HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJMatter No M73/2018
AB (A PSEUDONYM) APPELLANT
AND
CD (A PSEUDONYM) & ORS RESPONDENTS
Matter No M74/2018
EF (A PSEUDONYM) APPELLANT
AND
CD (A PSEUDONYM) & ORS RESPONDENTS
AB (a pseudonym) v CD (a pseudonym)
EF (a pseudonym) v CD (a pseudonym)[2018] HCA 58
5 November 2018
M73/2018 & M74/2018
ORDER
The orders of the Court, as varied on 23 November 2018 and as further varied on 3 December 2018, are as follows:
1. Special leave to appeal granted on 9 May 2018 is revoked in each matter.
2. The following orders made by the Honourable Justice Nettle are revoked:
(a)Orders 1 and 2 made on 21 December 2017, as varied on 25 May 2018; and
(b)Order 2(c) made on 17 October 2018.
3.1 Pursuant to s 77RE(1) of the Judiciary Act 1903 (Cth), by reason of the necessity to prevent prejudice to the proper administration of justice within the meaning of s 77RF(1)(a) of the Judiciary Act, there be no disclosure other than disclosure in accordance with Orders 4.1-4.9 herein, whether by publication or otherwise, of:
(a)any document filed in these proceedings (including in proceeding No. M183 of 2017 and No. M185 of 2017);
(b)any information derived from any document filed in these proceedings (including in proceeding No. M183 of 2017 and No. M185 of 2017);
(c)any order made in these proceedings (including in proceeding No. M183 of 2017 and No. M185 of 2017);
(d)any transcript of any hearing in these proceedings (except the directions hearing on 21 December 2017 and the granting of special leave to appeal on 9 May 2018 in proceeding No. M183 of 2017 and No. M185 of 2017);
(e)any information derived from the hearing on 5 November 2018, or from the transcript of that hearing; or
(f) the real name or image of EF in connection with these proceedings and with proceeding No. M183 of 2017 and No. M185 of 2017,
until 5 February 2019.
3.2Pursuant to s 77RE(1) of the Judiciary Act, by reason of the necessity to prevent prejudice to the proper administration of justice within the meaning of s 77RF(1)(a) of the Judiciary Act, there be no disclosure other than disclosure in accordance with Orders 4.1-4.9 herein, whether by publication or otherwise, of any information tending to reveal the identity of the other parties to these proceedings (including proceeding No. M183 of 2017 and No. M185 of 2017), until 9am on 3 December 2018.
4.1AB may provide the Legislation Committee of the Victorian Cabinet, being the Cabinet Committee that has oversight of significant litigation, any information about these proceedings that AB considers necessary for the purpose of briefing that Committee about these proceedings from time to time as the occasion requires.
4.1ANeither Order 3.1 nor Order 3.2 prohibits disclosure for the purpose of briefing the following persons holding office in the State of…
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- AGLC
- AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58
- Case
- [2018] HCA 58
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the proposed disclosures of information relating to the police informer's dual role as legal counsel and informant were protected by public interest immunity, and consequently, whether the first respondent was permitted to make such disclosures. The Court was required to balance the public interest in the integrity of the criminal justice system and the proper administration of justice against the potential prejudice that disclosure might cause.
The Court ultimately revoked the special leave to appeal previously granted. It found that disclosure of certain information, including documents filed in the proceedings, information derived from those documents, and the identity of the informer, should be restricted to prevent prejudice to the proper administration of justice, pursuant to section 77RE(1) of the Judiciary Act 1903 (Cth). However, the Court made specific exceptions, permitting disclosure to certain government officials and bodies for briefing purposes, and allowing for the disclosure of the terms of the orders and the outcome of the proceedings under specific conditions. The Court's file was ordered to remain closed until a specified date.
Orders
Orders of the court
The orders of the Court, as varied on 23 November 2018 and as further varied on 3 December 2018, are as follows:
1. Special leave to appeal granted on 9 May 2018 is revoked in each matter.
2. The following orders made by the Honourable Justice Nettle are revoked:
(a) Orders 1 and 2 made on 21 December 2017, as varied on 25 May 2018; and
(b) Order 2(c) made on 17 October 2018.
3.1 Pursuant to s 77RE(1) of the Judiciary Act 1903 (Cth), by reason of the necessity to prevent prejudice to the proper administration of justice within the meaning of s 77RF(1)(a) of the Judiciary Act, there be no disclosure other than disclosure in accordance with Orders 4.1-4.9 herein, whether by publication or otherwise, of:
(a) any document filed in these proceedings (including in proceeding No. M183 of 2017 and No. M185 of 2017);
(b) any information derived from any document filed in these proceedings (including in proceeding No. M183 of 2017 and No. M185 of 2017);
(c) any order made in these proceedings (including in proceeding No. M183 of 2017 and No. M185 of 2017);
(d) any transcript of any hearing in these proceedings (except the directions hearing on 21 December 2017 and the granting of special leave to appeal on 9 May 2018 in proceeding No. M183 of 2017 and No. M185 of 2017);
(e) any information derived from the hearing on 5 November 2018, or from the transcript of that hearing; or
(f) the real name or image of EF in connection with these proceedings and with proceeding No. M183 of 2017 and No. M185 of 2017,
until 5 February 2019.
3.2 Pursuant to s 77RE(1) of the Judiciary Act, by reason of the necessity to prevent prejudice to the proper administration of justice within the meaning of s 77RF(1)(a) of the Judiciary Act, there be no disclosure other than disclosure in accordance with Orders 4.1-4.9 herein, whether by publication or otherwise, of any information tending to reveal the identity of the other parties to these proceedings (including proceeding No. M183 of 2017 and No. M185 of 2017), until 9am on 3 December 2018.
4.1 AB may provide the Legislation Committee of the Victorian Cabinet, being the Cabinet Committee that has oversight of significant litigation, any information about these proceedings that AB considers necessary for the purpose of briefing that Committee about these proceedings from time to time as the occasion requires.
4.1A Neither Order 3.1 nor Order 3.2 prohibits disclosure for the purpose of briefing the following persons holding office in the State of Victoria about these proceedings from time to time as the occasion requires:
(a) the Premier;
(b) the Attorney-General;
(c) the Minister for Police;
(d) the Special Minister of State;
(e) the Secretary to the Department of Justice & Regulation; and
(f) the Secretary to the Department of Premier and Cabinet.
4.2 AB, CD or the Commonwealth Director of Public Prosecutions may provide a copy of these orders, the transcript of the hearing on 5 November 2018 and this Court's reasons for decision relating to the revocation of special leave to the President of the Court of Appeal of the Supreme Court of Victoria, the Honourable Christopher Maxwell AC, or in his absence the Acting President of the Court of Appeal, who may provide copies of the same to or inform any of the Judges of the Supreme Court as he considers necessary.
4.3 AB and CD may provide the Honourable Robert Redlich QC, Commissioner of the Independent Broad-based Anti-corruption Commission, any information about these proceedings that AB or CD considers necessary for the purpose of keeping Mr Redlich QC informed about these proceedings, including copies of any applications and orders made in these proceedings, from time to time as the occasion requires.
4.4 The Commonwealth Director of Public Prosecutions may provide the Attorney‑General for the Commonwealth and the Attorney-General's Chief of Staff, any information about these proceedings that the Commonwealth Director of Public Prosecutions considers necessary for the purpose of briefing the Attorney-General about these proceedings from time to time as the occasion requires.
4.5 The Commonwealth Director of Public Prosecutions may provide the Commissioner of the Australian Federal Police any information about these proceedings that the Commonwealth Director of Public Prosecutions considers necessary for the purpose of briefing the Commissioner about these proceedings from time to time as the occasion requires.
4.6 Order 3.1 does not prohibit disclosure from 3 December 2018 of:
(a) any document filed in proceeding No. S CI 2016 03143 or No. S CI 2016 04688 in the Supreme Court of Victoria, and any judgment given or order made in those proceedings;
(b) any document filed in proceeding No. S APCI 2017 0082, No. S APCI 2017 0083 or No. S APCI 2017 0087 in the Court of Appeal of the Supreme Court of Victoria, and any judgment given or order made in those proceedings.
For the avoidance of doubt, Order 4.6 does not otherwise affect the operation or the effect of any suppression order in respect of such documents made by the Supreme Court of Victoria (including the Court of Appeal).
4.7 Order 3.1 does not prohibit CD from 3 December 2018 from sending, to each of the persons named in paragraph 2(b) of the orders sought in the Notice of Appeal in proceeding No. M73 of 2018 dated 23 May 2018, letters substantively in the terms identified in exhibits JRC-11 and JRC-17 to the confidential affidavit of John Ross Champion SC sworn 2 August 2016 and filed in the Supreme Court of Victoria in proceeding No. S CI 2016 03143.
4.8 Order 3.1 does not prohibit disclosure from 3 December 2018 of:
(a) the terms of these orders;
(b) the fact that there was a hearing on 5 November 2018, in proceeding No. M73 of 2018 and No. M74 of 2018 in the High Court of Australia, to determine whether special leave to appeal, which was granted on 9 May 2018, should be revoked;
(c) the fact that special leave to appeal was revoked, and the date on which special leave was revoked;
(d) the fact that the appeals were appeals from a decision of the Court of Appeal of the Supreme Court of Victoria in proceeding No. S APCI 2017 0082, No. S APCI 2017 0083 and No. S APCI 2017 0087 which are the subject of orders made by the Court of Appeal under the Open Courts Act 2013 (Vic); and
(e) this Court's reasons for decision relating to the revocation of special leave to appeal.
4.9 Order 3.1 does not prohibit disclosure, by AB, CD or the Commonwealth Director of Public Prosecutions to any person to whom they owe obligations of disclosure, from 3 December 2018 of any information tending to reveal the identity of any of the parties to these proceedings (including proceeding No. M183 of 2017 and No. M185 of 2017), provided they do not use EF's real name or image.
5. The whole of the Court's file shall remain closed until 5 February 2019.
6. Any party which seeks limited redactions from materials on the Court file shall make application to the High Court no later than 2.30pm on 21 December 2018 identifying in the application the specific information to be redacted by reference to the specific documents on the Court file.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
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