Q v Seymour, D. and Ors A v Seymour, D. and Ors

[1993] FCA 812

g12 J 9 3

JUDGMENT No. .... .,. ,,,,,,,,. , ....... ,.

CATCHWORDS

PRACTICE AND PROCEDURE - hearing rn camera - non-publication orders - Federal Court of Australia Act 1976 s 17(4), s 50 - prrnciple that courts should sit in public - whether in camera hearing required in "the interests of justice" - whether potential and damage to reputation necessitates in camera hearing - proposed interview by investigative authority and alleged threat of laying charges - allegations of unproper conduct by investigative authorities.

WORDS AND PHRASES - "the interests of justice"

Federal Court of Australia Act 1976 - s 17(1), s 17(4), s 50

National Crime Authoritv Act

J v L & A Services Ptv Ltd and Ors	Supreme Court of
Queensland, Court of Appeal, 15 February 1993
-	R v Tait and Bartlev (1979) 24 ALR 473

Australian Broadcastina Commission v Parish and Ors (1980) 29

ALR 228

v Scott [l9131 AC 417

-	R v Chief Reaistrar of Friendlv Societies: ex Darte Newcross
Buildina Societv [l9841 1 QB 227 John Fairfax Group Ptv Ltd and Anor v Local Court of New South
Wales (1991) 26 NSWLR 131
2 v SERGEANT DOUGLAS SEYMOUR. THOMAS SHERMAN. NATIONAL CRIME AUTHORITY. DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA
No. VG 410 of 1993
IN THE FEDERAL COURT OF AUSTRALIA ) )
VICTORIA DISTRICT REGISTRY ) No. VG 410 of 1993

1

GENERAL DIVISION )

BETWEEN: "Q"

Applicant

AND :  SERGEANT DOUGLAS SEYMOUR

First Respondent

THOMAS SHE=

Second Respondent

NATIONAL CRIME AUTHORITY

Third Respondent

DIRECTOR 0 F PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA

Fourth Respondent

JUDGE MAKING ORDERS:	FOSTER J
DATE :	9 OCTOBER 1993
PLACE :	MELBOURNE

MINUTE OF ORDERS

Upon the applicant undertaking by his counsel that he will -

(a). at or before 5 pm on 10 October 1993 serve upon the first, second and third respondents at 6 Relowe Crescent, North Balwyn and upon the fourth respondent at 73 Sutherland Road, Armadale a copy of each of a draft Application for Leave to Appeal, a draft affidavit in support thereof and a draft Notice of Appeal;

(b) at or before 10.15 am on 11 October 1993 file in the Court and serve upon the respondents at their addresses for service an Application for Leave to Appeal and thereafter prosecute such application with all reasonable expedition;

THE COURT ORDERS THAT:

1. The direction by the Court pursuant to s 17(4) of the Federal Court of Australia Act 1976 given on 27 September

   1993 to the effect that the hearing of this matter

   proceed in camera be set aslde.

2. The following orders of the Court made on 27 September

   1993 be set aside:

(a)	The Registrar amend the Register of the Court to delete from the Register any reference to the applicant or his initials.
(b)	The applicant be referred to in all future documentation in this proceeding as "Q" and that the heading of the proceeding show the applicant as "Q".

1. Order number 8 made on 29 September 1993 as varied by the order made on 1 October 1993 be set aside.

2. The operation of orders 1, 2, and 3 hereof be stayed until 4.30 pm on 11 October 1993.

5    The operation of orders nwnbered 3 and 4 made on 29 September 1993 as subsequently extended be further extended until the further order of the Court.

6    The parties have liberty to apply.

7 Costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	No. VG 411 of 1993
GENERAL DIVISION	)

BETWEEN :  "A"

Applicant

AEID:  SERGEANT DOUGLAS SEYMOUR

First Respondent

THOMAS SHERMAN

Second Respondent

NATIONAL CRIME AUTHORITY

Third Respondent DIRECTOR 0 F PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA

Fourth Respondent

JUDGE MAKING ORDERS:	FOSTER J
DATE :	9 OCTOBER 1993
PLACE :	MELBOURNE

MINUTE OF ORDERS

Upon the applicant undertaking by his counsel that he will -

(a) at or before 5 pm on 10 October 1993 serve upon the first, second and third respondents at 6 Relowe Crescent,

' North Balwyn and upon the fourth respondent at 73 Sutherland Road, Armadale a copy of each of a draft Application for Leave to Appeal, a draft affidavit in support thereof and a draft Notice of Appeal;

(b) at or before 10.15 am on 11 October 1993 file in the Court and serve upon the respondents at their addresses for service an Application for Leave to Appeal and thereafter prosecute such application with all reasonable expedition;

THE COURT ORDERS THAT:

1 The direction by the Court pursuant to s 17(4) of the Federal Court of Australia Act 1976 glven on 27 September 1993 to the effect that the hearlng of this matter proceed in camera be set aslde.

1. The following orders of the Court made on 27 September 1993 be set aside:

(a)	The Registrar amend the Register of the Court to delete from the Register any reference to the applicant or his initials.
(b)	The applicant be referred to in all future documentation in this proceeding as "A" and that the heading of the proceeding show the applicant as "A".

3    Save for the effect of order 6 hereof, order number 8 made on 29 September 1993 as varied by the order made on 1 October 1993 be set aside.

4    The operation of orders 1, 2, and 3 hereof be stayed until 4.30 pm on 11 October 1993.

1. The operation of orders numbered 3 and 4 made on 29 September 1993 as subsequently extended be further extended until the further order of the Court.

6    The publication of the names set out on the fourth page of Exhibit A44 to the affidavit of the applicant sworn on 30 September 1993 be forbidden.

1. The parties have liberty to apply.

8 Costs be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) No. VG 410 of 1993
)
GENERAL DIVISION	1

BETWEEN :  "Q"

Applicant

AND:  SERGEANT DOUGLAS SEYMOUR

First Respondent

THOMAS SHERMAN

Second Respondent

NATIONAL CRIME AUTHORITY

Third Respondent

DIRECTOR 0 F PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA

Fourth Respondent

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 No. VG 411 of 1993
1
GENERAL DIVISION	1

BETWEEN: "A"

Applicant

AND :  SERGEANT DOUGLAS SEYMOUR

First Respondent

THOMAS SHERMAN

Second Respondent

NATIONAL CRIME AUTHORITY

Third Respondent DIRECTOR 0 F PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA

Fourth Respondent

CORAM:	FOSTER J
DATE :	9 OCTOBER 1993
PLACE :	MELBOURNE

REASONS FOR RULING

(Extempore)

HIS HONOUR: I have been hearing these proceedings since Tuesday. I commenced the hearing on the basis of orders previously made by Mr Justice Olney which, stated compendiously, were that the hearing proceed in camera and that all relevant documentation, including orders of the court, were not to be the subject of publication to anyone. The effect of the orders has been to cast a blanket of secrecy over the proceedings in their entirety. The orders were made in a series of interlocutory proceedings, the first being ex parte, the details of which are not of present moment.

From the commencement of the hearing before myself continuance of these orders, submitting that the proceedings	it was made apparent that the respondents opposed the
should be heard in open court and that the non-publication order should be revoked. The applicants resisted any revocation or alteration of the orders. Indeed, it was put by
M r Sher, leading counsel for the applicant "A", and supported
by Mr Galbally, counsel for the applicant "Q", that the result of my taking such a course would be quite devastating to their clients' interests. In effect, it would render the proceedings nugatory and could cause very significant harm.
The thrust of their contentions could be sald to be encapsulated in the closing submissions of Mr Sher on this aspect of the case. He submitted that if the court were not closed and his client was successful in the substantive application, "it would have rendered the win a total Pyrrhic victory". If he succeeded but the court was open during the proceedings, the result would be that if "in the meantime the very thing he is trying to preserve has. been destroyed, namely, his reputation, then the whole purpose of the proceedings has been rendered abortive". It was also submitted that if the applicants were to win this interlocutory application that it would be "just a travesty of justice" for me "to have opened this case to the public gaze in the interim".
Advocacy of this intensity imposes a very heavy burden upon the judicial decision maker. In the circumstances, I regarded it as proper that before deciding
the preliminary question, I should hear sufficient of the applicants' case to enable me to have a satisfactory grasp of
the issues involved, particularly the nature of the factual allegations made by the applicants against the respondents as a basis of the relief sought. This has necessarily taken a great deal of time. Indeed, I should record that M r Sher submitted that I should hear the whole application to finality before deciding this procedural question. This course was opposed by the respondents and I declined to follow it.

In the course of argument, I have been referred to a large number of authorities bearing upon the question of the closure of courts to the public and the suppression from publication of aspects of court proceedings. I do not intend in these reasons to produce a treatise on this area of the law. I will have to refer to some authorities which I regard as particularly relevant. I have read and considered the others that have been referred to me. Indeed, an extensive review of this material has recently been provided by the Court of Appeal of the Supreme Court of Queensland in J v

A Services Ptv Ltd and Ors, a judgment handed down on 15
February 1993, a copy of which was provided to me by counsel.

A number of the decisions deal purely with the position at common law. Such a decision is B v Tait and Bartlev (1979) 24 ALR 473, a judgment of a Full Court of this Court on appeal from the Supreme Court of the Northern Territory. I merely note that it is a very strong decision in

rare and exceptional cases narrowly defined.

favour of the rule that courts must sit in public except in

In the present case one does not look, at least in the first instance, to the common law. The orders made in these proceedings and so far continued from day to day by orders made by myself have their origin in s 17(4) and S 50 of the Federal Court of Australia Act 1976. These sections were considered by a Full Court of this Court in the leading case of Australian Broadcastina Commission v Parish and Ors (1980) 29 ALR 228.

The Chief Justice Sir Nigel Bowen s a ~ d at pp 232-

233:

"This court is a court established by statute. It is clear from s 17(1) of the Federal Court of Australia Act 1976 that, in general, it is obliged to exercise its jurisdiction in open court. This provision gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest which attaches to that principle.

However, s 17(4) and s 50 provide for encroachment upon that principle. Under s 17(4) the public or some of the public may be excluded where the court is satisfied that their presence would be 'contrary to the interests of justice'. We are all familiar with cases where this would be so. Thus, it is common to exclude persons who are to give evidence, lest they be led to trim their evidence. Again, where demonstrators or rioters would disrupt the proceedings, it may be in the interests of justice to exclude them. The categories of cases where exclusion will be proper are not closed. It will lie in the discretion of the judge, bearing in mind the injunction contained in s 17(1) and taking into considerations the interests of justice referred to

restricting the publication of particular evidence Under s 50 an order may be made forbidding or in s 17(4). or the name of a party or witness where it appears to the court 'to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth'. Again, we are familiar with cases where an order forbidding or restricting publication is appropriate. Thus, where the proceedings concern a secret process and publication of the process would destroy a secret process and publication of the process would destroy the subject-matter of the proceedings and render them nugatory, an order is necessary to prevent prejudice to the administration of justice."

His Honour then went on to deal wlth proceedings relating to the publication of confidential material.

His Honour continued at pp 233-234:

"The importance of the principle of open justice is not in doubt (see Scott v Scott [l9131 AC 417; Russell v Russell (1976) 9 ALR 103; 134 CLR 495, per Gibbs J at 520) nor is the need to depart from it in the interests of justice on occasion (see Attorney- General v Leveller Magazine Ltd [l9791 1 All ER 745, [l9791 2 WLR 247, per Lord Diplock at 252; cf Halcon International Inc v Shell Transportation and Trading

CO [l9791 RPC 97. Cases which deal with the course

a court should follow where there are no sections corresponding with ss 17 and 50, although illuminating and helpful, are not decisive for a court constituted by an Act containing those sections. Such a court has a slightly different task of interpreting and applying the statute which governs it.

Open justice is the underlying assumption of s 50, not the criterion it prescribes. The section refers to preventing 'prejudice to the administration of justice'. This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is, the public interest that the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the

parties. It is not possible to define in advance the degree

of prejudice to the administration of justice, which

will justify the making of an order under S 50. The collocation of the alternative phrase 'security of the Commonwealth' suggests Parliament was not dealing with trivialities. The case where failure to make an order under S 50 would lead to the destruction of the very subject-matter of the suit would seem to be the kind of case which might ordinarily attract the exercise of the discretion. The refusal to make an order in such a case might well defeat the purpose of achieving justice between the parties and disappoint the public interest in having the court deal responsibly with the confidential affairs of citizens."

Franki J in his judgment considered a number of
earlier authorities. At page 242 he refers to the well-known

House of Lords decision in v in terms to which I

will not make reference at this point.	At page 2 4 6 his Honour
said as follows:

"In my opinion the legislature, by providing as it has specific powers under ss 17(4) and 50, has intended that the court, in an appropriate case, should exercise these powers. Whilst every regard must be had to the desirability of conducting proceedings in open court I consider that, where, as in this case, it appears necessary in order to ensure that a party will not be seriously prejudiced to make orders under ss 17(4) and 50, those orders should be made. Of course, if the trial judge decides when the proceedings have gone further, that protection is no longer warranted he can remove the protection effected under s 50 and the material which was not available to the public would then become open to the public."

It must, of course, be borne in mind that s 17(4) enables closure of the court when the court is satisfied that the presence of the public "would be contrary to the interests of justice". This is a wide phrase and I am confident that

potential serious prejudice of a party would inevitably	Franki J did not mean in the passage I have just cited that
require that a court be closed on his application. Obviously, the interests of all parties must be considered as well as the overriding interests of the community in open justice, an interest preserved by s 17(1).
Indeed, the phrase "the interests of justice" would appear to bring into consideration many, if not all, of the considerations that have occupied the attention of the courts when seeking to apply common law principles in this area. A
recent case which rs relred upon by the applicants 1s B V Chief Reaistrar of Friendly Societies: ex Darte Newcross Buildina Society [l9841 1 QB 227. The case appears to be a high water mark for court closure because not only was it ordered in the first instance hearing but also on appeal.
The case involved a building society which submitted successfully that if the public was aware that the proceedings were on foot, even if they concluded in favour of the society, the resultant publicity would have such an adverse effect upon its business that it would be forced to close its doors. In the court of appeal Sir John Donaldson MFi said at 235:

"In this highly unusual situation, the first question which we had to ask ourselves was whether and to what extent it would be right that the proceedings in this court should also be in camera. It is fundamental to British justice as we know it, and as our forebears have known it, that the Queen's courts are open to all. And when I say they are open to all, I do not limit this to those who have

community. No one is more entitled than a member of	business in the courts. The judges administer justice in the Queen's name on behalf of the whole	the general public to see for himself that justice is done. Nevertheless it is well settled that occasions can arise when it becomes the duty of the court to close its doors.
This problem was considered in depth by the House of Lords in Scott v Scott [l9131 A.C. 417. The guidance which I get from their Lordships' speeches can be summarised as follows. The general rule that the court shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice in accordance with the law. It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera. These circumstances are incapable of
definition. Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done. It is not sufficient that a public hearing wlll create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of
justice. "

The Master of the Rolls went on to indicate that the case before him provided a good example of such exceptional circumstances, in that if the society had to publicise the Chief Registrar's actions in the process of getting the orders quashed, the loss of public confidence in the society would be such that whether or not the orders were quashed, the society would be forced to close. In other words, the public hearing would effectively have deprived the society of the relief to which in law and justice it was or might be entitled. Accordingly, an order was made that the proceedings be heard in camera.

Reliance was also placed by the applicants on the judgment of Mahoney JA in John Fairfax G~OUD Ptv Ltd and Anor

v Local Court of New South Wales (1991) 26 NSWLR 131, a

pseudonym case. The relevant passages are at pages 140-143. I have considered them in reaching my conclusions, but I will not set them out now.

In light of these statements of principle, I turn to the present case. The applicants have been advised by the first respondent, a police officer, that he intends to hold an

interview with each applicant and to charge each applicant

with certain offences. These appear to be offences under the criminal law of the State of Victoria. These proceedings seek to challenge the decision to hold the interview with each applicant and to lay the charges. They also seek to restrain the laying of the charges.

The challenge is mounted in a number of ways which involve allegations against the second, third and fourth respondents. The exposition of those allegations in the hearing to date has involved considerable time and much reference to documentary material. As this application seeks the continuance of interlocutory orders restraining the laying of the charges and the hearing in that regard is continuing, it is not desirable that I enter upon a consideration of that material in these reasons. For present purposes, the applicants' allegations may be broadly summarised as follows:

1.  The first respondent is not authorised to lay the charges; he is not acting independently as a police officer and exercising an independent discretion; he is acting at the behest of the third respondent (the "NCA"), which has no power at law to lay such charges; he is proposing to conduct an interview in a way which would render any evidence obtained in that interview inadmissible.

2.   The charges arise from an investigation that has been unlawfully carried out by the NCA. The charges relate to certain transactions referred to ln argument as the foreign exchange transactions involving the Equiticorp organisation and one Hawkins in New Zealand. This topic of investigation has never been validly referred to the

NCA under the relevant legislation and there was no

authority to investigate it or question the applicants or other witnesses in respect of it. All evidence so unlawfully obtained would be inadmissible.

3.    Similarly, the NCA has never had authority to investigate breaches of the Victorian criminal law, which are apparently to be relied upon in the charging of the applicants.

1. The NCA and the fourth respondent have not been acting bona fide in their approach to the question of charges

authorised. There is a hidden agenda in that they wish and some of their activities have not been lawfully

to avoid criticism for dilatoriness in their
investigations.

1. The proposed laying of the charge against the applicant "A" is politically motivated and is part of a conspiracy to damage him personally. The NCA is involved in this unlawful activity, as since early 1990 it has apparently been committing serious breaches of the National Crime Authority Act by leaking information to the media which

   is detrimental. to the applicant "A" and his business ~nterests. The provision of this information is contrary to the secrecy provisions of the m. There have been continued complaints made by that applicant's solicitors about the alleged activity but it has apparently continued.

The NCA strenuously denies these allegations of leaking information and of being involved in any conspiratorial activities against the applicant "A".

I do not intend to produce an exhaustive list of the allegations and the factual issues which arise from them. What I have said is sufficient to indicate the serious nature of the matters being raised in this litigation. The respondents wish these matters to be heard in public and they say that they and the public at large have a legitimate

require such a hearing.	interest in an open hearing and that the interests of justice
In my view, this proposition is unanswerable unless other matters exist which render an open hearing contrary to the interests of justice. As to this, the applicant "A" with the support of the applicant "Q", says that the hearing should proceed in camera because the public airing of these matters will have a devastating effect on his reputation.
In particular, any reference to the prospect of his being charged would have devastating consequences which could not be remedled adequately by his subsequent establishment of innocence through acquittal. He says that the charges are unlawfully based, not bona fide and a part of a plot to destroy his reputation. These proceedings are being brought to prevent them being laid at all. If he is successful he should have the benefit of there being total ignorance in the world at large of the fact of the proposed charges and of these present proceedings.
He also points to the quite enormous publicity which attended the revelation in an ABC "7.30 Report" in February 1990 of the fact that he was allegedly under investigation by the NCA in relation to the takeover of Elders IXL Limited by Harlin Holdings Limited. He fears that there will be similar publicity and that it will be adverse if these proceedings are heard otherwise than in camera. He also asserts, as appears
to be the fact, that despite the court's orders publicity of an adverse kind as to these present proceedings has occurred
in a newspaper in New Zealand.
I should add that both applicants strenuously assert innocence of any wrongdoing and innocence of any offence which may be the subject of the threatened charges.
The applicant "A" also relies upon the immediate effect that the laying of the charge, or even information as

to its possible laying, could have upon certain sensitive commercial negotiations in which he is engaged. It is not disputed that these negotiations could be of some national importance. This matter appears originally to have been put as a major consideration. It is now relied upon as an instance of the serious consequences of damage to the applicant's reputation and as a matter which may ultimately go to the balance of convenience.

I have weighed all these matters very carefully and have taken into account the principles to which I have been referred and which I have set out already in these reasons. I note that Mr Sher submitted that this is a very important case involving as it does an analysis of the powers of the NCA and its effect upon the lives of responsible persons of good repute.

It is certainly important in that respect, and in other respects as well. It must also be noted that if heard

in open court it provides a public forum in which both applicants can assert their innocence and make the other claims they wish to assert. It is clear that even if the court be closed the applicant "A" will be the subject of rumour and adverse speculation in the media such as apparently has already occurred.

I have closely considered the matters raised by the applicants in opposition to any revocation of these orders,

and I have some sympathy with what has been put forward. However, I have come f irmly t o t he conclusion t h a t t he

overr id ing i n t e r e s t s of j u s t i c e requ l re t h a t the matter

proceed i n open cour t . I t i s the re fore my in tent ion t o revoke

t h e orders previously made under s 1 7 ( 4 ) . As t o t he orders

made under s 50, it i s my in t en t i on t o preserve t h e order

i n so fa r a s it r e l a t e s t o t h e document described as A44. I have not received submissions a s t o whether t he order should be preserved i n respect of any o the r documents. Before

revoking t h e order I	s h a l l allow an opportunity f o r any
submissions t o be made	i n t h i s regard.

-

Before f i n a l l y making t h e orders which I have

indica ted I s h a l l allow time f o r counsel t o consider t h e i r

pos i t ion . I n any event, i n l i g h t of t h e f a i r l y complicated

nature of t h i s matter I w i l l r equ i re t h e presentat ion of d r a f t

orders t o give e f f e c t t o these reasons.

I c e r t i f y t h a t t h i s and t h e preceding

fourteen ( 1 4 ) pages a r e a t r u e copy of t he

reasons f o r r u l i n g here in of t he

Honourable W J u s t i c e M. L. Foster .

Associate: l'&	Date:	9 OCTOBER 1993
A P P E A R A N C E S

COUNSEL FOR THE APPLICANT "Q":	MR D. GALBALLY
INSTRUCTED BY :	HOLDING REDLICH
COUNSEL FOR THE APPLICANT "A":	MR J. SHER Q.C.

w i t h MR P. JUDD

INSTRUCTED BY:  G.W.P. AARONS & CO

COUNSEL FOR THE FIRST, SECOND AND THIRD RESPONDENTS:

DR C.N. JESSUP Q.C.

w i t h MR B.E. WALTERS

INSTRUCTED BY:  AUSTRALIAN GOVERNMENT SOLICITOR

COUNSEL FOR THE FOURTH RESPONDENT: MR F.X. COSTIGAN Q.C.

w i t h MR P. JOPLING

INSTRUCTED BY:	DIRECTOR OF PUBIC PROSECUTIONS FOR THE STATE OF VICTORIA
DATE OF HEARING:	5, 6 , 7, 8, 9, OCTOBER 1993
DATE OF JUDGMENT:	9 OCTOBER 1993