Bartlett v Sage
[2010] FCA 954
•1 July 2010
FEDERAL COURT OF AUSTRALIA
Bartlett v Sage [2010] FCA 954
Citation: Bartlett v Sage [2010] FCA 954 Parties: PETER MERVYN BARTLETT
v
GE (TIM) SAGE, EXAMINER,
AUSTRALIAN CRIME COMMISSION and COMMISSIONER OF TAXATIONFile number: WAD 62 of 2010 Judge: SIOPIS J Date of judgment: 1 July 2010 Catchwords: PRACTICE AND PROCEDURE – whether an order under s 50 of the Federal Court of Australia Act 1976 (Cth) should be made in relation to an affidavit filed but not yet read in open court. Legislation: Federal Court of Australia Act 1976 (Cth) s 50
Federal Court Rules O 46 r 6(3)(a)Cases cited: Hogan v Australian Crime Commission (2010) 267 ALR 12 Date of hearing: 1 July 2010 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr BD Luscombe Solicitor for the Applicant: Cochrane Lishman Carson Luscombe Counsel for the First and Second Respondents: Mr P Macliver
Solicitor for the First and Second Respondents: Australian Government Solicitor
Counsel for the Third Respondent: Mr TP Burrows
Solicitor for the Third Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 62 of 2010
BETWEEN: PETER MERVYN BARTLETT
ApplicantAND: GE (TIM) SAGE, EXAMINER
First RespondentAUSTRALIAN CRIME COMMISSION
Second RespondentCOMMISSIONER OF TAXATION
Third Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
1 JULY 2010
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The exhibits to the affidavit of Peter Mervyn Bartlett sworn 3 June 2010, so far as they relate to the proceedings before the ACC, be placed in a sealed envelope until the hearing of this matter and marked that the envelope not be opened without leave of the Court.
2.The directions hearing be adjourned to 10:15 am on 17 August 2010.
3.Costs are in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 62 of 2010
BETWEEN: PETER MERVYN BARTLETT
ApplicantAND: GE (TIM) SAGE, EXAMINER
First RespondentAUSTRALIAN CRIME COMMISSION
Second RespondentCOMMISSIONER OF TAXATION
Third Respondent
JUDGE:
SIOPIS J
DATE:
1 JULY 2010
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application brought under s 50 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). The applicant, Mr Peter Mervyn Bartlett, seeks orders that, until the determination of the matter, the publication of Ex “C” to the affidavit of Mr Bartlett, sworn 3 June 2010, be restricted to the judges of the Court and the parties and their legal representatives.
The background is as follows. Mr Bartlett was summoned by the second respondent, the Australian Crime Commission (the Commission), by ACC Summons No S0515/09 to attend an examination. On 10 December 2009, Mr Bartlett was examined before the first respondent, an officer of the Commission, at the offices of the second respondent in West Perth. A transcript was made of the examination. Thereafter, an officer of the Commission made a decision to give a copy of the examination transcript to the third respondent, the Commissioner of Taxation. Mr Bartlett has commenced a proceeding in this Court wherein he seeks an order quashing the decision to give a copy of the examination transcript to the Commissioner of Taxation
On 24 June 2010, I made directions for the filing of affidavits in the main proceeding. It is pursuant to that direction that Mr Bartlett filed his affidavit sworn 3 June 2010, which is the subject of this application. I am advised by counsel for Mr Bartlett that Ex “C” to that affidavit is the transcript of the examination of Mr Bartlett. Of course, proceedings before the Commission are confidential.
In support of the application, counsel for Mr Bartlett contended that the confidentiality of the examination transcript was the very subject matter of the main proceeding brought by Mr Bartlett, and an order under s 50 of the Federal Court Act was necessary to protect the integrity of that proceeding. Counsel referred to the recent case of Hogan v Australian Crime Commission (2010) 267 ALR 12 (Hogan).
Section 50(1) of the Federal Court Act provides:
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 or the security of the Commonwealth.
Order 46 r 6(3)(a) of the Federal Court Rules (the Rules) is relevant in this context. Order 46 r 6(3)(a) provides as follows:
Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding:
(a)an affidavit (other than an affidavit mentioned in subparagraph (2)(l)(i)).
In Hogan, the non-publication orders under s 50 were initially made by the primary judge in respect of an exhibit to an affidavit, when, at a hearing in open court, Mr Hogan read the affidavit in support of his application for further and better discovery. The primary judge in Hogan drew a distinction between that situation, and the situation where a party, as in this case, has done no more than file an affidavit in anticipation of a subsequent hearing. At 21, at [40], the High Court endorsed that distinction, and observed:
Emmett J distinguished the situation respecting material on the file of the court but not tendered and admitted into evidence, and said that the interests of open justice were not engaged there and that leave under O 46 r 6(3) should not be granted in such a case. His Honour was correct in that conclusion. (Footnote omitted.)
It follows that in this case, open justice issues affecting s 50 of the Federal Court Act will not be invoked until such time as Mr Bartlett seeks to read the affidavit and the exhibits in open court. When that occurs, the question will arise as to whether it is necessary for the administration of justice to make orders under s 50 of the Federal Court Act protecting the non-publication of the information contained in Ex “C” of Mr Bartlett’s affidavit. Until such time, however, the operation of O 46 r 6(3)(a) of the Rules means that, except with the leave of the Court, persons other than the parties will not be able to inspect Mr Bartlett’s affidavit and its exhibits filed in this Court.
However, in order to better protect the confidentiality of the exhibits to the affidavit which relate to the proceedings before the Commission, pending the hearing, I will direct that Ex “C”, and any other exhibits to the affidavit containing information which relates to the proceedings before the Commission, should be placed in a sealed envelope until the hearing of this application and marked with a notation that it not be opened, save with the leave of the Court.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 1 September 2010
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