Commissioner of the Australian Federal Police v Kogan (No.2)

[2022] NSWSC 1424

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Kogan (No.2) [2022] NSWSC 1424

Hearing dates:

29 August 2022

Date of orders:

29 August 2022

Decision date:

29 August 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [19]

Catchwords:

CIVIL PROCEDURE — Hearings — Suppression and non-publication —

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 ss 6, 7, 8(1)(a), 8(1)(c)

Proceeds of Crime Act 2002 s 266A

Cases Cited:

Commissioner of The Australian Federal Police v Kogan [2019] NSWSC 1866

Texts Cited:

Not applicable

Category:

Procedural rulings

Parties:

Commissioner Australian Federal Police (P)
Vladislav Kogan (D1)
Sarit Kogan (D2)
Dealtex Capital Pty Limited (D3)
Digitec Trading Pty Ltd (D4)

Representation:

Counsel:
L Livingston SC / R Perla (P)
E W L Greaves (D1-D4)

Solicitors:
Australian Federal Police (P)
Harrow Legal (D1-D4)

File Number(s):

2019/397482

Publication restriction:

Non-publication orders made by the Court on 29 August 2022.

EX TEMPORE Judgment

1. Application is made for an order pursuant to s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (“the Act”) for a non-publication order over the names and any material tending to identify any of the four defendants or the children of the first and second defendants in connection with these proceedings.

Whether an Order Should Be Made

2. In support of that application, an affidavit of the first defendant, sworn 29 August 2022, is read. It will be necessary to return to that affidavit in a moment.

3. In addition, there is tendered on the application an article published in The Australian newspaper this morning, 29 August 2022, which describes various allegations being made overseas against the first defendant and companies with which he and his wife have been associated.

4. The article also quotes extensively from a decision of this Court entitled Commissioner of The Australian Federal Police v Kogan [2019] NSWSC 1866, which was a judgment dealing with an ex parte application by the plaintiff in these proceedings for various restraining orders under the Proceeds of Crime Act 2002 (Cth) (“POC Act”). The article published this morning, together with the facts contained in paragraphs 2 to 8 of the affidavit of the first defendant lead inevitably to the conclusion that the proceedings in this matter are regarded as being of public interest and that there is likely to be further material published about allegations made about overseas conduct and these proceedings.

Basis for an Order

5. I do not propose to recount in this judgment the details of the matters set out in the Annexure B and Annexure C to this affidavit of the first defendant. It is plain from reading that material that a ground for the making of a non-publication order which reflects s 8(1)(c) of the Act has been established.

6. I am conscious that in deciding whether or not to make a non-publication order, this Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. That is a matter to which careful consideration needs to be given. Notwithstanding that statement, which is to be found in s 6 of the Act, the Court is given the power to make suppression or non-publication orders on the grounds permitted by the Act.

7. The extent of the risk of harm described in Annexures B and C is, in my assessment, of such seriousness that it is necessary to protect the safety of the individuals referred to in those reports. The individual and her siblings referred to in those reports have no involvement in these proceedings - they are all juveniles. It is not said that they have done anything wrong. It can truly be said that they are the innocent victims of, as yet unsubstantiated, allegations which are harmful to their parents and to their orderly maturing and orderly activities of their daily living.

8. In my view, it is overwhelmingly necessary to make a non-publication order.

Length and Terms of Order

9. Two things arise about the non-publication order. The first is for how long it should be made. The Notice of Motion seeks a period until 31 December 2025, which is a date referred to in the annexures to the affidavit. On the other hand, senior counsel for the Commissioner submits that an order ought only be made for a lesser period because it is difficult to predict with any certainty how long the risks referred to in the material before the Court will continue.

10. It is true that any non-publication order being made on the grounds of protecting the safety of an individual does involve a prediction as to how long the possible harm will continue. That is of the essence of any order. The Court has to weigh up, first, the circumstances which give rise to the necessity for the order; secondly, if the order is made only for a short period, whether that itself does not give the stability necessary for the matters set out in the Annexures to the affidavit to be addressed in a therapeutic way. But, on the other hand, the public interest and safeguarding the public interest in open justice does not permit an open-ended order to be made.

11. The logic of the date chosen in the orders sought is that by that time additional identified stressors which affect the safety of the individual identified in the material before the Court will have lessened or else changed. As well, by that time, the individuals will have matured and presumably become more psychologically robust than they are now. Of course, any order made by the Court can be revoked at any time if the risk to the safety of the relevant individuals ceases for whatever reason. In those circumstances, given what the Court has been told and the necessity for the making of the order, it seems to me that the best evidence as to the length of that order is to be found in the expert reports attached to the affidavit, and I will accede to making the order for the length which is consistent with that expert advice.

12. An issue arises as to the terms of the order. Orally, the applicant moves for a much broader order than that which was sought in writing. The order which is now sought is that there be non-publication order of all matters in connection with these proceedings. No doubt that includes an order of the Court dismissing the proceedings, if that were the order which were made.

13. Equally, if an order was made of the kind ultimately sought by the Commissioner under the POC Act for the forfeiture of assets, there is a real issue as to whether or not such an order ought be made public or, alternatively, prohibited from being made public.

14. The resolution of this issue depends upon the identification of the risk and the individual. It seems to me that the risk does not relate to all matters in connection with these proceedings - the risk relates to the safety of identified individual or individuals. That is the risk in respect of which it is necessary that there be a non-publication order, and I reject the application to broaden the order originally sought to all matters in connection with these proceedings. That would go beyond what is necessary to protect the safety of the individuals.

Additional Order Sought by the Plaintiff

15. The plaintiff has sought an order in addition to those made which makes it plain that the Commissioner is entitled to not be inhibited in the performance of the statutory functions conferred on the Commissioner under the POC Act and in particular, distribution of any material in connection with these proceedings which accords with s 266A of the Act. The Commissioner submits that such an order, which his senior counsel describes as being by way of a “carve out”, should be made to avoid any risk that a publication could occur.

16. Section 3 of the Act contains a definition of publication. It is a complete definition. The Act says that “publish” means “disseminate or provide access to the public or a section of the public by any means”. It then specifies four matters which it includes within that definition, but it is of the essence that “publish”, in accordance with the Act, means providing access to the public or a section of the public.

17. I do not understand, from any provision of the POC Act, that it is any part of the statutory function of the Commissioner to disseminate or provide access to the public or a section of the public by any means of the material contained in these proceedings.

18. If, contrary to my understanding, it is part of the function of the Commissioner to publish the material connected with these proceedings to the public, then I do not think that the terms of the non-publication order which I propose to make represents an undue restriction on the performance of the Commissioner’s statutory jurisdiction such that I need to make some specific order excusing the Commissioner from complying with the non-publication order.

Orders

19. In all of those circumstances, I will make the following orders:

1. Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no publication of any information tending to reveal the identity of or otherwise concerning any party or witness to these proceedings before the Court or of the identity of any person including but not limited to each of the children of the 1^st and 2^nd defendants who is related to or otherwise associated with any party to the proceedings or with any witness in the proceedings, and further that there be no publication of any information that comprises evidence in, or about evidence given in, these proceedings before the Court insofar as that evidence or information identifies any of the defendants or any child of the 1^st and 2^nd defendants.

2. For the avoidance of doubt and without limiting the generality of Order 1, order that there be no publication of any of the following in connection with these proceedings:

1. the name of the 1^st and 2^nd defendants and any child of their relationship and the 3^rd and 4^th defendants;

2. any images or pictorial representation (however made) of each of the 1^st and 2^nd defendants and any child of their relationship;

3. any images or pictorial representation of the residential premises at 29 MacDonald Street, Vaucluse NSW.

3. Order that Orders 1 and 2 continue until 31.12.2025.

4. Order that Orders 1 and 2 are to apply throughout the Commonwealth of Australia.

5. Note that Orders 1 and 2 are made upon the grounds set forth in s 8(1)(c) of the Court Suppression and Non‑publication Orders Act 2010 (NSW), namely that I am satisfied that it is necessary to make the orders on the grounds that such orders are necessary to protect the safety of an identified person.

6. Order pursuant to s 7 of Court Suppression and Non‑publication Orders Act 2010 (NSW), upon the ground that it is necessary to prevent prejudice to the proper administration of justice as set out in 8(1)(a) of the Act, the contents of the affidavit of Vladislav Kogan sworn 29.8.22 insofar as they are set out in paragraphs 10-18 inclusive and Attachments B and C to that affidavit, be suppressed save and except that the affidavit may be disclosed to the lawyers for any present party to the proceedings and their clients.

7. Direct that the affidavit is to be placed in a sealed envelope and marked ‘Suppressed’ and that it be sealed. Order that such envelope is only to be opened by an order of a Judge of this Court.

8. Liberty to apply in respect of these orders.

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Amendments

21 August 2023 - Amendment to coverhseet

Decision last updated: 21 August 2023