X & Ors v Australian Prudential Regulation Authority

[2006] HCATrans 520

[2006] HCATrans 520

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S284 of 2006

B e t w e e n -

X

First Appellant

Z

Second Appellant

Y

Third Appellant

and

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

First Respondent

MARK GODFREY

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 26 SEPTEMBER 2006, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MS D. HOGAN‑DORAN, for the appellants.  (instructed by Minter Ellison)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If your Honours please, I appear with my learned friends, MR J.W.J. STEVENSON, SC, MS M.N. ALLARS and MS V.E. WHITTAKER, for the respondent.  (instructed by Sparke Helmore)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON: Your Honours, the appeal turns on the ambit of the proscription in section 6M(b) of the Royal Commissions Act 1902. May I go to that provision very briefly for a moment. I will come back to its terms shortly. Your Honours will see that section 6M provides that:

Any person who uses, causes or inflicts, any violence, punishment, damage, loss, or disadvantage to any person for or on account of:

(a)the person having appeared as a witness before any Royal Commission; or

(b)any evidence given by him or her before any Royal Commission; or

(c)the person having produced a document or thing pursuant to a summons, requirement or notice under section 2;

is guilty of an indictable offence.

Your Honours, as I said, I will come back to the terms of the provision if I may. The issue arises in relation to the use of evidence given by X and Y at a Royal Commission in order to disqualify them pursuant to section 25A(1) of the Insurance Act 1973 from holding certain offices in insurance companies.

KIRBY J:   Can I just ask you to explain to me why the appellants are known by an identifier X or Y, when so many other people come to our courts and their names are just used?  Is there any statutory provision for this effect?  There are such provisions in Crimes Acts for people who are involved in sexual crimes, but for the life of me I do not see why two business people should be given a special anonymity in this Court or other courts that other litigants in this country do not have.

MR JACKSON:   Well, your Honour, could I deal with the matter really at two levels.  I am sorry, your Honour, I just could not give your Honour an immediate reference to it.  As I understand the position, the position under the Court’s Rules at present – and it may be by way of a practice direction; I have to check that a little more closely, your Honours – is that if parties in proceedings in courts below have been identified by letters or in some other way, that is continued in this Court.  Your Honours will see, I think, a number of decisions in the appeal book dealing with the orders made in the court below as to the preservation of the ‑ ‑ ‑

KIRBY J:   It had to be renewed at different stages, as I understand it.

MR JACKSON:   Yes, your Honour, and I think the current order is that it goes until the conclusion of the proceedings in this Court.  That is the Federal Court’s order.

GUMMOW J:   I made an order in this Court.  I presided at the special leave and I made an order continuing that until further order.

MR JACKSON:   Yes.  I think in fact a consent order has been – it is at page 366, your Honour.  A consent order, I think, has been filed in the Court keeping those orders.

KIRBY J:   I know it is a consent order but lots of people come before courts and they would rather not have their names used but it is part of the open administration of justice that normally that is not done.

MR JACKSON:   Your Honour, I appreciate the general proposition that your Honour has put to me.  Your Honour will see the nature of the case and it is something where it is said – now, your Honour will appreciate the way in which the case is resolved may really affect the propriety of maintaining that identification or that lack of identification.  If your Honour wants me to put a further submission about it may I do so a little more fully later and perhaps in ‑ ‑ ‑

GLEESON CJ: Could I ask you a procedural question just as to how this matter comes to be in its current condition. On page 281 of the joint appeal book there are the orders of Justice Lindgren and we are concerned with the answer to question B. How does the issue of whether somebody has committed an offence of the kind described in section 6M of the Royal Commissions Act come to be the subject of a question in civil proceedings?

MR JACKSON:   If I could deal with it as a matter of form, first of all, your Honour will see that the proceedings were proceedings brought, and the application in the Federal Court is at, I think, page 1, but the proceedings were brought under those parts of section 39B of the Judiciary Act which allow proceedings to be brought for relief in matters arising under a law of the Commonwealth.  The question which arises, your Honours, is fundamentally, in that sense, whether the conduct of the respondent, Mr Godfrey, in reliance upon this material is – or the conduct of APRA – is something which is done which may lawfully be done.

GLEESON CJ: Is there a criminal prosecution on foot against the person who is alleged to have contravened section 6M?

MR JACKSON:   No.

GLEESON CJ:   What is the standard of proof in these proceedings?

MR JACKSON:   Well, the standard of proof, presumably, would be the civil standard with whatever additional emphasis might be given to the desirability of clear proof in a matter that involves a contention of a contravention of a criminal statute.

GLEESON CJ: Now, looking at the language of the question on page 281 and relating it to the language of section 6M ‑ ‑ ‑

MR JACKSON:   I am sorry, your Honour.  The first page your Honour mentioned was ‑ ‑ ‑

GLEESON CJ:   Page 281.

MR JACKSON:   Thank you.

GLEESON CJ:   It probably appears in many places in the appeal book but that is just where I picked it up.  What was the precise offence alleged to be committed by reference to the words of 6M?  Is it a use or is it a causing or an inflicting?

MR JACKSON:   Your Honour, it would be a use and I put it in this way, your Honour, because what is sought to be done is to prevent the use in the future – prevent the use so far and prevent the use in the future.  So it would be both “uses” and “causes”; perhaps “inflicts” covers some of the same area; a “damage, loss or disadvantage”, any of those three.  We would be content to rely on what appears to be the expression “disadvantage”.

GLEESON CJ:   I had assumed, but perhaps wrongly, that the word “uses” in 6M relates to violence.

MR JACKSON:   Well, your Honour, it does but it goes beyond that, with respect, because the words “causes or inflicts” are equally apposite to violence.

GLEESON CJ:   I understand that may be, but I am just trying to relate the precise language of 6M to the alleged criminal offence.

MR JACKSON: Your Honour, could I say, the terms of the opening words of section 6M are ones which use three verbs, as it were, to describe a number of nouns and one has to extract what they extract from them. But, essentially, we would say, it uses or causes or inflicts damage, loss or disadvantage. We do not suggest it is violence or punishment in any sort of strict sense of those terms.

HAYNE J:   Does that not point to whether violence, punishment, damage, loss or disadvantage is a concatenation of words referring to something other than the application of the law?

MR JACKSON:   Not really, with respect, your Honour, because, if one looks at the terms, certainly one sees that they refer to things that lie outside the law, but things such as punishment or damage or loss or disadvantage would also encompass things that are done lawfully but bear the aspect of also being done by reason of one of the matters referred to in paragraphs (a), (b) or (c).  Your Honour, if one took the ‑ ‑ ‑

HAYNE J:   Being done lawfully and being done in execution of the law may be radically different, may they not?

MR JACKSON: Your Honour, they may be. What I was seeking to say, though, in answer to what your Honour put to me was that the suggestion that section 6M might refer only to things that are done without the benefit of a legal backing of law really is, in our submission, not correct. Certainly, there may be things that are done that otherwise would be done lawfully but because they offend section 6M do not fall into that category. If they offend 6M, that takes away their lawfulness.

Could I say one thing further in your Honour the Chief Justice’s observation to me before.  What was sought, your Honours, can be seen in the – there was some relief sought by the applicants which your Honours will see at page 11 of the appeal book and, amongst other things, in paragraph 16.  I think section 50 of the Federal Court Act, your Honours, is the provision that allows the making of orders in relation to use of initials, for example. 

Your Honours, I mentioned section 6M and what we were going to say was this, that in summary the nature of the appellant’s contention is that to effect a disqualification of the kind in question would be to cause at least a disadvantage to the appellants. That is the first thing. The second thing is that a very large part of the case made against them is found in their evidence, both oral and in written statements of evidence at the Royal Commission in question. We would submit, thirdly, that the disadvantage is for or on account of that evidence and, fourthly, that such conduct would be in breach of section 6M(b).

Your Honours, may I go first to the relevant provisions of the Insurance Act, then to the conduct in question and, thirdly, to the application of section 6M(b). May I, before dealing with the first of those things, simply by way of introduction, take your Honours to the two “show cause” letters which are in question without going into much detail about them. Your Honours will see the letter to X at page 36.

HAYNE J:   Just before you come to that, can I understand what the disadvantage is said to be?  Is it said to be the investigation or the consequence of investigation, namely disqualification, or both?

MR JACKSON:   Both, really, your Honour, but ultimately, disqualification, and the potentiality for disqualification based on that material is the point.  Your Honours will see at page 36 the letter to X.  The structure of it is the same as the structure of the other document.  Pages 36 and 37 are the introductory letter.  One then has two attachments:  attachment A which sets out relevant provisions, and then attachment B, which commences at page 40, sets out material relied upon.  I only want to go to the first of things at the moment and that is to page 36.  Your Honours will see that in the second paragraph on page 36 it said:

On the basis of the information referred to in this letter, I have come to the preliminary view that you are not a fit and proper person to be or to act as someone referred to –

in the provisions of the Insurance Act there referred to.  Following (a), (b) and (c), you will see the preliminary view stated:

I have, therefore, come to the preliminary view that you should be disqualified from being or acting as the holder of a senior insurance role, pursuant to subsection 25A(1) -

Then your Honours will see on page 37 in the third‑last paragraph:

Before I reach a final view on the above matters, you may wish to make submissions –

et cetera.  Your Honours, the letter to Y is at page 230.  That part of it is in similar terms.  Could I come then to the relevant provisions of the Insurance Act? Your Honours will see that Part III of Division 5 of that Act is concerned with the position of senior personnel of insurers. If I could take your Honours to section 24(1), which is the commencing provision in that part of the Act, it says that:

A disqualified person –

and I will come to the definition of that in a moment, your Honours –

must not be or act as –

the holder of any of the offices referred to in that provision. Your Honours, in addition to section 24(1), prohibiting a disqualified person from holding an office referred to in that provision, section 24(4) requires that the:

body corporate must not allowed a disqualified person –

so to act.  Some of the terms there used, your Honours, are defined.  “A general insurer” and your Honours will see that expression used in 24(1)(a) and 24(4)(a) ‑

A general insurer is a body corporate that is authorised under section 12 to carry on insurance business in Australia.

Your Honours can see that from section 11.  I am putting that a little shortly in saying that the term by section 3(1), the term “general insurer” is defined to mean a general insurer as defined by section 11 and section 11 says what I said a moment ago.

KIRBY J:   Is that in juxtaposition to a life insurer?

MR JACKSON:   Yes, I think so, your Honour, yes.  There is a special provision for life insurance companies.  Now, section 12, your Honours, provides for the grant of authorisations to be a general insurer.  If I could take your Honours to section 12 for just a moment, you will see that in section 12(1) it is provided that:

A body corporate may apply in writing to APRA for an authorisation to carry on insurance business in Australia.

Now, “insurance business” is very broadly defined in section 3(1). If I could go back to section 24(1)(b) and similarly 24(4)(b), your Honours will see that:

A disqualified person must not be or act as:

. . .

(b)a senior manager, or agent in Australia for the purpose of section 118, of a foreign general insurer –

The term “foreign general insurer” is again defined by section 3(1) and your Honours will see that:

means a body corporate that:

(a)is a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; and

(b)is authorised to carry on insurance business in a foreign country; and

(c)is authorised under section 12 to carry on insurance business in Australia.

The term “senior manager” is also defined in section 3(1) and your Honours will see its terms set out there. Section 24(1)(c) refers to acting or being “a director or senior manager of an authorised NOHC”. The term “authorised NOHC” – it is a non‑operating holding company – is defined by section 3(1) as is the term “NOHC”. In the case of an NOHC, authorisation is dealt with in section 18. Your Honours, I do not think I need to go to its terms. Both section 24(1) and section 24(4) deal with the position of disqualified persons. Your Honours will see that the term “disqualified person” is given meaning by section 25 and section 25(1) sets out a number of circumstances in which a person is a disqualified person, but could I refer particularly to section 25(1)(f) and that is that:

A person is a disqualified person if, at any time:

. . . 

(f) APRA has disqualified the person under section 25A.

The power to disqualify your Honours will see in section 25A(1) which says that:

APRA may disqualify a person if it is satisfied that the person is not a fit and proper person to be or to act as someone referred to in paragraph 24(1)(a), (b) or (c).

GLEESON CJ:   Does APRA have its own statute or is it ‑ ‑ ‑

MR JACKSON:   Yes, it does, your Honour.  It is the Australian Prudential Regulation Authority Act 1998. Your Honours, the provisions of it really establish the Authority, give it functions, and section 9 of that Act says, essentially, that it has the functions conferred on it by other enactments.

HAYNE J:   Does it have its own hearing power?

MR JACKSON:   As such, your Honour, I think the answer is no.  There is a reference to times and places of meetings in section 27 and following, but I think the answer to your Honour’s question is no.  Section 11 of that Act says it is to co‑operate with other agencies.

HAYNE J:   So it, itself, does not have its own compulsory means of acquiring information?

MR JACKSON:   No, your Honour.  I mentioned section 11, that it said something about co‑operation.  In fact, I was looking at the wrong provision – that was section 10A.  Section 11 says it “has power to do anything that is necessary or convenient”, et cetera, and then section 11(2) lists it powers.  They are, really, the powers that are usually given to a body corporate, to acquire property and all that sort of ‑ ‑ ‑

GLEESON CJ:   But how does APRA go about deciding whether somebody is a fit and proper person?

MR JACKSON:   Your Honour, it has to decide on the basis of the material that it has.  I appreciate that is a simplistic answer.  What it does, your Honour, is that it has material and it decides on that material, no doubt after observing the need for fairness, one way or the other.

CRENNAN J:   Would a decision to disqualify be subject to merits review?

MR JACKSON:   Your Honour, one can go to the AAT, yes, or the AD(JR) ‑ ‑ ‑

CRENNAN J:   It could finish up in the Federal Court on a point of law ‑ ‑ ‑

MR JACKSON:   It could, yes.

CRENNAN J:   ‑ ‑ ‑ where a Federal Court might in certain circumstances be looking at the facts or the evidence.

MR JACKSON:   Yes.  Your Honours, the second part I wanted to go to, if I may, was to the material relied on for the proposed disqualification in this case.  I referred earlier in brief to the opening part of the letters at pages 36 and 230.  Could I go first to the letter at page 36.  You will see that in paragraph 2, at page 36, that it is said “On the basis of the information referred to in this letter”.  That information is set out in Attachment B, which commences at page 40.  Your Honours will see in paragraph 2 on page 40 under the heading “PROPOSED ACTION”:

My preliminary findings on material questions of fact, the reasons for my preliminary view and evidence or other material relied upon are set out below. 

Your Honours will see then that in paragraph 5 it is said:

Evidence provided to the HIH Royal Commission (‘the Royal Commission’) demonstrates the following:

You will see there ‑ ‑ ‑

KIRBY J:   That is not confined to his evidence, but could include his evidence?

MR JACKSON:   Your Honour, that is what I am about to say.  Some of this is not the evidence of X, but a great deal is.  You will see that, if I could indicate to your Honours where those paragraphs are, first of all, at paragraph 5(g) at page 41 and then your Honours will see in the case of each of these references there is a reference to a footnote and the footnote indicates the actual part of the transcript where the oral evidence is to be seen or identifies the witness statement of the witness X.

So paragraph 5(g), then paragraph 5(o) on page 42, he gave oral evidence, et cetera, and that refers to footnotes 18 and 19.  One then sees on page 43 paragraphs (q) to (s).  The relevant footnotes are footnotes 21 to 23, evidence which he gave.  You will see then paragraph 5(aa) on page 44, and that relates to footnote 33, and I think, your Honour, one should also add paragraph 5(bb) and footnote 33.

GLEESON CJ: On your argument, is the offence against section 6M complete when the letter is written or when the decision to disqualify is made?

MR JACKSON: Well, your Honour, certainly the latter, but possibly at the time when the letter was sent. I use that in a slightly hesitant way because what your Honours will see from the terms of section 6M is that it uses the expression “uses, causes or inflicts”. Now, your Honours, there may well be a question whether to engage in conduct of this kind, if there were criminal proceedings – when I say “of this kind”, I mean the sending of the letter – would make a person a party to, a secondary party or a principal in relation to the contravention of the section.

GLEESON CJ:   Just assuming for the moment – and I realise this may be controversial – that the verb “uses” in 6M relates to violence and that the words “causes or inflicts” relate to punishment, et cetera, then the offence would be causing or inflicting loss or disadvantage.

MR JACKSON:   Yes.

GLEESON CJ:   In your submission, would that offence be constituted by writing a letter saying, “I am proposing to do something”?

MR JACKSON: Well, your Honour, it would be constituted in one of two ways, either by sending the letter, because one could argue, in our submission, quite properly, that to put a person in jeopardy in this fashion was itself to cause a disadvantage on account of the evidence given by that person, and the disadvantage being that the person’s ability to hold those offices would itself be put in jeopardy and that would be a sufficient disadvantage. One could also take the view that the disadvantage might not be caused until there had been the disqualification from the office, but, your Honour, that does not prevent one, in our submission, from taking the view that to bring about either of those consequences would be something that in the end would give rise to a contravention of section 6M and that it could be just possible to declare that prior to there being, let us assume, an actual contravention of section 6M.

GLEESON CJ: Yes, it is just that if somebody were being prosecuted for a contravention of section 6M, people would be addressing with some particularity issues of the kind that I have been raising, such as when was the offence complete?

MR JACKSON:   Yes, your Honour, I appreciate that, but may I say in relation to it that what your Honours will see is that, if one goes back to page 36, what you will see is that it is said:

On the basis of the information referred to in this letter, I have come to the preliminary view –

the preliminary view being that he should be disqualified and it is said that there is not a final view yet arrived at. The point I am seeking to make, your Honours, is just this, that whether it be that the disadvantage is brought about simply by putting him in jeopardy but would be compounded again by the disqualification or whether there would not be an actual contravention of section 6M until the point was arrived at where there was a disqualification, in either event, the possibility of disqualification is sufficiently imminent, as it were, to make it appropriate if there would otherwise be a contravention of section 6M to restrain that conduct.

Now, if one goes then, your Honour, to say, what is the conduct which should be restrained, we would say that the conduct which should be restrained is bringing about or taking steps to bring about a disqualification based on the evidence to which I have been referring and to which I will come because that would, in one way or another, bring about a contravention of section 6M. Your Honour, if I can say this in relation to it, we are seeking to say that there are a number of provisions of section 6M, a number of possible interpretations no doubt of how the opening words fit together, but certainly it is apparent, on our submission, that the conduct would fit within those.

KIRBY J:   Your written submissions really anchor themselves in a textual interpretation of 6M and the ambit of “causes . . . disadvantage” which, on its face, is a very wide expression especially when read with “any evidence” in (b).  But your written submissions were rather light on what you were advocating is the policy and purpose of the Royal Commissions Act, and in particular when one reads those words “causes . . . disadvantage” in the context of a provision which is addressed to inflicting violence, punishment, damage, loss to a person, which all seems to be retaliatory type conduct, not, as it were, conduct that deals with the essential subject matter of the inquiry of the Royal Commission.

MR JACKSON: Your Honour, could we say a couple of things about that? If one has a situation where an inability to hold office is a disadvantage - and we would submit in our submission it plainly is – brought about within the terms of section 6M(b) and that disadvantage is sought to be brought about by reliance on things said by the person at the Royal Commission - in terms of relying actually on those words used at the Royal Commission - then, your Honours, that is the essence of what is being sought to be prevented by section 6M.

Of course, section 6M refers to conduct which is retaliatory. It comprehends conduct which is vindictive but, your Honours, what one sees is that it does not commence by referring to any person against whom or in relation to whom evidence was given by a person at the Royal Commission. It says “Any person who does those things” and what is does do, your Honours, is to embody, we would submit, a legislative value, if one likes to use the phrase, that when a person gives evidence at a Royal Commission and gives evidence which is truthful, that a person is not liable to suffer a disadvantage at the hands of anyone because of either the fact of giving evidence or the content of the evidence which the person gave.

GLEESON CJ:   But what if half a dozen people gave evidence to the same effect?  You do not immunise yourself against consequences under the Insurance Act by being one of a number of people who gave evidence about this, do you?

MR JACKSON:   No, you do not immunise yourself, your Honour.  The position though, in our submission, is that in seeking to have you prevented or disqualified from acting as an officer of an insurance company, APRA cannot rely on, as is done here, the evidence that you actually gave.

GLEESON CJ:   Now, what if they say, “All right.  We rely on the other evidence”.  That is all right, I presume.

MR JACKSON:   Your Honour, there may be a question in some cases.  I think the answer is yes, your Honour.

KIRBY J:   Mr Jackson, I have not expressed my concern very well, but I will try again to do so.  The whole point of a Royal Commission and hence of the Act and hence of the machinery of the Act is to get at the truth and facts of matters in controversy and therefore one would, on the face of things, find it a bit surprising if the evidence given in a Royal Commission is somehow unavailable thereafter for follow up that is provided by law to the dealing with the very matter that has been serious enough to occasion a Royal Commission and that, at least arguably, is a reason why one would try to read down “causes . . . disadvantage” because otherwise one of the objects of having Royal Commissions is going to be undermined unless you, as it were, confine it to vindictive or retaliatory action as distinct from the substantive matter which is what the Federal Court at both levels has been trying to articulate as the dividing line that 6M provides.

MR JACKSON:   Well, I will come to the provisions of that a little later, your Honour, but may I say two things about it?  The first is that of course in court proceedings the evidence could not be used, section 6DD.

KIRBY J:   Yes, but that goes against you in a sense because there is a particular provision in that regard.

MR JACKSON: Well, I am going to come to that, your Honour, but the second thing is that under section 6P of the Act, the information is to be passed on, what took place at a Royal Commission may lawfully be passed on to people like APRA. But it does not follow, your Honour, that if section 6M otherwise has the effect that one cannot actually use against the person the oral evidence or the statement that they gave, which is all we say, then that evidence itself can be used.

KIRBY J:   But if I can say so, this is why you really do have to grapple with a theory of the Royal Commissions Act into which this interpretation that you are urging would work, for example, that Royal Commissions are so important that Parliament has decided that if people give evidence before them, because the Royal Commission is performing a public function of getting information for the benefit of the public generally, that that evidence will not thereafter be used to the person’s disadvantage because the public purposes of a Royal Commission are much more important than following down every burrow and pursuing every person on the basis of what they say before the Royal Commission.  I could understand that sort of argument.

MR JACKSON:   Well, your Honour, that is what we are seeking to do, and that ‑ ‑ ‑

GUMMOW J:   Wait a minute, Mr Jackson, you are seeking an injunction, are you not, to restrain a breach of this section, which may never happen.  There may never be this criminal offence.

MR JACKSON:   Well, that is a possible view, your Honour, yes.

GUMMOW J:   Why does one get an injunction to restrain an apprehended enforcement of the criminal law, supplemented here by a declaration?

MR JACKSON:   Sorry, I just did not hear the last thing, your Honour.

GUMMOW J:   You moved under 39B of the Judiciary Act for an injunction.

MR JACKSON:   Yes.

GUMMOW J:   Then out of that came this separate question, which is really a declaration.

MR JACKSON:   Yes.

GUMMOW J: What these proceedings are all about seem to be a use of the injunctive remedy under 75(v) of the Constitution to restrain an apprehended, but something that may never in fact happen, contravention of the criminal law.

MR JACKSON:   Well, your Honour, at page 28 of the appeal book you will see part of the defence which commences on page 27, and then paragraph 11 of that says that the first respondent, which is APRA:

intends to consider the disqualification of the Applicants on the basis set out in the Notice and taking into ‑ ‑ ‑

KIRBY J:   I am sorry, I did not get that paragraph.

MR JACKSON:   It is paragraph 11 on page 28, your Honour.

GUMMOW J:   There is a question of mens rea in this section as well, is there not?

MR JACKSON:   Yes, your Honour.

GUMMOW J:   How could they have the necessary mens rea if they are discharging their statutory duties under the prudential legislation?

MR JACKSON:   Well, your Honour, their statutory duty has to be read with the Royal Commissions Act.  The statutory function they have is not one that permits them to disregard completely the provisions of the Royal Commissions Act.  The Royal Commissions Act applies generally and, as I was seeking to say before, it says you shall not cause a disadvantage.

HAYNE J:   Let me explore that proposition a little further and do so by reference to the letter at 36 to 37.  The annexure to that letter takes the form of preliminary findings, et cetera.  I assume – correct me if I am wrong – that it takes that form in anticipation of application of the AD(JR) Act.

MR JACKSON:   It may, your Honour, it may.

HAYNE J:   Well, does it take that form on account of anything that is to be found in the APRA Act or the Insurance Act?

MR JACKSON:   Not particularly, your Honour, no.

HAYNE J:   In particular, does it take the form of referring not only to the evidence given other than by X and Y, but also the evidence given by X and Y in amplification of the statement that the attachment sets out the material relied upon in forming the preliminary finding?

MR JACKSON:   Does it say something in amplification of that, your Honour?  I am sorry.

HAYNE J:   In particular, is the reference to the evidence given by these men at the Royal Commission one particular aspect of material relied on?

MR JACKSON:   It is.  The answer is yes, your Honour, with a qualification.  It is yes because in both cases, though with differing degrees of emphasis, one sees that the evidence referred to in paragraph 5 of each of the letters does contain some material which does not come from the evidence given by X, in one case, Y, in the other, to the Royal Commission.  I say there is a difference because in the case of Y almost all the material is actual evidence given by Y at the Royal Commission.  But accepting that there is other material referred to in both cases, what one sees is that in paragraph 5 at, say, page 40, your Honours will see that commences with the words:

Evidence provided to the HIH Royal Commission (‘the Royal Commission) demonstrates the following:

That goes on then to recite the evidence.  I have taken your Honours to a part of it.  Then at page 46, after paragraph 5, one sees paragraph 6 commencing:

On the basis of the conduct outlined above I have reached the preliminary view that:

and you will see the preliminary view formed.

CALLINAN J:   Mr Jackson, you suffer a disadvantage by the disqualification.  You may be willing to abide by it and never thereby incur any criminal liability, so that I do not know just what consequential relief you want.  You want a declaration that the disqualification is invalid or not authorised or would contravene the Act; is that right?

MR JACKSON:   In reliance on this material, yes.

CALLINAN J:   But the criminal law may not come into it at all because your disadvantage is suffered immediately that you are disqualified, is it not?

MR JACKSON:   It is suffered at the latest immediately we are disqualified.  There is a question to which I adverted earlier, your Honour, that the ‑ ‑ ‑

CALLINAN J:   You are not trying to enjoin some criminal proceedings?

MR JACKSON:   No, we are not.

CALLINAN J:   It is just that suggestion seemed to be made and I do not see that that is so.

GLEESON CJ: We are not talking about criminal proceedings against your client; we are talking about criminal proceedings against the second respondent in contravention of section 6M of the Royal Commissions Act.

MR JACKSON:   Your Honour, before answering that may I just refer to another part of page 47 before I go on.  I was going to refer to paragraph 9 where it is said “Your conduct as set out above is evidence”, et cetera, and then paragraph 10, “As a consequence”.

HAYNE J:   But it leads to this consequence, does it not, Mr Jackson?  If APRA had sent to your clients a letter which simply read “Please to demonstrate that you are fit and proper persons”, that might have led to a flurry of activity under the AD(JR) Act; it may not.  If they had sent a letter saying, “Having regard to the two particular transactions identified for which you were responsible, demonstrate that you are a fit and proper person”, it may or may not again have led to a flurry of activity under the AD(JR) Act.  But because APRA framed the letter in the way in which it did, which, from one point of view, seems to be, “There were these two transactions from which we would draw certain conclusions and, what is more, you have admitted you were a party to them in the particular way in which you were, now prove you are a fit and proper person”, it is said that there is an engagement of the Royal Commissions Act.

Does that not demonstrate that the word “disadvantage” is not to be regarded simply as anything which the individual may find not acceptable or personally disadvantageous, but “disadvantage” refers to something other than that which is prescribed by law, namely, the application of the APRA Act?

MR JACKSON:   Your Honour, may I say, I think, three things in response to that.  The first is that I would accept immediately that the term “disadvantage” does not simply refer to anything that someone happens to dislike.  It has to be some disadvantage in a real sense.  Your Honours, it is, with respect, not clear at all why loss of office or disqualification from office is not something that is referred to as a disadvantage.  The Court’s decision in Rich seemed to say that disqualification from being a director of a company was something that was in the nature of a penalty.  It is absolutely unclear, with respect, why disqualification of a kind such as in issue here would not be at least a legal disadvantage.

Now, one comes then to the way in which APRA can go about its business. There is no doubt, in our submission, that APRA is a body which is entitled to look at what happened at a Royal Commission. We would have thought that it would have been perfectly possible, really, for APRA to seek to achieve perhaps the same end but by doing things in a different way. But what one does see is that the way in which it has gone about seeking to exercise a statutory power is to do the thing that section 6M(b) says you cannot do. It says you cannot impose a disadvantage on a person “for or on account of” any evidence given by them.

Now, if one takes the many paragraphs of these two letters that say “The conduct we rely on is you told the Royal Commission” – look at page 43, paragraph 5(q), “You told the Royal Commission [this]”, paragraph 5(r), “In your witness statement to the Royal Commission”.

CALLINAN J:   Is that not different?  That is in reliance upon the evidence and the Act does not say that.

MR JACKSON:   Your Honour, what the Act says is “for or on account of” and your Honour will see, if one looks at the letter – I have taken, I think, your Honours to the various parts of it, but it is based entirely, relevantly, on what the witness said.  Now, there are things other people said and so on, but when one comes to something as in, for example, page 42, 5(o), “You gave oral evidence” and so on, your Honours, that must be, if ultimately effective, causing a disadvantage to a person on account of the evidence, any evidence, given by them at the Royal Commission.

GLEESON CJ:   Suppose the following facts.  Suppose a company has given a security to a bank and under the terms of the security the bank can exercise its powers of appointing a receiver in certain events relating to the company’s financial condition.  Suppose that the managing director of the company gives evidence at a Royal Commission which discloses that the company’s financial condition is such that the powers of the bank are exercisable and suppose reading of that evidence in a newspaper an officer of the bank decides to exercise the powers and exercises them.  Has the officer of the bank committed a criminal offence?

MR JACKSON:   Yes, because it is the very thing – your Honour, the power might not have been exercised but for – and I use that for a start – but for the evidence given.

KIRBY J:   Yes, but your use of the words “the very thing” is the problem that I have because the very thing that a Royal Commission is designed to do is to elucidate facts.

MR JACKSON:   Well, it does, your Honour, but one of the purposes ‑ ‑ ‑

KIRBY J:   You want to shackle the use of the facts though in a way that seems to destroy the utility of the Royal Commission in the first place.

MR JACKSON:   Well, it does not, your Honour.  The position is that in the circumstances to which the Chief Justice was referring people come along to Royal Commissions – I say “come along”, they sometimes and in most cases you would expect them to be brought along by subpoena, whether they are volunteers or not, but that being so ‑ ‑ ‑

KIRBY J:   That is really a legal irrelevancy, is it not, the fact that they volunteered?  I mean, it is honourable and decent that they did so, but it is not relevant to our problem.

MR JACKSON:   No, but if your Honour is saying that Royal Commissions are to elucidate the truth, one of the reasons why persons may volunteer to go there is because they have protections and if, in the course of giving evidence, it emerges that a company’s situation is such that a security that could be called on but had not been to that point, and the reason why it is called on, if I can put it that way for the moment, is because evidence emerged that there was a situation which would entitle the bank to do it, then, your Honours, in those circumstances, why is not the action of the bank officer action which causes damage or loss or disadvantage at least to the person on account of any evidence, namely, the evidence of the solvency of the company, given before the Royal Commission?

KIRBY J:   You ask the question.  The answer, at least the answer that the Federal Court has offered, is because to adopt that construction is over‑broad and would be destructive of the purpose of the federal Royal Commission power in the first place and, therefore, we must be looking at a narrower retaliatory type offence which is the sort of thing one would expect to be an offence, not an immunisation of material facts that come before the Royal Commission which is the whole point of the exercise.

MR JACKSON:   Well, your Honour, may I come to that when I come to the Royal Commissions Act, which I will seek to do in just a moment.

KIRBY J:   At some stage I would be grateful if you would do what you did not do in your written submissions, with respect, and that is to grapple with not the textual thing – I can see how you put your textual argument; you have a textual argument because of (b) – but how that works as a matter of the purpose of the Royal Commission and in the context of the Royal Commission and of the other powers that the Royal Commissions Act provides.

MR JACKSON:   Your Honour, may I come to that in just a moment.  Your Honours, I was at, I think, page 44 and I was simply referring your Honours to the passages that appear in the – that is to rely on the evidence.  Could I refer also to page 45, paragraphs (gg) through to (oo).  I think in our written submissions in paragraph 21 we have broken that into two parts and left one out, but it goes from 5(gg) to 5(oo).  I have taken your Honours to the terms of paragraphs 6 and 9 on that letter at pages 46 and 47 already. 

If one goes to the position in relation to Y, one can see that at page 230.  The letter, as I said, is in similar terms, but when one gets to Attachment B, which is at page 234, the reliance on the evidence at the Royal Commission by Y is much greater.

Could I refer your Honours to paragraphs 5(f) through to 5(m), then paragraph 5(o) through to paragraph 5(jj) and then paragraph 5(ll)?

GLEESON CJ:   Paragraph 80 on page 47 may also be of some significance.  When we come to the construction point we will need to inquire what would be the position if he simply relied on the findings of the Royal Commission?

MR JACKSON:   Yes, your Honour.

KIRBY J:   I noted – I am sorry.  If you want to answer that ‑ ‑ ‑

MR JACKSON:   What I was going to say, your Honour, in relation to paragraph 8 in both letters, what one sees is that he refers to various parts of the material, the Royal Commission’s report and so on – I am sorry, relevant submissions and the findings of the Royal Commission.  Your Honour, that is why, in a sense, one has the initial question that had to be resolved in this case because if the Court were to reverse the decision of the Full Court of the Federal Court the matter would have to return to those courts to be otherwise resolved.

GUMMOW J:   The reference there on page 47 at paragraph 10:

I propose to recommend to the appropriate delegate –

That is to the power under section 20 of APRA’s Act, is it not?

MR JACKSON:   Yes, it is, your Honour.  The delegation power under the APRA Act.

GUMMOW J:   And the “I” being spoken of there is Mr Godfrey, is it not?

MR JACKSON:   Yes.

GUMMOW J:   What is his position in the APRA structure in terms of the Act, in terms of the APRA statute?  He is not a delegate.  He is an APRA staff member, is he?

MR JACKSON:   Your Honour, you will see at page 37 he is “the” or “a” senior manager of it.  I will see if there is something more about his position in the material.

KIRBY J:   I notice that in the materials the Royal Commission has been anonymised, but is it necessary really?  I mean, this was a Royal Commission into irregularities in the insurance industry.  That was the whole point of the Royal Commission.  It is just very difficult for your theory of the Act to operate in a way that is compatible with the purpose and function of Royal Commissions generally and of this Royal Commission in particular.  You would have the Royal Commission, but all the people who gave evidence before it would be immunised and you therefore have to postulate a theory that there is a trade‑off.  If you give voluntarily or compulsorily evidence before a Royal Commission, it can never thereafter be used.  Other material can, but that evidence cannot.  That is the trade‑off of getting material for the benefit of the public in Royal Commission inquires.  That has to be you theory of the Act.

MR JACKSON:   Well, I think, your Honour, we had said that, with respect, in our written submissions, and perhaps it is in the submissions in reply, but perhaps I could – well, yes, of course, your Honour, there has to be a trade‑off, and may I come to the terms of the Royal Commissions Act now to deal with the course it adopts in relation to these matters?  Your Honours, the Act contains a number of provisions of relevance.  The first is section 1A which gives a statutory power to grant commissions to make inquiry.

Then, your Honours, one then sees that section 2(1) empowers a member of a commission to summons a person to give evidence and an oath or affirmation may be required to be taken or made – that is section 2(3). Thirdly, a witness who is summonsed to attend has to do so until excused or released from further attendance – that is section 3(1). Fourthly, it is an offence not to answer a relevant question. That is provided for by section 6(1). Your Honours, one sees then that self‑incrimination is not a reason for failing to answer a question – that is section 6A(2) in the case of a natural person. There are some exceptions which you will see in section 6A(3) and section 6A(4).

GUMMOW J:   Just going back to section 6, 6(3) says it “is an offence of strict liability”.

MR JACKSON:   Yes.

GUMMOW J:   There is a treatment of that in the Criminal Code. Section 6M is not an offence of strict liability.

MR JACKSON:   No, it is not, your Honour.  Your Honours, one comes then to a number of provisions aimed at the protection of persons who have been compelled to give evidence and who do not have available the privilege against self‑incrimination.  One of those provisions is section 6DD.  Your Honours, perhaps I should have mentioned section 6D which relates to “secret process of manufacture” and circumstances concerning “the profits or financial position of any person” and taking “evidence in public”.  But moving on to section 6DD(1), your Honours will see that it provides that:

a statement or disclosure made by the person in the course of giving evidence before a Commission –

is not admissible against that person in any civil or criminal proceedings in an Australian court.  Now, your Honours, it makes it clear that such evidence may not be used against a person in a court except in the limited circumstances referred to in section 6DD(2).

KIRBY J: The respondent puts the submission that if your theory of section 6M(b) is correct, there was never any need for 6DD. What is the answer to that?

MR JACKSON:   I will come to that in just a moment because I wanted to deal with that with a number of other provisions on which our learned friends rely.  Could I just say that one instance of the limited circumstances referred to in section 6DD(2) is found in section 6H(1), which is in relation to the intentional giving of false and misleading evidence.

Now, your Honours, there is then the group of provisions which one sees in section 6I. They are concerned with procuring or attempting to procure the giving of false evidence. Could I refer also to section 6J, and perhaps I could pass over section 6K, but there is also section 6L which is preventing a witness from attending. Now, your Honours, you will see then section 6M. I will come back to it in a moment. It is one of the provisions which deals with conduct after the event, that is, after the giving of evidence in the sense that you will see that section 6M(a) refers to “having appeared”, section 6M(b) refers to “any evidence given” and section 6M(c) refers to “having produced a document”.

Now, your Honours, section 6N deals with a rather more specific situation, namely, action by an employer. What your Honours will see is that whilst the language of section 6N(1) under three paragraphs has similarities with the language of the three paragraphs of section 6M, what one sees is a change of language in subparagraph (b). Whereas section 6M(b) had said “for or on account of . . . any evidence given by him or her before any Royal Commission”, section 6N(b) says “for or on account of the employee having . . . given evidence before a Royal Commission”. So that one does see, if one compares 6M(b) and 6N(b), that the legislature has used wider language in 6M(b) than it used in 6N(b).

KIRBY J:   But on your theory why would that not be a sort of hybrid of (a) and (b)?

MR JACKSON:   I sorry, which one, your Honour?

KIRBY J: Why would the special provisions on your theory of section 6M not be covered already by 6M(a) and 6M(b)?

MR JACKSON:   Your Honour, what we would say about the relationship between those two provisions is that our learned friends, for example, would say that 6M(b) should be treated as having a meaning similar to that of 6N(b).  One could equally say, your Honours, that section 6N(b) should be treated as having the same meaning as 6M(b).  But to come more specifically to what your Honour put to me, it seems clear enough that section 6N is intended to deal with a specific set of circumstances which would not actually be uncommon.  It is intended to make it perfectly apparent to employers and employees that conduct of that kind is prohibited. 

Your Honours, one would expect that at the time when its provision enacted in the expectation that at the time when a witness either gives evidence or is summoned to give evidence that the provisions of section 6N would be made perfectly clear to the witness at least so the witness could necessarily be able to show them to an employer.  It is a specific provision to deal with the specific circumstances that are referred to in it.  Your Honours would also note that there is a special exception provided for in section 6N(2). 

Your Honours, it does, with respect, seem a little odd, we would submit, to attempt to read down the broader words of section 6M(b) by saying that section 6N(b) uses arguably narrower terms and that in consequence section 6M(b) should be in some way read down. Your Honours, could I come to section 6P ‑ ‑ ‑

GUMMOW J:   What about section 6O?  It seems to me a lot of this conduct in these earlier sections would, in any event, have been activity that could amount to an intentional contempt?

MR JACKSON:   Could be, your Honour, yes.  Your Honour, I am not suggesting that there is not considerable overlapping in some of these provisions, but the overlapping really does not, in our submission, hurt us.  If one goes, for example, to section 6DD, the provision which prevents evidence being given in court, then it may well be that much of that would be, in any event, covered by, for example, 6M(a) because it speaks of punishment, for example.

GUMMOW J:   I just find it hard to envisage that Mr Godfrey, in pursuing his duties under the APRA statute, would be in contempt of this Royal Commission.

MR JACKSON:   Well, your Honour, maybe he would, maybe he would not, and I do not really, with respect, need to get into that question, but the way in which your Honour puts it to me, Mr Godfrey in performing his duties under the APRA Act, well, Mr Godfrey does have to perform the duties that he is given under that statute in accordance with law and one of the laws ‑ ‑ ‑

GUMMOW J:   It becomes a cart and horse argument really.

MR JACKSON:   Well, it does, your Honour, yes, I accept that, but if you find a provision which, if one assumes for the moment, on its true construction says that you cannot cause a disadvantage to a person on account of – or to pick up the exact words – any evidence given by them and then you find that disadvantage is sought to be caused by reliance on very significant passages of the evidence given by them in a Royal Commission, that seems to take away one of the protections which the Royal Commissions Act is giving to people who give evidence there in order to ensure that the evidence which is given is evidence which is true and that they do not suffer disadvantage because of having given that evidence. 

GUMMOW J:   It comes back to this question of intent and that comes back in the way this proceeding is framed and comes back to the nature of injunctive relief that is sought and the declaration and the awkwardness of that proceeding.

MR JACKSON:   Well, your Honour, there is evidence before the Federal Court in the forms of the two “show cause” letters themselves in which it is indicated that there is an intention to do the various things referred to in the provision.  Now, your Honours, it is also said in the defence in the proceedings that APRA does intend to do these things.  Now, in those circumstances, there is a sufficient case, in our submission, to indicate the prima facie contravention of the provision.

GLEESON CJ:   Or an intention to contravene it.  Has the contravention already occurred or would it occur at some future time?

MR JACKSON:   Well, your Honours, it gets back to what I was submitting earlier and that is certainly the contravention would occur at the time when there was a disqualification, but it may well have occurred earlier if one is speaking about the actions of Mr Godfrey in causing, because the causing – that offence may not be complete until there is a disqualification, but elements of the offence would have occurred.

GLEESON CJ:   But we do need to face up to that, do we not?  We will have to answer that question, will we not?

MR JACKSON:   Yes, your Honour.  It does not really matter though, with respect, in our submission, because there is sufficient evidence to demonstrate that this material is to be relied on in forming the view.  The only reason why there has not been a view formed is because of these proceedings.

KIRBY J:   What is the line of territory that Justice Gummow opened up about the usual principle that you do not issue injunctions to restrain future criminal activity?

MR JACKSON:   Your Honour, the position as we would submit is this, that it is really a fairly well‑established proposition that a court should not intervene to prevent the continuance of a criminal prosecution.  I put that with some qualifications, of course, but generally speaking ‑ ‑ ‑

KIRBY J:   Is that dealt with in the Patrick union case which we had?  Where does one look to to see what this principle is, do you know?  Perhaps you can tell us at some later ‑ ‑ ‑

GUMMOW J:   There is a textbook.

MR JACKSON:   Yes.  Your Honour, it is certainly an element ‑ ‑ ‑

KIRBY J:   I want the authority of the Court, not some textbook.

GUMMOW J:   The textbook refers to authorities.

MR JACKSON:   Yes.  May I endeavour to give your Honour a short answer and then I will give your Honour some paper to support it.  The proposition, as we would - one sees it not infrequently in this Court where applications are made for special leave to have some issue decided which will relate to a pending criminal proceeding.  The Court very infrequently gives special leave on the basis that the courts should not interfere with the progress of continuing ‑ ‑ ‑

GUMMOW J:   It is a different point, though, is it not?  It goes back to what the Chief Justice raised with you earlier, standards of proof.

MR JACKSON:   Your Honour, there is equally ‑ ‑ ‑

GUMMOW J: You want a quia timet injunction on the balance of convenience and so on. That is a long way from what is involved in adjudicating criminal appeals - on an indictable offence, I may say, requiring a jury trial under section 80 of the Constitution.

MR JACKSON:   Your Honour, could I say in relation to that – and I accept that if there were a charge of that offence it would be a jury trial but there is nothing to prevent the application in – I am sorry, I will start again - if there were a situation where there was a disqualification then the issue would arise in proceedings challenging that disqualification.

GLEESON CJ:   What exactly would be the issue?  Would the issue be whether the disqualification was on account of the evidence?

MR JACKSON:   Yes, your Honour, for or on account of the evidence.  Whether that was amended there would be a question that would arise in relation to that.

GLEESON CJ:   And suppose it appeared on the prosecution that there was plenty of other evidence that would have justified the disqualification, what would be the significance of that for the prosecution?

MR JACKSON: The position would be, your Honour, that one would have to identify whether the material, the use of which was otherwise proscribed by section 6M, was material which had been relied on in effecting the disqualification. Now, maybe it was, maybe it was not, but if it was then the disqualification would be ‑ ‑ ‑

GLEESON CJ:   What if they relied on the findings of the Royal Commission which in turn relied on the evidence?

MR JACKSON:   One is, of course, at one stage further remote and it would become more difficult to – and there is no prohibition on acting on the findings of the Royal Commission.  That would seem rather silly if there were, but, at the same time, that would not be a direct reliance on that material.

GLEESON CJ: Yes, but a possible point of view is that difficulties of this kind tend against the construction of section 6M for which you are arguing.

MR JACKSON: Of course, there are always difficulties, your Honours, which arise where something is, in effect, declared to be unlawful by a prohibition against it and where a party seeks to take account of something to achieve another end in contravention of the prohibition. But if one is looking to see what section 6M is doing, and tries to define what it is doing - other than having a relatively broad operation - one does tend to find some difficulties, we would submit, in justifying the approach taken in the courts below. I will come to that in just a moment if I may.

CALLINAN J:   Mr Jackson, I still cannot see – there are no criminal proceedings threatened at this stage.  Of course, they are a possibility if your clients are disqualified and then continue to act, but it is only in those circumstances, is it not?  There is no threat of criminal proceedings?

MR JACKSON:   Not against us, your Honour.

CALLINAN J:   Not against the parties to the litigation.  Is that right?

MR JACKSON:   That is so, your Honour.  Yes.

HAYNE J:   Are you not threatening that there is a criminal offence being committed by Mr Godfrey?

MR JACKSON:   Well, if your Honour wants to put it as “threatening”, we are contending that is so.

GLEESON CJ:   You have already submitted that Mr Godfrey committed a criminal offence by writing this letter.

MR JACKSON:   Yes, I did, your Honour.

GUMMOW J:   That is why you want an injunction.

MR JACKSON:   But I thought I was being asked, your Honour, about whether I was threatening criminal proceedings and the answer is no.

CALLINAN J:   But, Mr Jackson, often an injunction will seek to restrain conduct which could also be criminal.  The Criminal Codes have quite elaborate provisions about threats to people.  There is a case in which a union official was convicted in Queensland under the Criminal Code for threatening somebody.  Often the conduct or civil misconduct, if I can use that expression, may also be, if the prosecuting authority wishes to charge it, criminal.

MR JACKSON:   Well, it may be, your Honour.  Your Honour, that is at least for quite a long time – there are decisions both in this Court and elsewhere that ‑ ‑ ‑

GUMMOW J:   What is the civil misconduct here which happens concurrently to be criminal?  The civil misconduct might found an injunction but there is not any here, is there?

MR JACKSON: Your Honour, it is the lawfulness of it, your Honour, if I can put I that way. Then what you have is section 6M saying something is unlawful. It says it because it is a criminal offence. We are saying in civil proceedings that a party who is a person who is engaged in conduct which contravenes the provision should be restrained from contravening it, from acting in contravention of it. Now, your Honour, if one takes the simplest cases, the Ku-ring-gai Shire Council Case of, I think, about 30, 40 years ago, where the Court will restrain breaches of ‑ ‑ ‑

MR JACKSON:   Well, your Honour, “emergency” in a sense reflects a particular line of cases, but the observations made in the Bateman’s Bay Case and in the Woollahra Case that is referred to in the ‑ ‑ ‑

GUMMOW J:   They are town planning cases.

MR JACKSON:   I understand that, your Honour, but the ‑ ‑ ‑

GUMMOW J: Not indictable offences against the Commonwealth triable by jury under the Constitution.

MR JACKSON:   But one has to look to see ‑ ‑ ‑

GUMMOW J:   That is why Fairfax is not the point because that was section 79 of the Crimes Act dealing with official secrecy.

MR JACKSON:   Well, your Honour, “emergency”, in our submission, would be a species of a larger genus and if you have circumstances such as this where the position is that action would be taken, and is very likely to be taken, which, if we are correct, is action which would be in contravention of the law.

Now, it is not a case where there is any reality of proceedings being taken against APRA or proceedings being taken against Mr Godfrey for a contravention of the section by way of an indictable offence.

CALLINAN J:   Mr Jackson, public nuisance was an offence of common law, but as a matter of principle a person suffering damage over and above what ordinary members of the public suffered could seek an injunction, could obtain an injunction, even though it was a criminal offence.

GUMMOW J:   Also a tort; that is the difference.  There is no tort here.  Now, we are back where we were before.

MR JACKSON:   Well, your Honour, the position ‑ ‑ ‑

CALLINAN J:   There was no tort in Ainsworth either, and yet relief was granted – not an injunction, but equitable relief by way of a declaration.

MR JACKSON:   Well, your Honour, the point I am seeking to make is that this is a class of case which is no different in kind from the classes of case dealt with – and I will not go to it in detail – but the passage that I referred to from Batemans Bay.  I do not know that I can advance it more than that, but that is the position, we would say, and it is a case where it is appropriate for the question to be answered.  Could I say, your Honours, something as to the form of relief in the proceedings?  Your Honours will see that the question that was actually answered – one can see it at page 319 at about line 45:

Does the use by the first or second respondent of the evidence of the first applicant before the Royal Commission contravene ss DD or 6M -

Now, the reference to the DD part of it was not pressed.  However, the question seems to have remained in the same form.

GUMMOW J:   What do we do about that?

MR JACKSON:   What I was going to say, your Honour, was this, that if we were to succeed in the appeal - we have set out in submissions the orders that we sought, but I was going to say I see in the light of the fact that DD has remained that there had to be a slight alteration to them.

If you see paragraph 41 of our written submissions, paragraph (c) would have to change. It would not be a question of just determining that question B be answered “Yes, it be determined”. What it would be would be that question B, so far as it related to section 6DD, be answered no and insofar as it related to section 6M, be answered yes. Your Honour, perhaps I could put an amended form of draft order in the document that I said I would give to the Court.

CALLINAN J:   Mr Jackson, I am interested in that.  Is that tantamount to making a declaration?

MR JACKSON:   It will not be a final declaration of the proceedings, your Honour, I appreciate that.  We are content, really, to have the proceedings remitted to Justice Lindgren as we have said in paragraph 41(b).  There will no doubt be arguments about what follows from that but we are content with that.  Your Honours, those are our submissions. 

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Solicitor?

MR BENNETT:   May I have leave to put in written submissions as to the form of order?

GLEESON CJ:   Yes, certainly.  We will reserve our decision in this matter and will adjourn until 10.00 am on Thursday, 28 September.

AT 4.02 PM THE MATTER WAS ADJOURNED