VX96A v Insurance & Superannuation Commissioner

[1996] FCA 869

CATCHWORDS

PRACTICE AND PROCEDURE - Application for suppression of name of applicant - Whether prejudice to administration of justice - Balancing prejudice to applicant and countervailing public interest in open justice.

Federal Court of Australia Act 1976 (Cth) s.50.

SRD v. Australian Securities Commission and Another (1994) 123 ALR 730.

VX96A V. INSURANCE AND SUPERANNUATION COMMISSIONER

MERKEL J
MELBOURNE
30 SEPTEMBER

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

On appeal from the Administrative Appeals Tribunal
constituted by Deputy President G.L. McDonald and
Mr. W.G. McLean, Member

B E T W E E N:

"VX96A"  Applicant

and

INSURANCE AND SUPERANNUATION COMMISSIONER  Respondent

MINUTES ORDERS

1. The Motion dated 25 September 1996 is dismissed.

2. The applicant pay the respondent's costs of the Motion.

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
GENERAL DIVISION

On appeal from the Administrative Appeals Tribunal
constituted by Deputy President G.L. McDonald and
Mr. W.G. McLean, Member

B E T W E E N:

"VX96A"  Applicant

and

INSURANCE AND SUPERANNUATION COMMISSIONER  Respondent

Coram:Merkel J

Place:Melbourne

Date:30 September 1996

REASONS FOR JUDGMENT

VX96A ("the applicant") proposes to appeal to the Court from a decision of the Administrative Appeals Tribunal ("the AAT") which affirmed a decision of the Insurance and Superannuation Commissioner ("the Commissioner") that the applicant was a disqualified person under s.120(1)(a)(i) of the Superannuation Industry (Supervision) Act 1993 (Cth) ("the SIS Act").

The disqualification came about as a result of the conviction of the applicant in the City of London Magistrates' Court in or about June or July 1969 on 2 counts of having submitted a fraudulent insurance claim. A fine was imposed by way of penalty.

The applicant has applied under s.50 of the Federal Court of Australia Act 1976 (Cth) ("the FCA") for an order for leave to institute his appeal by identifying himself in the Notice of Appeal and other Court documents under the pseudonym "VX96A". The AAT had made orders enabling the applicant to be identified as VX96A in the proceedings before it.

The material relied upon in support of the application establishes that the applicant had played a key role in and had control of a group of companies which included companies which are approved trustees under the SIS Act. The corporate group manages funds having a value in excess of $280 million.

As a result of the decisions under challenge the applicant was required to resign his positions in certain entities in the corporate group.

The applicant contends that identification of his name and that of his corporate group, by the institution and prosecution of his appeal will result in unwarranted stigma and commercial prejudice to both himself and the corporate group. The applicant also contends that the resulting harm will be particularly unjust if he succeeds on his appeal on the ground that under the relevant laws of England and Australia he is to be treated as a person who has not committed, been charged with, prosecuted for, convicted of or sentenced for the offences. Reliance was placed on a similar order made under s.50 to protect certain AIDS victims from stigma and prejudice in E.V. Australian Red Cross Society (1991) 27 FCR 310 at 313 per Wilcox J.

Section 50 of the FCA provides:

The Court may, at any time during or after the hearing of a proceeding in the Court, make such an order forbidding or restricting the publication of particular evidence, or the name of a party or witness as appears to the Court to be necessary in order the prevent prejudice to the administration of justice or the security of the Commonwealth.

The operation of the section was considered in SRD v. Australian Securities Commission (1994) 123 ALR 730. In analogous circumstances Hill J declined to prohibit the publication of the applicant's name or the name of his firm pending the determination of an appeal from the AAT to the Court. The grounds relied upon in SRD's case were similar to those relied upon in the present case. Hill J observed at 733:

It must be noted, however, that s.50 does not authorise the making of suppression orders merely because it would be just, in some abstract sense, that such orders be made. Rather, s.50 speaks of prejudice to the administration of justice.

Hill J said at 734:

What is required of me in the present case is the balancing against the prejudice, which I will assume is likely to occur to the accountant and/or his firm by publication, on the one hand, with the countervailing public interest in open justice, on the other, to determine whether or not a suppression order should be made and if so upon what terms. As Parish's case shows, it would be an error to consider only the private interests of the applicant or his firm and to ignore other relevant public interests such as the preservation of the ability of a party to litigation to effectively achieve the remedy sought and the desirability of open justice.

On the facts of the present case, however, I am not satisfied that the assumed prejudice to the accountant or his firm outweigh the desirability of open justice so as to justify the orders sought.

The function of open justice allows the public to know accurately what and who is the subject of the court's proceedings. A corollary is that it allows the public to know who and what is not subject to those proceedings. Accurate knowledge of such things prevents unwarranted suspicion or speculation as to the court's business, which suspicion or speculation might embarrass or prejudice others engaged in the same professional field but not the subject of proceedings before the board.

There is also much to be said for the view that the public confidence in the fair operation of the legal system could be lessened were I to make orders as requested. The continued suppression of the name of the accountant and his firm gives rise to the appearance of special treatment or discrimination by the court to persons of a particular group or status. I use the word "status" both in the sense of referring to registration of accountants as auditors or liquidators under the Law and in the sense of the standing obtained through the participation in the profession of accountancy, a profession in which the community places trust and confidence.

and at 735:

....Further, in the present case it must be borne in mind that there has been a finding made by the tribunal adverse to the accountant. That is not, of course, a finding of a court. It is a finding made by the tribunal acting in place of an administrative decision-maker, the board. The appeal to this court, an application in the court's original jurisdiction, will be the first time that the matter will have come before a court, albeit that the proceeding in the court is restricted to correcting legal error. The factual findings of the tribunal, if open on the evidence, stand.

and finally at 736:

There is a fundamental difference between the board and the tribunal, on the one hand, and the Court, on the other. The former are part of the layers of administrative decision-making, the latter exercises the judicial power of the Commonwealth. As Deane J said in Parish (at 253):

Publicity "is the authentic hallmark of judicial as distinct from administrative procedure": McPherson v. McPherson [1936] AC 177 at 200 quoted by Gibbs J; Russell v. Russell (1976) 9 ALR 103; 134 CLR 495 at 520.

There is nothing in the Law which evidences a parliamentary intention that the private nature of the proceedings before the board, with the possibility of the tribunal's review being also in private, should be affected in appeals brought from a decision of the tribunal.

On balance therefore I am of the view that even if suppression of the name of the accountant or his firm is (as I assume for the purposes of this decision) necessary in order to prevent prejudice to the administration of justice it is outweighed by the public interest in open justice.

The same considerations arise in the present case. In my view the application should be refused substantially for the reasons given by Hill J in refusing the application before him.

I should add that no different result arises in respect of the identification of the corporate group controlled by the
applicant. At present the relevant corporate entities are operating without the applicant fulfilling the role previously carried out by him. It is difficult to accept that any publication of that fact or an explanation of how it came about might be prejudicial to the administration of justice.

Accordingly I dismiss the motion with costs.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel

Associate:

Date:

Heard:26 September 1996

Place:Melbourne

Judgment:30 September 1996

Appearances:  Mr. D. MacLean instructed by IFS Fairley appeared for the applicant.

Mr. G. Pagone instructed by Australian Government Solicitor appeared for the respondent.