Federal Court of Australia

Secretary, Department of Health and Aged Care v Montu Group Pty Ltd [2024] FCA 1260

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application dated 26 October 2024 be dismissed.

2.    The respondents pay the costs incurred in respect thereof by The Age Company Pty Limited and Fairfax Media Publications Pty Limited.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By an originating application dated 16 April 2024, the applicant moves for relief against the respondents in relation to conduct said to have been engaged in contrary to provisions of the Therapeutic Goods Act 1989 (Cth). For present purposes, it is unnecessary to particularise that conduct or that relief, save to observe that the latter includes a claim for the imposition of pecuniary penalties.

2    The originating application also contained a claim to interlocutory relief. On 29 April 2024—and in support of that claim—the applicant’s solicitor, Mr Rapke, swore an affidavit, in which he attested to various matters, apparently including some that came to be known to him as a result of the exercise of a statutory examination process or processes. The affidavit was filed with the court in the usual way. Ultimately, the claim for interlocutory relief was withdrawn (or, in any event, not pressed) and that affidavit was not read into evidence.

3    Pursuant to r 2.32 of the Federal Court Rules 2011 (Cth), unrestricted non-party access to documents filed with the registry is confined to identified classes of documents. Affidavits such as the one that Mr Rapke swore are not amongst them. Non-parties who wish to obtain such documents require the court’s leave in order that they might do so. Although there is no hard rule that prohibits otherwise, the usual course regarding affidavits is to grant leave only insofar as they have been read into evidence.

4    In September 2024, a journalist engaged by a well-known media company, Mr Lucas, sought to access from the court various documents related to this matter. The documents in question were identified and they included the affidavit of Mr Rapke. The process involved in gaining access to them involved submitting to the court’s registry a form that, no doubt amongst other things, contained an indication as to whether or not what was sought was “restricted” for the purposes of r 2.32. The form that was submitted on 12 September 2024 indicated—incorrectly, as it turns out—that all of the documents sought were documents that the journalist was entitled to access by reason of r 2.32(2).

5    That mistake—which I pause to note is not presently doubted to have been anything but a mistake—was not recognised by the court’s staff. Subsequently, access to the documents requested—including the affidavit of Mr Rapke—was granted. Several weeks later (specifically, on 20 October 2024), an article was published in the Sydney Morning Herald, which made reference to the content of Mr Rapke’s affidavit. The respondents, by their solicitors, then made inquiries as to how the author of that article had come to possess that content. Thus was the registry’s error disclosed. That appears to have been made apparent late in the week commencing 21 October 2024.

6    On Saturday, 26 October 2024, the respondents filed an interlocutory application seeking relief under pt VAA of the Federal Court Act 1976 (Cth) (the “FCA Act”) to restrain two media organisations—namely, The Age Company Pty Limited and Fairfax Media Publications Pty Limited (hereafter, the “Publishers”)—from publishing or continuing to publish material that disclosed the content of Mr Rapke’s affidavit. Initially, that application was referred to a duty judge. The Publishers then gave certain undertakings, the result of which was that a weekend hearing was averted and the matter instead came back to me as the matter’s docket judge. It was the subject of an urgent, after-hours hearing on Monday, 28 October 2024, at which the respondents and the Publishers made helpful oral submissions, elaborating upon equally helpful written submissions and short affidavit material filed earlier that day. At the conclusion of the hearing, I resolved to reserve the court’s judgment until the following morning.

7    For the reasons that follow, I have determined that the application under pt VAA of the FCA Act should be dismissed. The respondents should pay the Publishers’ costs. There will be orders to those effects.

The Legislative framework

8    Part VAA of the FCA Act is entitled “suppression and non-publication orders”. Section 37AF confers upon the court a power to make what are styled “non-publication order[s]”. The section provides as follows, namely:

37AF Power to make orders

(1)    The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

…

(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).

9    A “non-publication order” is “…an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”: FCA Act, s 37AA.

10    The court is empowered to make a non-publication order on any one or more of the grounds identified in s 37AG(1) of the FCA Act. That section provides as follows, namely:

37AG Grounds for making an order

(1)    The Court may make a suppression order or non-publication order on one or more of the following grounds:

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

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

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary 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).

11    Presently, the only ground upon which the application proceeds is the ground identified in s 37AG(1)(a) of the FCA Act. In deciding whether to make a non-publication 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: FCA Act, s 37AE.

12    The principles that regulate the granting of relief under pt VAA are not presently in dispute and need not be stated. Instead, I rely upon (without replicating) what I identified in Naude v DRA Global Limited [2023] FCA 493, [13]-[15]; as well as the more recent (and more thorough) exposition of principle in which Goodman J engaged in Young v Accenture Australia Pty Limited [2024] FCA 1013, [22]-[36].

the evidence

13    Before outlining the submissions that were advanced in support of the application, I should say something about the evidence. The factual matrix that it establishes is not materially in contest. To a large extent, it has already been canvassed; but there is an additional dimension worthy of note. After the mistaken provision of the Rapke affidavit was identified, the court wrote to the journalist to whom it was given, and requested that he take steps to delete it and advise to whom, if anybody, it had been provided.

14    That has occurred. The evidence discloses that copies of the Rapke affidavit were distributed to three people. Although the Publishers have declined to identify them, it has nonetheless made clear that none continues to be in possession of the material in question. The respondents have been content to accept that indication and the only remaining controversy concerns the Publishers’ continued publication of news stories that refer to the content of the affidavit.

15    That has been the subject of demand: on Wednesday, 23 October 2024, the respondents’ solicitors wrote to the journalist to whom the incorrect access was granted and requested that those articles (at least to the extent that they made reference to the content of the Rapke affidavit) be removed from the Publishers’ websites. The Publishers declined that request and it is that refusal that sits at the centre of the present application.

16    There is a further aspect of the evidential landscape that warrants noting. At least part of the content of the Rapke affidavit appears to have been in the public domain for some time prior to the articles that appeared on 20 October 2024. It is not necessary to identify what parts; it suffices merely to note what has now been noted.

the present application

17    The respondents press for relief in the form of a mandatory order requiring that the Publishers remove from their websites all references within articles published therein that refer to the content of the Rapke affidavit, and for an order to prevent equivalent publication in the future. Related relief concerning the identification of those to whom the Rapke affidavit was provided is no longer pressed.

18    In support of their claim to relief, the respondents submitted as follows:

18.    The admissibility of the Restricted Material has not been determined and, to the extent the Restricted Material is admissible, it has not been tested.

19.    In these circumstances, it is prejudicial to the Respondents for the Restricted Material to be published as though it were evidence in the proceeding, which it is not. That is particularly so in circumstances where the Respondents have yet to gather their own evidence to respond to the Restricted Material (and their ability to do so may be negatively affected by premature and inappropriate publication of the Restricted Material).

20.    The continued publication of the Restricted Material prejudices the proper administration of justice in this proceeding because:

a.    publication of the Restricted Material may negatively impact upon the Respondents’ ability to obtain evidence responsive to the Restricted Material which is not infected by potential witnesses having access to material which may adversely affect their recollection of events;

b.    ongoing publication heightens the risk that the Restricted Material may (even subconsciously) affect the judge ultimately hearing the matter; and

c.    the Respondents should not be subject to negative publicity in respect of material not admitted into evidence (and which may never be admitted into evidence) and which has not been tested, especially where access to such material arises by reason of a slip in the Registry which was engendered by the Media Companies’ error in applying for access to the Restricted Material. The slip in the Court’s processes should be corrected.

19    The references there to the “Restricted Material” are references to the material to which the registry wrongly allowed access.

20    The respondents maintain that relief under pt VAA is appropriate—indeed, necessary—because, unless granted, the Publishers will succeed in taking advantage of “a Registry slip”. As a proposition, I do not consider that description (that the Publishers will take advantage of a registry slip) to be inapt. It is clear that the Publishers (and others, apparently as a result of what they published) have used to their advantage information that they ought not to have received and have declined invitations from the respondents to correct that reality by removing what they have published.

21    At the hearing of the application, Ms Alick, for the Publishers, attempted, whether as justification or otherwise, what I consider was a thinly-disguised attempt at criticism of the court for its modern approach to the provision of access to material filed in its registries. That approach, she suggested, was productive of the kinds of error with which I am currently confronted. With respect, that is a distraction. The rules with which this application engage are of long standing and there is no occasion now to make value judgments about the wisdom that attends the court’s contemporary approach to document access.

22    At issue presently is whether the benefit that the Publishers have exploited translates into some identifiable prejudice to the proper administration of justice, the prevention of which requires the making of orders such as are now sought.

23    I do not accept that it does. There can be no doubt that the use of the information that was wrongly disclosed by the registry is a source of prejudice to the respondents. As they submit, material advanced as (but not received into) evidence has been used in a way that is unambiguously prejudicial to them. That, however—as countless authorities have made clear—is not sufficient to establish that the proper administration of justice is imperilled to the requisite degree.

24    As to that, I do not accept—and, indeed, there was nothing rising beyond what I would respectfully describe as bald conjecture—that the publications to which the relief that is sought would be directed “…may negatively impact upon the Respondents’ ability to obtain evidence…which is not infected by potential witnesses having access to material which may adversely affect their recollection of events”. That proposition is simply not established factually and I reject it. Even if there appeared to be some substance to it, that prejudice would inhere notwithstanding any grant of relief under pt VAA, as the material in question has been “live”, so to speak, for more than a week. It is not apparent how relief under pt VAA might now serve to alleviate any such prejudice—which is another way of saying that I cannot see how that relief might be necessary to prevent it. Relief cannot be necessary in that sense if it is unlikely to realise a remedial benefit—much less if it is almost certainly destined to fail in that regard: Keyzer v La Trobe University (2019) 165 ALD 93, 98 [27] (Anastassiou J).

25    Likewise, there is no prospect that the publications in question threaten, in any way, to affect the reasoning or impartiality of the judge that ultimately hears the matter. Again, that bald proposition is unsustainable, and I reject it. Relief is not necessary to avoid the prejudice identified because the prejudice will not arise.

26    I confess that I have considerable sympathy for the submission that the respondents ought not to be subjected to “negative publicity in respect of material not admitted into evidence”. As counsel for the respondents submitted—I think rightly and fairly—the regime established by the rules to regulate non-party access to documents filed in the court exists, at least to an extent, to protect parties from prejudice of that nature. Conceptually, open justice extends to require public access to the processes of the court and, plainly, that includes access to affidavit material upon which parties rely; but there is no obvious reason why it should extend to all affidavit material that is filed, including material that is ultimately not relied upon or that, for whatever reason, is not received into evidence.

27    Nonetheless, it is clear that, for present purposes, prejudice to the respondents is insufficient. In order to attract relief under pt VAA, the respondents need to establish that it is necessary to prevent prejudice to the proper administration of justice. Here, where the source of the controversy is human error within the court itself—an argument might be made that such prejudice inheres in the diminution of the court’s reputation or the confidence that the public ought to place in it. Having been responsible for the mess in which the respondents now unwittingly find themselves, might it be said that relief should be granted in order to restore proper confidence in the court, or that the requisite prejudice might result if no such relief issues?

28    Admittedly not without some hesitation (and with no want of sympathy for the respondents), I do not think that it can be. The proposition rests upon the suggestion that the damage to the court’s standing, howsoever measured, grows with the progression of time; and that relief is necessary in order to stem that accumulating harm. I am not persuaded that that is so. The reputational damage to the court, such as it may be, inheres in the mistaken provision of documentary material. That mistake cannot be unmade and the prejudice arising from it—that is to say, the prejudice to the court (and, by extension, to the proper administration of justice)—is irremediable. As Ms Alick pithily put it: the court can no more require, by order, that that prejudice end than it can require, by order, that the tide not come in.

29    Moreover, that prejudice to the court’s reputation stands to be measured, in part, against the prejudice that the respondents have suffered by reason of the articles that have been published and the references within them to the content of the Rapke affidavit. It stands to reason, I think, that the more prejudice that is visited upon the respondents as a consequence of the court’s mistake, the greater may be the diminution in the court’s public standing.

30    As I have already accepted, there is in the relevant articles plainly some unfairness that inheres to the prejudice of the respondents. It is, however, not straightforward to measure. At least some of that content—and likely most of it—reflects matters that are alleged against the respondents in the concise statements that have been filed to date. Access to those documents is not restricted. Likewise, at least part of the content that is the subject of the respondents’ complaint appears to have entered the public domain well before 20 October 2024.

31    Those circumstances accumulate to underline the doubt that I have that relief under pt VAA of the FCA Act will, if granted, prevent prejudice to the proper administration of justice.

32    I do not accept that it is necessary, in order to prevent prejudice of that kind, to make the orders for which the respondents move. The interlocutory application of 26 October 2024 should and will be dismissed, with the usual order as to costs. To the extent that they might need to be, the Publishers are released of the undertaking that they offered on 26 October 2024 (namely that they would not “…publish any article in the future that refers to the Restricted Materials unless the Court has granted leave for that to occur and the Media Companies have given proper notice, in writing, to the Respondents of any application for such leave, or unless the Court has granted leave to non-parties to inspect the Restricted Materials, or unless the Court publishes the Restricted Materials on its website as part of a Public Interest Case/Online File”).

Associate:

Dated:    31 October 2024