FEDERAL COURT OF AUSTRALIA C v Australian Crime Commission [2005] FCA 1736 C AND ORS v AUSTRALIAN CRIME COMMISSION NSD 1358 of 2005 ALLSOP J 21 NOVEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1358 of 2005 BETWEEN: C FIRST APPLICANT R SECOND APPLICANT D THIRD APPLICANT A FOURTH APPLICANT M FIFTH APPLICANT AND: AUSTRALIAN CRIME COMMISSION RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 21 NOVEMBER 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The names of the applicants herein not be published. 2. The proceedings continue by the applicants in pseudonyms C, D, A and M respectively. 3. Confidential affidavits sworn by Kevin Patrick Considine on 16 November and 21 November 2005, exhibits KPC1 to KPC6 to the confidential affidavit of 16 November and the confidential exhibits to the affidavit of David Peter Rydon sworn 9 November 2005 (misstated on the first page as sworn on 9 October 2005) be and remain confidential and not be distributed or disclosed to any party. 4. The confidential affidavits and exhibits referred to in order 3 may, if no application for leave to appeal these orders is made, after 10 days from today, be returned to: (a) as the Australian Crime Commission, all such material; and (b) as to the applicants, only the exhibits to Mr Rydon's affidavit. 5. I note out of abundance of caution that no party other than the Australian Crime Commission shall have access to Mr Considine's confidential affidavits or exhibits KPC1 to KPC6. 6. The notice of motion filed on behalf of the applicants be stood over generally. 7. The amended notice of motion filed on behalf of Nationwide News Pty Ltd be dismissed. 8. Each party to pay its or their costs of all the notices of motion. 9. Subject to the views of the docket Judge the Australian Crime Commission raise with the Court the need for the continuation of these orders: (a) If, in its view, the need for them ceases or changes; and (b) In any event on or about the week commencing 1 May 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1358 of 2005 BETWEEN: C FIRST APPLICANT R SECOND APPLICANT D THIRD APPLICANT A FOURTH APPLICANT M FIFTH APPLICANT AND: AUSTRALIAN CRIME COMMISSION RESPONDENT JUDGE: ALLSOP J DATE: 21 NOVEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 I have before me three notices of motion. The first was filed in Court last Thursday 17 November 2005 by the respondent to the proceedings, the Australian Crime Commission ("ACC"), seeking orders: 1. Pursuant to section 50 of the Federal Court of Australia Act that the names of the applicants herein and any information which may directly or indirectly identify them be forbidden from publication. 2. Pursuant to the implied jurisdiction of the Court that the following information or documents be suppressed from publication on grounds of public interest immunity. 2.1. The confidential affidavit sworn by Kevin Considine on 16 November 2005, and 2.2. The names of the applicants herein and any information which may directly or indirectly identify them in connection with these proceedings. 2 I would take it that the notice of motion is sought to be amended to add the confidential affidavit of Mr Considine sworn today and all confidential exhibits and annexures to those affidavits. 3 The second notice of motion was brought by the five applicants to the proceeding for, in effect, identical orders in terms but made mutatis mutandis in relation to the confidential exhibits to the affidavit of David Peter Rydon sworn on 9 November 2005. 4 In substance, both these motions seek orders suppressing the names of the applicants in these proceedings together with the confidential evidence led before me in support of the application. 5 The third motion is an amended notice of motion filed on behalf of Nationwide News Pty Limited. In terms it is unnecessary to set out in detail. The substance of the amended motion, as now pressed, was for disclosure of the summonses issued by the respondent ACC to each of the five applicants which are referred to in the amended statement of claim. 6 The background sufficient to understand the three notices of motion is that the respondent is conducting an investigation into taxation-related matters which are described in various media statements and media releases made by the respondent as follows: The investigation is targeting a range of promoters and participants allegedly involved in concealing substantial taxable income through falsifying documents and transactions. We estimate potential loss of revenue to the government at $300 million. 7 The above is taken from a media statement made by the respondent on 10 June 2005. On the same day the Minister for Justice and Customs, the Honourable Christopher Ellison, also made a media release indicating that the ACC had executed 48 search warrants across four states in relation to what is alleged to be highly organised efforts to defraud the Commonwealth of tax revenue estimated at more then $300 million. 8 On 14 June 2005 there was a media release by the ACC of some two pages setting out in general terms what was being done and what was called Operation Wickenby. Thereunder, there was a chronology of events and background. 9 On 29 June 2005 there was another media release by the respondent being an update of operation Wickenby in which the execution of another search warrant and a Brisbane business was discussed. Hardly surprisingly, those media releases seem to have come to the attention of the media and a good deal of interest has been shown on the evidence before me by the media print, and other. 10 The affidavits of Mr Todd and Ms Scobie of Blake Dawson Waldron set out in some detail the matters that have been canvassed in the press and various persons who have, been said by the press to be, involved. 11 The applicants were served with summonses under the relevant legislation. The applicants themselves wish to keep their names secret as long as possible for reasons which can be summarised perhaps inadequately for their purposes as embarrassment. The matters, of course, put carefully by Mr Einfeld QC last week go beyond mere embarrassment. However, I use that as a convenient label so that this judgment can be understood. 12 The ACC seeks the orders it does, not out of tenderness for the reputations of the applicants but rather because of what is said would be a prejudicing of ongoing investigations of the kind that I have identified. Prior to last week, the proceedings had been begun by the applicants having obtained a dispensation from a Judge of the Court from the application of the rules requiring their full names to be set out in the court process. The matter came before me last week, having been listed for directions before Emmett J the week before. 13 It was plain upon my reading of the file that there was no existing evidence on the Court file to substantiate and support the continuation of the orders that have been previously made. Given that a third party with a legitimate interest, albeit one founded on, to a substantial degree, private interest, was now involved it became necessary for the applicants and the ACC to substantiate and justify the suppression. 14 Partly, perhaps, by reason of what was discussed at the directions hearing conducted by Emmett J and partly no doubt from a mixture of common sense and experience, motions were brought on by the applicants and the Commissioner. 15 The motion brought on by the applicants was supported by a non-confidential affidavit of David Peter Rydon sworn 9 November 2005. Mr Rydon is a solicitor at the firm of Cosoff Cudmore Knox. The affidavit had a confidential body of exhibits about which I made an order last week. There were two fundamental foundations for the order sought by the applicants. One was the damage that might be caused to their reputations and possibly damage to third parties by reason of their being associated with the investigation in the manner that has occurred, that is, what I previously referred to as embarrassment. The second ground was the operation of ss 29A and 29B of the Australian Crime Commission Act 2002 which on one construction may raise the question as to whether or not anyone can approach this or any other court exercising the judicial power of the Commonwealth to assert rights against alleged wrongful conduct of an officer of the Commonwealth without obtaining a secrecy order of the kind that was obtained here. If that were the proper construction of ss 29A and 29B there may arise an issue as to the interference with the exercise of the judicial power of the Commonwealth under Chapter III of the Constitution, even if it be the case that the court exercising the power is a statutory court. For reasons which I will come to in a moment, it is unnecessary for me to deal with the motion of the applicants. It is appropriate, however, for me to make the following comments for the record and for the benefit of the parties. Were the notice of motion of the applicants only to be propounded on the first basis to which I have referred, I would not have been prepared to continue the orders. It is unnecessary for me to deal with that in any detail save and except that balancing the interests of the public and the due administration of justice in the manner discussed by the then Chief Judge of this Court, Sir Nigel Bowen, and Franki J and Deane J in ABC v Parish (1980) 43 FLR 129. I would have been of the view that the material provided was inadequate to warrant an order. Because of the view that I take in relation to the ACC's motion, it is unnecessary to embark on the course necessary to deal with ss 29A and 29B. 16 Were argument necessary to deal with those sections, in my view, notices under s 78B of the Judiciary Act 1903 (Cth) would need to be given to the Attorneys-General of the States, Territories and Commonwealth in relation to the argument about those sections. Thus, for present purposes, the only order that I propose to make in relation to the notice of motion brought by the applicants is to adjourn it and make an order that the applicants pay their own costs of their motion. 17 Turning to the notice of motion of the ACC, that was supported by a non-confidential affidavit of Kevin Patrick Considine sworn 16 November 2005. It was also supported by a confidential affidavit of Mr Considine sworn also on 16 November 2005. 18 Mr Considine's confidential affidavit as sworn had seven annexures separately created, KPC1 through to KPC7. It was recognised by counsel for the ACC at the hearing on Thursday 17 November 2005 that in fact annexure KPC7 was not confidential, being merely a collection of the media releases of the ACC. 19 Looking at that material on Thursday I was not persuaded by it that it would necessarily be appropriate to make any orders of the kind sought in the notice of motion. I gave the ACC an opportunity to supplement its evidence. No opposition was taken to that course and in the light of the authorities to which I have been taken confirm that this was the correct course to take. 20 There was filed in Court today a supplementary affidavit of the same Mr Considine sworn today. I have read that affidavit carefully. It is inappropriate, of course, for me to deal with the detail of it but I am persuaded that in all the circumstances there is a real risk, and one that is far from fanciful, that if the names of the applicants were disclosed and made public that there would be an interference with an investigation being conducted by the respondent into of matters of some gravity. 21 Bearing that in mind and weighing that against what I consider to be the serious step of keeping from the general public the names of people suing in this Court and balancing the public interest and the due administration of justice I am prepared to make the orders sought by the ACC. 22 I should add, however, that one of the matters that made the decision much harder than it perhaps might otherwise have been is the fact that the ACC, no doubt for its own good reasons and I make no criticism of it, seems to have brought about a considerable body of this publicity through its own steps of using media releases to give the general nature of the investigation being undertaken. 23 Notwithstanding that, and I say once again that is said without any criticism, it was necessary for me to understand in that light and in the light of the perfectly understandable interest that it has created in the media why the continuing suppression of the names of these applicants might be reasonably thought to have a prejudicial impact upon the conduct of the investigation. Balancing the considerations to which I have referred and the contents of Mr Considine's second affidavit I propose to make orders of the kind sought by the ACC. 24 That conclusion would lead to the dismissal of the notice of motion of Nationwide News. By way of clarification of its position, on Thursday Mr Walker SC appeared leading Mr Leopold for Nationwide News. I granted leave to Nationwide News to intervene in the main proceedings. I did this for a number of reasons: First, because of Nationwide News' own notice of motion, secondly, because of the unusual nature of the joint but really several application for the same relief by the applicants and the respondent I thought in all the circumstances that it proper to have a contradictor and Mr Walker and Mr Leopold and their solicitors fulfilled that task by my giving them permission to, in effect, intervene. 25 Mr Southall QC who appears with Ms Maharaj for the ACC referred me to various cases this morning which more precisely identify that the application for relief based on public interest immunity, strictly speaking not part of the substantive lis, and in one sense perhaps Nationwide News was not, strictly speaking, an intervener in that motion of the ACC. Those precise procedural details need not, however, trouble me any further, nor need they be reflected in the orders. 26 Before coming to precise orders I propose that each party pay its and their own costs. I do this for the following reasons. In my view the applicants and the respondent would have been obliged to justify their position in any event. I use that expression without the slightest criticism of either them or, it goes without saying, the Judges of the Court who dealt with the matter beforehand. It was not clear to me what was before the Judges. However, as far as I was concerned, the orders required substantiation. I do not see the costs that have been undertaken and expended by the applicants and the respondent as having been, in the relevant sense, brought about by or increased by the intervention. 27 Nationwide News has failed on its notice of motion. However, given the matters to which I have just referred in all the circumstances I think it appropriate that it pay its own costs and not the costs of the applicants and the ACC. 28 Lest there be any doubt about it because there has been an application made by other media interests or persons associated with other media interests for access to the non‑confidential material, the non-confidential material to which I give access to that party will be the non-confidential affidavit of Mr Rydon, the non-confidential affidavit of Mr Considine, exhibit KCP7 to the confidential affidavit of Mr Considine which is not confidential, and unless there is any objection, the affidavits of Mr Todd and Ms Scobie that were filed on behalf of News Limited. 29 The orders I make are as follows. Subject to further order: 1. The names of the applicants herein not be published. 2. The proceedings continue by the applicants in pseudonyms C, D, A and M respectively. 3. Confidential affidavits sworn by Kevin Patrick Considine on 16 November and 21 November 2005, exhibits KPC1 to KPC6 to the confidential affidavit of 16 November and the confidential exhibits to the affidavit of David Peter Rydon sworn 9 November 2005 (misstated on the first page as sworn on 9 October 2005) be and remain confidential and not be distributed or disclosed to any party. 4. The confidential affidavits and exhibits referred to in order 3 may, if no application for leave to appeal these orders is made, after 10 days from today, be returned to: (a) as the Australian Crime Commission, all such material; and (b) as to the applicants, only the exhibits to Mr Rydon's affidavit. 5. I note out of abundance of caution that no party other than the Australian Crime Commission shall have access to Mr Considine's confidential affidavits or exhibits KPC1 to KPC6. 6. The notice of motion filed on behalf of the applicants be stood over generally. 7. The amended notice of motion filed on behalf of Nationwide News Pty Ltd be dismissed. 8. Each party to pay its or their costs of all the notices of motion. 9. Subject to the views of the docket Judge the Australian Crime Commission raise with the Court the need for the continuation of these orders: (a) If, in its view, the need for them ceases or changes; and (b) In any event on or about the week commencing 1 May 2006. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 6 December 2005 Counsel for the Applicants: Mr M Einfeld QC Solicitor for the Applicants: Cosoff Cudmore Knox Counsel for the Respondent: Mr A Southall QC with Ms S Maharaj Solicitor for the Respondent: Australian Crime Commission Counsel for Nationwide News Pty Ltd: Mr B Walker SC with Mr A Leopold Solicitor for Nationwide News Pty Ltd: Blake Dawson Waldron Date of Hearing: 17, 21 November 2005 Date of Judgment: 21 November 2005