AB v CD
[2019] VSCA 28
•21 February 2019
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 | 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 JA
McLEISH JA:
EF is a former barrister and police informer. CD is the Victorian Director of Public Prosecutions. AB is the Chief Commissioner of Victoria Police. For some years, AB, CD and EF have been locked in litigation relating to whether CD should be prohibited from sending letters to some of EF’s former clients, who had been convicted of serious offences, advising them of EF’s role as a police informer.
Proceedings were commenced in the Trial Division by AB and EF seeking to prevent CD from sending any letters. CD’s case was that he (and later, she) was under a duty as the Director of Public Prosecutions to disclose information contained in an IBAC report about EF’s activities in relation to her former clients. AB and EF were unsuccessful at trial[1] and again on appeal to this Court.[2] While the High Court initially granted AB and EF special leave to appeal from this Court’s decision, after full written arguments and the receipt of additional evidence, tendered in order to clarify the relevant facts that had been the foundation of the grant of special leave, the High Court ultimately revoked its grant of special leave.[3]
[1]AB & EF v CD [2017] VSC 350; EF v CD [2017] VSC 351.
[2]AB v CD & EF [2017] VSCA 338.
[3]AB v CD [2018] HCA 58.
Following the revocation of special leave, CD has now written to various convicted persons disclosing the information she considers she is required to disclose about EF’s activities. A Royal Commission has been set up to inquire into and report on a number of matters including the extent to which any criminal proceedings may have been affected by the conduct of EF as a police informer. The Royal Commission will also investigate and report on the conduct of Victoria Police in their recruitment of EF.
In revoking special leave, the High Court made a number of orders, including an order prohibiting the disclosure of the real name or image of EF in connection with the litigation until 5 February 2019.
On 22 January 2019, AB filed a summons in the High Court seeking an order prohibiting any publication of EF’s real name or EF’s image ‘in connection with these proceedings, or the subject matter of these proceedings, until and unless otherwise ordered’. On 25 January 2019, Nettle J made an interim non-publication order with effect until 1 March 2019 or further order.
On 8 February 2019, CD’s application for a permanent non-publication order came on for hearing before Nettle J. According to an affidavit filed on behalf of CD in this Court:
At the hearing, Justice Nettle expressed the view that the preferable course in dealing with the relief sought by AB was that AB first make an application to [the Court of Appeal] to seek similar relief to the relief sought in [AB’s High Court summons]. … His Honour considered that it may be inappropriate for the High Court to make a permanent non-publication order in proceedings which had originated in the Supreme Court, before the Supreme Court had considered the making of any such order pursuant to the Court’s inherent jurisdiction or pursuant to the Open Courts Act 2013 (Vic) in the first instance.
Justice Nettle said that he considered that the Court of Appeal would be well placed to consider the application, and that the Court of Appeal’s reasons would be of considerable assistance to the High Court at the further hearing of [CD’s High Court summons].
…
His Honour adjourned [CD’s High Court summons] to 9.30 am on 22 February 2019 to allow AB to make an application [to] the Court of Appeal, and for the application to be heard and determined by the Court of Appeal, should the Court of Appeal be able to do so before 22 February 2019.
On 11 February 2019, the High Court varied the orders it made when it revoked special leave, by making an order permitting the Royal Commission to issue notices under s 17 of the Inquiries Act 2014 (Vic) that disclosed ‘EF’s real name in connection with these proceedings … or their subject matter’. The variation also permitted disclosure:
by any person of any document or information (including any document in unredacted form) which it is necessary to disclose in response to a notice served on such person pursuant to s 17 of the Inquiries Act 2014 (Vic), including any document or information that refers to the real name or image of EF in connection with these proceedings … or their subject matter.
On the same day (11 February), AB and EF filed separate applications in this Court seeking permanent non-publication orders in relation to the real name, image and other details of EF. While the terms of the relief claimed in EF’s application sought non-publication orders ‘until further order or 28 November 2023, at which time this order will expire if no further order is made’, EF’s submissions in this Court were, in substance, that permanent non-publication orders should be made.
The following afternoon (12 February) this Court heard argument about the way in which the applications would proceed, the making of interim orders and the means by which the Court might comply with s 11 of the Open Courts Act 2013 by notifying relevant news media organisations of the applications. The hearing of AB and EF’s applications, and an application issued that day by the Royal Commission in relation to its ability to publish EF’s real name and image, were fixed for hearing on 20 February 2019.
The parties and their cases
In order to protect the subject matter of the applications, an order was made that the applications be heard in closed court. Evidence was tendered on affidavit, and submissions were received from:
·AB, CD and EF;
·the Commonwealth Director of Public Prosecutions.
·the Royal Commission;
·counsel acting for certain media parties (‘the media parties’); and
·counsel who had been appointed amici curiae.[4]
[4]See AB & EF v CD [2017] VSC 350 [63]–[67].
AB and EF sought the making of permanent non-publication orders in relation to the real name and image of EF and certain audio recordings (‘the audio recordings’) of meetings between EF and members of Victoria Police. Additionally, EF sought non-publication orders in relation to the details of her treating medical practitioners and medical matters, and also in relation to the real names and images of her children.
All of the other parties (including the interveners and the amici) opposed the making of a non-publication order in relation to EF’s real name or in relation to the audio recordings. Different positions were taken, however, with respect to non-publication orders in relation to EF’s image, the details of EF’s medical practitioners and medical issues, and in relation to the real names and images of EF’s children.
AB (the Chief Commissioner of Victoria Police)
AB based his application on s 17 of the Open Courts Act, disclaiming reliance on the inherent jurisdiction of the Court or any other statutory source of power. It is convenient to set out the relevant parts of ss 17 and 18 of the Open Courts Act:
17Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a)a report of the whole or any part of a proceeding;
(b)any information derived from a proceeding.
18Grounds for proceeding suppression order
(1)A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
Example
Another reasonably available means may be directions to the jury.
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence;
(e)the order is necessary to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding;
…
AB relied on affidavits of Assistant Commissioner Paterson of Victoria Police sworn on 11 and 29 January 2019 and 7 February 2019 in support of non-disclosure applications made by AB in the High Court, along with an affidavit of Acting Inspector Ralph Tyler, also of Victoria Police, sworn for the same purpose on 25 January 2019, and affidavits sworn by AB’s solicitor in this Court.
The thrust of Assistant Commissioner Paterson’s evidence was that, since CD had made disclosures following the High Court’s reasons being made public, there has been widespread media coverage of the proceedings and the underlying issues, as a consequence of which AB has been consulting with EF to develop steps to protect her and her children. [*Redacted]
[*Redacted].
[*Redacted].
[*Redacted].
The opinion of Assistant Commissioner Paterson is that, if widespread publication and reporting of EF’s name and image were to occur, it would not be possible to ensure protection of EF and her children [*Redacted].
Acting Inspector Tyler expresses a similar opinion in relation to the prospect and likely effect of widespread publication of the audio recordings in issue. In particular, such publication would significantly increase the risk of a person recognising EF through her voice. Assistant Commissioner Paterson shares the same opinion.
In short, AB’s case was that the publication of EF’s real name and image in connection with the current proceedings (or their subject matter generally) will, if not prohibited, be widespread by major media organisations and severely prejudice the ability of AB to protect the safety of EF and her children.
While AB acknowledged that it was already possible to perform internet searches enabling a person to arrive at a well-informed guess as to EF’s real name, and then to find EF’s image, it was submitted that there would nevertheless be a significant increase in risk from 1 March 2019 if publication were not further suppressed. For similar reasons, it was submitted that the audio recordings should also be the subject of a permanent non-publication order.
In substance, AB’s case was that while a significant number of people may already know the real name of EF in connection with these proceedings, a non-publication order of the kind sought was necessary so as to limit the number of people who might have the capacity to then recognise EF as a police informer [*Redacted].
Mr Hanks QC for AB submitted that the orders sought by AB were narrow in their scope, in three respects. First, they would restrict publication (to the public or a section of the public) but would not suppress disclosure otherwise. Secondly, restriction was only sought of publication of the name or image of EF ‘in connection with these proceedings’. Thirdly, it was accepted that the power in s 17(b) of the Open Courts Act only extends to restricting disclosure of information ‘derived from a proceeding’.
In relation to the last of these points, it was submitted that the name and image of EF appeared in documents filed in the proceeding and were therefore information derived from the proceeding. The audio recordings were exhibits in the proceeding. Mr Hanks accepted that the orders sought would not prevent publication of EF’s real name or image, even in connection with the proceeding, by a person who derived that information from a source other than the proceeding. It will not be necessary to consider further what is meant by ‘information derived from a proceeding’ in s 17(b), or whether that concession was rightly made. We proceed on the assumption that the matters in question constitute ‘information derived from a proceeding’.
Mr Hanks submitted that the relief sought involved the application of s 17, which was not a matter raised in the substantive proceeding, in which only a question of public interest immunity was decided. He submitted that the application was made in circumstances that had changed since final orders were made, [*Redacted], the appointment of the Royal Commission (with attendant publicity), [*Redacted]. These changed facts had formed the basis for the opinions of senior police officers, upon which AB now relied.
[*Redacted].
Finally, Mr Hanks submitted that, if the Court was satisfied either that the order was necessary to prevent a real and substantial risk to the proper administration of justice (under s 18(1)(a) of the Open Courts Act) or to protect the safety of a person (under s 18(1)(c)), the Court was obliged to make the order rather than engage in any balancing process or exercise of discretion, notwithstanding the use of the word ‘may’ in s 18(1). He relied by analogy on decisions concerning the corresponding provisions in s 50 of the Federal Court of Australia Act 1976 (Cth) and its successor, s 37AG(1)(a), in which ‘may’ was held not to import a discretion.[5]
[5]Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [31]–[33]; Australian Competition and Consumer Commission v Air New Zealand Ltd [No 3] [2012] FCA 1430 [19]–[21] (Perram J). Counsel also drew attention to ss 4(1) and 45 of the Interpretation of Legislation Act 1984.
EF’s case
EF largely adopted the submissions of AB in support of her own application for a permanent non-publication order. In addition, and for similar reasons, EF sought a non-publication order in relation to her children, certain medical matters personal to her, and the details of two medical practitioners and their qualifications.
[*Redacted].
[*Redacted].
Mr Collinson submitted that it was premature for the prosecuting authorities, or the Royal Commission, to form the opinion that they needed to harness media publicity in order to identify all the persons affected by EF’s conduct, and that extremely reliable sources of information were yet to be exhausted. There was no more than a speculative possibility that such a course was required, [*Redacted].
In relation to the medical practitioners, the argument was that EF believed it was essential to her health and wellbeing that she remain in a position to receive the treatment she is currently receiving. Publication of the details of her medical practitioners may result in those medical practitioners refusing to provide her with further medical treatment. Ms Harris QC, also appearing for EF, submitted that the orders in respect of the medical practitioners were necessary for the safety of those persons. The same submission was made in respect of EF’s children. Ms Harris submitted that these orders were necessary, even if the orders in respect of EF’s name and image were not made.
CD (the Victorian DPP)
CD opposed the making of a non-publication order of EF’s real name or the audio recordings. She did not oppose the making of non-publication orders in relation to EF’s image, EF’s medical practitioners and medical issues and EF’s children. CD contended that there were three alternative reasons why the Court should refuse the application for a non-publication order in relation to EF’s name.
First, it was contended that Anshun estoppel[6] or res judicata applies. In support of that contention, CD submitted that the relief that AB and EF each sought in their originating processes was relief that could have been sought in the substantive proceeding, or that this Court refused to grant the same relief when it dismissed AB’s and EF’s appeals from the primary judge’s orders. It was submitted that nothing had changed since the Court made final orders disposing of the proceeding.
[6]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Secondly, CD contended that the present applications are an abuse of process for either of two reasons:
(1) The issue of whether EF’s name should, upon CD’s making of disclosures to the convicted persons, be made subject to an indefinite non-publication order, was an issue that should have been litigated in the earlier proceedings (this was a variation of the Anshun argument).
(2) [*Redacted].
Thirdly, even if there was no Anshun estoppel or res judicata and the applications are not an abuse of process, CD opposed this Court making a non-publication order of EF’s real name in connection with these proceedings or their subject matter on each of the following grounds:
(1) The making of such a non-publication order would frustrate the ability of CD to identify the full range of interested persons to whom she should disclose, in the performance of her duty of disclosure, the matters the subject of these proceedings.
(2) The applicants have failed to demonstrate why it is necessary, [*Redacted], to make the non-publication order.
(3) The Court should not make a non-publication order that adversely affects non-parties. As CD put it in her written submissions:
[T]he Court should not make [the non-publication order sought] given the effect that that order would have on some female members of the criminal bar in Victoria, including on their continued safety and their ability to provide legal services to their clients with their clients’ full confidence that those members are not EF.
Dr McNicol QC, on behalf of CD, submitted that publication of EF’s name was necessary to ensure that CD could make proper disclosure to those affected by EF’s conduct. She relied on affidavits of Ms Aaskov, a solicitor, about ongoing correspondence between CD and AB, and deposing to CD’s belief that publication by CD of EF’s name (but not her image) will be the most effective way to ensure that persons affected by the conduct of AB and EF can identify that EF was their counsel.
The Commonwealth DPP
The Commonwealth DPP opposed the making of an order prohibiting the publication of EF’s real name in connection with these proceedings or their subject matter. She also opposed an order prohibiting the publication of the audio recordings. She did not oppose the making of an order in relation to EF’s image, EF’s medical practitioners and medical issues, or the names and images of EF’s children.
In opposing an order prohibiting the publication of EF’s real name and the audio recordings, the Commonwealth Director made the following submissions:
·An order prohibiting the publication of EF’s real name is inconsistent with the High Court’s reasons for revoking special leave.
·The interests of justice require the publication of EF’s name.
·An order prohibiting the publication of EF’s real name would significantly impede the work of the Royal Commission.
·[*Redacted].
·Prohibiting publication of the audio recordings is not necessary. Moreover, a number of recordings of EF’s dealings with Victoria Police are likely to be relevant in existing (and potentially in pending) proceedings.
·There is no new information or situation that warrants an order prohibiting the publication of EF’s real name. The situation has not materially changed since the evidence of AB was filed before the High Court in September 2018.
·An order prohibiting the publication of EF’s real name would be futile having regard to what the evidence shows is already in the public domain.
Ms Abraham QC, on behalf of the Commonwealth DPP, developed these submissions. She pointed out that there was no evidence from EF as to her [*Redacted].
The Royal Commission
The Royal Commission intervened in order to seek variations in orders that it said were needed for it to discharge its functions. Specifically, it wished to issue notices pursuant to s 17 of the Inquiries Act referring to the real name of EF in connection with these proceedings and their subject matter. An order permitting that course having been made in the High Court on 11 February, a similar order was made in this Court on 12 February without objection from any other party.
A second purpose of the Royal Commission’s intervention in the present applications was to submit that it should be able to publish EF’s real name and image in connection with the proceedings and their subject matter as part of a notice to the public inviting submissions or other information about the extent of EF’s conduct as a registered police informer between 1995 and 2009. It was submitted that any inability on the part of the Commission to take this step would prejudice the Commission’s ability to efficiently and effectively respond to its terms of reference.
The Royal Commission’s primary position was that it should be excluded from the operation of any non-publication order that this Court might otherwise see fit to make in response to AB’s and EF’s applications. In support of this position, it pointed to affidavit evidence filed in these applications concerning the difficulty the Royal Commission would have in identifying all of the people possibly affected by EF’s conduct as an informer between 1995 and 2009. The evidence disclosed that such attempts as have already been made to comprehensively identify a list of affected people has produced results that are likely to be far from complete.
The Royal Commission contended that there was no basis for the non-publication orders sought by AB and EF. [*Redacted]. It was also submitted that AB and EF had failed to establish a relevant necessity for the making of any such orders.
Ms Neskovcin QC, for the Royal Commission, contended that the audio recordings would form a central part of the evidence before the Commission and would likely be played in whole or in part, subject to the Commission considering whether to prohibit or restrict the publication of the recordings pursuant to s 26 of the Inquiries Act. The Commission submitted that there was no basis for this Court making a non-publication order in respect of the audio recordings, which were the best evidence of significant conversations. She submitted that a transcript would not serve the same purpose as matters of tone and emphasis would not be captured by a transcript.
With respect to the details of EF’s treating medical practitioners and medical matters, Ms Neskovcin submitted that it was possible that these might be relevant to the Commission’s inquiry. However, the Commission’s present position is that it does not expect that it will be necessary to make this information available to the broader public.
As to the names and images of EF’s children, the Commission’s position was that these were not relevant to its inquiry or necessary to be disclosed or published for the purposes of its inquiry. No further submission was made on this aspect of EF’s application.
Media parties
The media parties commenced their written submissions by saying that it was difficult to conceive of a case where the principles of open justice were more important. As the media parties put it:
The High Court has found that ‘reprehensible’ conduct was engaged in by the office of the Chief Commissioner of Police and that the police encouraged ‘fundamental and appalling breaches’ by a practising lawyer of her duties to her clients and the court.
This conduct has already led to a Royal Commission being established. It may lead to some of the State’s most notorious criminals being granted retrials or, possibly, being released from prison. An unknown number of persons may have been unjustly incarcerated for many years. The number of persons whose trials may have been affected is not known because EF’s real name and image continues to be suppressed.
The behaviour of AB and EF taints the entire police force and legal profession. The examination of those behaviours must take place, if possible, in public. Secrecy between AB and EF and (as we now know) other informers has been a fundamental part of the problem.
The media parties then made detailed written submissions concerning principles of open justice and the requirement that any non-publication order must be ‘necessary’ — rather than merely ‘convenient, reasonable or sensible’.
The media parties opposed non-publication orders of any kind being made on AB’s and EF’s applications. While they said that it was unlikely that they had any particular interest in publishing information about EF’s treating medical practitioners or medical matters, a difficulty for EF’s application in respect of those issues was that there is no proper basis for the making of the non-publication orders sought. As the media parties put it, the fact that medical practitioners would prefer not to be named (even if for good reason) is neither relevant nor sufficient for the making of a non-publication order. Moreover, it was not possible to foreclose the possibility that medical matters relating to EF may become relevant to the reasons as to why she acted as she did, or why she became or continued to be a police informer.
As to the names and images of EF’s children, the media parties said that, again, it was unlikely that media interests would wish to publish those details in connection with publication of the subject matter of the present proceedings. It was again submitted, however, that no non-publication order should be made because no proper basis for such an order had been made out by EF.
[*Redacted].
Mr Holdenson QC developed these arguments orally. He submitted that wide publicity of EF’s name and image was necessary to generate interest, discussion and debate about EF’s conduct with the result that such events were less likely to be repeated. He submitted that there was evidence that at least one journalist was aware of EF’s conduct before the proceeding commenced and that, without the proceeding, publication of that information could not have been suppressed. The present applications were therefore dependent on the bringing of the proceeding, in which AB and EF had been wholly unsuccessful.
Mr Holdenson submitted that the orders sought would be futile because of the extent to which EF’s name and image were already widely known. She had not come to harm despite living openly in Melbourne until at least recent times. As such, it could not be said that the test of necessity was satisfied. Alternatively, this matter weighed in the Court’s discretion, under whichever head of power was invoked.
The amici curiae
The amici opposed AB and EF’s applications in so far as they sought suppression or non-publication orders in respect of the name of EF or her image. They also opposed the making of non-publication orders in respect of the audio recordings.
Mr Zichy-Woinarski QC submitted that EF’s identity must be published to ensure that those who may have been affected by her conduct are given every opportunity to learn of that fact. He also submitted that AB and EF should not be permitted to re-litigate an issue which they have already lost at first instance, lost on appeal and lost on the High Court’s revocation of special leave.
He further submitted that there was no evidence that AB had taken any steps to make disclosures to persons who had been charged summarily, without the involvement of the DPP or the Commonwealth DPP.
[*Redacted].
Reply submissions
In the course of reply submissions, Mr Collinson QC, for EF, sought leave to file an affidavit to be sworn by his instructing solicitor, deposing on information and belief to the fact that EF had read the affidavits of Assistant Commissioner Paterson and confirmed their contents in so far as they described consultations and discussions between AB and EF. The Court indicated that it would not be assisted by such an affidavit, and refused leave accordingly. In short, that was because the applications may be decided on the assumption, which we make, that Assistant Commissioner Paterson accurately recounts the matters in question. [*Redacted].
Should a permanent non-publication order be made?
The principal relief sought by AB and EF in their primary proceedings related to CD’s proposal to publish information about EF to seven named persons. Declarations were sought that that information could not be published to those persons because of public interest immunity, and because the information was said to be the subject of an equitable obligation of confidence. In EF’s proceeding, an injunction was also sought.[7] It was that relief that was litigated at first instance, and on appeal to this Court, and in the High Court. The failure of AB and EF to obtain that relief does not give rise to res judicata in relation to the present applications, which raise questions of non-publication under specific statutory provisions based on facts that have, to some extent, changed since judgment was delivered. [*Redacted]. The present applications have not been the subject of a final judgment.
[7]AB & EF v CD [2017] VSC 350 [10]; EF v CD [2017] VSC 351 [4].
Moreover, it might be doubted that applications of the present kind could ever be the subject of a final judgment so as to prevent fresh applications being made on proper material as it may exist from time to time. It follows that we reject CD’s contentions in so far as they relied upon res judicata.
Similarly, we are not persuaded that the present applications involve any abuse of process. Initially, CD proposed to do no more than send letters containing relevant information to seven named persons. It was not argued whether there should be widespread publication of this information to the media or more generally. That issue has now arisen following the revocation of special leave and the publication of the High Court’s reasons for revoking special leave. In the changed circumstances that have arisen, we are unable to discern any abuse of process or any basis for identifying an Anshun estoppel. The applications for non-publication orders fall to be determined on the evidence now filed in relation to the merits of those applications. We turn now to that question.
The question whether a permanent non-publication order relating to EF’s real name and image should be made is not free from difficulty. There are serious competing considerations that need to be resolved in order to determine whether a permanent non-publication order should be made.
A number of preliminary matters may be stated. First, by virtue of s 4 of the Open Courts Act, in determining whether to make a suppression order, there is a presumption in favour of disclosure of information to which the Court must have regard. The definition of ‘suppression order’ extends to orders made in the inherent jurisdiction of the Court.
Secondly, for reasons that will become apparent, the applications before the Court require the undertaking of a balancing exercise which has regard, not only to the presumption just mentioned but to the proper administration of justice and risks to the safety of EF, her children and other persons.
Thirdly, the state of the evidence is that [*Redacted]. To that extent, the applications rest on a speculative assumption. However, we will proceed on the assumption that [*Redacted].
Finally, s 18(1) of the Open Courts Act empowers this Court to make a non-publication order of the kind sought by AB and EF only if the order is ‘necessary’ to effect one of the purposes set out in the section. In the present case, the order can only be made if it is ‘necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means’ or ‘necessary to protect the safety of any person’. As has been said many times before, the word ‘necessary’ imposes a high standard of satisfaction.[8] It is not satisfied by merely establishing that it would be reasonable to make an order for one of the purposes identified in the Act.
[8]See, eg, DPP (Cth) v Brady (2015) 252 A Crim R 50, 60 [59] (Hollingworth J).
Turning first to s 18(1)(a) of the Open Courts Act, in our opinion it is impossible to say that it will be necessary, to prevent a real and substantial risk of prejudice to the proper administration of justice, to prevent the Royal Commission from publishing the name and image of EF as it proposes to do, or to prevent wider dissemination of EF’s name and image to the public. To the contrary, such publication is calculated to ensure, to the greatest extent possible, that the administration of justice is advanced by identification of cases which may have been affected by EF’s conduct. We accept the submissions of CD, the Commonwealth DPP, the media parties and the amici in that regard.
If this were an ordinary case involving the issue of whether there ought be a prohibition on publishing the name of a police informer then ordinary principles would tend to support the making of a non-publication order. The present case, however, is no ordinary case. As the High Court put it:
EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the Court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system.[9]
[9]AB v CD [2018] HCA 58 [10].
There is a high public interest in permitting the Royal Commission to conduct a detailed and thorough analysis of all of the matters underlying the conduct which EF and Victoria Police are alleged to have engaged in. Equally, there is a high public interest in the Royal Commission being able to do its job in a way that will throw light on the question of whether convictions for serious criminal offences that resulted in significant periods of incarceration can be permitted to stand. Any and all of such convictions need to be identified. That includes convictions in summary proceedings for which neither the DPP nor the Commonwealth DPP had responsibility. We accept that it is necessary, in order to maximise the prospect of identifying persons whose cases may have been affected by EF’s conduct, that the Royal Commission publish details of her name and image in the course of seeking information and submissions from the public.
Acceptance of the Royal Commission’s submission that it ought to be able to publish EF’s real name and image as part of a notice to the public inviting information and submissions, as an exception to any non-publication orders otherwise sought by AB and EF, encompasses the possibility of notices being published by the media in publications that would, outside those notices, not be permitted. Once that proposition is accepted, it becomes plain that a non-publication order with an exception that permits the Royal Commission to do its job will be both ineffective and unenforceable. No Court should make orders of that kind. Moreover, the order sought would impede CD in approaching the public seeking information about persons whose cases were affected. Section 18(1)(a) is therefore not satisfied.
We then consider s 18(1)(c). There is no doubt that EF is at considerable risk (and that her children are likely to also be at risk) as a result of her activities as a police informer. That risk presently arises because the fact of EF being an informer is already in the public domain, and a significant section of the community (including people with serious criminal convictions) know her real name and would recognise images of her. Additionally, it must also be noted that anyone with an interest in knowing EF’s real name, or obtaining an image of her, can, by the rudimentary use of a computer, do so with very little effort.
Refusing a permanent non-publication order relating to EF’s real name and image will likely result in a substantial increase in publications about her in the short to medium term. Many people who do not know her real name or who would not be able to recognise her will learn her real name and gain the ability to recognise her. That said, it is highly likely that those with the most interest (or perhaps merely any interest) in doing her harm already know her real name.
The assessment of the risk to EF and her children of publication (or wider publication) of the fact that she was a police informer in respect of some of her clients involves, to some extent, an element of speculation. There is no doubt that a number of people with convictions for serious offending have known for some time about the activities of EF. To date, notwithstanding opinions expressed by relevant senior police officers that if the disclosures CD wished to make to convicted persons were made then the risk of death to EF would become ‘almost certain’,[10] there is no evidence of any actual attempt having been made to harm EF or her children. That is not to downplay the obvious risks involved with publicity (and further publicity) in this case. What must be steadily kept in mind, however, is that the opinions relied upon by AB and EF in support of their applications, while important, are merely probability assessments of possible future events and cannot be determinative of the results of AB and EF’s applications.
[10]Ibid [2].
In these circumstances, we are not satisfied that the orders sought are necessary to protect the safety of EF or her children. [*Redacted]. That risk must be evaluated in light of the evidence of the wide knowledge of EF’s real name and personal details while she has been living in Melbourne, where her conduct as a police informer took place and those affected by it are most likely to reside.
Put shortly, we are not persuaded that publication of the kind we foresee following the lifting of the current non-publication order in relation to EF’s identity and image, even if it is as extensive and widespread as AB contends it will be, will materially increase any risk to EF’s safety such that it is necessary to now make a permanent non-publication order.
Even if we were satisfied that the order was necessary for the purpose in s 18(1)(c), we would not make the order because we consider that, at least in relation to that paragraph, s 18(1) imports a discretion. Relevant to the exercise of that discretion are the powerful countervailing considerations regarding the proper administration of justice to which we have referred. In other words, we reject the submission that, if it were to be established that it was necessary to protect the safety of any person that the Royal Commission be restricted from publication of EF’s name and image, then the Court would be obliged to make such an order under s 17 of the Open Courts Act irrespective of any counterbalancing considerations. The analogy with other statutory provisions sought to be drawn by AB is inapt because the cases in question turned only on the equivalent of s 18(1)(a). They say nothing about a provision regarding safety of a person such as s 18(1)(c). Moreover, the suggested construction sits uneasily with the presumption in s 4. It is unnecessary to decide whether the suggested analogy is properly made in respect of s 18(1)(a), because, as we have said, we do not regard that provision as satisfied.
[*Redacted].
Nevertheless, our earlier conclusions set out in these reasons mean that we are not satisfied by reference to the grounds in s 18 of the Open Courts Act that it is necessary to make an order prohibiting the publication of EF’s name or image, with the result that s 17(b) is not applicable. [*Redacted].
[*Redacted].
[*Redacted].
[*Redacted].
The audio recordings are in a slightly different position but our conclusions are the same. The Royal Commission expects the recordings to play a central part in the evidence before the Commission and wishes to play them, in whole or in part, during its hearings, subject to deciding at a later time whether to prohibit or restrict their publication under s 26 of the Inquiries Act. We accept the submission that transcripts would be an inadequate substitute. In our opinion it has not been established that an order prohibiting publication of the audio recordings is necessary for the purposes in s 18 of the Open Courts Act. [*Redacted]. Given our conclusions as to EF’s name and image, it would be anomalous in those circumstances to make an order in respect of the audio recordings.
Finally, in relation to EF’s application for a permanent non-publication order in relation to the details of her treating medical practitioners, medical matters and her children, we would make two observations. First, at present, there is no threatened publication in relation to any of these matters. Secondly, the Court has already made orders redacting the matters in question from its reasons and those of the primary judge, and from documents that may be inspected on the Court’s file.
That said, at present we are unable to see any legitimate public interest in the publication of the identities and details of EF’s children in connection with the subject matter of the proceedings. The same may not necessarily be the case, however, in relation to EF’s medical history or treatment. It may be that in the course of an inquiry into EF’s conduct that such matters will become relevant. Even so, there is no reason for supposing that the public interest in disclosure of these matters will have anything like the same weight as the public interest in publication of EF’s name and image, as already discussed.
In circumstances where there is no identified likelihood of publication of the kind sought to be prohibited, and given the redactions already made, we are not persuaded that an order is necessary under s 18(1)(c) of the Open Courts Act. In relation to the safety of the medical practitioners, it was submitted that it was feared that a person might forcibly obtain access to their files in order to identify EF’s whereabouts. This is a matter of speculation and we are unable to be satisfied as to the necessity for the orders sought. [*Redacted].
[*Redacted].
We are therefore not prepared to make an order on the present material in these proceedings that prohibits the publication of the details of EF’s treating medical practitioners and medical matters or the names or images of her children, in connection with the subject matter of the proceedings.
Conclusion
AB’s application and EF’s application for non-publication orders will be refused, [*Redacted].
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.
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