Nicholls v Australian Federal Police (No 3)

[2009] FCA 152

FEDERAL COURT OF AUSTRALIA

Nicholls v Australian Federal Police (No 3) [2009] FCA 152

ARTHUR CHRISTOPHER NICHOLLS v AUSTRALIAN FEDERAL POLICE and DEPUTY COMMISSIONER OF TAXATION

SAD 138 of 2008

MANSFIELD J
23 FEBRUARY 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 138 of 2008

BETWEEN:

ARTHUR CHRISTOPHER NICHOLLS
Applicant

AND:

AUSTRALIAN FEDERAL POLICE
First Respondent

DEPUTY COMMISSIONER OF TAXATION
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	23 FEBRUARY 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS

On Applicant’s Notice of Motion of 23 February 2009:

1.Leave to Applicant to amend paragraph 2 of the Notice of Motion of 23 February 2009 by adding at its commencement “Leave to appeal from” in lieu of the word “That” and by adding at its end the words “insofar as such orders refused to make an order under s 50 of the Federal Court of Australia Act 1976 (Cth) in relation to the contents of the affidavits referred to in paragraph 9 of the reasons for ruling published on 19 February 2009” in lieu of the words “be set aside”.

2.Application for leave to appeal from the reasons for ruling of 19 February 2009 whereby the applicant’s request for certain documents to be ordered to be confidential was rejected refused.

3.Application for stay of operation of the said ruling and orders refused.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 138 of 2008

BETWEEN:

ARTHUR CHRISTOPHER NICHOLLS
Applicant

AND:

AUSTRALIAN FEDERAL POLICE
First Respondent

DEPUTY COMMISSIONER OF TAXATION
Second Respondent

JUDGE:	MANSFIELD J
DATE:	23 FEBRUARY 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This proceeding involved an attack upon the validity of decisions to apply for, issue, and execute a search warrant in respect of certain materials of the applicant and his wife and certain entities with which he was associated.  The search warrant was executed on 6 May 2008, but for various reasons the seized material has not yet been inspected by those apparently authorised to seize it.

2. The respondents objected to the competency of the proceeding, and complained about the applicant’s persistent failure to comply with orders of the Court directed at progressing the matter.  On the hearing of those issues, the applicant through counsel read a number of affidavits which had been filed.  On 15 January 2009, I dismissed the proceeding: Nicholls v Australian Federal Police [2009] FCA 15.

3. The applicant has appealed from that decision.  The appeal is likely to be heard in the May sittings of the Full Court.  In the meantime, the inspection of seized documents has been stayed pending the hearing and determination of the appeal.

4. On 19 February 2009, I published reasons for ruling that the documents on this file to which O 46 r 6(1) and (2) of the Federal Court Rules apply should be available for inspection by any member of the public: Nicholls v Australian Federal Police(No 2) [2009] FCA 123. That ruling is no longer contentious, and I do not need to address it further. By the same ruling, I decided under O 46 r 6(3) that the affidavits read in Court on behalf of the applicant referred to above, and which are listed in [9] of the reasons for ruling, should also be available for inspection by the public. Those reasons are to be read with the reasons for a similar ruling in a related matter: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122. In relation to that ruling, the applicant had opposed those affidavits being available for inspection, relying upon s 50 of the Federal Court of Australia Act 1976 (Cth). He unsuccessfully contended that the content of those affidavits should be restricted from publication in order to prevent prejudice to the administration of justice. He also sought to rely upon the protection from publication of his taxation affairs under “taxation laws” and by reason of the Australian Taxation Office Taxpayer’s Charter, January 2007. 

5. The applicant, by motion, now seeks leave to appeal from that ruling to the extent that it rejected his claim for an order that those affidavits and their contents should not be available for inspection because they or their contents are confidential.  I note that his claim to confidentiality has been moderated from a blanket one, including as to the existence of the proceeding and any document filed in it.  The applicant, by the motion, also seeks a stay of the operation of the ruling of 19 February 2009 in relation to those affidavits pending the hearing and determination of his appeal.

6. Whatever the outcome of the motion, the appeal will not be rendered nugatory. If it is successful, the seized documents will have to be returned to the applicant. The contents of the seized documents will not in the meantime be inspected by the respondents.  Their contents will not have been seen by those involved in the execution of the search warrants.  The applicant, with one possible exception discussed below, accepts that none of the affidavits in issue disclose any of the contents of the seized material.

7. In my view, leave to appeal should be refused.

8. With the motion, the applicant has filed a draft notice of appeal.  It is only generally assertive in its claims of error.  It does not identify any particular error alleged to have been made in deciding that the affidavits, having been read in open court, should not be available for inspection by the public.

9. The exercise of the power under s 50 is discretionary. The applicant has previously been invited to identify the particular parts of any of those affidavits which he says may contain information, the disclosure of which might be prejudicial to the administration of justice. Until oral submissions today, he has not done so. He has also previously been invited to file such affidavit evidence as he may rely upon to support his claim that any of the contents of any of those affidavits, if disclosed, pending the hearing and determination of his appeal, might be prejudicial to the administration of justice. He has not filed any such information.

10. In his oral submissions today he has referred to the Australian Taxation Office Taxpayer’s Charter which addresses, as between the ATO and taxpayers, issues as to the confidentiality of information provided to that office. But the affidavits and the information they contain is not of that character. It is information which the applicant, through his counsel, chose to make use of in the course of a hearing in open Court. Moreover, when that information was read, no application was made to have the content of any of those affidavits treated as confidential. There is no evidence to explain why such an order is now sought but was not then sought.

11. In his oral submissions, the applicant identified only two affidavits which might contain confidential information. The first is his own affidavit and then only to the extent that it exhibits a copy of the search warrant, the validity of which is under challenge, and in particular, the offences which are suspected to have been committed to support the issue of the warrant. They appear on pages 3 to 6 of 9 of the warrant. However, as I have indicated, there is no evidence upon which the Court could be satisfied that the disclosure of that information might cause prejudice to the administration of justice, and far less that its non-disclosure would be necessary in order to prevent prejudice to the administration of justice. In respect of that information, therefore, there is simply no foundation upon which the Court could consider that the applicant would have any prospect of successfully reversing the effect of the reasons for ruling made on 19 February 2009 in relation to them.

12. As I have noted, the disclosure of that information would not render the appeal nugatory. Far from it. There is no other evidence which might indicate that the disclosure of that information would operate in a particular way to the prejudice of the applicant or any other person.

13. The other affidavit to which the applicant referred is the affidavit of Adrian Heinjus, and in particular he referred to certain information in Exhibit AH3 to that affidavit. He identified the description of one of the items or articles seized when the search warrant was executed. It is a very general description, relating to the contents of a folder of an unspecified date. It is impossible to discern from that description the contents of any of that information within that folder other than in the most general way. Again, there is no evidence to explain how the disclosure of that information might cause detriment to the applicant or to any other person, and more accurately, in terms of s 50, to indicate that it is even arguable in any way that its non-disclosure is necessary in order to prevent prejudice to the administration of justice.

14. For those reasons, it seems to me the motion seeking leave to appeal should be refused because the applicant has no prospect of successfully overturning the exercise of the discretion which was exercised by the reasons for ruling referred to. No error has been identified in the reasons for the ruling. No arguable error has been sought to be made out. No evidence of the claimed confidentiality of any of the contents of any of the affidavits has been produced. Indeed, it is now only two sets of information in two of those affidavits which the applicant referred to, but did not then explain why that information might be confidential so as to attract the operation of s 50, nor identify any evidence to support the claim. No prejudice to the applicant or to any other person by that information – relied upon in open Court – was sought to be shown. It was not suggested that the appeal itself would be rendered nugatory if public access to that information remained. Clearly that is not the case. No other factors relevant to the interests of justice was sought to be established.

15. Leave to appeal is refused. It follows that the application for a stay pending the appeal should also be refused.  If the application for a stay is independent of the application for leave to appeal, no foundation for a stay of the ruling of 19 February 2009 has been made out.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        25 February 2009

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	G Camilos
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	23 February 2009
Date of Judgment:	23 February 2009