FEDERAL COURT OF AUSTRALIA

Hogan v Australian Crime Commission [2009] FCA 761

PRACTICE AND PROCEDURE – stay of orders of Full Court of Federal Court of Australia – special leave to appeal to High Court of Australia – whether the prospects are not insubstantial – s35A(b) Judiciary Act 1903 (Cth) – dissenting judgment – nature of loss if proceedings not stayed – balance of convenience

PAUL HOGAN v AUSTRALIAN CRIME COMMISSION, THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION and NATIONWIDE NEWS PTY LIMITED AND JOHN FAIRFAX PUBLICATIONS PTY LIMITED

NSD 1503 of 2008

MOORE J

24 JUNE 2009

SYDNEY

THE COURT ORDERS THAT:

1.      Order 4 made by his Honour Foster J on 12 September 2008 is vacated.

2.      Order 1 made by Emmett J on 29 August 2008 insofar as that order vacates Order 4 made by Emmett J on 1 August 2008 be stayed:

         (a)     In the first instance for 21 days; and

(b)     If an application for special leave to appeal to the High Court of Australia is filed by the Appellant within that period, then until further order of the High Court of Australia.

3.      That orders 2 and 3 made by the Full Court on 19 June 2009 be stayed (with the intention that Order 1 made by Emmett J on 29 August 2008 insofar as that order vacates Order 4 made by Emmett J on 21 August 2008 be stayed)

(a)     In the first instance for 21 days; and

(b)     If an application for special leave to appeal to the High Court of Australia is filed by the Appellant within that period, then until further order of the High Court of Australia.

4.      The costs of this application be the interveners’ costs in the cause of the application for special leave.

THE COURT NOTES:

1.   The undertaking by the appellant to make application for expedition for the hearing of an application for special leave.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

MOORE J:

1                          This judgment concerns the question of whether the orders of a Full Court (Hogan v Australian Crime Commission [2009] FCAFC 71) and related orders should be stayed pending an application by the appellant, Mr Hogan, for special leave to appeal against the judgment of the Full Court.  I have decided a stay order should issue.

2                          My reasons may be briefly stated.  Firstly, it appears not to be an issue that, if a stay order is not made, then the subject matter of the litigation will be destroyed.  Self-evidently that is so.  The effect of the Full Court's judgment is to remove the protection afforded by an order under s 50 of the Federal Court of Australia Act 1976 (Cth) which had earlier applied to documents the appellant says should remain confidential.

3                          The most significant area of debate between the parties concerns the prospects of any special leave application succeeding.  I think Mr Kunc has fairly stated the principle as involving consideration of whether the prospects are not insubstantial: cf Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Joye v Sheahan (1996) 21 ACSR 71; Re New Tel Ltd (2005) 54 ACSR 554. 

4                          Whilst there is always difficulty in a judge of this court, or any other intermediate appeal court, anticipating how any application for special leave might be determined, I accept that, in this case, there may be perceived to be an issue enlivening s 35A(b) of the Judiciary Act 1903 (Cth), namely that the application concerns an issue involving the interests of the administration of justice in this particular case.

5                          It is true that the Full Court, by majority, has determined that there was no miscarriage of the discretionary power of the primary judge to set aside the order under s 50.  There is, however, a lengthy and reasoned judgment of a member of the Full Court reaching the opposite conclusion and, in those circumstances, there must be some prospect that the application for special leave will attract the grant of leave.  At least I cannot conclude that there are not insubstantial prospects of the grant of special leave.

6                          The other area addressed by counsel for the interveners (media interests) concerns the nature of the loss the appellant might suffer if, effectively, the orders of Emmett J are not stayed.  It is true that the matter identified by counsel, namely embarrassment to the appellant, cannot be put as highly as a loss in the orthodox sense.  But that is not, in my opinion, sufficient reason to refuse the stay in the circumstances of this case.  The balance of convenience, as often is the case, is finely balanced and points in competing directions. 

7                          I accept that there is a public interest attending the question of whether the information in the documents should remain confidential and the broader public interest in the publication of the information, if it should not remain confidential, but, in the circumstances, I propose for these reasons to grant a stay.

Associate:

Dated:         21 July 2009