B v Australian Crime Commission (No 2) - [2005] FCA 1368

FEDERAL COURT OF AUSTRALIA
B v Australian Crime Commission (No 2) [2005] FCA 1368
PRACTICE AND PROCEDURE – suppression of applicant’s name – discretion under s50 of Federal Court of Australia Act 1976 (Cth) – relevance of provisions of Australian Crime Commission Act 2002 (Cth)
B v AUSTRALIAN CRIME COMMISSION (No 2)
NO VID 604 OF 2005
MANSFIELD J
20 SEPTEMBER 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

VID 604 OF 2005

BETWEEN:

B
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

16 SEPTEMBER 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application by the applicant for an order under s 50 of the Federal Court of Australia Act 1976 (Cth) suppressing from publication his name and anything tending to identify him is refused.
2.Leave to applicant to appeal the decision referred to in order 1 hereof.
3.Extend time to appeal from the decision referred to in order 1 hereof to 28 days from 16 September 2005.
4.Upon the intimation of Senior Counsel for the applicant that the applicant proposes to appeal and will do so promptly, to preserve the position on an interim basis, order that the name of the applicant and any information tending to identify him be suppressed from publication until 4.00 pm on 22 September 2005.
5.Liberty to apply.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

VID 604 OF 2005

BETWEEN:

B)
APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

20 SEPTEMBER 2005

PLACE:

ADELAIDE

REASONS FOR DECISION

I delivered judgment on the principal claim in this application on 16 September 2005.
At that time, the applicant sought a permanent order under s 50 of the Federal Court of Australian Act 1976 (Cth) suppressing from publication his name and anything tending to identify him. Interim orders to that effect had been made from time to time during the course of these proceedings. The application was opposed by The Herald and Weekly Times Ltd and Nationwide News Ltd (‘the newspapers’), to whom leave was given to appear without objection. The respondent made brief submissions about the operation of relevant provisions of the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’), but adopted a neutral position on whether the suppression order sought should be made.
I rejected the application for a suppression order as sought. These are my reasons for that decision.
On 10 May 2005 the respondent served on the applicant a summons under s 28(1) of the ACC Act to attend before an examiner to give evidence in relation to certain matters. The principal proceeding unsuccessfully challenged the validity of the ACC Act, in particular s 4A, and the validity of the summons.
Under s 29A of the ACC Act the examiner issuing a summons under s 28 is empowered, and in certain circumstances compelled, to include a notation on the summons to…

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] FCA 1368
Decision Date: 16 SEPTEMBER 2005

CaseChat Overview and Summary

In the case of B v Australian Crime Commission (No 2), the applicant sought to suppress his name and any information that might identify him from being published. The dispute arose under the Federal Court of Australia Act 1976 (Cth) and the Australian Crime Commission Act 2002 (Cth). The applicant argued that the suppression of his identity was necessary to protect his rights and interests as per section 50 of the Federal Court of Australia Act 1976 (Cth). The court was required to determine whether the applicant's request for suppression was justified under the law and whether the provisions of the Australian Crime Commission Act 2002 (Cth) impacted the court's discretion in this matter.

The court examined the legal framework provided by both the Federal Court of Australia Act 1976 (Cth) and the Australian Crime Commission Act 2002 (Cth). It considered the balance between the applicant's right to privacy and the public's right to know, particularly in the context of criminal investigations and proceedings. The court also weighed the relevance of the provisions of the Australian Crime Commission Act 2002 (Cth) which may impact the court's discretion to suppress information. Ultimately, the court concluded that the applicant's request did not meet the threshold for suppression as per the law.

The court refused the application for suppression of the applicant's name and any information that might identify him from being published. It granted leave for the applicant to appeal the decision and extended the time to appeal to 28 days from 16 September 2005. The court also ordered that the applicant's name and any information tending to identify him be suppressed from publication until 4.00 pm on 22 September 2005, pending the outcome of any appeal. The final orders also included liberty to apply.

Orders

Orders of the court

1. The application by the applicant for an order under s 50 of the Federal Court of Australia Act 1976 (Cth) suppressing from publication his name and anything tending to identify him is refused.

2. Leave to applicant to appeal the decision referred to in order 1 hereof.

3. Extend time to appeal from the decision referred to in order 1 hereof to 28 days from 16 September 2005.

4. Upon the intimation of Senior Counsel for the applicant that the applicant proposes to appeal and will do so promptly, to preserve the position on an interim basis, order that the name of the applicant and any information tending to identify him be suppressed from publication until 4.00 pm on 22 September 2005.

5. Liberty to apply.

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

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	VID 604 OF 2005

BETWEEN:	B APPLICANT
AND:	AUSTRALIAN CRIME COMMISSION RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	16 SEPTEMBER 2005
WHERE MADE:	ADELAIDE

BETWEEN:	B) APPLICANT
AND:	AUSTRALIAN CRIME COMMISSION RESPONDENT

JUDGE:	MANSFIELD J
DATE:	20 SEPTEMBER 2005
PLACE:	ADELAIDE