Jones v Chief of Navy (No 2)

[2012] FCAFC 173

FEDERAL COURT OF AUSTRALIA

Jones v Chief of Navy (No 2) [2012] FCAFC 173

Citation:		Jones v Chief of Navy (No 2) [2012] FCAFC 173
Appeal from:		John Jones v Chief of Navy [2012] ADFDAT 2
Parties:		JOHN ALAN JONES v CHIEF OF NAVY
File number:		NSD 841 of 2012
Judges:		KEANE CJ, EMMETT, EDMONDS, BESANKO & ROBERTSON JJ
Date of judgment:		19 July 2012
Date of hearing:	19 July 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	10
Counsel for the Applicant:	Mr AW Street SC with Mr AJ Abadee
Solicitor for the Applicant	Jason Li Lawyers
Counsel for the Respondent:	Mr RPL Lancaster SC with Ms S Callan
Solicitor for the Respondent	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:	JOHN ALAN JONES Applicant
AND:	CHIEF OF NAVY Respondent

JUDGES:	KEANE CJ, EMMETT, EDMONDS, BESANKO & ROBERTSON JJ
DATE OF ORDER:	19 JULY 2012
WHERE MADE:	SYDNEY

BY CONSENT, THE COURT ORDERS THAT:

1.Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) there be no publication of the name of the person referred to as the complainant.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:	JOHN ALAN JONES Applicant
AND:	CHIEF OF NAVY Respondent

JUDGES:	KEANE CJ, EMMETT, EDMONDS, BESANKO & ROBERTSON JJ
DATE:	19 JULY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The respondent seeks an order, pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), that there be no publication of the name of the complainant. The applicant consents to such an order being made.

2. The Defence Force Discipline Appeal Tribunal (the Tribunal) made an order to that effect in the course of the proceeding before it under s 18(2)(b) of the Defence Force Discipline Appeals Act 1955 (Cth).

3. This Court may make an order for non-publication of the name of a party under s 50 of the Federal Court Act “as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth”.

4. It is well-settled that any limitation on the public character of litigation must be clearly justified by legislation, and that personal embarrassment to a litigant is not the kind of prejudice which is contemplated by s 50.

5. In this case, it is said by the respondent that an order is necessary to prevent prejudice to the administration of justice in that victims of the kind of behaviour within the armed services which is alleged by the complainant are at risk of reprisals within the services if their identity becomes widely known.  In consequence, victims of abuse within the services may be unwilling to bring instances of unlawful abuse to light and may be unwilling to come forward or to give evidence if their anonymity is not assured.  There is, it may be argued, some analogy with cases of blackmail, where the victim’s name is usually suppressed in order to avoid causing the very harm to the victim which the offender has sought to cause.

6. While one may have reservations as to whether a guarantee of anonymity is necessary in such cases to prevent prejudice to the administration of justice as is suggested, we are content to defer to the evident opinion of the Tribunal in this regard.  It is likely to be much better informed on such matters than this Court.

7. On that basis, the Court’s power to make an order under s 50 of the Federal Court Act is enlivened.

8. The respondent relies upon s 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) made applicable to these proceedings by s 146 of the Defence Force Discipline Act 1982 (Cth), which proscribes publication of the complainant’s name. Section 40, properly construed, is not an instruction directed to the Court. It does, however, support the exercise of the discretion conferred by s 50 of the Federal Court Act so as to ensure that such a publication does not occur.

9. Accordingly, the Court’s power should be exercised as the respondent asks because to refuse to make the order would be to strip away the protection of the complainant’s privacy assured by the order of the Tribunal.

10. We would make the order which is sought by the respondent.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane and Justices Emmett, Edmonds, Besanko & Robertson.

Associate:

Dated:        30 November 2012