Commonwealth of Australia v Lyon

[2003] FCA 995

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia & Anor v Lyon [2003] FCA 995

PRACTICE & PROCEDURE – jurisdiction – orders sought restraining Magistrate from permitting cross-examination of witness – whether the Federal Court has jurisdiction to make such order in proceedings under State Law

Witness Protection Act 1994 (Cth), s 28
Judiciary Act 1904 (Cth), s 39B(1A)(a)

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 referred to
Young v Quin (1985) 4 FCR 483 cited

COMMONWEALTH OF AUSTRALIA & COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v PAUL LYON

N 1447 of 2003

MOORE J
19 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1447 OF 2003

BETWEEN:

COMMONWEALTH OF AUSTRALIA
FIRST APPLICANT

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
SECOND APPLICANT

AND:

PAUL LYON
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

19 SEPTEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Until further order Magistrate Lyon be restrained from requiring or permitting Audrey Ann Fagan to be cross-examined on her affidavit and confidential affidavit both sworn on 18 September 2003 and filed in the proceedings R v Barbaro & Ors in the Local Court.

2.Until further order Magistrate Lyon be restrained from lifting the suppression order granted by him in the proceedings R v Barbaro & Ors on 17 September 2003 and extended on 18 September 2003 until 19 September 2003.

3.Service of these orders can be effected by facsimile transmission to the Registry of the Central Local Court on [phone] or such other number as is necessary to communicate this order to the respondent by facsimile.

4.The applicants file an application in these proceedings by 12.00 noon on 19 September 2003 and service of that application be abridged to 4.00 pm on 19 September 2003.

5.The application be returnable before the Court at 10.15 on Tuesday 23 September 2003.

6.        Liberty to apply.

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	N 1447 OF 2003

BETWEEN:

COMMONWEALTH OF AUSTRALIA
FIRST APPLICANT

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
SECOND APPLICANT

AND:

PAUL LYON
RESPONDENT

JUDGE:	MOORE J
DATE:	19 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(given ex tempore)

1. This is an urgent ex parte application by the Commonwealth of Australia and the Commissioner of the Australian Federal Police for orders in the nature of interlocutory injunctions directed to a Magistrate of the Local Court of New South Wales.  Declarations are ultimately sought.  The matter has been brought on with considerable urgency given that the events to which the orders relate are to occur today.

2. The background may be briefly stated and is revealed in an affidavit sworn by Mr Stephen Vorreiter, a solicitor with the Australian Government Solicitor.  Committal proceedings are presently on foot in the Central Local Court, Sydney.  I was informed by counsel appearing for the applicants that the proceedings concern offences under state law.  An application was made to adjourn the committal hearing on the basis that a witness was too ill to attend.  To that end a medical certificate was provided to the New South Wales Director of Public Prosecutions by the Australian Federal Police.  It was tendered in the proceedings before the Magistrate.  The certificate was signed by medical practitioner who is a member of the Australian Federal Police.  Certain aspects of the certificate were false.  The address of the surgery did not reflect where the medical practitioner worked from.  The medical practitioner had not examined the witness.  The witness was, in fact, a protected witness within the meaning of the Witness Protection Act 1994 (Cth) (“the Act”). That Act concerns a scheme of witness protection administered by the Australian Federal Police.

3. It appears that the Magistrate became aware of the falsity of these aspects of the medical certificate.  An application was made by or on behalf of the Australian Federal Police for an order suppressing certain information on the medical certificate.  The order was sought on the basis that it was necessary to safeguard the safety and welfare of the medical practitioner, the witness who was a participant in the witness protection scheme, and other participants in that scheme.  This occurred late in the afternoon on Wednesday 17 September 2003 and the order was made. 

4. The following day, yesterday, there was a further hearing before the Magistrate.  Representatives of the media appeared.  Mr Vorreiter sought a continuation of the suppression order and furnished an affidavit from the Acting Deputy Commissioner of the Australian Federal Police.  There were two versions of the affidavit.  One was an “open” and truncated version and another a more complete and “closed” version.  Consistent with authority, Mr Vorreiter invited the Magistrate to read the “closed” affidavit.  Apparently a question arose about whether the deponent should be cross-examined.  Mr Vorreiter has said in his affidavit read before me that:

   His Worship said, in effect, that he could not see why the deponent could not be made available in the usual way, and said he required the deponent to come to Court.

5. The matter comes before the Magistrate at 9.30 am today. The Acting Deputy Commissioner will be present at Court. There is an apprehension (based on the earlier ruling of the Magistrate) that the Acting Deputy Commissioner will be cross-examined. If this occurred it will be, at least arguably, an unusual step given that the affidavit is advanced as a confidential one in support of a claim, made under s 28 of the Act and on grounds of public interest immunity, that the identity of the medical practitioner and other details should not be made public. It seems to me arguable that if an order or directions are sought under s 28 of the Act or on grounds of public interest immunity then affidavit evidence advanced in support of the order or direction should be treated in the same way as affidavit evidence in support of a claim for public interest immunity more generally. Cross-examination of the deponent usually is not permitted.

6. I was initially concerned about whether the Court had jurisdiction to make the orders sought.  Plainly enough under s 39B(1A)(a) of the Judiciary Act 1904 (Cth), this Court has jurisdiction when the Commonwealth is seeking an injunction.  However that jurisdiction arises in “any matter”.  The nature of the jurisdiction was discussed by the High Court in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559. It appears to me that it is at least arguable that there is a justiciable controversy (constituting a matter) between the Commonwealth and the Magistrate concerning his power and authority to allow the Deputy Assistant Commissioner to be cross-examined and the lawfulness of any order permitting such cross-examination. In addition there may be, arguably, a justiciable controversy concerning the scope of the power conferred by s 28 of the Act and the nature of the duties it imposes.

7. In these circumstances I am prepared to make orders restraining, on a temporary basis, the Magistrate from allowing the cross examination of the Deputy Assistant Commissioner and also an order restraining the Magistrate from lifting the suppression order made on 17 September 2003. 

8. While it is with considerable diffidence that I make the order directed to the Magistrate, it appears from the evidence before me including what I have been told by counsel appearing for the applicants that the Magistrate does not consider there is any impediment to the cross-examination of the Deputy Assistant Commissioner, notwithstanding the authorities such as Young v Quin (1985) 4 FCR 483 which was drawn to his attention by Mr Vorreiter in submissions made yesterday. I have no doubt that his Worship may quite properly be considerably troubled by the notion that false medical certificates are furnished before him in support of applications for an adjournment. However if that is either an offence or a contempt, there are procedures for dealing with it. At the moment, as I understand it, the only issue before him is whether the confidentiality of an exhibit tendered in support of the application should be maintained. For the reasons just given, I am of the view that it is arguable that the procedures his Worship is adopting which deal with that question involve an error of law.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             19 September 2003

Counsel for the Applicant:	Mr Elliott
Solicitor for the Applicant:	Australian Government Solicitor
Date of Hearing:	18 & 19 September 2003
Date of Judgment:	19 September 2003