Wentworth v The New South Wales Bar Association

[1994] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney           No S26 of 1994

B e t w e e n -

KATHERINE WENTWORTH WENTWORTH

Applicant

and

THE NEW SOUTH WALES BAR
  ASSOCIATION

Respondent

Application for confidentiality
  of documents

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 23 NOVEMBER 1994, AT 11.10 AM

Copyright in the High Court of Australia

MR P.R.GARLING, SC:   If the Court please, I appear for the respondent in the proceedings, who is the applicant on the motion.  (instructed by Price Brent)

MS K.W. WENTWORTH:   I appear in person, Your Honour.

HIS HONOUR:   Yes.

MS WENTWORTH:   I apologise for Mr Russo’s absence, Your Honour.  I had understood he would be here, and I think he is still the solicitor on the record.

HIS HONOUR:   Yes.  Mr Garling.

MR GARLING:   Your Honour, this is an application by the respondent to the proceedings for an order pursuant to Order 39 rule 14 with respect to certain parts of an affidavit filed by the applicant.  May I remind Your Honour briefly of the nature of the proceedings before the Court?  The applicant brought an application for special leave to appeal against a judgment of the Court of Appeal of New South Wales which application was refused by this Court on 21 April 1994.  On 10 May 1994 the applicant filed a notice of motion seeking to have the judgment and orders of refusal of that application for special leave vacated and order that special leave to appeal be granted or, alternatively, an order that the application for special leave be reopened and heard further.

In support of that application, the applicant has filed an affidavit which was affirmed on 11 October 1994 and it is that affidavit to which the application of the respondent Bar Association relates.  May I take Your Honour to that affidavit?

MS WENTWORTH:   Your Honour, it may be convenient - I have had prepared some paginated copies of the affidavit which Mr Garling has and with his approval I would hand those up to Your Honour.  It may assist in finding some of the references.

HIS HONOUR:   Yes.  Do you have any objection to that, Mr Garling?

MR GARLING:   I have no objection to that course, Your Honour.

HIS HONOUR:   Well, they can be handed up.  But there are two matters that I want to raise first of all.  Now, I have read the affidavit and the exhibits to the affidavit.  I have not read them with an eye to the fine detail that is contained in these documents but I have a general picture of the contents of the affidavit and the exhibits in my mind.  The first thing I should say is - and I say this to you, Ms Wentworth, particularly - that, of course, I know a number of the people whose names are mentioned in the affidavit and in the exhibits.  In particular, I know Mr Rares.  Mr Rares is a next-door neighbour.  I have known him for some time in that capacity.  He is not a close friend of mine but I do know him and I have had dinner at his place on one occasion and his son occasionally plays with my grandson.  I do not myself regard my relationship with Mr Rares as one that would affect my judgment in relation to any matters that would arise for my decision.

The second thing I want to say is this - and this is directed principally to you, Mr Garling - I would have thought, in normal circumstances, that the question whether the contents of an affidavit should be read or struck out or made the subject of an order that the contents be not published in any shape or form is something that would be determined by the court which was called upon to hear the substantive application and, in particular, in a case where a question of relevance arises.  Now, why is it that you are seeking an order in the form of order 1?  After all, order 2 does little more than express in the form of an order the consequences that apply in relation to any affidavit that has been filed in court and has not been read.  An affidavit filed in court is not evidence until it is read.

MR GARLING:   No, I accept that, Your Honour.  May I address Your Honour’s first question?

HIS HONOUR:   Yes.

MR GARLING:   If one puts to one side for a moment the issue of relevance because, in part, this application is based on relevance.  But if one puts to one side that issue and concentrates on merely the question of whether the material is scandalous, that would confine the - - -

HIS HONOUR:   This is Order - - -?

MR GARLING:   Order 39 rule 14.

HIS HONOUR:   But what if an allegation is scandalous but relevant?

MR GARLING:   That circumstance does not arise in this application, with respect.  But it may be that even if the allegation is relevant, the manner of expression of it and the way in which it is sought to be proved, having regard to its scandalous nature, is nevertheless sufficient for an order of the kind contemplated by the rule to be made.

HIS HONOUR:   Yes.

MR GARLING:   But, Your Honour, I wanted to just direct Your Honour’s attention to the schedule to the summons. If one merely concentrates for a moment on the word “scandalous”, the parts relevantly directed or caught by that word, in my submission, are those parts in paragraph 1 and exhibit KW8. 

HIS HONOUR:   Paragraph 1 of the affidavit?

MR GARLING:   Paragraph 1 of the schedule to the summons which refers to the contents of the affidavit, commencing at page 7.

HIS HONOUR:   Yes, that is pages 7 to 14 of the affidavit.

MR GARLING:   Through to 14 and KW8 which is, relevantly, the principal exhibit to which those pages refer.

HIS HONOUR:   That is the exhibit that has the few pages of transcript at the back of it, is it?

MR GARLING:   Yes.  The entirety of that exhibit was made subject to an order for confidentiality by the trial judge, Mr Justice Campbell.  The transcript relating to it was held in closed court.  That order for confidentiality was maintained by the Court of Appeal but it is not kept by the method of annexing it to this document in this Court nor is the contents ‑ ‑ ‑

HIS HONOUR:   I do not follow that last sentence.  What do you mean by that?

MR GARLING:   Your Honour may not have noted but one of the issues found against the applicant by the trial judge and the Court of Appeal was that a document prepared by the applicant and submitted to the Judicial Commission of New South Wales as a document confidentially submitted to that body, was later annexed to an affidavit in proceedings and served on a wide range of parties.  The material exhibited to this affidavit, if it is not, in my respectful submission, dealt with in the manner sought in the application, could be used in a like manner.

HIS HONOUR:   But would not an order prohibiting publication in any shape or form achieve that?

MR GARLING:   Yes it would, Your Honour.  I was going to come to the submission that in light of what Your Honour raised with me which is a very real difficulty of striking out something in advance of a hearing, I would have to say to Your Honour that the relevant protection could be insured by an order for confidentiality and it was to that end that the alternate order was put in.

HIS HONOUR:   Yes.

MR GARLING:   If Your Honour, having expressed that preliminary view about striking out relevance - I do not wish to debate that at length with Your Honour.  We would be content with the second order. 

HIS HONOUR:   There is always a difficulty, I think, in dealing with matters going to relevance, in particular, by a judge who did not constitute the court that dealt with the substantive matter in the first instance.  One just does not know what passed through the mind of the members of the court when they expressed the ground that they did for the conclusion they reached at that stage.

MR GARLING:   Your Honour, I acknowledge that.  I do not wish to debate at any further length that consequence.  We would be content with an order.

HIS HONOUR:   I notice that in your second order, that order relates to the whole of the affidavit and annexures.

MR GARLING:   Yes, it does, Your Honour, and it does for the simple practical reason that it is effectively impossible to edit the document in any way to say, “Well, yes, that bit can be taken outside an order for confidentiality”, and I submit that there is no legitimate use of the document as a whole outside of these proceedings in any event.  But, of course, there being judgments of other courts that are public documents, that order does not - - -

HIS HONOUR:   In so far as they are public documents and they exist independently - - -

MR GARLING:   The order does not catch those.

HIS HONOUR:   - - - does not catch them at all.  It would only catch the affidavit as it stands and the documents that are exhibited to it in their character as exhibits.

MR GARLING:   That is so, Your Honour, and that is the basis upon which we seek the second order. 

HIS HONOUR:   Yes.  Now, Ms Wentworth, you have heard what has ensued in discussion between Mr Garling and myself.  Mr Garling now says that all he seeks at this stage is an order in the terms of paragraph 2, that at this stage, in the light of the difficulty I raised, he does not seek an order in terms of paragraph 1.  Do you have any objection to paragraph 2?

MS WENTWORTH:   Yes, Your Honour.

HIS HONOUR:   Why?

MS WENTWORTH:   For this reason, Your Honour, the ‑ ‑ ‑

HIS HONOUR:   You cannot use or publish the contents of an affidavit or the annexures to it before the affidavit and the annexures are tendered in evidence in court.

MS WENTWORTH:   Your Honour, I am entitled to use this document for whatever purposes is appropriate.  Once it is tendered in this Court it has certain covers.

HIS HONOUR:   It gets certain what?

MS WENTWORTH:   It would have certain covers once it is tendered in the Court.  But as a document, Your Honour, as it stands at the moment, it is simply that, it is a document.  Now, Your Honour, because it is a convenient way of expressing certain things, that document is a document which is of use to various bodies and is of use to Parliament currently.  Now, Your Honour, it is utterly inappropriate at this stage, unless Mr Garling can in some way - - -

HIS HONOUR:   It is quite improper that the contents of an affidavit filed in Court should be published in advance of the contents becoming evidence in proceedings.

MS WENTWORTH:   Your Honour, the matters that are raised in the affidavit, once they become evidence in the proceedings, will have a certain status.  At the moment - - -

HIS HONOUR:   Yes, if and when they become evidence.

MS WENTWORTH:   Yes, that is right, and until such time as they become evidence, they do not have that status.

HIS HONOUR:   That is right.

MS WENTWORTH:   They have a protected status, Your Honour, once they are raised in evidence.  They do not have a protected status at this point in time.  The document is simply a document, Your Honour.  I could re-swear it as a statutory declaration.  I could take any swearing out of it and simply make it a notation or historical document.  Now, with great respect, Your Honour, I have vast problems with any attempts to curtail my rights as a citizen of this State in relation to matters which I consider appropriate and which I wish to raise and have raised, indeed, with various commissions. 

Now, that is a starting point, Your Honour, and the attempt by Mr Garling in this Court to ask for an order such as he has asked for is an attempt to subvert the New South Wales Royal Commissions Act and that, Your Honour, is a very serious matter.  These are matters - and many of the matters that are in this affidavit are matters which are properly raised with the Royal Commission into police activity.  They are matters properly raised with the Independent Commission Against Corruption in this State.  They are matters which are properly raised with members of Parliament, with the State - - -

HIS HONOUR:   You keep on saying they are properly raised.  I have read the affidavit and it strikes me that at the present time there is no admissible evidence to support these allegations that you make.

MS WENTWORTH:   Your Honour, that is a matter which the bench which constitutes the hearing will have to make ‑ ‑ -

HIS HONOUR:   I should point that out to you because if my impression is right in that respect then it may have certain consequences in terms of the substantive application that you are making to the Court.

MS WENTWORTH:   Your Honour, the broad statement that Your Honour makes that there is no admissible evidence to support the matters which I have raised, Your Honour, it is not a matter - - -

HIS HONOUR:   That is to support the scandalous allegations that you make.

MS WENTWORTH:   There are no scandalous allegations, with respect, in this application whatsoever, Your Honour.  There are certain reports which have been made to proper authorities under the Constitution of the Acts of this State and, with great respect, Your Honour - and under the federal Acts, I have an obligation and I have conducted myself with propriety in accordance with the obligation of every citizen in this State and I will continue to do so.

There are certain rights given to citizens under certain Acts and there are certain obligations given to certain citizens under certain Acts.  I have carried out my obligation under the New South Wales Crimes Act and I have carried out my obligations under the Commonwealth Crimes Act.  I have also exercised my rights and not, as wrongly put by Mr Garling, in having given material to the Judicial Commission for their consideration.  That is not done with confidentiality and, as is pointed out in the affidavit, there was no confidentiality attached to any matter which is given to the Judicial Commission in the hands of the person who gives it.  There is complete confidentiality in the hands of those who receive it and there seems to be some misunderstanding on the part of the Bar Association as to the requirements of those Acts.

Your Honour, the affidavit, as it stands, is simply a document.  It is not admitted yet in court and it would be inappropriate, with great respect, for any determinations to be made at this point in time as to whether any part of it were or were not admissible, because that would be the matter of submission and evidence which would be put to the Court - - -

HIS HONOUR:   I am not intending to make a determination as to whether the document is admissible.  What I have said to you is that my impression is, from what I have read, that there is not admissible evidence to support the scandalous allegations you make.  Can I make this plain to you, I am not - - -

MS WENTWORTH:   Your Honour, can I take exception to the word “scandalous”.

HIS HONOUR:   Now, let me make this plain to you, Ms Wentworth, I am not intending to give a ruling on the admissibility of the evidence.  What I am proposing at the present time is to make an order in terms of paragraph 2 of the summons and if you look closely at paragraph 2 of the summons, that will preserve to you your liberty, your right, to persuade the Court, when it comes on before the bench of three, that the material is relevant and admissible.

MS WENTWORTH:   Your Honour, it would be an astonishing thing if this Court or any other court in this country or any other country, with great respect, decided, without any matter properly being raised at all, that they would attempt to suppress in the public arena judgments and transcripts of the State of New South Wales and also the High Court - - -

HIS HONOUR:   Let me make it clear to you that judgments and transcripts that are part of the public record are, of course, part of the public record.

MS WENTWORTH:   Your Honour, there is not one annexure to this affidavit which is not part of the public record.  They consist entirely of transcripts, judgments and exhibits before a court.  Now, any attempt by Mr Garling to have those matters, as he has in his application, sought to be the subject of a confidentiality order is simply making a mockery of our justice system.  Your Honour, I take you to this schedule, and he seeks, as I understand by his order 2 that all of the annexures be the subject of a confidentiality order.  Now, Your Honour, there is not, as I say, one annexure which is not the subject which is not a public document.  With great respect, for any such application to be put to this Court is inappropriate in the extreme.

It is quite wrong for the Bar Association to come to this Court and ask for suppression of public record documents.  Now, Your Honour, if Mr Garling has some problems with exhibit KW8, which seems to be the only one which he has some problems with and which, Your Honour, because of its contents Your Honour would clearly have some problems with from the statements that you have made in this Court today, then, Your Honour, we could perhaps deal with exhibit KW8 on its own.

But as far as exhibit KW8:  it is a matter of proper inquiry before two commissions currently and those two commissions, by reference from the Parliament of New South Wales to ICAC, have under consideration KW8 and KW9.  The Police Royal Commission have also under consideration all of the material that is in this affidavit.

Now, Your Honour, with respect to Mr Garling, it is quite inappropriate, therefore, that these orders, in fact, be sought.  These orders, Your Honour, would subvert the Royal Commissions Act and they would curtain my rights, as a citizen of this State, in a way which have not been curtailed or no other citizen has had their rights curtailed.  It is quite inappropriate to come up here and ask for the public record to be the subject of a confidentiality order. 

Now, Your Honour, if Mr Garling came up and said that he wanted those sections of the affidavit as listed in his matter specified as to matter 1, to be made the subject of a confidentiality order, we could perhaps debate that and that might be an appropriate matter which should be before the Court because that is the matter which I understand gives him most concern.  Your Honour, it would be a matter which I would certainly be ready to meet, particularly in relation to, as he says, the matter specified in his schedule as to the exhibits at 2, page 5 at 3, which all relate to the Rogers retrial, which has now occurred, Your Honour, in relation to which - - -

HIS HONOUR:   Which ones are they?

MS WENTWORTH:   No 3.  Perhaps I could take Your Honour to them, Your Honour, because the complaint, with great respect to Mr Garling, is not sustainable.  Perhaps we could go to KW8, which I think Your Honour has.  It is at 206, Your Honour, in the volumes.

HIS HONOUR:   This is 206 in your - - -?

MS WENTWORTH:   Yes, they have been paginated.  It just may be easier, Your Honour.  I apologise for the haste with which all of this has been done, Your Honour, but it has been unavoidable in the circumstances.  Your Honour, at page 207, affidavit X, which was the subject of a confidentiality order before His Honour Mr Justice Campbell and continued by Their Honours in the Court of Appeal commences.  It is part of a long affidavit in relation to section 15 which is pleaded and which, Your Honour, is relied on by the Court of Appeal.  The primary judge made no findings in relation to section 15.  The Court of Appeal said they wished to hear from counsel in relation to it and counsel addressed.

Your Honour, the next part of that KW8 commences at 214 and that is the affidavit that annexes exhibit X.  Exhibit X commences, Your Honour, at page 219.  The first part of that exhibit, Your Honour, to the affidavit consists of records which were obtained under the Freedom of Information Act in this State from the present police department.  Now, they are not, in any way, shape or form, one might think, confidential.  They are available under Freedom of Information, Your Honour.  To even consider that they would be confidential is an astonishing proposal.

Your Honour, there are then matters raised which are provided under Freedom of Information.  All of the documents running through until we get to page 236 were provided under the Freedom of Information Act.

HIS HONOUR:   What do you say the order should be confined to, Ms Wentworth?

MS WENTWORTH:   Your Honour, if there is some problem with the way in which Mr Garling wants this matter dealt with - I have this problem, Your Honour:  as I say, the matters that are raised in the affidavit and in these annexures I have just taken Your Honour to are before ICAC on reference from the State Parliament.  They are also before the Royal Commission into Police.  For that reason, Your Honour, for this Court to make a confidentiality order over the top of them would put both of those commissions - I would think they would have grave problems. 

Now, Your Honour, it is not the function of this Court to interfere with royal commissions in a State, with great respect.  That would be - the separation ‑ ‑ ‑

HIS HONOUR:   The Court is not going to interfere with royal commissions in - - -

MS WENTWORTH:   Your Honour, if you put a confidentiality order over either my affidavit or those annexures to the affidavit, it would be queriable as to whether the Royal Commission would deal with the matters or whether I can give evidence.

HIS HONOUR:   Why?

MS WENTWORTH:   Your Honour, one might think - it depends on, I suppose, the extent of the confidentiality order, but in the general terms that are sought here, those matters could not be even raised and, with respect, it is my view that that is the very reason that this application is currently being made to the Court, in order to prevent those matters going forward to those royal commissions.

HIS HONOUR:   You see, the ordinary rule is that materials in an - the contents of an affidavit cannot be published until the contents of the affidavit become evidence in court proceedings when, of course, they can be published as part of the court proceedings.

MS WENTWORTH:   Your Honour, as I say, it gives them a certain protection when they are published in that form.  But when they are published in the other form, they do not have that protection.

HIS HONOUR:   I do not understand it.  I mean, the whole point is you are not supposed to be using affidavits that have been filed in court except for the purposes of the court proceedings.

MS WENTWORTH:   Your Honour, it is, with great respect, possible to re-entitle this affidavit a statutory declaration.

HIS HONOUR:   Well, you can do what you like.

MS WENTWORTH:   And provide it.

HIS HONOUR:   You can do what you like, of course, but what I am concerned with is the use of affidavit material and exhibits to affidavits that are filed in this Court.  That is what I am concerned with.

MS WENTWORTH:   Your Honour, as I say, because it is a convenient document for the purposes or for very many purposes at the moment, that use is being made of it for very many purposes.  Your Honour, the document has been provided to the Legal Practitioners Admission Board in my application for admission which is back before the board next Monday.  Now, Your Honour, it raises the matters which need to be raised.  It would appear to me that that is not something which the Court would then wish to stop.  I mean, that board has asked me to tell them what it is I wish to have raised, and this affidavit sets out in a convenient form those matters which are appropriate.  Because they are already in a sworn form, Your Honour, they are even more appropriate for somebody such as the board because, Your Honour, I put myself in the position of being pinned with the matters that are in this affidavit and I do that unhesitatingly.

Now, Your Honour, the matters that I was taking Your Honour to which seem to be causing Mr Garling the concern which were the subject of confidentiality orders, as he says, in the other courts, Your Honour, the annexed documents are well prior to any confidentiality order or anything else as emerges from the documents provided by the police department under Freedom of Information have been circulated far and wide amongst the police force.  Now, Your Honour, my complaint is, in fact, that the confidentiality which would normally have been annexed to the final document which commences at page 236, which is the police document, Your Honour - my complaint had been that my identity had not been, in fact, properly protected and because it had been provided to an inspector of the Federal Police in terms in which I had been providing information over many years, from my point of view, for that document to have gone to the State police in the form that it is in, and it is clear and emerges from the documents produced under the Freedom of Information Act that not only did it go to - well, first of all, it got lost.  It did not go to Mr Avery from Mr McCabe as it was supposed to.  Your Honour, that emerges from the documents which are annexed.  The document sending it is at 235, by Mr McCabe.  That was sent on 8 December 1986; supposedly sent by hand, confidentially - went astray.  There is no record of where it is now.

The other documents which are annexed show the inquiries that were then made and its resupply to the police department.  Your Honour, the affidavits reveal that, currently, all of that documentation is once again missing.  That is the second time round.  So, it can hardly be said that any of these documents are the subject of any amount of confidentiality.  They are out in the public arena and clearly have been since 1986.  To come to this Court now in 1994 and ask for a confidentiality order over documents which are freely available to any member of the public under Freedom of Information is astonishing Now, Your Honour, with great respect, that is not a proper function of this application to the Court.  It seems to me that exhibit KW8, which I have just taken Your Honour to, is the only one that Mr Garling seems to have problems with.  KW9 is the transcript before His Honour Mr Justice Campbell and that - - -

HIS HONOUR:   KW9, where do we find that, Ms Wentworth?

MS WENTWORTH:   At 242.  It actually commences at 255, Your Honour, the formal parts.

HIS HONOUR:   This is an index here.

MS WENTWORTH:   Yes, that is an index and then at 255 the actual - the front page is left in to indicate it was a closed court.

HIS HONOUR:   Was this transcript the subject of an order of confidentiality or non-disclosure?

MS WENTWORTH:   It was heard in closed court, Your Honour.  It continues through to page 283.

HIS HONOUR:   And that order still applies to this transcript?  So, it is not a document of public record.

MS WENTWORTH:   Your Honour, Mr Garling submits that that is the case.

HIS HONOUR:   Well, is it?

MS WENTWORTH:   I am not entirely sure that that is definitely the case, Your Honour.  The matter was ventilated before the Court of Appeal .  The hearing before the Court of Appeal in relation to section 15 was also heard - Mr Garling will correct me if I am wrong - but I also think heard in closed court.

MR GARLING:   It was.

MS WENTWORTH:   Your Honour, whether that then continues the orders for confidentiality, I am not sure.

HIS HONOUR:   Unless it clearly emerges that this material is not confidential or was not heard in closed court, it seems to me that I ought to make an order prohibiting its disclosure at this stage.

MS WENTWORTH:   If you do that, Your Honour, then you prohibit the royal commissions in looking at it.

HIS HONOUR:   Yes.

MS WENTWORTH:   That, Your Honour, would not be a proper function of this Court because it is not up to any person, in fact, to inhibit the conduct of the Royal Commission.

HIS HONOUR:   I point out to you that the order I am making is “until further order”.  That is, the matter would be considered by the Court of three.

MS WENTWORTH:   Your Honour, the first hearing before that commission is tomorrow.

HIS HONOUR:   Maybe.

MS WENTWORTH:   Your Honour, with great respect, it is surely not a proper way, when commissions are trying to conduct their business in an orderly fashion, for that to in some way by interrupted on an application of a foreigner - the Bar Association - for an order for confidentiality.  They have no interest in this material, with great respect, Your Honour.  They are, in this respect, an intermeddler.  Your Honour, they sought to be joined in these proceedings; they have intermeddled from the outset; the Court has given them the right to adduce evidence and to make representations and, with respect, that, I would submit, does not extend to seeking orders for confidentiality over certain material.

Now, Your Honour, my application would be that if there is any extant order for confidentiality over any of this material that in order to simplify the matter, that that order be lifted.  That is in respect of exhibits KW8 and KW9 as well as the affidavit.

HIS HONOUR:   There is no formal proceeding before me and in any event, I have no jurisdiction to make an order lifting an order for confidentiality or ‑ ‑ 

MS WENTWORTH:   Then, Your Honour, I would wonder if the alternative is not available, Your Honour, where would the jurisdiction then be to make an order for confidentiality.

HIS HONOUR:   I have jurisdiction to make orders with respect to proceedings in this Court.

MS WENTWORTH:   Your Honour, in that respect I accept what is said.  As to exhibit KW10 - - -

HIS HONOUR:   Page?

MS WENTWORTH:   Page 285.  That is a transcript before the Court of Appeal of 24 July 1986.  It is a transcript that has been before many courts.  It has been dealt with in open court both at the time of that hearing and in every other court at which it has been referred and, Your Honour, an application to have that transcript - - -

HIS HONOUR:   Has that ever been the subject of ‑ ‑ ‑

MS WENTWORTH:   No, Your Honour.

HIS HONOUR:   It has not?

MS WENTWORTH:   No, Your Honour.

HIS HONOUR:   What objection do you have to KW10?

MR GARLING:   I put the objection in this way, Your Honour, earlier.  It is the character of the whole of the affidavit and the annexures as such which would be caught by the order.  I do not suggest that the documents which are otherwise publicly available would be caught by that order, but the fact, for example, that an affidavit is filed in this Court, for that to be published saying this is an annexure or an exhibit to that affidavit ought be caught by the order for confidentiality.  It is not the content of the document which is otherwise publicly available.  It is the character of it.

HIS HONOUR:   You have no objection to the contents of KW10?

MR GARLING:   No, Your Honour, I do not.

MS WENTWORTH:   Perhaps Mr Garling could clarify if he has any objection to the contents of any of the other annexures.

HIS HONOUR:   Yes, could you answer that.

MR GARLING:   I can, Your Honour, if Your Honour would pardon me a moment.

HIS HONOUR:   I read through some of these exhibits.  I would not have thought, Mr Garling, you could have an objection to some of them.

MR GARLING:   Other than the way in which I have put it, Your Honour, no.  The ones to which I take objection, in terms of the content of them as opposed to the way in which I earlier put it, are KW8, the whole of KW8, KW9.

HIS HONOUR:   How much of KW9

MR GARLING:   The whole of KW9.  They are the two specifically, the contents of which I take objection for this reason: they are covered by previous orders for confidentiality and I can give Your Honour a reference to those if necessary.  In the application book at 126 His Honour Justice Campbell, in dealing with those documents said this:

This is one of two section which both parties asked me to treat as confidential material.  Cross-examination in relation to it took place in closed court -

MS WENTWORTH:   Your Honour, with great respect to His Honour Mr Justice Campbell, that is not in fact ‑ it was not an application of the plaintiff that the matters be treated confidentially.  From the transcript it emerges, in fact, that I objected to them being treated in closed court or confidentially.

HIS HONOUR:   First of all, can I - you say page 106 ‑ ‑ ‑

MR GARLING:   Of the application book, which I am told that Your Honour has available.  Your Honour will find conveniently the judgments of the lower courts.

HIS HONOUR:   Now, 106, Mr Justice Campbell says:

this is one of two sections which both parties asked me to treat as confidential material.

MR GARLING:   Yes, and the exhibits KW8 were those exhibits tendered as relating to section 15 of the way in which the case was put before Justice Campbell.  KW9 is the transcript of the applicant’s cross-examination upon that subject-matter and it was dealt with in closed court.  The specific order for confidentiality does not appear, as I presently believe, in His Honour’s judgment.  It was made in a separate judgment, but it is referred to in the Court of Appeal’s judgment in the application book at 257 in the second paragraph.

HIS HONOUR:   And there has not been any further order?

MR GARLING:   And there has been no further order.

HIS HONOUR:   Except, I suppose, to the extent that the next sentence indicates that publication of the judgment is a further order, but otherwise ‑ ‑ ‑

MR GARLING:   Otherwise than that there has been no further order.  Now, the specific contents of KW8 and KW9 are caught by His Honour’s initial order, by the fact that the proceedings were held in closed court, and by that continuation of the order without any variation.  They are the specific exhibits to which I take objection.  However, I maintain the objection which I earlier outlined to Your Honour as to the character of the balance of the exhibits and as to the fact that they should be caught by any order for the reasons that I have put.

HIS HONOUR:   I am not altogether sure that I follow that.  You have an objection to the publication of the contents of KW8 and KW9 on the basis that you have put forward, and you support that partly by reference to the fact that orders were made by the courts below that have not been relevantly lifted.

MR GARLING:   Yes.

HIS HONOUR:   Otherwise you are maintaining an objection to publication of the affidavit as an affidavit and publication of the other exhibits in their character as exhibits to an affidavit.

MR GARLING:   Yes, Your Honour.

HIS HONOUR:   In other words, you are seeking a restraint on publication of them in terms of bearing or their being held out as having that character?

MR GARLING:   Yes, Your Honour.  And may I submit why I seek that.  As the applicant has indicated to Your Honour, a fact which, until she said from the bar table, was unknown to me personally, that she has provided the affidavit and the annexures to the Legal Practitioners Admission Board by way of an example.  It is the use and provision of them in that context which I would seek to be caught.

HIS HONOUR:   Yes, I follow.  Indeed, the respondent to this application has asserted a right to do that.

MR GARLING:   Yes, and it is that to which the balance of the application is directed.

HIS HONOUR:   What about the contents of the affidavit, paragraphs 7 to 12?

MR GARLING:   Your Honour, the reason that it is appropriate that an order for confidentiality of the contents of the affidavit be made is, firstly, because that, in accordance with the ordinary principles, documents filed in the Court are not public documents and are not able to be broadcast; step one.   Step two, the publication of a document in the guise of an affidavit in this Court, even before it is read, accords to it a particular status, ie, evidence filed or an affidavit filed in a particular court, allegations are raised in that court, that of itself accords a particular status to whatever the contents of it be. 

Thirdly, the particular contents of this affidavit ought not be published because of the following: firstly, the nature of the contents of much of it is scandalous and offensive; secondly, the evidentiary weight of it, on its face, there is no evidentiary weight.  Much of it is double hearsay or other entirely inadmissible material.  Thirdly, the intertwining of assertions as to motives of conduct of the persons the target of those assertions are such that unless treated confidentially, it would cause or has the potential to cause considerable harm to those persons who are not parties to these proceedings and by reason of the publication of that fact in an affidavit in this Court could cause significant harm, whereas it might be that this material is never admitted before this Court and consequential orders may be made with respect to it.

For those reasons, and because it is physically impossible to edit the affidavit in a way which takes out parts of the paragraphs or parts of the words in it, it is appropriate that the order for confidentiality be made as to the whole of the document.

HIS HONOUR:   You see, you have not sought that, really.  You have sought it in terms of paragraph 2, but your primary application in terms of exclusion was related to specific parts only of the affidavit.

MR GARLING:   That is so, Your Honour, because the consequence of order 1 was to preclude the applicant from putting material before the court in the form that this affidavit bears.  It was therefore appropriate to limit that as far as was possible.  But in terms of a confidentiality order, having regard to the difficulty of distinguishing throughout the affidavit the various parts of it, and having regard, with respect, Your Honour, to the absence of any compelling purpose that a litigant could have to publish  ‑ ‑ ‑

HIS HONOUR:   In other words, you were proceeding on the footing that if you got an order of exclusion, it would be sufficient for your purposes if you excluded pages 7 to 14 and the relevant parts of pages 5 and 18.  Otherwise you were content to rely on what might be described as the absence of any right to publish an affidavit in advance of its being read and admitted in evidence.

MR GARLING:   Any legitimate purpose ‑ right or any legitimate purpose in publishing it as an affidavit in advance of the proceedings, supported by the nature of the contents of it.

HIS HONOUR:   What do you mean by “legitimate purpose”?

MR GARLING:   Obviously a litigant in these proceedings is entitled to serve the affidavit on the opposing parties prior to it being read.  That is a legitimate purpose in publishing an affidavit.

HIS HONOUR:   What other legitimate purpose?

MR GARLING:   There is none, Your Honour. There is no other legitimate purpose, prior to it being admitted into evidence and even then - I do not need to take it further than that.  That is the way in which we put it.

HIS HONOUR:   Very well.  Now, you have heard that, Ms Wentworth.

MS WENTWORTH:   I certainly have, Your Honour.  The orders are sought in the alternative as to orders 1 and 2.  Your Honour correctly points out to Mr Garling that if he had got order 1, that he was not seeking order 2.  Your Honour, it seems that Your Honour is having some submissions made to you which I shall simply describe as being inappropriate.  The way in which Mr Garling puts his application, as I understand it, is that the whole of the affidavit, not just the parts that he seeks to exclude in 1, would have a problem of being scandalous and offensive, have no evidentiary weight and that if mistreated confidentially have a potential to cause harm to persons not parties to these proceedings.

With great respect to Mr Garling, if that was what was thought or sought, then he would have not put 2 in the alternative.  Order 2 might have been thought to have been order 1 and then perhaps he might have sought to have struck out certain sections.  It is quite clear that Mr Garling is now putting an application to the Court which is not the application which is sought in the summons at all.  Mr Garling now having had it pointed out to him that the application in order 1 is not appropriate in this fashion, now seeks to attempt by the alternative order to incorporate into that matters which are not raised in the summons and there is a requirement on the summons, Your Honour, to spell out in detail just precisely what it is that you want

.    Now, Your Honour, the things that are spelt out in the summons are in relation to the matters specified in the schedule, just to 1, 2, 3, 4 and 5.  Your Honour, when we go to those we find that Mr Garling has no objections to any exhibits other than KW8 and KW9 and he does not raise any objection to any other exhibit except in his general form of saying, oh well, you have to look at that together with the affidavit.  With great respect, Your Honour, that is not a proper submission to the Court by counsel.  You do not look at the exhibits in that fashion.  The exhibits are formal records of the Court and as such, Your Honour, have a stand alone basis on which they can be either dealt with or not dealt with.  So, Your Honour, in his matter specified, what Mr Garling seeks to exclude are clearly the matters in relation to - under the heading “Kirby P.‑ Complaints to the Judicial Committee” from page 7 down to page 14.  Page 5, subparagraphs b), c), d), e), f), g), h), I) and j), and page 18, subparagraph y) through to page 19, subparagraphs z), aa) and bb).

Now, Your Honour, because it is really important to understand what it is that Mr Garling in fact is seeking to exclude, may I take Your Honour to the second lot of those at page 5 of the affidavit.  What is being sought to be excluded here - and it is under the heading starting at page 4, Your Honour - “FRESH MATTERS OCCURRING AFTER HIGH COURT DETERMINATION” and, Your Honour, I had intended to seek to hand up today, because it has happened again since the swearing of this affidavit, it is in respect of these paragraphs.  There is a further fresh matter and that is that Mr Rogers’ application for malicious prosecution has now been dismissed with costs.  So that all of the litigation which the Bar Association relied on as being really the basis for their application to have me excluded as a barrister is now complete and dealt with, Your Honour.  There is a lid on that box.  It is finished.

The matters that are raised on pages 4, 5 and 6, the exclusion is sought down to about the middle of page 6 above “PURPORTED `UNFOUNDED ALLEGATIONS’ heading.  Those matters and annexures, Your Honour, are all matters that had happened after the last application to this Court and as such, the Court would clearly have regard to.  They do not go outside, Your Honour, formal documents which are before the Court.  They are entirely transcripts, they include the High Court transcript of October 1984, they include the exhibits, they include the judgments of His Honour Mr Justice Sully.  His Honour Mr Justice Sully, in looking at the way in which Mr Rogers had been acquitted, called it a tainted acquittal, and these matters clearly are formal.  It is an astonishing application to seek to have those matters to be made the subject of a confidentiality order.

Perhaps, Your Honour, I should take you to those exhibits.  They commence at page 51, those are questions for the jury.  They are dealt with on 22 June, and at page 55, Your Honour, His Honour reads out the answers that the jury give.  They were asked whether they could come to a unanimous agreement upon liability and they said, yes, they could, but they could not come to a unanimous determination as to quantum.  There are then - the jury is sent out and various submissions are made.  Your Honour, the judge then refuses to give the jury the usual directions and they come in, at page 61, with a verdict in the amount of $2000 damages. 

The judgment I was referring to of His Honour Mr Justice Sully commences at page 62 on 8 April.  That was in an application for a severance of the malicious prosecution from the application of the plaintiff.  At page 10 His Honour starts looking at the way in which the trial was conducted - - -

HIS HONOUR:   Page 10 of his judgment?

MS WENTWORTH:   Of his judgment.  That is at page 71, Your Honour.  He goes through some of the ways in which, paragraph 15, the trial was conducted by Mr Shand.  He makes some scathing comments at the bottom of page 71 about that that would insinuate in the minds of the jury prejudice, contempt and revulsion and thinks that those lines of cross-examination were impermissible, at the top of page 72.

HIS HONOUR:   In what proceeding was this judgment delivered by Justice Sully?

MS WENTWORTH:   In the Rogers retrial, Your Honour.  That has now taken place.  That was what I have just taken Your Honour to, the determinations in June, and this was a preliminary matter where I had sought to have Mr Rogers’ malicious prosecution claim severed.

His Honour, at pages 72 through to 74, goes through some of the ways in which the judge dealt with the jury and at page 75, Your Honour, in the middle of the page, about dead centre, he says that:

it would be unjust to permit, in effect, a tainted verdict of acquittal, to be used by the respondent not only as a sword against further prosecution.....but also, so to speak, as a weapon to be turned positively against the applicant in proceedings for malicious prosecution.

But he did not stay permanently, as I had asked, the malicious prosecution and at page 83, Your Honour, he orders at (3):

I adjourn to a date to be fixed the hearing of the proceedings on the respondent’s cross-claim.

HIS HONOUR:   Yes, I follow that.

MS WENTWORTH:   Your Honour, I would seek to hand up what has actually happened, just to complete the record in relation to that, because I think it would be appropriate.  On 24 October, His Honour Mr Justice Loveday dismissed the application for malicious prosecution and orders were entered accordingly.

Your Honour, there is a further judgment of the Court of Appeal in relation to that $2000 award.  That follows His Honour Mr Justice Sully’s judgment and will not have page numbers, except the page numbers of the judgment on it.  It is a judgment of the Court of Appeal of 12 September.  The hearing was on 17 August.  If Your Honour could go to the bottom of page 3 of that judgment, the last paragraph:

it is clear that evidence was not put before the jury of all the damage particularised.  As appears from Sully J’s summing-up to the jury very little evidence -

et cetera:

the figure of damages.....was referable to the assault itself -

Again at page 5 at about point 4:

one of the rare cases where what the plaintiff had put before the jury in regard to damage was not only very brief, but was quite specifically limited to the assault and its immediate aftermath.

That, Your Honour, are the formal documents in KW1 and one would have to wonder why they would be the subject of any application for confidentiality.  They are extremely formal.  KW2, Your Honour, relates to John Hegarty who was a solicitor witness in the proceedings.  He was declared hostile because he gave testimony which was contrary to his previous testimony in his previous statement.  That commences at page 86, Your Honour.  The cross-examination is included.  What Mr Hegarty did in precis, Your Honour, was resile from the evidence that he had given in the committal proceedings of Mr Rogers saying to him “It is all true”, which was the subject of a determination in this honourable Court back in October 1984 as being a basis for refusing Mr Rogers special leave to appeal and, secondly, Mr Hegarty - - -

HIS HONOUR:   As I understand it, there is no objection to the content of this.

MS WENTWORTH:   Your Honour, I am simply seeking to support, now, the fact that none of these applications in relation to the rest of the affidavit - because this is now going to page 5, subparagraphs b), c), d), e), f) and g), and page 18, Your Honour, can possibly be the subject of any proper application for confidentiality.  They are all formal.  The exhibits which are noted by Mr Garling in relation to the page 5, that is the Sully hearing and judgment and the determinations, are exhibits KW1,2,3,4,5,6 and 7.  Your Honour, it seems to me that Mr Garling has some problems with matters in relation to His Honour Mr Justice Kirby and two of the exhibits in relation to that.

What I am submitting, Your Honour, is this, that if there were to be any confidentiality order at all over this affidavit, that it would be limited to the matters complained of by Mr Garling in his matter specified from page 7 to page 14 and exhibits 8 and 9, and that that would be the full extent that this Court would see as necessary to protect any interests at all.

Your Honour, I do not wish to take you in detail to the rest of the matters, but they are indeed, with respect, absolutely formal and they set out, in the terms of judgments and transcripts, precisely what happened.  Your Honour, reference to judgments and transcripts as annexures to an affidavit could hardly be said to in any way, as claimed, have the potential to cause persons not parties harm and damage.  Your Honour, that is just simply not possible.  These are public records and they are records anybody can go to and obtain and have regard to.

Your Honour, the only other matter complained of is at page 18 of the affidavit.  There are no annexures in relation to this.  It is at page 18 of the book.  It is at the bottom of the page that is as to y) and over the page at 19 down to the heading “WARD DCJ AND MAXWELL J.”  Your Honour, what is set out there are the descriptions of the Court of Appeal, it is said, page 19, appeal book 259, and an assessment of what is in the judgment of the Court of Appeal, of a 34-page judgment.  Pages 8 to 23 are taken up with making statements - statements made either to the Judicial Commission or in an affidavit or a statement of claim were baseless and insupportable.  One of the problems with what the Court of Appeal has done is that it has curtailed the descriptions and it has curtailed the matters upon which it relies.

Now, it was led into that error by the Bar Association but, Your Honour, those are formal matters.  They are matters which require to be elucidated.  Page 27 of the affidavit, Your Honour, gives you some idea of what is taken out of the determination of the Court of Appeal.  At about point 2 there is a little Roman numeral vi).  That is the section of the affidavit on which the Court of Appeal relied, but what it did was go down 7 lines and start at:

the hostility and bias of the various witnesses and the judge -

Now, Your Honour, it leaves out what the judge did in relation to breaching my confidentiality of having given evidence to royal commissions in camera and the rights that I had under that Royal Commissions Act to be protected from having to answer, as the judge forced me to do on a pain of contempt, questions in open court.

Your Honour, that is part of the problem with what has happened in the Court of Appeal and the Court of Appeal, without any evidence, then makes these astonishing determinations.  But they are baseless and insupportable and, Your Honour, the court heard no evidence, the Bar Association provided it with no evidence, the court called no evidence, which it could have done in the special nature of these proceedings, and came down with a decision which is not based on any matter of evidence at all.

HIS HONOUR:   That is a matter you addressed the Court ‑ ‑ ‑

MS WENTWORTH:   Yes, that is a matter which I will be requesting the Court to look at.  But, Your Honour, once again, they are formal matters and I have been very careful to contain all of the matters in relation to the exhibits to public records because it is indeed appropriate.  There is one number on the annexures, Your Honour, which I have pointed out to Mr Garling is wrong, and I would seek to correct.  It is correctly listed on the front as KW13, which is a letter from the Attorney-General to Malleson Stephen Jaques.  It is at page 355 and if Your Honour will permit me, I will hand that up to complete the record.

Your Honour, I have completed the record with a further letter which is mentioned in the affidavit.  It is an application by Mr Burbidge to the Attorney‑General and I have included in the exhibit the affidavit of Mr Russo sworn in the proceedings in common law before His Honour Mr Justice Campbell and the first two pages of the schedule which sets out those two letters, Your Honour.  That should be exhibit 13, Your Honour.  The two annexures are 17 and 18, I think, 2.17 and 2.18, Your Honour.

Your Honour, the matters which were started, of course, by the Attorney-General failed and His Honour Mr Justice Roden dismissed the application of the Attorney‑General finding that the matters which I raised - and they included in relation to Mr Burbidge, whilst they might on the face have seemed at the time strange or bizarre, had a proper factual basis.  Now, Your Honour, it, I would say, is the subject of vindication and different circumstances in which I find myself now after the determination of the jury and the dismissal of Mr Rogers’ malicious prosecution application, and that those are matters which, at an eventual hearing, the Court clearly will need to take into account. 

The final exhibit 14, Your Honour, at page 357 it commences, and that is a number of affidavits from members of the community, a variety of members of the community, including judges, Queen’s Counsel, members of federal police, human rights commissioners, professors of law, members of the community, members of parliament, all sorts of different people, Your Honour; the 25 affidavits in that group, commencing at page 358, and I am pleased to say that His Honour George Rummery, who is at page 376, has been pleased to once again sign an affidavit of good character for me in my present application before the Legal Practitioners Admission Board.

Your Honour, three of the deponents to those affidavits: Roger Gyles, John Hatton, member of Parliament, and David Parker, businessman, were cross‑examined before His Honour Mr Justice Campbell.  The Bar Association did not seek to cross‑examine any other deponent.

Your Honour, those are the only matters that the Bar Association complains of and, at the very most, Your Honour, it is quite clear that page 5 and the exhibits noted after that should not be the subject of any confidentiality orders; page 18, clearly, could not be; KW10, 11, 12, 13 and 14 should not be.  Your Honour, that leaves us with the matters in relation to His Honour Mr Justice Kirby.  That is from page 7 to page 14, and KW8 and KW9.

HIS HONOUR:   Yes.

MS WENTWORTH:   Now, Your Honour, in relation to KW8, it is a matter for Your Honour but I would submit that it would be extremely onerous for me if confidentiality orders were made in terms of KW8 and I could not then raise them, for instance, before the Legal Practitioners Admission Board, and I am before them on Monday.  These are matters which they want to hear about.  They have asked me to put before them the matters I wish to raise.  I am criticised by the Court of Appeal in relation to the matters I have raised in relation to Mr Justice Kirby and, Your Honour, I should be, respectfully, allowed to put my position as properly and openly as possible.

Further, Your Honour, there is a bill before the New South Wales Parliament for my admission.  It has gone to second reading.  It will be debated either on Thursday or the following Thursday but, certainly, before the end of the parliamentary term.  It is appropriate that those members of Parliament who wish to have regard to the documentation upon which the court has relied to date to say they do not consider me suitable to be admitted as a barrister, that full and frank discussion in the Parliament be available to them, that they know what it is that has been criticised; that they understand what it is that the court has relied upon.  In all circumstances, Your Honour, and certainly it is proper that a Royal Commission who commences its public hearings tomorrow is not curtailed in any way in the consideration of matters which are a specific reference from the Parliament and to police protection of paedophile records; that a specific reference from the New South Wales Parliament to ICAC in the same terms, and those matters, Your Honour, were sent across to ICAC, I understand, from the Parliament, firstly, not directly from me - Your Honour, not be curtailed in any way.

There are a number of reasons, Your Honour, which I would say - it is difficult, Your Honour, but we are talking public administration of justice and His Honour Mr Justice Kirby had probably the last word to say on it in the Court of Appeal in a case called Goktas v GIO, delivered on 31 August 1993.  It is a case in which His Honour, dealing with an application for bias against another judge - the matter is in the Court of Appeal - and His Honour, after going through the tests in the various proper cases of Vakauta v Kelly and Builders Licensing Board v Mahoney, at page 7, commences with the heading, “The court is not concerned with judicial sensibilities”, and His Honour sets out the fact at page 8:

Courts should not close their eyes to relevant facts about such conduct which can be proved by admissible evidence.

Secondly, it is unnecessary to be too tender about the sensibilities of the judge who is the subject of a complaint and tendered evidence.

HIS HONOUR:   What is the point of this, Ms Wentworth? 

MS WENTWORTH:   The point of this is, Your Honour, that the judge himself says that if complaints are raised in a court, they should be heard.

HIS HONOUR:   Yes, I follow all that but I do not really need to hear what Justice Kirby said about it.

MS WENTWORTH:   I am only raising it, Your Honour - I cannot have His Honour Mr Justice Kirby here to tell the Court what his views on this are.

HIS HONOUR:   No, no.

MS WENTWORTH:   The closest I can go is to say that in 1993 these are His Honour’s expressed views and, Your Honour, I rely on the expressed views.  His Honour says at page 9:

The parties should not be constrained from proving alleged injustice, or the reasonable apprehension of bias on the part of the judge, by rigid rules of law or practice which come in the way of proof of relevant facts by admissible evidence which tends to show -

et cetera.

HIS HONOUR:   All this indicates is that His Honour expressed the proper principles.

MS WENTWORTH:   Precisely, Your Honour.  Your Honour, I am sure His Honour has a robust view.  His Honour is aware that these matters have been out in the public arena, Your Honour, for many years.  Your Honour, whilst they are unfortunate, I was simply the messenger, and we do at least still have, I think, a rule in this State that we do not shoot the messenger.  I think that that has been lost sight of, that I did what was required, as I saw it as my citizen’s duty, to report what was being given to me as being the report of a serious crime.

Now, Your Honour, that is all I did and since then I have - - -

HIS HONOUR:   I am not exercising any judgment over you.

MS WENTWORTH:   I recognise that, Your Honour, but all I am trying to say at this particular point in time, that the matters have not been, unfortunately, treated confidentially.  They were not treated confidentially when they got to the Federal Police; they were not treated confidentially when they moved.

HIS HONOUR:   Yes, I follow all that.

MS WENTWORTH:   Your Honour, it is too late, with respect, to treat these matters in this way.  They have been out in the public arena for eight years and to try now to put a confidentiality order over the top of them will simply obstruct various bodies in doing their public duty.  That, Your Honour, I would submit, is not a proper function of the Court.

The matters that are raised in relation to His Honour Mr Justice Kirby can be raised with those bodies in a different way.  But if an order for confidentiality is put over the material then, Your Honour, I would have some difficulties.  I simply say at this stage that I have great sympathy for His Honour in the position that he is in and that I am  in.

HIS HONOUR:   We do not want to go into that.

MS WENTWORTH:   Yes, and that I am in, Your Honour.  But I do not know how otherwise to resolve it because it seems to me that the matters must be allowed to run their course.  They must be allowed to be examined and, Your Honour, it is not as if, as I say, they have been confidential for a great many years.  They have not.  They have been clearly discussed, as is set out in the documents obtained under FOI, at all sorts of different levels.  There is no confidentiality at any stage attached, even to the report from the Federal Police. 

It was supplied in that form by them and, as well, a tape was supplied.  So that the lowest constable who had it, who went and did some investigations at one of the hotels, Your Honour - there just has been no confidentiality attached to it until I was told by my counsel I had to disclose that in these applications and, Your Honour, to try and put confidentiality orders now is inappropriate, with great respect.  It is not going to do any harm further to anyone that has not already been, with great respect, done.  I think, any harm that has been done is long since passed and it would obstruct, with great respect, those trying to conduct themselves in other arenas.

Your Honour, there is nothing else which would meet the matters which Mr Garling has raised in relation to the whole of the affidavit and, Your Honour, if Your Honour considered any confidentiality orders, I would firstly say that they should be utterly restricted to the matters specified in 1 and in exhibits KW8 and 9, and nothing else, and that it would be inappropriate, Your Honour, to make any other order.

There is nothing, Your Honour, with great respect, that would support the application that Mr Garling makes.  He does not seek to support it by going to any document or any paragraph or any material or any matter in the affidavit.  It is simply an application at large without the slightest support and, quite frankly, without the slightest basis.  It is inappropriate in the circumstances, Your Honour.

HIS HONOUR:   Yes, thank you, Ms Wentworth.  Mr Garling, what distinction do you draw between an order for confidentiality and an order prohibiting disclosure?

MR GARLING:   The order prohibiting disclosure, Your Honour, would follow upon an order for confidentiality.  There is no real distinction, I say, Your Honour.  If something is confidential, that incorporates a proposition that it not be disclosed or, alternatively, an order that it not be disclosed has the effect of treating it as being confidential material.

HIS HONOUR:   That goes to contents though, does it not?  The more you think about it, an order in either of those forms goes to contents.

MR GARLING:   Yes, it must incorporate the contents, Your Honour, yes.

HIS HONOUR:   Now, that immediately presents a problem, does it not?  Why should a court be making an order for confidentiality in relation to anything that is of public record or, for that matter, anything that lacks the character of confidential information?

MR GARLING:   It can do so for this reason, Your Honour: that the order is being expressed not about the fundamental information; the order is being expressed in this application in terms of particular documents within the Court’s file.

HIS HONOUR:   But you need to make that clear, do you not?

MR GARLING:   In my respectful submission, order 2 does that, Your Honour, because it says - - -

HIS HONOUR:   I am not sure that it does.

MR GARLING:   Your Honour, with respect, may I put this submission, that if the words after “confidential”, and I use an example, “and the affidavit and annexures or any of its contents are not to be disclosed”, that would be broader, with respect, than the order presently framed.  But may I, with respect, just take issue with one matter that Ms Wentworth put?

HIS HONOUR:   Yes.

MR GARLING:   Ms Wentworth put that it is necessary for her to distribute the contents of, amongst other things, KW8, and necessary for her, in order to pursue an application to the Legal Practitioners Admission Board, to put the contents of pages 7 to 14 or some parts of those before the board.  She then accompanies that by a submission that, having regard to the nature of the documents in KW8, they are, in any event, in the public arena, in effect.  With respect, that is not a correct submission for this reason:  KW8 and the material encompassed by pages 7 to 14 has not been the subject of any finding either by the trial judge or by the Court of Appeal.  Neither the trial judge nor the Court of Appeal dealt with, in any final way, that material.  It was not found to be material upon which a finding adverse to Ms Wentworth was made.  Therefore, to say that in order to explain or in some way justify the submissions that are put, it is necessary to go to that material, is not correct, in my submission.

I can give Your Honour a reference to the way in which that is done but it is perhaps most convenient if I simply point out to Your Honour at page 37 of Ms Wentworth’s own affidavit, the subject affidavit, Ms Wentworth, in subparagraph (vi) says that the trial judge “made no findings in respect of” the “matters”.  Subparagraph (vi) is at about point 4 on the page, Your Honour.  Ms Wentworth says:

the Court of Appeal specifically directed counsel for the Applicant to address them -

that is so, in the context that one of the orders sought on appeal was an order for admission.  And then in subparagraph (viii) on the same page, Ms Wentworth says that:

The Court of Appeal makes no determination in terms -

set out there.  That, Your Honour, with respect, demonstrates that these documents that are subject to the orders in the courts below have not been used in any way to make any finding adverse to the applicant, and there can be no suggestion that, in order to explain, justify or otherwise deal with the judgments of the courts below, it is necessary to refer to those in detail.

HIS HONOUR:   Yes.

MR GARLING:    But, Your Honour, to return to the matter that Your Honour first raised with me, in my respectful submission, an order in terms of order 2 does not preclude the applicant from communicating factual matters to a third party, which factual matters she has acquired by reason of circumstances outside of the documents.  It would preclude the applicant from copying, distributing or disclosing the affidavit and its contents in that form.  Your Honour would not have jurisdiction, for example, to prohibit the applicant from disclosing a fact known to her totally outside of these proceedings unless it fell within the strict subject-matter of confidential information of the kind that Your Honour raised.  This is rather an application to prevent the applicant from disclosing this affidavit in its entirety in that form, and that is the way we put it.

HIS HONOUR:   Yes, but take the transcript at the end of the exhibit, the transcript which does contain the scandalous material.  What do you say about that?

MR GARLING:   Firstly, it is not the applicant’s document, in the sense that it is not a document she created.

HIS HONOUR:   No, no.

MS WENTWORTH:   Yes, it is.

MR GARLING:   It is a document in her possession which is the subject of a specific order of the Supreme Court, that it not be published or disclosed in any way.  Now, by annexing it to this affidavit, if there is no order affecting this affidavit or that annexure, the applicant would be able to say, “Here is a copy of a document filed in the High Court of Australia” and, arguably, may not be in breach of the Supreme Court order - arguably.  She may well be, Your Honour, but, arguably, may not be.  If the applicant was to achieve that objective in that way, that would be an inappropriate distribution of that document.

But if the applicant, for example, was asked by an appropriate authority, “What information can you provide on” subject-matter nominated, the applicant would be entitled to say, “I can provide you with the following information.”

HIS HONOUR:   How does that document come to be a confidential document?  How does it secure the character of confidentiality?

MR GARLING:   By two methods, Your Honour, it would appear.  One is by the ordinary - the document itself bears markings - if Your Honour looks at - - -

HIS HONOUR:   Page?

MR GARLING:   Let me just turn up the page, Your Honour:  page 237 would be a convenient example.  If Your Honour looks at the stamp at the bottom of the page and at the top of the page, which is repeated throughout the document, the creator of the document itself imposes a level of confidence on the document.  That is the first way in which it gains a degree of confidentiality.  The other documents preceding it, being the correspondence, indicate that it was treated by the authorities in that way, in other words, it was transmitted to other appropriate authorities for investigation under that confidential head, that is to say, it was dealt with in those terms.  It is then produced in these proceedings by the applicant and is given that form of confidentiality by the Court by its order.

HIS HONOUR:   Let us assume, for example, it did not have the stamp on it and let us assume that there was no other material indicating that it was regarded as confidential by the people who brought the document into existence.  Would the Court then be able to make an order that it was the subject of confidentiality, that the document should be treated as confidential?

MR GARLING:   No.  If I may change the example slightly.  If Your Honour were to refer to a routine document in the public arena, it would not be appropriate for the Court to say of it, “without more, that document and the contents of it should be treated as confidential.”  A court could prevent further disclosure if there was some appropriate reason; could order a party not to disclose it further if there was some good reason for so doing but it could not order it to be treated as - it could not create confidentiality.

HIS HONOUR:   I could understand that the Court could order that the document in its possession tendered to it should not be further published but if the party had copies of the document in the party’s possession, why would the Court be able to make an order that it be treated as confidential?

MR GARLING:   If it were otherwise not confidential?

HIS HONOUR:   Yes.

MR GARLING:   Then I do not think the Court could.

HIS HONOUR:   No.  But where does the Court get jurisdiction to order a party not to publish a document that is scandalous and will do damage?

MR GARLING:   It can only get that jurisdiction if the document is before it and it can only make the order with respect to that document which is before it.

HIS HONOUR:   Does it have jurisdiction to make an order with respect to copies of the document that the party has bearing in mind that we are dealing with a possibility of publication of the document in a way that is dissociated from its character as an exhibit in the Court?

MR GARLING:   I had assumed that is what Your Honour was putting to me.

HIS HONOUR:   Yes, that is right.
,
MR GARLING:   Assume the document contained information which was not otherwise confidential information, thereby giving rise to a right to restrain its distribution, and leaving aside the character of the document, a court could not have jurisdiction to restrain the publication of an otherwise public document.

HIS HONOUR:   For example, if you had succeeded in your first order that these matters be taken off the file, that would not have entailed any obligation on anyone to refrain from publication.

MR GARLING:   No.

HIS HONOUR:   I mean, the party would run all sorts of risks, of course, but it would not have entailed the imposition of an obligation on the party not to publish.

MR GARLING:   No.  Let it be assumed that the existing orders of the Supreme Court - - -

HIS HONOUR:   Because you could not publish it as a document, an affidavit, because it has been taken off the file.  It has lost its character, really, as an affidavit that has been filed in court.

MR GARLING:   That is so.  The party would run risks.

HIS HONOUR:   Yes.

MR GARLING:   That is so, Your Honour, I acknowledge that, but it would lose a very powerful character.

HIS HONOUR:   I am not suggesting otherwise, no.  I am just concerned to ascertain what the consequences are.  Is there anything else you want to say?

MR GARLING:   No, thank you, Your Honour.

HIS HONOUR:   I will stand this matter over until 10.15  on Friday and I will give my decision then.

MR GARLING:   If the Court pleases.

HIS HONOUR:   The Court will now adjourn.

AT 12.55 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 25 NOVEMBER 1994