Lloyd and Oxbourne and Ors
[2016] FCCA 2026
•10 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LLOYD & OXBOURNE & ORS | [2016] FCCA 2026 |
| Catchwords: PRACTICE AND PROCEDURE – Suppression and non-publication application – s.15 Federal Circuit Court of Australia Act 1999 – Part X1A Family Law Act1975 – implied/inherent powers of Court – application dismissed. |
| Legislation: Family Law Act 1975, ss.34, 102P, 102PA, 102PC, 102PD, 102PE, 102PF, 102PG, 121 |
| Cases cited: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 |
| Applicant: | DAVID JOHN LLOYD |
| First Respondent: | MR OXBOURNE |
| Second Respondent: | MS EWANS |
| Third Respondent: | MS ROSE |
| File Number: | SYC 4979 of 2016 |
| Judgment of: | Judge Sexton |
| Date of Last Submission: | 1 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Kearney SC |
| Solicitors for the Applicant: | Newnhams Solicitors |
| Solicitors for the First Respondent: | Newnhams Solicitors |
| Solicitors for the Second and Third Respondent: | Mark MacDiarmid |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
THE COURT ORDERS THAT:
The Application in a Case filed on 25 August 2015 be dismissed.
IT IS NOTED that this Judgment and the Judgment in proceedings SYC1820 of 2014 will not be published prior to the expiration of the appeal period.
IT IS NOTED that publication of this judgment under the pseudonym Lloyd & Oxbourne & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4979 of 2016
| DAVID JOHN LLOYD |
Applicant
And
| MR OXBOURNE |
First Respondent
And
| MS EWANS |
Second Respondent
And
| MS ROSE |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an Application in a Case filed on 25 August 2015 by David John Lloyd SC who appeared as counsel for the applicant in the parenting proceedings SYC1820 of 2014.
The Applicant seeks Orders as follows:
(1)Order that the reasons for judgment of Judge Sexton on 7 August 2015 in proceedings numbered SYC 1820 of 2014 and bearing citation [2015] FCCA 2127 [the judgment] not be published by the Judgments Publications Officer (or such other office or entity responsible for the publication of judgments of the Federal Circuit Court of Australia) nor by any other person or entity, including but not limited to by means of the Court’s intranet, the Federal Circuit Court of Australia webpage or otherwise.
(2)Order that, to the extent that any such publication may have already occurred, the Judgments Publications Officer (or such other office or entity responsible for the publication of judgments of the Federal Circuit Court of Australia) forthwith do all things necessary to withdraw any and all publication of the Judgment.
(3)In the alternative to 1, and in the event that the judgment is to be published, any such publication shall only occur in a form which omits:
3.1 Any and all identification of the Counsel and solicitors for the Applicant; and
3.2 Each of paragraphs 69 and 70 of the reasons for judgment in their entirety.
(4)In the event that the above applications are unable to be heard on a timely basis and on the first return date, that pending further Order an order be entered in accordance with each of Orders 1 and 2 above.
(5)That each of the applicant, first respondent, second respondent and Independent Children’s Lawyer be excused from attendance at and participation in the hearing of these applications.
(6)Leave to serve short notice.
Mr Kearney SC appeared for Mr Lloyd and provided written submissions dated 8 December 2015 and 1 April 2016. With Mr Kearney’s consent, apart from brief oral submissions on the first mention date, the matter proceeded without Mr Kearney’s further appearance.
Counsel submitted that he could not make out a case to suppress the entirety of the Judgment and would not therefore press Order 1, and sought only to press for Order 3 of the Application. In relation to Order 3, Counsel submits that[1]:
…it may be sufficient to remove either [paragraphs] 69 or 70 [of the Judgment] or to remove the name of senior counsel or remove the name of the solicitors…it’s the path of identification that is the concern and that’s why we’ve sought both solicitors plus senior counsel…
[1] At page 7 of 11 December 2015 transcript of proceedings
The reasons for judgment, the subject of this application, were given in parenting proceedings and concerned an application for parenting orders in relation to a 9 year old child, against the child’s two mothers, the first and second respondents. The Applicant appeared as Counsel on behalf of the applicant biological father. As I identified in the reasons, the case was challenging in respect of its emotional complexities and sensitivities.”[2] The central difficulty was identifying how the biological father’s relationship with the child was to be managed and developed into the future, in circumstances where at conception the parties envisaged that the child would be raised in a household with two mothers: a non-traditional family structure.
[2] At paragraph 131 of [2015] FCCA 2127
As I found at paragraph 132:
…I agree with Dr K that there has been positive value in [the child’s] relationship with the Applicant and his intentions are positive. I find that there remains a viable relationship between them that is likely to be of present and future value to [the child] if the right conditions prevail.
Importantly, I also found[3]:
I agree with Dr K that the answer to what is in [the child’s] best interests is to preserve the safety and nurturing environment of his parents’ [his two mothers’] home, and to give them security and reasssurance so that they can devote their energies to their family life with [the child] and move on from these proceedings which has been so disturbing and distressing for them and for [the child].
[3] At paragraph 136
In the context of these issues, the conduct of the parties in the proceedings was relevant as it bore upon the level of conflict between the parties and the capacity of the parties to deal with each other in the future. At paragraphs 69 and 70 of my Reasons for Judgment, I found that:
69. I accept the Mothers’ solicitor’s submission that the manner in which the Applicant conducted his case did not alleviate the Mothers’ fear or enhance the prospects of the Mothers supporting [the child] spending time with the Applicant, even limited time. Counsel for the Applicant referred to the Applicant as “the father” throughout the hearing, which the Mothers found affronting, distressing and insensitive, and I find served to exacerbate the Mothers’ fears and resistance to face to face time. The Mothers do not regard the Applicant as a father to their child, but rather as a “sometimes person” who donated the seed needed for X’s conception. Counsel said:[4]
Counsel: You don’t see him as any father, do you
Mother (First Respondent): He’s not a father to my child.
….Counsel: I’m going to continue to call him ‘the father’..
Mother (First Respondent): I understand.
70. I also found counsel’s at times sarcastic style of cross examination unnecessary and unhelpful in the difficult circumstances of this case. For example, he asked the First Respondent whether she would prefer Father’s Day to be re-named Donor’s Day.[5] I found his submission[6] that the Mothers are “insular”, “narrow-minded” “belligerent” and “appalling” role models particularly unhelpful in a case in which his client had consented to an order that the child live with them.
[4] At pages 155 and 156 of 2 June 2015 transcript of proceedings
[5] At page 146 of 2 June 2015 transcript of proceedings
[6] At page 236 of 3 June 2015 transcript of proceedings
Standing
The Applicant refers to himself as “the intervener”. While I accept Mr Lloyd has standing to bring the application “as a person considered by the court to have a sufficient interest in the making of the order,”[7] I am not satisfied he is an “intervener”. The proceedings were finalised by the parenting orders made on 7 August 2015. In the 1981 decision of Vitzdamm-Jones v Vitzdamm-Jones[8], the High Court held that it is not possible to intervene in proceedings that are concluded and no longer on foot, as is the case here. It follows that the Application in a Case filed on behalf of Mr Lloyd should have been an Initiating Application.
[7] Section 102PG(1)(b)
[8] 6 FamLR 609 at 628
The parties in the parenting proceedings were served with the Application in accordance with s.102PG(2)(b) of the Family Law Act 1975. As none of them wished to be heard, there is no contradictor in these proceedings.
The Applicant’s case
The Applicant says that “paragraphs 69 and 70 [of the Reasons for Judgment] unnecessarily refer to me and have the effect if published of detrimentally affecting my reputation in Family Law.”[9]
[9] At paragraph 5 of Applicant’s affidavit sworn on 25 August 2015
Mr Kearney submits that paragraphs 69 and 70 are directly and personally critical of the Applicant’s conduct of the trial. Counsel submits that that the criticisms advanced in the Reasons were not the subject of any invitation to address, and in any event, it would not have been appropriate for the Applicant to have “become an advocate in his own cause”.[10] Mr Kearney submits that “such matters did not properly arise for submission, directly or indirectly, in the course of closing”.[11] Counsel contends that the paragraphs contain extraneous references to the Applicant and “could not be said to be in the interests of justice nor the open administration of the Court to have published.” This is particularly so where such references were the subject of no submission and the Applicant has no right of redress.[12]
[10] At paragraph 32 of submissions filed on 8 December 2015
[11] At paragraph 32 of submissions filed on 8 December 2015
[12] At paragraph 33 of submissions filed on 8 December 2015
Counsel submits[13] that “publication of the reasons should be restricted in proper exercise of the discretion of the Court having regard to:
· The intent and purpose of s.121 of the Family Law Act 1975;
· The ready identification of the intervener from the reasons for judgment;
· The prejudice and damage reasonably apprehended to flow from an identification of the intervener and the content of the reasons; and;
· The content of the reasons.
[13] At paragraph 3 of written submissions filed on 8 December 2015
The application therefore concerns both identification and content.
Discussion
I accept that the Applicant can be readily identified in the Reasons for Judgment. I accept that the content of paragraphs 69 and 70 is critical of the manner in which the applicant’s case in the parenting proceedings was conducted in the context of the complexities involved. The Reasons explain the complexities in detail and the subject paragraphs explain why it was found that the manner in which the case was conducted was relevant to the determination of the proceedings. The decision as to how to conduct a case concerning children’s issues (on the continuum between combative and conciliatory advocacy) will always be central to careful advocacy in children’s cases: in almost all parenting cases the litigants will have to maintain an ongoing relationship (of some form) for the parenting of the children the subject of the litigation and the relationship will inevitably be impacted by the conduct of the litigation.
Mr Kearney submits that there is also “a concern regarding extraneous comment in the course of judgments…where the final determination precludes any appeal in relation to the comments made in the course of the same (determination).”[14] Mr Kearney submits that the Applicant has not had an opportunity to respond to the matters raised in paragraphs 69 and 70 of the Judgment. This was an issue raised by counsel in Brown & Brown (No.3)[15] and it was accepted by that Court that the legal representatives whose conduct was impugned, were not present during the relevant proceedings and therefore not given an opportunity to respond. I am not satisfied the argument can be sustained here. As is apparent from the face of the Reasons,[16] the solicitor for the respondent mothers made submissions on the critical importance of the parties improving their relationships for the benefit of the child and the negative effect of the manner in which the Applicant conducted his client’s case on the prospects of such improvement. The respondent mothers’ solicitor submitted as follows[17]:
Now, I know my friend has indicated that my clients were, and I quote here, your Honour, because it’s a little bit remarkable:
‘Myopic, insular, belligerent, narrow-minded, discourteous, defiant. In terms of role models, they’re appalling –‘
and he continues along those lines, which is not particularly helpful, given what I’m presenting to your Honour as the issue. If there is to be a solution to this, the solution must incorporate an improvement in the relationship between the parties, not a further deterioration of it. Your Honour heard evidence from [Respondent 2] this morning, in fact, that she particularly felt that there had been a deterioration as a result of these proceedings. She had felt hurt and she had felt whatever it was that she said she had felt, I don’t recall it at the moment, in relation to the insistence on terminology.
Mr Lloyd made a very clear point that he was going to refer to [the Applicant] as the father, as he was entitled to do, but perhaps wasn’t so helpful and it certainly hasn’t assisted things I don’t think. Nor did that part of his submissions assist, I think, if we’re to find a way forward. These parties have become further polarised by these proceedings, not brought back together…
[14] At paragraphs 27 and 28 of written submissions filed on 8 December 2015
[15] [2007] FamCA 1639
[16] At page 35 of Annexure A to Applicant’s affidavit sworn on 25 August 2015
[17] At page 35 of Annexure A to Applicant’s affidavit sworn on 25 August 2015
It was open to the Applicant to reply to those submissions. It was also open to the applicant in the parenting proceedings to raise such a complaint on appeal.
The issue in these proceedings is not whether the Court was in error in having regard to the manner in which the case was conducted by the Applicant. The issue here is whether this Court should edit the Reasons for Judgment to ensure the “path of identification” to the Applicant should be removed in the interests of justice.
I agree with counsel that the Court has a discretionary power to make the order sought by the Applicant from the sources he identifies. Counsel refers to s.15 of the Federal Circuit Court of Australia Act 1999 (hereinafter called the FCC Act), and the limited inherent jurisdiction (or implied powers) of the Court to manage and prevent any abuse of its own processes, as the sources of power available to the Court. In addition, while Counsel submits it is not necessary to consider the provisions in Part XIA of the Family Law Act 1975, if the Court does choose to take that course, Counsel submits those provisions provide a further source of power which could be relied on by the Court to make the order sought by the Applicant. Counsel argues “the order is necessary to prevent prejudice to the proper administration of justice”.[18]
[18] Family Law Act 1975, s 102PF(1)(a)
Section 15
Mr Kearney submits that section 15 of the FCC Act (closely equivalent to s.23 of the Federal Court of Australia Act 1976 (hereinafter referred to as the “Federal Court Act”) and s.34 of the Family Law Act 1975) “provides the Court with the power to make Orders of such kind as the Court thinks appropriate, including the making of orders necessary to enable the Court to exercise its jurisdiction effectively or to prevent any abuse of or interference with its processes.”[19] Counsel submits that the Federal Court and the Family Court have relied upon that particular equivalent provision for the entry of these style of orders. However, counsel does not refer to any case in the Federal Circuit Court where such an order has been made under s.15 and my research suggests that no such case exists. The authorities to which counsel refers[20] to support his submission are cases where the Court has made orders to prevent the abuse of process but not orders for the non-publication of Judgments, parts of Judgments nor orders for the suppression of the identity of a person connected with proceedings. Counsel submits that the words in s.15 of the FCCA Act, ‘as the Court thinks appropriate’ (like s.23 of the Federal Court Act) “points to the requirement to develop principles governing the exercise of the power in such a fashion as to avoid abuse.”[21]
[19] At paragraph 11 of submissions filed on 8 December 2015
[20] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Warby (2002) FLC 93-091; Deputy Commissioner of Taxation v Kliman and Kliman (2002) FLC 93-113
[21] Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 referring to Deane J in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623
Mr Kearney submits that section 50 of the Federal Court Act was specifically directed to the making of Orders in relation to the publication of evidence but did not prevent the Federal Court from making such an order pursuant to s.23 of the Federal Court Act. Section 50 was repealed in 2012 and replaced with Part VAA, the equivalent of the provisions in Part XIA of the Family Law Act. Mr Kearney does not refer to any authority in which the Federal Court has used s.23 of the Federal Court Act [equivalent to s.15 of the FCC Act] as the source of power to make a non-publication order since the inclusion of the new provisions equivalent to Part XIA of the Family Law Act 1975.
Mr Kearney submits that the Court should recognise, in deciding whether to exercise the power (either under s.15 or its implied powers) to make a non-publication order, that the legislature determined it appropriate to restrict the open administration of justice in family law proceedings by means of s.121 of the Family Law Act 1975. Counsel submits that the nature of the family law jurisdiction, together with section 121 and the common law principles, suggests that the Court should more readily move to exercise the power to order non-publication than other jurisdictions.
This same point was argued in Brown’s case, a 2007 decision of Justice Moore in the Family Court. In relation to the effect of s.121 of the Family Law Act 1975, Moore J said in Brown[22]:
[22] At paragraph 17 of Brown & Brown (No.3) [2007] FamCA 1639
I do not see the scope for attaching to s 121 the special status I apprehend the submissions do; that is, by operating to permit incursions into the principle of open administration of justice more readily than would otherwise be the case - save as to the specific issue of identification. The section works merely to restrict the publication or dissemination, not of any account of the proceedings or any part thereof but of any publication or dissemination that identifies [without the leave of the court] a class of persons, being -
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;..
I agree with Moore J as to the purpose of s.121. I find no justification for the submission that the existence of s.121 is relevant to the consideration of whether to exercise the power to order non-publication, and that the Court should more readily move to exercise the power than other jurisdictions. The focus of s.121 is anonymity[23]. S.121 exists to protect the identity of parties, witnesses and particularly children in family law matters. I agree with Moore J that “any further restriction on publication or dissemination falls to be considered according to the same principles applied in other courts.”[24] It is noteworthy that s.102PC provides that Part XIA and s.121 do not limit each other. The Explanatory Memorandum says they are provisions intended to operate side-by-side and not interfere with each other.[25]
[23] At paragraph 26 of Brown & Brown (No.3) [2007] FamCA 1639
[24] At paragraph 18 of Brown & Brown (No.3) [2007] FamCA 1639
[25] At paragraph 24 of Access to Justice (Federal Jurisdiction) Amendment Bill 2011 Explanatory Memorandum
I accept Counsel’s submission that s.15 of the FCC Act is a source of power to make the order sought, despite the existence of Part XIA of the Family Law Act 1975. I accept that Part XIA does not limit or otherwise affect the powers otherwise available to the Court to grant the relief sought[26].
[26] Family Law Act 1975, s. 102PA
However, it is not the intention of the legislature for s.15 to be used as the source of power in suppression/non-publication cases, and as noted, the Federal Circuit Court has not relied on s.15 to ground a suppression/non-publication order.
The Explanatory Memorandum of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011, which inserted Part XIA into the Family Law Act 1975, makes the legislature’s position clear. The aim of the provisions is to “ensure that suppression and non-publication orders are made only where necessary on the grounds set out in the Bill, taking into account the public interest in open justice, and in terms that clearly define their scope and timing.”[27] The model law contained in the Bill was implemented in the High Court, the Federal Court, the Family Court and the Federal Circuit Court (at the time the Federal Magistrates Court) and other courts exercising jurisdiction under the Family Law Act 1975. The Memorandum states[28]:
While the two courts’ more general powers under section 34 of the Family Law Act 1975 and section 15 of the Federal Magistrates Act 1999 will not be amended by this Bill, those powers should no longer be used to prohibit or restrict the publication or other disclosure of information in connection with proceedings (section 102PB). The Court’s implied powers to regulate their own proceedings will be unaffected. (s.102PA).[29]
[27] At page 2 of Access to Justice (Federal Jurisdiction) Amendment Bill 2011 Explanatory Memorandum
[28] At page 7 of Access to Justice (Federal Jurisdiction) Amendment Bill 2011 Explanatory Memorandum
[29] Section 102PB provides, “This Part does not limit or otherwise affect the operation of a provision made by or under any Act (other than this Act) that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.”
The Explanatory Memorandum states:
The federal courts already have existing powers to make suppression and non-publication orders. However, the legislation supporting those powers is fragmented and varies in detail. Implementation of the Bill will ensure a more comprehensive legislative regime that clearly sets out the circumstances in which suppression orders and non-publication orders can be made, what information they can cover and what details those orders should contain. The Bill will also assist in achieving greater uniformity across Australia of the laws relating to suppression orders and non-publication orders, making it easier to understand in what circumstances such orders can be made and what they must contain…[30]
…Although the Family Court and the Federal Magistrates Court (as it was at the time) already have power to make suppression and non-publication orders in family law proceedings, section 102PE will provide a clearer legislative framework for what kind of information can be covered by such orders…[31]
[30] At page 2 of Access to Justice (Federal Jurisdiction) Amendment Bill 2011 Explanatory Memorandum
[31] At page 11 of Access to Justice (Federal Jurisdiction) Amendment Bill 2011 Explanatory Memorandum
It is clear that the legislature did not intend the Court to use s.15 of the FCC Act [formerly the Federal Magistrates Act 1999] to make an order of the kind sought by the Applicant, once Part XIA was enacted.
Part XIA
The statute differentiates between a “suppression order” which concerns disclosure, (including publication) and a “non-publication order” [S102P] which prohibits the publication of information, but not disclosure of that information. However, the difference is not an issue here. The Applicant seeks an order to edit the Reasons for Judgment by removing paragraphs 69 and 70 from the published Reasons, as well as suppressing his name and his instructor’s name from the published Reasons. When deciding whether to make a suppression order, or a non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.[32]
[32] Section 102PD of the Family Law Act 1975
Section 102PE provides that:
(1)A court exercising jurisdiction in proceedings under this Act may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in the proceedings or any person who is related to or otherwise associated with any party to or witness in the proceedings; or
(b)information that relates to the proceedings and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the court.
(2)The court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
Counsel did not address me on the question of whether the Applicant is “a person related to or otherwise associated with any party in the proceedings” and I find no authority on the meaning of those words in s.102PE(1)(a), (or the Federal Court equivalents) or in s.121(1)(b) where the same terminology is used. However, I find it noteworthy that the term “person associated with any party” does not include a party’s legal representative in s.121(1)(b). Whilst s.121(1) does not expressly exclude a legal representative of a party, the publication of a party’s legal representative’s name is routine in the publication of family law decisions. In 1981, the Family Law Council resolved to recommend to the Attorney General, in relation to steps that should be taken to relax the restrictions on publication in s.121, that “the legislation should operate so as to exclude from publication names of all parties and other involved persons…this should not apply in relation to the identification of judges and practitioners”.[33] Consistently with s.121(1)(b), it may be that the Court does not have the power under s.102PE(1)(a) to suppress information revealing the Applicant’s identity, if the Applicant cannot be regarded as “a person associated with any party.” However, given I am not able to find any Full Court authority on this specific issue[34] and counsel made no submissions on the issue, I address the provisions of Part XIA as though the Court does have the power under those provisions to make the order sought by the Applicant.
[33] At page 34 of Family Law Council Annual Report 1980 to 1981
[34] Tree J in Norton & Landell (Suppression or non-publication order)[2015] FamCA 125 applied section 102PE to legal representatives
The grounds for making a suppression or non-publication Order are set out in section 102PF which provides:
(1)The court may make a suppression order or non‑publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non‑publication order must specify the ground or grounds on which the order is made.
Mr Kearney submits that the ground identified in s.102PF(1)(a) provides a proper basis for the relief sought, being “necessary to prevent prejudice to the proper administration of justice.” The word “necessary” has been the subject of authority. Mr Kearney referred to the decision of John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, as to what is “necessary” in this context. In that case, the N.S.W Court of Appeal considered whether a Local Court Magistrate hearing committal proceedings had power to make an order protecting the identity of a victim. Mr Kearney submitted that the definition of “necessary” in the decision of John Fairfax could also be applied when considering its meaning in the context of section 102PF(1)(a). Mahoney JA in John Fairfax said [at 161] that:
…in considering whether the power to make a pseudonym order of the present kind…it is necessary to consider whether the making of a pseudonym order can in principle be “really necessary to secure the proper administration of justice in the proceedings.
…
The basis of the implication is that if the kind of order proposed is not made…particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the Court.”
The High Court in Hogan v Australian Crime Commission[35] considered the meaning of the word “necessary” in relation to section 50 of the Federal Court of Australia Act 1976 (Cth) (now repealed), in similar terms to section 102PF(1)(a) of the Family Law Act. The High Court[36] says:
[35] [2010] 240 CLR 651
[36] Hogan v Australian Crime Commission at 664
As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities.”
….
It is insufficient that the making…of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.
… The appearance of the requisite necessity…having been demonstrated, the Court is to implement its conclusion by making or vacating the order…
The High Court makes clear it is not a balancing exercise.[37] If the Court reaches “the requisite state of satisfaction” that the Order is “necessary” “to prevent prejudice to the proper administration of justice” then the Court must make the order. However, orders cannot be made lightly given the interest in the open administration of justice recognised in s.102PD.
[37] Hogan v Australian Crime Commission at 664
Mr Kearney argues that the Applicant’s reputation in family law will be affected if the subject paragraphs of the Judgment are published and his name identified as the counsel referred to in those paragraphs. He does not explain how the Applicant’s reputation in family law would be affected. I am not satisfied that criticism of a legal representative’s conduct of a case, in itself, must meet automatically, the high threshold of the term “necessary”; nor am I satisfied, given the limited evidence on the issue, that the content of paragraphs 69 and 70 of the Reasons for Judgment would necessarily adversely impact on the Applicant’s reputation in family law. Counsel does not argue (unlike in Brown at paragraph 44)[38] that there would be any adverse impact on the Applicant’s client if the order was not made. Counsel submits that the relevant paragraphs contain extraneous references to the Applicant and his conduct, which could not be said to be in the interests of justice, nor the open administration of the Court, to have published. I do not accept counsel’s submission. As already noted, the test is not whether references to the Applicant’s approach in a case are in the interests of justice or the open administration of justice. The test is whether the order for suppression and non-publication is “necessary” to prevent prejudice to the proper administration of justice. In Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 Foster J, after noting that the threshold which a suppression order must satisfy is high, observed that “mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice”.[39] In the Victorian Court of Appeal decision of Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9VR 275, 286, the Court says that statutory provisions for suppression “ought ordinarily to be strictly construed and utilised only when clearly necessary.” I am not satisfied that the high threshold has been met in this case.
[38] In Brown & Brown (No.3), the Court eliminated the identification of lawyers under s.121
[39] Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 at 30
In deciding whether to make the Order sought by the Applicant under Part XIA, the Court is required to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice[40]. His Honour Chief Justice French said[41]:
…a statute which affects the open-court principle, even on a discretionary basis, should generally be construed, where constructional choices are open, so as to minimise its intrusion upon that principle.
[40] Section 102PD of the Family Law Act 1975
[41] At paragraph 27 of Hogan v Hinch [2011] HCA 4
I am not satisfied the Applicant has made out his case for non-publication of paragraphs 69 and 70 of the Judgment, nor for the suppression of the Applicant’s name and the name of his instructing solicitors pursuant to Part XIA.
Inherent jurisdiction/implied powers
I accept Mr Kearney’s submission that the Court may have an implied power to make a non-publication or suppression order incidental to the exercise of jurisdiction of express powers conferred by statute. Mr Kearney submits that the Federal Circuit Court has a “limited inherent jurisdiction”[42] which, “albeit not corresponding with that of superior courts of record, permits the imposition of restraints on the publication of its proceedings.”
[42] At page 4 of 11 December 2015 transcript of proceedings
In Norton v Locke, the Full Court discussed the terms “inherent jurisdiction” and “implied power”. The Full Court said[43]:
Expressions such as “implied jurisdiction”, “inherent jurisdiction”, “implied power” and the like should be used with caution in respect of a court which, like this court, is not a court of unlimited jurisdiction… If the court has “implied powers”, they must be powers within jurisdiction and referable to a power which the court expressly has.
[43] Norton & Locke [2013] FamCAFC 202 at paragraph 33
In DJL v The Central Authority (2000) 201 CLR 226, the High Court examined the powers of the Family Court of Australia, a superior court of record created by statute. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said that as the Family Court is “not a common law Court”, it is “unable to draw upon the well of undefined powers" which were available to those courts [the common law Courts] as part of their “inherent jurisdiction.” [44] Instead, the majority said:
A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it" and “[t]his is a matter of statutory construction"; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred". It would be inaccurate to use the term “inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court….
[44] At paragraph 25 of DJL v The Central Authority (2000) 201 CLR 226
In Hogan v. Hinch, his Honour Chief Justice French referred to the ‘implied powers’ of inferior courts and the ‘inherent jurisdiction’ of the superior courts to limit the application of the open justice principle “where it is necessary to secure the proper administration of justice.”[45]
[45] At paragraph 21 of Hogan v Hinch [2011] HCA 4. Also Kirby P in Logwon Pty Ltd V Warringah Shire Council (1993) 33 NSWLR 264 at 270 noted that no Court “created by statute, inherits such powers.”
I accept Mr Kearney’s submission that Courts have recognised that whilst it must be considered in the context of the principles of the open administration of justice, the open administration of justice “is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case…the rules of openness must be modified to meet the exigencies of the particular case”[46] and “The chief object of Courts of justice must be to secure that justice is done…”[47]
[46] John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 per Kirby P (as he then was) at 141. See also comments by Mahoney JA in John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 at 163; John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 471 per Mahoney JA; David Syme & Co Ltd v GMH Ltd (1984) 2 NSWLR 294 at 300 to 301.
[47] Scott v Scott [1913] AC 417 at 437
In Stanford v. DePuy International Ltd[48], a 2013 decision of the Federal Court, Justice Robertson accepted that the High Court’s approach in Hogan v Australian Crime Commission has been given “statutory force” in s.37AE.[49] Robertson J also made reference to the Court’s implied power to make a suppression order. His Honour noted that it was accepted that any order made under that power would also be limited by it being ‘necessary’ to prevent prejudice to the proper administration of justice. In the 2004 Court of Appeal decision of John Fairfax Publications Pty Ltd v. District Court of New South Wales[50], the Court held that:
The test to determine whether there exists an implied power arising from the expressly conferred jurisdiction is a test of necessity and it must be applied with strictness when the power sought to be implied conflicts with the principle of open justice.
[48] [2013] FCA 1304
[49] Equivalent to section 102PD in the Family Law Act 1975
[50] [2004] NSWCA 324
As already noted, I am not persuaded that the test of “necessity” has been satisfied on the facts of this case.
Determination
The Application will be dismissed. As the Applicant may wish to appeal this decision, the Court will not publish this Judgment or the Judgment in SYC1820 of 2014 before the expiration of the appeal period.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Date: 10 August 2016
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