Company B & Saddler
[2023] FedCFamC2F 114
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Company B & Saddler [2023] FedCFamC2F 114
File number: SYC 4723 of 2022 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 10 February 2023 Catchwords: FAMILY LAW – application pursuant to s 121(9)(g) and s 121(9)(d) of the Family Law Act 1975 (Cth) – applicant seeking orders permitting publication of accounts of family law proceedings which identify the first and second respondents as expert witnesses – respondents seek summary dismissal – Court has no jurisdiction – where there is no ‘justiciable controversy’ – application summarily dismissed Legislation: Australian Constitution s 71
Family Law Act 1975 (Cth) ss 4, 39(1), 39A, 39B, 69H, 111CD, 121(1), 121(9), 121(9)(d), 121(9)(g),121(11)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 134
Judiciary Act 1903 (Cth) s 39B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09(1)(a), 10.09(1)(d)
Cases cited: A Bank v Coleiro (2011) 252 FLR 359; [2011] FamCAFC 157
AH & SS (2005) 194 FLR 111; [2005] FamCA 854
Attorney-General v Observer Limited [1990] 1 AC 109
Company B v Public Trustee
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314
Commissioner of Taxation v Darling (2014) 285 FLR 428; [2014] FamCAFC 59
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36
Hobart International Airport Pty Ltd v Clarence City Council (2022) 399 ALR 214; [2022] HCA 5
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
In the Marriage of Lowe (1995) FLC 92-592; [1995] FamCA 19
Nationwide News Pty Ltd and Menaglio [2019] FCWA 266
Newett & Newett [2021] FedCFamC1F 11
Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24
Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5
Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881
Re W (Public Application) (1997) FLC 92-756; [1997] FamCA 8
Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495; [1976] HCA 23;
Seven Network (Operations) Ltd v Cockman [2018] FCWA 108
Stativa & Stativa [2015] FamCAFC 170
Western Australia Newspapers Ltd v Cuzens [2016] FCWA 6
Leeming, Mark, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd edition, 2020)
Division: Division 2 Family Law Number of paragraphs: 78 Date of hearing: 11 November 2022 Place: Sydney Counsel for the Applicant: Mr Sibtain SC with Mr Senior Solicitor for the Applicant: D Legal Counsel for the First Respondent: Mr Brennan SC with Ms McKenzie Solicitor for the First Respondent: SBA Lawyers Counsel for the Second Respondent: Mr Olson Solicitor for the Second Respondent: Barry Nilsson Lawyers ORDERS
SYC 4723 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SADDLER
First Applicant
MS HANSON
Second ApplicantAND: COMPANY B
Respondentorder made by: CHIEF JUDGE ALSTERGREN DATE OF ORDER: 10 February 2023 THE COURT ORDERS THAT:
1.The Amended Initiating Application filed 26 August 2022 be dismissed.
2.The matter be adjourned to the Federal Circuit and Family Court of Australia before Chief Judge Alstergren on 15 March 2023 at 9.00am for a costs hearing in person at the Sydney Registry.
3.By no later than 7 days prior to the hearing the parties file any further written submissions on the question of costs, to be no more than 4 pages in length.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Company B & Saddler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN
By Amended Initiating Application filed 26 August 2022 (‘the Application’) the Company B (‘the applicant’) seeks an order under s 121(9) of the Family Law Act 1975 (Cth) (‘the Act’) permitting the publication of accounts of family law proceedings in which Mr Saddler (‘the first respondent’) and Ms Hanson (‘the second respondent’) (collectively, ‘the respondents’) acted as expert witnesses. The applicant also seeks a declaration that the publication of such accounts is lawful.
The first respondent is a psychiatrist and the second respondent is a clinical psychologist. The respondents are regularly engaged by parties to provide expert evidence in proceedings in the Federal Circuit and Family Court of Australia (‘FCFCOA’) (Division 1 and Division 2) (‘the Court’) and were regularly engaged in the former Family Court of Australia, Federal Circuit Court of Australia and Federal Magistrates’ Court, as Family Report writers.
This Application is unusual. It has been issued in a new proceeding rather than an existing proceeding. It does not refer to a particular past or present proceeding in the Court nor does it provide a draft account of a proposed publication of any proceedings for the Court to consider or approve. Save for the respondents, there is no other party to the Application, and none of the litigants in proceedings that may be affected by the relief sought have been put on notice of this Application. The Application seeks a general order that the applicant be excused from compliance with s 121 of the Act when reporting an account of any proceeding in which either of the respondents have acted as professional witnesses. They do so pursuant to what is described as the inherent jurisdiction of the Court.
The respondents seek that the Application be summarily dismissed pursuant to r 10.09(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) on the basis that the Court has no jurisdiction to make the orders sought by the applicant. Whilst the respondents in the substantive application are the applicants in the summary dismissal application before the Court for determination, the applicants in the summary dismissal application will be referred to throughout these reasons as the respondents.
For the reasons that follow, the Application is to be summarily dismissed.
BACKGROUND
On 8 July 2022, the applicant filed an Initiating Application seeking to publish investigative reports relating to the use of Family Report writers as expert witnesses in proceedings brought pursuant to the Act. These reports relate to proceedings conducted in both Division 1 and Division 2 of the Court alongside its predecessors: the Family Court of Australia, the Federal Circuit Court of Australia and the Federal Magistrates’ Court. The applicant sought Court approval to publish accounts and reports of proceedings past, present or future.
The Application was mentioned on 10 August 2022 before the Court. On that occasion concerns were raised in relation to the Application, and orders were made that the applicant was to file any amended Application and any further evidence by no later than 26 August 2022. By consent on 12 September 2022, compliance with this order was extended to 31 August 2022.
On 26 August 2022 the applicant filed an Amended Initiating Application. Whilst the phrases ‘past, present or future’ were struck out, the applications were otherwise identical in form.
On 12 September 2022 the first respondent filed an Application in a Proceeding seeking that the Amended Initiating Application be summarily dismissed and that the applicant pay the costs of the proceedings.
On 17 September 2022 the second respondent filed an Application in a Proceeding seeking summary dismissal pursuant to r 10.09(1)(a) of the Rules on the basis that the Court has no jurisdiction, and/or pursuant to r 10.09(1)(d) of the Rules on the basis that the Amended Initiating Application has no reasonable likelihood of success. The second respondent also seeks that the applicant pay the costs of the proceedings.
On 20 September 2022 it was ordered that the respondents’ applications be heard together, save for second respondent’s application under 10(1)(d) of the Rules. The application under r 10(1)(d) was adjourned until after the delivery of judgment in this Application.
The applicant intends to critically examine the qualifications, experience, methodology and practices adopted by certain Family Report writers in undertaking assessments in parenting disputes, as well as the manner in which these reports are used by the Court. Of particular interest to the applicant is the work of the respondents, who are both regularly engaged by parties in the proceedings as Family Report writers.
Broadly speaking, these publications will include the following subject matter:
(a)the role of Family Report writers;
(b)the current regulatory scheme for the oversight of Family Report writers;
(c)interviews with commentators concerning the current framework for expert reports in family law matters;
(d)discussion of de-identified cases in which either the respondents provided reports, including criticism of their adopted methodologies; and
(e)anonymised interviews.[1]
[1] Affidavit of Ms C filed 8 July 2022 and 31 August 2022.
To facilitate the publication of these prospective reports, the applicant requires and seeks permission pursuant to s 121 of the Act.
SECTION 121
Section 121 relates to the restriction on publication of court proceedings. Section 121(1) provides as follows:
Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(Emphasis added)
The applicant seeks an order pursuant to s 121(9)(d) or s 121(9)(g) of the Act, or for the Court to otherwise declare an entitlement to publish these accounts and/or prospective reports. These provisions provide that:
(9) The preceding provisions of this section do not apply to or in relation to:
(d)the publishing of a notice or report in pursuance of the direction of a court; or
…
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
It is pertinent to briefly turn to the purpose of s 121 of the Act. It is clear that the general overarching purpose of s 121 is to ensure that parties, children and witnesses in family law proceedings are not identified. The section affords anonymity and privacy to those involved in these proceedings. Such a purpose is clearly evident from s 121(3), which provides a broad and extensive set of criteria which are deemed to ‘identify’ a person for the purposes of the prohibition.
As was stated by Chief Judge Thackray (when describing an equivalent statutory provision to s 121 in the Family Court Act 1997 (WA)) in Western Australia Newspapers Ltd v Cuzens [2016] FCWA 6 (“Cuzens”) at [26]:
Section 243 [of the Family Court Act 1997 (WA)] is an exception to the principle of open justice. It is a restriction imposed by Parliament and not by the Family Court. The underlying policy is to ensure that people do not feel discouraged from coming to the court for fear of having their private life made public. The law is also designed to ensure that children are not held up to ridicule, curiosity or notoriety…
A fundamental presumption of the common law system is that justice should be administered in open court and exposed to public scrutiny.[2] This is particularly pertinent in the context of media organisations, who are considered to be “the eyes and ears of the general public”.[3] There is a need for transparency within the judicial system and to allow for professionals to be scrutinised, including legal practitioners and experts. Indeed the s 121 prohibition does not extend to the identification of court officers or lawyers. The section does however on a plain reading extend to any expert witnesses. Nevertheless, it is imperative that the principle of open justice be finely balanced with the purpose of s 121 of the Act.
[2] Re W (Public Application) (1997) FLC 92-756 at 215 (Fogarty and Baker JJ).
[3] Attorney-General v Observer Limited [1990] 1 AC 109 at 183 (Sir John Donaldson M.R).
Ultimately, this balancing act is crucial in ensuring that this principle is curtailed only to the degree that it is necessary. As stated by Chief Justice French in Hogan v Hinch (2011) 243 CLR 506 (at [27]):
…[A] statute which affects the open-court principle, even on a discretionary basis, should generally be construed, where constructional choices are open, so as to minimise its intrusion upon that principle…
Nevertheless, these competing interests are only engaged to the extent that the Court possesses the ability to grant an exception under s 121(9) of the Act. Relevantly, the respondents’ seek summary dismissal on the basis that this Court has no jurisdiction to grant relief of the kind that the applicant seeks.
SUMMARY DISMISSAL
Rule 10.09 of the Rules provides that:
(1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
It has typically been observed that the court should take a cautious approach to summary dismissal of proceedings, such that the power to summarily dismiss an action should be rarely and sparingly used.[4] However, in circumstances where jurisdiction is at issue, the situation is plain – the court either has jurisdiction or it does not.
[4] Stativa & Stativa [2015] FamCAFC 170; Pelerman v Pelerman (2000) FLC 93-037.
Despite submissions to the contrary by the applicant, the respondents do not need to establish that it is ‘unarguable’ that the Court lacks jurisdiction. Such a hurdle would pose an impermissible gloss on the statutory language and seemingly conflate this ground of summary dismissal with the ‘no reasonable likelihood of success’ ground under r 10.09(1)(d) of the Rules. The respondents simply need to establish that the Court has no jurisdiction.
The starting point in ascertaining a court’s power to decide proceedings involves examining whether a ‘matter’ arises which the court is capable of determining.
IS THERE A ‘MATTER’?
The High Court in Hobart International Airport Pty Ltd v Clarence City Council (2022) 399 ALR 214 (“Hobart International Airport”) have recently stated that ‘matter’ has two elements. First, “the subject matter itself as defined by reference to the heads of jurisdiction set out in [Ch] III [of the Constitution]”. Secondly, the nature of the dispute being sufficient to give rise to a ‘justiciable controversy’.[5] These must each be considered in turn.
[5] Hobart International Airport at [26] (Kiefel CJ, Keane and Gordon JJ).
Does the Court have subject matter jurisdiction?
The determination of whether a ‘matter’ exists firstly requires the Court to possess subject matter jurisdiction. This requirement has been widely described by the High Court as “the first duty” of any court approaching a cause before it.[6]
[6] Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 (Isaacs ACJ); Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274 at [51] (Kirby J).
Jurisdiction refers to the authority of a court to exercise judicial power. Both Division 1 and Division 2 of the FCFCOA are Courts created by Parliament pursuant to s 71 of Chapter III of the Australian Constitution. These Courts have limited specific jurisdiction in line with the powers which have been conferred by the legislature.
Although the present obligation or duty of the applicant not to publish any account of proceedings, or any part thereof, which identifies a party, associated person or witness to those proceedings owes its existence to a Commonwealth law (namely s 121 of the Act), this alone is insufficient. As correctly identified by the first respondent, the FCFCOA (Division 1 and Division 2) are not Courts which possess general federal jurisdiction akin to the ‘arising under’ jurisdiction vested upon the Federal Court of Australia pursuant to s 39B of the Judiciary Act 1903 (Cth). For this reason, any party seeking to have their claim heard by these Courts must be able to point to the source of the Courts’ authority to do so. For our purposes, these are typically found in two key sources of Commonwealth legislation: the Act and the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’).
The respondents reject the applicant’s submissions that jurisdiction to hear this application arises. As a starting point, the respondents say that the only conceivably relevant means in which the Court could be expressly vested with jurisdiction are conferred by s 39(1) and s 69H of the Act and s 134 of the FCFCOA Act. However in the circumstances of this proceeding, these sections do not confer jurisdiction on the Court. For the sake of completeness, I will address each briefly.
First, s 39(1) of the Act confers jurisdiction on Division 2 of the FCFOCA in ‘matrimonial causes’. The term ‘matrimonial causes’ is defined under s 4 of the Act and lists a variety of different types of proceedings that may be considered a “matrimonial cause” – for example, proceedings between the parties to a marriage, or by the parties to a marriage, for a divorce order.
I accept the first respondent’s submission that the Application is not a matrimonial cause within the meaning of s 4 (a) to (eb) inclusive. Pursuant to s 4(f) of the definition of ‘matrimonial cause’– which includes any proceedings related to proceedings which are otherwise considered a ‘matrimonial cause’– the first respondent relies on extensive High Court Authority including Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 to suggest that this provision is only enlivened if the orders sought are ancillary to, or consequential upon, the orders made in another matrimonial cause. As the applicant fails to identify any matrimonial cause to which it relates, jurisdiction is not enlivened on this basis.
Secondly, s 69H of the Act confers jurisdiction on Division 2 of the FCFOCA in relation to matters arising under Part VII of the Act, entitled ‘Children’. It is clear that the Application does not concern a matter under Part VII of Act as it is not concerned with the welfare of a child.
Thirdly, s 134 of the FCFCOA Act confers jurisdiction on the FCFCOA (Division 2) “in respect of matters … that are associated with matters in which the jurisdiction of the [Court] is invoked”. Similar to the argument under matrimonial cause, such jurisdiction could not arise without identification of any matter(s) in which the Court’s jurisdiction is enlivened. I accept the respondents submissions that as the applicant’s claim is not associated with any specific earlier proceeding, and no matter can be identified, the Court cannot be satisfied that it has associated jurisdiction.
The success of the respondents’ application for summary dismissal therefore turns on whether s 121(9) impliedly confers jurisdiction on this Court to grant the relief which the applicant seeks.
Does section 121(9) of the Act confer jurisdiction?
It follows from the above analysis that the respondents’ must establish that s 121(9) of the Act does not both create a power which the Court can exercise and simultaneously confer jurisdiction upon the Court to grant the relevant relief. Such laws have been described by the Honourable Justice Leeming in Authority to Decide – The Law of Jurisdiction in Australia as ‘double function laws’.[7]
[7] Leeming, Mark, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd edition, 2020) (“Authority to Decide”) at 133.
In the course of oral submissions, the first respondent drew the Court’s attention to the following passage of Authority to Decide which indicates whether a particular statute bears a ‘double function’:
A reference in the statute to a claim being brought in “any court of competent jurisdiction” is premised on “the jurisdiction of the court - its authority to decide - being found in another source”. A powerful indication that it does not is the existence of an express provision elsewhere in the Act dealing with jurisdiction, but the absence of express provision does not mean that there is an implied conferral of jurisdiction. [8]
(Citations omitted).
[8] Authority to Decide at 133-4.
As correctly identified by the first respondent, the Act is replete with provisions which expressly vest jurisdiction upon the Court – including, inter alia, ss 39A, 39B and 111CD. This presents a strong, albeit not determinative, basis for concluding that s 121(9) alone fails to vest jurisdiction upon the Court in the absence of similar language.[9]
[9] Authority to Decide at 133-4.
In analysing the text of s 121(9), the first respondent focused on the three subsections which concern steps or actions that the Court may take – ss 121(9)(d), (da) and (g). These provisions prima facie utilise the definition of “court” in s 121(11), which reads as follows:
"court" includes:
(a)an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b)a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
The applicant seeks that the Court adopt a broad interpretation of this language. The applicant emphasised the broad definition of “Court” under s 121(11) to suggest that an application under s 121(9)(d) or (g) is not confined to being heard by the Court which heard the relevant family law proceedings, and therefore can be seen as including ‘any’ court. As such, it was argued that s 121 of the Act ‘provides a freestanding jurisdictional basis’ to exclude the restriction on the identification of parties, those associated with parties and witnesses in proceedings where one of the specified categories in s 121(9) of the Act applies, including where the Court takes action pursuant to ss 121(9)(d), (da) and/or (g) of the Act.[10]
[10] Applicant’s written submissions filed 30 September 2022 at [58].
In making this argument, the applicant relied on Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314 (Hodgson JA, Campbell JJA and Lindgren AJA) and Newett & Newett [2021] FedCFamC1F 11 (Howard J), in which “court” under s 121(9) was considered to include the Supreme Court of New South Wales and the Magistrates’ Court of Queensland respectively. However, it is important to recognise that these authorities involve an application of s 121(9)(a) – a provision which explicitly adopts the language of ‘any court’. Accordingly the applicant’s submissions failed to identify a proceeding involving a court aside from this Court (or its predecessors) in which an order under s 121(9)(d) or (g) has been made.
In contrast the first respondent urges the Court not to adopt an expansive reading of “court” in relation to these subsections, on the basis that such an interpretation would confer federal judicial power on bodies (or persons) which are not courts. This, it was submitted, would produce an outcome that is contrary to long-established constitutional law principles and thus could not have been intended by the legislature without clear language to this effect.
Instead, the first respondent suggests that the term “court” in this context should be interpreted in line with the definition in s 4 of the Act to mean ‘the court exercising jurisdiction in those proceedings’. This aligns with the use of the singular phrase “the court” under s 121(9)(g).
If the first respondent’s submissions on this point are to be accepted, there is no means for courts other than the Court or the Family Court of Western Australia to hear an application for approval under s 121(9)(g) or give a direction under s 121(9)(d). This would directly refute the applicant’s contention that s 121 of the Act carries with it some form of freestanding jurisdiction.
Similarly, the applicant relied upon a number of authorities in which the Court has exercised their powers under s 121(9)(d) or (g) in favour of media entities, including Cuzens, Seven Network (Operations) Ltd v Cockman [2018] FCWA 108 (Thackray CJ) (“Cockman”), Nationwide News Pty Ltd and Menaglio [2019] FCWA 266 (Sutherland CJ) (“Menaglio”) and AH & SS (2005) 194 FLR 111 (Bryant CJ) (“AH & SS”). However, a key distinguishing feature of these cases – and one which the respondents were at pains to identify – is that they all relate to identified proceedings (either ongoing or concluded) in which the parties to those proceedings were joined. This is vastly different from the broad authority which the applicant seeks in this proceeding and is therefore an unconvincing basis for the finding of jurisdiction in these novel circumstances.
The respondents also sought to establish that neither s 121(9)(d) nor (g) confer jurisdiction on the Court in these proceedings on the basis that these provisions do not give the Court the power to grant the relief that the applicants seek. Accordingly, I now move to a further consideration of these provisions.
Section 121(9)(g) of the Act
As already stated, s 121(9)(g) provides the exception that s 121 does not apply in relation to the publication of accounts of proceedings, where those accounts have been approved by the Court. The first respondent submits that whilst the Court has discretion under s 121(9)(g), the power within this subsection can only be exercised in relation to particular accounts of proceedings which are submitted to the Court for approval.
The second respondent further submits that the use of the demonstrative pronoun “those” is of crucial importance for the application of s 121(9)(g) – it indicates that the accounts which are published must be the very accounts which the Court has approved pursuant to s 121(9)(g). As there are no proceedings that are identified, and there are no draft publications submitted, the applicant seeks leave to publish accounts of proceedings in the abstract.
The second respondent in this regard draws the Court’s attention to A Bank v Coleiro (2011) 252 FLR 359 (Finn & Strickland JJ) (“Coleiro”) at [153] where the Full Court appears to suggest, albeit in obiter dicta, that an order under s 121(9)(g) must “contain an approved account” – that is, the order must be made in relation to the specific account which is sought to be published. Additionally, in Cockman, the respondents submit that the Court was provided with a full transcript of the proposed publication and leave was refused due to, amongst other things, the risk of the publication being rendered inaccurate due to a lack of relevant detail and its focus on sensational matters. The second respondent submits that it is “those accounts” – ie, specific accounts which have been provided to the Court – which the Court has power under s 121(9)(g) to approve. This aligns with the reasoning in Coleiro and is generally consistent with the approach of applications for relief under this exception, who have largely submitted drafts of their proposed publications for approval.
In relation to the evidence provided by the applicant it was said by the first respondent in oral submissions that paragraphs 42-46 of the Affidavit of Ms C filed 8 July 2022 list a series of account of proceedings that are published and name either of the respondents. However it was submitted that it was apparent from such evidence that these proceedings are not the accounts that the applicant seeks to publish.[11] Furthermore, the second respondent orally submitted that it is clear from the Affidavit of Ms C[12] at paragraph 7 that there must be specific proceedings that the applicant intends to publish accounts on, however the applicant has not informed the respondents nor the Court of these proceedings. Accordingly it is impossible for the Court to determine what possible accounts would be published.
[11] Transcript 11 November 2022, p.31 lines 32-36.
[12] Affidavit of Ms C filed 31 August 2022.
In contrast, the applicant submits that ‘accounts’ can be in reference to proceedings generally rather than being confined to a particular account of a particular proceeding. The applicant submits that whilst applications have routinely been made in specific extant and completed proceedings, the statutory language does not limit the exercise of the Court’s power in this manner.
Additionally, the applicant also cites the case of Cuzens and Menaglio, in which the Court granted leave for an account of specified proceedings to be published. However, the Court did not simply authorise the publication of accounts in the abstract, and instead required the accounts to be “fair and accurate”. To this end, the second respondent submits that leave has never been granted pursuant to s 121(9)(g) to publish reports of proceedings at large.
Unfortunately, at best, the evidence provided in the Affidavits of Ms C only indicate an intention that the applicant will publish prospective reports in relation to de-identified cases in the future. Notwithstanding the affidavit material provided, the applicant has failed to identify particular proceedings in which they will seek to publish an account, or provide a draft account. Unfortunately this lacks the clarity required under s 121 of the Act.
I ultimately accept that in circumstances where the applicant has not provided drafts of the proposed publications for approval, or identified the proceedings about which they seek to publish accounts, the Court could not determine whether any such accounts were ‘fair and accurate’. In the circumstances, an order of this nature could not properly be made under s 121(9)(g) of the Act.
Section 121(9)(d) of the Act
Secondly, the respondents submit that s 121(9)(d) also fails to confer power on the Court in this proceeding. The applicant in this regard seeks a “direction permitting” the publication of reports of proceedings which identify the respondents pursuant to s 121(9)(d). The respondents submit that the exception pursuant to s 121(9)(d) is engaged when a court has “directed” that a report of proceedings be published. As such, the respondents submit that a direction is mandatory, not permissive, such that the applicant would be in contempt of Court if they failed to publish a report in the circumstances. Consequently, the respondents argue that s 121(9)(d) is not apt to give the applicant the discretionary relief they have sought in their Application.
In support of this proposition, the respondents again cite Coleiro, where the Full Court in granting an appeal of an order purported to relieve the husband and wife from compliance with the provisions of s 121 stated (at [153]):
We have difficulty understanding how the order made in this case would come within any of those three mentioned categories. The purported order did no more than give leave. It did not constitute a direction for the publication of a notice or report for the purposes of paragraph (d) and it did not contain an approved account of the purpose of paragraph (g) …
The applicant disagrees and submits that s 121(9)(d) and the Courts power to make a direction permitting the publication of a report is not limited to being mandatory in nature and should not be construed as such. Instead, the applicant submits that the power provides for the possibility of an unprohibited publication. Further, the applicant urged the Court to confine Coleiro to its facts insofar as the wording of the relevant order simply did not fall within the ambit of s 121(9)(d).
The applicant says that the respondents’ submissions ignores the “broad power inherent in the conferral of an authority to give directions in a proceeding”. It was submitted by the applicant that the language of the subsection is not limited to the making of mandatory orders, and there is no reason why a directive power would be so limited. In support of this, the applicant suggests that two previous Chief Justices of the Family Court of Australia in AH & SS and In the Marriage of Lowe (1995) FLC 92-592 (at 81,854 per Nicholson CJ) have construed s 121(9)(d) as a permissive source of power. The applicant also points to Company B v Public Trustee (Hill J) where a similarly worded subsection was upheld as a source of power for an order of the kind presently sought.
In consideration of the abovementioned authorities, there is merit in the applicant’s argument that a direction under s 121(9)(d) is not required to be mandatory in nature. However, there is no basis for the Court to suggest that this provision operates to impliedly confer jurisdiction. The same can be said for s 121(9)(g).
In circumstances where the applicant has failed to identify a proceeding to which they intend to publish accounts or reports, the Court ultimately lacks jurisdiction to grant the relief sought. Given the lack of jurisdiction it is therefore not necessary to consider and determine the merits of the Courts power to make a declaration of the kind sought by the applicant by Prayer 3. Accordingly, the Application must be summarily dismissed on this basis.
However, in the event that the Court is mistaken as to the absence of subject matter jurisdiction conferred on this Court, for the reasons that follow, a ‘matter’ also fails to arise due to the lack of a justiciable controversy.
Justiciable Controversy
As mentioned, also central to whether there is a ‘matter’ is the requirement that the dispute involves a ‘justiciable controversy’.[13] The High Court in Palmer v Ayres (2017) 259 CLR 478 (Kiefel, Keane, Nettle and Gordon JJ). identified the relevant principles as follows (at [26]-[27]):
A “matter”, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding– “controversies which might come before a Court of Justice” (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. What comprises a “single justiciable controversy” must be capable of identification, but it is not capable of exhaustive definition. “What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”.
The requirement that, for there to be a “matter”, there must be an “immediate right, duty or liability to be established by the determination of the Court” reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.
(Citations omitted)
[13] Hobart International Airport at 223 [29].
Similarly, Gageler and Gleeson JJ in Hobart International Airport suggested that (at [47]):
…The central conception of a matter is of a justiciable controversy between defined persons or classes of persons about an existing legal right or legal obligation. The controversy is justiciable if it is capable of being resolved in the exercise of judicial power by an order of a court which, if made, would operate to put an end to the question in controversy …
Drawing on Hobart International Airport, the first respondent sought to distil four key criteria in determining whether a ‘justiciable controversy’ exists. These include:
(a)whether the dispute is of ‘real practical importance’ to the applicant;
(b)whether the applicant has a ‘real commercial interest’ in the relief sought;
(c)whether the respondent was a ‘proper contradictor’; and
(d)whether there is a ‘real controversy’.[14]
[14] Hobart International Airport at [36].
Ultimately the respondents argue that the applicant fails to satisfy any of the above criteria and that accordingly there is no ‘justiciable controversy’ that is capable of being resolved by the Court in the exercise of judicial power.
In this regard, the first respondent’s oral submissions focused particularly on the breadth of the Application and the nature of the relief sought. In seeking approval or permission to publish an account or report of any proceedings in which the respondents had been experts, it was submitted that the Application extends to proceedings in which the applicant has no intention to criticise the respondents or otherwise report on.
It is accepted by the first respondent that he has an interest in preventing the publication of a program that he has been informed by the applicant will deal with a discrete number of unidentified proceedings in which he has been an expert, and which the applicant intends to traduce his reputation. However the first respondent submits he has no other interest in the hundreds of other proceedings he has been an expert witness in. In other words, the first respondent submits that there is a clear subset of proceedings in which he has been an expert and which are the subject of the applicant’s ‘interest’, and there is a proper contradictor insofar as the first respondent’s reputation is concerned. However, critically, as this proceeding extends abundantly wider than this subset of proceedings to any proceedings the first respondent has been an expert in, it follows that the first respondent could not be viewed as a proper contradictor against a claim of this nature. This is because there is no controversy between the parties for every proceeding in which he has given evidence.
Furthermore, the respondents submit that there is no ‘real controversy’ as the only relevant action that has been taken by the applicant has been the initiation of the proceeding. The respondents maintain that this alone is insufficient.
Whilst the applicant accepts that there is no controversy between the parties save for this proceeding, the applicant submits that the respondents serve as clear contradictors insofar as they are opposing this Application. In other words, that the justiciable controversy is the controversy arising pursuant to s 121(9)(g) or (d) of the Act, being whether the Court should take action it is authorised to take under those sub-sections. To that extent, the applicant contends that s 121(9)(d) and (g) of the Act grants powers to the Court which presume the existence of justiciable controversies regarding the publication or dissemination of court proceedings under the Act.
Furthermore, the applicant submits that it is of real practicable importance to them whether or not the principle of open justice should be limited by the s 121(1) prohibition or whether they should have relief from that prohibition. The applicant in this regard also points to the public significance of the matters in which they intend to report on to demonstrate the real practical importance of whether the applicant should be granted the relief sought. The applicant also submits that it is “obvious” that they have a real commercial interest in publishing a story which is not curtailed beyond that which is necessary. The applicant says they have a “fundamental interest” in ensuring its reporting is not unnecessarily fettered.[15]
[15] Affidavit of Ms C dated 8 July 2022 at [8].
Ultimately the controversy that the applicant submits is that the respondents oppose the Application. It is clear on the evidence that there is no pre-existing relationship between the parties and the mere fact that the respondents oppose the Application does not in and of itself create a justiciable controversy. As the respondents persuasively argue, when applying the principles of Hobart International Airport, there exists no dispute between the parties independent of this proceeding. The applicant effectively seeks that an order be made that unidentified accounts which name the respondents as having been a witness in unspecified proceedings under the Act be possibly reported at some stage in the future. Without such specificity, there is no controversy arising from this Application that is justiciable or capable of being resolved in the exercise of judicial power by the Court.
It is also pertinent to note that an Application in this nature, as the respondents submit, could only be brought in relation to particular, identified proceedings. This would require the applicant to join the relevant parties involved in those proceedings as respondents to these proceedings, or file in the relevant proceedings, which they have not done. Such persons would clearly be considered respondents as their rights and legitimate expectations based on s 121(1) of the Act may be altered by such an application. Furthermore, the respondents submit that authorities confirm that all parties to a proceeding are necessary parties to any application that any person be released from the prohibition in s 121.[16] The form of the current Application seeks to avoid the requirement to serve the necessary parties. By crafting their Application in a manner which the applicant has, the Court is unable to grant the relief which is sought.
[16] Commissioner of Taxation v Darling (2014) 285 FLR 428 (Thackray, Strickland and Murphy JJ) at [203].
In all of the circumstances, where there is no source of jurisdiction that can be identified and where there is no justiciable controversy capable of being determined, there is consequently no ‘matter’ which the Court is capable of determining. As mentioned, the proceeding will be dismissed.
COSTS
Despite the respondents’ filing written submissions regarding costs in the event of summary dismissal, the applicant maintained in oral submissions that the question of costs should be considered following the Court’s determination of this interlocutory application.
Accordingly, the question of costs will be adjourned to a hearing for further oral submissions.
CONCLUSION
Despite the issue of jurisdiction being raised squarely with counsel for the applicant at the mention of this matter on 10 August 2022, as well as being granted further time to consider its position, the applicant has failed to provide a jurisdictional basis for the relief in which they seek. Should the Court be incorrect about there being no jurisdictional basis for the relief in which the applicant seeks, the applicant has nevertheless also failed to identify the justiciable controversy that is capable of being resolved.
Furthermore, notwithstanding the fundamental principle of common law that justice should be administered in open court and that those working in the Court should be exposed to public scrutiny, as evidenced by s 121, this must be finely balanced with the need for confidentiality. It is also imperative to balance s 121 with the need to maintain and protect the identification of parties and vulnerable witnesses to a family law proceeding. Unfortunately, the Application and the relief sought ignores the need for such protection.
Accordingly, the proceeding will be summarily dismissed.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Judge Alstergren. Associate:
Dated: 10 February 2023
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