Federal Court of Australia

De Pyle v Commonwealth of Australia (No 2) [2023] FCA 751

ORDERS

THE COURT ORDERS THAT:

1.    For 7 days from the date of this Order, Order 1 of the orders made on 29 June 2023 pursuant to Order 1 made on 9 June 2023 be stayed with respect to:

(a)    any of the information highlighted in yellow in the version of the Originating Application annexed to the Respondent's Further Submissions in Support of Application for Protective Orders dated 24 March 2023;

(b)    any of the information highlighted in yellow and blue in the version of the Applicant's Concise Statement attached to the email from the Respondent to the Court dated 27 April 2023;

(c)    any of the information in [4] between "dispute" and "and that" highlighted in yellow in the Response to the Applicant's Concise Statement annexed to the Respondent's Further Submissions in Support of Application for Protective Orders dated 24 March 2023; and

(d)    any of the information in [6(a)] of the Applicant's submissions of 16 February.

2.    If the Commonwealth files an application for leave to appeal from any part of the judgment given in these proceedings on 9 June 2023, the stay granted in Order 1 be extended until:

(a)    the application for leave and any subsequent appeal is determined; or

(b)    further order.

3.    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

(Revised from the transcript)

SARAH C DERRINGTON J:

Introduction and Background

1    On 15 February 2023, the Commonwealth filed an interlocutory application seeking suppression orders over certain information contained in documents pertaining the substantive proceedings.

2    In summary, the Commonwealth pressed for a suppression order over:

(a)    certain highlighted passages in:

(i)    the Originating Application filed on 21 October 2022 (OA);

(ii)    the Applicant’s Concise Statement filed on 10 January 2023 (CS);

(iii)    the Commonwealth’s Response to the Applicant’s Concise Statement filed on 7 February 2023;

(b)    paragraph [6](a) of the Applicant’s submissions of 16 February 2023;

(c)    parts of paragraphs [21] and [23] of the Commonwealth’s submissions dated 15 February 2023; and

(d)    the information highlighted in the body and Annexure 2 of the Confidential Affidavit of Brigadier Glenn James Ryan sworn on 15 February 2023.

3    At my request, the parties also prepared copies of the relevant documents indicating the parties’ agreement that there was no evidence of the information being in the public domain (highlighted in yellow) and information which the ABC contended was in the public domain, but the Commonwealth did not agree (highlighted in blue).

4    On 16 February 2023, following the hearing of the Commonwealth’s application, I made interim orders pending the determination of the application that included, inter alia, that the parties’ concise statements and that the Confidential Affidavit be suppressed until further order of the Court.

5    On 9 June 2023 I published my reasons in respect of the Commonwealth’s application and ordered that the parties prepare a joint draft short minute of order giving effect to my reasons by 26 June 2023: De Pyle v Commonwealth of Australia [2023] FCA 597 (PJ). This morning, subject to one matter, the parties agreed such a draft.

6    By an interlocutory application filed today and supported by an affidavit of Tennille Leah Marsh sworn on 27 June 2023, for which leave to read and file was given over the objection of the ABC, the Commonwealth seeks to stay, for a period of 7 days and/or until an application for leave to appeal and any appeal is determined, any order vacating the interim order made on 16 February 2023 insofar as it relates to:

(a)    any of the information highlighted in yellow in the version of the Originating Application annexed to the Respondent’s Further Submissions in Support of Application for Protective Orders dated 24 March 2023;

(b)    any of the information highlighted in yellow and blue in the version of the Applicant’s Concise Statement attached to the email from the Respondent to the Court dated 27 April 2023;

(c)    any of the information in paragraph 4 between “dispute” and “and that” highlighted in yellow in the Response to the Applicant’s Concise Statement annexed to the Respondent’s Further Submissions in Support of Application for Protective Orders dated 24 March 2023; and

(d)    any of the information in paragraph 6(a) of the Applicant’s submissions of 16 February 2023.

Principles

7    There was no dispute as to the principles governing an application for a stay pending an appeal. As summarised by Derrington J in Stefanovski v Digital Central Australia (Assets) Pty Ltd [2017] FCA 1121 at [4]:

(a)    A court should not be easily disposed to delaying the enforcement of a judgment obtained after a trial. Prima facie, the successful party at trial is entitled to the fruits of their judgment. In particular, judgments of the trial division should not be treated merely as provisional and, following a trial the successful party should generally have an unfettered entitlement to enforce their judgment;

(b)    However, the provisions permitting the Court to grant a stay pending the determination of an appeal exist to prevent possible injustice arising from the enforcement of a judgment which might subsequently be overturned;

(c)    It is not necessary for a party seeking a stay to show “special” or “exceptional” circumstances. All that needs to be shown is that the applicant has demonstrated that the case is an appropriate one for the exercise of the discretion in their favour (see Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 and Re Middle Harbour Investment (in liq) (Unreported, Supreme Court of New South Wales (CA), 15 December 1976));

(d)    The applicant for a stay must necessarily provide sound reasons to justify a suspension of the successful party's right to recover judgment (see McBride v Sandland No.2 (1918) 25 CLR 369, 374; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65, 66);

(e)    Necessarily, the applicant will need to establish that their appeal has some merit to it. They are not obliged to demonstrate that the appeal will be successful, or that success is more probable than not. The degree of confidence which a court needs to have in the appeal’s prospects will most likely vary with all of the circumstances of the case including the potential prejudice which might be suffered by the parties as the result of the granting or refusal of the stay. That said, where an appellant can demonstrate that they have substantial prospects on appeal, that will be a significant factor in favour of granting a stay.

(f)    Although the applicant for a stay must necessarily establish the grounds of their application by admissible evidence, it must be kept steadily in mind that much of the evidence will relate to events which may occur in the future. Necessarily, the evidence produced must provide an appropriately sound foundation on which a court may assess the risk of those future events occurring. In that respect, for the purposes of establishing that the circumstances warrant the granting of a stay, the applicant must not leave the situation in a state of mere “speculation” or “argument”.

(g)    A significant factor in any discretionary consideration is whether there is a real risk or probability that a successful appellant would be deprived of the fruits of their appeal if a stay is not granted (see Scarborough v Lew’s Junction Stores Pty Ltd (1963) VR 129, 130). That consideration extends to the circumstances where there is a real risk that it will not be possible for the successful appellant to be substantially restored to its former position if judgment is executed against it (see Cellante v G Kallis Industries (1991) 2 VR 653);

(h)    Conversely, there is a strong reason for refusing a stay where it is established that there is a real risk that the granting of a stay may prevent the successful party at trial from obtaining the full benefits of their judgment if the appeal is unsuccessful.

8    There was also no dispute that the party seeking the stay order bears the onus of demonstrating a proper basis for a stay, which must be fair to all parties. As Abraham J said in Viagogo AG v Australian Competition and Consumer Commission [2021] FCA 175 at [12]:

That party must demonstrate that there is a real risk that it will suffer prejudice or damage if a stay is not granted, which will not be redressed by a successful appeal: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd, McLean Tecnic Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 (Kalifair) at [18]; Flight Centre Limited v Australian Competition and Consumer Commission [2014] FCA 658 (Flight Centre) at [9(f)]. This requirement will be satisfied if a successful appeal will be rendered nugatory unless a stay is granted: Ali v Australian Competition and Consumer Commission [2020] FCA 860 at [11]; Australian Competition and Consumer Commission v BMW (Australia) Ltd (No 2) [2003] FCA 864 (BMW) at [5]; Alexander at 695; Kalifair at [18].

Potential prejudice

9    The Commonwealth submits that in this case, if the stay were not granted, there is a real likelihood that a successful appeal will be rendered nugatory: Australian Competition and Consumer Commission v BMW (Australia) No 2 [2003] FCA 864.

10    Although the ABC accepted that would be so, it urged the contrary position, namely that if a stay were granted, the public would be deprived of information relating to an extant proceeding before a Chapter III court in respect of which the material is substantially already in the public domain.

11    In the present case, the effect of the stay is to extend the suppression order made on 16 February 2023. I must therefore remain satisfied that it is “necessary” for the status quo to be maintained. As the High Court said in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [31]:

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics

12    If the appeal is successful, damage could be done to the national interest as attested to in the Confidential Affidavit. For that reason, I consider that, subject to the Commonwealth’s establishing that there is an arguable case on appeal, it is necessary that the stay be granted.

13    Should the appeal be unsuccessful, the delay to the ABC in being able to publish the entirety of the information it wishes to will be relatively insignificant.

Is there an arguable case on appeal?

14    The Commonwealth submits that there is an arguable case on appeal that I erred in concluding that the full content of the OA was in the public domain from at least 21 October 2022 because it had been filed in the Federal Court (at PJ[24]) and that the relevant information was in the public domain because it was reported in the Jurist that the applicant had shared the letter from the Australian Human Rights Commission, which included the annexure to the OA, such that any suppression order was futile (at PJ[25]). It is submitted that a similar error was made in relation to the CS (at PJ[28]-[29]), and that I made consequential errors in relation to the response to the CS and the Commonwealth’s submissions (at PJ[32]).

15    The ABC submits that the Commonwealth has not established the threshold for the grant of a stay by not establishing even an arguable ground of appeal. Accepting that there may be an arguable basis for challenging the findings in PJ[24], the ABC submitted that the Commonwealth did not advance any material to challenge the findings of fact at PJ[25] which underpinned my refusal to suppress the OA and CS. The ABC submitted it was incumbent on the Commonwealth to show there was a meaningful difference between what was sought to be suppressed in the OA and the CS and what was published in the Jurist.

16    In the course of submissions, some dispute arose between the parties as to the basis on which the application had been argued below and as to whether the yellow highlighting in the documents ought to have been construed as an admission by the ABC that the relevant material was not in the public domain. It may be that the Commonwealth can persuade an appellate court of that matter.

Disposition

17    As the Commonwealth has submitted, it is not necessary for it to show “special or exceptional circumstances”. All that needs to be shown is that the case is an appropriate one for the exercise of the discretion. In my view, the risk to the national interest and consequent prejudice to the Commonwealth in the event that the stay is refused and the appeal subsequently succeeds persuades me to exercise the discretion in favour of the Commonwealth.

Associate:

Dated:    4 July 2023