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Hogan v Australian Crime Commission

Hogan v Australian Crime Commission

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HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND KIEFEL JJ
PAUL HOGAN  APPELLANT
AND
AUSTRALIAN CRIME COMMISSION & ORS  RESPONDENTS
Hogan v Australian Crime Commission [2010] HCA 21
16 June 2010
S289/2009
ORDER
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].
[1]See Hogan v Koala Dundee Pty Ltd (1988) 20 FCR 314; Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553.
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.
[2]MM v Australian Crime Commission (2007) 244 ALR 452 at 459.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCA 21
Decision Date: 16 June 2010

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning confidentiality orders made under section 50 of the *Federal Court of Australia Act 1976* (Cth). The appellant, Mr Hogan, sought to prevent the disclosure of documents that had been produced to the Australian Crime Commission (ACC) pursuant to a notice issued under the *Australian Crime Commission Act 2002* (Cth). Initially, the notice prohibited the accountants from disclosing its existence to Mr Hogan, but this restriction was later varied. The core dispute revolved around whether the administration of justice would be prejudiced or brought into disrepute if the confidentiality of these documents was not preserved, and whether the documents possessed an inherent confidentiality that outweighed the principle of open justice.

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

FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ

We agree with what his Honour said in that passage.Conclusions Leave of the Federal Court for News and Fairfax to inspect the Inference Schedule and the Accounting Advices should not be given if there remains in force an order made under s 50 which forbids or relevantly restricts their publication. In the absence of such an order, the question in such a case would be whether in circumstances where the evidence was tendered by a particular party that party might successfully oppose the making of an order under O 46 r 6(3) for inspection, upon the ground that the evidence contained material of a personal or private nature. Emmett J distinguished the situation respecting material on the file of the Court but not tendered and admitted into evidence, and said that the interests of open justice were not engaged there and that leave under O 46 r 6(3) should not be granted in such a case[27]. His Honour was correct in that conclusion.[27](2008) 250 ALR 66 at 70. However, if the file material has been admitted into evidence the interests of open justice are engaged. Where, as here, the party in question adduces no evidence of apprehended particular or specific harm or damage, particularly by disclosure of the Accounting Advices as Emmett J noted[28], leave properly will be granted under O 46 r 6(3).[28](2008) 250 ALR 66 at 79. However, there should be a different outcome where a relevant s 50 order remains in force or should not have been vacated. The administration of justice by the Federal Court, which is the focus of s 50, certainly includes not only the generally recognised interest in open justice openly arrived at[29] which is reinforced by the terms of s 17(1), but also restraints upon disclosure where this would prejudice the proper exercise of its adjudicative function. Bowen CJ pointed this out in Australian Broadcasting Commission v Parish[30]. His Honour went on to describe the litigation in Parish as analogous to a case where confidential information "is the subject‑matter of the proceedings"; he concluded that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter[31].[29]See K‑Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 520‑521 [49]; [2009] HCA 4.[30](1980) 29 ALR 228 at 233.[31](1980) 29 ALR 228 at 235. That is not this case. Nor, contrary to the appellant's submissions, does it provide a fairly close analogy to this case. The placing of material in evidence, even on the faith of what for the time being would be a restriction imposed by a s 50 order, is a matter of forensic decision. The price of such a decision may be the subsequent disclosure, as is often the case in litigation, of embarrassing publicity[32]. It is no sufficient answer to brandish the term "inherently confidential", and rely upon the assumptions in favour of Mr Hogan made without an evidentiary basis. [32]See Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 at 444.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ

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