FEDERAL COURT OF AUSTRALIA

Obeid v Australian Competition and Consumer Commission [2018] FCA 1713

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application, as agreed or taxed.

3.    The reasons for judgment in Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019, without redactions, be published forthwith.

4.    The reasons for judgment in Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243 be published forthwith.

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

REASONS FOR JUDGMENT

JAGOT J:

1    These reasons for judgment explain why I have decided that the applicant should not be granted leave to appeal against an order made by the primary judge on 20 August 2018 dismissing the applicant’s interlocutory application seeking an interim suppression order pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth).

Background

2    The primary judge gave reasons for judgment explaining the dismissal of the interlocutory application in Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243 (itself subject to an interim suppression order to enable the application for leave to appeal to be determined).

3    Section 37AF(1) enables the Court to make a suppression or non-publication order. To the extent relevant, s 37AG(1)(a) provides that such an order may be made on the ground that “the order is necessary to prevent prejudice to the proper administration of justice”.

4    As the primary judge explained in No 4 at [1] and [2], on 6 July 2018 he dismissed the substantive proceeding brought by the Australian Competition and Consumer Commission (ACCC) against the respondents. He gave the parties a copy of his reason for judgment for so doing: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019. The seventh respondent, Moses Obeid, applied for an interim suppression order to enable a reasonable opportunity to consider the reasons so a decision could be made whether or not to apply for a further interim suppression order pending the determination of a criminal trial in which he is one of the accused and which is fixed for hearing in May 2019. The primary judge made the interim suppression order on 6 July 2018 to provide the required opportunity to Moses Obeid, which his Honour then extended on 13 July 2018 to enable Moses Obeid’s application for a further interim suppression order to be heard and determined. The primary judge heard the further application on 10 August 2018 and published the reasons for judgment in No 4 and made the orders dismissing the application on 20 August 2018.

5    The primary judge explained in No 4 that Moses Obeid (and others) had been charged with “conspiracy to commit misconduct in public office” in relation to the grant in 2009 of a coal exploration licence in respect of the Mt Penny coal exploration area. The trial of Moses Obeid (and others) is to start on 13 May 2019. Moses Obeid had pleaded not guilty to the offence with which he has been charged: at [16]-[20].

6    At [21] of No 4 the primary judge noted that:

An integral aspect of the Crown case is the allegation that Mr Macdonald misused his official position as Minister for Mineral Resources in order to provide Eddie Obeid and Moses Obeid with confidential information from the Department of Primary Industries. It is also alleged that the Obeids influenced the Expression of Interest (EOI) process in respect of Mt Penny so as to place Eddie Obeid, Moses Obeid and others in the Obeid family in an advantageous position in that EOI process.

7    For Moses Obeid it was put to the primary judge that certain parts of the reasons for judgment in No 3, including factual findings the primary judge had made, would prejudice the preparation and conduct of the upcoming criminal prosecution because of the “considerable overlap between the case run by the ACCC in front of [the primary judge] , both in terms of the issues and the facts, and the case likely to be run by the prosecution at the criminal trial next year”: No 4 at [22]-[23].

8    At [25] the primary judge said:

… I readily accept that there is a very considerable overlap between the subject matter of the proceeding before me and the subject matter of the upcoming criminal trial.

9    On 13 July 2018, the primary judge ordered Moses Obeid to serve relevant material on the Director of Public Prosecutions (DPP) saying that he “intended that the DPP be apprised of Mr Obeid’s suppression order application and that the DPP be given a fair opportunity to come to Court to make such submissions as he may be advised in respect of that application: No 4 at [26].

10    The primary judge continued at [27]:

The DPP did not come to Court. However, there was tendered before me a copy of two letters from the DPP to Mr Soukie, one dated 23 July 2018 and the other dated 31 July 2018 in which the solicitor for the DPP stated the DPP’s attitude to the present application.

11    As disclosed in No 4 at [28] and [29] the DPP did not support Moses Obeid’s application for a further suppression order as “the [criminal] trial is many months away and the jury would be given clear and specific directions not to undertake its own research” and:

As a model litigant, the Crown adheres to the principle of open justice wherever possible. The Crown is of the view that, in the prevailing circumstances, there is no significant risk that the integrity of your client’s trial will be compromised in the event that his application is unsuccessful. The pre-trial applications and the trial are many months away, and any jury will be given clear and specific directions not to undertake its own research.

12    After referring to ss 37AF and 37AG the primary judge referred at [34] to [36] in No 4 to various authorities identifying that the criterion in s 37AG(1) is that “the order is necessary to prevent prejudice to the proper administration of justice”, which has been said to impose a “very heavy” onus: Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438, 442 at [16] cited in Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8].

13    The primary judge noted this in No 4 at [44], which is not contended to involve any error:

It seems to me that I am required to commence my consideration of the present application by paying due regard to the terms of s 37AE. That section requires me to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. That requirement does not inevitably lead to a rejection of applications of the present kind. Nonetheless, the Court is obliged to take into account that the public interest in open justice is a primary objective of the administration of justice.

14    His Honour continued as follows:

47 As noted at [32] and [34]–[36] above, when a suppression order applicant relies only upon the ground specified in s 37AG(1)(a) of the FCA Act, the Court must be satisfied that the making of the order is “necessary” to prevent prejudice to the proper administration of justice. As indicated at [13] above, I am not satisfied that the making of the order sought is necessary to prevent prejudice to the proper administration of justice.

48 I have reached that conclusion for the following reasons:

(a) The DPP has expressed the opinion and submitted to me that there is no significant risk that the upcoming trial of Moses Obeid will be prejudiced by the publication of my Reasons with the consequence that there is no significant risk that his trial will be unfair.

(b) The subject matter of my Reasons has been extensively canvassed in the public domain by journalists reporting on both the evidence given before ICAC and the findings made by ICAC and by journalists reporting on the conduct of the Obeids generally in relation to their involvement in the Mt Penny transaction. All of that material came into the public domain some years ago and remains accessible to searches made by members of the public, including members of the jury in due course. That position will not change. No doubt it can be ameliorated to a large extent by the presiding Judge at the criminal trial giving an appropriate direction to the jury.

(c) The criminal trial is still approximately ten months away. Consciousness on the part of members of the public of my Reasons is likely to have dimmed significantly by May 2019, although I accept, as I must, that the Reasons will be available to members of the jury, subject to any appropriate direction being given by the presiding Judge, by searching the Internet.

(d) The particular matters referred to in the submissions made on behalf of Moses Obeid (as to which, see [39]–[43] above) are all matters which explicitly form part of the Crown case at the criminal trial. It may be that the Crown arguments at the trial will be enhanced in some way by the circumstance that a Judge of this Court has made findings substantially in the terms of the findings sought by the Crown in the criminal trial. However, my Reasons are not admissible at the criminal trial to prove the truth of the matters which I have found and the way in which the jury should deal with my Reasons can and should be the subject of a specific direction given to the jury by the presiding Judge at the criminal trial.

(e) In particular, the jury will no doubt be directed to ignore any credibility findings found by me.

(f) My judgment of 6 July 2018 is now under appeal. Irrespective of whether the appeal has been heard and determined at the time of the criminal trial, the fact that there is an appeal under way and the progress made towards hearing and/or determining that appeal may be matters which should be the subject of a specific direction given to the jury.

15    The applicant contended that [48] of the primary judge’s reasons exposes error or, at the least, raises sufficient doubt about the correctness of his Honour’s decision to justify a grant of leave to appeal (it being plain that, assuming the primary judge’s decision to be wrong, the applicant would suffer substantial injustice should leave to appeal be refused).

16    I accept that if the primary judge’s decision is assumed to be incorrect, the applicant would suffer substantial injustice if leave to appeal is not granted. However, as explained below, I am unable to accept that the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered on appeal.

17    The first proposed appeal ground (should leave be granted) relates to [48(a)] of the primary judge’s reasons in No 4. The applicant focused on his Honour’s words “[t]he DPP has expressed the opinion and submitted to me…”. According to the applicant, the DPP’s letters could not constitute opinion evidence admissible under ss 78 and 79 of the Evidence Act 1995 (Cth) and thus the primary judge should not have taken the DPP’s opinion into account. Further, insofar as the DPP’s views were treated as mere submission by the primary judge, the submission was similarly irrelevant because it was a matter for the primary judge alone to decide if the order was necessary to prevent prejudice to the proper administration of justice.

18    I do not consider that these submissions give rise to a sufficient doubt about the primary judge’s decision such as to justify the grant of leave to appeal It is readily apparent that the primary judge took into account what the DPP had said as a submission. I am unable to see any arguable basis upon which it could be maintained that the DPP’s submission was irrelevant to his Honour’s assessment. Given the DPP’s role in the criminal trial it seems to me that it was not only reasonably open to the primary judge to take steps to ensure that he was aware of the DPP’s views, but it was eminently sensible for him to have done so. Nothing in the text or context of s 37AG(1) indicates to me any arguable proposition that the primary judge was prohibited from taking into account, and giving such weight as he saw fit to the DPP’s communications in deciding if he considered that it was necessary to make a further suppression order to prevent prejudice to the proper administration of justice.

19    The second proposed appeal ground (should leave be granted) relates to [48(b)] of the primary judge’s reasons in No 4. The applicant contended that his Honour gave too much weight to “the fact that proceedings before the Independent Commission Against Corruption [ICAC] had previously been reported notwithstanding the facts that a) the Federal Court is a judicial body, whereas the ICAC is an investigative body and b) the ICAC proceedings took place many years ago, namely 2012”. In the applicant’s words:

…there is a very real distinction between the publishing by the ICAC of findings and the making of findings by this Court. The purposes of the ICAC are set out in s. 2A Independent Commission Against Corruption Act 1988, which demonstrates that the Commission is an investigative body. While the Commission may investigate and report on matters of corruption, such findings as it might make do not have the force of comments made with judicial imprimatur…

…the Court’s findings are made generally, as in the case before Foster J., after affording each party the opportunity to adduce such evidence as it wishes and after hearing submissions from both parties. Findings made in those circumstances are, unsurprisingly, entitled to significant weight. This is all the more the case in circumstances where the findings are made by a highly experienced judge of this Court.

20    Again, I am unable to conclude that these submissions raise a sufficient doubt such as to justify the grant of leave to appeal. The submissions appear to depend on attributing to the potential jurors a detailed knowledge of the differences between administrative and judicial decision-making, as well as the experience of the primary judge. To my mind, this involves speculation which is inherently unlikely. The primary judge’s approach involved a practical and realistic appreciation of the fact that the subject-matter with which he dealt in No 3 had been the subject of extensive consideration in a publicly available ICAC report which itself had generated substantial publicity.

21    To the extent that the applicant’s submissions depended on the proposition that No 3, if published, would be available during the criminal trial, precisely the same circumstance would apply in respect of the ICAC report and the associated media coverage of it.

22    Nor can the applicant’s submission that the judgment in No 3 will increase the potential prejudice if read with the ICAC report be accepted as giving rise to a sufficient doubt about the correctness of his Honour’s decision so as to justify the grant of leave to appeal. For one thing, the ICAC report did not contain mere “allegations” as the applicant would have it. It contained the ICAC’s “findings, opinions and recommendations” and “statements as to [ICAC’s] reasons for any of its findings, opinions and recommendations” as required by s 74A(1) of the Independent Commission Against Corruption Act 1988 (NSW). As such, the attribution to jurors of the view that the ICAC report will be seen as a mere investigation (in contrast to the judgment) is far-fetched. It is not apparent to me that the applicant’s submission exposes any arguable concern with the approach which the primary judge took in [48(b)] of No 4.

23    The third proposed appeal ground (should leave be granted) relates to [48(c), (d) and (e)] of the primary judge’s reasons in No 4. The applicant submitted that the primary judge erred in taking into account the availability of appropriate directions without identifying the manner in which such directions could protect against the prejudice which would arise from publication of the reasons in No 3. As the applicant put it, what direction could be given which did not focus attention on the judgment and thereby “heighten the prejudice to the applicant at his criminal trial”? Accordingly, the applicant contended that “a conclusion that such a direction would ameliorate the prejudice is unreasonable”.

24    Yet again, I am not persuaded that these submissions expose any matter which would give rise to sufficient doubt about the correctness of the primary judge’s decision such as to justify a grant of leave to appeal. If the submission is correct, it would mean that a court could never give an effective submission requiring specific material to be disregarded by a jury (because, on the applicant’s approach, a specific direction would always heighten the prejudice by focusing the jurors’ attention on that which must be disregarded). The submission also assumes, contrary to the required assumption, that jurors will not faithfully adhere to judicial directions. The primary judge’s approach to the capacity of the trial judge in the criminal trial being able to take effective steps as considered appropriate at the time was practical, sensible and discloses no apparently arguable error of any kind.

25    The fact that there is always a residual risk of directions not being adhered to may be accepted. So too may the fact that the modern world, with internet access to current and historical material, presents daily challenges to judges responsible for criminal trials. None of this means, however, that his Honour’s approach to the potential for directions to be made in the criminal trial of Moses Obeid, if seen to be necessary or appropriate by the judge responsible for that trial, involved any apparently arguable error.

26    The fourth proposed appeal ground (should leave be granted) relates to [48(f)] of the primary judge’s reasons in No 4. The applicant submitted that the primary judge erred in taking into account that his reasons for judgment in No 3 are subject to appeal. According to the applicant, to the extent the primary judge considered that this might be able to be subject to a direction in the criminal trial, proposed ground 3 applied. Otherwise the applicant said:

…the status of the proceedings is quite simply irrelevant. Firstly, the mere fact that an appeal is pending does not affect the weight which would attach to his Honour's findings. Although said in a different context, it is submitted that the following comments are apposite: “[J]udgments given by courts are not provisional judgments until they are subsequently confirmed by appellate courts.” [Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 71 ALJR 814 at [12] per McHugh J.] Secondly, there has been no suggestion that any of the findings, which the applicant seeks not to have published, are the subject of challenge on appeal. Accordingly, such findings would stand regardless of whether the appeal succeeds or not. Thirdly, the appeal does not in any way detract from the fact that the findings were made by a judge of the Court.

27    It may be accepted that a judgment subject to appeal is not provisional. The applicant’s submission, however, again makes a number of unwarranted assumptions including about the inefficacy of potential directions to ensure a fair trial and that jurors would take into account the legal status of the judgment one way or another. All that the primary judge was saying is that it may be the case that the judge responsible for the criminal trial considers it appropriate in giving a direction (if such a direction is given at all specific to the judgment) to be aware that the judgment is subject to an appeal. Nothing in that observation exposes any potential error in his Honour’s approach. The fact of the appeal may well be relevant to any direction the judge responsible for the criminal trial decides to make. The primary judge was entitled to take that into account, just as he was entitled to note at [48](d)] that no finding he made, and certainly no finding as to credit, will be admissible in the criminal trial to prove any asserted fact.

28    As the ACCC submitted, the primary judge’s conclusion that it was not necessary for a further suppression order to be made to prevent prejudice to the proper administration of justice was the result of an evaluative process. It is not enough that I might be able to conceive of another judge taking a different view on the same facts. I must hold a sufficient doubt about the correctness of the primary judge’s decision to warrant it being reconsidered on appeal in order to grant leave. I am unable to reach that conclusion. In my view, the applicant has not identified any arguable error by the primary judge such that his order dismissing the applicant’s interlocutory application is attended by sufficient doubt to justify its reconsideration by a Full Court.

29    The application for leave to appeal should be dismissed with costs and the interim suppression orders should cease to operate forthwith.

Associate:

Dated:    8 November 2018

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