TLC Pty Ltd v White (B-03) CHH

[2003] HCATrans 631

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B14 of 2003

B e t w e e n -

TLC CONSULTING PTY LIMITED

Applicant

and

PAUL MICHAEL WHITE

Respondent

Application for a stay

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 28 MARCH 2003, AT 11.03 AM

(Continued from 21/3/03)

Copyright in the High Court of Australia

HIS HONOUR:   Gentlemen, I know you are having some discussions and I did not want to interrupt them.  Is that correct?

MR GRIFFIN:   Yes, your Honour.

HIS HONOUR:   The matter I wanted to raise was this.  There is probably nothing in it at all, but it occurred to me that the Privacy Act might have something to do with this matter.  I am not saying that it has.  I have not had much time to look at it myself, but there is a definition of “enforcement body” which may or may not cover the Office of Fair Trading, the State office.  It rather looks as if it might.  Then Principle 11 “Limits on disclosure of personal information”.  Naturally there are some exceptions, but the question that passed across my mind was that perhaps there might be some provisions in that Act which would relate to the files of personal information of people who have not complained.

If there is any possibility of that, in turn, a question may be raised as to section 109 of the Constitution. Not that I am trying to complicate this case in any way at all, but as you would appreciate if there is any possibility of that then you might have to give the section 78B notices under the Judiciary Act.

MR GRIFFIN:   Last Friday I said in a complimentary way that Mr Richter would come here and have inventive things to say.  I must say that your Honour’s appearance this morning has fulfilled that.

HIS HONOUR:   I do not know.  I mean, there may be absolutely nothing in that at all, but it is a matter that I think needs to be explored.  I am not too sure under what head of power the Privacy Act is passed. Do you know what part of section 51 of the Constitution ‑ ‑ ‑

MR RICHTER:   For the Privacy Act?

HIS HONOUR:   Yes.

MR RICHTER:   I have not looked into that yet, but I am sure there are several heads of power.  I am sure there would be some – I must say, your Honour, the issue of privacy as a concept is, of course, raised in our outlines and summary of argument and we were very conscious of the decision in ABC v Lenah Game Meats Pty Limited, which your Honour may recall.

HIS HONOUR:   It is a very lonely position I am in there, Mr Richter.

MR RICHTER:   It was a lonely position, but on matters of principle such as the importance of privacy your Honour was not really lonely on the principal issues.

HIS HONOUR:   Yes.

MR RICHTER:   So we raise the issue of privacy and having regard to the kind of exigencies of the urgencies of the situation, of course, we have not gone as far as we would if we were preparing for the actual special leave application in those terms.

HIS HONOUR:   It would not matter really, Mr Richter, but for the section 78B – the possibility of those notices, that is all.

MR RICHTER:   That is right.  That is something that will need to be considered – not necessarily at this stage, but will need to be considered and we certainly will consider it.

HIS HONOUR:   There may be absolutely nothing in it at all.

MR RICHTER:   That is right.

HIS HONOUR:   I just thought I should draw it to your attention.

MR RICHTER:   I suspect that we would have to have answers, your Honour, because I know that if your Honour or Justice Kirby or a couple of others I can name are sitting on a special leave court, they would want to know about the impact of that, if any, so it would have to be researched.

HIS HONOUR:   Yes.

MR RICHTER:   But I am grateful to your Honour for that indication.  We took the protection of privacy as a given without even going to the Act except where it is unnecessary, but we will look into that.

HIS HONOUR:   All right.  If you are having any discussions, I can tell you this, that I can get a fair measure of expedition on the application for special leave.  I could possibly get you on for a video link on 9 May.  That would not be nearly as convenient to the Court as having the application heard in Brisbane.  It is a Brisbane case.  I mean, that would be desirable.  Although the Brisbane list is, I think, fairly full, I can fit ‑ ‑ ‑

MR GRIFFIN:   Yes.  That is the June list, your Honour?

HIS HONOUR:   Yes.  We can fit you in.  If it were really vital, I might be able to get you a video link to Canberra on 9 May.

MR RICHTER:   That is of great assistance in terms of what we are going to talk about because it seemed to me that the principal argument against us is the notion that time is running somehow, although the matter having arisen in October last year, I do not know that three years is that crucial.  But, be that as it may, if we can get an urgent hearing, then the extension of the interim order until the hearing does not require much.

HIS HONOUR:   Another matter that occurred to me is that you could not really, I would not think, advance any argument against the print out of the matters that have been the subject of actual complaints and the provision of those to Mr Griffin.

MR RICHTER:   None at all, and I would be prepared to go further, that if we have identified complainants – your Honour may have seen somewhere in the documents there is a mention of 100‑odd ‑ ‑ ‑

HIS HONOUR:   Up until 1996 I think there were ‑ ‑ ‑

MR RICHTER:   That is right.  Well, they are out of time anyway.

HIS HONOUR:   ‑ ‑ ‑ more than 100, fewer than 200, I think, is that right?

MR RICHTER:   Yes.  They are out of time on the three‑year notion anyway, but that does not matter because ‑ ‑ ‑

HIS HONOUR:   It may be relevant in any event to ‑ ‑ ‑

MR RICHTER:   If we get the names of complainants – I do not care how many complainants there are – we will provide the records by consent because those people at least waived their privacy by complaining.  So to that extent, this is where we are going to have discussions but what your Honour has suggested about an earlier and expedited hearing of the special leave application seems to us, with respect, to be the best way of resolving the matter.

HIS HONOUR:   Except that Mr Griffin would no doubt be pleased to have the files of those people who have complained.

MR GRIFFIN:   Yes.  I think our discussions are independent of the hearing date.

MR RICHTER:   Yes.  So if we could have a few moments to resolve that, I think we will cut the day short.

HIS HONOUR:   All right.  Let me know when you are ready.

MR RICHTER:   Certainly, your Honour.

AT 11.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.04 PM:

HIS HONOUR:   Yes, thank you.

MR GRIFFIN:   Your Honour, I am happy to inform you that we have reached consent on the matter.  There is a draft or really a consent order that is legible signed by both Mr Richter and myself which describes the ‑ ‑ ‑

HIS HONOUR:   Thank you.  I will just read it, Mr Griffin.

MR GRIFFIN:   Thank you.

HIS HONOUR:   Yes, there is no problem about any of this, but what about the stay?  Is there to be a stay by consent, is there?

MR GRIFFIN:   Yes, and perhaps that is simply an order that your Honour can make.

HIS HONOUR:   And the duration of this order – did you give some consideration to when the application for special leave might be heard?

MR RICHTER:   Yes, your Honour.  At this stage, it appears the most appropriate thing to continue the stay until the hearing and determination of the application for special leave.  It is at that stage, of course, that the Court will be in a better position to make final disposition.

HIS HONOUR:   What I meant was June or May.  June would be much convenient for the Court that is all, for the hearing of the special leave application.

MR RICHTER:   We will fit in with the Court’s convenience.

HIS HONOUR:   But I do not know whether that is too long for Mr Griffin.

MR GRIFFIN:   We would like the matter disposed of as soon as possible and we will undertake to expedite the documentation necessary on the respondent’s behalf dealing with the issue that has been raised this morning as well.  I note that, of course, that has not been dealt with in any specific way by the applicant.

HIS HONOUR:   There may be nothing in it, Mr Griffin.  I do not know.  But does it matter to you if the hearing of the application is in June or May?  That is all.  It would suit the Court better if it were in June because we have some very heavy special leave lists.

MR GRIFFIN:   Yes.  That is probably another six weeks.  It is normally the last week of June, your Honour, is it not?

HIS HONOUR:   Yes.  I mean, I will give you May if you really want it, but I would prefer to make it June, if possible.

MR GRIFFIN:   I am told that May is favoured, but I cannot advance because of the consent orders this morning any emergent reason why May should be favoured over June except, of course, the arguments that we have placed in our written submissions that time is simply ticking on.  The sooner there is a resolution of the matter, the better, and it is only a special ‑ ‑ ‑

HIS HONOUR:   There seem to have been a few complaints neglected before 1996 though, have there not?

MR GRIFFIN:   No.

HIS HONOUR:   Well, “neglected” is probably not the right word.

MR GRIFFIN:   The complaints have been ‑ ‑ ‑

HIS HONOUR:   Not instilling a great sense of urgency.

MR GRIFFIN:   Complaints have been dealt with in different ways, so it would not be true to assume that merely because action in court has not been taken that there have not been other processes adopted for the resolution of difficulties that complainants have experienced.  Perhaps I can put it in that neutral way.

HIS HONOUR:   All right.  I can see that that could well be so.

MR GRIFFIN:   Yes, and, your Honour, I must say that there is a genuine concern by those at the Fair Trading Office that matters be dealt with for the benefit of complainants, for the benefit of the running of the office itself and, of course, an appreciation that there is always hanging over the head of a possible defendant the potential for issues concerning contravention of the Act, be it a charge or another contravention which is, of course, not criminal in nature.  So I advance those matters as ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.  Well, Mr Griffin, I am minded to put it on in Brisbane for the reason I have said and also, of course, you will have personal appearances rather than video appearances if that happens.

MR GRIFFIN:   Yes.

HIS HONOUR:   If a grant of special leave were made, I would say that Mr Richter’s application will have to be renewed and it might be more convenient for you to have the officers from the Department available for instructions and things of that kind.

MR GRIFFIN:   Yes.

HIS HONOUR:   So there may be some utility to you anyway in having it in Brisbane.

MR GRIFFIN:   Yes.  Thank you, your Honour.

HIS HONOUR:   All right.  I will get you to listen carefully to this.  I am prepared to order and do order that any steps of enforcement or otherwise pursuant to the judgment of the Court of Appeal in this matter be stayed until the hearing of the application for special leave or other order.  By consent it is also ordered for the purpose of resolving the applicant’s application today and for no other matter that a mirror copy be made of the disks held in the Supreme Court registry referred to in the papers by an independent expert from a firm of accountants agreed upon by the parties and that the original disks then be returned to the Registry of the Supreme Court.

I further order by consent that a list of complainants who have made complaints to the Office of Fair Trading and the dates of their complaints be provided to the applicant by the respondent within seven days from today.  I further order that at a mutually agreed time, but not later than 14 days from today, the complete personal files relating to each of those complainants be printed out in hard copy in the presence of representatives of the applicant and the respondent, again, by a member of an independent firm of accountants to be agreed upon, from the copy of the disks made pursuant to this order.

I further order that a copy of the disks made be retained by the applicant.  I order that the costs of the copying and printing be shared between the parties.  I further order that the parties have liberty to apply on two days notice by the applicant party to the other.

Do you wish me to reserve the costs?

MR RICHTER:   Yes, please, your Honour.

MR GRIFFIN:   Yes, your Honour.

HIS HONOUR:   I order that the costs of today be reserved and I certify for the appearance of counsel.

Is there anything else?

MR RICHTER:   No, your Honour.

MR GRIFFIN:   No, thank you, your Honour.

MR RICHTER:   The climate here is very conducive to comprehensive agreements.

HIS HONOUR:   Yes, all right.  Thank you for that.  You have already, I think, filed – I think you have a complete outline, Mr Richter, have you not, for your application for special leave actually?

MR RICHTER:   We did.  It was pretty rapidly done and we may need to put in some addition but, yes, we have.

HIS HONOUR:   All right.  I think I should give some directions anyway.

MR RICHTER:   Yes, your Honour.

HIS HONOUR:   I will give directions in addition to making the orders that I have made that on or before 11 April 2003 the applicant file and serve its summary of argument and any draft proposed amendments to its notice of appeal.  I order that on or before 2 May 2003 the respondent file and serve his summary of argument.  I order that on or before 9 May 2003 the applicant file and serve any reply.  I order that the parties thereafter comply with such directions as may be given by the Deputy Registrar for the drafting and settling of the index to the application book. 

I order that within seven days of receipt of the settled index from the Deputy Registrar the applicant file seven copies of the application book and serve three copies of it upon the respondent.  I order that subject to the filing and service of the application book by 6 June 2003 the application for special leave to appeal be listed for hearing in the June sittings of the Court in Brisbane.  I order that the parties file and serve such notices, if any, as they may be advised and as may be required to be served upon other persons, if any, not later than 20 May 2003.

That should cover it, I think.  There is nothing further.  All right, thank you.

AT 12.17 PM THE MATTER WAS CONCLUDED