Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd

75 ALR 461
1987 - 0929A - HCA

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(Decision by: Deane J)

Between: Attorney-General (UK)
And: Heinemann Publishers Australia Pty Ltd

Court:

Judge:
Deane J

Subject References:
Practice and Procedure

Hearing date: 28 September 1987
Judgment date: 29 September 1987

Canberra

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Decision by:
Deane J

The applicant is the Attorney-General for the United Kingdom.  He sues in his capacity as representative of the Crown in right of that country. That is to say, he sues on behalf of the Government of the United Kingdom. The second respondent, Peter Maurice Wright, served as an officer of the British Security Service for some 20 years up to early 1976.  In the later years of his service, he held senior positions of trust.  The first respondent, Heinemann Publishers Australia Pty Limited ("Heinemann"), is a publishing company which has entered into arrangements with Mr. Wright for the publication of a book called "Spycatcher" which he has written about the British Security Service during the period in which he was a member of it. The book disclosed information which was, at the time it was acquired by Mr. Wright in the course of his service and to the extent to which it is accurate, of a highly confidential character. Heinemann actively encouraged him to write the book and to disclose the information which it contains.  

In September 1985, the applicant instituted proceedings in the Supreme Court of New South Wales, Equity Division, seeking injunctions restraining Mr. Wright and Heinemann from disclosing or publishing information obtained by Mr. Wright in his capacity as an officer of the British Security Service and from publishing any book concerning that Service written by him.  An account of profits and ancillary relief were also sought.  After ex parte injunctions had been obtained by the applicant, Mr. Wright, Heinemann and certain directors of Heinemann gave undertakings to the Supreme Court that, until further order of that Court, they would not:  

"disclose or publish or cause or permit to be disclosed or published to any person or assist in or take any step in preparation for or in furtherance of publication by themselves or by any other person of:

(a)

any information obtained by (Mr. Wright) in his capacity as an officer of the British Security Service;

(b)

any book concerning the British Security Service written by (Mr. Wright) or including information provided by him or any copies extracts or excerpts from the said book or manuscript thereof".

Those undertakings were subject to an exception designed to permit communication of information to named legal representatives who, in turn, gave undertakings to preserve the confidentiality of relevant information communicated to them.  I find it unnecessary to make further express reference to the undertakings given by the legal representatives or to detail their continuation pursuant to subsequent orders.  

The proceedings at first instance came on for hearing in late 1986. Judgment was given by the learned trial judge (Powell J.) in March 1987.  His Honour dismissed the proceedings.  He made an order ("Order 2") that Mr. Wright, Heinemann and the directors of Heinemann be released from the undertakings which they had given to the Court but suspended the operation of that order "until the expiration of 28 days from this day, or until such further, or other, date as may be fixed by the Court of Appeal, or a judge thereof, on application made in that behalf".  

An appeal to the New South Wales Court of Appeal was lodged on behalf of the applicant.  On 6 April 1987, the Court of Appeal ordered that Order 2 made by the learned trial judge "be suspended until the final determination of this appeal or until further order".  The appeal was heard in July of this year. Judgment was given last Thursday (24 September 1987).  By majority (Kirby P. and McHugh J.A., Street C.J. dissenting), the applicant's appeal was dismissed.  The Chief Justice, in dissent, would have upheld the appeal and made orders for an account of profits.  In view of the effects of publication and distribution of the book in North America which had occurred since the trial and to which I shall subsequently refer, his Honour would not, however, have been prepared to grant injunctive relief restraining the publication and distribution of the book unless further evidence were adduced which established that the Australian Government supported the grant of injunctive relief in the altered circumstances which now prevail.  

When giving judgment on 24 September last, the Court of Appeal ordered that the undertakings previously given be continued until 2.00pm on that day. Later in the day, the Court of Appeal entertained an application by the applicant to the effect that any release from the undertakings given to the learned trial judge and continued under the subsequent order of the Court of Appeal be suspended, initially for a period of 21 days, to allow the applicant to consider whether he should apply for special leave to appeal to this Court and thereafter, if such an application for special leave to appeal were made, until the appeal was heard and determined by this Court.  The Court of Appeal declined to make orders having that effect.  Their Honours did, however, make an order that the operation of Order 2 made by the learned trial judge be suspended until 4.00p.m on Monday 28 September 1987, that is to say, until 4.00p.m yesterday.  

At approximately 4.00p.m yesterday, Mr. Hughes Q.C., who appears for Mr. Wright and Heinemann and was in the course of argument before me, gave an undertaking to this Court on behalf of Mr. Wright and Heinemann that they would not publish "Spycatcher" until the hearing of these proceedings before me had been completed and I had delivered this judgment.  

An application for special leave to appeal to this Court from the judgment of the Court of Appeal has now been filed. In form the application which is presently before me is for a stay of proceedings pending the determination of that application for special leave to appeal and, if such leave to appeal be granted, the determination of the appeal.  Thus, prayer 1 of the summons seeks an order which would further suspend the operation of the order of the learned trial judge releasing the undertakings given to the Supreme Court while prayer 2 seeks, in the alternative, an order suspending the operation of both the order of the Court of Appeal and the order of the learned trial judge (that is, Order 2) relating to the release of the undertakings.  

It could scarcely be suggested that the undertakings given and continued in the courts below were intended by those giving them to operate after the proceedings in the courts below had terminated in their favour during any period which might be involved in the hearing and determination of any subsequent appeal to this Court.  The applicant does not seek to stay the operation of any positive substantive order made by either the learned trial judge or the Court of Appeal.  His overall complaint is that the Court of Appeal confirmed the refusal of the learned trial judge to grant any substantive relief.  In substance, the application before me is an application for injunctive relief to maintain the status quo pending the disposal of proceedings in this Court. Indeed, that is made clear by the third prayer of the summons which claims, in the alternative, an order restraining Mr. Wright and Heinemann from:  

"disclosing or publishing or causing or permitting to be disclosed or published to any person and assisting in or taking any step in preparation for or in furtherance of publication by themselves or by any other person of any information obtained by (Mr. Wright) in his capacity as an officer of the British Security Service and any book concerning the British Security Service written by (Mr. Wright) or including information provided by him or any copies, extracts or excerpts from the said book  or manuscript thereof-

(a)

until the applicant's application for special leave to appeal to this Court has been heard and determined; and

(b)

if special leave to appeal is granted by this Court, until the final determination of that appeal or until further order."

 

It is clear that a Justice of this Court has jurisdiction to grant a stay of orders made by a court below pending the consideration by a Full Court of an application for special leave to appeal or of an actual appeal to this Court from those orders (see, generally, the discussion in the judgment of Brennan J. in Jennings Construction Ltd. v. Burgundy Royale Investments Pty. Ltd. (1986) 61 ALJR 102; 69 ALR 265 ). The Rules expressly refer to that jurisdiction and provide that it may be exercised by a single Justice.  The jurisdiction is, however, an inherent one (cf. Marconi's Wireless Telegraph Co. Ltd. v. The Commonwealth (No. 3) (1913) 16 CLR 384 ).  The principles and considerations which underlie its existence also, in my view, lead to the conclusion that the Court has jurisdiction to grant positive injunctive relief to preserve the subject matter of litigation pending the hearing of an application for special leave to appeal or of an appeal to this Court from a decision given in that litigation.  While the matter has not been fully argued before me and I find it ultimately unnecessary to express any final view in relation to it, I am inclined to think that, in an appropriate case, the jurisdiction to grant positive injunctive relief is susceptible of being exercised by a single Justice.  

The jurisdiction to grant interlocutory relief staying the orders made by a court below pending an appeal has rightly been described as an extraordinary one (see, for example, Jennings Construction Ltd., at p 103; p 267 of ALR; Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 55 ALJR 395, at pp 396-397; 34 ALR 208 , at p 211). It is a jurisdiction which will only be exercised in exceptional circumstances. The same can be said, but a fortiori , of the jurisdiction to grant positive injunctive relief to the unsuccessful party in the courts below to maintain the status quo pending the outcome of an appeal.  

The facts and legal issues involved in the proceedings in the courts below appear from the detailed reasons for judgment of the individual members of the Court of Appeal. The legal issues which it is desired to agitate on an appeal, if special leave to appeal is granted, appear from a draft notice of appeal which is before me.  My present comments should be understood in the context of those documents.  Those judgments and draft notice of appeal demonstrate that the issues which would be involved in an appeal are of general importance and raise serious and difficult questions of law.  They also demonstrate that the applicant will, if leave be granted, plainly have an arguable case that relief should have been granted against the respondents in the Supreme Court.  It is not appropriate for me, on an application such as this, to speculate about whether leave to appeal will in fact be granted when the matter comes before the Full Court of this Court or whether, if it is, the appeal will ultimately fail or succeed.  It suffices for present purposes to say that I am persuaded that there is a substantial prospect that special leave to appeal will be granted and that, if special leave to appeal is granted, the applicant will have a real and significant chance of ultimate success.  

That having been said, the starting point of a consideration of the question whether I should grant the interlocutory relief which the applicant now seeks must be the facts that the learned trial judge refused to grant the applicant the relief which he sought in the proceedings at first instance and that that refusal of the learned trial judge has been confirmed by the Court of Appeal.  If the applicant were able to persuade me that his appeal to this Court would effectively be rendered nugatory if I refused to order a stay or to grant other injunctive relief, I would be inclined to the view that interlocutory relief to maintain the status quo should be granted.  The confidential information acquired by Mr. Wright in the course of his service falls, for present purposes, into two broad categories.  The first comprises that which is disclosed in the book "Spycatcher".  The second category comprises that which is not disclosed in that book.  It is unnecessary that I be troubled by the information falling in that second category since Mr. Hughes has proffered an undertaking to the Court on behalf of his clients to the effect that information derived by Mr. Wright from his service and which is not disclosed in the book will not be published pending the hearing of any appeal.  The critical question is whether the publication of information in the first category, that is the information disclosed in "Spycatcher", should continue to be restrained pending the hearing of the application for special leave to appeal and, if leave is granted, of the ensuing appeal.  That question must be approached in the light of events which have occurred subsequent to the trial.  

The material before me indicates that, since the hearing at first instance, Mr. Wright's book "Spycatcher" has been published and distributed in very large numbers (more than half a million) in the United States of America. Indeed, it has for some time been at the top of the list of "non-fiction" "bestsellers" which is published in the "New York Times Book Review".  It has also been distributed in large numbers in Canada.  It has been sold freely at international airports in those countries.  It has been freely brought into this country by visitors and returning residents.  In these circumstances, it is clear that any confidentiality attaching to the information disclosed by Mr. Wright in "Spycatcher" has been well and truly lost. Indeed, as I followed the argument, Mr. Simos Q.C., who appears for the applicant, did not really dispute that that was so.  In these circumstances, it appears to me to be impossible to maintain that a refusal by me to continue, by way of interlocutory relief, the prohibition of the publication and distribution of "Spycatcher" will destroy the subject matter of the appeal in the sense that it will enable the destruction of the confidentiality of material whose confidentiality would otherwise be protected by a successful appeal.  

Upon analysis, the real grounds upon which Mr. Simos presses his client's case for a continuation of the prohibition of publication and distribution of "Spycatcher" pending the resolution of any appeal to this Court is the "detriment" explained by the solicitor for the applicant, Mr. Feetham, in an affidavit filed in the proceedings before me.  That detriment would, in Mr. Feetham's words, include:  

"(a)

failure to obtain such relief would mean and be perceived to mean that, if an officer or former officer of the British Security Service once publishes material in breach of his fiduciary or other duty of confidence owed to the British Crown, he could not thereafter, in Australia at least, be prevented from republishing that material or from further wrongful publication or from promoting or advertising the original or further wrongful publication by means of lecture tours, press, radio and television interviews, the sale of publishing rights including the serialisation rights to newspapers, and the sale of film rights and the like;

(b)

officers and former officers of the British Security Service and other organisations and persons upon whose confidence and co-operation the British Security Service depends, would perceive that the duty of confidence owed by officers and former officers of the British Security Service to the British Crown will not be enforceable effectively in Australia."

In Attorney-General v. Guardian Newspapers Ltd. (1987) 1 WLR 1248 , at p 1317, Lord Oliver of Aylmerton colourfully described part of the basis of such an argument as "the Admiral Byng principle, ' pour encourager les autres '". Mr. Hughes was at pains to stress in argument that, unlike the ill-fated John Byng, his clients had emerged successful from the trial and had had their success confirmed by the Court of Appeal.  Be that as it may, I have come to the conclusion that, in the circumstances of this case, the perceived detriment is not such as would warrant the exercise of the extraordinary jurisdiction to grant a stay or injunction which would have the effect of preventing the publication or distribution of "Spycatcher" pending the outcome of the appeal.  I turn to express my reasons for that conclusion.

The possible detriment with which I am presently concerned is that which would be sustained as a result of a refusal of interlocutory relief in the event that the applicant's appeal to this Court succeeds.  In that event, the applicant's ultimate success in the appeal and any final orders against the respondents which are made will, in my view, effectively serve to produce the substantial result which the applicant seeks to achieve.  That being so, the relevant possible detriment is essentially that which would be sustained between now and the determination of the appeal.  That detriment would be lessened, though not completely overcome, by an order for an account of the profits of publication if the applicant is ultimately found to be entitled to such relief.  In that regard, Mr. Hughes has proffered an undertaking to the Court that his clients will keep appropriate records of receipts from sales of the book in the period between now and the determination of any appeal.  

Against the detriment which will be sustained if interlocutory relief is refused and an appeal to this Court ultimately succeeds, there must be weighed a number of considerations.  I have already referred to some of them. There is the consideration that the applicant has failed both at first instance and in the Court of Appeal.  There is the consideration that the jurisdiction which the applicant now invokes is an extraordinary one which should be exercised only in exceptional circumstances.  There is the consideration that Mr. Wright is a man of 71 years who is in ill health and who has already been subjected to the restraints of injunctions and undertakings for a period of two years in proceedings against him that have, to date, failed.  There is the possible detriment which Mr. Wright and Heinemann will sustain in the event that they be subjected to further restraint and the appeal to this Court is ultimately dismissed.  

It is an ideal of our society that freedom of speech and disclosure of information be not unnecessarily or unreasonably curtailed.  The public interest of this country also requires that the legal system and the courts command general respect (cf. Attorney-General v. Guardian Newspapers Ltd., at pp 1268-1269). It appears to me that a court should be slow indeed to make an interlocutory order aimed at preventing publication or distribution in this country of a book which is freely available in other countries and which can readily and lawfully be brought into this country by any person returning from overseas. In such a case, if it is ultimately held that the applicant for interlocutory relief was not entitled to any relief at all, the public will have suffered the detriment of being deprived of easy access to a published work in circumstances where interlocutory relief is found, upon full consideration, not to have been justified.  

I have done my best to weigh all of the above considerations. I have come to a clear view that I should refuse to make any interlocutory order which would have the effect of forbidding the publication or distribution of "Spycatcher" until the determination of the application for special leave to appeal or of any subsequent appeal. In the context of the undertakings which have been proffered on behalf of the respondents, I consider it unnecessary that I make any other order.  

I propose to stand the matter over to enable the parties to agree on the terms of the undertaking as to damages which I consider should be expressly given on behalf of the applicant and the undertakings in relation to other information and accounts which are to be given on behalf of the respondents. In order to avoid further proceedings being unnecessarily complicated by any question of my jurisdiction as a single Justice, the orders which I make will be without prejudice to any right of the applicant to apply direct to a Full Court of this Court for the interlocutory relief which I have refused.