IBAC v The Age (No 2)
[2022] VSC 694
•8 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2022 04446
| INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Plaintiff |
| v | |
| THE AGE COMPANY PTY LIMITED | Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 November 2022 |
DATE OF RULING: | 8 November 2022 |
CASE MAY BE CITED AS: | IBAC v The Age (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 694 |
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INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION – Application for a proceeding suppression order – Relevant considerations – Principle of open justice and free communication - Real and substantial risk of prejudice to the proper administration of justice – Avoidance of severe and collateral harm to non-parties - Limited order made - Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 162(2)-(4), 166(1); Open Courts Act2013 (Vic) ss 4(1), 4(2), 13(1), 17(a), 18(1)(a), 20(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Nekvapil SC | Independent Broad-based Anti-corruption Commission |
| For the Defendant | Mr J Quill, Thomson Geer | |
| For the Australian Broadcasting Corporation | Mr C Jankie |
HIS HONOUR:
Introduction
On 4 November 2022 I granted an interlocutory injunction restraining the defendant from publishing any information that may have been derived from a proposed report or a draft or part of a proposed report provided by the Independent Broad-based Anti-corruption Commission (‘IBAC’) to any person pursuant to ss 162(2), (3) and (4) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘IBAC Act’), being information that should not have been disclosed under s 166(1) of that Act.
The procedure for finalising IBAC reports is that a draft report is provided under ss 162(2), (3) and (4) of the IBAC Act to named organisations and individuals to give them the opportunity of correcting errors or omissions before a final report is prepared. This is an important safeguard affording procedural fairness to protect individual persons from unjust damage to their reputation and other interests that might follow if an unfair or inaccurate report was published.
Breach of s 166(1) gives rise to a serious criminal offence and imposes the strictest consequences on the premature publication of information contained in a draft report. If such a safeguard is to operate effectively, it is important that confidential information derived from a draft report not be prematurely published.
In order to facilitate the hearing and determination of the application for an interlocutory injunction by IBAC, I made an interim proceeding suppression order under s 20(1) of the Open Courts Act2013 (Vic) (‘Act’).
IBAC now makes an application for a proceeding suppression order under s 17(a) of the Act. IBAC relies on the ground set out in s 18(1)(a) that:
the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
Relevant provisions
Under s 4(1) of the Act, the Court is to have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order.
Under s 4(2) of the Act, the Court is only to make a suppression order if satisfied that the specific circumstances of a case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information.
Section 13(1) of the Act provides that:
A suppression order must specify the information to which the order applies with sufficient particularity to ensure that-
(a) the order is limited to achieving the purpose for which the order is made; and
(b) the order does not apply to any more information than is necessary to achieve the purpose for which the order is made; and
(c) it is readily apparent from the terms of the order what information is subject to the order.
Release of additional information
It is apparent that a significant amount of information about this proceeding can and should be made public without prejudice to the proper administration of justice. This information will be listed in the order that I propose to publish and made available in the open part of the court file.
In addition to this information, the defendant sought release of certain paragraphs (‘disputed paragraphs’) in a confidential affidavit filed 3 November 2022 deposed on behalf of IBAC and relied on in support of the application for an injunction. IBAC opposed the release of this information, relying on a further affidavit filed 8 November 2022 from the same deponent to the effect that the confidential affidavit would not have been deposed in the same form had it been known that it might be released after an in-camera hearing.
It is appropriate for me to suppress the information sought to be released by the defendant only if I am satisfied under s 4(2) of the Act that the specific circumstances of the case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information.
I must also be satisfied under s 18(1)(a) of the Act that the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
Section 166(1) of the IBAC Act prohibits the disclosure of information in specified circumstances. The information protected under ss 162(2), (3) and (4) of the IBAC Act includes the identity of the person named in the draft report and statements made about the person in the draft report, whether adverse or not adverse.
I will describe the information contained in the disputed paragraphs in the most general terms. It includes details of approaches, conversations and contacts between Paul Sakkal, a reporter for The Age newspaper, and recipients of the draft report or family members of recipients. The disputed paragraphs also include references to conversations between officers of IBAC and legal representatives of recipients of the draft report. The details discussed in those conversations relate in part to the contents of the draft report.
In Cargill Australia Limited v Viterra Malt Pty Ltd (No 23), Elliott J said:
Thirdly, the protection of commercially sensitive information may in appropriate cases be necessary to the administration of justice. This is because the administration of justice requires that controversies between parties be resolved without a party, or a non-party, suffering severe and collateral commercial harm. As has been observed:
Parties should not be deterred from coming to courts to enforce or protect their rights for fear that in doing so they will be forced to lose the very foundation of their commercial success… or that they may lose some competitive advantage that derives from material that they rightly consider to be confidential or secret.
For example, it is well accepted that the principle of open justice may, in appropriate cases, accommodate the protection of trade sensitive information, such as ‘prices and costs paid and incurred’ for valuable items, supplier terms, and commercial sensitive aspects of goods and services sold.[1]
[1][2019] 58 VR 611, 624 (citations omitted).
I agree with the views expressed in this passage. A party or non-party should not be exposed to severe and collateral harm as a consequence of the administration of justice, and the loss of secrecy or confidentiality over information which they came to court to protect, and which represents the very reason why they are in court in the first place.
Real and substantial risk to the proper administration of justice
In my view, disclosure of the contents of the disputed paragraphs would result in a real and substantial risk to the proper administration of justice in that it would permit or facilitate the identification of persons named in the draft IBAC report, and the disclosure of statements made in the draft IBAC report.
This would defeat the very purpose of s 166(1) of the IBAC Act, which is to ensure that procedural fairness is afforded to persons named in the draft IBAC report. It would also defeat the very reason why IBAC came to court in the first place, and the intention of Parliament in enacting s 166(1).
It is also important to note that s 166(1) provides substantial criminal penalties for disclosure of information contained in a draft report provided under ss 162(2), (3) and (4) of the IBAC Act, and there may yet be criminal prosecutions of the persons involved.
Conclusion
Having regard to the specific circumstances of this case, I am satisfied that it is necessary for the suppression order to extend to and include the disputed paragraphs. I am satisfied that the suppression order that I propose to make is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice, and in particular to the persons named in the draft report, and the statements made in the draft report about those persons that cannot be prevented by any other reasonably available means. I will also ensure that the order is limited to achieving the purpose for which it is made, and does not apply to any more information than is necessary to achieve this purpose. The order will be as clear as I can make it as to its scope.
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