Criminal Justice Commission v Nationwide News Pty Ltd & Anor [1994] QCA 34 (1994)74 A.Crim.R. 569

• - State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) COURT OF APPEAL PINCUS JA Appeal No 27 of 1994 CRIMINAL JUSTICE COMMISSION and NATIONWIDE NEWS PTY LTD and MADONNA KING BRISBANE .. DATE 21/01/94 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date q I o<r I <r w-: Appellant First Respondent Second Respondent . ' -:f,,,_•; '·; _.. _:: ~'4/-: ih < ">?,:;::\ - -- 1 of 8 -- 210194 PINCUS JA: This is an application for a stay of a judgment of his Honour, Mr Justice Dowsett which was given today and in respect of which an appeal has been instituted. The matter came before his Honour by way of an application for interlocutory relief in these circumstances. There was a report made by the Criminal Justice Commission to the Parliamentary Criminal Justice Committee which oversees its operations and his Honour was invited to restrain publication of that report on the ground that it was confidential. 10 20 The view which his Honour took was that the publication of the report should not be restrained on an interlocutory basis, as I understand it, for a number of reasons. His Honour pointed out that the evidence on behalf of the Commission was that the report contained a great deal of sensitive material but he 30 said in his reasons, in effect, that much of the material said to be highly confidential was already known to the public, having been disclosed in press releases and other documents made public by the Commission. His Honour took the view also that the decision of the High Court in the case of the Commonwealth of Australia v. John Fairfax and Sons Limited (1980) 147 CLR 39 required his Honour in circumstances of this kind to perform a balancing 40 exercise; that is, to balance the harm done by publication of so the allegedly confidential material against the public interest in knowing the facts. In the result, what his Honour did was not to refuse, as Mr Cooper for the respondent forcefully pointed out, absolutely the Commission's plea for 2 JUDGMENT 60 ;fi,,I -- 2 of 8 -- 210194 protection of its confidential material. He simply refused a blanket injunction, as his Honour termed it, restraining publication of the contents of the report. His Honour was not satisfied, in short, that there was a serious question to be tried as to the right of the Commission to have the whole report protected from publication. Mr Cooper urged upon me a view which is mentioned in the 10 reasons of Mr Justice Dowsett, that it was, his Honour thought, appropriate for the Commission to apply to have 20 protection in respect of selected portions of the report rather than blanket protection. Both counsel said that I should not at this stage decide the appeal and that is obvious enough. 30 What I have to do, however, is to be satisfied that there is some arguable question. The first thing to note is that the principal decision upon which Mr Justice Dowsett relied is a decision of a single Justice of the High Court which was commented upon usefully, as it seems to me, by Professor Finn, 40 58 ALJ 497 at 505. It is unnecessary to read the comment in full but what the learned author points out is that there is a question as to whether the principles which govern information in the hands of the Executive, that is, of the Executive Government, should be extended to the protection of statutory 50 authorities. The Commission is established under a statute. It is not itself the Executive Government. Professor Finn further 3 JUDGMENT 60 -- 3 of 8 -- 210194 points out that the decision of the House of Lords in British Steel Corporation v. Granada Television Limited [1981] AC 1096 throws doubt upon the proposition that a statutory corporation is to be equated to the Executive Government for this purpose. There the corporation which was, of course, a Government body was as it seems to the author and indeed, as it seems to me, equated to a private body for the purposes of the law of confidentiality. One can see that there is a likelihood that the Court of Appeal would be inclined to follow a decision of the High Court, albeit that of a single Judge of the High Court. Nevertheless, one could not by any means say that it is certain that the view which the House of Lords took is going to be rejected. 10 20 A second point which has occurred to me is that it may well be 30 arguable that in general the task of balancing the public interest and the protection of confidential information is not one which the Court will attempt to achieve and effect at an That proposition has the authority of interlocutory stage. Mr Justice Powell considerable interest who, as is commonly known, in and knowledge of the law has a 40 in this area, in the case of Westpac Banking Corporation v. John Fairfax Group Proprietary Limited (1991) 19 IPR 513 at 525. Without in any way casting the slightest doubt upon the correctness of Mr Justice Dowsett's conclusions, and without expressing or implying a view that those conclusions are likely to be upset (because I have no view on that subject) it seems plain to me that the case involves issues of substance 4 JUDGMENT 50 60 ◄ -- 4 of 8 -- • 210194 and issues which are arguable. May I mention two more. One was debated briefly between Mr Callinan QC for the applicant and Mr Cooper, and that is the question whether or not the fact that as Mr Cooper insisted much of the information had ceased to be confidential makes it wrong to grant what his Honour called, "a blanket order 11 • Mr Callinan' s answer to that briefly put was that it may be quite inconvenient to make any other sort of order. I express no view as to who is right about that but simply suggest that it may well be an arguable question. Another matter referred to by Mr Callinan which appears to me not only arguable but a matter of public importance is the effect to be given to section 6.7 of the Criminal Justice Act 10 20 1 989 to which his Honour referred at page 26 of his reasons. 30 Mr Justice Dowsett said, "For present purposes it may be assumed that the effect of section 6.7 is that any disclosure of the plaintiff's information to Commissioners, staff or members of the Parliamentary Committee is made in circumstances of confidence and that the second defendant 40 probably derived her knowledge from a person subject to section 6.7." His Honour, that is, assumed without actually deciding that there was confidence attaching but his Honour went on to say, so in effect, that the question whether the information was in truth confidential was a different one, and he was not prepared to accept that if there was, so to speak, a statutory obligation of confidence, it could go beyond information which 60 5 JUDGMENT -- 5 of 8 -- ----------1111111 210194 was in a practical sense confidential. I express again no view as to whether that is right or not, but simply say that I am not persuaded that Mr Callinan is wrong when he suggests that there is an arguable point there. 10 Without going into the matter in further detail, I concur in the submission made on behalf of the applicant that there are arguable questions in the case, and indeed it has to be said that I did not really understand Mr Callinan's assertion that there are arguable questions to be controverted by Mr Cooper. 20 t$£ The last legal question to which reference should be made is the test to be applied on an application of this sort. It is conveniently to be extracted, in my view, from a decision given in the High Court in the Federal Commissioner of 30 Taxation v. Myer Emporium Limited in (1986) 64 ALR 325-327, where one finds Mr Justice Dawson considering the question of stay of execution. That was a case where there was a stay of execution sought in respect of a money judgment, and this matter is of course different. 40 But nevertheless what his Honour said is useful for present purposes. It was this: "It is well established by authority that the discretion which it 11 - that is, Order 70 r 12 of the High Court Rules - "confers to order a stay of proceedings is so only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to fruits of his litigation pending the determination of any appeal." His Honour refers to authority. 60 6 JUDGMENT \ -- 6 of 8 -- - 210194 "Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory." His Honour again refers to authority. The "nugatory" principle, it seems to me, applies here, at least to the extent that if no kind of relief is granted pending the appeal, it may well be that the appeal becomes academic because the defendants would not be then subject to any restraint. I therefore propose to grant an injunction 10 unless, as Mr Cooper suggested, an undertaking is available. 20 I would have in mind, Mr Cooper, that the undertaking would run to a hearing of the appeal on the basis that it would be a matter for the Court then to determine whether it would go a day longer. Does that suit you? MR COOPER: Yes, Your Honour. PINCUS JA: What undertaking would you propose to give now? MR COOPER: That the first and the second defendants undertake, pending the determination of this appeal, not to publish or in any way disclose the contents of any part of the report by the plaintiff directed to the Parliamentary Committee for the month of November 1993 in addition to those past reports which have already been published. 30 PINCUS JA: The addition troubles me a little because it's 40 likely to raise questions as to whether something is merely a republication of what is in substance the same. MR COOPER: I accept that, Your Honour, but I----- PINCUS JA: Yes. I don't particularly want the matter to be coming back some day. MR COOPER: No, I understand Your Honour. PINCUS JA: Is there any real harm to you if the injunction simply covers the report, full stop, because that's really what the injunction would have done. MR COOPER: Yes, I accept that. PINCUS JA: Do you wish to be heard on this aspect, . Mr Callinan? 7 JUDGMENT 50 60 -- 7 of 8 -- 210194 MR CALLINAN: No, Your Honour. MR COOPER: No, Your Honour. What's done is done and----- PINCUS JA: Well, the injunction doesn't make that unlawful. MR COOPER: No. PINCUS JA: You're prepared to give an undertaking covering the report, are you? Could you please give it again? MR COOPER: Yes, the first and second defendants undertake until the determination of this appeal not to publish or in any way disclose the contents of any part of a report by the plaintiff directed to the Parliamentary Criminal Justice Committee for the month of November 1993. MR CALLINAN: I hope I'm not being pedantic - I don't mean to be. It should really be, I think, disclosing the contents or any part thereof. My friend said "the contents of any part thereof". PINCUS JA: Did you? MR CALLINAN: He may not have meant to. MR COOPER: I didn't mean to if I did. 10 20 ~· PINCUS JA: Would you mind trying again, please, Mr Cooper? 30 I'm sorry, I have missed that point. MR COOPER: The first and second defendants undertake until the determination of this appeal not to publish or in any way disclose the contents of or any part of a report by the plaintiff directed to the Parliamentary Criminal Justice Committee for the month of November 1993. PINCUS JA: Thank you, Mr Cooper. 40 MR CALLINAN: Thank you, Mr Cooper. PINCUS JA: I propose to make the costs costs in the appeal. Is there anything you wish to say about that, gentlemen? MR CALLINAN: No, Your Honour. MR COOPER: No, Your Honour. PINCUS JA: Nothing further from either of you? Thanks for your assistance, gentleman. 8 JUDGMENT 50 60 -- 8 of 8 --