FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v BlueScope Steel Limited [2019] FCA 1532

File number:

VID 932 of 2019

Judge:

O'BRYAN J

Date of judgment:

18 September 2019

Catchwords:

PRACTICE AND PROCEDURE suppression orders – principle of open justice – meaning of “necessary” in section 37AG(1) of the Federal Court of Australia Act 1976 (Cth) – where application for suppression order made in respect of originating application and concise statement – where civil proceeding commenced prior to commencement of related criminal proceeding – application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth), ss 37AF, 37AG(1)(a)

Federal Court Rules 2011 (Cth), r 2.32

Cases cited:

ACCC v Construction, Forestry, Mining and Energy Union [2016] FCA 504

Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635

Commissioner of Police (NSW) v Nationwide News Pty Ltd (2007) 70 NSWLR 643

Dupas v The Queen (2010) 241 CLR 237

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52

Hogan v Australian Crime Commission (2010) 240 CLR 651

Hogan v Hinch (2011) 243 CLR 506

John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344

Madafferi v The Age Company Pty Ltd & Ors (No 2) [2016] VSC 103

Minister for Immigration and Border Protection v Egan [2018] FCA 1320

Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384

News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248

R v Clement (1821) 4 B & Ald 218; 106 ER 918

R v Glennon (1992) 173 CLR 592

R v Horsham Justices, ex parte Farquharson [1982] QB 762

R v Note Printing Australia Ltd (Ruling No 1) [2012] VSC 303

R v Note Printing Australia Ltd (Ruling No 2) [2012] VSC 304

Re application; R v Williams [2004] VSC 413

Re Pleash; Consolidated Tin Mines Ltd (Administrators Appointed) (No 2) [2016] FCA 1366

Richardson v Commissioner of Taxation (2006) 64 ATR 267; [2006] FCA 1306

Russell v Russell (1976) 134 CLR 495

Date of hearing:

13 September 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Economic Regulator, Competition and Access

Category:

Catchwords

Number of paragraphs:

43

Counsel for the Applicant:

Mr J M Forsaith

Solicitor for the Applicant:

Australian Government Solicitor

Counsel for the First Respondent:

Mr C Moore QC with Mr P Strickland

Solicitor for the First Respondent:

Gilbert + Tobin

Counsel for the Second Respondent:

Dr R C A Higgins SC with Mr A M Bell

Solicitor for the Second Respondent:

Norton Rose Fulbright

Solicitor for The Age Company Pty Limited:

Mr S White

ORDERS

VID 932 of 2019

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:

BLUESCOPE STEEL LIMITED (ACN 000 011 058)

First Respondent

JASON THOMAS ELLIS

Second Respondent

JUDGE:

O'BRYAN J

DATE OF ORDER:

18 September 2019

THE COURT ORDERS THAT:

1.    The interlocutory application dated 10 September 2019 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    The Australian Competition and Consumer Commission (ACCC) commenced this proceeding on 29 August 2019 by filing an originating application and concise statement. At the same time, the ACCC informed the Federal Court Registry that it sought a direction or order that access to the originating application and concise statement not be allowed to persons other than the parties and the Court until further order or direction be made. The reasons for that request are the subject of the present application and are considered below. No such order or direction was made by the Court, but to date the documents have not been made available to the public.

2    On 2 September 2019, The Age Company Pty Limited (The Age), the publisher of “The Age” newspaper and its associated website, sent a request to the Federal Court Registry seeking a copy of the originating application and concise statement pursuant to rule 2.32 of the Federal Court Rules 2011 (Cth). That rule provides that a non-party may inspect and copy originating applications, pleadings and similar documents (which includes concise statements).

3    In light of the ACCC’s request for an order or direction that access to the originating application and concise statement not be allowed, the Court notified the ACCC of the request that had been made by The Age. The Court informed the ACCC that, if it maintained its request, it would need to apply for such an order. In response, the ACCC filed an interlocutory application seeking orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) to restrict disclosure of the originating application and concise statement to the Court, the parties, their respective legal advisers and the Commonwealth Director of Public Prosecutions (CDPP) until 4 November 2019, being the date of the first case management hearing. The application was supported by two affidavits of Mr Marcus Bezzi who is the Executive General Manager of the Specialised Enforcement and Advocacy Division of the ACCC and who has had responsibility for the ACCC’s investigation of the conduct that is the subject of this proceeding. The ACCC also tendered various documents, including media releases issued by it and the first respondent, BlueScope Steel Limited (BlueScope), at the commencement of the proceeding and a sample of media articles that were published immediately thereafter.

4    The ACCC’s application was supported by BlueScope and the second respondent, Mr Jason Ellis. The application was opposed by The Age. Although each of the parties to the proceeding was separately represented and each made submissions in support of the ACCC’s application, the principal submissions were common across the parties. I will therefore refer generally to the submissions of the parties (by which I mean the parties to the proceeding), save where it is necessary to note some differentiation.

5    For the reasons set out below, I am not satisfied that the orders sought by the ACCC, with the support of the respondents, are necessary to prevent prejudice to the proper administration of justice.

Background facts

6    The information about the ACCC’s allegations in this proceeding that is public is derived from the media releases issued by the ACCC and BlueScope immediately following the commencement of the proceeding. The ACCC issued the media release to enable BlueScope, a listed company, to comply with its continuous disclosure obligations under s 674 of the Corporations Act 2001 (Cth). Mr Bezzi gave evidence that the ACCC’s media release described the allegations in the proceeding in no more detail than was necessary to enable BlueScope to comply with those obligations. BlueScope used the ACCC’s media release for that purpose when it issued its ASX release in relation to proceeding. The ACCC media release contained the following statements:

The ACCC has instituted civil proceedings in the Federal Court against BlueScope Steel Limited (BlueScope) and its former General Manager of Sales and Marketing, Mr Jason Ellis, for alleged cartel conduct in relation to the supply of flat steel products.

The ACCC alleges that between September 2013 and June 2014, BlueScope and Mr Ellis attempted to induce various steel distributors in Australia and overseas manufacturers to enter agreements containing a price fixing provision.

It is alleged that BlueScope and Mr Ellis attempted to induce agreements with BlueScope's competitors, to fix and/or raise the level of pricing for flat steel products supplied in Australia.

BlueScope is the major manufacturer of flat steel products in Australia. Flat steel products are an essential material in a number of important sectors of the Australian economy, including the construction, building, manufacturing, automotive and transport industries,” ACCC Chair Rod Sims said.

The ACCC is seeking declarations, pecuniary penalties and costs against BlueScope and Mr Ellis, as well as an order disqualifying Mr Ellis from managing corporations.

This matter involves allegations of serious cartel conduct, Mr Sims said.

Given the six year limitation period for taking civil proceedings for certain of the alleged conduct was about to expire, the ACCC has determined it is appropriate to commence such proceedings against BlueScope and Mr Ellis.

The ACCC has been working closely with the CDPP in relation to the matter and the CDPP's consideration of the matter is continuing. Given these circumstances, the ACCC will not be making any additional comment at this time.

7    It is therefore publicly known that this proceeding involves alleged cartel conduct engaged in by BlueScope and Mr Ellis. The allegations are that between September 2013 and June 2014, BlueScope and Mr Ellis attempted to induce various steel distributors in Australia and overseas manufacturers to enter agreements containing a price fixing provision and that BlueScope and Mr Ellis attempted to induce agreements with BlueScope's competitors to fix and/or raise the level of pricing for flat steel products supplied in Australia.

8    Although not expressly referred to in the ACCC’s media release, price fixing is a form of cartel conduct that is prohibited by provisions in Division 1 of Part IV of the Competition and Consumer Act 2010 (Cth) (CC Act), for which there are civil and criminal sanctions. The ACCC is empowered to bring proceedings seeking civil penalties for contraventions of the cartel conduct prohibitions. A criminal prosecution can only be brought by the CDPP. The ACCC’s press release informed the public that it had commenced this proceeding seeking civil penalties and other civil remedies because the applicable 6 year limitation period was about to expire. The ACCC also stated that the conduct the subject of this proceeding was currently being considered by the CDPP.

9    Unsurprisingly, the ACCC’s media release generated a number of media articles. The ACCC tendered a sample in evidence. The story was carried by the business press including the Australian Financial Review and the business sections of The Australian and The Age/Sydney Morning Herald newspapers. It was also carried more broadly by various television stations, including the ABC, and radio stations. Although the evidence about media coverage was limited in scope, I am satisfied that there is considerable media interest in the story. The parties submitted, and I am prepared to infer, that the media interest in this proceeding is generated by the combination of the following factors: first, cartel conduct is regarded publicly as involving serious business wrongdoing; second, BlueScope is a large, well-known Australian company which was once part of an even larger and well-known Australian company, BHP; and third, Mr Ellis is the son of a former chairman of BHP, which generates a human interest in the story.

10    Mr Bezzi gave evidence that the ACCC refers serious cartel conduct to the CDPP for prosecution wherever possible. In the present case, the ACCC considers the alleged conduct to be serious cartel conduct and has accordingly referred it to the CDPP, in the form of a brief of evidence. It is a matter for the CDPP, applying the Prosecution Policy of the Commonwealth, whether to prosecute the alleged conduct. The CDPP is currently considering the ACCC’s brief of evidence in order to decide whether to prosecute and a decision is anticipated by the end of October 2019. That decision could be to prosecute, not to prosecute, or to refer the brief of evidence back to the ACCC for further inquiries. If the CDPP returns the brief of evidence to the ACCC for further inquiries, the ACCC would continue its investigation unless the evidence required to prosecute was considered to be unobtainable. If any or all of the alleged conduct is not prosecuted by the CDPP, the ACCC will pursue these civil proceedings in relation to that conduct. Mr Bezzi explained that the ACCC commenced these proceedings, before the CDPP had completed its consideration of the matter, in order to prevent the proceedings from becoming statute-barred in the interim.

11    The originating application and concise statement that have been filed in the proceeding contain more detail about the ACCC’s allegations. The documents contain allegations concerning particular events, conduct and competitors of BlueScope during the period of the alleged contraventions.

Submissions of the parties

12    The parties submitted that the proposed suppression orders are necessary to prevent prejudice to the proper administration of justice that would flow from the reporting of the allegations in the originating application and concise statement. They say that such prejudice takes two forms.

Contamination of the jury pool

13    First, the parties submitted that the reporting of the allegations in the originating application and concise statement would create the risk of ‘contaminating the jury pool for any future criminal prosecution of the conduct in question by the CDPP. The problem arises because a future criminal proceeding may take a different shape to the civil proceeding that has been commenced by the ACCC. In particular, the CDPP may decide to prosecute only certain instances of the conduct that is the subject of allegations made in the civil proceeding. Further, aspects of the conduct alleged in the civil proceeding may be excluded by the different rules of evidence which apply in criminal proceedings. The concern that arises is that potential jurors for a future criminal trial will be exposed to media reporting of the allegations made in the present civil proceeding which are not part of the Crown’s case in the criminal proceeding. That creates a risk that potential jurors will prejudge issues or have regard to extraneous matters, thereby damaging the ability of the accused to receive a fair trial. The ACCC submitted that the risk of prejudice to a criminal accused has long been recognised as a basis for suppressing information relating to actual or contemplated criminal proceedings, relying on R v Clement (1821) 4 B & Ald 218; 106 ER 918 and R v Horsham Justices, ex parte Farquharson [1982] QB 762 at 791.

14    The parties submitted that, in the present case, two factors combine to give rise to a substantial risk of contamination of a future jury pool. First, there is already considerable media interest in the case and this is likely to continue given that criminal cartel prosecutions are a relatively new phenomenon. Second, the case has several features that make it more likely that members of the public will retain any information that is reported. These include the identity of the first respondent, a well-known Australian company, the identity of the second respondent, the son of a former chairman of BHP and certain of the allegations detailed in the concise statement. The parties submitted that there is every chance that informed members of the public who are called upon to perform jury duty will have retained details of what is reported by the media.

15    The parties submitted that the suppression of material, sometimes for a finite period, is a recognised mechanism for preserving the integrity of a criminal trial process, relying on News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 (Mokbel) at [73] and [90] per Warren CJ and Byrne AJA and ACCC v Construction, Forestry, Mining and Energy Union [2016] FCA 504 at [96] per Middleton J. The ACCC further submitted that jury directions are not an appropriate means by which to cure a contaminated jury pool, relying on Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384 (Qaumi) at [71]-[72] per Bathurst CJ, Beazley P and Hoeben CJ. The traditional means are, rather, to vet potential jurors prior to empanelment or to defer the trial for a period of time so that memories fade. The ACCC submitted that, in the present case, both approaches would result in prejudice to the proper administration of justice.

16    The parties submitted that this is an unusual case in that the ACCC has commenced civil proceedings before the CDPP has made a decision whether to prosecute because the statutory limitation period was about to expire. Although the present proceeding has been commenced, nothing will occur until the first case management conference on 4 November 2019 when it is expected that the CDPP will have concluded its consideration of the matter. The application seeks temporary relief during that period to safeguard the administration of justice whilst the nature of the trial remains to be determined.

Prejudice to ongoing investigation

17    The second form of prejudice relied on (principally by the ACCC) arises from the possibility that the CDPP may refer the brief of evidence back to the ACCC for further inquiries. Such further inquiries may necessitate the taking of statements, or further statements, from witnesses with personal knowledge of some aspects of the alleged conduct. Such people are likely to be particularly interested in any media reporting of the alleged conduct. The ACCC submitted that there is a risk that such reporting may affect their evidence by displacing or contextualising their actual recollections. This effect would be compounded if media reporting were to cause witnesses (who know each other from working in the same industry) to talk to each other. The ACCC submitted that, in the context of suppression orders, it is accepted that the “administration of justice” can extend to the investigation and detection of crime, and the obtaining of evidence against suspects, relying on Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at [38] per Hodgson JA, Hislop and Latham JJ agreeing, and R v Note Printing Australia Ltd (Ruling No 1) [2012] VSC 303 at [5], [18] and [34] per Hollingworth J.

Submissions of The Age

18    The Age opposes the orders sought by the parties.

Contamination of the jury pool

19    In relation to first matter relied on by the parties, being the risk that media reporting of the proceeding would contaminate a future jury pool for a criminal prosecution, The Age submitted that such a risk is not real or material in the present case.

20    First, The Age submitted that the empanelment of any jury is likely to be over 12 months away and that it is unlikely that anyone (including a potential juror) would read details of the filed documents now and recall those details in over 12 months’ time. The Age referred to a number of judicial statements to the effect that the passage of time limits the impact of publicity about a case on a potential jury and that even four months is long enough for publicity to wash away, relying on Re application; R v Williams [2004] VSC 413 (Williams) at [24], [31] per Kellam J and Madafferi v The Age Company Pty Ltd & Ors (No 2) [2016] VSC 103 at [48] per Dixon J.

21    Second, The Age submitted that it should not be assumed that the media reporting will be otherwise than fair and accurate. In those circumstances, the media will report that allegations have been made by the ACCC and the public will understand that to be the case. Further, the subject matter is not inherently scandalous. Nothing would be reported as a fact or as a finding. Accordingly, fair and accurate reporting will not cause prejudice to the accused in any future criminal prosecution.

22    Third, The Age submitted that the case is not at the top-end of the spectrum in terms of media interest, which reduces the risk that reporting would reach a potential juror. The case is likely to attract interest from a certain sector of the public, being persons interested in business, commercial or consumer issues, but is unlikely to be of interest to a broader cross-section of the public.

23    Fourth, The Age submitted that, at the time of any future criminal trial, any recollection a juror may have of earlier reporting can be addressed by an appropriate jury direction. Courts have long held that juries should not be considered as fragile or prone to prejudice, relying on John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 (John Fairfax) at [103]-[110] per Spigelman CJ and Williams at [26]-[31] per Kellam J.

24    Fifth, The Age submitted that it is inherently premature to seek a suppression order in circumstances where the CDPP may ultimately not pursue criminal charges.

Prejudice to ongoing investigation

25    In relation to second matter relied on by the parties, being the risk that reporting may damage further investigations that may be required by affecting the recollections of witnesses, The Age again submitted that the risk is not real or material in the present case and has not been substantiated. The Age submitted that the bare assertion of such a risk is insufficient and that the Court should not accept the assertion without the identification of possible witnesses who are yet to be interviewed and the specific allegations in the filed documents that may result in prejudice to the investigation process in the context of that witness. The Age further submitted that even if such a risk exists at some level, the Court should not make a suppression order unless satisfied that the risk is material in the present case.

Consideration

26    The exercise of the Court’s power under s 37AF of the FCA Act to make a suppression order is controlled by two other statutory provisions. First, s 37AE provides that, in deciding whether to make a suppression order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Second, s 37AG(1) stipulates the grounds on which a suppression order may be made, one of which is (relevantly) that the order is necessary to prevent prejudice to the proper administration of justice. It is immediately apparent that the FCA Act proceeds on the basis that the administration of justice is ordinarily promoted by safeguarding the public interest in open justice, but as recently observed by Allsop CJ in Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4]:

Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice…

27    The public interest in open justice was explained by Gibbs J in Russell v Russell (1976) 134 CLR 495 in the following terms (at 520):

It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hallmark of judicial as distinct from administrative procedure” (McPherson v McPherson [1936] AC 177 at 200).

28    The primary safeguard of open justice is the requirement, contained in s 17 of the FCA Act, that the jurisdiction of the Federal Court of Australia be exercised in open court. In Hogan v Hinch (2011) 243 CLR 506, French CJ said of that requirement (at [20]):

An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.

29    His Honour also observed that reporting of court proceedings is a common law corollary of the open-court principle (at [22]):

It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that is being given in the proceedings.

30    A secondary safeguard of open justice is the entitlement, in r 2.32 of the Federal Court Rules 2011 (Cth), of a person who is not a party to a court proceeding to inspect and copy certain categories of documents filed in the Federal Court Registry including an originating application, a pleading or similar document, a statement of agreed facts and an interlocutory application. The reason that those categories of documents are available to the public for inspection and copying as of right was explained by Allsop J (as his Honour then was) in Richardson v Commissioner of Taxation (2006) 64 ATR 267 at [3]; [2006] FCA 1306:

… prima facie, a document which stands as a pleading, that is a document which defines the controversy which this Court in the exercise of judicial power seeks to quell, should be made public. The reason for this approach is that not only should the public hear what is said at the final hearing of a case or at the arguing of a motion, but also the public is entitled to understand the nature of the controversy which the Court is charged with quelling. It is an important governmental function of the third arm of government and the public is entitled to understand its processes and what is happening.

31    There are well recognised circumstances in which open justice must give way and orders for suppression or non-publication are made. Those circumstances are reflected in s 37AG(1) of the FCA Act which stipulates that the Court may make a suppression or non-publication order if the order is necessary:

(a)    to prevent prejudice to the proper administration of justice;

(b)    to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    to protect the safety of any person; or

(d)    to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

32    As observed by the High Court in Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30] (with respect to the predecessor provision to s 37AG(1)(a) - s 50 - which was in substantially identical terms), “necessary” is a strong word and it is insufficient that the making of a suppression or non-publication order appears to be “convenient, reasonable or sensible”. Accepting that “necessary” is a strong word, it nevertheless has shades of meaning which reflect the context in which it is used: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 (Ibrahim) at [8] per Bathurst CJ and [45] per Basten JA. In the context of s 37AG(1), the test of necessity must be applied on a forward looking basis to criteria which are broadly defined (administration of justice, national security, safety of a person and undue distress and embarrassment). In the context of s 37AG(1)(a) specifically, the prejudice to the administration of justice that may be caused by the publication of information may be a possibility or a certainty; the effect of publication may be minor or serious; and the effect of a suppression or non-publication order may diminish the risk of prejudice or obviate it altogether: Ibrahim at [46] per Basten JA. The difficulties of making predictions about the effect that publication of information may have on such matters in the future was described by Basten J (as his Honour then was) in an earlier decision as engaging an atypical aspect of the judicial function involving “the application of ill-defined and imprecise conflicting principles, on the basis of speculation as to future consequences”: Commissioner of Police (NSW) v Nationwide News Pty Ltd (2007) 70 NSWLR 643 at [85].

33    Turning to the present case, it can be accepted that the proposed order sought by the parties would only diminish the public interest in open justice to a limited extent. That is because the order is being sought at the commencement of the proceeding, before any substantive steps have been taken or any interlocutory hearings conducted, and as presently framed will only continue until the first case management hearing on 4 November 2019. Nevertheless, the relevant question to be addressed is whether the proposed order is necessary to prevent prejudice to the proper administration of justice.

34    The first basis on which the parties seek the suppression order is to reduce the risk of contamination of the jury pool for any future criminal prosecution that may be commenced in respect of the alleged cartel conduct. It is not uncommon for courts to make suppression orders in relation to material revealed in the course of one proceeding which has the potential to interfere with another proceeding. That circumstance most commonly arises where an individual accused faces sequential trials in respect of different but similar criminal activity (see, for example, Mokbel and Quami), or where there are sequential trials of different accused in respect of the same criminal activity (see, for example, R v Note Printing Australia Ltd (Ruling No 2) [2012] VSC 304).

35    However, as The Age correctly submitted, courts have long held that juries should not be considered as fragile or prone to prejudice: see the authorities referred to by Spigelman CJ in John Fairfax at [103]-[110]. The High Court has stated on numerous occasions that the mere possibility that a juror will have been exposed to prejudicial but irrelevant information prior to trial will not ordinarily deprive an accused of a fair trial. As observed by Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592 at 603:

The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence… to conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.

36    The approach taken by Australian courts has not altered in the “internet age” where historic publications can be more readily searched and obtained: Dupas v The Queen (2010) 241 CLR 237.

37    In my view, the suppression order sought by the parties is not justified on the first basis on which it is sought. That is for two reasons which are cumulative. First, the risk of prejudice to a fair trial in any future criminal prosecution is, in my view, remote. Second, any such risk of a juror learning of prejudicial but ultimately irrelevant allegations or information can be adequately mitigated by the usual jury directions.

38    The following factors in combination lead me to the conclusion that, in the present case, the risk of prejudice to a fair trial is remote:

(a)    No criminal trial has yet been commenced and it is not possible to assess the likelihood of a criminal trial being commenced.

(b)    Even if a criminal trial were to be commenced, the trial would be unlikely to occur for at least 12 months and potentially longer. Any reporting of the allegations in this proceeding would, by that time, be a long way in the past.

(c)    The allegations in the present case concern wrongful business conduct. While the wrongdoing is serious and likely to be harmful to those sections of the public who are consumers of steel products, it is not of a nature that is likely to be of wide interest to the public or to generate particular notoriety or scandal.

(d)    The media releases issued by the ACCC and BlueScope have already made public the main aspects of the allegations made against BlueScope and Mr Ellis. While the originating application and the concise statement contain more details of the alleged offending in comparison to the media releases that have been issued, the information contained in those documents is at a relatively high level of generality. For that reason, the likely impact of any further reporting of the originating application and the concise statement on potential jurors will be limited.

(e)    The publication of allegations, as distinct from evidence or findings, made in a civil proceeding are unlikely to cause prejudice to a subsequent criminal trial involving the same or similar allegations. The circumstances of this case are not comparable to the typical case in which a suppression order is sought in respect of the evidence adduced or findings made in a proceeding that may prejudice a subsequent criminal proceeding.

39    It can be accepted that, if there were a material risk that publication of information would be likely to prejudice an accused’s ability to receive a fair trial, it may be preferable for the Court to restrict the publication of the information rather than rely on the effectiveness of jury directions: Mokbel at [73] per Warren CJ and Byrne AJA. However, for the reasons I have given, I am not satisfied that the risk is anything other than remote and that any such risk can be adequately addressed in the course of a further criminal trial if one eventuates.

40    The second basis on which the parties seek the suppression order is to prevent the risk that reporting of the originating application and concise statement may damage further investigations that may be required by affecting the recollection of witnesses. I accept the ACCC’s submission that, in the context of suppression orders, the administration of justice can extend to the investigation and detection of crime and the obtaining of evidence against suspects. However, I am not satisfied on the evidence before me that such an order is necessary in the present case. The party seeking the order bears the onus of establishing the statutory criterion relied on: Re Pleash; Consolidated Tin Mines Ltd (Administrators Appointed) (No 2) [2016] FCA 1366 at [5] per Edelman J.

41    There is virtually no evidence before me concerning the timing and extent of the ACCC’s investigation of the alleged conduct that is the subject of this proceeding. In his first affidavit, Mr Bezzi deposes to the fact that the ACCC has conducted an investigation of the matters alleged in the proceeding, which is only to be expected before the ACCC commences a proceeding. Mr Bezzi also deposes to the fact that matters arising out of the ACCC’s investigation have been referred to the CDPP and that the CDPP's consideration of those matters is continuing. In his second affidavit, Mr Bezzi deposes to the fact that it is possible that the CDPP may advise the ACCC that it wishes further inquiries to be made and evidence obtained by the ACCC before reaching a decision whether to lay charges and, if that occurred, the ACCC would make those enquiries and seek to obtain that evidence.

42    It is on the basis of that evidence that the ACCC submits that reporting of the originating application and concise statement may damage further investigations (should further investigations be requested by the CDPP). The difficulty with the submission is that, in the absence of evidence, I am left to speculate about the extent of the investigations that have been conducted by the ACCC to date, including the range of witnesses who have been spoken to. While the originating application and concise statement identify businesses that were allegedly affected by the respondents’ alleged wrongful conduct, there is no evidence before me whether those businesses have participated in the ACCC’s investigation to date, for example by providing witness statements to the ACCC. I would expect that the ACCC has sought witness statements from each of the businesses that are named in the concise statement, as that is a normal part of investigating allegations before a proceeding is commenced. There is certainly no evidence that that has not occurred. I would therefore expect that each of the businesses named in the concise statement are aware of the ACCC’s allegations, even if they have not agreed to provide a statement to the ACCC. In those circumstances, there is no evidence that satisfies me that further reporting of the allegations in the concise statement will affect potential witnesses in any material way. As a consequence, I am not satisfied that further reporting of the allegations made in the concise statement will adversely affect the ACCC’s ability to conduct further investigations at the request of the CDPP, should that become necessary.

Conclusion

43    For the foregoing reasons, I am not satisfied that the suppression orders sought by the parties to the proceeding are necessary to prevent prejudice to the proper administration of justice. I therefore dismiss the application. There will be no order as to costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.

Associate:

Dated:    18 September 2019