P v Australian Crime Commission - [2008] FCA 1336

FEDERAL COURT OF AUSTRALIA
P v Australian Crime Commission [2008] FCA 1336
PRACTICE AND PROCEDURE – confidentiality orders – s 50 of the Federal Court of Australia Act 1976 (Cth) - whether confidentiality orders should continue in respect of evidence which was adduced and tendered in the expectation that confidentiality orders would continue to apply in respect of the evidence – principle of open justice – whether embarrassment caused by the disclosure of confidential personal, financial and taxation information warrants the making of confidentiality orders – onus of proof where confidentiality orders have been made and the Court is asked to rescind those orders
Australian Crime Commission Act 2002 (Cth), ss 7C, 27, 28, 29, 29A, 29B
Federal Court of Australia Act 1976 (Cth), ss 17, 50
Federal Court Rules (Cth), O 4 r 4, O 46 r 6
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
C v Australian Crime Commission [2005] FCA 1736
Herald & Weekly Times v Williams (2003) 130 FCR 435
P v AUSTRALIAN CRIME COMMISSION AND ANOR
NSD 373 OF 2006
EMMETT J
29 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD373 OF 2006

BETWEEN:

P
Applicant

AND:

AUSTRALIAN CRIME COMMISSION
First Respondent

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION
Second Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

29 AUGUST 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.All current orders made under s 50 of the Federal Court of Australia Act 1976 (Cth) be vacated.
2.Order 1 be stayed up until 12 September 2008.

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

NSD373 OF 2006

BETWEEN:

P
Applicant

AND:

AUSTRALIAN CRIME COMMISSION
First Respondent

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION
Second Respondent

JUDGE:

EMMETT J

DATE:

29 AUGUST 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me three applications relating to access to material on the Court’s file, including affidavits. Some of the material is in evidence and some of it is not. Argument in relation to the three applications, including written submissions, was completed on 20 August 2008, when I indicated the conclusions that I had reached in relation to most, but not all, of the material in dispute. On 21 August 2008, I made orders giving effect to those conclusions but reserved my decision in relation to some of the material in dispute. I have now reached a final conclusion in relation to all of the material in dispute. My conclusions and the reasons for them follow.
The applications are concerned with s 50 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and Order 46 Rule 6 of the Federal Court Rules. Section 50 relevantly provides that the Court may make such order forbidding or restricting the publication of particular evidence, or the name of a party, as appears to the Court…

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: [2008] FCA 1336
Decision Date: 29 August 2008

CaseChat Overview and Summary

The case of P v Australian Crime Commission involved the applicant seeking to maintain certain orders that restricted the disclosure of his identity and that of a consultant, as well as the access to certain documents and information by other parties. The dispute reached the court, which was required to decide on several legal issues, including whether the interveners should be granted access to the material on the Court's file that had not been admitted into evidence, and whether the secrecy regime concerning the identities of the applicant and the consultant should continue. The Court found that there was no longer any justification for the continuation of orders under section 50, and therefore, the orders should be revoked.

The Court considered the principle of open justice, which requires that once material has been admitted into evidence, it should be open to and available for the public. However, the Court also noted that the principle has nothing to do with material that, although on the Court's file, has not been admitted into evidence. The Court concluded that there was no case for granting leave to the interveners to have access to such material. As for the secrecy regime, the Court found that there was no longer any justification for its continuation, and the orders should be revoked. The Court also ordered that if any copies of the documents subject to legal professional privilege remained on the Court file, they should be returned to the applicant, and access to those documents should be denied to anybody other than the applicant and his legal advisers.

The Court's decision was to vacate all current orders made under section 50 of the Federal Court of Australia Act 1976 (Cth), and the order was stayed up until 12 September 2008. The Court also proposed to stand the proceeding over for directions at a time that was convenient to the parties, for the question of the final relief to be granted to the applicant to be ventilated. The Court also proposed to give directions for the parties to make submissions, if they wished, as to the costs of the proceeding, including the costs of the three applications presently before the Court.

Orders

Orders of the court

1. All current orders made under s 50 of the Federal Court of Australia Act 1976 (Cth) be vacated.

2. Order 1 be stayed up until 12 September 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Copies of the privileged documents that remain on the Court file should be returned to the applicant. No basis has been established upon which any person should be given access to those documents without the consent of the applicant. MATERIAL NOT IN EVIDENCE The Interveners seek the leave of the Court to inspect not only affidavits and exhibits that have been admitted into evidence but also affidavits and parts of affidavits and other documents that are on the Court’s file but are not in evidence. There is no order under s 50 forbidding access to such material. Indeed, s 50 does not contemplate an order in relation to any material other than evidence or the name of a party. The question is whether such leave should be granted pursuant to Order 46 r 6(3). In general, the Court is obliged to exercise its jurisdiction in open court. Thus, once material has been admitted into evidence, either as an exhibit or as affidavit or viva voce testimony, the principle of open justice requires that the material be open to and available for the public. That is clear from s 17(1) of the Federal Court of Australia Act, which gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest that attaches to that principle. However, that principle has nothing to do with material that, albeit is on the Court’s file and might be available for one of the parties to deploy at a trial or at a hearing, has not in fact been admitted into evidence. No principle of open justice requires that a person other than the parties should, in the ordinary course, have access to material that is not in evidence. The fact that the parties have filed affidavits in anticipation of a hearing does not of itself compel them to rely on the affidavits. It may be that an opposing party could tender an affidavit against the party who filed it. Such an affidavit would then be in the same category as any other evidence. Until that time, in the ordinary course, however, there is no reason why a person other than the parties should have access to the material, simply because it is on the Court’s file. In the ordinary course, exhibits to affidavits should not be filed and should therefore not be on the Court file. It is only when exhibits are tendered that they become part of the Court record. From the point of view of open justice, there is no reason to grant access to material that has not been tendered by either party or, if tendered, has not been accepted into evidence. There is no case for granting leave to the Interveners to have access to such material.IDENTITY OF THE APPLICANT AND THE CONSULTANT The applicant contends that the regime concerning non disclosure of his identity and the identity of the Consultant should continue. The contention is based upon his concern that to disclose the identities could involve contravention of provisions of the Commission Act. He says that the regime of secrecy that was put in place at the commencement of the proceeding was necessary in order to protect him and the Consultant from the possible consequences of disclosure in breach of s 29B of the Commission Act that might otherwise have occurred by reason of his commencement of the proceeding, filing affidavits, tendering evidence and making submissions. He contends that it is arguable that by coming to the Court and doing those things he may have committed an offence under s 29B by disclosing the identity of the applicant or the Consultant, since that would have involved disclosing the existence of the relevant summons or notice, or information about it. It would also have involved disclosing the existence of, or information about, an official matter connected with the summons or notice, namely, the fact of the Commission’s special investigation. He contends, therefore, that the administration of justice requires the continuation of the order under s 50. Secrecy Regime of the Commission Act

Decision

Reasons for decision

EMMETT J

I consider that there is no longer any justification for continuation of orders under s 50. The orders now in force should be revoked. CONCLUSION If copies of any of the documents that I have found are subject to legal professional privilege remain on the Court file, the copies should be returned to the applicant. Access to those documents should be denied to anybody other than the applicant and his legal advisers. The application by the Interveners for access to material in the Court’s file should be granted to the extent of permitting them, and any member of the public, to have access to any parts of the affidavits and other documents that have been admitted into evidence. The application for access should be denied in so far as it relates to any affidavits or part of affidavits and any other documents that have not been admitted into evidence. The sealed envelopes that have been lodged with the Court and are contained in the Court file should be opened and their contents should be made available for inspection by the public. In so far as any order under s 50 prohibits the publication of the identity of the applicant or the Consultant, the orders should be revoked. All other orders made under s 50 restricting access to or publication of documents that have been received into evidence should be revoked. There remain questions as between the applicant and the Commission concerning the final relief to be granted to the applicant. I propose to stand the proceeding over for directions at a time that is convenient to the parties, for that question to be ventilated. I also propose to give directions for the parties to make submissions, if they wish, as to the costs of the proceeding, including the costs of the three applications presently before me.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD373 OF 2006

JUDGE:	EMMETT J
DATE OF ORDER:	29 AUGUST 2008
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	29 AUGUST 2008
PLACE:	SYDNEY