X and Y v Australian Prudential Regulation Authority

[2007] FCA 1622

FEDERAL COURT OF AUSTRALIA

X and Y v Australian Prudential Regulation Authority
[2007] FCA 1622

X AND Y v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
NSD 1904 OF 2007

X AND Y v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
NSD 2052 OF 2007

LINDGREN J
25 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1904 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
DEPUTY PRESIDENT WALKER

BETWEEN:

X
First Applicant

Y
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

23 OCTOBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The matter be stood over for the making of orders to Thursday 25 October 2007 at 11.00 am.

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 2052 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
DEPUTY PRESIDENT BLOCK

BETWEEN:

X
First Applicant

Y
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

23OCTOBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The matter be stood over for the making of orders to Thursday 25 October 2007 at 11.00 am.

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 1904 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
DEPUTY PRESIDENT WALKER

BETWEEN:

X
First Applicant

Y
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

25 OCTOBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The motion brought by amended notice of motion filed in Court on 15 October 2007 be dismissed.

2.The applicants 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
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2052 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
DEPUTY PRESIDENT BLOCK

BETWEEN:

X
First Applicant

Y
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

25 OCTOBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The motion brought by notice of motion filed in Court on 15 October 2007 be dismissed.

2.        The applicants 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
NEW SOUTH WALES DISTRICT REGISTRY NSD 1904 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
DEPUTY PRESIDENT WALKER

BETWEEN:

X
First Applicant

Y
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NSD 2052 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
DEPUTY PRESIDENT BLOCK

BETWEEN:

X
First Applicant

Y
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

JUDGE:	LINDGREN J
DATE:	23 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In proceeding NSD 1904/2007, the applicants seek a suppression order by motion brought by an amended notice of motion filed in Court on 15 September 2007.

2. In proceeding NSD 2052/2007, the applicants seek a suppression order by motion brought by notice of motion filed in Court on 15 October 2007.

3. On 23 October 2007 the two motions were listed for judgment.  I then indicated that I had reached a decision as to the orders to be made and would give short oral reasons for the decision I had come to, and that if either party wished to have formal written reasons, that party should let my Associate know.  Subsequently, the applicants requested formal written reasons.  These are those reasons.

4. In substance, the issue on each appeal from the Administrative Appeals Tribunal (the Tribunal) is the question of law whether, on the proper construction of certain legislation, the Tribunal has power to prohibit the publication of the names of the parties to proceedings in the Tribunal, and to describe them in those proceedings by pseudonyms.  Thus, the questions raised on the appeals are questions which will not require any traversing of the background facts.

5. The case for the suppression order is that if I do not suppress the applicants’ names and they succeed on the final hearing before me, the purpose of the present proceedings will have been frustrated, since the applicants’ identity will have been made public in these proceedings.

6. At first I was attracted by this argument, but on reflection, I do not think it is right.

7. It is important to remember that O 46 r 6 of the Federal Court Rules does not permit persons other than parties to inspect affidavits filed (I include exhibits to the affidavits) without the leave of a judge.  Accordingly, all that a member of the public would know, in the absence of a suppression order, is the true names of the applicants as applicants in these proceedings, and, by inspecting the notices of appeal, that the issue between them and the Australian Prudential Regulation Authority is the question of law whether the Tribunal has power to suppress their names.  These present proceedings will not involve any evidence of the underlying facts.  On the hearing I will simply be taken to legislation and earlier decisions.

8. If I were to decide in favour of the applicants on the final hearing, it would be a matter for the Tribunal to decide whether to exercise the power to suppress in the light of the evidence of the background facts that would, in the absence of a suppression order by the Tribunal, be given in public: see Administrative Appeals Tribunal Act 1975 (Cth) s 35(1).

9. It may be said in answer that members of the public reading the names of the applicants in these proceedings will, in fact, know the general nature of the background facts.  This argument could be based on a newspaper account that appeared in February 2007 in which the applicants’ names and some of the background facts were disclosed.  But, if the applicants were to rely upon that newspaper publicity as establishing a link between them and the background facts, this would destroy their case for confidentiality in any event.

10. Indeed, an alternative ground on which I would refuse the present motion is that the identities, that is, the names, of the applicants and the general nature of the background facts concerning them are already in the public domain by reason of that newspaper article.

11. In the result, I propose to dismiss the motion in each proceeding and the result of this will be that each proceeding will be intituled with the names of the two applicants.  As indicated earlier, by virtue of O 46 r 6 of the Federal Court Rules, there will not be available to be read, without leave of a judge, the affidavit material that has been filed.

12. [Following discussion the proceedings were stood over for the making of orders on the motions to Thursday 25 October 2007.]

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            25 October 2007

Counsel for the Applicants:	Mr P Greenwood SC and Ms D Hogan Doran
Solicitor for the Applicants:	Minter Ellison
Counsel for the Respondent:	Mr J Stevenson  SC and Ms V E Whittaker
Solicitor for the Respondent:	Sparke Helmore Lawyers
Date of Hearing:	15 October 2007
Date of Delivery of Oral Reasons:	23 October 2007

Date of Publication of Reasons:             25 October 2007