AB (a pseudonym) v CD (a pseudonym) and EF (a pseudonym) [No 2]

[2019] VSCA 95

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0082

AB (a pseudonym)	Appellant
v
CD (a pseudonym)	First Respondent
EF (a pseudonym) [No 2]	Second Respondent

S APCI 2017 0083

EF (a pseudonym)	Appellant
v
CD (a pseudonym) [No 2]	Respondent

S APCI 2017 0087

EF (a pseudonym)	Appellant
v
CD (a pseudonym)	First Respondent
AB (a pseudonym) [No 2]	Second Respondent

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JUDGES:	FERGUSON CJ, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	1 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 95

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OPEN COURTS – Non-publication applications – Application that documents be removed from court files – Applications for non-publication orders – Whether all documents filed in applications should be removed from court files – Whether documents filed by respondents should be redacted and permitted to remain on court files – Whether non-publication orders necessary in light of closed court hearings, undertakings given by lawyers and Harman obligations – Harman v Secretary of State for the Home Department [1983] 1 AC 280.

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APPEARANCES:	Counsel	Solicitors
For AB	Mr P J Hanks QC with Mr E M Nekvapil and Mr D P McCredden	Victorian Government Solicitor’s Office
For CD	Dr S B McNicol QC with Mr T K Jeffrie	Office of Public Prosecutions
For EF	Ms C M Harris QC	Minter Ellison
For the Commonwealth Director of Public Prosecutions	Ms R J Sharp with Mr M Wilson	Ms A Pavleka, Commonwealth Solicitor for Public Prosecutions
Amici Curiae	Mr W B Zichy-Woinarski QC with Ms J Davidson	Russell Kennedy
For Herald & Weekly Times Pty Ltd, The Age Company Ltd, Nationwide News Pty Ltd and Seven Network (Operations) Ltd	Mr M J Hoyne	Macpherson Kelley

FERGUSON CJ
BEACH JA
McLEISH JA:

1. On 21 February 2019, this Court published restricted reasons (a redacted version of which was subsequently made public) for refusing applications by AB and EF for various non-publication orders.[1]  At the conclusion of our reasons we said:

We will, however, make orders sought by AB and EF regarding removal of the affidavits upon which they rely from the court file (subject to leave of a judge of the Court of Appeal) and non-publication of the contents of those affidavits, until further order.  The proper scope of those orders was not argued before us and we will invite the parties to seek to agree on a form of order.[2]

[1]AB v CD & EF [2019] VSCA 28.

[2]Ibid [91].

1. The parties have been unable to agree on a form of order.  They have now filed competing submissions and proposed orders.

1. AB and EF now seek:

·an order that all of the documents filed in the non-publication applications (‘the Application Documents’), and not only the materials upon which they relied, be removed from the Court’s files and stored in a sealed envelope;

·an order prohibiting the inspection of the Application Documents, without the leave of a judge of the Court, to be granted only upon notice to the parties;  and

·a suppression order prohibiting disclosure of the Application Documents, except for certain documents filed as exhibits to some of the affidavits included in the Application Documents.

1. Both AB and EF accept that any order made should contain an exception that permits the legal representatives of the Royal Commission into the Management of Police Informants to inspect and take copies of documents for use (but not disclosure) by the Royal Commission.

1. In support of their applications, AB and EF rely upon the fact that on 8 March 2019, Nettle J made orders, that correspond with the orders they now seek, in respect of all of the documents filed in AB and EF’s applications for non-publication orders in the High Court.[3]  Indeed, AB submits that this Court should make the orders he seeks because:

The High Court having determined the point of principle relied upon by AB, and having ruled accordingly, this Court is bound to apply that principle in relation to the Application Documents.

[3]See AB v CD; EF v CD [2019] HCA 6.

1. In the alternative, it was submitted that, if this Court did not consider itself bound by Nettle J’s order, then the proper administration of justice required that ‘where a party sought a suppression or non-publication order, that party can ordinarily file full and complete affidavits, and make written and oral submissions, without fear of those documents (or any transcript of those submissions) themselves being disclosed’.  Otherwise, so it was submitted, parties would be deterred from seeking protection in relation to legitimate and important public or private interests that they were entitled to seek to protect. 

1. AB submitted that a loose analogy existed between the basis for the seeking of the present orders and:

the practice in public interest immunity matters of permitting a party to file confidential affidavits and submissions for the consideration of the Court, which are not disclosed to the other parties, and permitting their return (ordinarily on an undertaking to provide them to the Court if needed) after the public interest immunity claim is determined.

1. The orders sought by AB and EF were opposed in varying degrees by the Commonwealth DPP, CD, the amici and the media parties. 

1. In relation to the removal of material from the Court files, none of the respondents resisted AB’s and EF’s applications to remove documents filed by AB and EF in the non-publication applications.  There was, however, resistance to the complete removal of all documents filed in response, and opposition to the non-publication applications.

1. The Commonwealth DPP and CD each identified redacted versions of documents they had filed which they submitted should be made public.  The amici and media parties’ opposition to AB and EF’s application for the removal of documents from the Court’s files was more extensive.  They made various submissions about the lack of confidentiality of some of the material in various documents, submitting more generally that non-confidential material should be made public.  In the case of any document, filed by a party other than AB or EF, containing non-confidential and confidential information, they submitted that the document should be made public in a form in which the confidential material was redacted.

1. In making orders in relation to documents filed in the High Court, substantially in the form sought by AB, Nettle J said:

I propose to make orders substantially in the form sought by AB to restrict access to the materials filed in this Court in support of AB’s application for orders for non-publication of EF’s real name and image.  Despite submissions by some of the parties, and the amici curiae, that the matter would be better dealt with by redaction of critical parts of the documents, as I am informed has been or is to be done by the Court of Appeal of the Supreme Court of Victoria in relation to the documents filed in support of the application for non-publication orders made in that court, I accept AB’s submission that the application in this Court was essentially in the nature of a public interest immunity claim and therefore that the appropriate procedure is either to return the documents to AB or make orders to restrict access, as I intend to do.

1. Contrary to AB’s submission concerning the effect of Nettle J’s determination, stare decisis involves courts being bound by appellate decisions of courts standing above them and in the same hierarchy.  A decision of a single justice of the High Court is not such a decision.[4]  Moreover, and in any event, Nettle J’s reasoning did not involve a considered statement of principle determinative of the present application.[5]  Additionally, as his Honour’s reasons disclose, his Honour’s order was made in contemplation that a different course may be taken in this Court.

   [4]Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, 504 (Gummow J).

   [5]Ibid.

1. That said, Nettle J’s determination is obviously deserving of the closest and respectful consideration.[6]  Having done so, and having considered all of the material filed and the thorough and helpful written submissions of the parties, we agree with the position taken (or accepted) by all parties that, so far as documents filed by AB and EF are concerned, the appropriate procedure is to make an order restricting access to them rather than by attempting to redact critical parts.

   [6]Ibid.

1. In relation to documents filed by the other parties (including the amici and media parties), we think the better course is that they be dealt with by the redaction of any critical parts.  In this regard, we note that Nettle J’s reasons concentrated on the treatment of AB and EF’s documents (as applicants in applications of a public interest immunity nature) rather than on the way in which the respondents’ documents fell to be treated.

1. Moreover, we would hope that the parties would be able to agree upon appropriate redactions of the various documents filed by the parties other than AB and EF.  In the event that there is, however, dispute then we will refer the resolution of that dispute to the Judicial Registrar.

1. We turn now to the non-publication orders sought by AB and EF.  While initially, and pending the outcome of the primary applications, various non-publication orders were necessary, we are not persuaded that the non-publication orders sought by AB and EF are now necessary.[7]  With only minor exceptions, the non-publication orders made in the substantive proceedings lapsed when the Court’s files were opened, subject to redactions, on 12 April 2019.  The material in respect of which a non-publication order is sought was filed in closed court and made available only to the parties.  It is the subject of a Harman[8] obligation.  Moreover, the material was provided to lawyers for the media parties only on them providing strict undertakings not to otherwise disclose its contents.  In those circumstances, we do not accept that it is necessary to make the non-publication orders sought by AB and EF.

   [7]See s 18 of the Open Courts Act 2013.

   [8]Harman v Secretary of State for the Home Department [1983] 1 AC 280.

1. Notwithstanding that we will only make an order restricting, through redaction, access to critical parts of the documents filed by parties other than AB and EF, the orders made by Nettle J will continue to operate so as to prohibit disclosure of much of the remainder of those documents.  It would not be appropriate, in those circumstances, for this Court to provide public access to that material.

1. As it is AB and EF who wish to preserve the confidentiality of the material filed by them, and the confidentiality of relevant responsive material filed by the respondents, we expect that, at first instance, they will identify any document on this Court’s files in respect of which Nettle J’s order prohibits disclosure.  If there is a dispute about the identity of any such document then, that dispute can also be resolved by the Judicial Registrar.[9]

   [9]See [15] above.

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