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 APPELLANTAND:
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
FIRST RESPONDENT
MARK GODFREY
SECOND RESPONDENTJUDGES:
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 APPELLANTAND:
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
FIRST RESPONDENT
MARK GODFREY
SECOND RESPONDENTJUDGES:
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…
Keep reading for free
Create a free CaseChat account to read Applicant Y v Australian Prudential Regulation Authority and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2005] FCAFC 222
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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.
1.
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.
2.
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.
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.