SRD v Australian Securities Commission

[1994] FCA 681

/

681     99

JUDGMENT No. -r "".""."

THE FEDERAL COURT OF AUSTRAL14	)
)

NEW SOUTH WALES DISTRI CT REGISTRY ) No NG 312 of 1994

)

GENERAL DIVISION )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

Applicant

m:  AUSTRALIAN SECURITIES COMMISSION

23 SEP m4	First Respondent
COMPANIES AUDITORS AND LIOUIDATORS DISCIPLINARY BOARD
Second Respondent
m:	HILL J
a ! A l x :	SYDNEY
DuEri:	23 JUNE 1994

E)( TEMPORE REASONS FOR JUDGMENT

Application is made to the Court by a motion to prohibit the publication of the name of the company bringing the motion in connection with an appeal which has been lodged with the Court by another party from a decision of the Administrative Appeals Tribunal ( " A A T " ) . The company in question was the client of an accountant who was a party to the proceedings in the AAT for review of a decision of the Companies Auditors and Liquidators Disciplinary Board. The expression "the company" will have the meaning as referred to in para.3 of the affidavit of Mr Kuner of 17 June 1994.

the name of the company in connection with the appeal might

The evidence before me suggests that publication of

prejudice not merely the reputation of the company but its business and the stability of a certain fund which is requlred to be kept by it. I have read the reasons for decision of the AAT which likewise prohibited the publication of the name of the company; that prohibition continuing at least until an appeal was brought to this Court.

In determining whether or not it is appropriate to make the present order it is necessary to balance the public interest in the open administration of justice with the potential harm which might be incurred by the company if its name or evidence in respect of its affairs were published.

The circumstances of the case, and particularly the fact that the acts of the accountant whose conduct was under consideration concern, among other things, the audit of a fund of the applicant to this motion, lead me to the view that in the present case it is appropriate to make such an order. In

&d Cross Societv (1991) 27 FCR 310 where the Court in making	doing so I take comfort from the decision in g v pustralian	an order in that case under 6.50 of the Federal Court Qf Australia Act 1976 (Cth) prohibiting the publication of the name of an applicant who had commenced proceedings for damages, inter alia, against the Red Cross Society in connection with proceedings against that Society alleging that the applicant had become infected with the HIV virus as a result of the actions of the Society.
Weighed against the public interest of open justice, as counsel for the company submitted, the confidentiality of affairs of persons not parties to the litigation will more readily be protected by an order of confidentiality than will the affairs of an applicant who comes to the Court. In so saying I do not for the moment form any view as to whether a similar application which is made to me by the accountant will warrant a similar order.
The application is not opposed by the respondents and in these circumstances I will, until further order, dlrect that:

(1) the publication of the name of the company in question in connection with the appeal or the AAT proceedings except to the parties to this appeal, their legal advisers and the Court constituted to hear it including interlocutory proceedings be

prohibited; and

(2) I would prohibit the publication pending

further order of any evidence which is brought before the Court including documents and other evidence forwarded by the registrar of the AAT to the Court for the purposes of the appeal and all other documents lodged with the Court for the Weighed against the public interest of open justlce,

as counsel for the company submitted, the confidentiality of affairs of persons not parties to the lltlgatlon will more readily be protected by an order of confldentlality than will the affairs of an applicant who comes to the Court. In so saying I do not for the moment form any view as to whether a slrnllar application whlch is made to me by the accountant will warrant a similar order.

The application is not opposed by the respondents and in these circumstances I wlll, until further order, dlrect that:

(1) the publication of the name of the company in question in connection with the appeal or the AAT proceedings except to the parties to this appeal, their legal advlsers and the Court constituted to hear it including interlocutory proceedings be

prohibited; and

(2) I would prohlbit the publlcatlon pending further order of any evidence which is brought before the Court including documents and other evidence forwarded by the registrar of the AAT to the Court for the purposes of the appeal and all other documents lodged with the Court for the purpose of the appeal which identify, refer to or concern the company or which would cause the company to be identified except so far as that publication is to the parties to the appeal, their legal advisers and the Court constituted to hear the appeal including any interlocutory hearings.

I make no order as to costs.

I certify that this and the
preceding three (3) pages
are a true copy of the Reasons

for Judgment herein of his Honour

Associate:

Counsel and Solicitors for	GA Flick SC instructed by
Applicant to the Motion:	Minter Ellison Morris Fletcher

Counsel and Solicitors for AJ Sullivan QC instructed by

Respondent to the Motion:	Australian Securities Commission
Date of Hearing:	23 June 1 9 9 4
Date Judgment Delivered:	23 June 1 9 9 4