'Xx' v 'A' [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and HANDLEY JA 18 May 1995, 18 May 1995 PRACTICE AND PROCEDURE — confidential information — application for orders disclosing communication of information whether leave should be granted to challenge refusal of such orders — held: (by maj): Leave refused — discretionary case management decision in sensitive matter. PRIVILEGE — disclosure — corporate defendant has no privilege — individual defendant waived — discretionary order leave refused. PRACTICE AND PROCEDURE — case management of urgent proceedings — alleged possession of confidential information — interlocutory application for order that party in possession disclose identity of person or persons to whom the information has been communication or who has been given access to it — suggested objective of the application is to obtain orders to prevent further communication — primary judge (Bryson J) declines orders and lists proceedings for urgent hearing before himself — on application for leave to cross-appeal against refusal of such orders — held: (Gleeson CJ, Handley JA concurring; Kirby P dissenting): Leave should be refused as the order was made in the discretionary management of sensitive and difficult litigation, the hearing of which had been expedited and which needed to be strictly controlled. Norwich Pharmacal Co and Ors v Customs and Excise Commissioners [1974] AC 133 (HL) and Golf Lynx v Golf Scene Pty Ltd T/as Custom Golf Club Co (1984) 59 ALR 343 (SCSA) considered. PRIVILEGE — self-incrimination — document produced by solicitors — failure to raise privilege against self-incrimination — whether Court could and should order return of documents produced by mistake — whether privilege available to corporate defendant — held: (1) Any such privilege did not belong to a corporate defendant. Environment Protection Authority y Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Trade Practices Commission y Abbco Ice Works Pty Ltd (1994) 52 FCR 96; (1994) 123 ALR 503 (FFC) applied; (2) As to any privilege of the individual party, the refusal to order return of the document was a discretionary decision with which the Court of Appeal would not interfere. Hooker Corporation Ltd v Darling Harbour Authority and Ors (1987) 9 NSWLR 538 (SC) considered. ORDERS 1 Appeal dismissed with costs; 2 Application for leave to cross-appeal dismissed with costs; and 3 Application for leave to appeal against the judgment of 15 May 1995, dismissed with costs. Gleeson CJ : This is litigation in which the parties have been identified only by initials. The proceedings at first instance and before this court have been conducted "in camera" They concern what is alleged to be an abuse, and a threatened further abuse, of confidential information and a contravention, and possible further contravention, of legislation prohibiting publication of official secrets. The litigation was commenced in circumstances of urgency by summons in the Equity Division last month. The proceedings have been set down for final hearing before Bryson J on 29 and 30 May. What this court has before it at the moment 2 UNREPORTED JUDGMENTS is an appeal by leave against two orders of an interlocutory nature made by Bryson J on 28 April 1995, an application for leave to cross-appeal against another decision of his Honour made on the same day and an application for leave to appeal against a judgment given by his Honour on 15 May. The first question, which is the subject of the appeal by leave, concerns the way in which his Honour dealt with what he described in his judgment of 28 April 1995 as "the second matter". His Honour declined to order the return to the defendants in the proceedings, who are the present appellants, of certain documents which had been produced in answer to a notice to produce. The basis of the claim for the return of the documents was that the documents were the subject of privilege, the relevant privilege being privilege against self-incrimination. It was said that the legal representatives of the defendants, in handing the documents over, failed to advert to the existence of the legislation which gave rise to the possibility of incrimination and to the existence of the privilege. One of the documents, a typed document, undoubtedly belongs to the first defendant, a corporation. It seems to have been assumed that the second document, which is in handwriting, is the property of an employee of the corporation, the second defendant. It is not self-evident that this assumption is correct, but I will not seek to go behind it for the purposes of these reasons. As to the document belonging to the corporation, it appears to me that the decisions of the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993)178 CLR at 477 and Trade Practices Commission v Abbco Iron Works Pty Ltd (1994) 52 FCR 96; (1994) 123 ALR 603, require that this court should conclude that no such privilege exists. On the other hand, on the assumption that the handwritten documents belong not to the corporation but to an individual, there is scope for the operation of the privilege. It has been asserted by the solicitors for the individual defendant that the privilege exists and would be claimed but, as has been pointed out by senior counsel for the other party to the litigation, the individual defendant has never put his oath to such a claim. It was asserted, that the inadvertence involved in the handing over of the documents was sufficient to produce the result that there was no waiver of privilege. The basis for intervention relied on behalf of the defendants/appellants is the decision of Hooker Corporation Ltd v Darling Harbour Authority and Ors (1987) 9 NSWLR at 638. On the other hand, in reliance on cases such as R v Clyne (1985) 2 NSWLR at 740, it was argued that waiver of privilege can occur where a document has been consciously and deliberately handed over in circumstances where the only relevant inadvertence is lack of knowledge of a particular statute or rule of law. In my view it is not necessary for the present purposes to resolve these issues. The basis upon which Bryson J declined to make the order sought was discretionary. He took the approach that, even though he had power to order the return of the documents, for reasons which he outlined in his judgment, it was inappropriate in the circumstances of the present case to exercise that power. I see no error in his exercise of discretion in that regard and I would propose that the appeal in relation to what his Honour called in his judgment of 28 April 1995 "the second matter" should be dismissed. URJ *X' v 'A' [NO 2] (Gleeson CJ) 3 The other appeal pursuant to leave relates to what his Honour called "the third matter". He ordered that the second defendant provide to the plaintiff by a certain date and by affidavit a translation of the handwritten notes and of the last three lines of the typed document earlier mentioned. Although at first sight a reading of his Honour's reasons for judgment might create the impression that the basis of his order was that the translation referred to in it was necessary in order to achieve complete compliance with an earlier interlocutory order that had been made, and a notice to produce, upon closer examination it appears that this was not so. Senior counsel for the respondent informed us that the matter was argued on the basis that what was being sought was a further substantive order by way of mandatory injunction; an order in aid of the plaintiff's right to know the full extent of the confidential information which had come into the possession of the defendants. It was strongly urged by senior counsel for the individual defendant that there should be available to him a claim of privilege against self-incrimination. Nothing in the terms of the order refers to that subject, but we have been informed by senior counsel for the plaintiff that it was the plaintiff s intention to seek, and as he understands it, the judge's intention to grant, the order subject to any lawful exceptions. It is not without significance that, if there is available a claim of privilege against self-incrimination, such a claim should be made formally and the person claiming the privilege should put his oath to it. In my view the order made by Bryson J was a proper order to be made in the circumstances provided it is read and understood as being subject to any lawful exceptions. On that basis I would propose that the appeal in this respect should also be dismissed. The plaintiff/respondent seeks leave to cross-appeal against his Honour's refusal on 28 April 1995 of an interlocutory application for an order that each defendant disclose by affidavit the identity of any person or persons to whom information the subject of the proceedings has been communicated or who has been given access to it. That order was sought on two bases. First, it was said to be properly the subject of interrogatories in proceedings complaining of abuse of confidential information. The second basis was that it was justified by Pt3 of the Rules (the provisions relating to discovery before suit). Bryson J was aware of the practical importance to the plaintiff of knowing the identity of the persons, if there be such persons, to whom the information the subject of the proceedings has been communicated. It is obvious that, if the plaintiff has a right to be protected in relation to this information, it will need to know to whom the information has been communicated and, depending on the attitude taken by the people, if any, to whom the information has been communicated, it may need to seek relief against such people in appropriately constituted litigation. It was urged upon us that we should now make the order which Bryson J declined to make so that such people could immediately be brought into the present proceedings. As I said at the outset, these proceedings are fixed for hearing on 29 May. The reason why Bryson J declined to make the order sought was essentially a reason relating to his discretionary management of this sensitive and difficult piece of legislation. His Honour observed that the proceedings had been commenced by way of summons and that, instead of becoming involved in possibly protracted interlocutory proceedings, he had endeavoured to bring on for 4 UNREPORTED JUDGMENTS resolution at the earliest possible date the principal matter in issue by the parties by fixing 29 May as the date for final hearing. He said: "Tn my judgment it is not appropriate to turn aside from the summary process which the plaintiff has invoked and to which the court should yield by abandoning an early hearing date to introduce matters which have a place in quite a different procedure." He also pointed out that relief of the kind sought by the plaintiff might well be appropriately sought in a differently constituted suit which may be the subject of pleadings, discovery and interrogatories. I think that this court should respect the case management decision made by Bryson J, who would have been better placed than we are from his knowledge of the background of the litigation to consider and carefully weigh all the implications of the course of action he was being invited to pursue. For that reason I would propose that leave to appeal should be refused. At the same time I would emphasise the following. Senior counsel on both sides have expressly disclaimed any suggestion that the consequences of the decision of Bryson J or of our refusing leave to appeal against that decision would be that the plaintiff would be shut out from seeking this relief on some future occasion. It may be that the appropriate future occasion would be as part of the final hearing which is to commence on 29 May. Alternatively it may be the appropriate future occasion is in some freshly constituted proceedings. This court's decision, if it be this court's decision, that leave to appeal should be refused, should not be intended to reflect any lack of appreciation of the importance or urgency of the need that may attach to relief of the kind in question, nor is it to be taken to preclude the possibility of an application on the part of the plaintiff to seek this relief as part of the proceedings which will commence on 29 May. If an application of that kind is made by the plaintiff then it will be for Bryson J in the exercise of his discretionary powers, including his powers and duties in relation to the proper management of the litigation, to deal with it. Finally, there was an application for leave to appeal against the judgment of 15 May 1995 in which Bryson J acceded to a claim of public interest immunity raised on behalf of the plaintiff in respect of certain documents which the defendants desired to inspect. It was common ground that if this leave were granted it would be impossible to deal today with the appeal. I will not elaborate upon the reasons for that, but the significance of that fact can be appreciated when it is understood the final hearing of the proceedings is to commence on 29 May. Bryson J undertook a careful exercise in balancing the competing considerations and in doing so he took full and proper account of the matters referred to in certain affidavits placed before him. I see no error of principle in the approach his Honour took to this question and I would propose in relation to this matter that leave to appeal should be refused. The orders I would propose are as follows: 1 The appeals should be dismissed with costs. 2 The application for leave to cross-appeal against the judgment of 28 April 1995 should be dismissed with costs. 3 The application for leave to appeal against the judgment of 15 May 1995 should be dismissed with costs. URJ 'X' v 'A' [NO 2] (Kirby P) 5 Kirby P I agree with the first and third of the orders which the Chief Justice has just proposed. However, I take a different view in respect of O.2, which is the order providing for the dismissal of the summons for leave to cross-appeal. I agree generally with the reasons which the Chief Justice has given for the O.(1) and O.(3). I differ with hesitation in respect of the cross-appeal. However, I do so because I consider an important question is raised as to the capacity of the Court to respond to an urgent situation such as is presented by the litigation in this case. That raises in my opinion a matter of importance. It warrants the grant of leave. As the matter is procedural and urgent and has been fully argued I would proceed to dispose of the cross-appeal immediately, pursuant to the leave which I would grant. The cross-appeal relates to an order sought by the cross-appellant to the effect that the proposed cross-respondents should, by a specified date, disclose by affidavit the identity of any person or persons to whom they, or either of them, had communicated or given access any or all of the information which is the subject of these proceedings. I will take the same course as the Chief Justice. I will confine my description of the subject matter to the bare minimum, that being what I consider to be the duty of the Court in the circumstances of the case, at least as it presently stands. When Bryson J came to consider the application which is the subject of the summons for leave to cross-appeal, he disposed of it in a very short passage in his reasons. His reasons were as follows: "The application is presented in circumstances where it is not known, and there is no indication even prima facie, that there are or may be such persons. It is a matter of speculation whether there has been any such communication or whether any person may be concerned in a further cause of action. In my view there is not a basis for an order for preliminary discovery and, further, it would not be appropriate for me to act in exercise of the Court's powers to which Pt3 relates as a side wind in an interlocutory motion the object of which is to establish grounds of suit in these proceedings and to obtain relief for these two defendants." There is no doubt that, in appropriate cases, a court such as this has jurisdiction to make orders providing that a party shall disclose to the court the names and addresses of persons with whom it has had dealings and to whom it has passed information the subject of a suit. Such jurisdiction was upheld by the English courts in the landmark decision in Anton Pillar KG v Manufacturing Processes Ltd and Ors [1976] 1 Ch 55 (CA), 60 and the developments which preceded and followed that decision. See eg Norwich Pharmacal Co and Ors v Customs and Excise Commissioners [1974] AC 133 (HL), 140 and British Steel Corporation v Granada Television Ltd [1981] AC 1096 (HL), 1173. It has been followed in Australia. See eg Golf Lynx v Golf Scene Pty Ltd, T/as Custom Golf Club Co (1984) 59 ALR 343 (SCSA), 354 (0.3). The power of the court is available to respond to urgent situations. Information which is, or is claimed by law to be, confidential, private, secret or which should otherwise be protected can be made the subject of effective interlocutory orders pending the resolution of the substantive matter in contest. I approach the summons for leave to appeal with the hesitation which is usual in these cases. I am very conscious of the restrictions which apply to the review of discretionary decisions and in particular in matters of practice and procedure. 6 UNREPORTED JUDGMENTS I agree with the Chief Justice that this Court should be slow indeed to interfere in a discretionary decision made in the management of litigation. I also agree that it should be especially slow to disturb orders made in the management of sensitive and difficult litigation such as the present. I am not unmindful of the practical difficulties involved in holding dates which have been set aside for the hearing of the cases, as soon as 29 and 30 May 1995. I also keep in mind the high undesirability of making any orders in this Court which would present any risk that those dates would be disturbed. However, when I examine the reasons which Bryson J gave for the order which he made, in effect dismissing the application which is the subject of the summons for leave to cross-appeal, I confess to finding them unpersuasive. He said, first, that there may be no such persons as were described in the notice of motion. Whilst that is theorectially true, there was before his Honour an affidavit by a Mr Rex Stevenson which disclosed, without going into details, that one of the proposed cross-respondents had had a conversation which had taken place and which would be the proper subject for disclosure in pursuance of an order such as was sought. For my part, having regard to the nature of the information, the nature of the parties before the court and of their business, I would infer that it was more than possible that some distribution of the information could take place. Unless the courts were effectively and resolutely to exercise their jurisdiction to take control of the haemorrhage of information, the reality might be that the Court's attempt to exercise its jurisdiction will be frustrated. Court process will then be revealed, in circumstances such as the present, to be powerless or ineffective. I would certainly not infer that the making of the order sought would be pointless. I do not therefore find the first of the reasons given by Bryson J to be persuasive. Next, it was said that the application for the order was inappropriate because it raised issues as a "side wind" to the present proceedings. With respect, I cannot agree. The whole point of the present proceedings is to provide an effective remedy to the proposed cross-appellant against the further haemorrhaging of information which the cross-appellant seeks to prevent going further. That flow of information can be stemmed in a number of ways. However, a well-established way in which it can be protected is by the provision of orders which require the disclosure of names and addresses of persons with whom the defendant has had dealings. Such orders have the consequence that the court making the orders is then put in a position whereby it may make additional orders which protect the party invoking its jurisdiction against the further movement of the information. That being the very purpose of the present litigation, this is far from a side wind. It is - if I can extend his Honour's metaphor - the very centre of the hurricane which the proposed cross-appellant seeks at this stage to contain, if it possibly can. Thirdly, his Honour referred to his general discretion. I have already acknowledged the importance of the primary judge's discretion. However it is but the beginning of this Court's consideration of a case such as the present. There is no incantation of "discretion" or "case management" which halts the function of this Court. The Court is empowered to review orders of judges, including orders of case management and discretion. In the present case there would be utility in making an order of the kind sought and providing leave to appeal to permit that to be done. URJ 'X' v 'A [NO 2] (Kirby P) 7 The proceedings are urgent. That is demonstrated, clearly enough by the expedition which it has been given in this Court and the expedition which it has been given in the Equity Division. It is urgent because, unless the courts move with speed in the business of protecting information in cases such as the present, the reality is that the information in question has inexorable tendency to spread, particularly in the context of news media and by the modern global means of telecommunications. This, therefore, makes it urgent that there should be before the Court - at least in the making of interlocutory orders - and by 29 May 1995 - information if it can be lawfully obtained which will bring under the effective control of the Court those who have the information which those who have brought these proceedings seek to prevent passing further. Unless courts can respond with expedition and resolution to problems such as the present, the very utility of court processes to contain information which is confidential, private or secret, is questioned. It may be put at nought. The rule of law is then abandoned to the rule of power. Because I do not agree that that is a result which courts should accept, I have reached a view different from that which Bryson J reached. I am not unmindful of the fact that the proposed cross-appellant did not move with as much speed as would have been appropriate to bring forth its application to cross-appeal on this point. As was properly acknowledged by counsel, the appropriate time to have sought such leave was when the Court first returned the summons for leave to appeal brought by the other parties. Nor do I overlook the fact that there are arguments that it is in the interests of the proposed cross-respondents not to have reticulated the information the subject of the suit. That may indeed work restraint on the spread of the information to others I cannot say whether, finally, that is or is not so. But I do not believe that it is safe for the Court to make assumptions, given the international and national outlets available to persons who might already have received the information the subject of these proceedings. In my view that the Court should take the whole of this matter under its control. It should make an order which courts in proper cases make, and in this case, in my respectful opinion, should be made to defend the articles of the suite. The orders which I would therefore propose are: 1 As in the orders of the Chief Justice. 2 As in O.(3) of the Chief Justice. 3 In respect of what is described as the first matter concerning the proposed cross-appeal I would (a) grant leave to cross-appeal; (b) allow the cross-appeal; (c) set aside the order of Bryson J refusing the motion of the cross appellant; (d) in lieu thereof order that the first cross-respondent and the second cross-respondent, by Spm on Friday 19 May 1995, disclose to the cross-appellant by affidavit the identity of any person or persons to whom the first cross-respondent and the second cross-respondent - or either of them - have communicated or given access any or all of the information described in paral of the orders of the Court made by Bryson J in these proceedings on 28 April 1995; (e) order that the cross-respondents pay the cross-appellant's costs of so much of the hearing in the Court today as concerned the summons for leave to cross-appeal and the cross-appeal. 8 UNREPORTED JUDGMENTS I would make it clear, in departing from the case, that I entirely agree with what the Chief Justice has said in respect of what Bryson J called "the third matter'. Consonant with that agreement, I would make it clear that, at least in respect of the second cross-respondent, it would be open to him, in answer to the order which I have proposed, by appropriate affidavit, to claim that the answer to the order would expose him to a risk of self-incrimination. The law of this country defends the rights of a person against self-incrimination. McHugh J in the Caltex case (above), at 545 described it as a human right. It is so described at Article 14.3(g) of the International Covenant on Civil and Political Rights. In my opinion the courts should vigilantly uphold that right to the full extent that the law permits. But the courts should also uphold their own effectiveness in responding to cases such as the present. By the present course, that effectiveness may not be achieved. Handley JA : I agree with the orders proposed by the Chief Justice. I endorse the views of the President as to the capacity of this Court in appropriate cases to respond urgently and effectively to claims for the protection of confidential information whether commercial or official. I do not understand that the Chief Justice takes a different or narrower view on this question. However in agreement with the Chief Justice and for the reasons he has given I do not consider that this is an appropriate case for the intervention of this court at this stage. 1. Appeal dismissed with costs; 2. Application for leave to cross-appeal dismissed with costs; and 3. Application for leave to appeal against the judgment of 15 May 1995, dismissed with costs. Counsel for the Appellants (Claimants-Proposed Cross-Respondents): SD Rares SC / G O'L Reynolds / RG McHugh Instructed by: Freehill Hollingdale and Page Counsel for the Respondents (Opponents-Proposed Cross-Appellants): JS Hilton SC / A Robertson / RJ Wright Instructed by: Australian Government Solicitor