FEDERAL COURT OF AUSTRALIA Herald & Weekly Times Limited v Gregory D Williams (formerly identified as VAI) [2003] FCAFC 217 PRACTICE AND PROCEDURE – application for leave to appeal by the media against a suppression order prohibiting publication of the name or identity of an applicant in a proceeding in the Court – suppression order made by the primary judge to give "practical effect" to a suppression order made by the Administrative Appeals Tribunal – whether the order was necessary in order to prevent prejudice to the administration of justice - whether embarrassing and damaging publicity to an applicant if a suppression order were not made can justify the making of such an order Taxation Administration Act 1953 (Cth) s 14ZZE Administrative Appeals Tribunal Act 1975 (Cth) s 35 Federal Court of Australia Act 1976 (Cth) ss 17(1) and 50 VAI v Forgie [2003] ATC 4263 – cited The Herald and Weekly Times Ltd v Braun [1994] 1 VR 705 - cited Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 - applied Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 – cited John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 – cited Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 – cited John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 – considered Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 - cited Gallo v Dawson (1990) 93 ALR 479 at 480 – cited Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 – cited Engler v Commissioner of Taxation [2002] FCA 620 - cited SRD v Australian Securities Commission (1994) 52 FCR 187 - considered Australian Broadcasting Commission v Parish (1980) 29 ALR 228 - cited Russell v Russell (1976) 134 CLR 495 - considered J v L & A Services Pty Ltd [1995] 2 Qd R 10 - cited The Herald and Weekly Times Ltd v The Magistrates' Court of Victoria [1999] 2 VR 672 - cited The Herald and Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 – cited Scott v Scott [1913] AC 417 – considered Johnston v Cameron (2002) 195 ALR 300 - cited VZZ v Australian Sports Drug Agency [2001] FCA 816 – disapproved THE HERALD AND WEEKLY TIMES LIMITED v GREGORY D WILLIAMS (FORMERLY IDENTIFIED AS VAI) V 123 of 2003 FINN, MERKEL AND STONE JJ 10 SEPTEMBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 123 OF 2003 BETWEEN: THE HERALD AND WEEKLY TIMES LIMITED APPLICANT AND: GREGORY D WILLIAMS (FORMERLY IDENTIFIED AS VAI) FIRST RESPONDENT DEPUTY PRESIDENT FORGIE OF THE ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGES: FINN, MERKEL AND STONE JJ DATE OF ORDER: 10 SEPTEMBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The time within which the applicant may apply for leave to appeal against the order made by the primary judge on 9 December 2003 ("the suppression order") be extended to 30 July 2003. 2. The applicant be granted leave to appeal. 3. The appeal be allowed. 4. The suppression order be set aside. 5. The title to proceeding number V741 of 2002 and to the appeal proceeding numbered V123 of 2003 be amended forthwith by substituting for "VAI" the name "Gregory D Williams (formerly identified as VAI)". 6. The first respondent, Gregory D Williams, pay the taxed costs of the applicant, The Herald and Weekly Times Limited, and of the third respondent, the Commissioner of Taxation of the Commonwealth of Australia, of and incidental to the application for leave to appeal out of time and of the appeal. 7. These reasons for judgment and these orders not be published other than to the parties and their legal representatives prior to 4.15 pm on 10 September 2003 and orders numbered 1 to 6 be stayed until 4.15 pm on 10 September 2003. 8. Reserve liberty to apply to a single judge in respect of a continuation of the orders made in order number 7. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY DISTRICT REGISTRY V123 OF 2003 BETWEEN: THE HERALD AND WEEKLY TIMES LIMITED APPLICANT AND: GREGORY D WILLIAMS (FORMERLY IDENTIFIED AS VAI) FIRST RESPONDENT DEPUTY PRESIDENT FORGIE OF THE ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGES: FINN, MERKEL AND STONE JJ DATE: 10 SEPTEMBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT FINN J: 1 I agree with the reasons and the proposed orders of Merkel J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 123 OF 2003 BETWEEN: THE HERALD AND WEEKLY TIMES LIMITED APPLICANT AND: GREGORY D WILLIAMS (FORMERLY IDENTIFIED AS VAI) FIRST RESPONDENT DEPUTY PRESIDENT FORGIE OF THE ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGES: FINN, MERKEL AND STONE JJ DATE: 10 SEPTEMBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT MERKEL J: 2 The Herald and Weekly Times Limited ("the HWT"), which publishes the Herald Sun newspaper, has applied for leave to appeal and, if leave is granted, appeals against a suppression order made by a judge of the Court on 9 December 2002. On that day the primary judge ordered that publication of the name of the applicant in proceeding V741 of 2002, and any material tending to identify the applicant, be restricted to the Court, the parties and the staff of any transcript provider. As a consequence of the suppression order the applicant, Gregory D Williams ("Williams"), was thereafter identified as "VAI" in the documents filed, and at all hearings, in the Court. 3 The proceeding numbered V741 of 2002, and the HWT's application for leave to appeal to the Full Court, arose in the following circumstances. Williams, a prominent former Australian Rules footballer, was alleged by the third respondent ("the Commissioner") to have received certain income for his services as a footballer from his employer, a club participating in the competition conducted by the Australian Football League ("the AFL"). The Commissioner claimed that the income was disguised as payments made to a construction company, of which Williams was a director, for "consulting services" allegedly rendered by that company to the club. Williams had accepted that the company did not provide any services to the football club, and, as a consequence, the Commissioner claimed that Williams had engaged in tax evasion or fraud in not disclosing the disguised payments as his income. Accordingly, the Commissioner amended the earlier assessments issued to Williams for the years of income ended 30 June 1993, 1994 and 1995 by treating the disguised payments as income of Williams. After the Commissioner decided to disallow Williams' objections to the amended assessments Williams applied to the Administrative Appeals Tribunal ("the AAT") to review the Commissioner's disallowance decisions ("the application for administrative review"). 4 Williams made a request to the AAT pursuant to s 14ZZE of the Taxation Administration Act 1953 (Cth) ("Taxation Administration Act") that the AAT hearing be in private. Relevantly, s 14ZZE provides: "Despite section 35 of the AAT Act, the hearing of a proceeding before the Tribunal … for: (a) a review of a reviewable objection decision; … (b) … (c) … is to be in private if the party who made the application requests that it be in private." 5 Section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") provides, subject to certain exceptions, that hearings of the AAT are to be in public. Williams also applied to the AAT pursuant to s 35(2) of the AAT Act for a suppression order in respect of any material that might lead to his identification. Relevantly, s 35(2)(b) provides that where the AAT "is satisfied that it is desirable to do so" it may, by order: "give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal". 6 On 31 May 2002 the AAT, being "satisfied that it is desirable to do so", ordered that: "publication of the name of the applicant and of any material tending to identify the applicant be restricted to members and staff of the Tribunal, the parties and their representatives and staff of Auscript." Section 63(d) of the AAT Act provides that a person shall not: "do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court." The penalty for contravention of s 63(d) is $1,000 or imprisonment for 3 months. 7 At a directions hearing in relation to the application for administrative review Williams applied unsuccessfully to the AAT, constituted by the second respondent, for a direction that the Commissioner provide further and better particulars of the allegations of evasion or fraud. Williams then applied to the Court, pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the application for judicial review"), to restrain the AAT from proceeding with the application for administrative review until the particulars were provided. 8 On 9 December 2002, at the first directions hearing before the primary judge, Williams requested that a suppression order be made substantially in the same terms as the order made by the AAT. The second respondent did not appear at the directions hearing. The Commissioner did not consent to or oppose the making of the order sought by Williams. Senior Counsel for Williams referred the primary judge to s 50 of the Federal Court of Australia Act 1976 (Cth) ("FCA Act") and submitted that in the present case the administration of justice required a departure from the "open court" rule as it was an interlocutory appeal in a matter where Williams was entitled to a private hearing and confidentiality in respect of his identity as a result of the orders of the AAT and the provisions of the Taxation Administration Act. 9 Section 50 provides: "The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth." 10 At the conclusion of the directions hearing the primary judge ordered that: "The publication of the name of the applicant and of any material tending to identify the applicant be restricted to members and staff of the Court, the parties and their representatives and the staff of any transcript provider." 11 On 18 February 2003 the primary judge dismissed the application for judicial review under s 39B of the Judiciary Act 1903 (Cth): see VAI v Forgie [2003] ATC 4263. When the primary judge handed down his reasons for decision dismissing the application for judicial review he stated at 4,265 [3]: "The applicant requested the Tribunal that the proceeding be in private. As a result, pursuant to s 14ZZE of the Taxation Administration Act 1953 (Cth) (Taxation Administration Act), he was entitled to have the hearing in private. In order to give practical effect to that statutory entitlement before the Tribunal, on 9 December 2002, I ordered that the publication of the name of the applicant and of any material tending to identify the applicant be restricted to members and staff of the Court, the parties and their representatives and the staff of any transcript provider. This explains why the applicant is referred to in these reasons as VAI, and why certain otherwise identifying facts have been referred to in a way which does not identify the applicant." 12 On 11 March 2003 Williams filed a notice of appeal to a Full Court against the decision of the primary judge dismissing the application for judicial review. On or about 24 March 2003 Mr Russell Robinson, a journalist employed by the HWT, became aware of the proceeding that had been before the primary judge. Mr Robinson wishes to write, and have published in The Herald Sun, an article concerning the proceeding before the primary judge, but he is "substantially precluded from doing so" by reason of the suppression order. On or about 15 April 2003 the HWT gave instructions to its solicitors to seek to have the suppression order vacated. On 12 May 2003, after the solicitors for the HWT failed to obtain the consent of Williams' solicitors to set aside the order, the HWT filed a notice of motion seeking, amongst other things, to have the suppression order set aside. The motion was originally returnable before the primary judge on 6 June 2003 but did not come on for hearing until 4 July 2003. It was part heard on that day and resumed on 10 July 2003. At the conclusion of the hearing on 10 July his Honour adjourned the further hearing of the motion to a date to be fixed, "unless the Full Court is moved in the meantime" to grant leave to appeal against his suppression order. 13 The argument before the primary judge on 4 and 10 July 2003 was concerned, inter alia, with whether his Honour was functus officio as he had dismissed the application for judicial review on 18 February 2003. Before his Honour the HWT contended that the suppression order was an interlocutory order in respect of which his Honour remained in control. Williams, however, contended that the suppression order was a final order and that, accordingly, his Honour was functus officio and had no jurisdiction to revisit it. Before the Full Court Williams did not seek to support that contention but, rather, accepted that the suppression order was an interlocutory order. The inconsistent positions taken by Williams before the primary judge and before the Full Court were not the subject of any explanation to the Full Court. 14 On 29 July 2003 Williams filed a Notice of Discontinuance of his appeal, which had been listed to be heard by this Full Court on 5 August 2003. This was after correspondence with the solicitors for the HWT in which they stated that in the absence of any suppression order by the Full Court the HWT would "publish a fair and accurate report" of the proceeding in the Full Court. Williams' solicitor stated in an Affidavit that Williams had discontinued the appeal because of the HWT's stated intention to publish a report of the proceeding before the Full Court. On 30 July 2003 the HWT applied to the Full Court for leave to appeal against the suppression order made by the primary judge. The issues before the Full Court are whether the HWT should be given leave, as a non-party, to appeal against the suppression order, and if so, whether the appeal should succeed. 15 It was not contended by any of the parties that the suppression order made by the primary judge was not an interlocutory order. Whatever might be thought to be the situation in respect of a contested application for a final suppression order under a particular enactment (see for example The Herald and Weekly Times Ltd v Braun [1994] 1 VR 705 ("Braun") at 711), I doubt that the exercise of the Court's power to make a suppression order under s 50 of the FCA Act in the present case could, properly, be viewed as a final order. 16 The suppression order was made by the trial judge at the first directions hearing after only cursory argument and without any contradictor in respect of the order. It is likely that the primary judge intended that the order was to operate until further order, although he did not state that in his order. In any event, irrespective of whether the order is final or interlocutory, the HWT requires leave to appeal as it was not a party in the proceeding before the primary judge: see s 24 of the FCA Act and Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 98 FCR 31 ("the CFMEU case") at 36-37. To obtain such leave a non-party is usually required to demonstrate that it is "aggrieved" or "prejudicially affected" by the orders made or is "sufficiently interested" in the proceeding to be given leave to appeal: see CFMEU at 36-37 and the cases there cited. 17 It is well established that, generally, the media will have the requisite standing to challenge a suppression order: see for example Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 7-9; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 470 ("John Fairfax v Police Tribunal"); Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 at 167-169; John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 ("John Fairfax v Local Court"); and Braun [1994] 1 VR 705 at 711. The HWT wishes to publish an article concerning Williams and the proceedings before the Court but is prohibited from doing so by reason of the suppression order. Plainly, it has a sufficient interest to be granted leave to appeal against that order. 18 In the CFMEU case at 37 the Full Court observed that whether the decision sought to be appealed from is attended by sufficient doubt to warrant reconsideration by a Full Court, and whether substantial injustice would result if leave were refused supposing the decision to be wrong (see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399), are factors that are relevant to whether the Court should exercise its discretion to grant leave to appeal to a non-party. In those circumstances the question of whether the order sought to be appealed from is interlocutory or final may not be of significance: see the CFMEU case at 37. As will later appear in these reasons, I am satisfied that the decision of the primary judge is attended by sufficient doubt to warrant reconsideration by a Full Court. Further, there would plainly be prejudice to the HWT and to the administration of justice if the suppression order was wrongly made, but was allowed to stand. Subject to the issue of delay, I am in no doubt that the leave sought by the HWT should be granted. 19 As was pointed out on behalf of Williams, any appeal by the HWT is out of time. Order 52 r 5 of the Federal Court Rules 1979 (Cth) requires an appeal against a judgment that requires leave to be made within 21 days from the date of the judgment. In determining whether to extend time regard is usually to be had to the history of the proceeding; the conduct of the parties; the nature of the litigation; the consequences to the parties of the grant or refusal of an extension; and the prospects of success if the extension is granted: see Gallo v Dawson (1990) 93 ALR 479 at 480; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495 and Engler v Commissioner of Taxation [2002] FCA 620 at [12]. 20 Williams contends that the HWT allowed more than three months to elapse between the time it became aware of the suppression order and when it filed its motion to the Full Court for leave to appeal. While that contention is literally correct it fails to take account of the steps taken during that period by the HWT to seek Williams' consent to setting aside the suppression order and to then apply to the primary judge to set the order aside after Williams' consent was not forthcoming. It is unnecessary to detail those steps as I am satisfied that the HWT acted reasonably in endeavouring to obtain Williams' consent to set aside the suppression order and in then applying to the primary judge to do so. It was not through any fault on the part of the HWT that its application to the primary judge was not concluded prior to Williams' appeal coming on for hearing before the Full Court. Indeed, had Williams not contended that the order of the primary judge was a final order and that, as a consequence, he was functus officio it is likely that the primary judge would have concluded his hearing of the HWT's application and there may have been no need for the HWT to apply to the Full Court for leave to appeal against the suppression order. 21 However, Williams contended that he will suffer prejudice if the HWT is now allowed to appeal. He claims that from 9 December 2002 he has proceeded on the basis that the proceeding and any appeal would not result in publication of his name or anything that might identify him. There is no proper basis for Williams, or his legal advisers, to form that view. It was always open to the media, as a non-party, to apply to the primary judge to have the order set aside (if it was an interlocutory order) or to apply for leave to appeal (irrespective of whether it was a final or interlocutory order). Further, once an appeal to the Full Court had been instituted it was open to the Full Court to determine whether the suppression order should operate in respect of the appeal. 22 There is also no proper basis for Williams' additional contention that the discontinuance of his appeal should shut out any legal basis for the HWT to pursue any appeal to the Full Court in respect of the suppression order. Section 50 provides that a suppression order can be made before and after the hearing of a proceeding in the Court. It must follow that an order setting aside a suppression order can, likewise, be made before or after the hearing of a proceeding in the Court. 23 In all the circumstances I am satisfied that the HWT should be granted leave to appeal out of time. 24 I now turn to consider whether the primary judge erred in making the suppression order. The HWT submitted that the primary judge erred because: · he treated the preservation of Williams' statutory entitlement to privacy under s 14ZZE of the Taxation Administration Act and the benefit of the suppression order under s 35(2) of the AAT Act (which, for convenience, I will refer to as Williams' statutory entitlement to "privacy and confidentiality") as relevant to the question of whether the Court should make a suppression order under s 50 of the FCA Act: see SRD v Australian Securities Commission (1994) 52 FCR 187 ("SRD") at 193; · he did not address the question that s 50 mandates, namely, whether the suppression order was necessary in order to prevent prejudice to the administration of justice; · there was no evidence or other material before the Court that the order was necessary to prevent prejudice to the administration of justice: see John Fairfax v Police Tribunal at 477; and · in exercising his discretion under s 50 of the FCA Act the primary judge did not weigh the countervailing public interest of open justice against ensuring justice between the parties: see Australian Broadcasting Commission v Parish (1980) 29 ALR 228 ("Parish")at 234 and 244-245. 25 Williams' riposte was that it was open to the primary judge to conclude that the suppression order was necessary in order to prevent prejudice to the administration of justice because: · the review sought in the Court related to an interlocutory matter in the AAT, and the AAT had not yet heard the application for administrative review; · the failure of the Court to make a suppression order would render the antecedent suppression order of the AAT, and the private hearing to which Williams was still entitled, nugatory; and · the "due administration of justice demands" an applicant should be entitled to apply to the Court to review an interlocutory decision of the AAT and still have the ability to maintain the privacy and confidentiality of the matter in the AAT. 26 Williams' entitlement to maintain the privacy and confidentiality of the application for administrative review in the AAT, which arises under s 14ZZE of the Taxation Administration Act and ss 35(2) and 63(d) of the AAT Act, relates to the application for administrative review in the AAT. Upon a proceeding being commenced in the Federal Court an entirely discrete and different statutory regime applies in respect of court documents, evidence and submissions. Under that regime, subject to certain exceptions, the jurisdiction of the Court "shall be exercised in open court": see s 17(1) of the FCA Act. The exception that is relevant to the present case is s 50 of the FCA Act which, unlike s 35 of the AAT Act (which empowers the AAT to make a suppression order if it is "desirable to do so"), only empowers the Court to exercise its discretion to make such an order where the order appears to the Court to be "necessary in order to prevent prejudice to the administration of justice". Williams applied to the primary judge for, and was granted, a suppression order, not in respect of material before the AAT but, rather, in respect of material before the Court. The fact that some of the material before the Court reproduced material before the AAT is not to the point. Once the material was filed in or was otherwise before the Court, subject to any specific statutory exceptions, the Court's, and not the AAT's, statutory regime applied to it. 27 One such statutory exception, which has no application to the present case, relates to documents in respect of which a certificate has been issued by the Commonwealth or a State Attorney-General pursuant to ss 28(2), 36(1), 36B(1) or 39B(2) of the AAT Act. Under those sub-sections an Attorney-General may certify that disclosure of a matter contained in the documents is contrary to the public interest for one of the reasons therein set out. If such a certificate is in force, and the AAT is required to send the documents to the Court (for the purposes of an appeal to the Court in accordance with s 44 of the AAT Act or where a question of law is referred to the Court in accordance with s 45 of the AAT Act), then, subject to s 46(3) of the AAT Act, the Court is to do "all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding" (s 46(2) of the AAT Act). 28 Save for the "public interest" provisions set out above there is nothing in the Taxation Administration Act or the AAT Act which evidences a legislative intention that the privacy or confidentiality that might prevail when a matter is before the AAT should continue once a proceeding, which arises out of or relates to the matter in the AAT, is commenced in the Court. 29 In SRD at 193 Hill J observed that a fundamental difference between the AAT and the Court is that the AAT is one of the layers of administrative decision-making by the Commonwealth and the Court exercises the judicial power of the Commonwealth. In Russell v Russell (1976) 134 CLR 495 at 520 Gibbs J stated: "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] A.C. 417, at p.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 hall-mark of judicial as distinct from administrative procedure' (McPherson v McPherson [1936] A.C. 177, at p.200)." 30 The fundamental differences between the AAT and the Court, and the different criteria that are to be applied in respect of suppression orders under s 35 of the AAT Act and s 50 of the FCA Act, afford strong support for the view that there is no legislative intention that the privacy and confidentiality in relation to a matter in the AAT should continue when that matter, or a part thereof, comes before the Court. When the matter comes before the Court pursuant to ss 44 or 45 of the AAT Act, s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administration Decisions (Judicial Review) Act 1977 (Cth) the criterion prescribed by s 50 must be satisfied before a suppression order may be made. 31 Thus, before exercising the power conferred by s 50 of the FCA Act the primary judge was required to determine whether it appears that the order sought was "necessary in order to prevent prejudice to the administration of justice". Section 50 is concerned with prejudice in respect of the exercise by the Court of the judicial power of the Commonwealth, rather than prejudice in respect of the exercise by the AAT of the administrative power of the Commonwealth. Maintaining or, as the primary judge put it, "giving practical effect" to Williams' statutory entitlements to privacy and confidentiality in relation to the application for administrative review in the AAT may, or may not, be necessary in order to prevent prejudice to the exercise by the AAT of its powers but cannot, standing alone, be necessary in order to prevent prejudice to the exercise by the Court of its judicial powers. 32 A similar view was expressed by Hill J in SRD at 193 where his Honour, in dealing with an application for a suppression order under s 50 of the FCA Act, stated that "nothing turns upon the fact that Parliament has provided that proceedings … are to be in private". Although his Honour was dealing with an application to the Court for a suppression order in a matter which had been finally determined by the AAT, there is no reason why the same principle should not apply in respect of any proceeding in the AAT, irrespective of whether the proceeding had been completed, or is only at an interlocutory stage, when the matter comes before the Court. Certainly, there is nothing in the AAT Act that suggests that in respect of applications to the Court a distinction should be drawn between the final and interlocutory stages of a proceeding in the AAT. In that regard, s 45 of the AAT Act provides for a question of law to be referred to the Court at any stage of the proceeding before the AAT. 33 It follows from the foregoing discussion that maintaining the "practical effect" of Williams' statutory entitlements in respect of privacy and confidentiality in relation to Williams' proceeding in the AAT cannot afford a proper basis for the primary judge to determine that a similar order appears to be "necessary in order to prevent prejudice to the administration of justice". As the primary judge made the suppression order on the basis of a consideration that is irrelevant to whether the criterion in s 50 of the FCA Act was satisfied his Honour erred in law. That leaves open for consideration whether there was any other basis for the making of the suppression order made by his Honour. 34 It was likely Williams would be the subject of embarrassing and damaging publicity if the suppression order was not made. However, as was pointed out by Kirby P in John Fairfax v Local Court (at 142): "It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: see, eg, David Syme & Co Ltd v General Motors-Holden's Ltd (at 307); Raybos Australia Pty Ltd v Jones (at 58); R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 235; R v Bromfield, Malcolm CJ (at 22); Rockett v Smith, per Derrington J (at 7). A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice." See also J v L & A Services Pty Ltd [1995] 2 Qd R 10 at 45; The Herald and Weekly Times Ltd v The Magistrates' Court of Victoria [1999] 2 VR 672 at 679 [56]; and The Herald and Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 295 [93]. 35 The policy reasons for adhering to an open system of justice were explained in Scott v Scott [1913] AC 417 where Lord Shaw observed at 484-485: "may not the fear of giving evidence in public, on questions of status like the present, deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One's experience shews that the reluctance to intrude one's private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keep us secure". Lord Atkinson observed at 463: "The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses … but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect." 36 A different situation might arise, for example, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the Court, or "if there was a real risk as opposed to a remote possibility that this would occur": see Johnston v Cameron (2002) 195 ALR 300 at 319. If that situation arises it can be weighed in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice. However, that situation has not arisen in the present matter. 37 Although Williams' solicitor stated in an Affidavit that Williams had discontinued his appeal to the Full Court because of the HWT's stated intention to publish a report concerning the Full Court proceeding, in the absence of evidence from Williams on that matter I would not be prepared to infer from that statement that there was a real risk that Williams would have been prevented or deterred from commencing or prosecuting his proceeding in the Court if a suppression order was not made. Plainly, the subject matter of the proceeding and the identity of Williams and his club presented a likelihood of media publicity in respect of his proceeding, but Williams presented no evidence that that prevented or deterred him from commencing the proceeding or from prosecuting his appeal, even after he was aware that the HWT was seeking to set aside the suppression order made by the primary judge. Further, there must have been real doubt as to whether a suppression order would be made, but that also did not appear to deter or prevent Williams from commencing his proceeding. I would add that, even if I were satisfied of a risk of deterrence if publicity were to occur that would not, in the circumstances of the present case, outweigh the countervailing public interest of open justice. 38 Williams contended that the decision of Goldberg J in VZZ v Australian Sports Drug Agency [2001] FCA 816 ("VZZ") supported the approach taken by the primary judge. In VZZ the applicant applied to the Court under s 44 of the AAT Act for the review of an interlocutory decision of the AAT. Although his Honour dismissed the application he continued a suppression order that he had made under s 50 of the FCA Act in relation to the identity of the applicant. After considering the decision of Hill J in SRD his Honour stated at [29]-[31]: "29. In the circumstances, I consider it appropriate that the order made under s 50 continue. I take into account the following circumstances. The applicant is aged 17 years of age and there is the potential for substantial damage to her reputation and career, especially at this early stage of her career, if an order is not made pending the final outcome of the review before the Tribunal which has not yet taken place. 30. Although, as Hill J pointed out in SRD v Australian Securities Commission (supra), there is a fundamental difference between a Tribunal and the Court, I take into account that the Tribunal has made a similar order, presumably under s 35 of the Administrative Appeals Tribunal Act, pending the determination of the review before it. The form of order which was made by the Tribunal on 22 June 2001 is headed 'Re VZZ v Australian Sports Drug Agency'. Under s 35(2) of the Administrative Appeals Tribunal Act, the Tribunal was empowered to make an order prohibiting the publication of the names of witnesses appearing before it. 31. This is an unusual case because of the order already made by the Tribunal which is still operative pending its decision on the review. It is desirable and appropriate that the preservation of that situation put in place by the Tribunal be maintained pending the determination of the review before the Tribunal. If I were not to grant the order sought at this stage, that refusal would render ineffective the order made by the Tribunal. In all the circumstances, it seems to me appropriate that, until the hearing and determination of the application for review before the Tribunal, the procedure adopted by the Tribunal be maintained. Although the Court is concerned to ensure that open justice is maintained wherever possible, I consider that the particular circumstances of this case, particularly the young age of the applicant and the fact that the review by the Tribunal is yet to take place, make it appropriate to make an order under s 50 of the Act." 39 For the reasons set out above his Honour erred in relying upon the preservation of the privacy and confidentiality put in place by the AAT as a ground for satisfying the criterion prescribed by s 50 of the FCA Act. It also must follow from the cases cited above that the potential damage to the applicant's reputation and career were also not factors which, standing alone, would satisfy that criterion. While the position might be otherwise if there was a real risk that the applicant would be prevented or deterred from bringing the proceeding if a suppression order were not made, his Honour did not suggest that that factor had arisen in the case before him. Accordingly, although VZZ supports the contentions of Williams, in my view his Honour erred in making the suppression order in VZZ on the basis of considerations that did not satisfy the criterion prescribed by s 50. 40 For the foregoing reasons I would make the following orders: · the time within which the HWT may apply for leave to appeal be extended to 30 July 2003; · the HWT be granted leave to appeal against the suppression order made by the primary judge on 9 December 2003; · the appeal be allowed; and · the suppression order of 9 December 2003 be set aside; · the title to the proceeding before the primary judge and to the appeal be amended forthwith by substituting for "VAI" the name "Gregory D Williams (formerly identified as VAI)". 41 I am also satisfied that, in all the circumstances, the costs of the HWT's application should follow the event. Accordingly, I would order that Williams pay the taxed costs of the HWT, and of the Commissioner, of and incidental to the HWT's application for leave to appeal out of time and of the appeal. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY DISTRICT REGISTRY V123 OF 2003 BETWEEN: THE HERALD AND WEEKLY TIMES LIMITED APPLICANT AND: GREGORY D WILLIAMS (FORMERLY IDENTIFIED AS VAI) FIRST RESPONDENT DEPUTY PRESIDENT FORGIE OF THE ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGES: FINN, MERKEL AND STONE JJ DATE: 10 SEPTEMBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT STONE J: 42 I agree with the reasons and the proposed orders of Merkel J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: Counsel for the Applicant: Mr DT Houghton QC with Mr DW Bennett Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the First Respondent: Mr J Elliott Solicitor for the First Respondent: Maddocks For the Second Respondent: No appearance Counsel for the Third Respondent: Mr WB Zichy-Woinarski QC with Mr T Murphy SC Solicitor for the Third Respondent: Australian Government Solicitor Date of Hearing: 5 August 2003 Date of Judgment: 10 September 2003