Alpert v Commonwealth of Australia (Department of Defence)
[2023] FCA 784
•11 July 2023
FEDERAL COURT OF AUSTRALIA
Alpert v Commonwealth of Australia (Department of Defence) [2023] FCA 784
File number: VID 161 of 2023 Judgment of: SNADEN J Date of judgment: 11 July 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for non-publication orders pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) – where statement of claim particularised identities of the complainant and witnesses to an historical allegation of a sexual offence – whether non-publication order necessary to protect against prejudice to the proper administration of justice – whether the administration of justice is prejudiced by concerns that prospective complainants’ identities might be disclosed – consideration of principles of open justice – consideration of competing interests – orders made Legislation: Defence Force Discipline Act 1982 (Cth)
Federal Court of Australia Act 1976 (Cth) Pt VAA – ss 37AA, 37AE, 37AF, 37AG
Cases cited: AA v BB (2013) 296 ALR 353
Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278
Clark v Digital Wallet Pty Ltd [2020] FCA 877
Naude v DRA Global Limited [2023] FCA 493
Porter v Australian Broadcasting Corporation [2021] FCA 863
PPP v QQQ (as the representative of the Estate of RRR (deceased)) [2011] VSC 186
R v Kwok (2005) 64 NSWLR 335
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 11 July 2023 Counsel for the Applicant: Dr D.H. Denton AM RFD KC with Mr A.D.H. Denton Solicitor for the Applicant: HopgoodGanim Lawyers Counsel for the Respondents: Mr R. Knowles KC with Mr D. McCredden Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 161 of 2023 BETWEEN: STEWART WAYNE ALPERT
Applicant
AND: COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE)
First Respondent
COL RUSSELL PEARCE
Second Respondent
COL EVAN CARLIN (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
11 JULY 2023
THE COURT ORDERS THAT:
1.Until further order and pursuant to s 37AF(1)(b) of the Federal Court of Australia Act 1976 (Cth), the publication of information revealing, or tending to reveal, the identity of the person referred to as ‘the complainant’ in paragraph 5(b) of the Applicant’s amended statement of claim dated 20 April 2023 is hereby prohibited.
2.Order 1 is made on the ground specified in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).
3.The matter be adjourned to a case management hearing to commence at 9:30am on Tuesday, 19 September 2023.
4.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The applicant is a former member of the Australian Defence Force. In 2004, he was acquitted of charges that were brought against him under the Defence Force Discipline Act 1982 (Cth) (the “DFD Act”). By an originating application filed in this court on 16 March 2023, he moves for declaratory and other relief in connection with his acquittal and the manner in which the charges against him were pressed. The respondents are the Commonwealth and various officers who were involved in the process that culminated in the acquittal.
The charges of which the applicant was acquitted are the subject of elaboration in his amended statement of claim dated 20 April 2023. They involved allegations that the applicant had raped a young woman on a beach in Thailand in September 2001. By his pleading, the applicant identifies the nature of the charges that were laid against him, and the circumstances in which they came to be formulated and investigated. In the process, his pleading identifies by name the woman from whom the allegations originated (to whom I shall refer hereafter as the “Complainant”) and the witnesses from whom testimony was received in connection with them (to whom I shall refer hereafter as the “Relevant Witnesses”). It is apparent that he has done so in an orthodox way, merely in the interests of faithfully reciting the charges of which he was acquitted and the evidence with which he was furnished. The identities of those referred to are not said to be material to the matters with which the court is now seized.
On 29 June 2023, the first respondent, the Commonwealth, filed an interlocutory application for orders under Pt VAA of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”); more specifically, for a non-publication order under s 37AF(1) to prohibit the publication of information that tends to reveal the identity of the Complainant or any of the Relevant Witnesses. It moves for those orders on the basis that they are necessary to prevent prejudice to the proper administration of justice.
In support of its application, the Commonwealth read three affidavits, namely:
(1)an affidavit affirmed by Brigadier Garth Gould on 29 June 2023; and
(2)two affidavits affirmed by its instructing solicitor, Ms Anna English—one on 29 June 2023 and the other on 10 July 2023.
The first of Ms English’s affidavits was the subject of minor objection, which was resolved in the usual way. At the hearing of the application, leave to cross-examine Ms English was refused for reasons then given. The parties otherwise relied upon helpful written submissions, for which I record the court’s gratitude.
The application was heard on Tuesday, 11 July 2023. At its conclusion, I made orders partially in the form proposed by the Commonwealth and gave very brief oral reasons for doing so. Given the nature of the orders that were made—and, in particular, their application to persons extending beyond the parties to the present matter—I indicated an intention to publish more fulsome reasons. That intention is fulfilled by what follows.
The applicable legislative framework may shortly be stated. Part VAA of the FCA Act is entitled “suppression and non-publication orders”. Section 37AF confers upon the court a power to make what are styled “non-publication order[s]”. The section provides as follows, namely:
37AF Power to make orders
(1) The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b) information that relates to a proceeding before the Court and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Court.
(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
A “non-publication order” is “…an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”: FCA Act, s 37AA. In context, to “publish” information is to:
…disseminate [it] or provide access [to it] to the public or a section of the public by any means, including by:
(a)publication in a book, newspaper, magazine or other written publication; or
(b)broadcast by radio or television; or
(c)public exhibition; or
(d)broadcast or publication by means of the internet.
(FCA Act, s 37AA).
The court is empowered to make a non-publication order on any one or more of the grounds identified in s 37AG(1) of the FCA Act. That section provides as follows, namely:
37AG Grounds for making an order
(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(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 party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
In deciding whether to make a non-publication order, the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: FCA Act, s 37AE.
I recently had occasion to survey the authorities that establish the principles that govern applications such as this one. In Naude v DRA Global Limited [2023] FCA 493, [13]-[15], I made the following observations, namely:
In R v Davis (1995) 57 FCR 512 (Wilcox, Burchett and Hill JJ), this court observed (at 514):
Whatever their motives in reporting, [the media’s] opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.
The exclusion of public access to the processes with which a court deals is only to be effected in exceptional cases: The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377, 379 [8] (Allsop CJ, Wigney and Abraham JJ; hereafter “Country Care Group”); David Syme & Co v General Motors-Holden’s Ltd [1984] 2 NSWLR 294, 299 (Street CJ), 307 (Hutley AP, Samuels JA agreeing). In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131, Kirby P (in dissent but not on this issue) said (at 142-143):
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms… A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.
It is well accepted that “…mere embarrassment, inconvenience or annoyance will not suffice to ground an application for suppression or non-publication”: Keyzer v La Trobe University (2019) 165 ALD 93, 99 [29] (Anastassiou J). It is a feature of open justice that those to whom court processes refer may thereby suffer embarrassment or distress; but “…that is a price the community has to pay for the undoubted benefit of court proceedings being, except in very exceptional circumstances, conducted in public”: Williams v Forgie (2003) 54 ATR 236, 239 [14] (Heerey J).
By its written submissions in favour of relief, the Commonwealth contends—and I accept—that prejudice to the proper administration of justice might arise not merely in connection with the present matter but also with respect to prospective or future matters. As much has been reflected in decisions of this court, including in matters involving the supply of information from alleged victims of unlawful conduct.
Presently, the Commonwealth presses for relief on the footing that it is necessary to:
(1)prevent undue distress and embarrassment for the Complainant; and
(2)preserve or not harm the confidence of other complainants—including prospective complainants—that their identities will not publicly be disclosed in the event that their complaints become the subject of litigation.
In respect of both considerations, the Commonwealth makes much of so-called (and perhaps inaptly described) “victims’ privacy” legislation enacted in each State and Territory, which proscribes publication of information identifying complainants in sexual offence proceedings. It is unnecessary that I should recite that legislation now; it suffices to acknowledge what is submitted: namely, that such legislation exists, apparently to protect from public view the identity of those who were or who claim to have been the victim of sexual offending. Underlying that legislation is said to be a public policy of encouraging alleged victims to seek justice; an outcome that is achieved by “…lessening the fear of public humiliation and degradation that might follow upon a complaint of that nature being revealed to the public at large”: R v Kwok (2005) 64 NSWLR 335, 344-345 [33] (Howie J with whom Hodgson JA agreed at 342 [18], [21]).
It is accepted for present purposes that s 37AG(1)(d) of the FCA Act is unlikely to have any present application (and it is not, in any event, the basis upon which the Commonwealth presses for relief). As much follows, in short, from the fact that the events with which the applicant was charged occurred outside of Australia and that the charges that were laid against him were not the subject of prosecution in a court.
Instead, the Commonwealth presses for relief on the basis that it is necessary to prevent prejudice to the proper administration of justice. Relief as sought is said to be necessary in order to avoid the risk that complainants in other matters might be dissuaded from making and prosecuting complaints such as those that were levelled (albeit unsuccessfully) against the applicant.
The applicant opposes the relief for which the Commonwealth moves. He posits that the Complainant is not an alleged victim of a sexual offence, in that the charges that were laid against him failed and were not, in any event, prosecuted in a court. He describes as “irrelevant speculation” the notion that a non-publication order is necessary to preserve the confidence that prospective complainants might otherwise have that they will remain anonymous in the event that they choose to press a complaint.
Additionally, the applicant maintains that the proceeding brought against him under the DFD Act was a proceeding before a military tribunal and, as such, did not engage with what falls within an orthodox construction of “the administration of justice”.
With respect, there is an air of unreality to the applicant’s first two contentions. The Complainant is an alleged victim of sexual offending. So to observe is not to ignore or downplay the applicant’s acquittal. It merely recognises the nature of the complaint that was made against him; in other words, the nature of what the Complainant alleged.
Similarly, I require little persuading that alleged victims of sexual assault might have cause to think twice about airing their complaints—in any form and in any jurisdiction—if faced with the prospect that they might publicly be identified upon doing so. Such identification—and, in particular, the identification of a complainant whose allegations were dismissed or otherwise failed—would, I think quite plainly, serve to undermine the obvious preference for anonymity by which prospective complainants are inevitably guided. It is, equally plainly, the existence of that undoubted, collective preference that serves as the policy rationale that underpins the suite of “victims’ privacy” legislation to which reference has already been made.
The propositions just stated were met with muted, if any opposition and, with respect, rightly so. This would not be the first time that a court should recognise what is inherent within them. In AA v BB (2013) 296 ALR 353, 389 [182], Bell J recognised that:
Making a non-publication order may be necessary in cases where, in the absence of an order, parties would be deterred from bringing proceedings for the vindication of their legal rights, such as cases involving victims of blackmail, negligence or sexual assault where the person would suffer public ridicule or acute personal embarrassment if his or her identity were to be disclosed in legal proceedings...
(references omitted)
Dixon J made an equivalent observation in PPP v QQQ (as the representative of the Estate of RRR (deceased)) [2011] VSC 186, [34], namely:
Commonly, parties might be deterred from bringing or concluding proceedings unless public disclosure of their identities could be prevented or because part of the injury complained of may be exacerbated by public disclosure. Thus, it is regarded as being necessary in the interests of the proper administration of justice that orders be made to encourage such plaintiffs to litigate their allegations, seek redress through the courts and, in proper cases, do so without unreasonable risk of aggravation of their injuries…
So, too, has this court been moved to recognise the point of principle. In Porter v Australian Broadcasting Corporation [2021] FCA 863 (hereafter “Porter"), Jagot J observed (at [84]):
…The administration of justice may be prejudiced in a variety of ways. If, for example, people cannot come to a court confident that some kinds of information can be protected from disclosure if necessary (such as commercially confidential information valuable to a person or a third party, or sensitive information about a person’s health, or personal information about parties or third parties of no more than prurient interest to others) then public confidence in and access to justice may itself be undermined.
Equivalent observations have been made in this court in connection with the disclosure of sensitive commercial information: Clark v Digital Wallet Pty Ltd [2020] FCA 877, [21] (Abraham J). In Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278, Katzmann J observed (at [148]):
It is in the interests of the proper administration of justice that the value of confidential information not be destroyed or diminished. Otherwise, the parties and members of the public might lose confidence in the Court and the Court’s processes “might open the way to abuse”…
Similarly, it is in the interests of the proper administration of justice that the preference for anonymity that logically attends the making of sexual assault complaints be safeguarded. To an undoubtedly large degree, that is achieved by the “victims’ privacy” legislation to which reference has already been made. But so to acknowledge is not to doubt that those who might otherwise be minded to agitate sexual offence complaints may be dissuaded from doing so by the lawful identification of other alleged victims. It is for that reason that the forum in which the Complainant’s allegations were ventilated (and in which the applicant was acquitted of the charges that were laid in consequence of them) is irrelevant. It is the real prospect of dissuasion of others that sounds as prejudice to the proper administration of justice; and it is in respect of that prejudice that relief under s 37AF(1) of the FCA Act is necessary.
Relief of that kind calls for a balancing of competing interests, each of which informs how justice might properly be administered. On the one hand, the court must guard as jealously as is reasonably possible the public interest in open justice: FCA Act, s 37AE. On the other, it must ensure that prospective complainants not be dissuaded from prosecuting their grievances by the prospect of public identification.
Here, the identity of the Complainant is not central to the applicant’s claims. It appears to be, as Jagot J put it in Porter, of no more than prurient interest to others. The public interest in open justice—important as it plainly is—will not be materially prejudiced by orders that preserve her relative anonymity.
I am (and was), then, satisfied that it is necessary to prevent prejudice to the proper administration of justice to prevent the publication of information that tends to reveal the Complainant’s identity.
The position with respect to the Relevant Witnesses is different. The only apparent justification for preserving their anonymity is that doing so is necessary to preserve that of the Complainant. It is not apparent to me how their potential exposure as authors of statements that were prepared in connection with the applicant’s general court martial proceeding that occurred pursuant to the DFD Act nearly twenty years ago might reveal, or tend toward revealing, the Complainant’s identity; at least not to those who don’t already know it. I am unable to see how it might and, for that reason, do not (and did not) consider that relief of the kind sought is or was necessary to protect against prejudice to the proper administration of justice.
The above serves to determine the Commonwealth’s interlocutory application of 29 June 2023. As agreed between the parties, the matter will be the subject of a case management hearing on Tuesday, 19 September 2023.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 11 July 2023
SCHEDULE OF PARTIES
VID 161 of 2023 Respondents
Fourth Respondent:
COL CRAIG MCCONAGHY
Fifth Respondent:
LT COL GLEN BABINGTON
Sixth Respondent:
LT GEN MARK EVANS
Seventh Respondent:
COL GARY HEVEY
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