P v Australian Crime Commission

[2008] FCA 1377

FEDERAL COURT OF AUSTRALIA

P v Australian Crime Commission [2008] FCA 1377

P v AUSTRALIAN CRIME COMMISSION

NSD 373 OF 2006

EMMETT J

5 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 373 OF 2006

BETWEEN:	P Applicant
AND:	AUSTRALIAN CRIME COMMISSION First Respondent
THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	5 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The legal representatives of the Applicant disclose to Mr Tamir Maltz of counsel and his instructing solicitor, Ms Gina McWilliams, the names of the Applicant and former Applicant (the Names).

2.Ms McWilliams take the steps described in her affidavit affirmed 5 August 2008.

3.Ms McWilliams serve on the Applicant and the Respondents’ solicitors by 1 pm on 6 August 2008 an affidavit that sets out:

(a)the steps Ms McWilliams has taken in accordance with her affidavit affirmed 5 August 2008;

(b)that she has not disclosed the Names to any third parties (other than as required to perform the steps in her affidavit affirmed 5 August 2008); and

(c)the results of any searches on which the Interveners seek to rely.

4.Pursuant to s 50 of the Federal Court Act 1976, until further order the affidavit referred to in Order 3 not be published to any person other than the legal representatives of any of the parties, Mr Maltz and the Court.

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	NSD 373 OF 2006

BETWEEN:	P Applicant
AND:	AUSTRALIAN CRIME COMMISSION First Respondent
THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION Second Respondent

JUDGE:	EMMETT J
DATE:	5 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In the course of argument on the hearing of several applications before the Court, counsel for the Interveners, Nationwide News Pty Limited and John Fairfax Publications Pty Limited, raised the question of whether material that is presently the subject of orders under s 50 of the Federal Court of Australia Act 1976 (Cth) (the Act) may in fact be in the public domain.  However, having regard to the manner in which the proceeding is being conducted, the identities of the present applicant, identified only as “P”, and the former applicant, identified only as “A3”, have remained confidential to the parties and the Court. 

2. Counsel for the Interveners therefore requested the Court to take a somewhat unusual course. He accepts that the Interveners and their legal advisers do not have any present knowledge, whatever suspicion they might have, of the identity of the applicant. Nor do they have any knowledge of the detail of the material that is presently the subject of orders made under s 50. Counsel therefore requested that the identity of the applicant be disclosed to him and his instructing solicitor on the basis that that information would not be disclosed to any person.

3. Ms Gina McWilliams, who is a solicitor and acts for the Interveners, has indicated that, if the name is disclosed to her, she proposes to conduct internet searches in relation to the applicant.  The purpose of the searches will be to endeavour to ascertain the nature of any information publicly available relating to the applicant or to the special investigation in which the first respondent, the Australian Crime Commission, is presently engaged.  Ms McWilliams has indicated that the searches would be conducted from a laptop computer provided to her by one of the Interveners for whom she acts.  That computer is password protected and is kept in a locked office at the business premises of that Intervener. 

4. Ms McWilliams has indicated in an affidavit sworn today the method she proposes to adopt to conduct searches.  She will enter the applicant’s name into document databases in order to locate publicly available documents that contain the applicant’s name.  The retrieved documents would be reviewed on the laptop to determine whether they contain any information that relates to special investigations conducted by the Commission.  Ms McWilliams has identified six web sites that she proposes to search. They are, for the most part, media related web sites but also include and LexusNexus, which are essentially legal databases. 

5. From one point of view, the results of the search could assist the applicant’s case, in the sense that they may disclose that the material in question is in the public domain only to a limited extent.  Accordingly, it seems to me that the question that I am asked to decide may well be enlightened by the availability of that additional material. 

6. In the circumstances, I consider that it is appropriate to accede to the request made on behalf of the Interveners for the name of the applicant to be disclosed to counsel for the Interveners and to Ms McWilliams, on the basis that the only use that will be made of that information will be to conduct the searches disclosed, and in the manner disclosed, by Ms McWilliams in her affidavit of 5 August 2008.  I will direct that Ms McWilliams file an affidavit by some time tomorrow indicating the results of her searches and confirming that no use has been made of the information that is to be disclosed to her, beyond what is proposed in her affidavit. 

I certify that the preceding six (6) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        10 September 2008

Counsel for the Applicant:	Mr F Kunc SC
Solicitor for the Applicant:	Robinson Legal
Counsel for the Respondent:	Mr T Game SC, Mr A Payne and Mr D Thomas
Solicitor for the Respondent:	Australian Government Solicitor
Counsel for the Interveners, Nationwide News Pty Limited and John Fairfax Publications Pty Limited:	Mr T Maltz
Solicitor for the Interveners, Nationwide News Pty Ltd and John Fairfax Publications Pty Ltd:	Ms G McWilliams, employed solicitor of Nationwide News Pty Ltd

Date of Hearing:	4 and 5 August 2008
Date of Judgment:	5 August 2008