Clean Energy Regulator v Emerging Energy Solutions Group Pty Ltd
[2024] FCA 1310
•13 November 2024
FEDERAL COURT OF AUSTRALIA
Clean Energy Regulator v Emerging Energy Solutions Group Pty Ltd [2024] FCA 1310
File number(s): VID 234 of 2024 Judgment of: HORAN J Date of judgment: 13 November 2024 Catchwords: PRACTICE AND PROCEDURE – application for suppression order and pseudonym order under s 37AF of Federal Court of Australia Act 1976 (Cth) –where person named in pleadings suffers from anxiety, depression and agoraphobia – where identification would aggravate mental health conditions – whether orders necessary to prevent prejudice to the proper administration of justice – whether orders necessary to protect safety of any person – application dismissed Legislation: Australian National Registry of Emissions Units Act 2011 (Cth) 27(4)-(5), 33(1), 34(2)
Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth)
Corporations Act 2001 (Cth) s 500(2)
Federal Court of Australia Act 1976 (Cth) ss 17(1), 37AE, 37AF, 37AG, 37AH(5), 37AJ(1)
Australian National Registry of Emissions Units Regulations 2011 (Cth) regs 13(2), 31, 33(1), 34(2)
Carbon Credits (Carbon Farming Initiative) Rule 2015 (Cth)
Federal Court Rules 2011 (Cth) r 2.32
Cases cited: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 364 ALR 202
AB v The Queen (No 3) (2019) 97 NSWLR 1046
Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth)(No 2) (2020) 275 FCR 377
Director of Public Prosecutions (Vic) v EN [2023] VSC 724
DSLB v Comcare [2023] FCA 1222
Federal Commissioner of Taxation v [Respondent] [2023] FCA 1176; 117 ATR 455
Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507
Hogan v Australian Crime Commission (2010) 240 CLR 651
Kyle-Sailor v Heinke [2024] FCA 431
Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221
Porter v Australian Broadcasting Corporation [2021] FCA 863
R v Legal Aid Board; ex parte Kaim Todner (a firm) [1999] QB 966
Rinehart v Welker (2011) 93 NSWLR 311
White v Commissioner of Taxation [2024] FCA 185
Young v Accenture Australia Pty Ltd [2024] FCA 1013
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 57 Date of hearing: 1 and 11 November 2024 Counsel for the Applicant: G Costello KC and G Elmore Solicitor for the Applicant: Colin Biggers & Paisley Counsel for the First Respondent The First Respondent did not appear Counsel for the Second Respondent: T Clarke Solicitor for the Second Respondent: GE Law Services ORDERS
VID 234 of 2024 BETWEEN: CLEAN ENERGY REGULATOR
Applicant
AND: EMERGING ENERGY SOLUTIONS GROUP PTY LTD ACN 152 953 412
First Respondent
SHAMSUDDIN SHAIKH
Second Respondent
ORDER MADE BY:
HORAN J
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The second respondent’s interlocutory application dated 3 October 2024 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HORAN J
The second respondent, Mr Shamsuddin Shaikh, brings this interlocutory application for suppression orders under Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) prohibiting the disclosure (by publication or otherwise) of certain parts of the statement of claim filed by the Clean Energy Regulator on 22 March 2024, and parts of the defence filed by each of the respondents.
The information in the Statement of Claim and the Defences that is sought to be suppressed concerns the identity of a consultant who was employed or contracted by the first respondent, Emerging Energy Solutions Group Pty Ltd, and who was nominated as its authorised representative for the purposes of an account in Emerging Energy’s name in the Australian National Registry of Emissions Units that is kept by the Regulator under Div 2 of Pt 2 of the Australian National Registry of Emissions Units Act 2011 (Cth) (ANREU Act). Mr Shaikh also seeks to suppress the affidavits filed in support of, and in opposition to, the interlocutory application.
The terms of the suppression orders sought by Mr Shaikh have been progressively refined and narrowed.
(a)The interlocutory application as filed sought orders to prohibit the disclosure of certain information contained in the pleadings that identifies or may tend to identify two former employees or consultants of Emerging Energy who are not themselves parties to the proceeding.
(b)When the application was brought on for hearing on 1 November 2024, Mr Shaikh instead sought an order to prohibit the disclosure of information tending to reveal the identity or medical condition of one of those former employees or consultants, being an individual who was nominated as the authorised representative for the purposes of accessing Emerging Energy’s account in the Registry.
(c)By the time that the hearing of the application resumed on 11 November 2024, Mr Shaikh was seeking a pseudonym order in relation to the name of the authorised representative together with an order prohibiting the disclosure of information tending to reveal the identity (but not the medical condition) of that individual.
For the reasons set out below, I do not consider that the orders sought by Mr Shaikh are necessary to prevent prejudice to the proper administration of justice for the purposes of s 37AG(1)(a) of the FCA Act, nor are such orders necessary to protect the safety of the individual who was nominated as the authorised representative of Emerging Energy for the purposes of s 37AG(1)(c) of the FCA Act.
Accordingly, the interlocutory application dated 3 October 2024 is dismissed.
BACKGROUND
The substantive proceedings were commenced by an originating application filed by the Regulator on 22 March 2024, seeking declarations and pecuniary penalty orders against Emerging Energy and its director, Mr Shaikh.
The Regulator claims that, between 22 May 2022 and 14 February 2023, Emerging Energy contravened s 27(4) of the ANREU Act by failing to comply with reg 33(1)(d) and (e) and reg 34(2)(a), (b) and (c) of the Australian National Registry of Emissions Units Regulations 2011 (Cth) (ANREU Regulations). The Regulator claims that Mr Shaikh contravened s 27(5) of the ANREU Act by aiding or being knowingly concerned in Emerging Energy’s contraventions.
Since the proceedings were commenced, Emerging Energy has been placed into a members’ voluntary liquidation. The proceeding against Emerging Energy is stayed by operation of s 500(2) of the Corporations Act 2001 (Cth). The proceeding is continuing against Mr Shaikh.
The ANREU Act continues in existence and gives statutory force to the Registry, which records and tracks the issuance, holding, transfer and acquisition of Australian Carbon Credit Units (ACCUs) issued under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) (Carbon Farming Act).
The contraventions that are alleged to have been committed by Emerging Energy relate to non-compliance with requirements under the ANREU Regulations dealing with the operation of Registry accounts. Such accounts must be opened in the name of a particular person: ANREU Act, s 10(2). The Regulator must be satisfied of the identity of the person in whose name the account is to be opened, and must be satisfied that the person passes the fit and proper person test: ANREU Regulations, reg 13(2)(a), (c). The fit and proper person test is defined by reference to its meaning in the Carbon Farming Act, read with the Carbon Credits (Carbon Farming Initiative) Rule 2015 (Cth).
The person in whose name a Registry account is opened may (or, if the person is not an individual, must) nominate an authorised representative: ANREU Regulations, reg 9(2). An authorised representative may be given access to a Registry account only if the Regulator is satisfied of his or her identity and that he or she passes the fit and proper person test: ANREU Regulations, reg 31(2), (4), (5).
Under reg 33 of the ANREU Regulations, a registered holder must notify the Regulator of various changes within 28 business days after the change takes place, including “a change of the contact details of the registered holder’s authorised representative” and a “change that causes the registered holder, or the registered holder’s authorised representative, to no longer pass the fit and proper person test”: reg 33(1)(d) and (e).
Reg 34(2) of the ANREU Regulations provides:
(2) A registered holder:
(a)must maintain the security of user names and passwords issued to the holder and to its authorised representatives (if any) for the purpose of accessing the Registry;
(b)must not allow any other person to gain, or try to gain, unauthorised access to the Registry, the Registry’s server, or any other server, computer or database related to the Registry; and
(c)must ensure that its authorised representative does not allow another person to gain unauthorised access to the Registry, as described in paragraph (b).
The alleged contraventions by Emerging Energy of regs 33 and 34 of the ANREU Regulations arise from circumstances in which an employee who was not its authorised representative is alleged to have accessed its Registry account and to have carried out transactions involving transfers of ACCUs. This unauthorised access is alleged to have taken place from a range of locations, both inside and outside Australia. The Regulator alleges that, in some instances, the authorised representative was not at the location of the access to the Registry account.
On 29 March 2023, the Regulator imposed conditions on Emerging Energy’s Registry account, prohibiting the transfer of ACCUs from the account without the prior written consent of the Regulator.
Emerging Energy set out its position on these issues in a letter to the Regulator dated 21 April 2023. In this letter, Emerging Energy maintained that its Registry account had not been accessed without authorisation. It claimed that its authorised representative had been “suffering from ongoing personal issues” and had been on personal leave during the relevant period, but that he “had knowledge of the logins”. The letter stated that the authorised representative’s issues were of a “sensitive” nature, pertaining to him suffering from anxiety and depression, and that further medical documentation could be provided on request. Emerging Energy stated that the authorised representative had made a power of attorney under which another staff member “was permitted to handle all matters regarding his involvement at Emerging Energy, including his access to the ANREU account”.
The conduct of Emerging Energy’s authorised representative, including his alleged medical condition, is at the heart of the alleged contraventions that are the subject of these proceedings.
(a)The Regulator alleges that the authorised representative developed anxiety, depression and agoraphobia to the extent that he no longer had capacity to work, which is alleged to have given rise to an obligation of Emerging Energy under reg 33(1)(d) and (e) of the ANREU Regulations to notify the Regulator of a change in the contact details of its authorised representative (arising from his extended personal leave), or to notify the Regulator of a change that caused the authorised representative “to no longer pass the fit and proper person test” as result of his incapacity for work.
(b)The Regulator alleges that the authorised representative was not capable of authorising another person to access the Registry account kept in the name of Emerging Energy, or delegating such access to another person. The Regulator further alleges that the enduring power of attorney made by the authorised representative was revoked by reason of his incapacity during the relevant period.
(c)The Regulator alleges that Emerging Energy failed to maintain the security of user names and passwords issued to it and its authorised representative for the purpose of accessing the Registry, allowed a person other than its authorised representative to gain unauthorised access to the Registry, and failed to ensure that its authorised representative did not allow another person to gain unauthorised access to the Registry, in contravention of reg 34(2)(a), (b) and (c) of the ANREU Regulations.
The Regulator alleges that Mr Shaikh was directly or indirectly knowingly concerned in the alleged contraventions by Emerging Energy, as its sole director with management and operational control and executive oversight of its business practices, and with knowledge of the matters alleged in relation to the use of the Registry account by a person other than the authorised representative.
Prior to entering into liquidation, Emerging Energy filed a defence in which it denied the alleged contraventions of reg 33(1)(d) and (e) and reg 34(2)(a) and (b) of the ANREU Regulations. Emerging Energy admitted having contravened reg 34(2)(c) by failing to ensure that its authorised representative did not allow another person access to the Registry. However, it denied that the (admitted) medical condition of its authorised representative amounted to an incapacity to work, or that there was an obligation to notify the Regulator of any change arising from the medical condition of its authorised representative.
Mr Shaikh’s defence does not completely align with the defence filed by Emerging Energy, in that he puts in issue some matters that were the subject of admissions in Emerging Energy’s defence. Relevantly, however, Mr Shaikh does not admit that the authorised representative developed anxiety, depression and agoraphobia “to the extent that he no longer had capacity to work”, and says that in any event that the contact details of the authorised representative did not change “by reason thereof or at all”. While admitting that he was the sole director of Emerging Energy at all material times until 30 June 2023 and that he knew that the individual in question was the authorised representative for its Registry account, he does not admit that Emerging Energy contravened s 27(4) of the ANREU Act and, in the alternative, denies that he was directly or indirectly knowingly concerned in any contravention or contraventions.
THE INTERLOCUTORY APPLICATION
The terms of the orders ultimately sought by Mr Shaikh on the hearing of the interlocutory application are as follows:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976:
(a) the disclosure (by publication or otherwise) of information tending to reveal the identity of the individual referred to in paragraph 6(d) of the statement of claim filed on 22 March 2024 be prohibited, on the grounds that it is necessary to prevent prejudice to the proper administration of justice and necessary to protect the safety of any person; and
(b)the individual referred to in paragraph 6(d) of the statement of claim be referred to in the proceeding by the pseudonym ____________.
2.Pursuant to rule 2.32(3) of the Federal Court Rules 2011, a person who is not a party is not entitled to inspect:
(a)unredacted versions of the Statement of Claim and any Defence; and
(b)the affidavit of Pippa Sampson affirmed on 3 October 2024 and its annexures; and
(c)the affidavit of Pippa Sampson affirmed on 8 November 2024 and its annexures.
3.By 4:00 pm on 12 November 2024, the second respondent file copies of the Statement of Claim and each Defence pseudonymised in accordance with order 1(b).
Mr Shaikh relied on the following affidavits in support of his interlocutory application:
(a)an affidavit of Pippa Sampson affirmed on 3 October 2024 (first Sampson affidavit); and
(b)an affidavit of Pippa Sampson affirmed on 8 November 2024 (second Sampson affidavit).
The first Sampson affidavit was directed to the orders that were originally sought in the interlocutory application dated 3 October 2024, which were in wider terms than those sought at the hearing. The affidavit exhibited copies of the pleadings filed in the proceeding with redactions in respect of the names and personal information of two former employees of Emerging Energy, being the individual who was nominated as its authorised representative under the ANREU Act and ANREU Regulations and another individual who had been employed as the “Environmental Markets Manager” of Emerging Energy.
The first Sampson affidavit exhibited a copy of a screenshot of comments made on or about 15 August 2024 on a public Facebook page entitled “Crap Solar”, which was said to disclose threats of violence made against persons associated with businesses including Emerging Energy and associated companies. Ms Sampson relied on the “violent nature of those messages” to seek an order prohibiting the publication of the names and personal information of each of the two former employees of Emerging Energy who had been named in the pleadings. However, the application to suppress the name and personal information of the Environmental Markets Manager was not ultimately pressed, and it was not clear whether or to what extent any reliance was still placed on the Facebook comments to support the making of a suppression order and a pseudonym order in relation to the name and personal information of the authorised representative.
Of greater relevance to the application that was ultimately made by Mr Shaikh, the first Sampson affidavit sought orders to prohibit the disclosure of information referring to the mental health conditions of the authorised representative “in order to avoid any recurrence or exacerbation of those conditions”. Thus, in addition to seeking the suppression of the names and identifying details of “non-party employees” of Emerging Energy, the first Sampson affidavit sought suppression of the “medical and health conditions” of the authorised representative. The first Sampson affidavit did not refer to or exhibit any medical records in support of this application.
In the course of the hearing of the interlocutory application on 1 November 2024, counsel for Mr Shaikh requested that he be given an opportunity to put on further evidence in relation to the medical condition of the authorised representative, after that individual had made and attended an appointment with his treating doctor. Pursuant to orders made by me on that day, the second Sampson affidavit was subsequently filed before the matter returned for hearing on 11 November 2024.
The second Sampson affidavit exhibits copies of two medical reports from the authorised representative’s treating doctor dated 2 May 2024 and 7 November 2024, respectively. The former states that the authorised representative had been diagnosed with “Generalized Anxiety Disorder and Agoraphobia” for which he had been receiving treatment since December 2021. It appears that this report was previously given to the Regulator as had been foreshadowed in the letter from Emerging Energy dated 21 April 2023, and that it provided a basis for the allegation in the statement of claim that the authorised representative had “developed anxiety, depression and agoraphobia” in or about early 2022.
More importantly for present purposes, in the subsequent medical report dated 7 November 2024, the authorised representative’s treating doctor expressed his opinion that the authorised representative’s mental health “remains vulnerable to any exposure to high stress situations which could potentially worsen his underlying conditions”, and that “[u]nder the circumstances, with regards to the federal court proceeding, release of his name and personal health to the public poses a significant risk of aggravating his conditions and hindering progress already made [in the course of his treatment]”.
I note in passing that, while the medical report dated 7 November 2024 stated that the authorised representative had “previously sought the additional assistance of a clinical psychologist”, there was no evidence placed before the Court about such treatment nor any report from the relevant clinical psychologist about the authorised representative’s mental health condition.
The Regulator relied on an affidavit of Chloe Lawrence-Hartcher affirmed 11 November 2024. Ms Lawrence-Hartcher is a lawyer employed by the solicitors for the Regulator, and she exhibited the following documents
(a)a copy of the “client information form” that was completed and provided by the authorised representative on or about 20 August 2021;
(b)a copy of the “general non-enduring power of attorney” made by the authorised representative on 8 February 2022, by which the authorised representative purported to appoint Mr Mohammad Syed as his attorney —
to sign all documents and do all things reasonably necessary to carry out on my behalf any transaction in relation to the carrying on of the business of [Emerging Energy] including but not limited to the execution of any sale authorities, access and management of emails, online registry and transactional account. I held with government regulators.
(c)a copy of a letter dated 17 May 2024 from the solicitors for the Regulator providing further and better particulars of the statement of claim in response to a request dated 26 April 2024.
In broad terms, these documents were relied upon by the Regulator to demonstrate or to illustrate that the genesis of these proceedings arose from the conduct of the authorised representative, and that such conduct was central to the proper resolution of the issues raised in the proceedings.
CONSIDERATION
The power to make suppression and non-publication orders is governed by Part VAA of the FCA Act. Such orders may prohibit or restrict the publication or other disclosure of, among other things, information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court, or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court: s 37AF(1)(a).
The principles governing the exercise of such powers have been summarised in innumerable decisions of this Court: see recently, e.g., White v Commissioner of Taxation [2024] FCA 185 at [32]-[50] (Anderson J); Young v Accenture Australia Pty Ltd [2024] FCA 1013 at [22]-[36] (Goodman J); and, more generally, see Country Care Group Pty Ltd v Director of Public Prosecutions (Cth)(No 2) (2020) 275 FCR 377 at [4]-[9] (Allsop CJ, Wigney and Abraham JJ). I had occasion to address these principles in Kyle-Sailor v Heinke [2024] FCA 431 at [19]-[25].
In deciding whether to make a suppression order or a non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: FCA Act, ss 17(1), 37AE; see also Country Care Group at [29] (Allsop CJ, Wigney and Abraham JJ). The order must be made on one or more of the grounds set out in s 37AG(1), and must specify the ground or grounds on which it is made together with the period for which the order operates: ss 37AG(2), 37AJ(1). Each of the grounds s 37AG(1) require that the prohibition or restriction on the publication or disclosure of the information is necessary to the identified purpose, which is a “strong word”, albeit one that should not be given an unduly narrow construction: see Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); Country Care Group at [9]. It is not sufficient merely to show that the order sought will be convenient, reasonable, sensible, or desirable to one or more of the parties. A suppression or non-publication order should go no further than is necessary, and must specify the information to which it applies with sufficient particularity to ensure that it is limited to achieving the purpose for which it is made: see s 37AH(5).
Two of the grounds on which a suppression order or a non-publication order may be made are that the order is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a)) and that the order is necessary to protect the safety of any person (s 37AG(1)(c)). It was the latter of those grounds which assumed the greater focus of the submissions made on behalf of Mr Shaikh in support of the interlocutory application.
An order that a party or a witness in a proceeding be referred to by a pseudonym can be regarded as a particular kind of suppression order or non-publication order, in so far as it prohibits or restricts the disclosure or publication of the name or identity of the party or witness. In any event, the making of a pseudonym order is governed by the same or similar considerations as apply to suppression orders or non-publication orders: see generally Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221 at [23]-[35] (Rares, Perry and Hespe JJ). In White, Anderson J observed (at [39]):
The Court’s power to make a pseudonym order in the proceeding is also based on considerations of the public interest in the administration of justice and is therefore exercisable only in limited circumstances. In making a pseudonym order, the Court must have regard to the requirements of ss 17(1) and 37AE, and the use of the word “necessary” in s 37AG(1). That is, the Court must determine that justice cannot be done without the use of a pseudonym or other derogation from open justice: Ogawa at [30].
In other words, the Court has to conclude that there is no other way to administer justice in the proceeding than to make the relevant order: Ogawa at [31].
In so far as a suppression order or non-publication order is sought in relation to information of a personal or private nature in relation to a particular party or witness in a proceeding, it must be kept in mind that “[c]onsiderations of embarrassment, convenience or personal sensitivity to the publication of personal and often very private circumstances given in evidence or revealed in the course of a proceeding in open court, of themselves, cannot justify or support the exercise of any inherent or implied power of a court to suppress or prohibit the publication of those matters”: Ogawa at [27]; see also Rinehart v Welker (2011) 93 NSWLR 311 at [54] (Bathurst CJ and McColl JA), referring to R v Legal Aid Board; ex parte Kaim Todner (a firm) [1999] QB 966 at 978 (Lord Wolf MR for the Court); Federal Commissioner of Taxation v [Respondent] [2023] FCA 1176; 117 ATR 455 at [11]-[12] (Kennett J) (leave to appeal dismissed by Anderson J in White). Much the same can be said in relation to a pseudonym order that is sought to anonymise the name of a party or witness as a consequence of such matters being disclosed in the proceeding.
To the extent that it is an inherent consequence of being involved in litigation that an individual party or witness might suffer some embarrassment or reputational damage, “[i]t is the price of open justice that allegations about individuals are aired in open court” and “[s]uch individuals, particularly if they are parties, can make their response to such allegations public in the same forum”: Rinehart at [54]. It may also be noted that s 31AG(1)(d) of the FCA Act, which specifically addresses circumstances in which “undue distress or embarrassment” might be caused to a party or witness, is limited in its application to criminal proceedings involving an offence of a sexual nature.
That is not to say that private or personal information of a party or a witness to a proceeding, the publication or disclosure of which might cause distress to that party or witness, is incapable of being the subject of a suppression order or a non-publication order. However, before making such an order, the Court must be satisfied of one or more of the grounds in s 37AG(1), such as that the publication or disclosure of the information would result in prejudice to the proper administration of justice or an unacceptable risk to the safety of any person.
It is necessary in this context to refer to r 2.32 of the Federal Court Rules 2011 (Cth), which deals with the inspection of documents in a proceeding, and the associated practice note (Access to Documents and Transcripts Practice Note (GPN-ACCS)). After the first directions hearing or the hearing in a matter, a non-party is generally entitled to inspect the documents specified in r 2.32(2), other than a document that the Court has ordered be confidential. The documents specified in r 2.32(2), which are commonly referred to as “unrestricted” documents, include an originating application, pleadings or particulars, any statement of agreed facts, and an interlocutory application. Inspection of documents other than those specified in r 2.32(2) requires an application to the Court for leave to inspect, as does a request to inspect “unrestricted” documents prior to the first directions hearing or the hearing in a matter: r 2.32(4). Accordingly, an affidavit filed in a proceeding cannot generally be inspected without the grant of leave. In considering a request for leave to inspect an affidavit, the Court may take into account whether the affidavit has been admitted into evidence or read out or relied upon in open court, as well as any claims of confidentiality or privilege: see GPN-ACCS, [4.27].
In the present case, the information in relation to which Mr Shaikh seeks a suppression order includes information that is contained in the statement of claim filed by the Regulator and the defences filed by the respondents, each of which is an unrestricted document that a non-party would be entitled to inspect after the first directions hearing in accordance with r 2.32(2) of the Rules, unless a confidentiality order is made for the purposes of r 2.23(4). In making any such order, it is necessary to have regard to the open justice principle and the legislative scheme in Part VAA of the FCA Act: see Porter v Australian Broadcasting Corporation [2021] FCA 863 at [44], [91] (Jagot J); Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 at [4]-[8] (Mortimer J).
Turning to the grounds relied upon by Mr Shaikh in the present application, I find that the proposed suppression order and pseudonym order in relation to the name and identity of the person nominated as the authorised representative of Emerging Energy under the ANREU Act and ANREU Regulations is not necessary to prevent prejudice to the proper administration of justice for the purposes of s 37AG(1)(a) of the FCA Act.
Although the orders proposed by Mr Shaikh sought to rely on this ground, there was nothing in the evidence filed or submissions made on his behalf to suggest that any prejudice to the proper administration of justice would or even might be caused by the disclosure or publication of the name and identity of the authorised representative. As Anderson J stated in White (at [48]-[50]):
To establish that an order under s 37AF is “necessary to prevent prejudice to the proper administration of justice” within the meaning of s 37AG(1)(a), the party seeking that order must “identify the contended prejudice to the proper administration of justice that would result if the order is not made”, and identify the link “between the contended harm and s 37AG(1)(a)”: Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272 at [90], [93], [95] (Thawley, Stewart and Abraham JJ) (Lee FC) and Deputy Commissioner of Taxation v Lee [2022] FCA 1307 at [40] (Bromwich J) (Lee PJ).
It is not sufficient merely to point to the possibility of reputational damage or commercial harm. That a person will suffer such damage or harm by reason of publication of evidence relied upon in open court “does not have the necessary consequence that the proper administration of justice is or will be prejudiced”: Lee FC at [90].
The necessary link between the contended harm to the administration of justice and s 37AG(1)(a) may be established by evidence or made through argument. There are “categories” of situations which arise more regularly than others – eg, the publication of bank account numbers which might be misused if published and which are wholly irrelevant to the Court’s reasons – but there is no set of closed “categories”: Lee FC at [95].
This is not a case in which the disclosure of personal information might have a tendency to deter a litigant from bringing proceedings to vindicate their legal rights: compare Federal Commissioner of Taxation v [Respondent] [2023] FCA 1176; 117 ATR 455 at [24]-[25] (Kennett J); White at [90] (Anderson J). Nor can the authorised representative be regarded as a casual bystander who has been unwittingly caught up in the dispute between the Regulator and the respondents. The authorised representative was centrally involved in the factual circumstances giving rise to the proceedings brought by the Regulator against Emerging Energy and Mr Shaikh. He was nominated by Emerging Energy under the regulatory scheme as its authorised representative to access the Registry account in its name, for which he was required to meet requirements relating to both his identity and his fitness and propriety. As an authorised representative, he assumed an important and trusted role in the operation of the Registry account kept in the name of Emerging Energy. To the extent that the Regulator makes any allegations in relation to the authorised representative, the respondents have had and (at least in relation to Mr Shaikh) will have the opportunity to respond to those allegations in open court. In this regard, I observe that the application for a suppression order and pseudonym order is made by Mr Shaikh, and the authorised representative has neither brought any application himself nor sought to be heard in relation to the proposed orders.
More generally, the issues to be determined in the proceeding will include questions in relation to the conduct of the authorised representative, including the impact of his medical condition and personal leave on his capacity to act as the authorised representative of Emerging Energy in the context of the statutory scheme established by the ANREU Act and the ANREU Regulations. There is arguably a public interest in matters concerning the identity and conduct of persons who are nominated as the authorised representatives of registered holders of Registry accounts under the statutory scheme.
At least in practice, a person who is nominated as an authorised representative provides to the Regulator a signed “client information form”. The evidence of the client information form that was signed by Emerging Energy’s authorised representative in the present case included declarations which acknowledge that information provided by the representative may be used or disclosed by the Regulator for purposes including “compliance, enforcement of laws, regulations and legislative rule, the performance of the [Regulator’s] statutory functions and for related purposes subject to the requirements of relevant laws, in particular the Privacy Act 1988 and the Clean Energy Regulator Act 2011”. While it is not clear that the name or identity of the authorised representative (as opposed to the names and addresses of registered holders of Registry accounts) is itself published on the Regulator’s website under s 59 of the ANREU Act, there nevertheless does not appear to be any basis on which a person who is nominated as an authorised representative can expect that his or her name or identity as such will be kept confidential.
The ultimate focus of the application for the suppression order and pseudonym order was on the ground that such orders were necessary to protect the safety of the authorised representative for the purposes of s 37AG(1)(c) of the FCA Act. In this context, it is sufficient if the Court “is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable”: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 364 ALR 202 at [14]-[15] (Nettle J). In other words, a “calculus of risk” approach is adopted, under which the assessment of safety is “informed by the nature, imminence and degree of likelihood of apprehended harm”: see White at [42] (Anderson J); Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383 at [227]-[229] (Bathurst CJ, Leeming JA and Simpson AJA).
To the extent that Mr Sheikh maintained any reliance on the evidence of threats of violence having been made against persons associated with Emerging Energy or its related businesses, I do not consider that this supports a finding that the publication of the name and identity of the authorised representative in connection with the current proceeding would involve an unacceptable risk to his safety arising from such violent threats. Even taking the screenshot of the Facebook posts at face value, the comments relate to businesses conducted by different companies (albeit with common directors) in relation to the trading of small-scale technology certificates created under the Renewable Energy (Electricity) Act 2000 (Cth). This evidence does not establish any risk to the authorised representative of Emerging Energy arising from the matters that are the subject of the current proceeding concerning the alleged contravention of regulatory requirements in relation to the operation of a Registry account under the ANREU Act and ANREU Regulations. It is of no consequence that the same evidence was relied on to support confidentiality orders in relation to affidavits that were filed in different proceedings brought by another company against the Regulator (Greenbot Pty Ltd v Clean Energy Regulator, VID558/2024), particularly in circumstances where the relevant orders concerned the redaction of employees’ names from affidavits that had been filed by the applicant and where the orders were not opposed by the Regulator.
The first Sampson affidavit sought the suppression of information in the pleadings referring to the authorised representative’s “mental health conditions” (namely, the allegation that he suffered from anxiety, depression and agoraphobia) in order to avoid any recurrence or exacerbation of those conditions. As mentioned above, Mr Sheikh no longer presses for the suppression of information relating to the mental health conditions themselves, which are central to the determination of the issues raised by the Regulator in these proceedings. Rather, those mental health conditions form the basis on which it is submitted that the suppression of the name and identity of the authorised representative is necessary to protect his safety and, perhaps, to prevent prejudice to the proper administration of justice.
In particular, reliance is placed on the recent medical report provided by the authorised representative’s general practitioner (summarised at paragraph 28 above), in support of a submission that suppression of his name and identity in connection with the current proceedings is necessary to protect him from a risk that his generalised anxiety disorder and agoraphobia will be aggravated, and the progress in his treatment of those conditions will be hindered, by the publication of his name and health status.
I accept that an adverse impact on a person’s psychological condition is capable in some circumstances of giving rise to a risk to that person’s safety for the purposes of s 37AG(1)(c) of the FCA Act: compare, e.g., AB v The Queen (No 3) (2019) 97 NSWLR 1046 at [59]-[60] (Hoeben CJ at CL, Price and Adamson JJ); Director of Public Prosecutions (Vic) v EN [2023] VSC 724 (DPP v EN) at [27] (Elliot J). For example, in DSLB v Comcare [2023] FCA 1222, Katzmann J made suppression orders under s 37AF of the FCA Act in relation to the identity of the applicant in that case on the ground that the order was necessary to protect her safety. The evidence on which that application was made encompassed reports from multiple psychiatrists to the effect that the disclosure of the applicant’s identity was likely to precipitate an acute exacerbation of her symptoms of severe post-traumatic stress disorder and to lead to increased risk of self-harm: DSLB at [123], [137]. Justice Katzmann concluded that “[t]hese circumstances indicate that there is a proper foundation for the doctor’s opinion about the risk to her safety if her identity were disclosed in this proceeding and, consequently, for an order of the kind sought”: DSLB at [137].
It goes without saying that each case must turn on its particular facts. As Anderson J stated in White (at [47]), “an application for suppression orders on the ground that the orders are necessary to protect the safety of any person will ultimately depend on all of the facts, including the cogency of any expert evidence adduced in support of the application”.
In the present case, I am not satisfied that the evidence establishes that the suppression of the name and identity of the authorised representative is necessary to protect his safety, for the following reasons.
The medical reports in relation to the authorised representative’s mental health are relatively general in nature. It does not appear from those reports that his symptoms are acute, nor that any aggravation of his condition will involve a severe disturbance of his psychological wellbeing or lead to any risk of self-harm. His involvement as a witness in these proceedings is likely, if not inevitable, and may itself entail an “exposure to high stress situations” as referred to by his treating doctor in the report dated 7 November 2024. I do not consider that the disclosure of the name and identity of the authorised representative in connection with the proceedings will materially increase any risk to his safety arising from his psychological conditions. The evidence indicates that the authorised representative is receiving ongoing treatment from his general practitioner, and perhaps also a clinical psychologist, which will constitute a protective measure in managing any impacts on his mental health: compare DPP v EN at [28] (Elliot J). In the circumstances, the nature and degree of the apprehended harm is not such as to constitute an unacceptable risk to the safety of the authorised representative if his name and identity is disclosed in connection with the proceeding.
Further, even accepting that a pseudonym order involves a “relatively lesser degree of derogation from the principle of open justice” (see DPP v EN at [32]), I do not consider that it is necessary to make such an order in the present case in order to protect the safety of the authorised representative. In any event, paragraph 1(a) of the orders sought by Mr Shaikh goes beyond a requirement that the authorised representative be referred to in the proceeding by a pseudonym, with consequential redactions to the pleadings, and seeks to suppress the disclosure of any information that tends to reveal his identity.
Finally, I note that I have avoided referring to the authorised representative by name in these reasons, not because I consider there is any need to keep his name and identity confidential, but so as to preserve the position in the event of any application for leave to appeal from my decision on the interlocutory application. The name of the authorised representative, to the extent that it is not already publicly known, is disclosed in the pleadings, which will be available for inspection under r 2.32 of the Rules in the absence of any confidentiality order made by the Court.
Accordingly, the interlocutory application is dismissed. In the circumstances, I consider that it is appropriate that Mr Shaikh should pay the Regulator’s costs of that application.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. Associate:
Dated: 13 November 2024
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