Federal Court of Australia
Taylor v Nationwide News Pty Limited  FCA 664
1507 of 2019
Date of judgment:
Federal Court Rules 2011 (Cth) rr 2.28, 2.32
CVG20 v Minister for Home Affairs (No 2)  FCA 690
Roberts-Smith v Fairfax Media Publications Pty Limited  FCA 36
New South Wales
National Practice Area:
Other Federal Jurisdiction
Number of paragraphs:
Date of last submission/s:
16 June 2021
Solicitor for the Applicant:
Counsel for the Respondents:
DR Sibtain with TB Senior
Solicitor for the Respondents:
Thomson Geer Lawyers
Counsel for the witness AB:
Solicitor for the witness AB:
MR BRENDEN HILLS
DATE OF ORDER:
THE COURT ORDERS THAT:
Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground specified in s 37AG(1)(c):
1. Save to the extent that it is mentioned in the publication the subject of this proceeding, the name of the person first mentioned in particular 2 to paragraph 7 of the amended defence not be published and that person be referred to by the pseudonym AB.
2. Any matter tending to identify AB not be published.
3. No access be granted to the transcript of the evidence of AB without the leave of the Court and leave is not to be given without reasonable notice in writing to AB.
4. Document 11 of the Court Book be removed from the Court file.
5. Orders 1–3 remain in force until 30 June 2031.
1 This is a defamation suit. The applicant alleges that the respondents defamed him in a newspaper article published in June 2019. The applicant claims that the article conveys imputations that he is a mobster, that he is a member of the mafia, and/or that he is involved in organised crime. The respondents deny that any such imputations were conveyed. In the alternative that the last of these imputations is found to have been conveyed, the respondents rely on the defence of justification. In other words, they assert that the imputation is substantially true. In support of that plea the respondents rely on conversations covertly recorded by police intercepts and evidence they adduced at the hearing from a party to some of these conversations, who has been given the pseudonym AB.
2 By an interlocutory application (application) filed on 11 June 2021, AB applied for orders seeking that the following information be prohibited from publication or other disclosure:
(a) information tending to reveal his identity; and
(b) information that comprises his evidence or information about his evidence.
3 An interim order to this effect was made under s 37AI of the Federal Court of Australia Act 1976 (Cth) pending the determination of the application on its merits.
4 The application is made on the ground that AB fears for his safety if his name or the details of his evidence is published or otherwise disclosed. As originally framed, it was to expire at the conclusion of a forthcoming trial in conformity with non-publication orders made in the District Court of New South Wales.
5 The application was supported by a brief affidavit sworn by AB on 10 June 2021, shortly before his evidence was taken, and the orders made in the District Court.
6 The parties to the proceeding did not wish to be heard on the application. Nevertheless, I invited them to assist the Court because I was concerned about the breadth of the orders AB sought. They readily accepted the invitation and provided helpful joint submissions.
7 Although he did not formally apply to amend the application, in submissions filed in support AB asked that the following orders be made:
Pursuant to s 37AI of the Federal Court of Australia Act 1975 (Cth):
(i) Save to the extent that it is mentioned in the publication the subject of this proceeding the name of the person first mentioned in particular 2 to paragraph 7 of the amended defence not be published and that person be referred to by the pseudonym, AB.
(ii) A suppression order applies to the following parts of the transcript and evidence of AB and are prohibited from disclosure;
[Transcript references are set out in paragraphs 20 and 21 of the submissions].
(iii) Order [i] expires at the conclusion of the trial of F. Ibrahim.
(iv) Order [ii] remains in place until further order of this court.
8 Reliance on s 37AI is misconceived, since s 37AI deals with interim orders. Section 37AI(1) provides that, if an application is made to the Court for a suppression or non-publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined. Once an interim order is made the Court must determine the application as a matter of urgency: s 37AI(2). The notion that the Court would make an order under s 37AI which would remain in place for months on end or indefinitely without determining the merits of the application is anathema to the statutory scheme.
9 The Court’s power to make suppression or non-publication orders is conferred by s 37AF of the Act. Section 37AF provides:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b) information that relates to a proceeding before the Court and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Court.
(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1)
10 It is a criminal offence, punishable by imprisonment for 12 months or 60 penalty units or both, to contravene, by an act or omission, an order of the Court made under s 37AF (s 37AL).
11 The first order AB seeks is a non-publication order. The second is a suppression order. A suppression order is broader in scope than a non-publication order in that a suppression order is “an order that prohibits or restricts the disclosure of information (by publication or otherwise)” (s 37AA).
12 In deciding whether to make a suppression or non-publication order, the Court is required to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE). The Court’s capacity to make such an order is limited to the grounds set out in s 37AG. Any such order must specify the ground or grounds on which it is made (s 37AG(2)) and it must also specify the information to which it applies with sufficient particularity to ensure that it is limited to achieving the purpose for which the order is made (s 37AH(5)). An order may be made at any time during a proceeding or after a proceeding has concluded (s 37AH(3)). It operates for the period the Court decides and which is specified in the order (s 37AJ(1)). The period may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event (s 37AJ(3)). The Court is required to ensure, however, that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made (s 37AJ(2)).
13 The grounds upon which a suppression or non-publication order may be made include in para 37AG(1)(c) where “the order is necessary to protect the safety of any person”. They also include in para 37AG(1)(a) where “the order is necessary to prevent prejudice to the proper administration of justice”. AB’s application rested only on para 37AG(1)(c). As the parties submitted, sufficient concerns about the safety of a witness may also warrant the making of an order on the ground contained in para 37AG(1)(a), because failing to take steps to protect a witness whose safety is in jeopardy might well bring the administration of justice into disrepute. That would certainly be the case if a witness in this position was too frightened to testify, particularly if the witness’s evidence went to an important issue in the case.
14 The relevant principles have been discussed in a number of cases both in this Court and in the Supreme Court of New South Wales where the relevant legislation (the Court Suppression and Non-Publication Orders Act 2010 (NSW)) is in similar terms. It is sufficient to refer to the matters raised in C7A/2017 v Minister for Immigration and Border Protection (No 2)  FCAFC 70.
15 First, a suppression order cannot be made unless it is “necessary” for one or more of the purposes specified in s 37AG.
16 Second, no balancing exercise is involved in which the Court weighs competing considerations.
17 Third, the burden of establishing that the order is necessary rests with the person seeking it.
18 Fourth, “necessary” is a strong word; it is not sufficient that the order is desirable or that the person applying for it believes it to be necessary for the purpose or purposes upon which it is sought; there must be some material before the Court upon which it can reasonably conclude that the order is necessary.
19 Fifth, where the order is sought to protect a person’s safety, it is not necessary to establish that the person will probably come to harm if an order is not made, but there must at least be a demonstrable or real risk of harm. In Roberts-Smith v Fairfax Media Publications Pty Limited  FCA 36 at – Besanko J adopted the following construction:
[P]roof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability.
20 AB’s affidavit is lacking in detail and leaves much to the imagination. Still, I accept that his fear is genuine and that there is a reasonable basis for it. Other material before the Court tends to indicate that, if the fact that he gave evidence for the publishers were to become public, his personal safety might be at risk. For this reason, neither his name nor any information tending to reveal his identity should be published.
21 The more difficult question is whether, and if so to what extent, a suppression order over his evidence should be made, having regard to the importance of the public interest in open justice. Derrington J recently observed in CVG20 v Minister for Home Affairs (No 2)  FCA 690 at :
As s 37AE emphasises, the concept of open justice is one of the overarching principles in the administration of justice in Australian courts: Minister for Immigration and Border Protection v Egan  FCA 1320 at  per Allsop CJ; it being a fundamental aspect of the rule of law: Deputy Commissioner of Taxation v Hawkins  FCA 164 at . It follows that, when a court is asked to make non-publication or suppression orders, it necessarily commences from a position that the interests of justice favour the conducting of the entirety of court proceedings, including the giving of judgment, in [a] publicly open way. Confidence in the administration of justice can only be achieved if every step is, as far as is possible, open to scrutiny and criticism.
22 The difficulty is substantially reduced by the change in AB’s position. It is apparent from his submissions that he is now content to proceed on the basis that only particular parts of the evidence be suppressed. He also requested that, if his outline of evidence was accessible on the Court’s online portal, it be redacted or suppressed.
23 In their joint submissions, the parties proposed that non-parties should not be given access to the transcript without the Court’s leave. Access to documents on the Court file is regulated by r 2.32 of the Federal Court Rules 2011 (Cth). Rule 2.32(2) allows a person who is a non-party to inspect certain documents in a proceeding without the leave of the Court unless the document is subject to a confidentiality order or forbidden or restricted from publication to the person or a class of persons of which the person is a member. Among those documents is a transcript of a hearing heard in open Court. The parties suggested that, rather than the order AB proposed, the order with respect to the transcript take the following form:
There be no access granted to the transcript of the evidence of AB without the leave of the Court, such leave not to be given without reasonable written notice being first given to AB by the person seeking access.
24 The parties’ proposal is a sensible one. It would obviate the need for redactions to be made until or unless there is an application for access. The parties’ submissions were served on AB’s lawyers and no objection to this course was raised. In the circumstances, it is the course I intend to take. I will therefore make an order to the effect of that proposed by the parties.
25 The outline of evidence is not accessible on the Court’s online portal but it is part of the Court file. It is document 11 in the Court Book. It is not a document listed in r 2.32(2). Access to the document could only be granted if the Court’s leave were sought and granted. I will not now make any redactions to the document. Nor will I wait and see whether an application for leave to inspect it is made. Since the document was not tendered, it is irrelevant. Besides, no order was made requiring it to be filed. In the circumstances I will order, pursuant to r 2.28 of the Rules, that it be removed from the Court file.
26 The parties baulked at AB’s proposal that the suppression order be imposed “until further order”. They argued that orders in this form are undesirable. On the assumption that the order is made to protect the witness from some reasonably contemporaneous threat, which seems to be the inference AB invites the Court to make, they suggested that the order remain in force for 20 years. After this time, they submitted, any threat would seem to be “largely theoretical” or, put another way, the order would no longer be “reasonably necessary”.
27 There is merit in the parties’ submission that a definitive limit should be fixed wherever possible. Having regard to the quality of the evidence, I struggle to see the justification for a period as long as 20 years. Instead, I would fix a period of 10 years. As the parties recognised, it is open to the witness to make a further application before that period expires if his safety remains in jeopardy.