Fletcher v Brown (No 2)

Case [2021] FCA 725

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…

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Details
AGLC
Fletcher v Brown (No 2) [2021] FCA 725
Case
[2021] FCA 725
Decision Date

CaseChat Overview and Summary

In the case of Fletcher v Brown (No 2), the primary focus was on the release of confidential documents related to a financial dispute involving the applicants, who had provided money to the first respondent, Christopher Brown, and the second respondent, CMB Investments Pty Ltd. The case revolved around the application for suppression orders over certain documents, the access to restricted documents by non-parties, and the necessary redactions to be made before making those documents publicly available. The court was tasked with deciding whether to renew the suppression order made on 23 April 2021 over affidavits and reports of court-appointed receivers, and whether to grant access to the documents to two news organisations. Additionally, the court had to determine the extent to which certain affidavits and reports should be redacted before being made available to the public.

The court concluded that the suppression order should not be renewed for most of the materials, as the evidence did not support the necessity for such orders. However, the court found that suppression of certain matters was still necessary. Consequently, the suppression of selected matters was upheld, and the application for suppression order was otherwise dismissed. The court also determined that some information needed to be redacted from the documents before they were made available to the news organisations or the public. The redactions were referred to a registrar for consideration.

Ultimately, the court granted the application for non-party access to the restricted documents, subject to the necessary redactions. The suppression orders were amended and extended for a period of five years, with specific provisions for the protection of certain information and the redaction of sensitive content from the documents. The applicants were also required to take steps to delete or destroy any copies of the affidavit that had been provided in breach of the suppression order.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.