FEDERAL COURT OF AUSTRALIA Churche v Australian Securities and Investments Commission [2006] FCA 922 WARWICK JAMES CHURCHE v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION NSD 866 OF 2006 GRAHAM J 13 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 866 OF 2006 BETWEEN: WARWICK JAMES CHURCHE Applicant AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Respondent JUDGE: GRAHAM J DATE OF ORDER: 13 JULY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Notice of Motion filed by the applicant on 22 June 2006 be dismissed. 2. There be no order as to costs on the Notice of Motion. 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 866 OF 2006 BETWEEN: WARWICK JAMES CHURCHE Applicant AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Respondent JUDGE: GRAHAM J DATE: 13 JULY 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 These proceedings were commenced by application NSD 866 of 2006 on 5 May 2006. Relief is sought in the application in respect of a decision said to have been made by the respondent on 27 April 2006 to provide a copy of the transcript of the applicant's s 19 examination under the Australian Securities and Investments Commission Act 2001 (Cth) conducted on 14, 15 and 21 April 2005. 2 Following the investigation which led to the applicant's examination, the respondent wrote to the applicant's solicitors on 10 November 2005 stating: 'As you're aware, the Australian Securities and Investments Commission ... has been conducting an investigation into the circumstances in which [an insurance company] negotiated and entered into certain ... contracts ... I write to advise that, in the view of ASIC, the admissible evidence assembled to date does not constitute a sufficient basis on which a recommendation can be made to the Commonwealth DPP to prosecute any person for a contravention of a provision of the Corporations Act ...' (emphasis added) 3 Whilst the said letter was dated 10 November 2005, it appears that it was either not sent or certainly not received until mid-February 2006. 4 By a Notice of Motion dated 6 June 2006 and filed 22 June 2006, the applicant has sought the making of an order under s 50 of the Federal Court of Australia Act 1976 (Cth). Section 50 relevantly provides: 'The Court may at any time during ... 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 ...' 5 The underlying assumption upon which s 50 is based is the principle of open justice. The possibility of prejudice to the administration of justice must be weighed against the public interest in maintaining open justice. Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle that must be placed on the scales. 6 The derogation from the principle that might be involved in making an order under s 50 may be very great or it might be very small. The degree of derogation from the principle involved in the proposed order is an important matter to be considered in balancing the principle against possible prejudice to the administration of justice (see Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222 at [15]). 7 When the hearing of the applicant's Notice of Motion commenced, Senior Counsel for the applicant indicated that the only order sought was in terms of paragraph 1(b) of the Notice of Motion, namely, an order: 'That until further order of the Court, this matter be listed under the description "[ ]" v ASIC and in particular, such listing shall not mention the name or otherwise identify the applicant.' 8 It became clear from a consideration of Senior Counsel's submissions that more by way of prohibition was sought than was proposed in paragraph 1(b). Following a short adjournment, the applicant reformulated the order that was sought as follows: 'That until further order of the Court, the matter be listed under the description "[X]" v Australian Securities and Investments Commission" and in particular such listing shall not mention the name or otherwise identify the Applicant in the proceedings and publication of the name of the applicant and of any evidence tendered or admitted and any submission made in the proceedings which might identify the applicant is forbidden.' 9 This is not a case where publication of the name of the applicant might lead to a stigma such as that which the applicants referred to in E v Australian Red Cross Society (1991) 27 FCR 310 were exposed to. Those applicants were suing the Australian Red Cross Society in respect of blood products which had been provided for their use and which led to them involuntarily acquiring a medical condition with which a stigma was associated. 10 The case is also unlike that of A v The Minister for Immigration and Ethnic Affairs (1994) 54 FCR 327. That was a case in which a person wished to obtain relief in respect of a decision of the Refugee Review Tribunal. He had a concern that if his identity was revealed and it became known that he had challenged the Tribunal's decision and been unsuccessful in that challenge he would, upon return to the country of his nationality, suffer persecution by the government of that country. Lindgren J, who decided that case, said at 331: '... it is prejudicial to the administration of justice that in these circumstances the applicant should, although aggrieved by the Tribunal's decision, have to choose between exercising in fear the right of application given to him by the AD(JR) Act on the one hand, and accepting the Tribunal's decision that he is not a refugee on the other hand.' 11 The applicant in this case instituted the current proceedings as indicated above on 5 May 2006, some time before the present Notice of Motion was filed. There is no evidence that the current applicant will be deterred by fear of consequences in relation to the disclosure of his identity from continuing with his litigation. 12 The ultimate issue for consideration in the current proceedings is the propriety of the Australian Securities and Investments Commission's decision of 27 April 2006 to provide a copy of a transcript of the three days' examination to the Australian Prudential Regulation Authority. 13 In my opinion, the administration of justice will not be prejudiced by the continued publication of the matter in the list in the conventional way nor will the interests of the administration of justice be prejudiced by the publication of the name of the applicant or evidence and submissions that may be made by which the applicant can be identified. 14 Accordingly, I order that the Notice of Motion filed by the applicant on 22 June 2006 be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham J. Associate: Dated: 19 July 2006 Counsel for the Applicant: M Cashion SC Solicitor for the Applicant: Henry Davis York Counsel for the Respondent: M N Allars Solicitor for the Respondent: S Le Breton of Australian Securities and Investments Commission Date of Hearing: 13 July 2006 Date of Judgment: 13 July 2006