FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v De Pyle [2024] FCAFC 43
Appeal from: De Pyle v Commonwealth of Australia [2023] FCA 597 File number(s): QUD 296 of 2023 Judgment of: O’CALLAGHAN, RAPER AND BUTTON JJ Date of judgment: 26 March 2024 Catchwords: PRACTICE AND PROCEDURE – where primary judge refused interlocutory application by the Commonwealth for certain suppression orders – where evidence adduced from responsible officer that suppression orders necessary to prevent prejudice to national security and to protect the safety of a person – where such evidence not contradicted – where the Commonwealth and the intervenor broadcaster agreed that to the extent that certain information was not in the public domain suppression orders should be made – appeal allowed Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 3(1), 46PH(2)
Federal Court of Australia Act 1976 (Cth) ss 24(1), 28(1)(c), 37AA, 37AE, 37AF, 37AG, 37AG(1)(b), 37AG(1)(c), 37AH(2)(d), Pt VAA
Sex Discrimination Act 1984 (Cth) Pt II
Federal Court Rules 2011 (Cth) rr 2.32, 2.32(2), 2.32(2)(a), 2.32(3), 2.32(4), 34.163
Cases cited: AB v CD (2019) 364 ALR 202; [2019] HCA 6
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301
Alister v The Queen (1984) 154 CLR 404
Astrazeneca Pty Ltd v Glaxosmithkline Australia Pty Ltd (2006) ATPR 42-106; [2006] FCAFC 22
Commissioner of Police NSW v Nationwide News Pty Ltd (2008) 70 NSWLR 643
CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1
Dallas Buyers Club, LLC v iiNet Limited (No 1) [2014] FCA 1232
De Pyle v Commonwealth of Australia [2023] FCA 597
Eastman v Director of Public Prosecutions (No 2) (2014) 9 ACTLR 178
Fox v Percy (2003) 214 CLR 118
Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186
Hogan v Hinch (2011) 243 CLR 506
John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344
Monash Health v Singh [2023] FCAFC 166
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149
Parkin v O’Sullivan (2009) 260 ALR 503; [2009] FCA 1096
Plaintiff S244/2012 v Minister for Immigration and Border Protection (2016) 155 ALD 113; [2016] FCA 1227
Rinehart v Welker (2011) 93 NSWLR 311
Russell v Russell (1976) 134 CLR 495
The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions(No 2) (2020) 275 FCR 377
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 82 Date of hearing: 28 February 2024 Counsel for the Appellant A Berger KC with F Rogers Solicitor for the Appellant Australian Government Solicitor Counsel for the Respondent P McCafferty KC with S Marsh Solicitor for the Respondent Bartley Cohen Counsel for the Interested Party DR Sibtain SC with CM Roberts Solicitor for the Interested Party Australian Broadcasting Corporation Legal Services ORDERS
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- Case
- [2024] FCAFC 43
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court involved the interpretation and application of the relevant provisions of the Federal Court of Australia Act 1976 (Cth) regarding suppression orders. The Court had to consider whether the suppression orders were necessary, particularly given the lack of contradictory evidence from the respondent, the ABC. The Court also needed to examine the concessions made by the ABC in their correspondence with the primary judge, which indicated agreement on certain suppression orders.
The Court's reasoning led to the conclusion that the primary judge had misapplied the principles governing the granting of suppression orders. The Court noted that the ABC had effectively conceded that the Commonwealth was entitled to suppression orders for the information highlighted in yellow in their 27 April email, which indicated information not in the public domain. Despite the ABC's argument that their written submissions should also be considered, the Court held that these submissions were irrelevant to the specific issue of the suppression orders. The Court further held that the ABC could not now argue that the Commonwealth needed to provide more granular evidence, as this argument was not raised in the lower court.
The Court allowed the appeal, set aside the orders of the primary judge, and granted the suppression orders for the specified information, prohibiting its disclosure until 1 July 2043. The Court also directed that the matter be remitted to the primary judge to determine whether the information highlighted in blue was already in the public domain. The Court's final orders included specific directions for redacting and serving the relevant documents and set a timeframe for filing submissions on costs.
Orders
Orders of the court
1. The appeal is allowed.
2. The Interested Party’s notice of contention is dismissed.
3. Orders 1 and 12 of the orders made by the primary judge on 29 June 2023 be set aside.
4. Pursuant to s 37AF(1)(b)(iv) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), throughout the Commonwealth of Australia the disclosure or publication of the following information is prohibited until 1 July 2043:
(a) Any of the following information in the Originating Application dated 21 October 2022:
(i) on page 3 of Annexure A:
A. the first five words (and figures in parentheses) between “bindings to a chain” and “This was to prevent”;
B. between “72-hour course.” and “allowed to remove our hoods”;
C. between “allowed to remove our hoods” and “we were again hooded”;
D. between “again hooded” and “were unhooded”;
E. the seventh to thirteenth words (inclusive) between “were unhooded” and “denouncing our loyalty”;
F. between “loyalty to Australia” and “re-hooded, rebound”;
G. the first 12 words between “re-hooded, rebound” and “where we were told to strip”;
H. between “strip off all our clothes” and “We were then kept in cages”;
I. between “kept in cages” and “would hood us to take us” (excluding the first four words and dimensions);
J. between “take us to an interrogation” and “re-hooded and brought to a foreign military barracks”;
K. the first 14 words between “were hosed with water,” and “The Five Techniques include”.
(ii) on page 4 of Annexure A between “his hallucinations.” and “Hooding was used during some interrogations” (excluding the first seven words and number);
(b) Any of the following information in the Applicant’s Concise Statement dated 10 January 2023:
(i) in paragraph 4:
A. the first two words between “CAC course would be” and “He was further advised”;
B. paragraph 4(c) (excluding the words “involve nudity”);
(ii) in paragraph 5:
A. between “The” and “in the CAC Course”;
B. between “outlined during the” and “The applicant was not”;
C. the remainder of paragraph 5 after “major psychological illness.”;
(iii) in paragraph 7:
A. between “(“the group”) were required to” and “captured by a”;
B. between “stripped of their belongings” and “bound, and hooded.”;
C. the remainder of paragraph 7 after “bound, and hooded.” (excluding the nineteenth, twentieth, twenty-seventh and twenty-eighth words of the remainder);
(iv) in paragraph 8:
A. between “attached to a chain” and “the applicant remained hooded” (excluding the thirteenth to twenty-seventh words);
B. between “the applicant remained hooded” and “the applicant was permitted”;
C. the remainder of paragraph 8 after “remove his hood”;
(v) in paragraph 9:
A. between “The applicant” and “denouncing loyalty to Australia”;
B. the remainder of paragraph 9 after “denouncing loyalty to Australia” (excluding the first five words of the remainder);
(vi) in paragraph 11:
A. between “the applicant” and “where they were stripped”;
B. between “where they were stripped” and “held in cages”;
C. between “The applicant” and “various techniques”;
D. the remainder of paragraph 11 after “from sleeping”;
(vii) in paragraph 12 between “mock interrogations” and “The applicant was threatened” (excluding the first four words);
(viii) in paragraph 13 between “module, the applicant” and “The applicant estimates”;
(ix) in paragraph 14:
A. between “module, the applicant” and “re-hooded (whilst remaining”;
B. the remainder of paragraph 14 after “hand-cuffed),”
C. paragraph 14(c);
D. the first four words of paragraph 14(d);
(x) the remainder of paragraph 17 after “the applicant was” (excluding the first three words and the thirty-ninth and fortieth words of the remainder);
(xi) the remainder of paragraph 18 after “the applicant was” (excluding the first ten words, the twelfth word, the eighteenth to twenty-ninth words, and the forty-fifth and forty-sixth words of the remainder).
(xii) the remainder of paragraph 19 after “the applicant was” (excluding the sixth, sixteenth, forty-sixth and forty-seventh words of the remainder);
(xiii) in paragraph 20:
A. between “the applicant was taken to” and “wave guns in his face” (excluding the final four words);
B. between “wave guns in his face” and “The applicant complied”;
C. the remainder of paragraph 20 after “very short range.” (excluding the eighteenth and nineteenth words of the remainder);
(xiv) the remainder of paragraph 21 after “was brought to” (excluding the first three words and the thirty-first and thirty-second words of the remainder);
(xv) paragraph 22(f) save for the words “The applicant was unable to determine whether the threats were real.”;
(xvi) the remainder of paragraph 23 after “renouncing his faith.” (excluding the final three words of the remainder).
(c) In the Response to the Applicant’s Concise Statement dated 7 February 2023 the words in paragraph 4 between “does not dispute” and “and that this constitutes”; and
(d) Any of the information in paragraph 6(a) of the Applicant’s submissions of 16 February 2023.
5. Pursuant to s 37AI(1) of the Federal Court Act, throughout the Commonwealth of Australia the disclosure or publication of any of the information highlighted in blue in the versions of the Originating Application, the Applicant’s Concise Statement, and the Response to the Applicant’s Concise Statement contained within confidential Exhibit VEA-5 to the affidavit of Vanessa Eva Austen affirmed 6 July 2023 (blue material) is prohibited until determination by the primary judge of the question referred to in paragraph 9 of these orders, or until further order of the court.
6. The disclosure or publication of the information referred to in these orders to and between the following persons is expressly permitted between:
(a) the Federal Court judge presiding in the matter;
(b) essential court staff;
(c) the Appellant, Respondent, and their legal representatives; and
(d) the Interested Party’s legal representatives.
7. Within 7 days of the date of these orders, the Appellant is to file and serve copies of the following documents redacted in accordance with these orders:
(a) the Applicant’s Originating Application;
(b) the Applicant’s Concise Statement; and
(c) the Respondent’s Response to the Applicant’s Concise Statement.
8. It is noted that the orders in paragraph 4 above are additional to and operate co-extensively with orders 2-6 of the orders made by the primary judge on 29 June 2023.
9. The proceeding be remitted to the primary judge pursuant to s 28(1)(c) of the Federal Court Act for further hearing and determination, limited to the sole factual question of whether the blue material is in the public domain.
10. The parties file any submissions, of no more than 2 pages in length, about costs within 7 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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