AB v CD

Case [2019] VSCA 28 21 February 2019

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UNRESTRICTED

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0082

AB (a pseudonym)	Appellant
v
CD (a pseudonym)	First Respondent
EF (a pseudonym)	Second Respondent

S APCI 2017 0083

EF (a pseudonym)	Appellant
v
CD (a pseudonym)	Respondent

S APCI 2017 0087

EF (a pseudonym)	Appellant
v
CD (a pseudonym)	First Respondent
AB (a pseudonym)	Second Respondent

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JUDGES:	FERGUSON CJ, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2019
DATE OF JUDGMENT:	21 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 28
JUDGMENT APPEALED FROM:	[2017] VSC 350; [2017] VSC 351 (Ginnane J)

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CRIMINAL LAW – Prosecution’s duty of disclosure – Counsel for accused acting as police informer – Royal Commission into whether criminal proceedings may have been affected by conduct of legal practitioner as police informer – Whether non-publication order should be made in relation to real name and image of police informer – Whether non-publication order necessary to prevent prejudice to administration of justice – Whether non-publication order necessary to protect safety of any person – Substantial material in public domain – Whether non-publication order would be ineffective – [*Redacted] – Open Courts Act 2013, ss 17(b) and 18(1)(a) and (c).

OPEN COURTS – Application for non-publication orders in relation to real name and image of legal practitioner who acted as police informer in relation to clients – Whether non-publication order necessary to prevent prejudice to administration of justice – Whether non-publication order necessary to protect safety of any person – [*Redacted] – Substantial material in public domain – Whether non-publication order would be ineffective – [*Redacted] – Open Courts Act 2013, ss 17(b) and 18(1)(a) and (c).

PRACTICE AND PROCEDURE – Whether applicant seeking to re-litigate matters already determined against them – Whether applications an abuse of process in light of applicant’s failure to obtain substantive relief in primary proceedings – Whether applications should be dismissed by reason of res judicata or abuse of process – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to.

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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 Ms K A O’Gorman and Mr T K Jeffrie	Office of Public Prosecutions
For EF	Mr P W Collinson QC with Ms C M Harris QC	Minter Ellison
For the Commonwealth Director of Public Prosecutions	Ms W Abraham QC with Ms R J Sharp	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 (by leave)	Mr O P Holdenson QC with Mr M J Hoyne	Macpherson Kelley
For the Royal Commission into the Management of Informants (by leave)	Ms P A Neskovcin QC with Mr S Mukerjea	Holding Redlich

FERGUSON CJ
BEACH…

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.

Continue reading AB v CD

Details

AGLC: AB (a pseudonym) v CD (a pseudonym) and EF (a pseudonym) [2019] VSCA 28
Case: [2019] VSCA 28
Decision Date: 21 February 2019

CaseChat Overview and Summary

In the matter of AB v CD, the High Court of Australia was tasked with determining whether a non-publication order should be granted in relation to the real name and image of a legal practitioner who had acted as a police informer. The dispute centred around the disclosure of sensitive information, including the identity of the informer, amidst allegations that this information had the potential to prejudice the administration of justice and endanger the safety of individuals involved.

The legal issues at the forefront of the case revolved around the necessity of the non-publication order to prevent prejudice to the administration of justice and to protect the safety of any person. The court also considered whether the non-publication order would be ineffective given the substantial material already in the public domain. Furthermore, the court examined whether the applications to re-litigate the matters were an abuse of process, particularly in light of the applicant's failure to obtain substantive relief in the primary proceedings.

The court deliberated on the provisions of the Open Courts Act 2013, specifically sections 17(b) and 18(1)(a) and (c), which pertain to the administration of justice and the safety of persons. The court concluded that the non-publication order was unnecessary given the extensive information already available in the public domain. Additionally, the court held that the applications were an abuse of process, leading to the dismissal of the applications on the grounds of res judicata and abuse of process. This decision was informed by the principles set out in Port of Melbourne Authority v Anshun Pty Ltd.

The final orders of the court were that the applications for non-publication orders should be dismissed, and the matter was to be considered an abuse of process.

Orders