214 of the opinion of the court. There is an exemption, which is exemption 7, and

that appears about two-thirds of the way down

page 214, and it provides an exemption for:

Sobh 14 MR FINKELSTEIN, QC 17/6/93

"investigatory records compiled for law

enforcement purposes, but only to the extent

that the production of such records ..... would

interfere with enforcement proceedings."

Now, there were three separate opinions

delivered by the court: two majority opinions and

a dissent opinion.	I do not want to take the Court
Court to the concurring majority opinion at	to the main majority opinion, but can I take the
concurring:  page 243, Mr Justice Stevens, with two judges

The "act of meddling in" a process is one of

Webster's accepted definitions of the word

"interference."

The word "interference" of course, relevant to the

statutory exemption. And then the court goes on:

A statute that authorized discovery greater

than that available under the rules normally

applicable to an enforcement proceeding would

"interfere" with the proceeding in that sense.

The Court quite correctly holds that the

Freedom of Information Act does not authorize any such interference in Labor Board

enforcement proceedings. Its rationale

applies equally to any enforcement proceeding.

On that understanding, I join the opinion.

The majority looked at the history of the legislation and the proper construction of the

relevant exemption, but we say that, as a point of

principle, that is right as well. The American

Freedom of Information Act, from which ours is

based, but not necessarily wholly modelled, has

been said by the United Stated Supreme Court, if

documents are made available under it, to

constitute an interference with any court

proceedings. And that is the reason why the

request for documents in this case, which was not

very different to the request for documents in our	case, because there witness statements were sought
by parties who were respondents to proceedings by
the National Labor Board after a Union election
where there was some misconduct alleged in relation to the election, and we say that that is an
accurate statement of principle for their Act and
likewise for our Act. The obtaining of documents,
in those circumstances, constitutes an interference; an interference for the same reason that was articulated in the Trade Practices
Commission cases. If the Court pleases.

MASON CJ:  The Court need not trouble you, Mr Perkins.

Sobh 15 MR FINKELSTEIN, QC 17/6/93

In the view of the Court, the proposed appeal

does not enjoy sufficient prospects of success to

warrant the grant of special leave to appeal.	The
application is therefore refused.

MR PERKINS:  May it please the Court, I would seek an order

for costs.

MASON CJ:  You do not oppose that, Mr Finkelstein?

The application is refused with costs.

AT 3.44 PM THE MATTER WAS ADJOURNED SINE DIE

Sobh 16 17/6/93