FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Lyon [2003] FCAFC 284

JURISDICTION – proceeding in Federal Court of Australia - whether jurisdiction under par 39B(1A)(a) of the Judiciary Act 1903 (Cth) invoked - application by Commonwealth for a declaration – whether an application made in respect of a ‘matter’ – whether claim gives rise to a justiciable controversy in the Federal Court – whether claim is a criminal matter within the meaning of par 39B(1A)(c).

Federal Court of Australia Act 1976 (Cth) ss 21, 50

Judiciary Act 1903 (Cth) s 39B

Law and Justice Legislation Amendment Act 1999 (Cth) Sch 10

Constitution ss 71, 75, 76, 77

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred to

Amand v Home Secretary [1943] AC 147 referred to

Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559 referred to

Baxter v Commissioner of Taxation (1907) 4 CLR 1087 cited

Chief Executive Officer of Customs v Jiang (2001)111 FCR 395 referred to

Commissioner of the Australian Federal Police v Poompiriyapinte (unreported, Supreme Court of New South Wales, Badgery‑Parker J, 28 August 1990) discussed

Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 referred to

Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219 referred to

DPP v Smith (1996) 86 A Crim R 308 discussed

Felton v Mulligan (1971) 124 CLR 367 referred to

Harris v Caladine (1991) 172 CLR 84 referred to

Jacobsen v Rogers (1995) 182 CLR 672 cited

Khatri v Price (1999) 95 FCR 287 referred to

Phong v Attorney‑General of the Commonwealth (2001) 114 FCR 75 referred to

R v Southampton Justices, ex part Green [1975] 2 ALL ER 1073 referred to

Re Macks; Ex parte Saint (2000) 204 CLR 158 cited

R v Stipendiary Magistrate at Lambeth [1983] 1 All ER 321 referred to

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 PANGALLO & ROBERT IBRAHIM & AUSTRALIAN BROADCASTING CORPORATION & SEVEN NETWORK PTY LTD & NINE NETWORK PTY LTD & JOHN FAIRFAX PUBLICATIONS PTY LTD & NEWS LIMITED

N 1706 of 2003

BRANSON, MADGWICK and HELY JJ

SYDNEY

12 DECEMBER 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.               The appeal be allowed and orders 1, 2 and 3 made by the primary judge on 22 October 2003 be set aside.

2.               Subject to paragraphs 3 and 4 hereof the matter be remitted to the primary judge for hearing and determination.

3.               The proceeding be stood over to a date to be fixed for the purpose of making an order or orders as to costs.

4.               The parties who appeared at the hearing of this appeal provide to the Associate of Branson J by 19 December 2003 an agreed minute of the order or orders to be made as to costs and if agreement has not then been reached, the minutes of order for which they will respectively contend and brief outlines of submissions in support of the orders.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This appeal calls for consideration of what is a ‘matter’ within the meaning of s 39B(1A) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’).

2                     The appellants, by an application dated 19 September 2003, applied to the Court for certain declarations and orders. The perceived need to approach the Court arose from events which happened in the course of committal proceedings before the first respondent, a Magistrate appointed under the Local Courts Act 1982 (NSW) (‘the committal proceedings’). It appears that as a result of inadvertence on the part of an unnamed individual or individuals, disclosure was made in the course of the committal proceedings of certain information (‘the contentious material’) which the appellants assert is subject to public interest immunity. The appellants fear that the first respondent may not agree to make a permanent order restraining the further publication of the contentious material. Further publication of the contentious material was restrained by the first respondent on an interim basis. The appellants also fear that the first respondent may allow cross‑examination of a deponent of a confidential affidavit with the result that the contentious material will be republished.

3                     The learned primary judge on 22 October 2003 ordered that the application be dismissed for want of jurisdiction. His Honour concluded that the application did not concern a ‘matter’ within the meaning of s 39B of the Judiciary Act. However, his Honour appropriately made orders on that and subsequent days the combined effect of which was to prohibit further publication of the contentious material pending an appeal to the Full Court. At the close of the hearing of the appeal we also made orders designed to prohibit further publication of the contentious material pending the determination of the appeal.

4                     For the reasons given below, we have concluded that the appeal should be allowed, orders 1, 2 and 3 made by the primary judge on 22 October 2003 set aside and the matter remitted to the primary judge to be heard and determined. The contentious material should be protected from further publication in the meantime.

background facts

5                     The primary judge summarised the history to the proceedings in [4]-[7] of his Honour’s reasons for judgment. Those paragraphs read as follows:

‘It is unnecessary to descend into great detail about the events leading to the commencement of these proceedings to deal with jurisdictional issues. However, some of the background should be noted. The following is drawn from both the evidence and statements by counsel in these proceedings, which I apprehend are uncontentious. The second to seventh respondents have been charged with drug offences under New South Wales laws. The Office of the Director of Public Prosecutions New South Wales (“the DPP”) has carriage of the committal proceedings for the Crown. One witness whose statement is to be relied on by the DPP in the committal proceedings (“the central witness”), is to be cross-examined by at least counsel for the second respondent and counsel for the fourth respondent. This was as a result of an agreement with the DPP under s 48E of the Justices Act 1902 (NSW). The central witness is a protected witness under the Witness Protection Act.

An issue arose in the committal proceedings about whether the central witness was able to undergo cross-examination because of his health. The committal proceedings were scheduled to commence on Monday 15 September 2003. On Friday 12 September 2003 the DPP sought an adjournment of the committal proceedings. In support of this application a medical certificate was furnished concerning the health of the central witness. The certificate contained the name of the doctor who had created the certificate and an address, ostensibly the address of a doctor’s practice, as well as a telephone number. These are the details to which the orders sought (set out at [3] above) relate. The certificate was ultimately tendered in the committal proceedings (on 15 September 2003) by counsel for the fourth respondent.

It emerged in the committal proceedings that the doctor may not have examined the central witness and the address may not have been an address at which the doctor practised. It also emerged that the doctor was a member of the Australian Federal Police and that the central witness was a protected witness. That the DPP had sought to rely on a medical certificate of this kind became a controversial issue in the committal proceedings. The proceedings continued on Monday 15 and Wednesday 17 September 2003 in which issues relating to the medical certificate were ventilated. On the evening of Wednesday 17 September 2003 the Magistrate was asked by the Commonwealth interests to make an order suppressing certain details of the certificate. This application was made ex parte.

The Magistrate made an interim suppression order and the following day commenced to hear submissions about whether the contentious details on the certificate could be published or should be suppressed. In the context of this debate, the Commonwealth interests sought to read a confidential affidavit (sworn probably on 18 September 2003) from the Acting Deputy Commissioner of the Australian Federal Police in support of a claim for public interest immunity in relation to the medical certificate or at least certain information in it. However, as earlier noted, the Witness Protection Act was also called in aid by the Commonwealth interests. Two other affidavits of the Acting Deputy Commissioner were used in the committal proceedings. One was relied on during the hearing on Wednesday 17 September 2003 and the other was an open affidavit of 18 September 2003 in support of the claim of public interest immunity.’

6                     The present appellants made an ex parte application for interlocutory relief to the primary judge as duty judge on 18 September 2003. His Honour made certain ex parte orders on 19 September 2003 but, as has been mentioned above, his Honour ultimately held that the Court lacked jurisdiction to hear and determine the application to the Court.

7                     Before the primary judge the now appellants sought the following orders:

‘A declaration that disclosure of any of the following, namely,

a) The name [a doctor’s name];

b) The address [an address];

c) The number [a number which may be a telephone number] and any number with the additional digits [two digits which might be added to the earlier number creating a telephone number]; in relation to the proceedings R v Barbaro and Ors in the Local Court of NSW, or in relation to the National Witness Protection Program, is contrary to the public interest.

Pursuant to s 50 of the Federal Court Act, the court orders, that there be no publication in relation to these proceedings of:

d) The name [a doctor’s name];

e) The address [an address];

f) The number [a number which may be a telephone number] and any number with the additional digits [two digits which might be added to the earlier number creating a telephone number]

An order that the non-publication order itself not be published.

An order that no person including a party have access to the court file without an order of the judge.’

8                     It is not entirely clear whether the primary judge intended his judgment to be understood as a determination that the Court lacked jurisdiction to make the order which was sought under s 50 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’). It is not necessary to pursue that question as it is not now in dispute that there was jurisdiction in the Court to make the order sought under s 50. The Court necessarily has jurisdiction to determine whether it has the jurisdiction purportedly invoked in any proceeding (Khatri v Price [1999] FCA 1289; (1999) 95 FCR 287 per Katz J at [14]-[15]). Section 50 empowers the Court, at any time during or after the hearing of a proceeding in the Court, to forbid or restrict the publication of particular evidence or the names of parties and witnesses. The section has application in respect of all proceedings in the Court, including a proceeding in which it is determined that the Court does not have the jurisdiction purportedly invoked.

9                     The critical question on this appeal is whether the Court had jurisdiction to make the declaration sought before the primary judge or a declaration touching on the same subject matter. Following certain criticism made during the hearing before us of the way in which the declaration sought by the appellants before the primary judge had been drafted, Mr R R S Tracey QC, who appeared with Dr J G Renwick for the appellants, identified the relief that would be sought by the appellants in the event that the appeal was successful as follows:

‘A declaration that, in relation to the proceeding R v Barbaro and Ors in the Local Court of NSW, or in relation to the National Witness Protection Program, the following information is, in the public interest, immune from disclosure, namely

a) The name [a doctor’s name];

b) The address [an address];

c) The number [a number which may be a telephone number] and any number with the additional digits [two digits which might be added to the earlier number creating a telephone number];

A declaration that the First Respondent is bound to disallow:

(a)               cross‑examination of Audrey Ann Fagan on her affidavit and confidential affidavit both sworn on 18 September 2003 and filed in the proceedings R v Barbaro & Ors in the Local Court, and

(b)               any application to make the said confidential affidavit available to any other party or their legal representatives.’

10                  It seems to us that it may be necessary for the drafting of the declaratory relief sought by the appellants to be further refined. It is not necessary for that question to be further considered here. The Court is not restricted to granting the precise relief sought in the application to the Court.

reasons of the primary judge

11                  The primary judge at [18] acknowledged that in an appropriate case a controversy arising from an assertion by the Commonwealth that it was entitled to withhold disclosure of documents or information could give rise to a ‘matter’ within the meaning of s 39B(1A) of the Judiciary Act. However, his Honour at [23] took the view that:

‘…this application by the Commonwealth interests in this Court does not concern a matter. A declaratory order is sought on the basis that certain information attracts public interest immunity. However, even accepting that it is apt to say that the Commonwealth interests have a right to claim or assert that immunity, it is not a right that exists or arises and is vindicated or enforced in a procedural vacuum. It is not a right which exists apart from the proceedings in which it is asserted. It is a right to resist the disclosure of a document or information in circumstances where disclosure would otherwise probably follow and would follow for a legitimate forensic purpose. The determination of the legal controversy resulting from the assertion of that right involves the court (or tribunal) engaging in a balancing exercise. On one hand the court must consider and assess whether damage would be done to the public interest by disclosure and on the other, whether the administration of justice would be frustrated or impaired if the information were withheld and then decide which of those aspects predominates. …It is neither possible nor appropriate to divorce one element in the balancing exercise from the other. … The second element is a matter peculiarly and singularly the province of the judicial officer who must evaluate the effect of non-disclosure on the parties and in the proceedings in which the claim is made. The second element cannot in any real or concrete sense arise in any adjudication undertaken in this Court. This Court is not seised of aspects of the legal rule or principle called in aid by the Commonwealth interests to adjudicate on the controversy concerning their right and, as a consequence, this Court cannot apply that rule or principle.’

12                  His Honour at [24] concluded:

‘… The asserted right of the Commonwealth interests does not give rise to a justiciable controversy other than in the court in which the claim of public interest immunity arises. It does not give rise to a justiciable controversy in this Court. In my opinion, this Court does not have jurisdiction to adjudicate on the issues sought to be raised by the Commonwealth interests in its application.’

13                  His Honour’s above conclusion made it strictly unnecessary for him to determine whether the Court also lacked jurisdiction by reason of the words of exclusion at the end of par 39B(1A)(c) of the Judiciary Act. However, his Honour indicated that he did not accept the respondents’ analysis of the effect of those words. By a notice of contention the media interests gave notice that they contend that the decision of the primary judge should be affirmed on the ground that:

‘The Federal Court has no jurisdiction under any paragraph of sub‑section 39B(1A) of the Judiciary Act 1903 (Cth) in relation to a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’

consideration

Jurisdiction of the Federal Court

14                  As this appeal is concerned with the extent of the jurisdiction of the Federal Court, it is appropriate to refer to the nature and source of the jurisdiction of the Court.

15                  Section 71 of the Constitution relevantly provides that:

‘The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.’

16                  The Federal Court is one of the ‘other federal courts’ which the Parliament has created. The Parliament created the Court by s 5 of the Federal Court Act as a superior court of record and as a court of law and equity.

17                  Section 75 of the Constitution directly vests original jurisdiction in the High Court in five categories of ‘matters’. Section 76 authorises the Parliament to make laws conferring original jurisdiction on the High Court in four additional categories of matters. As federal jurisdiction is ‘the authority to adjudicate derived from the Commonwealth Constitution and laws’ (Baxter v Commissioner of Taxation (1907) 4 CLR 1087 at 1142), the jurisdiction referred to in s 75 and s 76 is federal jurisdiction. The appellate jurisdiction of the High Court and the authority implicit in the characterisation of certain federal courts as superior courts of record (see Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158) aside, s 75 and s 76 set the limits of federal jurisdiction. It is a jurisdiction concerning matters.

18                  Section 77 of the Constitution authorises the Parliament, with respect to any of the matters mentioned in s 75 and s 76, to make laws defining the jurisdiction of any federal court other than the High Court. This constitutional provision is reflected in s 19(1) of the Federal Court Act which provides that ‘[t]he Court has such original jurisdiction as is vested in it by laws made by Parliament’. The Parliament has not defined the jurisdiction of the Federal Court in a way which includes everything encompassed by s 75 and s 76 of the Constitution. The jurisdiction of the Federal Court is thus not co‑extensive with federal jurisdiction. However, all jurisdiction exercised by the Federal Court is necessarily federal jurisdiction; it is federal jurisdiction even where the law to be applied is not a law made by the Parliament.

19                  One of the laws made by the Parliament that defines the jurisdiction of the Federal Court is s 39B(1A) of the Judiciary Act. Section 39B(1A) provides:

‘(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)         in which the Commonwealth is seeking an injunction or a declaration; or

(b)         arising under the Constitution, or involving its interpretation; or

(c)         arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’

20                  The jurisdiction conferred by par 39B(1A)(a) of the Judiciary Act is a jurisdiction attracted by the identity of the moving party (ie the Commonwealth) and the nature of the relief sought by that party (ie an injunction or a declaration). The appellants contend that the application dismissed by the primary judge was an application that invoked the jurisdiction conferred on this Court by par 39B(1A)(a) of the Judiciary Act.

Paragraph 39B(1A)(a) of the Judiciary Act

21                  The application in this proceeding was made by the Commonwealth as the first applicant and the Commissioner of the Australian Federal Police as the second applicant. It seems likely, although we did not hear argument on the issue, that the Commissioner of the Australian Federal Police is the Commonwealth within the meaning of par 39B(1A)(a) of the Judiciary Act (Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219 at 232). Crucially, however, no challenge was made to the standing of the Commonwealth to institute the proceeding as the first applicant or to the bona fides of the naming of the Commonwealth as the first applicant.

22                  It is clear that the Court has power to grant declaratory relief. The power to do so at the suit of the Commonwealth may be identified by necessary implication from par 39B(1A)(a) itself. Additionally, s 21 of the Federal Court Actprovides:

‘(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2) A suit is not open to objection on the ground that a declaratory order only is sought.’

23                  Subject to the contention discussed below which relies upon the closing words of par 39B(1A)(c), this proceeding is thus a proceeding ‘in which the Commonwealth is seeking … a declaration’ within the meaning of par 39B(1A)(a) of the Judiciary Act. It is therefore necessary to consider whether the primary judge erred in concluding that there is no ‘matter’ within the meaning of s 39B(1A) in which the Commonwealth is seeking a declaration.

24                  The term ‘matter’ is used in s 39B(1A) with the same meaning that it has in s 75, s 76 and s 77 of the Constitution (Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 at [50]-[51]). In Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 at 37 Mason, Wilson, Brennan, Deane and Dawson JJ said:

‘When the word “matter” is used in Ch III of the Constitution in its ordinary prima facie sense of the subject matter for determination in a legal proceeding rather than the legal proceeding itself, it focuses attention upon the substance of the dispute. As so used, the word is a word of wide connotation: it is, and was in 1900, “the widest term to denote controversies which might come before a Court of Justice”.’ (citation omitted)

25                  ASIC v Edensor is itself a case in which the High Court found that the Federal Court was seized of federal jurisdiction by reason of the identity of the moving party and the nature of the relief sought by that party. Gleeson CJ, Gaudron and Gummow JJ at [54] observed:

‘The “matter” was a justiciable controversy identifiable independently of the proceeding brought for its determination. The focus of attention is that indicated by the joint judgment of five members of this Court in Crouch v Commissioner for Railways (Qld), namely “upon the substance of the dispute” and “the substantial subject matter of the controversy”.’

26                  In the present proceeding the Commonwealth asserts a common law right to protect the confidentiality of the contentious material. It seeks an order of this Court to achieve that end. The Commonwealth contends that the contentious material is material of a character that attracts public interest immunity under the common law of Australia. Reliance is placed on Jacobsen v Rogers (1995) 182 CLR 572 at 589 where Mason CJ, Deane, Dawson, Toohey and Gaudron JJ relevantly observed:

‘Public interest immunity reflects public policy…although it has never been thought to be confined to judicial and quasi-judicial proceedings’.

27                  The Commonwealth further contends that the earlier inadvertent and limited publication of the contentious material during the course of the committal proceedings has not destroyed its character as material that attracts public interest immunity.

28                  At least the second, the fourth and the eighth to twelfth respondents, as the arguments on this appeal revealed, dispute the contentions of the Commonwealth identified in [26] – [27] above. They deny that the Commonwealth may be granted the relief that it seeks in this Court.

29                  The above analysis reveals that there is a real controversy between the parties as to the entitlement of the Commonwealth to protect the confidentiality of the contentious material. The appellants are not seeking the answer to an abstract or hypothetical question (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582). It remains to be considered whether that controversy is justiciable.

30                  In our view, his Honour’s conclusion that the controversy between the parties was not justiciable in this Court is difficult to reconcile with the authorities, including the decision of the High Court in Sankey v Whitlam (1978) 142 CLR 1. Sankey v Whitlam itself arose out of a claim for public interest immunity (then known as Crown privilege) advanced before a magistrate conducting committal proceedings. The Commonwealth was not a party to the committal proceedings but counsel was granted leave to appear on behalf of the Commonwealth to object to the production of certain documents, which included Loan Council documents, covered by subpoenas duces tecum. The magistrate ultimately upheld the claim for privilege in respect of the Loan Council documents. The informant, Mr Sankey, then commenced proceedings in the Supreme Court of New South Wales for declarations that the documents to which the magistrate had accorded privilege should be produced and, if otherwise admissible, could be used in the committal proceedings. A cross‑claim filed in the Supreme Court gave the proceedings in that court the character of a cause arising under the Constitution or involving its interpretation. The proceedings were removed into the High Court under s 40 of the Judiciary Act. The jurisdiction there exercised was necessarily federal jurisdiction.

31                  Before the High Court in Sankey v Whitlam it was argued that the court could not grant declaratory relief on the application of an informant in committal proceedings. It is not entirely clear from the report of Sankey v Whitlam whether this argument was advanced as a matter of jurisdiction or a matter of power (see Harris v Caladine (1991) 172 CLR 84 per Toohey J at 136; ASIC v Edensor per Gleeson CJ, Gaudron and Gummow JJ at [64]-[65]). The distinction is for present purposes immaterial. Gibbs ACJ at 21 noted that ‘there have been many cases in which the courts have made declarations in relation to questions which could have fallen for decision in criminal proceedings’. At 25 the Acting Chief Justice said:

‘In my opinion it would be within power to grant a declaration of the kind sought by Mr Sankey in the present case. It seems to me that when an informant has properly required the production on subpoena of an admissible document, and the Commonwealth has objected to the production of the document on the ground that the public interest requires that it should not be disclosed, it is possible to regard the Commonwealth as asserting, against the informant as well as against the court, a “right” to withhold production of the document, and that in those circumstances the court has power to grant declaratory relief if the objection is held to be untenable. The same reasoning would not justify the making of a declaration that documents for which privilege was not claimed should not be admitted, but as will appear I need not decide whether it would be proper to make a declaration in such a case.’

32                  In Sankey v Whitlam Stephen J, with whom Aickin J generally agreed, expressed the issue in terms of jurisdiction. His Honour at 79 noted that the informant was entitled to institute the committal proceeding and that, having the carriage of the prosecution, the informant had caused subpoenas duces tecum to be issued. His Honour then observed at 79‑80:

‘When objections to compliance with those subpoenas were raised, based upon claims to Crown privilege, that immediately affected the informant in the exercise of the rights to which I have referred. That the rights which the informant is asserting are not concerned with the defence of his own person or property is no reason to deny them recognition. They are entitled to such recognition and there is, accordingly jurisdiction to make declarations such as are sought.’

33                  In the same case Mason J at 81 said:

‘Initially there is the question whether declaratory relief of the kind sought should be granted in relation to issues arising in committal proceedings pending before a magistrate in a court of petty sessions. As the proceedings have been removed into this court, it is this court’s jurisdiction to grant declaratory relief that is engaged. This court’s jurisdiction to grant declaratory relief, delimited as it is by O 26, r 19 of the High Court Rules, is no less extensive than the jurisdiction conferred upon the Supreme Court of New South Wales by s 75 of the Supreme Court Act 1970. … Having regard to the breadth of our jurisdiction to grant relief of the kind sought, I see no impediment in point of jurisdiction to grant of declaratory relief in the present case. (citation omitted)

Order 26 rule 19 of the High Court Rules is in similar terms to s 21 of the Federal Court Act. Strictly speaking it is concerned with power rather than jurisdiction.

34                  The remaining member of the High Court in Sankey v Whitlam, Jacobs J, did not expressly deal with the issue of whether the Court has jurisdiction, or alternatively power, to make the declaration sought. It would appear, however, that his Honour assumed that the Court could make the declarations sought although his Honour considered that the relevant proceeding had been instituted prematurely (at 102).

35                  The High Court in Sankey v Whitlam examined the Loan Council documents in respect of which the Commonwealth had claimed immunity. It declared that certain documents, or portions of documents, were not privileged from production and that the magistrate was in error in upholding the objections taken by the Commonwealth to their production and disclosure. It seems plain that all members of the High Court, apart perhaps from Jacobs J, considered the dispute between, amongst others, the Commonwealth and Mr Sankey as to whether or not the Loan Council documents attracted public interest immunity to be justiciable in the High Court. That is, to be justiciable as an exercise of federal jurisdiction in a court other than, to use the words of the primary judge, ‘the court in which the claim of public interest immunity arises’. There is no reason to conclude that the High Court would have taken a different view had the magistrate rejected the claim for privilege with the consequence that the Commonwealth, rather than Mr Sankey, approached the Supreme Court of New South Wales. It is also plain that, since the issue of whether the documents attracted public interest immunity was justiciable in the High Court following the removal of the proceedings into the High Court, it would also have been justiciable in the Supreme Court of New South Wales.

36                  Had the proceedings not been removed into the High Court, the jurisdiction that would have been exercised in the Supreme Court would have been federal jurisdiction: ‘there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court’ (Felton v Mulligan (1971) 124 CLR 367 per Barwick CJ at 373 cited in ASIC v Edensor at [7]). Similarly, were the present controversy to arise for determination in the Supreme Court of New South Wales, as the respondents apparently envisage that it might, its determination in that court would involve an exercise by that court of federal jurisdiction (see s 39B of the Judiciary Act). Federal jurisdiction is, as we have noted above, a jurisdiction defined by reference to ‘matters’. If a controversy is justiciable in the Supreme Court of New South Wales in the exercise of federal jurisdiction, logic dictates that it is a matter within the meaning of par 39B(1A)(a) of the Judiciary Act.

37                  Guidance on the question of the justiciability of the dispute between the parties may also be gained from DPP v Smith (1996) 86 A Crim R 308. In DPP v Smith the New South Wales Court of Appeal and Court of Criminal Appeal, constituted in each case by Gleeson CJ, Clarke and Sheller JJA, sat together to give consideration to two appeals that concerned claims of public interest immunity that arose during the course of committal proceedings. Orders had been sought in the committal proceedings to protect from disclosure the names of certain persons who were police informers. The magistrate refused to make the orders sought. An appeal from the decision of the magistrate was instituted in the Court of Criminal Appeal. An application was also made to the Supreme Court in its supervisory jurisdiction for orders which would protect the names of the police informers from disclosure. That application was dismissed by a judge of the Supreme Court on the basis that the court had no jurisdiction to intervene to protect the public interest immunity claimed in the committal proceeding. An appeal from his Honour’s decision was brought in the Court of Appeal.

38                  In DPP v Smith the appeal from the decision of the magistrate was allowed. The appeal from the decision of the judge of the Supreme Court was stood over for further argument if judgment in that appeal were required by the parties. However, the court itself considered the material that was tendered before the judge of the Supreme Court and concluded that:

‘in the circumstances that existed before the learned magistrate at the time of the application to her, and in the present circumstances as revealed by the evidence before this court, the case is one which has been shown to involve the public interest immunity claimed by the Attorney General, the public interest in preserving confidentiality in relation to police informers outweighs any countervailing public interest, and the making of the orders sought by the Attorney General is necessary for the administration of justice.’

39                  DPP v Smith provides additional support for the conclusion that a claim for public interest immunity can give rise to a justiciable controversy in a court other than ‘the court in which the claim of public interest immunity arises’. We doubt that the primary judge in this case intended to suggest that a claim of public interest immunity could not give rise to a justiciable controversy on appeal from the court in which the claim is first advanced. However, it is significant that the court in DPP v Smith gave consideration itself to material that was not before the magistrate. It did not adopt the course of directing the magistrate to reconsider the claim of public interest immunity according to law. That is, the court engaged in the process of evaluation that the primary judge in this case considered ‘peculiarly and singularly the province’ of the magistrate.

40                  Another example of a superior court considering a claim for public interest immunity that did not initially arise in that court is provided by Commissioner of the Australian Federal Police v Poompiriyapinte (unreported, Supreme Court of New South Wales, Badgery‑Parker J, 28 August 1990). In that case the initial claim that certain information was in the public interest immune from disclosure had been made in the District Court in Sydney. The trial judge had rejected the claim. There was no right of appeal from his Honour’s ruling. The Commissioner of the Australian Federal Police commenced a proceeding in the original jurisdiction of the Supreme Court claiming declaratory relief. Badgery‑Parker J considered it ‘beyond argument’ that the court had power to grant declaratory relief in the circumstances. The issue which troubled his Honour was whether the Supreme Court ‘should grant declaratory relief in respect of proceedings before another court exercising and acting within the limits of its jurisdiction’. Ultimately his Honour held that, in the particular circumstances of the case before him, it was appropriate to grant declaratory relief.

41                  The submissions of the media interests in the present case tended, in our view, to elide the distinction between the jurisdiction of the Court to adjudicate upon the applicants’ claim for relief and the likelihood of the applicants’ claim for relief succeeding. Where this Court’s jurisdiction is properly invoked, the Court does not exceed its jurisdiction by adjudicating upon a case ultimately found to lack merit. Nor does it exceed its jurisdiction by adjudicating upon a case appropriate for summary dismissal on the ground that it fails to disclose a reasonable cause of action, or, although the present was not suggested to be such a case, on the ground that it is frivolous or vexatious or otherwise an abuse of the Court’s process.

42                  As we consider, for the reasons set out below, that the contention identified in the notice of contention filed by the media interests has no present relevance, we conclude that the primary judge erred in dismissing the application for want of jurisdiction.

43                  Nothing that we have said in the course of reaching the above conclusion should be understood as implying that the appellants’ claim for relief in this Court should succeed, or even that this Court is bound to determine the controversy between the parties. The Court may conclude that it is inappropriate for declaratory relief, which is discretionary in nature, to be granted. Gibbs ACJ observed in Sankey v Whitlam at 26:

‘…a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.’

(See also Phong v Attorney‑General of the Commonwealth [2001] FCA 1241 (FC); (2001) 114 FCR 75).

44                  The reluctance to which the Acting Chief Justice referred in the passage from Sankey v Whitlam cited above might be increased were the Court to be satisfied that subsequent events might impinge on the utility of the relief sought. Reluctance to grant relief, however, is not to be equated with an absence of jurisdiction to grant relief.

The Notice of Contention

45                  The media interests, supported by the second and fourth respondents, advanced the following arguments in support of the contention of which they gave notice (see [13] above):

‘(a) on the first basis, accepting that what stands in the Printer’s Copy is what was enacted by Parliament, the limitation on power contained in para (c) of s 39B(1A) applies to paras (a) and (b) as well;

(b) on the second basis, what stands in the Printer’s Copy (an express qualification on par (c)) is not what Parliament enacted, and what Parliament enacted applies the limitation in para (c) to each paragraph of sub-sec 39B(1A); and

(c)                on the third basis, what stands in the Printer’s Copy is an error (by transposing a comma) and as Parliament plainly intended to exclude the jurisdiction of the Federal Court in any criminal matter, the Court should construe s 39B(1A) to that effect.’

46                  In our view each of the above arguments overlooks a critical question. That question is the character of the matter in respect of which the jurisdiction of this Court was invoked. That matter is identified, on the view that we take, in [29] above. That matter is not the subject of the committal proceedings.

47                  The words of exclusion that were added to the end of par 39B(1A)(c) by the Law and Justice Legislation Amendment Act 1999 (Cth) excise from the jurisdiction otherwise conferred on the Court by that paragraph any ‘matter in respect of which a criminal prosecution is instituted or any other criminal matter’. No criminal prosecution has been instituted in respect of the matter identified in [29] above. Is it nonetheless a ‘criminal matter’ within the meaning of par 39B(1A)(c) of the Judiciary Act?

48                  The above question involves the proper construction of par 39B(1A)(c) of the Judiciary Act. There is no authority which bears directly on the meaning of the expression ‘criminal matter’ in par 39B(1A)(c). The traditional understanding of what constitutes a criminal matter was expressed by Viscount Simon LC in Amand v Home Secretary [1943] AC 147 at 156 where his Lordship said:

‘If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.’

49                  A more restricted view of what constitutes a ‘criminal cause or matter’ within the meaning of s 18(1) of the Supreme Court Act 1981 (UK), which re-enacts s 31(1) of the Supreme Court of Judicature (Consolidation) Act 1925, has subsequently been taken (see R v Southampton Justices, ex part Green [1975] 2 ALL ER 1073; R v Stipendiary Magistrate at Lambeth [1983] 1 All ER 321. However, even if the traditional understanding of what constitutes a criminal matter is adopted, the matter identified in [29] above is not a criminal matter. It is a civil matter.

50                  The context provided by Part VI of the Judiciary Act, which is comprised of ss 38‑39B, and the slightly more remote context provided by Part X of the Act, supports the conclusion that the expression ‘criminal matter’ is used in par 39B(1A)(c) with its traditional meaning. It seems clear that the legislature did not consider that the purpose intended to be achieved by rendering s 39B(1) subject to the qualifications expressed in subsections (1B) and (1C) could be achieved by simply excluding any criminal matter from the jurisdiction conferred by s 39B(1). The conclusion that the expression ‘criminal matter’ is used in the Judiciary Act in its traditional sense is confirmed by Part X of the Act which itself reflects a traditional understanding of what constitutes a criminal matter.

51                  The above conclusion is consistent with the approach taken by the Full Court in two recent decisions concerning s 39B of the Judiciary Act. In Chief Executive Officer of Customs v Jiang [2001] FCA 145 (FC); (2001) 111 FCR 395 and Phong v Attorney‑General of the Commonwealth the Full Court proceeded on the assumption that an application to the Court in respect of a ‘related criminal justice process decision’ within the meaning of s 39B(3) was not itself a criminal matter. In Phong v Attorney‑General of the Commonwealth Beaumont J at [44] expressly observed that a claim for declaratory and injunctive relief concerning a prosecution in the County Court of Victoria was not a criminal proceeding.

52                  For the above reason, we conclude that, whatever the scope of operation of the closing words of par 39B(1A)(c), they do not operate to exclude the jurisdiction of the Federal Court in this proceeding.

53                  It is thus unnecessary for us to give further consideration to the arguments identified in [45] above. We record, however, that in our view it has not been demonstrated that the Law and Justice Legislation Amendment Act 1999 (Cth), including Schedule 10 thereof which amended the Judiciary Act, and Reprint 6 of the Judiciary Act, in each case as prepared by the Office of Legislative Drafting, Attorney-General’s Department Canberra and published by the Commonwealth, do not accurately reflect what was enacted by Parliament. Whether subsection 39B(1A), in the form which it took after it was amended in 1999, discloses a legislative intention that the closing words of par 39B(1A)(c) qualify the conferrals of jurisdiction affected by pars (a) and (b) is an issue which should await determination in a case which calls for that issue to be determined.

conclusion

54                  The appeal will be allowed and the proceeding remitted to the primary judge for hearing and determination. The parties indicated during the course of the hearing that it would be appropriate for consideration of the appropriate order as to costs to await the publication of these reasons for judgment. Orders will be made for any dispute as to the appropriate order as to costs to be determined on written submissions.

Associate:

Dated: 12 December 2003