AB (a pseudonym) v CD (a pseudonym) EF (a pseudonym) v CD (a pseudonym)
[2019] HCA 6
27 February 2019
M73/2018 & M74/2018
ORDER
Pursuant to s 77RE(1)(a) of the Judiciary Act 1903 (Cth), by reason of the necessity to protect the safety of a person or persons within the meaning of s 77RF(1)(c) of the Judiciary Act, there be no publication of the real names or images of EF's children or either of them in connection with EF, or in connection with these proceedings or the subject matter of these proceedings, until publication of the final report of the Royal Commission into the Management of Police Informants and thereafter for a period of not less than 15 years.
Representation
P J Hanks QC with E M Nekvapil and D P McCredden for AB in both matters (instructed by Victorian Government Solicitor)
T K Jeffrie for CD in both matters (instructed by Solicitor for Public Prosecutions (Vic))
P W Collinson QC with C M Harris QC for EF in both matters (instructed by MinterEllison)
R J Sharp with M R Wilson for the Commonwealth Director of Public Prosecutions in both matters (instructed by Director of Public Prosecutions (Cth))
No appearance for the Victorian Equal Opportunity and Human Rights Commission
W B Zichy-Woinarski QC with J M Davidson appearing as amici curiae in both matters (instructed by Russell Kennedy Lawyers)
S Mukerjea for the Royal Commission into the Management of Police Informants, intervening (instructed by Holding Redlich)
O P Holdenson QC for The Herald and Weekly Times Pty Ltd, The Age Company Ltd, Nationwide News Pty Ltd and Seven Network (Operations) Limited, intervening (instructed by Macpherson Kelley)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
AB (a pseudonym) v CD (a pseudonym) EF (a pseudonym) v CD (a pseudonym)
Practice and procedure – High Court – Suppression and non-publication orders – Power to make – Where risk of harm to persons associated with party to proceeding "acute" – Whether non-publication order necessary to protect safety of persons.
Words and phrases – "administration of justice", "necessary to protect the safety of any person", "non-publication order", "public interest in open justice".
NETTLE J. This is an application by EF for orders pursuant to s 77RE of the Judiciary Act 1903 (Cth) ("the Judiciary Act") to prohibit publication of the names and images of her children ("HI" and "JK") in connection with these proceedings or the subject matter of these proceedings.
The application is supported by a substantial body of affidavit evidence of which, relevantly, the effect is that, because of EF's previous role as a police informant, she and her children are now at grave…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6
Case
[2019] HCA 6
Decision Date
CaseChat Overview and Summary
This matter concerned an application before Nettle J of the High Court of Australia for suppression and non-publication orders. The applicant, identified as AB, sought these orders in circumstances where there was an alleged acute risk of harm to persons associated with a party to the proceeding. The core of the dispute revolved around whether a non-publication order was necessary to protect the safety of these individuals.
The legal issues before the Court were whether the conditions for making a non-publication order under the Judiciary Act 1903 (Cth) were met, specifically concerning the necessity to protect the safety of a person or persons. The Court was required to balance this necessity against the public interest in open justice and ensure that any such order operated for no longer than was necessary.
Nettle J reasoned that it was necessary to make an order to protect the safety of HI and JK. His Honour considered the seriousness of EF's past conduct and the potential for retribution from individuals who might seek revenge. Taking into account the ages of HI and JK and the potential for some individuals to remain incarcerated for a period, Nettle J concluded that the order should remain in effect until the publication of the final report of the Royal Commission into the Management of Police Informants, and thereafter for a minimum of 15 years. The Court made orders accordingly, pursuant to s 77RE(1)(a) of the Judiciary Act, finding that the non-publication order was necessary to protect the safety of persons within the meaning of s 77RF(1)(c) of the Act.
Orders
Orders of the court
Pursuant to s 77RE(1)(a) of the Judiciary Act 1903 (Cth), by reason of the necessity to protect the safety of a person or persons within the meaning of s 77RF(1)(c) of the Judiciary Act, there be no publication of the real names or images of EF's children or either of them in connection with EF, or in connection with these proceedings or the subject matter of these proceedings, until publication of the final report of the Royal Commission into the Management of Police Informants and thereafter for a period of not less than 15 years.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
NETTLE J
Subject, therefore, to one further consideration, I consider that it is necessary to make an order to protect the safety of HI and JK. That one further consideration is the duration of the order. As I have noticed, s 77RI of the Judiciary Act requires the Court to ensure that such an order operate for no longer than is necessary to protect the safety of HI and JK. Exactly how long is necessary is difficult to say. Like the assessment of risk to HI and JK, it involves an element of conjecture. It is also essential to bear in mind that a primary objective of the administration of justice is to safeguard the public interest in open justice. Doing the best I can, however, in light of the seriousness of EF's previous infractions of her obligations to persons who, it is thought, are most likely to seek retribution; the time that some of them may remain in gaol before having free opportunity to take revenge; and HI and JK's ages, I have concluded that it is necessary that the order operate until publication of the final report of the Royal Commission into the Management of Police Informants and thereafter for a period of not less than 15 years. Conclusion I shall make orders accordingly.