Person “A” v The Commonwealth

[2019] NSWSC 727

Supreme Court

New South Wales

Medium Neutral Citation:	Person “A” v The Commonwealth [2019] NSWSC 727
Hearing dates:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	Non-publication and non-disclosure orders made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) and the grounds set out in ss 8(1)(a), (b), (c) and (e) of that Act.
Catchwords:	CIVIL PROCEDURE — pseudonym orders and suppression orders – where in the interests of Australia’s national security and defence to use pseudonyms in a statement of claim for a person’s name and other material facts – where in the interests of Australia’s national security and defence to prohibit or restrict the disclosure of certain information
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 7, 8 Crimes Act 1914 (Cth), s 85B Criminal Code 1995 (Cth) s 93.2 Federal Court of Australia Act 1976 (Cth), s 50
Cases Cited:	Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 Australian Broadcasting Commission v Parish (1980) 43 FLR 129; [1980] FCA 33 Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] EWHC 152 Burmah Oil Co Ltd v Governor and Co of the Bank of England [1979] 3 WLR 722 Central Intelligence Agency v Sims (1985) 471 U.S 159 Church of Scientology Inc v Woodward (1982) 154 CLR 25 Conway v Rimmer [1968] AC 910 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Hamzy v R [2013] NSWCCA 156 John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 Kamasaee v Commonwealth of Australia (No 4) (2016) 52 VR 368; [2016] VSC 492 Kamasaee v Commonwealth of Australia (No 6) (2016) 52; 368; [2016] VSC 605 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218 R v Fandakis [2002] NSWCCA 5 R v Khazaal [2006] NSWSC 1061 R v Lewes Justices; Ex parte Home Secretary [1973] AC 388 R v Lodhi (2006) 199 FLR 270; [2006] NSWSC 596 R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101 Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 Traljesic v Attorney-General of the Commonwealth of Australia (2006) 150 FCR 199; [2006] FCA 125 Traljesic v Attorney-General of the Commonwealth of Australia [2006] 150 FCR 199; [2006] FCA 125 Young v Quin (1984) 4 FCR 483
Texts Cited:	Practice Note SC Gen 2 ‘Supreme Court- Access to Court’
Category:	Procedural and other rulings
Parties:	Person “A” (a pseudonym) (Plaintiff) The Commonwealth (Defendant)
Representation:	Counsel: D Dragicevic (Solicitor) (Plaintiff) A Berger (Defendant)   Solicitors: Polczynski Robinson (Plaintiff) Australian Government Solicitor (Defendant)
File Number(s):	2019/00170858
Publication restriction:	Pseudonym, and non-publication and suppression orders made as to plaintiff’s name and other confidential material

Judgment

1. HER HONOUR: This matter came before me on 31 May 2019 from the duty list on an application (by notice of motion dated 30 May 2019) by the Attorney-General of the Commonwealth of Australia (the Attorney-General) seeking orders to allow a potential plaintiff (to whom I will refer as “Person “A””) to commence proceedings against the Commonwealth of Australia (the Commonwealth) by using pseudonyms for the person’s name and in relation to other material facts that the Attorney-General contends would, if disclosed, cause significant damage to Australia’s defence, security and international relations. The notice of motion was heard in closed Court. Person “A”’s legal representative was in attendance at the hearing of the notice of motion (although not privy to all of the material put before the Court on that application). Person “A” consented to the making of the orders sought by the Attorney-General.

2. Following the hearing of the Attorney-General’s notice of motion, I made orders of the kind sought by the Attorney-General. I indicated that I would publish my reasons for so doing (suitably anonymised) as soon as practicable thereafter (and after providing a copy in draft to the Attorney-General’s legal representative to ensure that there was no unintentional divulging of information sought to be kept confidential).

Background

3. At the hearing of the Attorney-General’s notice of motion, there was filed in Court a confidential affidavit sworn by a very senior government officer (the confidential affidavit) on which the Attorney-General relies for the making of this application. After reading that affidavit, the original copy of the confidential affidavit was handed back to the Attorney-General’s representative. A redacted copy has been retained in a confidential envelope on the Court file, which envelope is not to be opened without the leave of a judge.

4. Suffice it for present purposes to note that the confidential affidavit contains information that is highly sensitive on its face. For the reasons set out in the confidential affidavit, the Attorney-General considers the information contained in the confidential affidavit (including the identity of the deponent and the organisation the deponent represents, or anything which may enable inferences to be drawn about such matters) would reveal, or allow clear inferences to be drawn about, the very information that the Commonwealth seeks to protect and therefore prejudice the public interest. That concern is in my view amply borne out by the information contained in the confidential affidavit.

5. The Attorney-General notes that Person “A” and Person “A”’s legal representatives are aware of some, but not all, of the sensitive information contained in the confidential affidavit; and that, for them to disclose what they are aware of in that regard would potentially constitute a criminal offence.

Relevant principles

6. The Attorney-General points to the obligation of Courts to hear and determine claims for the protection of sensitive information in a way which does not defeat the very protection which the claim seeks to invoke (referring, by way of example, to the decision of the Court of Criminal Appeal in R v Fandakis [2002] NSWCCA 5 at [41]); and that this obligation extends to receiving affidavits and hearing submissions on a confidential basis. I accept that the use of the confidential affidavit in the way proposed by the Attorney-General is consistent with relevant legal principles. The Attorney-General also points to the caution required in order to avoid divulging matters, directly or indirectly which the Attorney-General seeks to protect or imposing requirements which could only be met by divulging the very matters to which the objection relates (referring to Young v Quin (1984) 4 FCR 483 at 484). It is for that reason that I have provided these reasons in draft to the parties’ respective legal representatives before publishing them.

7. As to the relevant principles in relation to the making of pseudonym orders, it is noted that the Court has an inherent jurisdiction to make appropriate orders whenever it is necessary to do so to secure the proper administration of justice, which encompasses the making of pseudonym orders.

8. As to the meaning of ‘necessary’ in the context of the Court’s inherent jurisdiction, the Attorney-General refers to the explanation given by Mahoney JA in John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 (John Fairfax) (at 161):

This leads to the consideration of what is meant by ”necessary to secure the proper administration of justice” in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that 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 kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them.

9. In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, at [51], Gaudron, Gummow and Callinan JJ stated that “[i]n this setting, the term ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subject to the touchstone of reasonableness’”.

10. As to the making of non-publication and suppression orders, the Attorney-General notes that the present notice of motion is brought on behalf of the Commonwealth and that the underlying justiciable controversy (see further below) is a potential claim for damages against the Commonwealth; hence, it involves the exercise of federal jurisdiction. The Attorney-General noted that s 93.2 of the Criminal Code Act 1995 (Cth) (Criminal Code), applies to a hearing of an application or other proceedings before a court exercising federal jurisdiction, and provides that:

(2)   At any time before or during the hearing, the judge or magistrate, or other person presiding or competent to preside over the proceedings, may, if satisfied that it is in the interests of Australia’s national security:

(a)   order that some or all of the members of the public be excluded during the whole or a part of the hearing; or

(b)   order that no report of the whole or a specified part of, or relating to, the application or proceedings be published; or

(c)   makes such order and give such directions as he or she thinks necessary for ensuring that no person, without the approval of the court, has access (whether before, during or after the hearing) to any affidavit, exhibit, information or other document used in the application or the proceedings that is on the file in the court or in the records of the court.

11. Pursuant to s 93.2(3) of the Criminal Code, a person commits an offence if the person contravenes an order made or direction given under this section, the penalty prescribed for such an offence being imprisonment for 5 years.

12. The Attorney-General accepts that principles of open justice are applicable to the exercise of this statutory power, i.e., that they are proper matters to be considered and weighed in the balance before making an order of the kind contemplated by s 93.2.

13. Reference is also made to the powers under the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Orders Act) to make a suppression order, prohibiting or restricting the disclosure of information (by publication or otherwise) (see s 3). It is noted that a suppression order can be made pursuant to s 7(b) of the Suppression Orders Act over, relevantly, information that comprises evidence, or information about evidence, given in proceedings before the court.

14. Section 8 of the Suppression Orders Act sets out the grounds pursuant to which a suppression order may be made in the exercise of the powers under s 3 of the Suppression Orders Act. Relevant to the present application are the grounds set out in ss 8(1)(a), (b), (c) and (e), namely:

1. the order is necessary to prevent prejudice to the proper administration of justice;

2. the order is necessary to prevent prejudice to the interests of the Commonwealth or a State of Territory in relation to national or international security;

3. the order is necessary to protect the safety of any person; and

4. it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

15. The Attorney-General notes that each of the grounds set out in s 8 of the Suppression Orders Act imports a test of necessity; and submits that what is necessary in any given case will depend on the surrounding context. He argues that although it is not sufficient that the orders are merely reasonable or sensible, the test of necessity should not be given a narrow construction.

16. In considering the meaning of “necessary” in s 8 of the Suppression Orders Act, the Court of Criminal Appeal has adopted the remarks of Mahoney JA in John Fairfax (set out above), namely that “necessary” directs attention to whether, if the order is not made, the consequences that would flow from this are unacceptable (see Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 (Fairfax v Ibrahim) at [8]; Hamzy v R [2013] NSWCCA 156 at [39]-[40]).

17. As to s 8(1)(a) of the Suppression Orders Act, the Court of Criminal Appeal in Fairfax v Ibrahim (at [48]) explained that the proper administration of justice is a broad concept, which directs attention to the “consequences not just for the present case but for future cases, including the supply of information from victims of unlawful conduct and the willingness of witnesses to give evidence”. There may, thus, be some overlap between ss 8(1)(b) to (e) and s 8(1)(a).

18. As to s 8(1)(b) of the Suppression Orders Act, it is noted that courts have repeatedly recognised that protecting disclosure of the identity of witnesses who undertake covert national security functions, is necessary to prevent prejudice to national security.

19. The Attorney-General accepts that, in deciding whether to make a suppression order under the Suppression Orders Act, the Court must take into account the public interest in open justice as a primary objective of the administration of justice and the impact that the non-publication/suppression orders (and, for that matter, the pseudonym orders) would have on the open justice principle (that principle being seen as a means of achieving the proper administration of justice).

20. In R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101 (Lodhi), where the Court of Criminal Appeal considered an appeal against protective orders made by a trial judge (under s 93.2 of the Criminal Code as well as the since repealed s 85B of the Crimes Act 1914 (Cth), which permitted the making of such orders if the Court was satisfied that it is in the interest of the security and defence of the Commonwealth) in criminal proceedings relating to a terrorism offence, the proper approach to be taken to the principle of open justice in that context was considered by McClellan CJ at CL (with whom Spigelman CJ and Sully J agreed) at [24]-[28]. His Honour recognised the importance of the principle of open justice but accepted that the principle may be modified by the courts and Parliament and that it must give way to “urgent considerations of public interest”, in that case national security.

21. The Attorney-General submits that in each particular case it is important to consider how significant the actual derogation from the principle of open justice will be, pointing to the observation by the Full Court of the Federal Court in Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 136; [1980] FCA 33, in the context of the former s 50 of the Federal Court of Australia Act 1976 (Cth):

Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle which must be placed in the scales. The derogation from the principle, which is involved in making any order under s 50, may be very great; or it may not be great; it may be very small. In placing that principle in the scales, the degree of derogation involved in the proposed order is an important matter to be considered.

The present application

22. The Attorney-General submits that the present application requires the Court to conduct a balancing exercise: in general terms, balancing the protection of Australia’s defence, security and international relations with the principles of open justice.

23. It is noted that in Lodhi, the trial judge had balanced the need for protective orders with the need for open justice and the right of the accused to a fair trial and that, on appeal, it was held that the trial judge had properly identified and balanced these factors.

24. The Attorney-General submits that in the present case there are relevant differences from the balancing exercise conducted in Lodhi which weigh much more heavily in favour of non-disclosure, those being not only that in the present case Person “A” does not oppose the making of the orders (whereas in Lodhi the accused strongly opposed those orders) but also that this is not a case where there is an accused person, facing very serious criminal charges, whose rights may be affected.

25. It is submitted that in the present case the derogation from the principle of open justice is confined to the greatest extent possible and that the orders sought are simply to enable a potential litigant to commence proceedings by filing a statement of claim without disclosing the litigant’s name and a precisely specified and limited list of other sensitive information. It is noted that such a statement of claim would ordinarily be restricted to the parties except with leave of the Court (see Practice Note SC Gen 2 ‘Supreme Court- Access to Court Files’ at [6]); and that even if a person sought and was granted access to the statement of claim in its proposed form, the orders sought would still enable the person seeking access to the statement of claim to understand many of the legal and factual issues in dispute. (I agree with these submissions.)

26. The Attorney-General further notes that if such orders are not made then issues will arise as to whether Person “A” could institute legal proceedings without breaching that person’s legal obligations and the criminal law. Thus, it is submitted that the proper administration of justice favours Person “A” being able to commence proceedings in this Court free from such concerns.

27. The Attorney-General submits that, when the evidence contained in the confidential affidavit is considered in light of the principles outlined above, the public interest in making the orders sought strongly outweighs the derogation from the principle of open justice involved in the making of those orders.

28. The Attorney-General submits that, when considering the public interest in favour of non-disclosure, special weight should be given to protection of defence, security and international relations, noting that documents concerning defence secrets and diplomatic relationships with foreign governments are, along with Cabinet documents, regarded as archetypes of public interest immunity claims and a category of public interest of special importance (see Sankey v Whitlam (1978) 142 CLR 1 at 57; [1978] HCA 43 (Sankey) and Alister v The Queen (1984) 154 CLR 404 at 435-436; [1984] HCA 85 (Alister); Conway v Rimmer [1968] AC 910 at 952, 973, 979, 987 and 993).

29. Reference is made to Burmah Oil Co Ltd v Governor and Co of the Bank of England [1979] 3 WLR 722 where Lord Edmund-Davies said (at 747) that the weight of a contents claim for public interest immunity is capable of being very readily measured and gave as obvious instances of this documents relating to defence of the realm or relations with other states. Reference is also made to the more recent observation of Lord Neuberger in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218 (at [131]) that:

National security, which includes the functioning of the intelligence services and the prevention of terrorism, is absolutely central to the fundamental roles of the Government, namely the defence of the realm and the maintenance of law and order, indeed, ultimately, to the survival, of the state. As a matter of principle, decisions in connection with national security are primarily entrusted to the executive, ultimately to Government ministers, and not to the judiciary.

30. It is noted that the strong public interest in protecting Australia’s foreign relationships was recently accepted by Macaulay J in Kamasaee v Commonwealth of Australia (No 4) (2016) 52 VR 368; [2016] VSC 492 and Kamasaee v Commonwealth of Australia (No 6) (2016) 52; 368; [2016] VSC 605. Reference is also made to statements made as to the importance of national security and protection of security intelligence in cases such as: Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 WLR 2653; [2009] EWHC 152; Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 59 (per Mason J) and at 76 (per Brennan J) (his Honour there citing R v Lewes Justices; Ex parte Home Secretary [1973] AC 388 at 407); and R v Khazaal [2006] NSWSC 1061 at [31]-[32] (per Whealy J).

31. The Attorney-General notes that the confidential affidavit explains the damage to Australia’s defence, security and international relations that could be expected to arise if the orders sought are not made and submits that significant weight should be attached to the considered views of the deponent of the confidential affidavit (referring in this regard to the observations in Sankey of Gibbs ACJ (at 43-44); in Alister (at 435) of Wilson and Dawson JJ; and in R v Lodhi (2006) 199 FLR 270; [2006] NSWSC 596 of Whealy J (at [32])).

32. Reference is also made to what was said by Rares J in Traljesic v Attorney-General of the Commonwealth of Australia (2006) 150 FCR 199; [2006] FCA 125 (at [22]-[23]); and to the observations of Burger CJ, delivering the opinion of the United States Supreme Court in Central Intelligence Agency v Sims (1985) 471 U.S 159 (at 178).

Determination

33. As noted earlier, I reviewed the confidential affidavit at the hearing of the present application. I accepted that the potential for prejudice to the public interest to arise from disclosure of the information the subject of the proposed pseudonyms is significant and that, recognising the importance of protecting such information, the public interest in non-disclosure of this information clearly outweighs the public interest in its disclosure.

34. I also considered the content of the proposed pleading that Person “A” wishes to file. It is clear from the proposed pleading that the claims Person “A” wishes to bring are relatively straightforward claims for damages for alleged breach of contract, unconscionable conduct and personal injury. There is no sensitivity that arises as to the nature of the claims, simply as to the background in which this dispute has arisen.

35. In circumstances where, without the making of the pseudonym and non-suppression/non-publication orders here sought, there is a very real risk that by commencing proceedings in which the information that would otherwise be anonymised will be disclosed, Person “A” (and arguably his legal representatives) would be committing a criminal offence. I considered that in those circumstances the derogation from the principle of open justice in making the orders sought was limited and that it was in the interests of justice that Person “A” be able to commence proceedings (the merits of which will fall to be considered in due course in light of the whole of the evidence then before the Court) without risking criminal sanction.

36. Accordingly, I made orders broadly in terms of the orders sought in the Attorney-General’s notice of motion on the basis that those orders were necessary to prevent prejudice to the national interest and that this public interest outweighed the public interest in open justice. The suppression and non-publication orders were made on the grounds set out in s 8(1)(a), (b), (c) and (e) of the relevant legislation and apply throughout the Commonwealth of Australia until further order. Steps have been taken in conjunction with the Registry to permit the institution of the proceedings in accordance with those orders and the matter will be case-managed by me going forward. I commend the parties on the co-operative and sensible way in which the application was approached.

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Decision last updated: 21 June 2019