Fletcher v Brown (No 2)
[2021] FCA 725
•25 June 2021
FEDERAL COURT OF AUSTRALIA
Fletcher v Brown (No 2) [2021] FCA 725
File number: WAD 59 of 2021 Judgment of: JACKSON J Date of judgment: 25 June 2021 Catchwords: PRACTICE AND PROCEDURE - application for suppression order - application by non-parties for access to restricted documents on court file - lack of cogent evidence in support of suppression order - finding that suppression order not relevantly 'necessary' in respect of most materials - suppression of selected matters necessary - application for suppression order otherwise dismissed - necessary to redact some information from documents - redactions referred to registrar - application for non-party access granted subject to redactions Legislation: Federal Court of Australia Act 1976 (Cth) ss 35A, 37AE, 37AF, 37AG, 37AI, 50
Judiciary Act 1903 (Cth) s 77RF
Federal Court Rules 2011 (Cth) rr 2.32, 3.01, Schedule 2, Item 102
Open Courts Act 2013 (Vic) ss 17, 18
Supreme Court Act 1986 (Vic) ss 18, 19
Cases cited: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202
Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Lew v Priester (No 2) [2012] VSC 153; (2012) 35 VR 216
PQR v Secretary, Department of Justice and Regulation [2017] VSC 513; (2017) 53 VR 45
Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36
Re Robins;Ex parte West Australian Newspapers Ltd [1999] WASCA 16; (1999) 20 WAR 511
Royal Women's Hospital v Medical Practitioners Board of Australia (No 2) [2007] VSCA 284
Stanford v DePuy International Ltd [2013] FCA 1304
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 55 Date of hearing: 18 and 25 June 2021 Counsel for the Applicants and the Receivers: Mr JW Daly Solicitor for the Applicants and the Receivers: Mills Oakley Lawyers Counsel for the First Respondent: Mr LCA Palmos Solicitor for the First Respondent: Palmos Legal Counsel for the Second Respondent: The second respondent did not appear Counsel for The West Australian Newspapers Ltd, Channel 7 Pty Ltd and Mr Neale Prior: Mr T McCarthy Solicitor for The West Australian Newspapers Ltd, Channel 7 Pty Ltd and Mr Neale Prior: Steedman Stagg Lawyers Counsel for Swan Television and Radio Broadcasters Pty Ltd: Ms C Galati Counsel for Empire Capital Partners Pty Ltd: Ms B Taylor Solicitor for Empire Capital Partners Pty Ltd: Edwards Mac Scovell Counsel for the trustee in bankruptcy: Mr R McDermott Solicitor for the trustee in bankruptcy: Thynne + Macartney ORDERS
WAD 59 of 2021 BETWEEN: ADAM FLETCHER
First Applicant
STUART CAMPBELL
Second Applicant
JAYSEN TAYLOR (and others named in the Schedule)
Third Applicant
AND: CHRISTOPHER MICHAEL BROWN
First Respondent
CMB INVESTMENTS 1993 PTY LTD (ACN 618 397 925)
Second Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
25 JUNE 2021
THE COURT ORDERS THAT:
1.For the purposes of today's interlocutory hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), counsel for the trustee in bankruptcy and Empire Capital Partners Pty Ltd are permitted to deliver oral submissions by way of video link.
2.Unless the court otherwise orders, and apart from the court's transcript provider, no person, including the parties and members of the public, who is observing the hearing of the proceeding by accessing any audio or video link, including by link to the platform Microsoft Teams, may make any audio or video recording or photography of the hearing or any part of it.
3.Nothing in the preceding paragraph prevents any person, based on what he or she has seen or heard during the hearing making his or her own notes of the proceeding.
4.The solicitors for the applicants must take all steps reasonably open to them to ensure that all copies of the affidavit of Christopher Brown affirmed 23 June 2021 (Affidavit) that have come into the possession of any persons who were not permitted by the orders made on 24 June 2021 to be given a copy of the Affidavit are deleted or destroyed.
5.By 4:00pm on Friday 2 July 2021, the solicitors for the applicants must file and serve on the solicitors for the first respondent an affidavit or affidavits setting out the circumstances of the apparent breach of the suppression order made on 24 June 2021, including:
(a)how and why that breach occurred;
(b)the identity of any persons to whom the Affidavit was provided, including any persons to whom there is a reasonable suspicion that it was provided and, to the extent possible, the details of that provision; and
(c)such efforts as have been made to recover any physical copies of the Affidavit and or ensure the deletion or destruction of electronic or physical copies of the Affidavit as have been provided in breach of the orders.
6.Nothing in paragraph 1 of the orders made on 24 June 2021 prevents the solicitors for the applicants from providing a copy of the Affidavit to Jaysen Taylor.
7.The first respondent's interlocutory application filed on 18 June 2021 is dismissed, with no order as to costs.
8.Paragraph 4 of the orders made on 18 June 2021 is vacated.
9.The interim suppression order made at the commencement of today's hearing is discharged.
10.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), and on the ground that it is necessary to protect the safety of a person, for a period of 5 years, no person may disclose by publication or otherwise:
(a)the disclosure in:
(i)any document filed or produced for the purposes of the proceeding; or
(ii)any information or communications arising from or passing in the course of the interlocutory hearing on 18 June 2021 or today's interlocutory hearing;
of the following names: [redacted]
(b)any information or communications arising or passing in the course of the interlocutory hearing on 18 June 2021 or today's interlocutory hearing about the following matters:
(i)the contents of the affidavit of Christopher Brown sworn 24 March 2021 (including all annexures and their contents); and
(ii)the contents of the affidavit of Christopher Brown sworn 23 April 2021 (including all annexures and their contents);
(c)the transcript of the interlocutory hearing on 18 June 2021 and today's interlocutory hearing, to the extent that it records any of the matters identified in paragraphs 10(a) and 10(b) above (which information will be redacted in any version of the transcript produced); and
(d)the contents of these orders to the extent that they are redacted by the court.
11.Paragraph 8 of the orders made on 18 June 2021 is vacated.
12.Paragraph 9 of the orders made on 18 June 2021 is vacated.
13.Paragraph 1(a) of the orders made on 23 April 2021 is amended so that the words 'until further order' are replaced with the words 'for a period of 5 years'.
14.Paragraph 1(a)(iii) of the orders made on 23 April 2021 is vacated and replaced by:
'(iii) anything said at and any documents and other evidence provided to the court at the hearing on 20 April 2021 and 23 April 2021, including the transcripts of those hearings, to the extent that it relates to the affidavits identified in sub-paragraphs (i) and (ii) above and their contents (including all annexures and their contents), and any release of the transcript will be redacted accordingly'.
15.Paragraph 1 of the orders made on 29 April 2021 is amended so that the words 'until further order' are replaced with the words 'for a period of 5 years'.
16.Pursuant to s 35A(1)(h) of the Federal Court of Australia Act 1976 (Cth), r 3.01 of the Federal Court Rules 2011 (Cth), and item 102B of schedule 2 to the Federal Court Rules, the matter is referred to a Registrar to consider, in accordance with the reasons delivered today, what redactions, if any, in the opinion of the Registrar, are necessary and/or appropriate to be made to the following documents before copies of those documents are made publicly available:
(a)affidavit of Matthew Woods sworn 15 April 2021;
(b)affidavit of Matthew Woods sworn 20 April 2021;
(c)the receivers' final report dated 15 June 2021;
(d)affidavit of Nader El Sayed filed 17 March 2021;
(e)affidavit of Stuart Campbell filed 17 March 2021;
(f)affidavit of Jaysen Taylor filed 17 March 2021;
(g)affidavit of Adam Fletcher filed 17 March 2021;
(h)affidavit of Nirupa Manoharan filed 17 March 2021;
(i)affidavit of Nirupa Manoharan filed 18 March 2021; and
(j)affidavit of Adam Fletcher filed 19 April 2021.
17.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(edited from the transcript)JACKSON J:
These reasons concern several issues about the public release of materials filed with the court in this proceeding. The first is whether I should renew a suppression order made on 23 April 2021 in relation to affidavits and reports of court appointed receivers, and make a further suppression order over the receivers' final report dated 15 June 2021. The second issue, which arises if those suppression orders are not made, is whether the receivers' affidavits and final reports should be released to two news organisations. That issue arises because the news organisations, not being parties to the proceeding, require leave of the court to inspect the documents under r 2.32(4) of the Federal Court Rules 2011 (Cth). The third issue is the extent to which certain affidavits which the applicants filed in this proceeding and the receivers' affidavits and reports should be redacted before they are made available to the news organisations or the public. A further issue which emerged during the hearing was whether previous suppression orders made over aspects of the proceeding should be vacated.
Background
The applicants are persons and companies who provided money to the first respondent, Christopher Brown. They allege that the money was provided on the basis that it would be invested and that it would be repaid to them along with substantial returns on the putative investments. Mr Brown has acknowledged indebtedness to them in the sum of many millions of dollars. The second respondent, CMB Investments Pty Ltd, is a company associated with Mr Brown, which on the evidence may have received some of the funds said to have been invested.
On 25 March 2021, with the consent of the two respondents, I appointed Matthew Woods and Hayden White of KPMG as receivers to the property of the respondents for the purpose, among others, of identifying, securing, preserving and protecting that property. The appointment was to have effect until 25 May 2021 and the receivers were to provide an interim report of their findings to the court on 15 April 2021. The parties and the court proceeded on the basis that the receivers would then provide a final report at the conclusion of their appointment.
On 15 April 2021, Mr Woods provided an interim report which he annexed to an affidavit of that date filed with the court. On 20 April 2021 he filed another affidavit containing further evidence about the receivers' investigations. On 23 April 2021, on Mr Brown's application, I ordered relevantly that those affidavits of Mr Woods were to be suppressed on the basis that the orders were necessary to protect the safety of Mr Brown or members of his family. I delivered reasons for that decision which, because of their content, were themselves suppressed. The risk that was identified on the basis of confidential affidavits of Mr Brown was that there had been threats connected with attempts to recover money from Mr Brown.
The suppression of the interim report was to terminate on 25 May 2021, being the original date for the receivers' final report. That was because the basis on which the suppression of the interim orders were sought was that, the receivers' investigations being incomplete, disclosure of an inaccurate asset position might increase the risk to Mr Brown. But the solicitor then representing Mr Brown at the hearing on 23 April 2021 acknowledged that if the receivers' final report revealed that there were no assets, that fact was likely to become publicly known in any event.
On 20 May 2021, on the basis of a further affidavit of Mr Woods, I extended the period of the receivership to 15 June 2021. Mr Brown ceased to have legal representation in the proceeding on 27 April 2021. My Chambers made it clear to him that the suppression order which had been made was going to expire on 25 May, and that if he wished that date to be extended he would need to make an application. No application was made. Accordingly, the suppression order on Mr Woods' affidavits and the receivers' interim report expired on 25 May.
On 3 June 2021 an order was made confirming that the receivers were to file a final report on 15 June 2021, and the receivers filed that report on the date ordered. Two news organisations which seek access to it are West Australian Newspapers Ltd, Channel 7 Pty Ltd and Mr Neale Prior (together, the West Australian), and Swan Television and Radio Broadcasters Pty Ltd, which is the publisher of Channel 9 in Perth (Channel 9). The West Australian also seeks access to the receivers' affidavits and interim report. In addition, the West Australian seeks access to the affidavits which the applicants filed in support of their originating process. There are also third parties who are plaintiffs in proceedings in the Supreme Court of Western Australia against three of the applicants in this proceeding who seek access to those affidavits.
The hearing of 18 June 2021
The court listed the matter for an interlocutory hearing on 18 June 2021, so that all parties and the news organisations had the opportunity to make submissions about any issue concerning suppression or access to the receivers' affidavits, interim report or final report. There was no need to receive submissions about access to the applicants' affidavits as comprehensive written submissions on that subject had been received from the applicants and from the West Australian.
It appears that Mr Brown acquired legal representation on 16 June 2021. Late on the night of 17 June 2021, his new solicitor sent an application for suppression orders under s 37AF and s 37AI of the Federal Court of Australia Act 1976 (Cth) to my chambers. This application was accepted for filing on 18 June 2021. The orders were sought on the grounds that they were necessary to prevent prejudice to the proper administration of justice, and to protect the safety of a person or persons.
At the hearing on 18 June 2021 Mr Brown appeared by his solicitor to oppose the release of the receivers' final report and to seek its suppression. His primary submission at that hearing was that he should be given more time to adduce evidence in support of his application for suppression. The applicants, receivers and trustee in bankruptcy made submissions on the subject, but ultimately took a neutral position on that particular question. The West Australian and Channel 9 appeared by counsel to press for the immediate release of the receivers' final report.
The application for suppression orders was supported by an affidavit of Mr Brown affirmed on 18 June 2021. An unaffirmed version of this affidavit accompanied the application sent to chambers on the night of 17 June 2021. It said that from late April 2021, Mr Brown has been the subject of intense and overwhelming scrutiny in the mainstream media, and on social media. He says that this has been seriously affecting him and is also 'potentially exposing friends, family and those I've been involved with, with real and appreciable risks of physical harm and extreme embarrassment'.
The affidavit annexed a comment thread for an article on the website of the United Kingdom news publisher, Daily Mail, where one commenter says that Mr Brown will, '[p]robably end up in a shallow grave', with 22 persons liking that comment. Another person replies on the thread: '[w]ith a bit of luck'. Mr Brown also annexed a public Facebook post in which the mobile telephone number of his father was disclosed. He said he has concerns that if the information contained in the final receivers' report were to be made public, he, members of his family and, 'others associated with me will be subjected to further threats and a real risk of being physically harmed'.
At the hearing of 18 June 2021 I did not consider that this evidence, by itself, was a sound basis to find that it was 'necessary' within the meaning of s 37AG(1)(c) of the Federal Court Act to make suppression orders in order to protect the safety of any person. I accept that, since late April, Mr Brown has been the subject of a great deal of media attention, but as distressing as that may be, it is not a ground to make any suppression order. As for the comments from the Daily Mail article and the Facebook post, they do not contain any threat in the sense of an expression of an intention by any person to cause harm to Mr Brown or anyone else. It is notorious that social media sites and public comment threads frequently carry criticism, harassment and invective of the most extreme kinds. The remote and anonymised nature of participation in such sites and threads means that the invective is only rarely accompanied by any definite intent to inflict the threatened harm. Evidence of that kind is not enough to merit suppression.
However, Mr Brown also deposed to the fact that, at about 1.00 pm on 17 June 2021 - the day before the hearing of 18 June - the Western Australian police executed a search warrant on his mother's house and a property where he says he was staying, which resulted in the seizure of two iPhones (one of which was said to be broken), two computers and one USB flash drive. This, Mr Brown said, made it difficult to communicate with his solicitors and give them instructions about the suppression application. Also, he said, there were various images and documents stored on his iPhone which he intended to give to his solicitors to annex to his affidavit as evidence, and which he was unable to do because of the seizure of the phone.
Clearly, smartphones and other devices of Mr Brown had been seized, so his inability to produce material from them at the hearing of 18 June 2021 could be accepted. But it was notable that Mr Brown made no attempt in the affidavit to explain the nature of the material that he proposed to annex. The basis of his application for the suppression orders made on 23 April 2021 was threats to his personal safety. But his affidavit made later, on 18 June, did not even say that there had been any threats (other than the online comments referred to above), much less who had made them, or what their content was. It could have been expected that, if serious threats to Mr Brown's safety had been made, he would remember them and would remember them in sufficient detail to be able to describe their substance, even without access to his devices. He did not.
Nevertheless, given the gravity of the consequences which Mr Brown claimed may follow if the receivers' reports were not suppressed, at the hearing of 18 June 2021 I gave him the opportunity to be sworn into the witness box to explain the content of the images and documents which he referred to in his affidavit of that day. He took that opportunity and gave evidence which added, to some extent, to the very bare statements in the affidavit. Mr Brown was cross-examined by counsel for the applicants, counsel for the West Australian and counsel for Channel 9.
For reasons which I gave at the hearing, I made an interim suppression order under s 37AI of the Federal Court Act, which expires at 5.00 pm today. I also directed that Mr Brown, accompanied by his solicitor, could inspect his functioning iPhone at the offices of his trustee in bankruptcy and take images from it if he wanted to put them into evidence in support of his application for a suppression order.
Mr Brown's affidavit of 23 June 2021
That inspection occurred on 22 June 2021 and Mr Brown affirmed a further affidavit on 23 June 2021 and lodged it with the court yesterday. The essence of Mr Brown's contention, based on that later affidavit and his previous evidence, is that the involvement of certain persons in the investment arrangements Mr Brown seems to have been promoting means that if the receivers' reports are released, the risk that those persons will harm him or members of his family will be increased. I will call them 'persons of concern'. It is not necessary to be more specific in order to explain why I will make the orders I will make, and I will explain shortly why I will not refer more specifically to the persons of concern.
Mr Brown's affidavit of 23 June 2021 attaches screenshots of messages in a WhatsApp thread called 'Book lads', in which Mr Brown and some of the applicants regularly participated. There are messages which suggest that a particular person of concern may be involved, although the precise nature of that involvement is unclear. One message records one of the applicants saying that he cannot push that person of concern any longer as, 'I am looking very unprofessional and he just does not operate that way'. This is vague. I accept that, at least in some cases, written communications about actual persons of concern would be deliberately vague. But that does not help the court to determine whether there are real concerns behind these communications. The message I quoted does not contain any threat of violence and the complaint, 'I am looking very unprofessional' is mild and hardly suggestive of such a threat.
There is another screenshot annexed to the affidavit of 23 June 2021 which is said to be from around 3 January 2021, which contains another vague message which could conceivably be a threat; but it could equally have been said in jest, and Mr Brown's reaction to it in the WhatsApp thread did not indicate any particular alarm.
In fact, all of these WhatsApp messages are contained in what appears to be a complete export of the 'Book lads' WhatsApp thread, which was annexed to an affidavit of one of the applicants, Stuart Campbell, filed on 16 March 2021 in support of the originating process. That thread contains other messages about the same person of concern. They do imply, again very vaguely, some concern on the part of one of the applicants, Mr Fletcher - that is, not concern on Mr Brown's part - that the particular person of concern may increase his involvement in ways that could not be controlled by the applicants and Mr Brown. But the messages in the thread also subsequently suggest that the person of concern may be enlisted to help the 'book lads' obtain access to funds which third parties were allegedly keeping from them. There is a message from Mr Brown assenting to that possibility. In other words, the way that the involvement of the person of concern is referred to in the WhatsApp thread is not by any means uniformly threatening.
Importantly, the WhatsApp thread contains the message which was said to be from around 3 January 2021, which I suggested above might have been sent in jest. It shows that the message was, in fact, sent on 17 January 2021 and, when presented in its full context, is clearly a joking message. Further, in its full context, it is clear that Mr Fletcher is saying, in a manner intended to be humorous, that he will not induce the person of concern to harm Mr Brown. It is a serious matter, in the eyes of this court, that Mr Brown would present a message of that kind as evidence of a threat by divorcing it from its immediate context which shows that it was not a threat. That significantly undermines the weight that the court puts on Mr Brown's evidence as a whole. In summary, the WhatsApp messages do not establish any real risk of harm to Mr Brown.
Mr Brown's affidavit of 23 June 2021 also annexes screenshots of text messages between Mr Brown and one of the applicants which refer to a person who, according to Mr Brown's oral evidence, was another person of concern. The text messages are more recent than the WhatsApp messages as they date from 11 June 2021 onwards. They indicate that the person of concern wishes to be repaid some money, but contain nothing in the nature of a threat. There is also a very oblique reference to a third person who, Mr Brown asserts without detail or without independent corroboration, is a person of concern.
Finally, Mr Brown's affidavit of 23 June 2021 annexes a text message from 17 June 2021 from Mr Brown to one of the applicants, Mr Taylor, in which Mr Brown says, 'I need you to send me a text about what would happen if we don't keep suppression in play. Lawyer is saying we need to overload them with shit. I might need to mention bikies.' Mr Brown asks whether a person of concern will 'flip if I do'.
Mr Brown sought to explain this in the body of his affidavit. He says that he meant that he was reluctant to mention the fact that bikies, underworld and violent people are involved in this matter, but may be forced to. He says his reference to 'flip' is a reference to whether the person of concern will 'lash out' if he needed to name such people.
Counsel for the West Australian urged a very different reading on the court. He submitted that the text message was evidence of a design on the part of Mr Brown to prolong the suppression of material unfavourable to him. He said the reference to suppression being 'in play' shows that the basis for the suppression sought was not genuine. He submitted that the reference to 'shit' was not a reference to real evidence but a reference to fabricated material.
In my view, both readings are open. In the context of the very casual mode of communication which Mr Taylor and Mr Brown were employing, keeping suppression 'in play' could mean simply keeping it as a live option which Mr Brown could pursue, or it could have the more sinister meaning urged by the West Australian. In that context, likewise, 'shit' could just be a synonym for 'stuff', or it could refer to false evidence.
Mr Brown was not cross-examined on this affidavit and it is not necessary in order to dispose of this application for me to reach any conclusion as serious as a finding that he has deliberately fabricated his suppression claim. It is enough to say that given the equivocal nature of this message, it, too, does not support Mr Brown's application for suppression.
In summary, like the WhatsApp messages, none of these text messages provide a reason to think that threats have been made to Mr Brown's safety.
Mr Brown's affidavit of 23 June 2021 attempted to explain the relative deficiency of written evidence of such threats on the iPhone in two ways. First, he said that many threats were likely to be on the older broken iPhone, which had also been seized, pursuant to the warrant. Second, he said that persons of concern 'take care to avoid putting anything that could be construed as a threat in writing'. But, as counsel for the applicants and the receivers, and counsel for the West Australian pointed out, these two propositions are inconsistent: either the persons of concern did send written threats to the old iPhone, or they did not send any written threats at all. They cannot have done both.
In any event, Mr Brown's oral evidence on 18 July 2021 was that the old iPhone broke and was replaced with a new iPhone at the end of last year. That was before these proceedings commenced and became widely known. It can be expected that if there are written threats to Mr Brown's safety which have any currency, or if the threats to Mr Brown's safety have increased with the appointment of receivers and the publicity, they would be on the new iPhone.
In summary, I was prepared to make interim suppression orders last Friday because Mr Brown gave evidence that the iPhone that had been seized from him had specific threats on it, and I considered it necessary to give him the opportunity to make good on that. I did so, conscious of the specific threats which, while somewhat historical, were contained in his confidential affidavits of 24 March 2021 and 23 April 2021. But Mr Brown has failed to use the opportunity accorded to him over the course of the preceding week to provide any cogent evidence of threats which are contained on the iPhone.
Principles
Section 37AF of the Federal Court Act relevantly provides that the court may make a suppression order or non-publication order. One of the grounds on which such an order may be made is that 'the order is necessary to protect the safety of any person': s 37AG(1)(c).
Section 37AE sets out the overarching principle that, in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Further, it is well established that the word 'necessary', as it appears in s 37AG (and its statutory predecessor regarding the security of the Commonwealth, s 50) is a strong word: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30], applied in Stanford v DePuy International Ltd [2013] FCA 1304 at [19]‑[20]. In Hogan at [31] the High Court said:
It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics.
The onus that is on the applicant to persuade the Court to make the order has been described as 'a very heavy one': Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8]. In Lew v Priester (No 2) [2012] VSC 153; (2012) 35 VR 216 at [14], Davies J said in relation to substantially similar Victorian legislation (s 18 and s 19 of the Supreme Court Act 1986 (Vic)) (citations omitted):
… the cases make it clear that there must be material before the court upon which the court can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. A real risk of serious interference with the administration of justice must be demonstrated, and an application for a non-publication order requires some cogent evidence to support the basis on which the application is made. A belief that the order is necessary is insufficient.
In PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45, Bell J expanded on the requirement for cogent evidence at [54] (dealing with updated provisions found at s 17 and s 18 of the Open Courts Act 2013 (Vic)):
Requiring production of cogent evidence or credible information in support of an application for a suppression order is not [a] matter of mere form. The purpose of this requirement is to assist in ensuring that suppression orders are kept for exceptional cases. It is therefore necessary for the court carefully to scrutinise the justification for, and the nature and scope of, the proposed order against the applicable grounds, and by reference to the evidence and information that is presented, having regard to the rights and interests that are at stake and the values that they represent, even when the application is not opposed or by consent. The question is whether the presumption in favour of disclosure of information, which reflects the fundamental principles of open justice and free communication of information, should be qualified by the necessity to make the order upon the grounds relied upon.
In relation to the specific ground of suppression in relation to the safety of a person, in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 at [15], Nettle J said of an equivalent provision (s 77RF(1)(c) of the Judiciary Act 1903 (Cth)):
The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of 'necessary to protect the safety of any person' that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.
So it is not necessary to show that, absent the order being made or extended, it is probable that a person will suffer harm. Rather, the necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person: Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36 at [16]‑[17] (Besanko J). But there must at least be a demonstrable or real risk to the safety of an applicant for a suppression order (or another person) if the order is not made (or extended): see C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [16] (Katzmann, Wigney and Abraham JJ). In Royal Women's Hospital v Medical Practitioners Board of Australia (No 2) [2007] VSCA 284 at [11] Maxwell P (Curtain AJA agreeing) said:
It is axiomatic of course that neither the scope nor the duration of a suppression order should be any greater than is demonstrably necessary. What occurs in court should be open and should be the subject of unfettered publication and a constraint on publication will only be imposed where clear need has been demonstrated.
It is not apt to describe the decision the court must make on an application under s 37AF as a discretionary one. I have already quoted [31] of Hogan. At [32]‑[33], the High Court went on to say (footnote omitted):
If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 'may … make such order' is to be understood in this sense.
It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a 'discretion' when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.
Consideration
With the exception of one specific incident in Mr Brown's oral evidence, and the evidence in his earlier confidential affidavits, which were the basis of the orders of 23 April 2021, his evidence, as described above, is general in nature. His solicitor submitted that it is important to bear in mind that persons of concern cannot be expected to make their threats in writing often, if ever. But even if that is accepted as a general proposition, it does not, of course, go so far as to discharge the onus of establishing that there were threats from persons of concern and, in particular, threats which would be exacerbated by the release of the receivers' reports.
Once again, Mr Brown could be expected to recall at least some of those threats with a vividness which would permit him to give evidence as to what they contained, regardless of whether or not they were reduced to writing. With the exception of that one specific incident I have just mentioned, his evidence lacks any specificity of that kind.
On that basis and on the basis of the concerns about the cogency of his evidence which I have already described, counsel for the West Australian submitted that all previous suppression orders should be vacated so that the entire course of the proceeding (other than Mr Brown's affidavits of 24 March 2021 and 23 April 2021) should now be unsuppressed, even the identities of the persons of concern. He submitted that there was no clear and cogent evidence that they had made any threats to Mr Brown.
It will already be apparent that I accept the last part of that submission. But it does not follow that there should be no ongoing suppression at all. On the basis of the principles I have set out above, it is still necessary for the court to assess whether it has been demonstrated by cogent evidence that there is a real risk to Mr Brown's safety. I am satisfied that the evidence does establish that, but only to a limited extent. Despite my many concerns about Mr Brown's evidence, and my view that much of it should be accorded no weight, he did in his oral evidence, descend into some specificity. Although he was cross-examined on that evidence, it was never put to him that it was false. While that does not establish any risk to him that will be exacerbated by the release of the receivers' reports, it does establish some risk if the particular persons of concern are specifically identified. The court will proceed on the basis that there are persons of concern who are involved in Mr Brown's investment arrangements, and that this is accompanied by some risk to his safety which will be unacceptably exacerbated if those persons are publicly identified via this proceeding.
I also note that Mr Brown's earlier confidential affidavits which supported the suppression orders of 23 April 2021 did contain very specific and graphic written threats. The West Australian and Channel 9 accepted that this affidavit material should remain suppressed. It follows that any comment on those earlier two confidential affidavits, and the reasons of 23 April 2021, should also remain suppressed.
Turning to the receivers' reports, there are two obstacles in the way of suppression of them which are insurmountable. The first is that, as I have already described above, there is no cogent evidence of any current threat to Mr Brown. Secondly, the mere existence of a risk to a person's safety cannot be enough to justify a suppression order.
If a suppression order is to be justified on the basis sought, there must be a causal connection between any decision not to make the order, and the unacceptable inception or exacerbation of risk. The fundamental problem with Mr Brown's application is that his evidence does not establish that connection. Let it be assumed for the moment that Mr Brown has received funds from persons of concern and has not paid those funds back. That may well make him concerned about his safety, but none of that is changed by the presence or absence of a suppression order.
Subject to some qualifications, all Mr Brown's evidence establishes, at its highest, is that persons of concern have threatened his safety and may continue to do so. So it is capable of establishing a basis for concern, if accepted, but it does not establish that the absence of any suppression order over the receivers' reports will make the concern worse.
I will describe the qualifications I have just mentioned. In the end they did not advance Mr Brown's position in any significant way:
(1)In his oral evidence Mr Brown said, in effect, that what was revealed in the receivers' final report would lead to threats against him becoming more 'pronounced'. He said that there were inaccuracies and gaps in the findings in the receivers' final report and implied that work he was doing with his trustee in bankruptcy would provide access to funds. The suggestion seemed to be that release of the allegedly inaccurate receivers' report would increase risk, compared with holding it back to allow funds to be obtained in the meantime.
(2)In his affidavit of 23 June 2021 Mr Brown said, similarly, that if the receivers' reports are made public without him having the opportunity to respond and deal with them, and to clarify the position regarding funds that will be available to creditors, then the threats made to him over previous months, '[m]ay be followed through with'. He says that he is working with his trustee in bankruptcy on a way to satisfy all his creditors in full, and annul the bankruptcy. He 'sincerely believe[s] it is possible', but it will take two months.
(3)There was a reference in Mr Brown's oral evidence to a person of concern saying, '[i]n no uncertain terms what would happen to me if this is to get out', but it was not clear from his evidence what 'this' was and what would happen if it were to get out.
(4)There was oral evidence about one or two other people saying that they could not wait for the receivers' report to come out as, '[e]veryone will have a bit of fun with you then'. But that is not a direct threat. It is, rather, a vague expression of opinion from two people who were not even described as persons of concern.
On the basis of Mr Brown's two month estimate, and allowing for some slippage in time, his solicitor sought further suppression of the receivers' reports for three months. But the existence of Mr Brown's belief that he will be able to satisfy his creditors and annul his bankruptcy, sincere or otherwise, is not enough: Lew v Priester at [14], [21]. It is not evidence that there is any likelihood of error in the receivers' reports which would mean, for example, that releasing them now may increase the risk because they will present a misleading impression of anything. It is not for me to make any finding now about the accuracy of the receivers' reports. That may be necessary on another occasion, but what I do find is that Mr Brown has not at present given any substantial reason to doubt their accuracy. So, the premise of his request for suppression, that the receivers' reports contain potential inaccuracies or worse, which he should have an opportunity to correct, fails.
There are other specific reasons to dismiss Mr Brown's argument that the release of the receivers' reports will exacerbate risk. First, it is true that there has been a great deal of publicity about Mr Brown since late April, but none of the evidence he has produced since then suggests that this has increased the severity or number of any threats to him or others. Second, on 10 May 2021 a sequestration order was made against Mr Brown's estate, that is, he became a bankrupt. On the face of things that would have increased concerns among investors about whether they would be repaid, but once again there is no evidence of any increase in the severity or number of threats. Third, the receivers released an interim report which, as I have explained, was unsuppressed for some time. If any of the applicants who were allegedly connected with persons of concern wished to disclose its contents to those persons, they were free to do so. The final receivers' report merely adds to what was already apparent from the interim report. Fourth, the release of the receivers' report will not take away from Mr Brown any opportunity to inform the court or creditors or his trustee in bankruptcy or, indeed, persons of concern, of why he says the information contained in the report, and the picture of his financial position which it creates, are wrong.
For those reasons, I do not consider that the receivers' interim and final reports and affidavits should be suppressed for any longer. Nor do I consider that any other aspect of the proceeding should remain suppressed other than identification of persons of concern, the affidavits of 24 March and 23 April 2021, and information about the contents of those affidavits.
Release of documents
It follows that subject to the redaction of specific parts of documents, those documents may also be released to the West Australian and Channel 9 and any member of the public who wishes to see them. Whilst they have not been formally read in open court, with the exception of the receivers' final report they are documents which have been taken into account by the court in connection with the making of a large number of orders throughout the course of the proceeding. And there is a significant overlay of further public interest inherent in the fact that Mr Brown's creditors seem to be large in number, which pertains in particular to that final report.
I received detailed submissions about redactions to the applicants' affidavits from the applicants and from the West Australian, and there has been some conferral between the applicants, the receivers and the respondents about redaction of the receivers' reports. I have decided it is appropriate to redact information of the following nature:
(1)Private personal information of individuals in the nature of street addresses, email addresses, telephone numbers and account numbers.
(2)Information which is demonstrably subject to a legal obligation of confidentiality - there are apparently contractually binding 'term sheets' in evidence in the applicants' affidavits which may give rise to obligations which answer that description.
It is well-established, however, that information filed with and relied upon in a court will not be exempt from disclosure merely because its public disclosure may lead to inconvenience or embarrassment: Re Robins;Ex parte West Australian Newspapers Ltd [1999] WASCA 16; (1999) 20 WAR 511 at [15]; see also Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533 at [7]. I consider that the reasons given for seeking redaction of information, other than the information which will remain suppressed and the information that I have just described in the preceding paragraph, can be characterised as reasons of that kind.
I will refer the detail of the redactions to a registrar to determine under s 35A(1)(h) of the Federal Court Act, r 3.01 of the Federal Court Rules, and Item 102B of Schedule 2 to those rules which concerns redaction of documents on the court file. The registrar is directed to have regard to these reasons and the written submissions of the parties on the subject of the redactions in making his or her decision.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 2 July 2021
SCHEDULE OF PARTIES
WAD 59 of 2021 Applicants
Fourth Applicant:
365 PLANT HIRE PTY LTD (ACN 621 477 978)
Fifth Applicant:
JAYTONA PTY LTD (ACN 137 723 418)
Sixth Applicant:
NAMEO PTY LTD (ACN 155 839 197)
12
5