B v Australian Crime Commission (No 2)
[2005] FCA 1368
•16 SEPTEMBER 2005
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
APPLICANTAND:
AUSTRALIAN CRIME COMMISSION
RESPONDENTJUDGE:
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)
APPLICANTAND:
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 the effect that disclosure of information about the summons is prohibited excepted in certain circumstances. Section 29B establishes an offence for contravening the terms of such a notation. Section 29A relevantly provides:
‘29A Disclosure of summons or notice etc. may be prohibited
(1)The examiner issuing a summons under section 28 or a notice under section 29 must, or may, as provided in subsection (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation.
(2)A notation must not be included in the summons or notice except as follows:
(a)the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice:
(i)the safety or reputation of a person; or
(ii)the fair trial of a person who has been or may be charged with an offence; or
(iii)the effectiveness of an operation or investigation;
(b)the examiner may include the notation if satisfied that failure to do so might prejudice:
(i)the safety or reputation of a person; or
(ii)the fair trial of a person who has been or may be charged with an offence; or
(iii)the effectiveness of an operation or investigation;
(c)the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest.
(3)If a notation is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice.’
The summons served on the applicant contained a notation under s 29A. The proceedings when first instituted described the applicant as ‘B’. By consent on 24 June 2005, an order was made that the name describing the applicant be changed from ‘B’ to his full name on all documents filed in the Court to that date.
The circumstances in which the order of 24 June 2005 came to be made is clear enough. Upon receipt of the summons, solicitors for the applicant on 30 May 2005 wrote to the respondent (inter alia) pointing out that the institution of the then proposed proceedings as things then stood was not possible in the face of the notation on the summons and s 29B of the ACC Act. They asked that a new summons without a notation under s 29A(1) of the ACC Act be issued, or one which permitted the applicant to make such disclosure as was necessary or expedient to institute the proposed proceedings. The respondent on 22 June 2005 informed the applicant through his solicitors of the removal from the summons of the notification under s 29A prohibiting disclosure of the summons.
The matter next came on for directions on 11 July 2005. On that date, the applicant sought, and was granted on an interim basis for a short period, an order suppressing from publication his name or any information tending to identify him. That interim order has been renewed from time to time up to the judgment on 16 September 2005.
On 15 July 2005, at the request of the applicant, the examiner re-inserted a notation on the summons in the following terms:
‘Pursuant to subsection 29A(1) of the Australian Crime Commission Act 2002, disclosure of information about this summons, or any official matter connected with it, is prohibited except to the Federal Court of Australia for the purposes of any application challenging the validity of the summons, in which case the applicant’s name is to be suppressed and referred to a “B”, and to the Attorney Generals of the State and/or Commonwealth for the same reason and where section 29B of the Act does not prevent such disclosure.’
It is not suggested by the Australian Crime Commission that the Court is bound to comply with the examiner’s condition that the applicant’s name be suppressed.
Section 50 relevantly empowers the Court to forbid or restrict publication of the name of a party as appears to the Court to be necessary in order to prevent prejudice to the administration of justice. It is necessary to balance the general principle of open justice against the interests of the administration of justice in a particular matter, as sometimes open justice will or may frustrate or impede the administration of justice: see per Bowen CJ in Australian Broadcasting Commission v Parish (1980) 43 FLR 129. The administration of justice may be frustrated or impeded if the public interest in doing justice between the parties is itself frustrated or impeded, for instance if the confidentiality of private and valuable commercial information is disclosed.
No exclusive or comprehensive list of the factors or matters which are encompassed within the public interest of doing justice between the parties so that a confidentiality order should be made is possible. Each case will turn on its own facts and circumstances. In E v Australian Red Cross Society (1991) 27 FCR 310 the Court took into account the prejudice and embarrassment to the applicants and their families which might arise from publicity given to the proceedings. See also Versace v Monte [2001] FCA 1565 at [8] – [9]. I accept that in certain circumstances the prejudice or embarrassment to an applicant by identifying that person’s name may be a relevant factor to the Court’s assessment of whether the public interest in doing justice between the parties should lead to the suppression of that person’s name, and may lead to a suppression of that person’s name.
The applicant did not seek to have the hearing in private. It was conducted in public. It did not seek to have the material relied upon to identify and address the issues kept confidential. His present application was limited to having the name of the applicant suppressed from publication.
The public interest in doing justice between the parties is put forward by the applicant as one warranting, from its perspective, the suppression order sought. Clearly Part II Div 2 of the ACC Act provides an examination regime which – when necessary – will be confidential. The examination is conducted in private; limited persons are allowed to attend: s 25A(3); and the examiner may give directions that certain information be confidential: s 25A(9). As noted s 29A empowers the examiner to include on a summons a notation prohibiting disclosure of it except in certain specified circumstances. Section 29B(1) fortifies that power, when exercised, by making disclosure contrary to such a notation a criminal offence.
Section 29A contemplates circumstances in which the examiner must include a notation on the summons, and circumstances in which the examiner may do so: see subsections (2)(a), (b) and (c). There is nothing before the Court to indicate that the examiner formed the view that the summons necessarily should bear the notification, as prescribed by s 29A(2)(a). I infer the examiner did not form that view because, at a certain point, the examiner was prepared to remove the notification originally placed on the summons.
Section 29A(2)(b) and (c) then provide the circumstances in which the examiner may include the notification on the summons. The preparedness of the examiner to remove the notification on 22 June 2005, and the absence of any submission (or evidence) from the respondent that the disclosure of the applicant’s name might prejudice the effectiveness of the investigation, leads me to the view that the foundation for the initial notification was the reputation of the applicant. Nothing has been put forward to sugges that his safety might be at risk. There is no suggestion that his conduct is or might be criminal. As I have elsewhere remarked, a summons under s 28 may be directed at any person who may have information relevant to an investigation. Such a person may be a banker, a solicitor, an accountant or a range of other persons whose conduct is itself of no interest to the examiner, but a person who – for whatever reason – may have documentary or other material sought by the examiner. Nor is it suggested that any other public interest of significance was relevant to the examiner’s decision to include the notation: s 29A(2)(c).
The present application relies upon the current notation on the summons and two affidavits of 13 July 2005 and 16 September 2005 of the solicitor for the applicant indicating the position of the applicant. He is a practising solicitor of long standing, specialising in the provision of commercial advice and taxation advice to member of Australia’s entertainment industry, apparently including ‘high profile artists…media personalities and industry executives.’ Subsequent to the order of 24 June 2005 which exposed the name of the applicant, the fact of the principal proceedings and the name of the applicant received substantial publicity. A number of newspaper articles have been published referring to the summons, and to the nature of the investigation by the respondent to which it refers. The applicant has been contacted by a number of persons who have previously referred clients to him about ‘his involvement in the Australian Crime Commission investigation’, and by several clients who have no connection with the investigation expressing concern that they may be related to it by reason of their association with the applicant. One charitable body of which the applicant is a board member has asked him to temporarily step down to ameliorate its ‘concern that there may be direct or indirect implication’ of their body.
The asserted damage to the reputation and to the business of the applicant by disclosure of his name must be seen at two levels. The first is simply the disclosure of his name as a person summonsed under s 28. His name is already in the public arena. It is in the public arena with his consent. The fact that he has been summonsed does not tend to suggest any suspected impropriety on his part. He is a professional person who is believed to have information relevant to an examination. The information may or may not concern a particular client or clients. He may not have the information sought. He is entitled to decline to answer questions which may disclose a privileged communication: s 30(3). There is, in the circumstances, in my view no real foundation for any reasonably informed person thinking the less of the applicant, or doing so in a way which might impair his professional business, to the extent that the balancing required by s 50 falls in favour of making the suppression order sought. I have not overlooked the attitude of the charitable body in reaching that view. Its view may have been coloured by the nature of the publicity given to the summons rather than to the fact of the summons. It may reflect an oversensitive reaction to the fact of the summons. At the first level, I do not think it moves the balance of the discretion in favour of making the order sought.
The second level at which consideration is necessary arises from the fact that the media publicity drawn to my attention is said by senior counsel on the applicant’s behalf to be unfair and inaccurate. It is certainly correct that the media articles to which my attention has been drawn are, in some respects, florid. I express no view as to their accuracy. However, I do not think it appropriate in this instance to make the order sought because of the colour of the reporting to date. It is inappropriate to assume that publication of the applicant’s name will be in the context of aspersions about his character or his role in the conduct the subject of the examination. As I have said, the summons does not provide any foundation for doing so. The applicant is a professional person asked to provide information to the examiner. There may be many other professional persons who have already done so under a summons issued under s 28 of the ACC Act. The applicant’s attacks upon the validity of the summons and of the ACC Act itself are attacks based upon legal principle. Every citizen is entitled to take such action when confronted with the exercise of executive power. It would be a big step to conclude generally that the citizen exercising that right should be anonymous because the media, in reporting of the exercise of that right, might inaccurately or inappropriately ascribe to the citizen certain improper conduct which is not express or implicit in the application. The applicant has available to him the normal remedies of the civil law in the event that media reporting of the summons exceeds the proper boundaries. However, I think that something more is necessary in the particular circumstances of a case to warrant a suppression order in the interests of justice. I do not consider that any such additional factor has been made out here, notwithstanding the evidence of the applicant’s exposure after 24 June 2005. Indeed, importantly to the balancing exercise in this matter is the fact that the applicant’s name became public by the consent order of 24 June 2005 and remained in the public arena until the interim order made on 11 July 2005. In the light of that fact, having regard to all that was put on behalf of the applicant, I do not consider the interests of the administration of justice led to making the order sought. To paraphrase the words of Samuels JA in Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47 at 61, I do not consider that publication in the ordinary course of the name of the applicant would impede the fair resolution of the principal proceeding according to law.
The decision of the Full Court in Herald & Weekly Times Ltd v Williams (2003) 201 ALR 489 is, in my view, consistent with that conclusion. It is of course a decision on its own facts. In the present case, the statutory prescription of confidentiality of the examination under s 25A(3) is not necessary or only for the protection of the examiner, but in some instances will be for the protection of the integrity of the investigation of the respondent. Indeed that case reinforced the importance of the great public interest in adhering to an open system of justice: see per Merkel J (with whom Finn and Stone JJ agreed) at 498, quoting with approval the remarks of Kirby P in John Fairfax Group Pty Ltd (Receivers and Managers appointed) v Local Court (NSW) (1991) 26 NSWLR 131 at 142.
Finally, I do not consider that the terms of s 29B(1) of the ACC Act impose or declare a public policy always in favour of suppression of an examinee’s name in proceedings before the Court. That may be the common outcome when proceedings are instituted under an alias to give effect to a notation of a summons such as that now on the summons. Whether that procedure is correct is not a matter which presently calls for decision. But in this matter, once the notation was removed (as it was on 24 June 2005), the scope of s 29B(1) did not reach the proceedings as then named. The applicant’s name having then become public, the question for the Court is that now identified in the terms of s 50 of the Federal Court of Australia Act 1976. I have reached the view that it is not necessary in the interests of the administration of justice that, in all the circumstances, the name of the applicant should now be suppressed from publication.
For those reasons, I decline to make the suppression order as sought by the applicant.
I give the applicant leave to appeal from this interlocutory order, and extend to 28 days from the date of my decision the time within which any appeal may be constituted under O 52 r 15 of the Federal Court Rules. Upon the intimation of Senior Counsel for the applicant that the applicant will appeal promptly, to preserve his position, on an interim basis I 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.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield. Associate:
Dated: 20 September 2005
Counsel for the Applicant: P Faris QC and A Thomas Solicitor for the Applicant: Charlesworth Josem Partners Pty Ltd Counsel for the Respondent: S Maharaj Solicitor for the Respondent: Australian Crime Commission Counsel for The Herald & Weekly Times Ltd and Nationwide News Ltd: W T Houghton QC and R Enbom
Date of Hearing: 16 September 2005 Date of Decision: 16 September 2005 Date of Reasons for Decision: 20 September 2005
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