Ludolphs v Australian Prudential Regulation Authority - [2007] FCA 1629

FEDERAL COURT OF AUSTRALIA
Ludolphs v Australian Prudential Regulation Authority [2007] FCA 1629
APPEAL - Application for leave to appeal from refusal to make suppression orders - whether interim suppression orders should be made pending hearing of application for leave to appeal.
John Fairfax Publications Pty Ltd v Local Court of New South Wales (1992) 26 NSWLR 131
Administrative Appeals Act 1975 (Cth), ss 35(2), 41(2)
Federal Court of Australia Act 1976 (Cth), s 50
Insurance Act 1973 (Cth) ss 25A(1), 63(2), 63(4), 63(7)
HENNING LUDOLPHS and JUERGEN GRAEBER v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
NSD1904 OF 2007
SACKVILLE J
26 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1904 OF 2007

BETWEEN:

HENNING LUDOLPHS
First Applicant

JUERGEN GRAEBER
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

JUDGE:

SACKVILLE J

DATE OF ORDER:

26 OCTOBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicants file and serve by 5 pm on 26 October 2007 any application for leave to appeal from the orders made by Lindgren J on 25 October 2007. Any such application is to be returnable before the Duty Judge at 10.15 am on 1 November 2007, without prejudice to the applicants’ entitlement to approach the Duty Judge earlier if so advised.
2.If no application for leave to appeal is filed by the time specified in Order 1, the application for leave to appeal will stand dismissed with costs.
3.The applicants’ motion for interim suppression orders be dismissed.
4.The applicants pay the respondent’s costs of the motion for interim suppression orders.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1904 OF 2007

BETWEEN:

HENNING LUDOLPHS
First Applicant

JUERGEN GRAEBER
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY

JUDGE:

SACKVILLE J

DATE:

26 OCTOBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Two motions are before the Court. The applicants seek what have been described as interim suppression orders pending the hearing of their applications for leave to appeal from an interlocutory judgment of Lindgren J. In that judgment, his Honour dismissed the applicants’ motions seeking interim suppression orders pending the final hearing in the proceedings before him.
THE PROCEEDINGS BEFORE LINDGREN J
Each applicant has appealed to the Court from a decision of the Administrative Appeals Tribunal (‘AAT’) that it did not have power under s 35(2) of the Administrative Appeals Act 1975 (Cth) to prohibit publication of the names of the parties, or to describe the parties by pseudonyms for the purposes of proceedings being heard by it. The applicants say that the AAT erred in law in making this decision. Lindgren J has listed the appeals from the AAT’s decision on the so-called suppression orders for hearing on 12 November 2007. (Although designated ‘appeals’, the proceedings are in the original jurisdiction of the Court.)
The interlocutory relief sought by the motions filed by the applicants in the proceedings before…

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: [2007] FCA 1629
Decision Date: 26 October 2007

CaseChat Overview and Summary

The applicants in this case sought interim suppression orders in relation to the publication of their names and other material by the Australian Prudential Regulation Authority (APRA). The matter was heard in the Federal Court of Australia, where Justice Gilmour was presiding. The applicants argued that disclosure of the fact that they were challenging APRA's disqualification decisions in the Administrative Appeals Tribunal (AAT) would cause them significant prejudice. They sought suppression orders to prevent the publication of their names and other material.

The legal issues before the court were whether the applicants could demonstrate significant prejudice that would warrant suppression orders and whether there was any other basis for the AAT to make such orders. The court considered the material available and found that the applicants were unlikely to be able to show that disclosure would cause them significant prejudice. The court also noted that if there was some other basis for the AAT to make suppression orders, the applicants would have the opportunity to ask the AAT to do so.

The court concluded that the orders sought by the applicants were not necessary to prevent prejudice to the administration of justice. The court dismissed the applicants' motions for interim suppression orders and made orders for the further conduct of the applications for leave to appeal. The applicants were required to file and serve any application for leave to appeal by a specified date, and if they failed to do so, the application for leave to appeal would stand dismissed with costs. The applicants were also ordered to pay the respondent's costs of the motion for interim suppression orders.

Orders

Orders of the court

1. The applicants file and serve by 5 pm on 26 October 2007 any application for leave to appeal from the orders made by Lindgren J on 25 October 2007. Any such application is to be returnable before the Duty Judge at 10.15 am on 1 November 2007, without prejudice to the applicants’ entitlement to approach the Duty Judge earlier if so advised.

2. If no application for leave to appeal is filed by the time specified in Order 1, the application for leave to appeal will stand dismissed with costs.

3. The applicants’ motion for interim suppression orders be dismissed.

4. The applicants pay the respondent’s costs of the motion for interim suppression orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SACKVILLE J (dissent)

In the absence of any demonstrable prejudice to the applicants arising from the publication of their names or of the other material they have asked the AAT to suppress, it is difficult to envisage the AAT making the suppression orders. But on the material available to me, the applicants are unlikely, in any event, to be able to show that disclosure of the fact that they are challenging APRA’s disqualification decisions in the AAT will cause them significant prejudice. If there is some other basis for the AAT making the orders sought by the applicants (or some amended form of orders), they will have the opportunity to ask the AAT to do so unimpeded by any incorrect ruling relating to the powers of the AAT.CONCLUSION It is for these reasons that I am not satisfied that the orders sought by the applicants are necessary to prevent prejudice to the administration of justice. At the conclusion of the hearing before me, I made orders dismissing the applicants motions for interim suppression orders, with costs, and made orders for the further conduct of the applications for leave to appeal. These are my reasons for dismissing the motions.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1904 OF 2007

JUDGE:	SACKVILLE J
DATE OF ORDER:	26 OCTOBER 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1904 OF 2007

JUDGE:	SACKVILLE J
DATE:	26 OCTOBER 2007
PLACE:	SYDNEY