FEDERAL COURT OF AUSTRALIA Commonwealth of Australia v Lyon [2003] FCA 1215 Re Robins; ex parte West Australian Newspapers Ltd (1999) 20 WAR 511 cited Cachia v Isaacs (1985) 3 NSWLR 366 cited Miller v University of New South Wales (2003) 200 ALR 565 cited Lambidis v Commissioner of Police (1995) 37 NSWLR 320 cited Tien Tran v Magistrates Court of Victoria [1998] 4 VR 294 cited Commissioner of the Australian Federal Police v Poompiriyapinte (unreported, Supreme Court of New South Wales, Badgery-Parker J, 28 August 1990) cited Sankey v Whitlam (1978) 142 CLR 1 considered COMMONWEALTH OF AUSTRALIA & COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v PAUL LYON & FRANK PATRICK BARBARO & ARTHUR JOSEPH LOVEDAY & JOSEPH ALEXANDER CASSAR & FRANK VELARDI & PETER PANGELLO & ROBERT IBRAHIM & AUSTRALIAN BROADCASTING CORPORATION & SEVEN NETWORK PTY LTD & NINE NETWORK PTY LTD & JOHN FAIRFAX PUBLICATIONS PTY LTD & NEWS LIMITED N 1447 of 2003 MOORE J SYDNEY 30 OCTOBER 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1447 OF 2003 BETWEEN: COMMONWEALTH OF AUSTRALIA FIRST APPLICANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE SECOND APPLICANT AND: PAUL LYON FIRST RESPONDENT FRANK PATRICK BARBARO SECOND RESPONDENT ARTHUR JOSEPH LOVEDAY THIRD RESPONDENT JOSEPH ALEXANDER CASSAR FOURTH RESPONDENT FRANK VELARDI FIFTH RESPONDENT PETER PANGALLO SIXTH RESPONDENT ROBERT IBRAHIM SEVENTH RESPONDENT AUSTRALIAN BROADCASTING CORPORATION EIGHTH RESPONDENT SEVEN NETWORK PTY LTD NINTH RESPONDENT NINE NETWORK PTY LTD TENTH RESPONDENT JOHN FAIRFAX PUBLICATIONS PTY LTD ELEVENTH RESPONDENT NEWS LIMITED TWELFTH RESPONDENT JUDGE: MOORE J DATE OF ORDER: 30 OCTOBER 2003 WHERE MADE: SYDNEY THE COURT NOTES THE FOLLOWING UNDERTAKINGS: 1. The second, fourth and eighth to twelfth respondents undertake not to cross examine any deponent to a confidential affidavit relied on by the Commonwealth or the Commissioner of the Australian Federal Police in the Local Court in support of a claim for public interest immunity concerning the information to which these proceedings relate or read any such affidavit if access is given, until 5 days after any ruling has been made that such cross examination can be undertaken or that the affidavit should be provided and can be read. 1. The second, fourth and eighth to twelfth respondents undertake not to publish the information in respect of which the claim for public interest immunity has been made in these proceedings until 5 days after any ruling by the Local Court rejecting the claim for public interest immunity. 1. The applicants undertake to return to the Court any material returned to their custody pursuant to Order 3 if so ordered. THE COURT ORDERS THAT: 1. Upon the undertakings being given by the respondents who have appeared in the proceedings, the application by the Commonwealth and the Commissioner of the Australian Federal Police for orders concerning the publication of the information to which these proceedings relate and the cross examination of Deputy Commissioner Fagan pending the hearing of any application for leave to appeal and appeal from the judgment in [2003] FCA 1155, be dismissed. 1. The hearing of the application for leave to appeal and appeal from the judgment in [2003] FCA 1155 be expedited. 1. The confidential affidavits of Ms Fagan be returned to the custody of the Australian Government Solicitor, upon an undertaking to return these to the Court if so ordered. 1. Pursuant to O 46 r 6(1), inspection of the Court file be prohibited. 1. The third, fifth, sixth and seventh respondents are not to cross examine any deponent to a confidential affidavit relied on by the Commonwealth or the Commissioner of the Australian Federal Police in the Local Court in support of a claim for public interest immunity concerning the information to which these proceedings relate or read any such affidavit if access is given, until 5 days after any ruling has been made that such cross examination can be undertaken or that the affidavit should be provided and can be read. 1. The third, fifth, sixth and seventh respondents are not to publish the information in respect of which the claim for public interest immunity has been made in these proceedings until 5 days after any ruling by the Local Court rejecting the claim for public interest immunity. 1. The applicant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1447 OF 2003 BETWEEN: COMMONWEALTH OF AUSTRALIA FIRST APPLICANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE SECOND APPLICANT AND: PAUL LYON FIRST RESPONDENT FRANK PATRICK BARBARO SECOND RESPONDENT ARTHUR JOSEPH LOVEDAY THIRD RESPONDENT JOSEPH ALEXANDER CASSAR FOURTH RESPONDENT FRANK VELARDI FIFTH RESPONDENT PETER PANGALLO SIXTH RESPONDENT ROBERT IBRAHIM SEVENTH RESPONDENT AUSTRALIAN BROADCASTING CORPORATION EIGHTH RESPONDENT SEVEN NETWORK PTY LTD NINTH RESPONDENT NINE NETWORK PTY LTD TENTH RESPONDENT JOHN FAIRFAX PUBLICATIONS PTY LTD ELEVENTH RESPONDENT NEWS LIMITED TWELFTH RESPONDENT JUDGE: MOORE J DATE: 30 OCTOBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By a notice of motion filed 27 October 2003, the applicants in this matter, the Commonwealth and the Commissioner of the Australian Federal Police ("the Commonwealth interests") seek orders effectively preventing (for the time being), the cross examination of a witness called in support of a claim of public interest immunity in committal proceedings being conducted by a Local Court Magistrate and an order preventing the publication of information the subject of that claim. For convenience, I will describe the orders sought by the Commonwealth interests as stay orders. Those orders are sought pending the determination of an appeal from a judgment in which I decided this Court had no jurisdiction to hear and determine an application of the Commonwealth interests. That application ("the principal application") sought a declaration that the information in question should not be published in the public interest. That is, a claim of public interest immunity was made in this Court in relation to the information. I will not repeat matters of detail concerning events leading to the primary application and this application for the stay orders. These matters have been set out in the reasons for judgment concerning jurisdiction: see [2003] FCA 1155. 2 At present, the Local Court Magistrate has not ruled on either the cross examination of the witness nor the claim of public interest immunity. While remarks have been made by the Magistrate which suggest he might permit the cross examination of the witness, he has not yet ruled that the witness can be cross-examined. Nor has his Worship ruled that the suppression order he earlier made should be lifted or, perhaps putting it slightly differently, his Worship has not rejected on any final basis the claim of public interest immunity. 3 The Commonwealth interests seek the stay orders because they are, it is submitted, necessary to preserve the subject matter of the proceedings in this Court, and unless stay orders are made the appeal will be rendered nugatory. It was suggested, as I understood the submission, that if the Magistrate was to rule on the claim of public interest immunity then that ruling may prevent a further ventilation of the same issue in this Court. If this was to occur then the Commonwealth interests would lose the opportunity to have the principal application dealt with in this Court and, effectively, lose the benefit flowing from a successful appeal. 4 That submission raises some larger issues (which have not really been addressed in submissions), including whether an estoppel could arise as a result of a ruling by the Magistrate on the claim of public interest immunity. One issue might concern the nature of the proceedings before the Magistrate: as to the nature of the Magistrate's role see, for example, Re Robins; ex parte West Australian Newspapers Ltd (1999) 20 WAR 511. If, as discussed in my earlier judgment, the claim for public interest immunity is separate from the lis in which the claim arises, then the determination of the claim of public interest immunity may involve a final decision on an issue giving rise to an estoppel: see for example the observations of McHugh JA in Cachia v Isaacs (1985) 3 NSWLR 366 at 386 and more generally Miller v University of New South Wales (2003) 200 ALR 565 and Lambidis v Commissioner of Police (1995) 37 NSWLR 320. Perhaps, however, the determination of a claim for public interest immunity would constitute a ruling which can be revisited (at least if the claim was originally upheld) and a ruling in respect of which no estoppel would arise: see Tien Tran v Magistrates Court of Victoria [1998] 4 VR 294. 5 But even, which I tend to doubt, a ruling by the Magistrate would preclude further consideration of the claim of public interest immunity in this Court, it appears settled (and is not put in issue in the proceedings in this Court) that the Supreme Court of New South Wales is able to review a ruling about a claim of public interest immunity, once made, in exercise of the power conferred by s 75 of the Supreme Court Act 1970 (NSW). Indeed the eighth to twelfth respondents ("the media interests") submitted that review by that Court is the appropriate way of dealing with any error which might attend any ruling by the Magistrate. It is unnecessary to enter into the issue of whether correction of error is involved in such proceedings. Existing authority suggests it is not: see Commissioner of the Australian Federal Police v Poompiriyapinte (unreported, Supreme Court of New South Wales, Badgery-Parker J, 28 August 1990). However, I note that in Sankey v Whitlam (1978) 142 CLR 1, the orders made by the High Court in exercise of its power to make declaratory orders (see particularly Mason J at 81) included a declaration that the Magistrate was in error in upholding the objections taken by the Commonwealth to the production and disclosure of the relevant documents. At least to that extent, the High Court was reviewing the decision that had been made by the Magistrate deciding the claim of public interest immunity and the Court was determining whether the Magistrate erred in upholding the claim. In so doing, the Court was, in substance though perhaps not in form, deciding an appeal from the decision of the Magistrate. 6 In my opinion, no order should be made in this Court which would inhibit the Magistrate from addressing both issues subject to one qualification. That is, the issue of whether cross examination should be allowed (and possibly, confidential affidavits made available) and the issue of whether the information which is sought to be suppressed is properly the subject of a claim of public interest immunity and, for that reason, should not be published. Consistent with the views I expressed in the judgment concerning jurisdiction, the determination of the claim is a matter for the judicial officer in the proceedings in which the claim arises, namely the Magistrate. I am, however, concerned to ensure that if there is a ruling of the Magistrate which is adverse to the Commonwealth, on either the question of cross examination of any witness or witnesses who have given evidence in support of the claim (and access to their affidavits) or on the claim of public interest immunity itself, that ruling can be tested in the Supreme Court before any information in respect of which the claim is made (or information advanced in support of that claim which may itself be privileged) is made public. 7 I propose to dismiss the application by the Commonwealth interests for the stay orders if the respondents who have appeared in this Court give certain undertakings to the Court. Those undertakings have been given. The undertakings are to ensure that if the Magistrate either rules that the witness or witnesses called by the Commonwealth interests in support of the claim for public interest immunity can be cross examined (or any confidential affidavits sworn by the witness can be made available to any respondent), or later rules that the claim for public interest immunity has not been made out and the contentious details concerning the doctor can be published, no cross examination of the witness will be undertaken (or affidavit read) or the contentious details will not be published until the Commonwealth interests have had an adequate opportunity to apply to the Supreme Court to test any ruling of the Magistrate. An adequate opportunity would, for this purpose, be five days in which to make an application. 8 I should explain that one of the reasons that these undertakings are sought is that the Magistrate has had to deal with the disparate interests of the media interests and the accused as well as the NSW DPP and the Commonwealth interests in a difficult environment (an impression gained from reading much of the recent transcript of the committal proceedings). It is an environment in which the concerns of the accused and their legal representatives, the media interests and their representatives as well as the Local Court may have been raised by the furnishing of what proved to be a false medical certificate in support of an application for an adjournment of the committal proceedings. Those concerns may have, understandably, tended to divert attention from the specific question of whether a claim for public interest immunity is both maintainable and made out in relation to the contentious details concerning the medical practitioner and the related legal question of whether the parties (including the media interests) should be allowed to follow the quite unusual course of cross examining witnesses called in support of the claim. The solicitor appearing for one of the accused has, in this Court, effectively conceded that issues surrounding, and arising from, the furnishing of the false medical certificate have, to this point, been somewhat blurred in the proceedings before the Magistrate. 9 There is a risk, in my opinion, that submissions concerning the Commonwealth interests' claim for public interest immunity (and the associated claim that there should be no cross examination) will travel beyond relevant legal issues. It is desirable that the Commonwealth interests have the opportunity to test any adverse ruling of the Magistrate (if this is what occurs) before the contentious information about the medical practitioner is made public (and this would extend to any confidential information furnished to the Magistrate in support of the claim for public interest immunity). I should add that what I am indicating should happen is probably no more than what Gibbs ACJ said should happen in Sankey v Whitlam at 43, namely that no order granting disclosure of material over which public interest immunity is sought should be enforced until the government concerned has had an opportunity to appeal against it, or test its correctness by some other processes if it wishes to do so. 10 I have been asked by the Commonwealth interests to make temporary stay orders so that this ruling (regarding the application for the stay orders) can be tested. In view of the undertakings that have been sought and given, this appears to me to be unnecessary. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 30 October 2003 Counsel for the Applicants: Dr J G Renwick Solicitor for the Applicants: Australian Government Solicitor Solicitor for the Second Respondent: Kings Lawyers Counsel for the Fourth Respondent: A S Howen Solicitor for the Fourth Respondent: Bilias & Associates Counsel for the Eighth to Twelfth Respondents: M P Cleary Solicitor for the Eighth to Twelfth Respondents: Gilbert + Tobin Date of Hearing: 27-29 October 2003 Date of Judgment: 30 October 2003