Dye v Commonwealth Securities Limited
[2010] FCAFC 115
•1 September 2010
FEDERAL COURT OF AUSTRALIA
Dye v Commonwealth Securities Limited [2010] FCAFC 115
Citation: Dye v Commonwealth Securities Limited [2010] FCAFC 115 Appeal from: Application for leave to appeal:
Dye v Commonwealth Securities Limited [2010] FCA 720
Dye v Commonwealth Securities Limited (No 3) [2010] FCA 903Parties: VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399) File number: NSD 909 of 2010 Judges: MARSHALL, RARES AND FLICK JJ Date of judgment: 1 September 2010 Catchwords: HIGH COURT AND FEDERAL COURT – suppression orders – application for suppression orders relating to the names of two persons, one male, one female – power to suppress names of persons by court exercised only when necessary to do so in the interests of justice – prior publication of male person’s name in court document available to public inspection
Held: The name of the female, but not the male, be suppressed.
Legislation: Federal Court of Australia Act 1976 (Cth) ss 17, 50
Federal Court Rules O 46 r 6Cases cited: Catena v Australian Securities and Investment Commission [2010] FCA 598
Dickason v Dickason (1913) 17 CLR 50
E v Australian Red Cross Society (1991) 27 FCR 310
Grassby v The Queen (1989) 168 CLR 1
Guglielmin v Trescowthick (No 3) [2005] FCA 139, 220 ALR 535
Hogan v Australian Crime Commission [2010] HCA 21, 267 ALR 12 applied
John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293Minister for Immigration and Ethnic Affairs v Respondent A (1994) 54 FCR 333
Re Opes Prime Stockbroking Ltd (No 2) [2008] FCA 1578
SRD v Australian Securities Commission (1994) 52 FCR 187
The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216
X v Australian Prudential Regulation Authority [2007] HCA 4, 226 CLR 630Date of hearing: 1 September 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Appellant: PE King Solicitor for the Appellant: Turner Freeman Counsel for the Respondent: KL Eastman and G Wright Solicitor for the Respondent: Freehills
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 909 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: VIVIENNE LOUISE DYE
AppellantAND: COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399)
Respondent
JUDGES:
MARSHALL, RARES AND FLICK JJ
DATE OF ORDER:
1 SEPTEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Until further order, the identity of the female referred to in paragraph 9 on page 724 of volume 2, part B, of the application books, being page 2 of the statement by the application to the New South Wales Police dated 13 February 2009, be suppressed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 909 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: VIVIENNE LOUISE DYE
AppellantAND: COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399)
Respondent
JUDGES:
MARSHALL, RARES AND FLICK JJ
DATE:
1 SEPTEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
MARSHALL J:
I agree with the other members of the Court that the name of the female identified at p 724 of the appeal book should be suppressed. I do not consider that a sufficient basis has been established for a suppression order with respect to him. He is already named in a publicly available document which is attached to the application.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 8 September 2010
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 909 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: VIVIENNE LOUISE DYE
AppellantAND: COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399)
Respondent
JUDGES:
MARSHALL, RARES AND FLICK JJ
DATE:
1 SEPTEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
At the outset of the proceedings today the Court raised with counsel for the respondent, Commonwealth Securities Limited, a matter appearing in her written submissions. These referred to a suppression order in force preventing the publication of the names of two individuals in respect of whom the applicant, Vivienne Dye, had raised allegations. The material in the appeal papers included, as part of the application, a copy of part of the notice of termination by what was then called the Human Rights and Equal Opportunity Commission. This appeared to be a part of the material that ordinarily would be publicly available under O 46, rr 6(1) and (2). The notice of termination contained the name of two individuals, one a male. The other individual, a female, was alleged to have been the victim of a sexual assault.
There is legislation in New South Wales that ordinarily provides that the names of alleged victims of sexual assault proceedings be suppressed from publication. However, at present the parties have not been able to identify the precise statutory provisions that may apply to the alleged female victim. For this reason it appears to me to be appropriate in all of the circumstances, having regard to the potential harm to the possible statutory protection she may have from being identified, to make an order that the name of the female, the subject of a statement by Ms Dye to the New South Wales police, be suppressed.
Different considerations were raised in respect of the male. CommSec seeks that his name be suppressed entirely from publication until further order. He was referred to by name in the notice of termination and in Ms Dye’s current filed statement of claim as well as in its proposed amended form.
On 11 March 2010 both parties apparently were content for the primary judge to make a suppression order. Her Honour ordered that the man’s name, or any material tending to identify him in connection with the allegations made by Ms Dye in her statement to the police, not be published otherwise than to members of the Court and its staff, the parties, their legal representatives and the staff of any transcript provider.
The power to suppress evidence or names of persons is an extraordinary power of the Court. It is exercised only in circumstances where it is necessary to do so in the interests of justice. Each of ss 50 and 17(4) of the Federal Court of Australia Act 1976 (Cth) provides a statutory foundation upon which the Court may make an order forbidding or restricting the publication of particular evidence, as well as the names of parties or witnesses, as are necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth and to exclude the public or persons specified by the Court from a sitting of the Court: Hogan v Australian Crime Commission (2010) 267 ALR 12 at 19 [30]-[33], 20-21 [38]-[39] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. The Court also has an implied or inherent jurisdiction to restrict publication: see John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476E-477A per McHugh JA, Glass JA agreeing at 467; Grassby v The Queen (1989) 168 CLR 1 at 16-17 per Dawson J with whom Mason CJ, Brennan J and Toohey J agreed; see too The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216 at 220-223 [18]-[29], [32] where I discussed the applicable principles.
Ordinarily every proceeding in a court of justice exercising the judicial power of the Commonwealth must be conducted in public. So much is expressly provided in s 17(1) of the Federal Court of Australia Act itself: Hogan 267 ALR at 14 [7]. As Barton ACJ said with the agreement of Isaacs, Gavan Duffy, Powers and Rich JJ in Dickason v Dickason (1913) 17 CLR 50 at 51:
“… there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law but, there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice.”
Barton ACJ concluded that ss 15 and 16 of the Judiciary Act 1903 (Cth) showed clearly the intention the Parliament that the jurisdiction of the High Court should be exercised publicly.
I am of opinion that this Court must proceed on the same basis unless it is shown that it is necessary in the interests of justice to suppress a name. The mere fact that the allegations against a person are untested, or are of a very serious nature and may never come to be tested in a final hearing, is not a sufficient reason for suppressing that person’s name from the ordinary publicity attendant to the conduct of proceedings in open Court. Courts exist in order to resolve controversies. It is their function to receive and to deal in open Court with what are almost always untested allegations. The judicial process consists of the receipt and consideration of untested allegations by subjecting them to testing in open Court. That is the nature of litigious disputes. Our nation’s criminal courts are full of cases in which untested allegations or charges of the most serious kind, including murder, terrorism offences and sexual assault offences, are made daily against accused persons.
The public is well able to distinguish the fact that there is an allegation that is untested as against one that is established by a judgment or verdict. That is the fundamental basis on which our system of open justice law has proceeded for centuries. The exercise of the judicial power under Ch III of the Constitution ordinarily must occur in open Court. I held in Llewellyn v NineNetwork Australia Pty Ltd (2006) 154 FCR 293 at 297-299 [18]-[28] that it is not appropriate to suppress allegations, merely because they are untested even if they are of the most serious kind or salacious. The power to make, or continue, an order under s 50 cannot be exercised merely because it appears to be convenient, reasonable or sensible, or to serve some notion of the public interest or as a result of a balancing exercise: Hogan 267 ALR at 19 [31]. The sole issue is whether or not it is necessary in the interests of justice that something be suppressed from publicity. That is an extraordinary course. It requires justification.
CommSec referred to the fact of the suppression order in force made by the primary judge. However, it did not provide the Full Court with evidence, other material or submissions in advance of or during the hearing, to warrant the making of any such order in these proceedings. This application for leave to appeal is separate and distinct from the proceedings before the primary judge.
In my opinion there is no justification to depart from the rule that the proceedings of the Court should be conducted in public in relation to the man’s name. I would refuse to make a suppression order in respect of his name.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 8 September 2010
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION
NSD 909 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: VIVIENNE LOUISE DYE
AppellantAND: COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399)
Respondent
JUDGES:
MARSHALL, RARES AND FLICK JJ
DATE:
1 SEPTEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
FLICK J
The power of the Court to suppress the publication of “particular evidence, or the name of a party or witness” cannot be questioned: Federal Court of Australia Act1976 (Cth), s 50. That power has been exercised to suppress the names of parties to litigation (e.g., E v Australian Red Cross Society (1991) 27 FCR 310 at 313 to 314 per Wilcox J) and the names of those persons involved in litigation (e.g., Re Opes Prime Stockbroking Ltd (No 2) [2008] FCA 1578). The mere fact that a party may claim “embarrassment or unfortunate financial effects”, however, may not be a sufficient foundation for an order (e.g., Catena v Australian Securities and Investment Commission [2010] FCA 598 at [22] to [24] per Barker J).
But the discretionary power is one to be exercised where it “appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth”: s 50(1). The word “necessary” in s 50 has been said to be a “strong word”: Hogan v Australian Crime Commission [2010] HCA 21 at [30], 267 ALR 12 at 19 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). Previously, in X v Australian Prudential Regulation Authority [2007] HCA 4, 226 CLR 630, Kirby J had made a similar statement when he observed:
[86] … The truly exceptional circumstances under which such an order can be made may be understood when attention is addressed to the grounds for which the Parliament has expressly provided for the suppression or restriction of the publication of particular evidence or the name of a party or of a witness appearing in the Federal Court. The grounds stated in s 50 of that Act are limited to circumstances where such an order is “necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth”. As the Federal Court explained in Australian Broadcasting Commission v Parish, “[o]pen justice is the underlying assumption of s 50”. The suppression of names ought to be confined to cases in which disclosure “would prejudice the court’s proper exercise of the function it was appointed to discharge, to do justice between the parties”, or where disclosure “would destroy the subject matter of the proceedings and render them nugatory”. A case in which the use of names would seriously impede or discourage access to the courts might be another instance in which anonymity would be justified according to the statutory formula. … [citations omitted]
When the question as to whether an order should be made suppressing both the name of the male and the female persons involved in the present proceeding was first raised, reasons were given for concluding that both names should be suppressed. During the course of the hearing of the application for leave to appeal, however, it then emerged that the name of the male had already been disclosed. Prior publication of the identity of a person may well be a reason for refusing to make an order (e.g., Minister for Immigration and Ethnic Affairs v Respondent A (1994) 54 FCR 333 at 337 to 338 per Sackville J; SRD v Australian Securities Commission (1994) 52 FCR 187 per Hill J; Guglielmin v Trescowthick (No 3) [2005] FCA 139 at [53] to [59], 220 ALR 535 at 548 to 549 per Mansfield J). In the present proceeding it is considered that the fact of publication of his name is a sufficient reason for declining to make an order in respect to his identity.
Concurrence is thus now expressed with the conclusion of Rares J that an order should be made pursuant to s 50 prohibiting the publication of the name of the woman (at least until further order) – but not the male.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 8 September 2010
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