LFDB v SM

Case [2016] FCA 262

FEDERAL COURT OF AUSTRALIA

LFDB v SM [2016] FCA 262

File number(s): NSD 1665 of 2015
Judge(s): GRIFFITHS J
Date of judgment: 14 March 2016
Catchwords: ADMINISTRATIVE LAW - Orders sought under s 37AF of the Federal Court of Australia Act 1976 (Cth) to prevent prejudice to the proper administration of justice - suppression and non-publication orders - judicial comity
Legislation:

Federal Court of Australia Act 1976 (Cth), s 37AF

Family Court Act 1980 (NZ), ss 11B, 11D

Trans-TasmanProceedings Act 2010 (Cth)
Cases cited:

LFDB v SM [2015] FCA 725

LFDB v SM (No 2) [2015] FCA 1013

LFDB v SM [2011] FMCA 892
Date of hearing: 14 March 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 6
Counsel for the Applicants: Mr P Herzfeld
Solicitor for the Applicants: O’Neill Partners Commercial Lawyers
Counsel for the Respondent: Dr C Ward SC
Solicitor for the Respondent: Marque Lawyers

ORDERS

NSD 1665 of 2015
BETWEEN:

LFDB (and others named in the Schedule)

First Applicant
AND:

SM

Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

14 MARCH 2016

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, and in accordance with paragraph 183 of the decision of Ellis J of the High Court of New Zealand, registered in proceedings NSD1665 of 2015 at orders 35, 36, 37 to 40, the Court orders as follows:

(a)the permanent suppression of the parties’ names and any other information that could identify SM, including her occupation, employment, history and health, howsoever (to be described as the identifying information), whether in the proceedings or in any related proceedings or otherwise;

(b)the prohibition of any publication past, present, future, of any identifying information so defined;

(c)subject to paragraphs 1(d), 1(e) and 1(f) below, the confidential exhibit shall not be published and be placed in a sealed envelope;

(d)any reference to any person / property / judgment listed in column B of the confidential exhibit, which is attached to these orders, must be by their respective pseudonym listed in column A of that exhibit;

(e)leave is granted for SM to disclose any part of the confidential exhibit as and when necessary for enforcing orders made in the proceedings or any related proceedings;

(f)the prohibition of any recipient of the confidential exhibit from further disclosing the confidential exhibit without SM’s written consent;

(g)the suppression of the originating application and the two affidavits of LFDB, filed on 12 February 2016 in this Court, and the notice of appearance, filed on 2 March 2016 in this Court, on the basis that they disclose details identified at paragraph 1(a) above; and

(h)the applicants to re-file the originating application and two affidavits of LFDB, filed on 12 February 2016, and the notice of appearance, filed on 2 March 2016, with the identifying details of…

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AGLC
LFDB v SM [2016] FCA 262
Case
[2016] FCA 262
Decision Date

CaseChat Overview and Summary

LFDB brought proceedings against SM seeking various orders. The applicants sought suppression and non-publication orders to prevent prejudice to the proper administration of justice. The court was required to determine whether the orders sought by the applicants were necessary to prevent such prejudice and, if so, whether they should be granted. The court also needed to consider the principles of judicial comity and whether the orders were proportionate to the circumstances of the case.

The court considered the evidence and arguments presented by both parties and concluded that the orders sought were necessary to prevent prejudice to the proper administration of justice. The court found that the identifying information of the parties, including the name and occupation of SM, could cause significant prejudice if published. The court also found that the confidential exhibit, which contained sensitive information about various individuals and properties, should be suppressed and not published. The court further found that the use of pseudonyms for certain individuals and properties was necessary to protect their privacy and prevent potential harm.

The court granted the orders sought by the applicants, including the permanent suppression of the parties' names and any other identifying information, the prohibition of any publication of such information, and the suppression of certain documents. The court also granted leave for SM to disclose any part of the confidential exhibit as and when necessary for enforcing orders made in the proceedings or any related proceedings. The court further granted an order for the confidential exhibit to be placed in a sealed envelope and for any reference to any person, property, or judgment listed in the confidential exhibit to be made using their respective pseudonym.

The court made orders for the suppression and non-publication of the parties' names and any other identifying information, as well as for the suppression of certain documents. The court also granted leave for SM to disclose any part of the confidential exhibit as and when necessary for enforcing orders made in the proceedings or any related proceedings. The court further ordered that the confidential exhibit be placed in a sealed envelope and that any reference to any person, property, or judgment listed in the confidential exhibit be made using their respective pseudonym.

Orders

Orders of the court

1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, and in accordance with paragraph 183 of the decision of Ellis J of the High Court of New Zealand, registered in proceedings NSD1665 of 2015 at orders 35, 36, 37 to 40, the Court orders as follows:

(a) the permanent suppression of the parties’ names and any other information that could identify SM, including her occupation, employment, history and health, howsoever (to be described as the identifying information), whether in the proceedings or in any related proceedings or otherwise;

(b) the prohibition of any publication past, present, future, of any identifying information so defined;

(c) subject to paragraphs 1(d), 1(e) and 1(f) below, the confidential exhibit shall not be published and be placed in a sealed envelope;

(d) any reference to any person / property / judgment listed in column B of the confidential exhibit, which is attached to these orders, must be by their respective pseudonym listed in column A of that exhibit;

(e) leave is granted for SM to disclose any part of the confidential exhibit as and when necessary for enforcing orders made in the proceedings or any related proceedings;

(f) the prohibition of any recipient of the confidential exhibit from further disclosing the confidential exhibit without SM’s written consent;

(g) the suppression of the originating application and the two affidavits of LFDB, filed on 12 February 2016 in this Court, and the notice of appearance, filed on 2 March 2016 in this Court, on the basis that they disclose details identified at paragraph 1(a) above; and

(h) the applicants to re-file the originating application and two affidavits of LFDB, filed on 12 February 2016, and the notice of appearance, filed on 2 March 2016, with the identifying details of the parties amended in accordance with the above suppression regime.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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