HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND KIEFEL JJPAUL HOGAN APPELLANT
AND
AUSTRALIAN CRIME COMMISSION & ORS RESPONDENTS
Hogan v Australian Crime Commission [2010] HCA 21
16 June 2010
S289/2009ORDER
1. Appeal dismissed.
2. Appellant to pay the costs of the third respondents.
On appeal from the Federal Court of Australia
Representation
J T Gleeson SC with F Kunc SC and P Kulevski for the appellant (instructed by Robinson Legal)
S J Gageler SC, Solicitor-General of the Commonwealth with D F C Thomas for the first and second respondents (instructed by Australian Government Solicitor)
D F Jackson QC with T D Blackburn SC and T Maltz for the third respondent (instructed by Blake Dawson Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ. The present litigation arises out of a special investigation conducted by the first respondent, the Australian Crime Commission ("the ACC"), known as Operation Wickenby. In the course of its investigation, the ACC issued a notice under s 29 of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") requiring an accounting firm ("the Accountants") to produce documents concerning a number of individuals and entities, including the appellant ("Mr Hogan"). He has been a public figure for many years, in particular since the success of the film "Crocodile Dundee"[1].
Under the ACC Act, an examiner may by notice in writing served on a person require that person, on pain of committing an offence by non‑compliance (s 29(3), (3A)), to produce documents relevant to a "special ACC operation/investigation" (as defined in s 4(1)) to the person specified in the notice (s 29(1)).
In his reasons for judgment delivered on 19 December 2007 in a related Federal Court proceeding, Emmett J recorded that the ACC accepted that the ACC Act does not abrogate the right or duty of a recipient of a s 29 notice to claim legal professional privilege on behalf of a person (whether the recipient of the notice or a third party) who holds the privilege[2]. The litigation which has reached this Court has been conducted on that footing. It also appears to have been accepted that the powers of the ACC would not extend to the use or dissemination of documents to the content of which the privilege attached, and that such use or dissemination might be restrained by injunction.
The institution of the Federal Court proceeding
The Federal Court proceeding which has given rise to this appeal was commenced on 23 February 2006 by application made by Mr Anthony Stewart and filed as NSD 373 of 2006[3]. Mr Stewart is an adviser to Mr Hogan who gave instructions to, and received…
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- Case
- [2010] HCA 21
- Decision Date
CaseChat Overview and Summary
The legal issues before the High Court were whether the Federal Court erred in its approach to granting leave for inspection of documents admitted into evidence, particularly when a section 50 order restricting publication remained in force or should have been maintained. The Court was required to consider the interplay between the principle of open justice, the statutory powers to restrict publication of evidence, and the potential for the court process to become an instrument of injustice if confidentiality was not appropriately managed. This involved determining whether the documents were inherently confidential and if such confidentiality created a competing public interest that needed to be weighed against the principle of open justice.
The High Court affirmed the principles that the administration of justice includes not only open justice but also restraints on disclosure where such disclosure would prejudice the proper exercise of the Court's adjudicative function. The Court distinguished between material not yet admitted into evidence and material that has been admitted, noting that the interests of open justice are engaged once evidence is admitted. In the absence of evidence of apprehended particular or specific harm or damage from disclosure, leave for inspection will generally be granted. The Court found that placing material in evidence, even with a subsisting section 50 order, is a forensic decision, and the risk of embarrassing publicity is a potential consequence. The mere assertion that documents are "inherently confidential" without an evidentiary basis was deemed insufficient to resist disclosure.
The appeal was dismissed, and the appellant was ordered to pay the costs of the third respondents.
Orders
Orders of the court
1. Appeal dismissed.
2. Appellant to pay the costs of the third respondents.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ
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