FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 8) [2017] FCA 233

ORDERS

THE COURT ORDERS THAT:

1.    The email sent by the Fourth Respondent’s present solicitors, Bilias & Associates, to the Court on the afternoon of 7 March 2017 be deemed to be an application, made pursuant to liberty to apply reserved to the parties by paragraph 8 of the Court’s order of 16 October 2015, for removal of the restriction on the publication in full of the Court’s reasons for judgment dated 16 October 2015.

2.    Bilias & Associates also be deemed by that email to have given notice of acting for the Fourth Respondent in the present proceedings with the address for service being the principal office of that firm (including email address), as recorded in that email.

3.    The forwarding by the Registrar, by direction of the Court on 8 March 2017 and the consequential receipt by the solicitors for the Applicant of that email on 8 March 2017 be deemed to be service on the Applicant of that interlocutory application.

4.    The interlocutory application as so served be heard in chambers on the papers on 8 March 2017.

5.    The restriction on publication of the Court’s reasons for judgment dated 16 October 2015, imposed by paragraph 7 of the Court’s order of 16 October 2015 be removed.

6.    A copy of the Court’s reasons for judgment dated 15 October 2015 in unredacted form be published forthwith, including by being posted on the Court’s website.

7.    There be no order as to costs.

8.    A sealed copy of this order be prepared forthwith and furnished by the Registrar to the solicitors for the Applicant and the Fourth Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    On 16 October 2015, I made an order the effect of which was to release on conditions Mr Peter Clarence Foster, the Fourth Respondent, from a term of imprisonment for contempt of this Court, pursuant to an order which I made in those proceedings on 24 October 2013: see as to the order for release: Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (2015) 235 FCR 563 and, as to the occasion for his being imprisoned, Australian Competition & Consumer Commission v Chaste Corporation Pty Ltd (No 6) (2013) 223 FCR 426.

2    In making the order which provided for Mr Foster’s release from that imprisonment, I also ordered, materially:

7.    The Court’s reasons for judgement in respect of the early discharge application be published in full solely to the parties to that application and their respective legal advisers. Save to the extent that the early discharge application is on the Court file in a redacted form and save to the extent to which those reasons for judgement are separately published by the Court in a redacted form, no person is, without the leave of the Court or a judge, to publish the early discharge application or those reasons for judgement.

3    The occasion for that restriction was a conclusion on my part that to publish the reasons for judgment in full, other than to the parties, was, in the circumstances then prevailing, contrary to the public interest.

4    On the afternoon of 7 March 2017, a firm of solicitors who now act for Mr Foster, Bilias & Associates, whose principal office is in Sydney, sent to the Queensland District Registry’s general email address but not to the solicitors on the record for the Australian Competition and Consumer Commission (ACCC) an email the material parts of which state:

We act for Mr Peter Clarence Foster who is making a bail application to the NSW Local Court on Thursday 9 March 2017.

During the course of that application we wish to draw the attention of the Court to the judgement of his Honour on 16 October 2015. (QUD 252 of 2001 on 16 October 2015 cited at [2015] FCA 1103)

His Honour made an order on 16 October 2015 that paragraphs 42 – 57 of that judgement should not be published without leave.

Subsequently in the media in Queensland and beyond and against the interest of our client, matters relating to the subject matter of his Honour’s reasons have been published. The trial at which Mr Foster is to give evidence has not yet been held. It is the view of Counsel to appear for Mr Foster that the Court making the bail decision should receive the unredacted version of his Honour’s judgement. We respectfully seek his Honour’s leave to do that.

5    The registry then drew that email to the attention of my associate.

6    The solicitors for Mr Foster ought to have filed an interlocutory application pursuant to the liberty to apply reserved both to Mr Foster and to the ACCC by the Order made on 16 October 2015. Further, that application ought to have been made on notice to the ACCC and supported by an affidavit. There is though an urgency about the need for a decision, arising from an application for bail to be made tomorrow by Mr Foster in the New South Wales Local Court. In a matter touching, potentially at least, upon personal liberty, Mr Foster ought not be prejudiced by the ignorance of his solicitor with respect to practice and procedure, providing that the requirements of procedural fairness can be observed. The lapses in practice and procedure by Mr Foster’s solicitors can be remedied by appropriate deeming orders.

7    The procedural fairness requirements have been observed by the forwarding by direction of the Court of the email to the ACCC’s solicitors, confirmation of the receipt by them of that email and the allowing of a reasonable time for a response. Those solicitors, with commendable attention to the exigencies of the situation, have sought and obtained instructions from the ACCC in relation to the application. The resultant submission to the Court on behalf of the ACCC, also conveyed to those acting for Mr Foster, is, “The ACCC does not wish to make any submission in respect of Mr Foster’s application.”

8    Much is encapsulated in this considered response on behalf of the ACCC. In the absence of an objection by the ACCC, I am prepared and do act upon the informal way in which facts supporting the application have been placed before the Court. Further, had there been any circumstance relating to prejudice to the impending trial in which Mr Foster is to give evidence, arising from a removal, in whole or in part, of the publication restriction ordered on 16 October 2015, I should have expected that this would have been drawn to the Court’s attention by the ACCC, or at least a submission made that, in the circumstances which had later transpired, notice of Mr Foster’s application should be given to the relevant Director of Public Prosecutions.

9    The occasion for the making of the restriction lay in a public interest in not prejudicing a then impending investigation into a very serious crime. It is apparent now that the investigation has matured into the presenting of an indictment alleging the commission of the offence which was the subject of investigation. The trial is yet to be held. Mr Foster is to be a witness at that trial.

10    It should now be revealed that Mr Foster was an informer in respect of the investigation. His actions in providing information to investigating officers were, as the redacted portions of the judgment of 16 October 2015 reveal in detail, highly influential in my deciding that he ought to be released from imprisonment forthwith.

11    That Mr Foster was an informer, since the making of the Orders of 16 October 2015, been reported in the media. It would, of course, been a serious contempt for any person to have published without leave the redacted portions of the judgment. But it does not at all follow from the fact that there have been reports that the source of the information was the redacted portions of the judgment. That source is just not revealed on the evidence to hand.

12    What is revealed, by inference, is a legitimate forensic interest on Mr Foster’s part, in the content of seeking to make a case for bail, in having confirmed, by being able to refer the Local Court to the judgment in unredacted form of his role as an informer and the benefit which he gained from that. That he may thereby be at some risk while held in custody would doubtless feature in a bail submission. The evaluation of that risk in the context of other considerations pertinent to bail is not for me but for the magistrate constituting the Local Court.

13    Mr Foster’s forensic interest is one consideration telling in favour of removing the publication restriction. Another is that the accused in the pending trial has a legitimate forensic interest in knowing that a witness who is apparently to give evidence against him has received a benefit from having been an informer. The precise nature of that benefit, in relation to the contempt charge for which Mr Foster was sentenced, is revealed only in the presently redacted portions of the judgment. The accused’s interest is not a private one, but is one related to the receipt of a fair trial. There is a public interest in that. No countervailing public interest has been raised by the ACCC. Nor is one otherwise apparent to me.

14    Circumstances have therefore changed since 16 October 2015. There is no longer, in my view, good reason to maintain the publication restriction. To the contrary, there is good reason to remove that restriction. There will be an order accordingly.

Associate:    

Dated:    8 March 2017

SCHEDULE OF PARTIES