C v Australian Crime Commission - [2005] FCA 1736

FEDERAL COURT OF AUSTRALIA
C v Australian Crime Commission [2005] FCA 1736
C AND ORS v AUSTRALIAN CRIME COMMISSION
NSD 1358 of 2005
ALLSOP J
21 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1358 of 2005

BETWEEN:

C
FIRST APPLICANT

R
SECOND APPLICANT

D
THIRD APPLICANT

A
FOURTH APPLICANT

M
FIFTH APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

21 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The names of the applicants herein not be published.
2.The proceedings continue by the applicants in pseudonyms C, D, A and M respectively.
3.Confidential affidavits sworn by Kevin Patrick Considine on 16 November and 21 November 2005, exhibits KPC1 to KPC6 to the confidential affidavit of 16 November and the confidential exhibits to the affidavit of David Peter Rydon sworn 9 November 2005 (misstated on the first page as sworn on 9 October 2005) be and remain confidential and not be distributed or disclosed to any party.
4.The confidential affidavits and exhibits referred to in order 3 may, if no application for leave to appeal these orders is made, after 10 days from today, be returned to:
(a)as the Australian Crime Commission, all such material; and
(b)as to the applicants, only the exhibits to Mr Rydon's affidavit.
5.I note out of abundance of caution that no party other than the Australian Crime Commission shall have access to Mr Considine's confidential affidavits or exhibits KPC1 to KPC6.
6.The notice of motion filed on behalf of the applicants be stood over generally.
7.The amended notice of motion filed on behalf of Nationwide News Pty Ltd be dismissed.
8.Each party to pay its or their costs of all the notices of motion.
9.Subject to the views of the docket Judge the Australian Crime Commission raise with the Court the need for the continuation of these orders:
(a)If, in its view, the need for them ceases or changes; and
(b)In any event on or about the week commencing 1 May 2006.

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 1358 of 2005

BETWEEN:

C
FIRST APPLICANT

R
SECOND APPLICANT

D
THIRD APPLICANT

A
FOURTH APPLICANT

M
FIFTH APPLICANT

AND:

AUSTRALIAN CRIME COMMISSION
RESPONDENT

JUDGE:

ALLSOP J

DATE:

21 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me three notices of motion. The first was filed in Court last Thursday 17 November 2005 by the respondent to the proceedings, the Australian Crime Commission (“ACC”), seeking orders:
1.Pursuant to section 50 of the Federal Court of Australia Act that the names of the applicants herein and any information which may directly or indirectly identify them be forbidden from publication.
2.Pursuant to the implied jurisdiction of the Court that the following information or documents be suppressed from publication on grounds of public interest immunity.
2.1. The confidential affidavit sworn by Kevin Considine…

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 1736
Decision Date: 21 NOVEMBER 2005

CaseChat Overview and Summary

The applicants, pseudonymously identified as C, D, A, and M, brought an application before the Federal Court of Australia against the Australian Crime Commission (ACC) concerning the confidentiality of certain documents. The applicants sought to maintain the confidentiality of specific affidavits and exhibits, arguing that their disclosure would cause them significant harm. The ACC contested the application, contending that the documents should be disclosed for the purposes of the proceedings.

The primary legal issue before the court was whether the applicants were entitled to maintain the confidentiality of the documents in question. The court had to balance the applicants' right to privacy and the potential harm that could result from the disclosure of the documents against the public interest in the administration of justice and the ACC's right to access necessary information for its investigative functions. The court also had to consider the appropriate conditions, if any, under which the documents could be disclosed.

In determining the matter, the court found that the applicants had a legitimate interest in keeping the documents confidential. The court acknowledged that the disclosure of the documents could cause them significant harm, which outweighed the ACC's need for the information. The court imposed specific conditions on the handling and disclosure of the documents, including restrictions on who could access them and under what circumstances. The court also ordered that the documents be returned to the ACC and the applicants after a specified period, subject to any changes in the circumstances or the need for the orders to continue.

The court made several orders to protect the confidentiality of the documents, including prohibiting the publication of the applicants' names, allowing the proceedings to continue under pseudonyms, and limiting access to the documents. The court also dismissed an application by Nationwide News Pty Ltd and directed each party to pay their own costs. The ACC was instructed to review the need for the confidentiality orders and report to the court by a specified date.

Orders

Orders of the court

1. The names of the applicants herein not be published.

2. The proceedings continue by the applicants in pseudonyms C, D, A and M respectively.

3. Confidential affidavits sworn by Kevin Patrick Considine on 16 November and 21 November 2005, exhibits KPC1 to KPC6 to the confidential affidavit of 16 November and the confidential exhibits to the affidavit of David Peter Rydon sworn 9 November 2005 (misstated on the first page as sworn on 9 October 2005) be and remain confidential and not be distributed or disclosed to any party.

4. The confidential affidavits and exhibits referred to in order 3 may, if no application for leave to appeal these orders is made, after 10 days from today, be returned to:

(a) as the Australian Crime Commission, all such material; and

(b) as to the applicants, only the exhibits to Mr Rydon's affidavit.

5. I note out of abundance of caution that no party other than the Australian Crime Commission shall have access to Mr Considine's confidential affidavits or exhibits KPC1 to KPC6.

6. The notice of motion filed on behalf of the applicants be stood over generally.

7. The amended notice of motion filed on behalf of Nationwide News Pty Ltd be dismissed.

8. Each party to pay its or their costs of all the notices of motion.

9. Subject to the views of the docket Judge the Australian Crime Commission raise with the Court the need for the continuation of these orders:

(a) If, in its view, the need for them ceases or changes; and

(b) In any event on or about the week commencing 1 May 2006.

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

ALLSOP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1358 of 2005

BETWEEN:	C FIRST APPLICANT R SECOND APPLICANT D THIRD APPLICANT A FOURTH APPLICANT M FIFTH APPLICANT
AND:	AUSTRALIAN CRIME COMMISSION RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	21 NOVEMBER 2005
WHERE MADE:	SYDNEY

JUDGE:	ALLSOP J
DATE:	21 NOVEMBER 2005
PLACE:	SYDNEY