Zhang v The Age Company Pty Ltd
[2023] ACTCA 10
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Zhang v The Age Company Pty Ltd |
Citation: | [2023] ACTCA 10 |
Hearing Date: | 11 November 2022 |
DecisionDate: | 21 February 2023 |
Before: | McCallum CJ, Mossop and Kennett JJ |
Decision: | 1. Appeal dismissed with costs. 2. The pseudonym orders made by McCallum CJ on 28 September 2022 are discharged. |
Catchwords: | PRACTICE AND PROCEDURE – ACCESS TO AFFIDAVITS READ IN CLOSED COURT – Appeal against decision allowing a media organisation access to affidavits read in closed court – where court closed by application of the Director of Public Prosecutions under s 243(5) of the Confiscation of Criminal Assets Act 2003 (ACT) – where access sought in circumstances where substantive proceedings resolved by consent – where access not opposed by Director or Commissioner of the AFP – whether primary judge erred in application of the open justice principle – whether primary judge failed to consider relevant matters – consideration of the open justice principle – appeal dismissed with costs – pseudonym orders discharged |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), ss 35, 36, 98D, 191, 243, 252, Div 4.2, Constitution (Cth), s 77(iii) Supreme Court Act 1933 (ACT), s 37E(4) |
Cases Cited: | Appleroth v Ferrari Australasia Pty Ltd [2020] FCA 756 Application of Fairfax Media Publications Pty Ltd; NSW Crime Commission v Yucel [2017] NSWSC 1779 Seven NetworkLtd v News Ltd (No 9) [2005] FCA 1394 |
Texts Cited: | Beverley McLachlin ‘Courts, Transparency and Public Confidence – To the Better Administration of Justice’ (2003) 8 Deakin Law Review 1 Explanatory Statement, Confiscation of Criminal Assets Bill 2002 (ACT) Jeremy Bentham, ‘Draught of a Code for the Organization of Judicial Establishments in France’ in J Bowring (ed), The Works of Jeremy Bentham, (1843) vol 4 |
Parties: | Grace Zhang ( Appellant) The Age Company Pty Ltd (ABN 85 004 262 702) (First Respondent) ACT Director of Public Prosecutions (Second Respondent) Jason Yuan (a pseudonym) (Third Respondent) May Chao (a pseudonym) (Fourth Respondent) Yawen Jian (a pseudonym) (Fifth Respondent) Kelvin Leung (a pseudonym) (Sixth Respondent) Amazing Grace Yan Pty Ltd (ACN 115 281 859) (Seventh Respondent) |
Representation: | Counsel D Campbell SC & G Jones ( Appellant) E Batrouney ( First Respondent) |
| Solicitors AKN & Associates ( Appellant) Minter Ellison ( First Respondent) ACT Director of Public Prosecutions (Second Respondent) | |
File Number: | ACTCA 17 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Loukas-Karlsson J Date of Decision: 24 March 2022 Case Title: Director of Public Prosecutions (ACT) v Shui (a pseudonym) Citation: [2022] ACTSC 62 |
THE COURT:
Introduction
This is an appeal from a judge of the court who, on 24 March 2022 made an order permitting the first respondent, the Age Company Pty Ltd (the respondent), to have access to two affidavits which had been read in support of an ex parte application for a restraining order under the Confiscation of Criminal Assets Act 2003 (ACT) (COCA Act). The order granting access to the respondent was made after the underlying proceedings had been resolved by agreement and on a without admissions basis between the ACT Director of Public Prosecutions (the Director) and the appellant. The appellant contends that the decision of the primary judge involved an error, that the decision should be set aside and that this court should order that the respondent’s application for access be dismissed.
The decision of the primary judge was made pursuant to r 2903 of the Court Procedures Rules 2006 (ACT) (the Rules). The parties proceeded on the basis that a grant of leave under that rule was not an interlocutory order and hence did not require leave to appeal under s 37E(4) of the Supreme Court Act 1933 (ACT). In those circumstances, the court addressed the matter on the basis that no grant of leave was required.
During the pendency of the appeal a non-publication order was made in relation to the identity of the appellant and a company bearing her name: Director of Public Prosecutions (ACT) v Shui (a pseudonym) (No 2) [2022] ACTSC 260. That was in order to protect the identity of the appellant in the event that the appeal was allowed and the application for access to the affidavits which named her was dismissed. No proper basis was established for the maintenance of a non-publication order in relation to the appellant’s name in circumstances where the appeal was dismissed. For the reasons which follow, the appeal must be dismissed. In those circumstances, it is not appropriate that the non-publication order remain and the pseudonym orders made will be discharged. As a consequence, these published reasons use the appellant’s name rather than a pseudonym.
Proceedings below
On 26 March 2021 the primary judge made a restraining order under the COCA Act in relation to certain property of the appellant and three other persons. That was done in response to an application made by the Director. The application was supported by an affidavit of Constable James Johnston affirmed 24 March 2021 which was read in support of the application. The proceedings were brought ex parte, being conducted as “restricted access proceedings” under the COCA Act. As a result of an application under s 243(5) of the COCA Act, the proceedings took place in closed court.
A further restraining order was made on 10 May 2021 in relation to certain property interests of another person and a company associated with the appellant. The supporting affidavit for this application was another affidavit of Constable Johnston affirmed 5 May 2021. The proceedings were heard ex parte and, as a result of an application under s 243(5) of the COCA Act the application was heard in closed court.
On 17 September 2021 a journalist employed by the respondent sought access, by email to the court registry, to the affidavit relied upon for the purposes of the hearing on 10 May 2021.
On 28 September 2021 the substantive proceedings were resolved by consent orders made pursuant to s 252 of the COCA Act. The orders were made on a “without admissions” basis. They included an order that the appellant’s interests in an ACT property be forfeited to the Territory and the making of an “unexplained wealth order” in the sum of $2,250,000 pursuant to s 98D of the COCA Act.
On 14 October 2021 the respondent made a formal application to the court seeking that leave be granted to uplift and copy the affidavit relied upon at the hearing on 10 May 2021. The application was subsequently amended to seek access to both of the Johnston affidavits. After that, evidence and written submissions were filed on behalf of the appellant, the respondent, the Director and the Commissioner of the Australian Federal Police (AFP). The Director neither consented to nor opposed the granting of access. The Commissioner of the AFP did not object to the provision of access so long as it was to versions of the affidavits with certain personal information redacted.
The application was heard before the primary judge on 10 and 17 December 2021. An order was made granting access to the redacted versions of the two affidavits of Constable Johnston on 24 March 2022. Reasons for that order were published on 6 April 2022.
Grounds of appeal
The Notice of Appeal dated 14 April 2022 includes the following grounds of appeal:
5.1.The primary judge erred in failing to find that the open justice principle did not attach to the application before the court or to two affidavits affirmed by James Johnston on 24 March 2021 and 5 May 2021 respectively (“the affidavits”) particularly given that the proceedings and the affidavits:
(a)were only ever received in closed court;
(b)at an ex parte hearing;
(c)were never read in open court;
(d)with the proceedings being resolved without there being any hearing, without any testing of the matter in the affidavits, and by way of consent orders being made on a without admissions basis before any further hearing was had.
5.2.alternatively to 5.1, in the event that the primary judge did conclude that the open justice principle had no application to the proceedings before the court and to the affidavits, she erred in determining that the first respondent, a non-party, could nonetheless access them;
5.3.in determining that the first respondent could access the two affidavits, the primary judge erred by relying on statements of principle expressed in various authorities concerning an application of the principles of open justice in circumstances where that principle had no application to the proceedings or to the affidavits;
5.4.the primary judge erred by failing to consider matters relevant to the first respondent application including that:
(a) the affidavits were received in closed court only;
(b) the proceedings had resolved pursuant to consent orders, without admissions, without any testing of the content of the affidavits and without any further hearing;
(c) the content of the affidavits was critical of the appellant;
(d) the furthering of the objects of the court procedure rules in achieving the quick, cheap and just resolution of the proceedings;
(e) the public interest in the settlement of litigation;
(f) the legitimate expectation by settling a case of avoiding adverse publicity;
(g) the facilitation of the objects of the Confiscation of Criminal Assets Act 2003 (ACT);
(h) the purpose(s) for which access was being sought by the first respondent; and
(i) the nature and extent of potential adverse consequences that were likely to result to the appellant.
5.5.The primary judge erred when determining that the appellant was not at risk of being the subject of any future prosecution concerning matter contained in the affidavits.
The reasons below
Having recited the procedural history of the matter and the orders that were made on 24 March 2022, the primary judge set out the provisions of r 2903 of the Rules and s 243 of the COCA Act. She then recited, in considerable detail, the content of the affidavits read on the application before her, namely, an affidavit of Samuel White, “Editorial Counsel” at the parent company of the appellant, and Scott Moller, a Detective Superintendent with the AFP.
The affidavits of Mr White were relied upon by the respondent. They outlined the procedural history of the application by one of the Age’s journalists to obtain access to the affidavits relied upon in the proceedings. They also set out the factual basis for asserting that, based on what has been publicly reported about the proceedings, the content of the affidavits would be relevant to, and of interest to, the Age’s journalists because they involve allegations of large-scale criminal enterprise related to a national network of illegal brothels.
The affidavits of Mr Moller indicated that he is a Detective Superintendent with the AFP and had no objection to access being given to Mr Johnston’s affidavits so long as certain redactions of personal information and information the subject of statutory secrecy provisions were made. The affidavit described the nature of the redactions to be made. A confidential affidavit provided to the primary judge was marked up so as to show the material that would be redacted from the version of the affidavits to which access might be given. A subsequent open affidavit identified that no information contained in the Johnston affidavits arose from any “non‑disclosable information order” as defined in s 191 of the COCA Act. A second confidential affidavit identified some further redactions.
Her Honour then at [29]-[85] recited in detail the terms of the submissions that had been made to the court on the application.
Her Honour’s consideration of the application appeared at [86]-[111]. Her Honour made the following points:
(a)The open justice principle may be limited. While it is relevant where a party seeks leave under r 2903 to access material relied upon by a judge, it is not a freestanding right.
(b)The judicial process must be open to public scrutiny and the principle needs to be balanced against other principles of justice which protect the interests of parties to litigation.
(c)The interests of the defendant parties were important, especially where the proceedings were interlocutory and the defendants have not had an opportunity to test the evidence.
(d)The defendant parties have a right to a fair trial in any future criminal proceedings. There was no evidence that any such proceedings were on foot. The Director had confirmed that the Territory will not pursue any of the defendants for the alleged offences the subject of the COCA Act proceedings.
(e)Fair and accurate reporting does not always require access to court documents as opposed to a judgment or transcript of reasons. However, there was no judgment given in relation to the restraining orders that were made.
(f)The purpose of s 243 of the COCA Act, as explained in the Explanatory Statement for the relevant Bill, was as follows:
The purpose of this clause is to ensure that the objectives of these orders are not frustrated by giving offenders premature warning of impending action to restrain and confiscate their property, thereby giving them time to destroy or conceal relevant information or property.
(g)The objective of the restraining orders had, in this case, been carried out.
In a paragraph which was the subject of specific submissions by the appellant, her Honour said at [103]:
While the DPP neither consents nor opposes the applicant’s application, the DPP had submitted that “the question arises” as to whether the Johnston affidavits had been “used” or “deployed” in open court such that the principle of open justice is engaged. While the Johnston affidavits have not been used or deployed in open court such that the principle of open justice is not thereby necessarily engaged, this does not of itself determine the matter. The case must be determined on the particular facts of the case before me.
Her Honour then referred to a submission of the respondent before turning to three cases in which access to documents had been granted in circumstances bearing some similarity to the present case: Appleroth v Ferrari Australasia Pty Ltd [2020] FCA 756, ASIC v Rich [2001] NSWSC 496; 51 NSWLR 643, Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) [2002] FCA 609.
Her Honour distinguished the case from Application of Fairfax Media Publications Pty Ltd; NSW Crime Commission v Yucel [2017] NSWSC 1779 on the basis that in the present case the AFP did not object to the release of the affidavits if they were redacted in accordance with proposed redactions and the Director had undertaken not to prosecute any of the defendants. So far as the possibility of other prosecutions was concerned, her Honour indicated (at [108]) that “the defendants have merely pointed to the theoretical possibility of prosecutions elsewhere without specifically identifying or developing the prejudice in that regard”. Her Honour’s conclusion was (at [109]-[110]):
I have considered all relevant matters as discussed above, including the particular nature of COCA Act proceedings as was underlined by the DPP to be “unique”. In light of the foregoing reasons, I consider that leave ought to be granted to the applicant.
In accordance with the authorities discussed above, I consider that any redactions made ought to be the minimum necessary in the circumstances of this case.
Her Honour then indicated that she would redact the names of all defendants other than that of the appellant and the sixth defendant in the proceedings before her which was a company owned by the appellant which bore her name.
Relevant statutory provisions
Under Div 4.2 of the COCA Act it is possible for the Director to make an application to the court for a restraining order in a variety of circumstances. The effect of a restraining order is to prevent the owner of the property from dealing with it other than in accordance with the order, another order made under the Act or under the Act itself. Property may be restrained for a variety of purposes under the Act. The matters of which the court must be satisfied prior to the making of a restraining order relate to the content of the application and the affidavit in support and the existence of reasonable grounds for the “suspicions and beliefs” in the affidavit in support. The role of the court is therefore a limited one but one in which the terms of the affidavit in support of the application are of considerable significance.
Section 243 of the Act relates to what are referred to as “restricted access proceedings”. It provides for the making of applications without notice to the party whose property is to be affected and for the closing of the court during the hearing of those applications. It provides:
243Restricted access proceedings—notice of applications etc
(1)This section applies to a confiscation proceeding for any of the following orders (a restricted access proceeding):
(a)a restraining order;
(b)an application by the DPP or public trustee and guardian for an additional order under section 39 in relation to a restraining order or restrained property;
(c)an order under section 49 (Extension of time for restraining orders) that a restraining order—
(i) is to remain in force for a stated period (or as stated in the order); or
(ii) that has ended is to be revived for a stated period (or as stated in the order);
(d)a monitoring order;
(e)a transaction suspension order;
(f)a production order (other than an application to vary a production order under section 162);
(g)an examination order.
(2)An application to begin a restricted access proceeding may be made to a relevant court without notice to the person against whom the relevant order is sought.
(3)If an application is made to begin a restricted access proceeding without notice to the person against whom the relevant order is sought, the applicant is the only party to the application.
(4)If notice is given to the person against whom the order is sought, the person is entitled to appear and to present evidence at the hearing of the application, but the person’s absence does not prevent the court from making the order.
(5)The relevant court must hold a restricted access proceeding in closed court if the applicant asks and may give directions about who may be present.
As a result of an application by the Director, the proceedings before the primary judge in which the restraining order was sought were held in closed court. There is no record of any direction having been made by the primary judge under s 243(5) as to who could be present.
Section 35 of the Act provides power to the court to give directions prohibiting or restricting the publication of certain matters relevant to the making of restraining orders. It provides:
35Restraining order proceedings—restrictions on disclosure
(1)On application by the DPP, a relevant court hearing an application for a restraining order may give directions prohibiting or restricting the publication or disclosure of 1 or more of the following:
(a)the fact that an application for the order, or that a restraining order, has been made;
(b)the application for the order;
(c)the supporting affidavit for the order and any other affidavit filed in relation to the application;
(d)any information about the proceeding (whether or not a hearing has been held);
(e)any evidence given, statement made or thing done during the proceeding;
(f)any information, document or thing derived from anything mentioned in this subsection.
Examples of directions
1that the application for the restraining order and a stated part of the supporting affidavit not be disclosed to the person against whom the restraining order is made until the court has decided an application for another restraining order against someone else’s property
2that the supporting affidavit must be made available only to the offender’s lawyer
(2)In deciding whether to give a direction under subsection (1), the court must have regard to whether the direction—
(a)would promote the purposes of this Act; or
(b)is desirable to protect the integrity of an investigation (however described) for any purpose or a prosecution of an offence.
(3)The court may also have regard to any other relevant matter in deciding whether to give a direction under subsection (1).
Breaches of directions made under s 35 are subject to criminal penalties: s 36. When the proceedings were before the primary judge no order under s 35 was applied for or made.
Rule 2903 of the Rules provides:
2903Inspection of registry files
(1)Anyone may search the registry for, inspect, or take a copy of, any document filed in the registry.
Note 1For a family or personal violence proceeding, a party to the proceeding may inspect, or take a copy of, a document filed in the registry provided the document does not include an affected person’s home or work address or other information that may allow the affected person to be located (see r 3802 (2) (s)).
Note 2Rule 4053 (Criminal proceedings—inspection of registry files) applies to documents filed in criminal proceedings.
(2)However, the registrar must not allow a person who is not a party to a proceeding to search the registry for, inspect, or take a copy of, any of the following documents about the proceeding unless the person appears to the registrar to have a sufficient interest in the document or the court gives leave:
(a)an order, transcript of the proceeding, or any other document, that the court has ordered to be kept confidential;
(b)an affidavit that has not been read in court;
(c)a part of an affidavit ruled to be inadmissible in evidence;
(d)an interrogatory, or an answer to an interrogatory, that has not been admitted into evidence;
(e)a list of documents given on discovery;
(f)an admission that has not been admitted into evidence;
(g)a subpoena;
Note Rule 6609 (Inspection of, and dealing with, subpoenaed documents and things produced otherwise than on attendance) deals with the inspection of documents produced in response to a subpoena.
(h)an application for leave to serve a subpoena in New Zealand;
(i)a document in relation to a proceeding about the adoption, custody or guardianship of a child;
(j)a document in relation to a proceeding under the Family Law Act 1975 (Cwlth);
(k)a document filed in the probate jurisdiction, other than—
(i) a grant of probate or letters of administration; or
(ii) an order to administer an estate; or
(iii) a proceeding about a contested matter;
(l)a deposition taken before an examiner;
(m)a document filed in support of an application made in the absence of a party;
(n)a written submission that has not been read in court;
(o)an unsworn statement of evidence;
(p)a document that the registrar decides should be confidential to the parties to the proceeding in the interests of justice.
NotePt 6.2 (Applications in proceedings) applies to an application for leave under this rule.
…
(7) In this rule:
document—to remove any doubt, document includes a document kept electronically or in any other way.
…
It is not clear from the appeal papers which of the paragraphs of r 2903(2) led the Registrar to refer the respondent’s application to the primary judge. However, r 2903(2)(m) would have been applicable and required a grant of leave in order for the respondent to obtain access to the Johnston affidavits.
The scope of, and relationship between, ss 243, 35 and r 2903.
The appellant made a number of submissions about the scope of, and relationship between, ss 243, 35 and r 2903. It is useful at this stage to say something about the scope and operation of these provisions and the submissions made by the appellant in relation to them.
Section 243(5) makes it mandatory for the court to close the court if the Director asks. The subsection then goes on to say that the court may give directions about who may be present. The subsection makes it clear that although there is no discretion as to the closing of the court there is discretion as to what directions to make about who may be present. No doubt the discretion will be exercised having regard to the purposes of the legislation and the reasons for controlling who may be present when the relevant type of application listed in s 243(1) is being made. However, the provision does not expressly or by necessary implication render the proceedings “confidential” or impose any publication restriction in relation to the subject matter of proceedings or the identity of the parties. If the terms of s 243 did not make that obvious, then the terms of s 35 do. The existence of the express power in s 35 in restraining order proceedings to make directions prohibiting or restricting public disclosure of one or more of the various matters listed in s 35(1) makes it clear that no such prohibition or restriction could be implied from the terms of s 243 alone.
Notwithstanding that s 35 provides a power to prohibit or restrict publication of various matters, the existence of that power is insufficient to exclude the generally available and commonly used powers of the court to make non‑publication orders that exist in s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). It is notable that the power under s 111 may be made “at any time during or after the hearing of the proceeding”: s 111(2).
Counsel for the appellant sought to characterise s 243(5) as rendering the proceedings “confidential”. That submission was made in order to enhance the appellant’s submission that the making of orders on an ex parte basis and in closed court gave the proceedings a character which meant that affidavit material relied upon should not be disclosed. He submitted that s 243(5) necessarily precluded persons not immediately associated with the applicant for the order from being present. No satisfactory explanation was given as to why this was a necessary consequence of s 243(5). Rather, as explained above, the provision empowers the making of orders that control who may be present and the making of such orders involves the exercise of a discretion. That discretion would obviously be exercised in the context of the Act and the application before the court but the exclusion of any particular person from the proceedings would arise from the exercise of the presiding judge’s discretion and not as a direct consequence of the operation of s 243(5). Further, in so far as the submissions of the appellant sought, by reference to s 243(5), to cast an aura of confidentiality over the evidence relied on for the purposes of an application for a restraining order, those submissions failed to identify with any precision in what sense the “confidentiality” existed or take into account the existence of s 35 and the express power, that may be invoked at the instigation of the Director, to prohibit or restrict publication or disclosure of, relevantly, the affidavits relied upon. The existence of the distinct powers in s 243(5) and s 35 indicates that presence at the hearing and restrictions on publication or disclosure are distinct matters. That undermines the submission that s 243(5) of itself gives rise to some “confidentiality” beyond empowering the court to determine who may be present at the hearing.
Counsel for the appellant also made the submission that r 2903 did not involve the exercise of a discretion and hence the principles in House v The King (1937) 55 CLR 499 were not applicable to appellate review of that decision. Rather, he submitted that what was involved was an evaluative decision in relation to which there was only one right answer. Had this been correct then it would have been open to this court to substitute its own conclusion if it considered that the conclusion reached by the primary judge was wrong. The appellant’s submission cannot be accepted. Rule 2903 obviously involves a discretionary decision on the part of the judge deciding the application for leave to access the documents. A power to grant leave in unconstrained terms such as that found in r 2903(2) clearly indicates an exercise of discretion.
Counsel for the appellant referred in support of his submission to the decision of the High Court in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [33] and the decision of the New South Wales Court of Appeal in Rinehart v Welker [2012] NSWCA 1; (2012) 83 NSWLR 347 at [53]. These decisions involved statutory provisions empowering the making of suppression orders which were conditioned upon the court being satisfied that it was either “necessary to make an order to prevent prejudice to the security of the Commonwealth” or “necessary to prevent prejudice to the proper administration of justice”. In each case the court found that it would involve a misreading of the statutory provision to treat it as involving a discretion not to make an order even where the state of satisfaction as to the necessity to do so had been reached. These decisions arose in statutory contexts which are very different from the unconstrained power in the Rules to grant (or refuse) leave to access documents on the court file. They do not provide a basis for a conclusion that the decision made by the primary judge was not a discretionary one subject to review only on a House v The King basis.
The open justice principle
What is the open justice principle? The open justice principle is the idea that court proceedings “must be conducted in open court to which the public and the press have access”: James Spigelman, ‘The Principle of Open Justice: a Comparative Perspective’ (2006) 29 UNSW Law Journal 147 at 151. The open justice principle is just that, a principle. It is not a freestanding right or a legal rule: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [29]. It is a normative principle which “informs and energises numerous areas of the law”: Ryde at [60]. In the present context it provides guidance as to the exercise of a power to grant access to documents on a court file.
The origins of the principle of open justice are obscure. It has been described as a “more or less accidental” consequence of the conduct of trials by jury, which necessarily involved public involvement: Garth Nettheim, ‘The Principle of Open Justice’ (1984) University of Tasmania Law Review 25 at 26.
The merits of trials being in public were recognised in the 16th and 17th century. Sir Matthew Hale writing in the 17th century identified, in The History of the Common Law of England (University of Chicago Press, 1971), the benefits of the judge’s rulings being made in public so that any partiality or injustice would be evident to “all bystanders”. Further, it was a discipline upon witnesses to tell the truth.
Jeremy Bentham in his Draught of a Code for the Organization of Judicial Establishments in France published in 1790 asserted that “Publicity is the very soul of justice”. The reasons he advanced included the potential to deter “unrighteousness” on the part of the judge, the educative effect of the public enforcement of “the most important branches of morality” and the encouragement of the veracity of witnesses. He described that it was “to publicity, more than to everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst”: J Bowring (ed), The Works of Jeremy Bentham, (1843) vol 4, 316-317. In his posthumously published Constitutional Code he put the matter even more fervently, including in the explanation for the provisions dealing with publicity of court proceedings: “In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice”: Bowring at vol 9, 493 (see also Scott v Scott [1913] AC 417 at 477).
The principle was recognised in decisions of the English courts in Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 and, most significantly, Scott v Scott [1913] AC 417. The latter case is the starting point for much modern consideration of the principle. A majority of the House of Lords rejected the proposition that there was a general discretion available to a judge to conduct the proceedings in private where it was expedient to do so. That was despite the fact that the subject matter of the proceedings would obviously have been of considerable embarrassment to those involved. Rather, such a power was only available where it was necessary for the attainment of justice, with the burden lying on the party seeking to depart from the ordinary openness of the proceedings to justify that course having regard to the paramount object of doing justice. In 1979 Lord Diplock summarised the effect of the majority judgments in Scott by describing the possibility of departing from the general rule where the application of the rule “would frustrate or render impracticable the administration of justice” or pursuant to some statutory exception. However, where the exercise of the court’s inherent power was concerned, the departure could be made “to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice”: Attorney‑General v Leveller Magazine [1979] AC 440 at 450. The importance of Scott for present purposes is that it provided authoritative recognition of the general applicability of the principle to English courts.
Scott was referred to in Australia in Dickason v Dickason (1913) 17 CLR 50 although the court appeared to understand Scott as extending to a denial of an inherent power of a court to exclude the public. That was an overstatement of the principle, but the case has been subsequently cited as an authority recognising that the admission of the public to proceedings is “one of the normal attributes of the court”: Russell v Russell (1976) 134 CLR 495 at 532.
The fundamental nature of the requirement for openness was emphasised in Russell v Russell in which a majority found that a Commonwealth requirement that State courts exercising federal jurisdiction under certain provisions of the Family Law Act 1975 (Cth) do so in closed court was invalid because it changed the essential nature of the State courts, something which was not permissible under s 77(iii) of the Constitution.
The principle was subsequently discussed in the High Court in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [20]-[21] and in authorities such as John Fairfax & Sons Ltd v The Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477; R v Davis (1995) 57 FCR 512 at 514; John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [60]-[65].
In Dring v Cape Intermediate Holdings Ltd [2020] AC 629 at [42]-[43], the United Kingdom Supreme Court identified that the principal purposes of the open justice principle are to enable public scrutiny of the way in which courts decide cases and to enable the public to understand how the justice system works and why decisions are taken. However, the judgment also recognised that there may well be other purposes. That articulation of the purposes of the principle is consistent with the brief summaries of the purposes of the principle in Australian decisions: Russell v Russell at 520; Davis at 514; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) [2019] VSC 417; 58 VR 611 at [63] but, as articulated below, some greater elaboration of its purposes will allow a full appreciation of its significance.
Open justice is a means to an end, not an end in itself: Hogan v Hinch at [20]. The end is the fair, competent and independent exercise of judicial power. It is a means to that end because insofar as it results in the exercise of judicial power being exposed to public scrutiny, it reduces the potential for the flourishing of those vices which would flourish if the power was exercised without such scrutiny. To use Bentham’s words, it encourages a system which is “least bad” rather than one which is “the worst”. The most recognisable component of the open justice principle is that the court itself is open to the public and, subject to an order to the contrary, any member of the public is entitled to observe what occurs during the course of court proceedings. Equally recognisable as a component of the principle is that judgments are given in public and, where written, are made available to the public as well as the parties.
Using these two aspects of the application of the open justice principle – that proceedings are open to the public and judgments are given in public – it is possible to illustrate how the principle serves the goal of a fair, competent and independent exercise of judicial power:
(a)It exposes, and thereby discourages, bad behaviour by judges. Examples of such behaviour would be presiding while intoxicated, sleeping during trials, being abusive towards counsel or witnesses, engaging in procedurally unfair conduct or being partial to one side or the other. Examples of inappropriate conduct demonstrated by Lord Hewart (Chief Justice of England from 1922 to 1940) are set out in Spigelman, “The Principle of Open Justice” at 148-149.
(b)It exposes the reasoning adopted by judges to public and professional scrutiny, thereby encouraging judges to maintain appropriate standards in their judgments and exposing those who cannot: Russell v Russell at 520.
(c)It serves to educate the public about the law and the judicial process. For example, the theory of general deterrence, a principle underlying a great deal of sentencing, depends upon public dissemination of the consequences of the exercise of judicial power in particular cases. Victims and the community are able to understand and assess the appropriateness of the application of the criminal laws for which they, through their elected representatives, are ultimately responsible. More generally, it educates the public about the rule of law and the constraints that the law imposes on governments, powerful organisations and individuals. It thereby encourages widespread acceptance of the legitimacy of judicial decision making.
(d)It provides an outlet for community concern, hostility and emotion in relation to criminal conduct and thereby diverts the public from vengeful self-help: Richmond Newspapers Inc v Virginia 448 US 555 (1980) at 572.
(e)It affects the conduct of persons who may be witnesses both before and after they become so. The potential for public exposure of their evidence in a court is a constraint upon people’s behaviour. This was one of the significant rationales given by both Hale and Bentham. Once in court the potential for public exposure and scrutiny of their evidence is one factor encouraging them to take their oath or affirmation to tell the truth seriously.
A further beneficial consequence of the open justice principle is that it serves as a constraint upon the exercise of executive power. The public exposure of prosecutorial and other government decisions and their consequences is a significant constraint upon those who wield executive power. The potential for the abuse of a government’s power to prosecute is great and public exposure of prosecutorial decisions is a key mechanism encouraging the reasonable and fair exercise of that power: R v Collaery (No 7) [2020] ACTSC 165 at [127]. More generally, the conduct of governments in court proceedings and the conduct of governments who are potentially subject to court proceedings is constrained by the fact that those proceedings will, with few exceptions, have to be conducted in public.
All of these consequences flowing from courts being open to the public and judges being required to give publicly available reasons have been expressed in positive terms. However, the true utility of the principle can be tested by imagining the absence of openness of the sort described. In those circumstances the potential for abuses of judicial power to flourish would increase in proportion to the loss of public access to the proceedings. Further, because of the removal of constraints upon governments, other parties and others involved in the court process, abuses and misconduct arising from an absence of public scrutiny would also flourish.
Thus, the open justice principle can be seen as fundamentally important to the broad‑based acceptance of the institutional legitimacy of the administration of justice, a matter of fundamental importance to society and, as Spigelman CJ pointed out, the economy: James Spigelman, ‘Seen to Be Done: The Principle of Open Justice – Part II’ (2000) 74 Australian Law Journal 378 at 380.
There are a variety of exceptions to the principle of open justice. These exist where there are competing public policy considerations relevant to the exercise of judicial power. The common law recognised a number of such circumstances (usefully summarised in Hogan v Hinch at [21]):
(a)where public evidence of secret technical processes would destroy the subject of the whole matter in dispute;
(b)disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence;
(c)public identification in a prosecution for blackmail of the name of the blackmailer’s victim;
(d)in certain circumstances the name of a police informant or the identity of an undercover police officer;
(e)where there are exceptional and compelling considerations going to national security; and
(f)where the court is exercising jurisdiction in relation to wards of the State and mentally ill people.
While these categories are not closed, they will not lightly be extended: Hogan at [21].
There are also a significant number of statutory exceptions. These have been enacted in order to achieve distinct public policy goals. Examples include the requirement that proceedings involving children be conducted in closed court: Court Procedures Act 2004 (ACT) s 72, provisions for the protection of national security so as to allow prosecutions relating to espionage or disclosure of national security information to proceed: National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth); Criminal CodeAct 1995 (Cth) s 93.2, provisions permitting or requiring closure of the court and affecting the capacity to publish the names of witnesses in certain categories of proceedings: Evidence (Miscellaneous Provisions) Act 1991 ss 50, 73-74. In addition to specific areas where the legislature has determined that public policy requires qualification of the open justice principle, it is routine for courts to have general statutory powers permitting constraints on disclosure of matters occurring in court, for example, Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111.
These common law and statutory exceptions reflect that open justice comes at a cost and sometimes the net benefits of open justice will be seen to be outweighed by other public policy considerations which are consistent with the proper administration of justice. The costs of open justice include costs to the privacy and reputation of individuals, the potential cost to the fairness of trials, the risk of sensationalisation and distortion of what occurs in court, and risks to the security of individuals and governments: Beverley McLachlin “Courts, Transparency and Public Confidence – To the Better Administration of Justice” (2003) 8 Deakin Law Review 1. Where the balance falls between the undoubted benefits of open justice and its costs is a legitimate subject for debate. Further, where the balance falls may change over time. Modern technology has reduced the technical and physical barriers to mass collection and distribution of information and this changes the consequences of the application of the open court principle, potentially increasing the costs to people’s privacy or reputation without a corresponding increase in the discipline imposed upon the judicial system. Similarly, it may be affected by the extent to which media organisations conduct themselves responsibly and the extent to which media reporting is seen to be advancing the public interest in a manner which is consistent with the values of fairness and impartiality underlying the proper administration of justice.
It is in this context that the role of the media must be assessed. Notwithstanding the common invocation of high-minded principles by media organisations when issues of openness of court proceedings are discussed, it must be remembered that media organisations are businesses and have at base a commercial motivation for obtaining information not necessarily driven by those principles. As Spigelman CJ observed in Ryde at [76]:
When the media come before the court invoking high-minded principles of freedom of speech, freedom of the press or the principle of open justice, it is always salutary to bear in mind the commercial interest the media has in maximising its access to private information about individuals.
Writing extra-judicially, Spigelman CJ said that such high-minded rhetoric on the part of the media too often “sounds like self-serving cant”. Rather he suggested that it is a situation in which access by the media to court proceedings may be justified because the public interest is served by the media pursuing its own interests: Spigelman, ‘The Principle of Open Justice’ at 158.
The principle of open justice informs the approach taken to obtaining access to documents used in court proceedings. That is particularly significant in an era where, as a result of ready printing of material and desires to achieve efficiency, there is, to a greater extent than in the past, reliance upon documentary material in court that is not read out so as to make what is occurring during the proceedings understandable to a lay observer. In that situation, access to the documents deployed during the course of proceedings which provide the foundation for the exercise of judicial power is also very significant in order to achieve the underlying purpose of the open justice principle.
Even where there is not, as a result of the common law or statute, a partial exclusion of the openness of court proceedings required by the open justice principle, countervailing considerations may be taken into account in determining, in any particular case, issues relating to public access to evidence and documents in court proceedings. Examples of such countervailing considerations include the fact that allegations made in proceedings are, at a particular point, unsworn, untested or hearsay: Ryde at [72] and the fact that the disclosure of the material could cause harm to individuals even if any report of the material was fair and accurate: Ryde at [73]-[74].
Grounds 5.1 and 5.2
These grounds of appeal assert that the primary judge ought to have found that the open justice principle did not apply or alternatively that if she did find that the open justice principle did not apply, she erred in allowing access to the application and affidavits. The features identified as indicating that the open justice principle did not apply were: that the affidavits were only ever received in closed court at an ex parte hearing; they were never read in open court; and that the proceedings were resolved in a manner that meant that the content of the affidavits were untested. These grounds of appeal tended to treat the open justice principle as though it was a legal rule rather than a normative principle reflecting accepted values within the legal system.
The fact that these two grounds are put in the alternative on the basis that the primary judge either applied or did not apply the open justice principle arises from some lack of clarity in her Honour’s reasons. The appellant placed particular reliance upon what was said by her Honour at [103]. In that paragraph of her reasons (set out above at [16]), her Honour referred to the Johnston affidavits having “not been used or deployed in open court” such that “the principle of open justice is not thereby necessarily engaged”. However, her Honour then went on to say that this did not of itself determine the matter and the case must be determined “on the particular facts of the case”. Although her Honour’s expression in this paragraph, when considered in isolation, might be understood as expressing a conclusion that the open justice principle had no application, it is apparent from the reasons before and after this paragraph that in fact her Honour did have regard to the open justice principle and its application to the present circumstances. What her Honour appears to have been saying in [103] is that while the use or deployment of affidavits in open court would clearly engage the open justice principle, the absence of such use is not determinative and the application for access must be considered in light of all of the circumstances of the case. Those circumstances include the existence of the open justice principle.
Because her Honour does appear to have considered the open justice principle to be applicable notwithstanding that the affidavits were not used or deployed in open court, the relevant ground of appeal is 5.1. The fundamental contention put on behalf of the appellant underlying this ground was that the open justice principle is only engaged when the material under consideration has been deployed in open court. As a consequence, the appellant submitted that the principle had no application where the affidavits were used or deployed in closed court at an ex parte hearing, were never read in open court and the proceedings resolved without any testing of the affidavit material.
The contention that the open justice principle had no application cannot be accepted.
First, it must be borne in mind that, as pointed out above, the open justice principle is a principle rather than a rule of law. Having regard to the range of purposes which the principle gives effect to, it is an overly ambitious claim that the principle has no application in circumstances where affidavits have been used or deployed but not in open court. The merits of open justice – and hence the application of the principle – do not disappear once a court is closed. Rather, the fact that a court is closed and the reasons for that closure are part of the circumstances in which the open justice principle must be considered. In many cases the purposes of the open justice principle will be even more important where there has been a substantial exercise of judicial power other than in open court: Deputy Commissioner of Taxation v Lee [2022] FCA 1307 at [5]. That is particularly so where, as here, no reasons have been given for that exercise of judicial power.
Second, the terms of r 2903 do not compel a distinction such as that contended for by the appellant. No distinction is drawn in the Rules between open or closed court. Documents relied upon in ex parte proceedings are identified (in r 2903(2)(m)) as a class of document in which leave to obtain access is required. But that leave requirement does not make the open justice principle irrelevant. Rather, it invites consideration of it as part of the application for leave.
Third, the reasons for closure of the court in the present case do not compel a conclusion that the open justice principle is excluded. The closure of the court by the primary judge was statutorily permitted and, upon application by the Director, required for the purpose of ensuring the efficacy of the restraining orders made and preventing dissipation of the assets that were to be the subject of the orders. That is made clear by the terms of the explanatory statement quoted by the primary judge (see [15(f)] above). The purpose of closure of the court was not to maintain, on an ongoing basis, secrecy of the proceedings or the orders made. By the time of the application for access to the documents, the purpose of the closure of the court had been spent and, as a consequence, the making of orders for access was not opposed by the Director. Those circumstances do not indicate any ongoing basis for exclusion of the open justice principle.
Fourth, the appellant’s contention is not supported by authority. The appellant relied upon Baptist Union of Queensland – Carinity v Roberts [2015] FCA 1068; 241 FCR 135 and Ryde. In Baptist Union, Rangiah J, having referred to the open justice principle, said at [28]:
A further limitation is that the principle of open justice is engaged only when the relevant material is “used” or “deployed” in open court: John Fairfax Publications Pty Ltd v Ryde Local Court per Spigelman CJ at [32], [65], Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 at [26] per Sackville J.
The paragraphs from Ryde cited in Baptist Union do not support the proposition that the open justice principle only has application if the material is deployed in open court. Paragraph [32] of Ryde was part of a passage addressing whether there was a common law right to obtain access to a document simply because it was filed in proceedings and held as part of a court record. His Honour indicated that he would subsequently consider the position once the material was deployed in open court. Paragraph [65] then identified that the principle of open justice is not engaged merely by the filing of proceedings and that it is “only when relevant material is used in court” that it becomes relevant. The limiting principle that could arise from what is said in these paragraphs is that it is the use by the court rather than the filing of the document with the court that engages the open justice principle. That is made clear by his Honour’s reliance upon the decision of Slicer J in R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283 where the mere filing of a document was not considered to be sufficient to make it a public document available for inspection. Therefore, these passages from Ryde do not stand for the proposition that only use in open court will enliven the principle.
In Seven NetworkLtd v News Ltd (No 9) [2005] FCA 1394 at [26] Sackville J accepted a submission which elided the contents of [32] and [65] in Ryde so as to accept the proposition that “the principle of open justice is not engaged at the time of filing of proceedings, but only when the relevant material is “used” or “deployed” in open court”. For the reasons just given, that is a proposition for which Ryde does not stand. In the context of the application before him, which related to proceedings in open court, the emphasis in the paragraph must be understood to have been on the material having been used or deployed rather than on the distinction between open and closed court. For these reasons, the authorities relied upon by the appellant do not support the contention that the open justice principle has no application where the documents are used or deployed in closed court.
On the other hand, there are authorities which illustrate the application of the principle to proceedings that have not been in open court or where the opposing party has not been present.
ASIC v Rich [2001] NSWSC 496; 51 NSWLR 643 involved a grant of access to affidavits relied upon by the plaintiff at an ex parte application seeking interim orders restraining certain defendants from dealing with their assets or leaving the country. The evidence in support of the application was referred to in open court “in some detail”. By the time of the return date, undertakings had been given by some of the defendants and the proceedings were dismissed by consent. Austin J said (at [26]) that the importance of the court being accountable for what it has done is such an important consideration that there must be some specific or obvious prejudice in order to refuse access to affidavits relied upon at an ex parte hearing which results in the court granting significant relief. Although the case does not deal with evidence given in closed court, the application in which the evidence was deployed was made ex parte and the case does emphasise the balancing process undertaken between the principle of open justice and grounds of opposition to access in a particular case which, although it involved a significant exercise of judicial power on an ex parte basis, was consensually resolved.
Deputy Commissioner of Taxation v Shi (No 2) [2019] FCA 503 was a case in which an order was sought under s 37AF of the Federal Court of Australia Act 1976 (Cth) preventing media access to exhibits admitted into evidence in closed court ex parte proceedings seeking freezing orders. Section 37AE of the Act required specific consideration of the open justice principle. Steward J rejected a contention that more was required than admission into evidence for it to have been “deployed” or “used” in the proceedings. In relation to the fact that the affidavits were read in closed court on an ex parte application, his Honour indicated (at [25]) that the closure of the court did not alter the significance of their use. He pointed out that the court had been closed because of pending police raids and the imminent service of departure prohibition notices and that upon completion of those steps there was no longer any need for secrecy. He also said (at [26]) that the affidavits were read in ex parte proceedings made no difference to the application of the open justice principle.
Deputy Commissioner of Taxation v Lee [2022] FCA 1307 involved an application for access to documents on a court file and a responsive application for a suppression order. Freezing orders had been obtained ex parte from the duty judge. In that hearing affidavit evidence, written and oral submissions and a chronology were provided to the duty judge. Bromwich J, who dealt with the subsequent application for access, considered (at [4]-[5]) that the earlier hearing, which had taken place online, was arguably not a hearing in open court but concluded that the fact that it may have taken place not in open court or ex parte made adherence to the open justice principle even more important as a means by which the administration of justice was able to be made more transparent. Bromwich J refused the application for a suppression order and granted access to the documents.
There was no error on the part of the primary judge in applying the open justice principle when making the discretionary decision required by r 2903. Therefore, these grounds of appeal are not established.
Grounds 5.3 and 5.4
These grounds contend that the primary judge erred by relying upon statements of principle concerning the application of the principle of open justice where that principle had no application to the proceedings or the affidavits and by failing to consider the various matters set out in ground 5.4.
As articulated in the appellant’s written submissions, ground 5.3 was targeted at the reliance by the primary judge at [106] of her reasons upon the decision of Austin J in Rich. That part of her Honour’s reasons referred to Austin J’s rejection of an argument based on prematurity and recorded that there must be some specific or obvious prejudice for the court to refuse access to affidavits relied upon in an ex parte hearing which results in the court granting significant relief. This reliance was said to be misplaced because the decision of Austin J related to very recent open court proceedings that had current ongoing public interest in relation to the consequences of a recent corporate collapse. Further, it was said to be contrary to the approach taken by Barrett J in relation to a subsequent application in the same proceedings: ASIC v Rich [2002] NSWSC 198.
Neither of these points have merit. Her Honour made reference to Austin J’s decision as supporting the proposition that even though the allegations were untested, access might still be granted. The point of principle articulated by Austin J was that notwithstanding that the allegations were untested, it was important that “the basis for the making of the [ex parte] orders be available so that the court is accountable for what it has done after it has considered information provided to it”: at [26]. That proposition is not affected by the recency of either the proceedings or the events underlying it.
The decision of Barrett J in Rich does not reflect “a materially different approach” to that adopted by Austin J. Rather, the subject matter of the application before Barrett J was relevantly different. In that case access was sought to an amended statement of claim that had just been filed by the plaintiff. No defence or other steps had been taken following the filing of the amended claim. Barrett J expressly distinguished the circumstances that he faced from those addressed by Austin J and other cases saying (at [11]):
In each of those cases, the question at hand concerned access to documents that had been used and relied upon in a court hearing which had taken place or was in progress. Those cases thus involved in a clear and direct way the principles already mentioned concerning open justice in the course of court hearings.
As a consequence, the fact that there may have been a different approach to the question of access to untested allegations taken by Barrett J and a different outcome in the application before him, does not detract from the appropriateness of the primary judge’s reliance upon the decision of Austin J. This was not a ground which permitted the wholesale reconsideration of the primary judge’s decision.
Ground 5.4 asserts a failure to consider certain identified matters. In order to succeed on this ground, it would be necessary for the appellant to establish that the particular matter was a mandatory relevant consideration and that her Honour gave no consideration to that issue. However, r 2903 itself does not expressly identify any mandatory relevant considerations. Given the lack of express identification of such considerations in the rule, the matters required to be considered will depend, to a large extent, upon the submissions made during the application for the grant of leave. The primary judge is unlikely to have committed an error in the exercise of her discretion by failing to consider a particular contention if that was not the subject of submissions to her. Further, the ground could not be made out if her Honour gave some consideration to that contention or if, having done so, gave the matter less weight than the appellant would have wished.
Unhelpfully, the submissions of the appellant were not presented by reference to the matters identified in the grounds of appeal. For the reasons given below, none of the matters identified by the appellant demonstrate error on the part of the primary judge.
Ground 5.4(a) – The affidavits were received in closed court only: The primary judge clearly gave consideration to this issue. That was fundamental to the submissions made to her Honour and clearly considered by her Honour when addressing the Director’s submission in the way that she did at [103].
Ground 5.4(b) – The proceedings had resolved pursuant to consent orders, without admissions, without any testing of the content of the affidavits and without any further hearing: The primary judge also considered the uncontested fact that the proceedings had resolved pursuant to consent orders and without admissions and, as a result, there had been no testing of the contents of the affidavits. Her Honour made specific reference to the settlement of the proceedings at [3], made reference to the lack of testing of the affidavit material at the hearings on 26 March 2021 and 10 May 2021 at [39] and specifically addressed the respondent’s submission that untested allegations were not to be shielded from public view at [104]. As a result, this ground cannot be made out. In those circumstances it is not necessary to consider further the difference of opinion expressed in decisions of single judges about possible prematurity of disclosure of court documents such as pleadings articulated by Rares J in Llewellyn v Nine Network [2006] FCA 836; 154 FCR 293 at [23].
Ground 5.4(c) – The content of the affidavits was critical of the appellant: No specific submissions were put in support of this aspect of ground 5.4. Having regard to the nature of the proceedings and the articulated reasons for seeking access to the affidavit, it is obvious that her Honour took into consideration the fact that evidence in the Johnston affidavits would be adverse to the interests of the appellant. That is apparent by her summary of the media reporting relating to the proceedings at [16] and the manner in which her Honour addressed the issue of the allegations being untested at [104]-[106].
Ground 5.4(d) – The furthering of the objects of the Court Procedures Rules in achieving the quick, cheap and just disposition of the proceedings; and Ground 5.4(e) – The public interest in the settlement of litigation: The appellant submitted that by resolving all issues in the manner that they did, the parties aided the administration of justice, fulfilling the main purpose of the Court Procedures Act and thereby furthering the public interest. The main purpose of civil procedure provisions of the Court Procedures Act and the Court Procedures Rules is stated in s 5A(1) of that Act to be the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Her Honour specifically referred (at [49]) to the submission made by the appellant to her that the settlement had resolved the proceedings in a manner consistent with s 5A. That her Honour did not make specific reference to that submission under the heading “Consideration” may reflect the fact that she gave it little weight in determining the appropriate application of r 2903 but that is insufficient to establish the ground of appeal.
Ground 5.4(f) – The legitimate expectation by settling a case of avoiding adverse publicity: The submission made on behalf of the appellant was that “by resolving all issues privately the persons involved would have, and were entitled to have, a reasonable expectation that the hitherto confidential subject matter of their dispute would not be publicly ventilated in the media”. That submission cannot be accepted. It is true that the proceedings were resolved by consent and that the negotiations leading to that consent are not public. However, in circumstances where the jurisdiction of the court had been invoked and exercised by the making of substantial orders, there is no legitimate expectation that the subject matter of the dispute would not be publicly ventilated in the media. In order for there to be such an expectation there would need to be something more, either an order made that would prevent publication of some or all matters relevant to the proceedings or some term of settlement that would affect public disclosure of the subject matter of the proceedings. In the absence of such an agreement or order, there could only be a hope on the appellant’s part that public knowledge of the proceedings would be less than if it proceeded further on a contested basis. In the present case, there was no evidence of any agreement between the Director and the appellant that would restrict any disclosure of the subject matter of, or evidence in, the proceedings and there was no order sought by the appellant or made by the court that would inhibit publication of any report of the proceedings.
Finally, the appellant did not demonstrate that this submission had been made to the primary judge.
The appellant’s submissions on this ground do not demonstrate any error on the part of the primary judge.
Ground 5.4(g) – The facilitation of the objects of the Confiscation of Criminal Assets Act 2003 (ACT): The submission of the appellant was that “publicly vilifying” those who facilitated the operation of the Act potentially undermines the proper administration of that Act, presumably by providing a disincentive for such assistance. This submission was speculative in that it assumes that there will be “vilification” of the appellant. Further, it assumes that settlement of the proceedings involved assistance to authorities that might be disincentivised. The factual basis for this was not established. Given that the Johnston affidavits were not before this court, it is not possible to say whether or not the settlement involved a favourable or unfavourable outcome for the Director or the appellant. It is therefore not possible to say that reaching the settlement involved some “assistance” which might be disincentivised if access to the affidavits was granted to the respondent.
In any event the appellant did not demonstrate that this was a matter distinctly raised before her Honour. Having regard to the speculative nature of the contention and the failure to demonstrate that it was distinctly raised, this ground does not demonstrate any error on the primary judge’s part.
Ground 5.4(h) – The purposes for which access was being sought by the first respondent: The appellant characterised the purposes for which the respondent sought access as being “collateral to the proceedings themselves, involving a likely public vilification of [the appellant], and not simply a fair reporting of what are now extant [sic] and not publicly interesting or important applications”. The appellant submitted that if the parties would be prevented by Harman principles from using the material for such a collateral purpose, then the respondent should not be allowed to do so.
The appellant’s submission was put at a high level of abstraction. In the circumstances of the present case, it is not at all clear that the Harman undertaking would have operated in relation to the affidavits in question. They were only served on the appellant after their use in court. It was not explained how, in those circumstances, there would have been a Harman restriction on the appellant using material in the affidavits. It may be accepted that the purposes of the respondent in obtaining access to the affidavits is collateral in the sense of being for the purpose of publication of news and information for profit rather than the proper administration of justice. However, that purpose does not render the granting of access inappropriate. The open justice principle operates on the basis that public exposure of the performance of the judicial function is beneficial. In the case of a media organisation, as pointed out above at [51], the consequence of the open justice principle is that it may pursue its own interests made possible by the openness of court proceedings and the net effect of that freedom is to advance the public interest in scrutiny and public understanding of court proceedings.
Ground 5.4(i) – The nature and extent of potential adverse consequences that were likely to result to the appellant: This ground was not specifically addressed in the appellant’s written or oral submissions. It is not clear which potential adverse consequences are relied upon. It may relate to the potential for subsequent prosecution of the appellant notwithstanding that the Director had undertaken not to prosecute her. If that is the point made by this ground then her Honour plainly considered that issue when she made specific reference to the possibility of future criminal proceedings: [97], the evidence that the Director would not prosecute: [98], the fact that there was only a “theoretical possibility of prosecutions elsewhere”: [108] and that the appellant had not specifically identified or developed the submission that prejudice would be suffered in circumstances where members of the public understand the difference between allegations made in court and findings made by courts: [98], [108]. If this ground does not relate to potential criminal proceedings and relates to something else then the appellant has failed to demonstrate that the primary judge did not consider a matter that was put to her as being relevant.
Ground 5.5
This ground asserts an error on the part of the primary judge in the “finding” of the primary judge that the appellant was not at risk of any future prosecution. The appellant contends that any assurances of the Director could have no bearing on prosecutorial decisions of other prosecuting agencies. The appellant submitted that the risk was real and “would be materially exacerbated should a media campaign be encouraged through its utilisation of the presently protected material”. Nothing in the submissions demonstrates that her Honour erred in concluding that prosecutions other than by the Director were simply “a theoretical possibility of prosecutions elsewhere without specifically identified or developing prejudice in that regard”: [108]. Clearly there is a theoretical possibility that public exposure of evidence relied upon to secure orders against the appellant and other associated entities may have the effect of encouraging appropriate prosecutions to be brought. If that public exposure occurs, in part, through fair reporting of court proceedings then that could not be said to be an outcome inconsistent with the proper administration of justice or the public interest generally. Speculation in the submissions made on appeal implying that prosecuting agencies may act inappropriately in response to reports of the proceedings against the appellant does not demonstrate any error on the part of the primary judge in dealing with the matter as she did. This ground is not made out.
Orders
The orders of the Court are:
1.Appeal dismissed with costs.
2.The pseudonym orders made by McCallum CJ on 28 September 2022 are discharged.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 21 February 2023 |
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