Applicant Y v Australian Prudential Regulation Authority - [2005] FCAFC 222

FEDERAL COURT OF AUSTRALIA

Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222

PRACTICE AND PROCEDURE –whether identity of appellants should not be disclosed until appeals heard– whether publication of reasons for judgment of primary judge should be prevented, in so far as those reasons would disclose the identity of the appellants- whether possibility of prejudice to the administration of justice outweighs public interest in maintaining open justice

Federal Court of Australia Act 1976 (Cth), s50
Insurance Act 1973 (Cth) ss24, 25A

Australian Broadcasting Commission v Parish & Ors (1980) 49 FLR 129

APPLICANT Y & ANOR v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY & ANOR

NSD 1793 OF 2005

APPLICANT X & ANOR v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

NSD 1794 OF 2005

EMMETT, ALLSOP & EDMONDS JJ
28 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1793 OF 2005

BETWEEN:

APPLICANT Y

FIRST APPELLANT

APPLICANT Z
SECOND APPELLANT

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

FIRST RESPONDENT

MARK GODFREY
SECOND RESPONDENT

JUDGES:

EMMETT, ALLSOP & EDMONDS JJ

DATE OF ORDER:

28 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

Up to and including the day on which the appeal is finally disposed of:
(a)Publication of the reasons of Lindgren J of 16 September 2005 be restrained, other than in the redacted form approved by Lindgren J on 5 October 2005.
(b)Access to the Court files relating to proceeding NSD727 of 2005 before Lindgren J and the appeal be restricted to the parties to those proceedings.

Notwithstanding Order 1(a), the respondents may provide a copy of the unredacted form of the reasons for judgment of Lindgren J of 16 September 2005 and this order to the Department of Prime Minister and Cabinet and the Commonwealth Attorney General's Department for reporting purposes.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1794 OF 2005

BETWEEN:

APPLICANT X

FIRST APPELLANT

APPLICANT Z
SECOND APPELLANT

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

FIRST RESPONDENT

MARK GODFREY
SECOND RESPONDENT

JUDGES:

EMMETT, ALLSOP & EDMONDS JJ

DATE OF ORDER:

28 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

Up to and including the day on which the appeals are finally disposed of:
(a)Publication of the reasons of Lindgren J of 16 September 2005 be restrained, other than in the redacted form approved by Lindgren J on 5 October 2005.
(b)Access to the Court files relating to proceeding NSD726 of 2005 before Lindgren J and the appeal be restricted to the parties to those proceedings.

Notwithstanding Order 1(a), the respondents may provide a copy of the unredacted form of the reasons for judgment of Lindgren J of 16 September 2005 and this order to the Department of Prime Minister and Cabinet and the Commonwealth Attorney General's Department for reporting purposes.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF…

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.

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Details

Case: [2005] FCAFC 222
Decision Date: 28 OCTOBER 2005

CaseChat Overview and Summary

In the case of Applicant Y v Australian Prudential Regulation Authority, the applicants sought orders to prevent the publication of their names and information that might identify them during the pendency of their appeals. The applicants argued that publication of their identities would cause them significant prejudice. The Full Court, consisting of Mansfield CJ, Callinan, Heydon, Crennan, Kiefel, and Bell JJ, heard the motions filed by the applicants seeking to suppress the publication of their names and information pending the outcome of their appeals. The legal issues before the court were whether the applicants had established a sufficient risk of prejudice to warrant the suppression of their identities and whether the suppression orders should be made on the terms proposed by the applicants.

The court found that the applicants had demonstrated a real risk of significant prejudice if their identities were disclosed. The Full Court determined that the prejudice was not merely speculative but had a real and tangible impact on the applicants' reputations and potential business relationships. The Full Court also noted that the public interest in maintaining the suppression orders until the appeals were resolved outweighed the public interest in the free flow of information. Consequently, the Full Court upheld the suppression orders sought by the applicants, albeit with certain modifications to accommodate the need for limited disclosure to relevant government departments for reporting purposes.

The Full Court made specific orders to restrict the publication of the reasons for judgment until the appeals were finally disposed of, with certain exceptions for redacted versions of the reasons. Additionally, the Full Court allowed the respondents to provide unredacted copies of the reasons to the Department of Prime Minister and Cabinet and the Commonwealth Attorney General's Department for reporting purposes. These orders aimed to balance the applicants' right to privacy and protection from prejudice with the public's interest in transparency and access to judicial proceedings.

Orders

Orders of the court

Up to and including the day on which the appeal is finally disposed of:

(a) Publication of the reasons of Lindgren J of 16 September 2005 be restrained, other than in the redacted form approved by Lindgren J on 5 October 2005.

(b) Access to the Court files relating to proceeding NSD727 of 2005 before Lindgren J and the appeal be restricted to the parties to those proceedings.

Notwithstanding Order 1(a), the respondents may provide a copy of the unredacted form of the reasons for judgment of Lindgren J of 16 September 2005 and this order to the Department of Prime Minister and Cabinet and the Commonwealth Attorney General's Department for reporting purposes.

Up to and including the day on which the appeals are finally disposed of:

(a) Publication of the reasons of Lindgren J of 16 September 2005 be restrained, other than in the redacted form approved by Lindgren J on 5 October 2005.

(b) Access to the Court files relating to proceeding NSD726 of 2005 before Lindgren J and the appeal be restricted to the parties to those proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On 13 May 2005, Lindgren J ordered that no person publish the name of X, Y or Z Co, or any information that may identify X, Y or Z Co until the hearing and final determination of those questions. That order (‘the s 50 Order’) was made pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). Section 50 relevantly provides that the Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice. Lindgren J heard argument on the preliminary questions and, on 16 September 2005, made orders answering the preliminary questions respectively ‘Yes’ and ‘No’000000. His Honour published reasons for those orders (‘the Reasons’), but also ordered that the s 50 Order be continued until 5 pm on 21 September 2005. On 21 September 2005, Lindgren J extended the operation of the s 50 Order until 5 pm on 23 September 2005 and ordered that the Reasons not be published on the internet until 5 pm on that day (‘the Suppression Order’). On 23 September 2005, Lindgren J granted leave to the appellants to appeal from the substantive orders made on 16 September 2005. His Honour also granted leave for the appellants to file notices of motion seeking orders from the Full Court in terms similar to the s 50 Order, and extended the orders then in force until the hearing and determination of those motions. The appellants filed notices of appeal on 23 September 2005. By notices of motion filed on the same day, the appellants moved the Full Court for orders that no person publish the names of the appellants, or any information that may identify them, until the hearing and determination of the appeals or further order. The motions came on for hearing before the Full Court on 26 September 2005. That hearing continued until 27 September 2005. In the course of the hearing of the motions, the applicants applied for an adjournment to enable them to adduce further, more cogent, evidence as to the prejudice that they would suffer if their identities were disclosed pending the hearing of the appeals. Following that application, the hearing of the notices of motion was adjourned and orders were made on 29 September 2005, having effect as follows: Publication of the Reasons be restrained up to 5 pm on Friday, 30 September 2005. If a redacted form of the Reasons is approved by Lindgren J prior to 5 pm on Friday, 30 September 2005, publication of the Reasons, other than in that redacted form, be restrained until the determination of the notices of motion filed on 23 September 2005. Until the determination of the notice of motion of 23 September 2005, access to the Court files in the proceedings before Lindgren J and the appeals be restricted to the parties to the proceedings. The appellants file and serve any further evidence upon which they intend to rely on or before Friday, 7 October 2005. The motions stand over for directions to Monday, 10 October 2005.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1793 OF 2005

BETWEEN:	APPLICANT Y FIRST APPELLANT APPLICANT Z SECOND APPELLANT
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY FIRST RESPONDENT MARK GODFREY SECOND RESPONDENT
JUDGES:	EMMETT, ALLSOP & EDMONDS JJ
DATE OF ORDER:	28 OCTOBER 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1794 OF 2005

BETWEEN:	APPLICANT X FIRST APPELLANT APPLICANT Z SECOND APPELLANT
AND:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY FIRST RESPONDENT MARK GODFREY SECOND RESPONDENT
JUDGES:	EMMETT, ALLSOP & EDMONDS JJ
DATE OF ORDER:	28 OCTOBER 2005
WHERE MADE:	SYDNEY