Z v N

[2006] HCATrans 317

[2006] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S521 and S522 of 2005

B e t w e e n -

Z

Applicant

and

N

Respondent

Applications for special leave to appeal

GUMMOW ACJ
KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2006, AT 9.33 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.S. HOWEN, for the applicant in each matter.  (instructed by Bolzan Dimitri)

MR I.D. TEMBY, QC:   May it please the Court, I appear with my learned friend, MR P.F. SINGLETON, for the opponent in each matter.  (instructed by New South Wales Crime Commission)

May it please the Court, we have a preliminary application to make which my learned junior will pursue.

MR SINGLETON:   Your Honours, the application is for an order that the Court be closed for the hearing and that there be no publication of that which is said in the closed Court.

GUMMOW ACJ:   Why?

MR SINGLETON:   On these bases:  the four hearings below were all heard in a closed court; the proceedings arise out of a statute which provides for a private hearing of the respondent.  We submit that the statute when it then confers a right to apply to the Supreme Court for review of a decision in a closed hearing of the Commission at least impliedly gives the Supreme Court the power to hear matters in private if that is necessary in the public interest.  We submit that this Court impliedly has the powers of the Supreme Court to protect the State public interest.

GUMMOW ACJ: We have the powers we get from Chapter III in the Constitution.

KIRBY J:   You are in federal jurisdiction now.

MR SINGLETON:   With respect, that ‑ ‑ ‑

GUMMOW ACJ:   There is no question about our power.  The question is whether it should be exercised.  The question is with counsel of the experience and dexterity we have here, why cannot the matter proceed and if any sensitive question arises, an application can then be made.

MR SINGLETON:   Certainly that is an available course.

GUMMOW ACJ:   It is a preferable course, surely.

MR SINGLETON:   Certainly with the skill of the counsel, I would concede that.  I can indicate there is an affidavit ‑ ‑ ‑

GUMMOW ACJ:   We have a lot of written material and these applications are basically dealt with on the written material supplemented by oral submission.

MR SINGLETON:   Certainly, your Honours.  If we could have leave to make that application at an appropriate moment.

GUMMOW ACJ:   Of course.

MR SINGLETON:   I can indicate there is an affidavit if need be.

GUMMOW ACJ:   Thank you.  Mr Jackson, I did not ask you what your attitude was to the application.

MR JACKSON:   Your Honour, we are prepared to consent to it.  There are two applications.  Each is out of time.  We seek leave to extend time until the date of filing the applications in each case.  I understand there is no objection to the adoption of that course if the Court were prepared to do so.  The affidavits in support of those applications can be seen at pages 230 and 260.

GUMMOW ACJ:   Yes, you have that extension.

KIRBY J:   Was there not a suggestion somewhere in the papers that there should be some separate representation for X?  Has that been given any thought or not?

MR JACKSON:   Your Honour, that application was one that failed in the first instance.

KIRBY J:   I realise that but we are now here.  Maybe that is something that could be considered if you are granted special leave.

MR JACKSON:   Yes, your Honour.  There were difficulties in relation to it because of the need to preserve secrecy because of a section of the Act.

KIRBY J:   I do not want to take up your time but it may be something that might need to be thought of down the track.

MR JACKSON:   Your Honours, the applications relate to the refusal by the applicant, a lawyer, to answer questions addressed to him in the New South Wales Crime Commission, the questions seeking to obtain from him the name of a client who was the source of information which he had conveyed to the New South Wales police at the client’s request.  Three bases for refusing to answer were relied on.  The first, which is the subject of the first judgment, was legal professional privilege, if I can use that expression.

GUMMOW ACJ:   That is the question concerning the construction, is it, of section 18B(4)?

MR JACKSON:   Yes, your Honour.  Two questions arise in relation to the claim.  They are first whether the information, being the name of the client, was the subject of privilege and, secondly ‑ ‑ ‑

GUMMOW ACJ:   Is it name or name and address?

MR JACKSON:   I think it is both actually but I was abbreviating in saying “name”.  The second question is whether in any event the last sentence of section 18B(4) of the Act required him to answer the questions.  May I go to the first of those questions for just a moment.  The primary judge at page 90, paragraph 19 took the view that the tests applicable were those referred to in the Full Court of the Federal Court in Commissioner of Taxation v Coombes and they are set out at page 91.  Your Honours will see the reference in paragraph 19 at the bottom of page 90.

The principles there referred to were applied, in our submission, somewhat uncritically, with respect, by the primary judge.  May I mention two matters in that regard.  The first is that your Honours will see in the list of dot points at page 91 the third one says in the second sentence:

In almost all cases the client’s name and address will not have been communicated confidentially.

GUMMOW ACJ:   That could be a question of fact from circumstance to circumstance, I suppose.

MR JACKSON:   It would be, your Honour, yes.  What I was going to say about it was that when one looks at what the primary judge did at page 87, paragraph 5 you will see if one makes the assumption that there may be a confidential communication of a name, it is difficult, with respect, to see why the view would be taken that that would not be prima facie a confidential communication.  The second point I wanted to make, your Honours, concerning the application of the test at page ‑ ‑ ‑

KIRBY J:   There was no question, was there, that it was a legal occasion as distinct from a social occasion?

MR JACKSON:   No, your Honour.  The communications made were communications which were really for I suppose two purposes.  Purpose one was to find out the manner in which there might be communications to the police in a way which would avoid the disclosure of his name - no question about that being legal advice.  The actual information given has not been the subject of questions.  The other information was the information itself which was communicated.  That of course was in fact communicated.

KIRBY J:   But it was on a social occasion that the question was raised.

MR JACKSON:   No, your Honour.  I think the initial meeting was on a social occasion.

KIRBY J:   I see, but then that was made more formal, was it?

MR JACKSON:   Yes.

KIRBY J:   Was a solicitor involved at that stage or not?

MR JACKSON:   Your Honour, the initial meeting was the solicitor and this person on a social occasion but the person became a client.

KIRBY J:   I see.  Yes, very well.  That is in your favour.

MR JACKSON:   Yes, quite.  If I could just go back to page 91 for a moment, the fifth and sixth, as it were, dot points say:

As a general rule, the identity of a client will not be privileged, as the privilege belongs to the client, and the retainer between the lawyer and the client must be demonstrated in order to establish the privilege.  This requires disclosure of the client’s identity.

Disclosure of the client’s identity is necessary before the privilege can arise . . . The client cannot be contract extend the area of privilege.

The point we would seek to make is that those statements cannot, with respect, be universally true.  If it is established that there was a client, the name does not necessarily have to be disclosed to show the existence of a privilege.  What I have said so far is seeking to demonstrate that the view that the occasion was one not attracting privilege may well not be correct.

The second thing, your Honours, is when one comes to section 18B(4), if I could take your Honours to that for just a moment, your Honours will see that it provides relevantly that:

If:

(a)      a legal practitioner or other person is required to answer a question . . . at a hearing before the Commission, and

(b)      the answer to the question would disclose . . . a privileged communication passing between a legal practitioner . . . and a person,

the legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.

Your Honours will then see the following sentence which lies at the core of the matter:

However, the legal practitioner must, if so required by the member presiding at the hearing, furnish to the Commission the name and address of the person to whom or by whom the communication was made.

KIRBY J:   How did Justice Giles read that down given it is apparent – he took the two together, did he, and said that if the very matter that is the subject of the privilege is the name and address, then that has to be accepted from the ‑ ‑ ‑

MR JACKSON:   That is page 106, your Honour, in paragraphs 19 to 21.  The point is this, if I could endeavour to summarise what we would say about it.  We would submit that the last sentence of section 18B(4) is directed to a situation where the communication to which it is referring is not the privileged information itself.  To do so would render the protection conferred by the earlier part of section 18B(4) useless.  The object of the last sentence of section 18B(4), in our submission, is to enable the Commission to bring before it the person having the privilege.  

In whatever way one interprets the provision, the language of it creates some difficulties, no doubt, but what we would submit is that the purpose of that provision is to enable the Commission to bring before it the person who has the privilege in relation to the information and to require that person to decide whether or not to take the privilege, to put it shortly.

GUMMOW ACJ:   The phrase “the communication” may suggest, I suppose, that the communication is something other than name and address, otherwise the sentence eats itself up.

MR JACKSON:   Yes, your Honour.  That is the first point, if I can put it shortly, and that is the first case.  I can take your Honours to the reasons in the Court of Appeal if necessary but that is the essence of the matter.  Could I come to the second and third matters.  They arose in the second case and they arose under section 18(2)(b).

KIRBY J:   The decision in the first case was given immediately, was it?  Was it reserved?  It is given as the same day as the argument.

MR JACKSON:   In the first Court of Appeal the hearing date, page 102, is recorded as the same date as the judgment date.

KIRBY J:   Yes, I imagine the nature of the matter required some speed with delivery of the reasons.

MR JACKSON:   Yes, your Honour.  I think it was also an application, perhaps not treated by our side as being, for leave to appeal.

KIRBY J:   That is not to say that it is wrong because many good reasons are given immediately.  I have given a few myself.

MR JACKSON:   Your Honour, sometimes reasons given immediately represent the revelation of the truth.  Sometimes, on the other hand, they represent a distillation of what the answer should be; sometimes they are wrong.  That is why one has appeals, your Honours.  The provision I was going to refer to was section 18(2)(b).  Your Honours will see that it says:

A person appearing as a witness at a hearing before the Commission shall not, without reasonable excuse –

and it is those words that are important for these provisions –

or except as provided by section 18A or 18B . . . 

(b)      refuse or fail to answer a question that the person is required to answer by the member presiding at the hearing –

Your Honours will see that two matters were said to amount to reasonable excuse.  One was whether the circumstances were akin to those of revealing the identity of an informer; the other was fear of reprisal.  May I deal with them in that order.  As to the first of those, it is clear ‑ ‑ ‑

KIRBY J:   You use the word “informer”, but is that quite a correct use of that word in this context?

MR JACKSON:   “Informant” perhaps would be a better word, your Honour, but I was using it for the purposes of brevity to describe this concept if I may.  That is the concept that it is clear, in our submission, that there is a principle that at least in proceedings in courts – and that is a limitation which does not set the outer limit of the proceedings to which it is relevant – courts will not compel the disclosure of the names of persons who have provided information leading to the detection of crime.

If I could take your Honours to what appears at page 142 at paragraph 62 ‑ ‑ ‑

KIRBY J:   This is to protect the identity and the operations of public authorities.  Here it is a public authority that is seeking the identification.

MR JACKSON:   Your Honour, it is not the only public authority, if I can put it that way.  What your Honour will appreciate is that the information was provided to the then relevant public authority, the New South Wales police, and provided in circumstances where the person who sought to have the information conveyed sought to have it conveyed in circumstances where the person’s identity was not made apparent to the police and in circumstances where the person used an intermediary, the present applicant, to do so.  That does not mean that the capacity of the person to be an informant was lost.

KIRBY J:   You omitted “in circumstances of a closed meeting”.

MR JACKSON:   I am sorry, at the Commission?

KIRBY J:   Yes.

MR JACKSON:   Yes, I have, your Honour, and I was going to come to that in a moment if I may.  Could I say in relation to that because that seems to be an issue that was regarded as being of some significance in relation to both these grounds, what one does have is a situation where the provisions relating to “without reasonable excuse” are provisions that have remained in the Act notwithstanding the provisions about closed hearings and so on and they are provisions that have been there notwithstanding the introduction, say, of 18A and 18B.  The point I seek to make, your Honours, is that it is all part of one statute and what is a reasonable excuse from the point of view of the person who is required to answer the question and in all the circumstances is not ‑ ‑ ‑

KIRBY J:   But it is in the face of a statute of the New South Wales Parliament which is not challenged as to validity which provides for the closure of the Commission and that seems to contemplate that it will be able to get this information for high public purposes.

MR JACKSON:   No doubt one can say that is the object of the Act but one has to take the Act in toto and the Act says that one may not answer the question or not have to answer the question or be compelled to do so if there is a reasonable excuse.  What I was going to say was that in looking at the particular subject, one does have to bear in mind that the notion that the disclosure of names of persons will not be compelled in certain circumstances is something which has in effect hardened, as put by the New South Wales Court of Criminal Appeal, into a rule of law.  Your Honours will see that referred to in the passage at page 142, paragraph 62 from R v Smith, the quotation from the judgment of the Court of Criminal Appeal.

The second thing I was going to say was that there are good reasons why the compulsory disclosure of the client’s name should be treated as equivalent to making available the identity of the applicant’s source.  Some reasons to that effect may be seen in the observations of the New York Court of Appeal in a passage which was quoted by Justice Heerey in the case of Federal Commissioner of Taxation v Coombes (No 2) (1985) 160 ALR 456. I understand that our books did not get to the Court. I am not certain if your Honours have that but could I give your Honours ‑ ‑ ‑

GUMMOW ACJ:   We have Coombes (No 1).

MR JACKSON:   This is Coombes (No 2), your Honours.  Could I give your Honours copies of that.  It  should be behind tab 4 and I wanted to refer your Honours to page 465.  You will see at about point 4 on the page a reference to Blumenfeld v Kaplan.  Your Honours will see the passage of the text where the judge summarises the decision and then goes on to give the quotation.

KIRBY J:   Does your theory of fear postulate the unsafety of communication to the Commission?

MR JACKSON:   Yes, it does, your Honour.  That is part of it.

KIRBY J:   But is that not a problem?  If the Act of Parliament requires disclosure to the Commission, how can a court judge unsafety?  Do you say it is just judged on the particular circumstance of the case and that in this case there was an event that rather suggested that in an earlier phase there was unsafety?

MR JACKSON:   And that he had been told by those who came to ask him the name…..that it was a possibility – I will not put it higher than that – that there was involvement of police in the event that is the matter being inquired into.  So one is not talking about a circumstance where there was no fear.  In fact, there was a finding that there was a subjective fear of reprisal.

KIRBY J:   The difficulty is that it postulates the fear as against the apparently clear words of a statute.

MR JACKSON:   Yes.  What I was going to say about it is it may well be that if one were in a situation where the only issue were the question of fear of reprisal, that that by itself might not be something meriting the grant of special leave.  What we would say, however, is that that is a factor which could properly be taken into account in deciding the second aspect to which I referred earlier, and that is the question whether there was on the other basis the informant, if I could put it on inverted commas basis, a reasonable excuse.

KIRBY J:   But surely that is for the Commission to judge because it would know as well as anyone else the principle of protecting sources and should protect sources and to take steps to protect sources, especially, one might say, because of what has happened in this case.

MR JACKSON:   Your Honour, no doubt one might say that is what should happen.  I see my time has expired.

GUMMOW ACJ:   No, go on, Mr Jackson.

MR JACKSON:   What I was going to say in relation to it was that this is a case where of course there is an ability to have decisions of the Commission reviewed.  The Commission is not unreviewable.  That is what proceedings of this kind are.  Could I just say these further things very briefly.  I do not think I need to take your Honours to the relevant parts, but the Court of Appeal in paragraphs 13 and 14 of its reasons, which your Honours will see at page 223, appeared to adopt the view that it was clear that the primary judge had accepted the possibility that an informer relationship was involved.  Our submission is that it is not at all clear that the primary judge had made that assumption.

GUMMOW ACJ:   What do you say about paragraph 14 on page 223, Mr Jackson, the findings of fact by Justice Johnson?

MR JACKSON:   In relation to that, the first thing I was going to say was that the views that one sees which underlie the primary judge’s view and that lead – the views that underlie the primary judge’s view are ones that one can see expressed by him in his reasons at paragraph 66.  If one looks at what he says in paragraph 66, about line 41 through to about line 47, that refers back to what he had said in paragraph 7 and also to what appears in paragraph 22 of his reasons, pages 116 and 123 respectively.  That view of the facts, in our submission, namely that they “rose no higher than a willingness on the part of the police to receive information . . . without him revealing his source.  That is a far cry from a form of undertaking”, et cetera, is one that we would submit could not reasonably be taken of the statements that are there made.  If that be so, then the statements made in

paragraph 66 at page 143 underlie the statement at paragraph 67, based on “the circumstances of this case”.  That is what is picked up by the Court of Appeal in paragraph 14.

GUMMOW ACJ:   What relief would you seek in the second matter from us?

MR JACKSON:   In the second matter what we would seek is of course the appeal would be allowed.  That would mean that there would then have to be a grant of leave to appeal – I am sorry, I will start again.  The appeal would be allowed.  The result would be that the decision of the Court of Appeal refusing to grant leave to appeal would be set aside.  We would submit it would be an appropriate case for this Court then to treat the case as one where leave to appeal had been granted by the Court of Appeal and to overrule the decision of the primary judge in effect dismissing the order for review.  I am putting it shortly but that is the effect of it.  The primary judge’s order – you will see in his reasons first of all at the bottom of page 147 where he affirmed the decisions requiring the answers and then in 81 he dismissed the summons.

GUMMOW ACJ:   What I am trying to find out I suppose is whether we would be engaged in ourselves deciding whether or not the plaintiff on the materials did have a reasonable excuse.

MR JACKSON:   I have no doubt we would be asking your Honours to do so.  Whether the Court would do so or whether it would be necessary to do so is another question.  It would be perfectly possible for the Court to set aside the decision of the Court of Appeal and to remit the matter back to that court or, alternatively, back to a judge to rehear the application.

GUMMOW ACJ:   Thank you, Mr Jackson.  Yes, Mr Temby.

MR TEMBY:   The relevant facts may be stripped down to the following.  The applicant who was then a solicitor met the man who is called in the proceedings X on a social occasion and in that social context ascertained his name.  Subsequently X retained the applicant for the purpose of using him as a conduit to provide information to the police concerning alleged criminal activities of a drug‑related nature of another party.  That happened on two occasions, the applicant being, as I say, merely a conduit who was utilised by X for the passing of this information.

KIRBY J:   We were told that that was done on the second occasion or it was done with some formality.

MR TEMBY:   On each occasion the telephone call which was made to convey the information was made in the presence of X and information was conveyed which was of interest to police.  The police sought to ascertain the identity of the person who was the ultimate source of the information and that did not happen; it was not disclosed.  The next step is that a further serious offence was committed against he who I have described as the third party.

KIRBY J:   It was a very serious offence and very frightening to a person with young children.

MR TEMBY:   Yes, and it is not useful to specify it but we know what it was, a very serious offence.  The Commission that I represent received a reference to investigate that offence.  In due course of time it became of interest to ascertain who the ultimate source of information to the police was and for that purpose the present applicant was called before my client.  The hearing which resulted was a closed hearing and subject to secrecy provisions which are contained in the Act.

KIRBY J:   But a transcript is kept.

MR TEMBY:   A transcript was kept.

KIRBY J:   There is obviously a fear that in view of what happened to X that there is not a guarantee or even possibly a likelihood that it is all going to be kept secret.

MR TEMBY:   It is I suppose a matter of judgment as to what level of risk there is that the participation of the present applicant would be known, particularly if the matter had proceeded as we say it should have proceeded with the disclosure simply being made.  In any event, there were two hearings before the Commission.  On the first of those occasions the present applicant was pressed to provide information as to the name and address of X and he refused to do so, invoking client professional privilege.  That resulted in the hearing before Justice Grove and the appeal to the Court of Appeal, in both of which he was unsuccessful. 

At the second hearing he again declined to answer and on this occasion claimed justification on the basis of public interest immunity in that he was protecting the identity of an informer and he claimed he had a reasonable excuse for not responding in that there was a fear of reprisals.  Those claims were not upheld by the Commission.  Review was sought before the Supreme Court.  Justice Johnson in a detailed and careful set of reasons found against the present applicant and the appeal to the Court of Appeal was again unsuccessful.

KIRBY J:   Importantly Justice Johnson found against the applicant on his assessment of the risk of reprisals, did he not?

MR TEMBY:   With respect, he did.  Our submission is that neither of these applications raises a question which calls for the grant of special leave.  So far as the first application is concerned, we submit that the law as to the nature and extent of the client privilege which arises from legal advice being sought and given is thoroughly well laid down in the cases and is not in doubt at least in any respect which arises in the context of this case and in any event ‑ ‑ ‑

KIRBY J:   You cannot say Justice Giles’ dissenting view is unarguable.

MR TEMBY:   With respect, that has to do only with the question of the proviso to section 18A(4), may it please the Court.  The first point has to be that there is no doubt as to the applicable law with respect to client privilege.  It has been laid down by this Court in a number of well‑known cases and it is not until one gets through that that questions arise so far as 18A(4) is concerned.

KIRBY J:   But as far as I am concerned it is distinctly arguable that if the very subject of the privilege is the identity and address of the client, that that is the matter that is privileged.

MR TEMBY:   With respect, a real difficulty which arises at the primary point is that the identity of the client was information which the present applicant had anterior to any legal advice being sought.  He knew that before legal advice was sought and the information came to him otherwise than in a privileged context.

GUMMOW ACJ:   Is there a finding to that effect?

MR TEMBY:   Yes.

GUMMOW ACJ:   Can you just take us to it.

MR TEMBY:   I may have spoken too rapidly in saying “yes”.  Perhaps the correct answer is that there is no doubt as to that.  Can I come back to that and my learned junior will look at that.  So far as the other application is concerned, we submit that there is nothing in the public interest immunity point because the purpose of the rules which protect the identity of informers is to facilitate to the maximum extent practicable the flow of information to the authorities for the purpose of aiding the enforcement of the criminal law.  In this case it is precisely the flow of information to such an authority which will be facilitated by the information sought being provided to my client.

There is no case which can be pointed to, or at least nothing in this country, which would produce the result that there can be protection of the identity of a person who has provided information simply because that person does not want his or her identity to become known.  Importantly, the information which is sought to be obtained is information which is sought to be obtained in the context of a closed hearing and by a body which is subject to statutory secrecy provisions.

KIRBY J:   You have to test it by the possibility that the information is vital to discover a person who has killed another or has attempted to kill another and that that is the only way in which it can be found.  It cannot really ultimately be possible that the person who can give that information can keep it all to himself on the basis that he is protecting the informants.

MR TEMBY:   No, and, with respect, it is a matter of high likelihood that the Commission is in the best position to make the judgment so far as those questions are concerned.

KIRBY J:   What happens if we think the first point is arguable but the second point, in view of the factual findings of Justice Johnson and that matter that I just mentioned, is not arguable?

MR TEMBY:   With respect, in those circumstances we would submit that there is an insufficiently cogent basis for special leave being granted.

GUMMOW ACJ:   Why would that be?

MR TEMBY:   Your Honour, because the utility of the matter being pursued ‑ ‑ ‑

KIRBY J:   But you do not get to Justice Johnson unless you get through the first gateway, do you?

MR TEMBY:   I daresay that is right but I can only repeat that the 18A(4) point we submit does not arise until ‑ ‑ ‑

KIRBY J:   I can only repeat that it is arguable that it does arise and that Justice Giles’ second view is arguable.  In the context of the whole of the Act you have to look at the two subsections.

MR TEMBY:   If that was the view that the Court took ‑ ‑ ‑

KIRBY J:   I am not saying you would not ultimately succeed because the language of the subsection that you rely on is on its face and in isolation very clear and very specific.

MR TEMBY:   Our submission is that if that was the view that the Court took, then the appropriate course would be to grant leave only with respect to that discrete aspect of the matter, there being no utility, we suggest, in granting leave with respect to both applications unless the second of them is seen to have independent appeal.  So far as the other aspect of the second application is concerned which has to do with fear of reprisals, the difficulty facing the applicant is that there are factual findings which are adverse to him and unsurprisingly so in circumstances where it would seem apparent that if this information had been sought to be obtained from him, however reluctant he may have been in a court hearing on the hearing of a charge, then he would have been required to provide it, we suggest.  If that be correct, it must follow that he is required to provide the information in the very different and much more protective context of a Commission hearing.

KIRBY J:   I thought Mr Jackson stumbled a little when the Acting Chief Justice asked what order we would make because in the end we would not be reviewing the facts.  We would not be deciding whether Justice Johnson was right or not or our view on the matter.  It would have to go back to somebody else and then you are back to square one.  It does not seem a very logical outcome.

MR TEMBY:   I was asked a question as to whether there was a finding with respect to the information having come in a social context.  At page 86 of the application book in the judgment of Justice Grove at first instance, in paragraph 4 at about line 50 his Honour finds:

At social functions hosted by a friend of the plaintiff, the plaintiff made acquaintance of a person whom I will refer to as “X”.

At page 234, line 20, paragraph 10 in the applicant’s summary of argument it is asserted that:

the applicant met X at one or more social functions . . . became aware of X’s first name.

KIRBY J:   But that is not what you want.  You do not want just his first name; you want his surname and his address.

MR TEMBY:   With respect, that might be right but we would take anything ‑ ‑ ‑

KIRBY J:   It does not bear out what you told the Court, that they met and he got the information before he just got the first name, so it left the name and address still to be ascertained and that was ascertained.  In about October 1998 X made an appointment to see the plaintiff, so there is the formality.

MR TEMBY:   Yes.  It is certainly the case that there was a degree of formality which entered into the relationship after the first meeting.  May it please the Court.

GUMMOW ACJ:   Mr Jackson.

MR JACKSON:   Your Honours, may I just say one thing in relation to the privilege question, and it is this.  The fact that a person who is a legal practitioner may know someone from another context would not prevent, in our submission, the communications being privileged if the situation were that the name and address would otherwise attract privilege by virtue of the nature of the communication.  That is all I wanted to say.

KIRBY J:   Do you want to say anything about what would happen if we were minded to grant special leave on the first but not the second point?  Is that of any utility in the ‑ ‑ ‑

MR JACKSON:   Yes, your Honour, because the result would be that there would be, if we were otherwise successful, an ability to decline to answer the question in terms of the first part of 18B(4) and the last sentence would not apply.

GUMMOW ACJ:   Thank you.  We will take a short adjournment.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.24 AM:

GUMMOW ACJ:   With respect to the first application, S521 of 2005, there will be a grant of special leave.  The draft notice of appeal may need some finessing, I think, Mr Jackson.  The matter appears to us to be a half‑day appeal and counsel and solicitors should endeavour to have the matter ready for a possible hearing in the September list.

In respect of the application, S522 of 2005, we are not convinced, having regard to the findings of fact by the primary judge, that there are sufficient prospects of success to warrant a grant of special leave in that matter and special leave will be refused.  Is there any reason why there should not be a costs order?

MR JACKSON:   Your Honours, there is an affidavit by the applicant which was filed in the Court in I think S521 and I suspect there is a similar one in the other matter.

KIRBY J:   We saw that but we notice the Court of Appeal ordered costs in the matter.  What has changed since the Court of Appeal dealt with it?

MR JACKSON:   It is a little more ad misericordiae, if I can put it that way.  This is a matter of some ‑ ‑ ‑

KIRBY J:   You have come to the right place then.

MR JACKSON:   I will have to wait to see that, your Honour, with respect.  Those are the matters upon which we would rely.  It is a matter of some importance, although in the end the Court decided not to grant special leave on that matter and it is a case where the applicant is only in part dealing with his own interests.

MR TEMBY:   We would seek an order for costs and submit that the same course should be followed here as was followed below.

GUMMOW ACJ:   Very well.  In the second application the application is dismissed with costs.  With respect to the first application in which there has been a grant, we should also order that in this Court the appeal which is now to be instituted should be conducted with the use of the same letters to identify the parties as was adopted in the Supreme Court.

KIRBY J:   I do not know whether thought might be given to whether X needs to be represented.  That was raised at an earlier stage.  I do not think the Court should take any initiative but perhaps the parties should consider that lest anybody who is not here now is sitting in the appeal and raises the point at that stage.

MR TEMBY:   With respect, we note what your Honour says.  It gives rise ‑ ‑ ‑

GUMMOW ACJ:   Any application can be made.

MR TEMBY:   I suppose I rise only to say that if it was desired to pursue that, we would want it done on application.

GUMMOW ACJ:   Yes, any application can be made.

AT 10.27 AM THE MATTERS WERE CONCLUDED