FEDERAL COURT OF AUSTRALIA Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 Appeal from: Chen and Migration Agents Registration Authority (Migration) [2016] AATA 188 File number: NSD 590 of 2016 Judge: GRIFFITHS J Date of judgment: 2 June 2016 Catchwords: PRACTICE AND PROCEDURE – whether applicant's name should be suppressed pursuant to Pt VAA of the Federal Court of Australia Act 1976 (Cth) or the Court's inherent power – whether suppression order should be made to protect business reputation and avoid personal embarrassment – no suppression order sought below Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss 42B, 42B(1)(b), 44 Federal Court of Australia Act 1976 (Cth), Pt VAA, ss 37AE, 37AF, 37AG, 37AG(1), 50 Migration Act 1958 (Cth), s 289A Cases cited: ASE16 v Australian Securities and Investments Commission [2016] FCA 321 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 Australian Competition and Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344 Rinehart v Rinehart [2014] FCA 1241; 320 ALR 195 Stanford v DePuy International Ltd [2013] FCA 1304 Date of hearing: 2 June 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Dr R Harper SC Solicitor for the Applicant: SHS Law Pty Ltd Solicitor for the First Respondent: Mr L Leerdam of DLA Piper Counsel for the Second Respondent: The Second Respondent submitted to any order the Court may make, save as to costs. ORDERS NSD 590 of 2016 BETWEEN: ZHI CHEN Applicant AND: MIGRATION AGENTS REGISTRATION AUTHORITY First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 2 June 2016 THE COURT ORDERS THAT: 1. The interlocutory application dated 31 May 2016 is dismissed. 2. The applicant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J: 1 By an interlocutory application filed on 31 May 2016 the applicant seeks a suppression order in respect of his name. He seeks such an order under either the Court's inherent jurisdiction or, alternatively, Pt VAA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Summary of background matters 2 On 27 April 2016, the applicant commenced proceedings in the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). He challenges the decision dated 30 March 2016 of the Administrative Appeals Tribunal (the AAT) to dismiss his application for review in that Tribunal on the basis that the application had no reasonable prospects of success (see s 42B(1)(b) of the AAT Act). In his application for review in the AAT the applicant had sought a review of the decision of the Migration Agents Registration Authority (the Authority) to refuse his application to be registered as a migration agent. The Authority refused to register him on two grounds. One was that the applicant failed to satisfy the English language proficiency requirement under s 289A of the Migration Act 1958 (Cth). 3 The Authority moved under s 42B of the AAT Act to have the applicant's proceedings summarily dismissed. This application was upheld by the AAT on 30 March 2016. In so doing, the AAT rejected the applicant's contention that it was sufficient for there to be substantial compliance with the English language proficiency requirement. The Tribunal indicated that it would not have dismissed the application for review under s 42B if the only issue was the second ground relied upon by the Authority for refusing to register the applicant as a migration agent because the Tribunal indicated that it did not regard the applicant's challenge to that ground as having no reasonable prospect of success. 4 It is notable that no suppression order was sought by the applicant in the AAT proceeding and, subject to what is said below, his name appears in the AAT's published decision dated 30 March 2016. 5 In support of his interlocutory application in the Court, the applicant relied on an affidavit dated 30 May 2016. He deposed that: (a) he is the Chief Executive Officer and shareholder of a law firm; (b) he changed his name on 1 November 2014, such that he now has a different name to that which appears in the AAT's reasons for decision and in the documents filed in the Court; (c) his law firm has a large client base and strategic partnerships with overseas entities, particularly from China; (d) he and his firm are finalists in professional competitions for lawyers; (e) he believes that the staff of his firm will see his name in the daily court lists and published judgments and that his staff will lose confidence in him as a senior manager. He also believes that the firm's clients might learn of his involvement in the litigation, which he fears will "adversely affect our business reputation generally"; and (f) the presence of his name in the court list is a matter of personal embarrassment to him. 6 The Authority opposed the interlocutory application. Summary of relevant principles 7 Sections 37AE, 37AF and 37AG of the FCA Act provide: 37AE Safeguarding public interest in open justice In deciding whether to make a suppression order or 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. 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: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or (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). 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). (2) A suppression order or non publication order must specify the ground or grounds on which the order is made. The only paragraph of s 37AG(1) relevant for present purposes is (a). 8 The predecessor to these provisions was s 50 of the FCA Act. The High Court made the following observations regarding that provision in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 (Hogan) at [29]-[33] (footnotes omitted): 29 It has been assumed, no doubt correctly, that an order made under s 50 of the Federal Court Act may be made until further order and, in any event, may be vacated if the continuation of the order no longer appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. As a general proposition, a court remains in control of its interlocutory orders and a further order will be appropriate, for example, where new facts and circumstances appear or are discovered, which render unjust the enforcement of the existing order. 30 As it appears in s 50, "necessary" is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth "suggests Parliament was not dealing with trivialities". Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) "the administration of justice" spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest. 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. 32 If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50"may … make such order" is to be understood in this sense. 33 It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a "discretion" when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth. 9 As Robertson J observed in Stanford v DePuy International Ltd [2013] FCA 1304 (DePuy) at [20], the High Court's approach in Hogan is now given statutory force in s 37AE and it is necessary to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. His Honour also made reference to the reliance in that proceeding on the Court's implied power to make a suppression order and to the concession that any order made under that power would also be limited by it being necessary to prevent prejudice to the proper administration of justice. The applicant submitted in that case that the implied power may provide greater scope than s 37AF. Dr Harper SC, who appeared for the applicant in the present proceeding, made a similar submission but he was unable to point to any authority in support. 10 The circumstances in which a suppression or non-publication order is requested can vary enormously, as is reflected in cases such as DePuy; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 (Air New Zealand (No. 3)); Australian Competition and Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278; Rinehart v Rinehart [2014] FCA 1241; 320 ALR 195 (an interim suppression order); Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 (Cascade Coal) and, more recently, ASE16 v Australian Securities and Investments Commission [2016] FCA 321 (ASE16). 11 It is well established that the threshold which a suppression order applicant must satisfy is high and that mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice (see, for example, Cascade Coal at [30] per Foster J). 12 Dr Harper SC stated that the applicant would be content if an order was made that his name be referred to by the use of initials such as "ZC" because that would give effect to the "evidence of the applicant [which] shows that in the circumstances it would be both necessary and reasonable and sensible (sic) to make an order anonomyzing (sic) his name". 13 I am not satisfied that the high threshold has been reached here and that the applicant has established that it is necessary to make the order sought by him to prevent prejudice to the proper administration of justice. In particular: (a) while it is not determinative (see ASE16 at [89] per Markovic J), the applicant did not seek a suppression order at any stage in the AAT proceeding and the AAT's decision in that matter is in the public domain (Chen v Migration Agents Registration Authority (Migration) [2016] AATA 188); (b) in any event, the applicant formally changed his name on 1 November 2014 and he now uses a name which is not the name which appears in any of the Court documents or, indeed, in the published reasons for decision of the AAT; (c) it may be assumed that publication of his previous name may cause the applicant some personal embarrassment but that is an insufficient basis for making the suppression order sought by him. As the High Court observed in Hogan at [43] (in the context of whether an order was properly made under s 50 in respect of material which had been placed in evidence), the "price of such a decision may be the subsequent disclosure, as is often the case in litigation, of embarrassing publicity"; (d) likewise, it may be assumed that, notwithstanding the applicant's change of name, some clients of his law firm may learn that he is involved in this litigation but, again, this is an insufficient reason in the circumstance of this case for making the suppression order sought by him. It is mere speculation that this knowledge may have an adverse impact of his firm's legal practice. This is not a case where the applicant has demonstrated by detailed evidence that a suppression or non-publication order should be made because commercially sensitive and confidential information would be disclosed and possibly used by competitors to the applicant's disadvantage, as was the case, for example, in Air New Zealand (No 3) and ASE16. 14 It is important to bear in mind that in assessing whether or not to make an order under s 37AF no balancing exercise is involved by weighing up, on the one hand, the interests of open justice and, on the other hand, the prejudice which may occur if information is released. Rather, the test is whether it is necessary to make the order to prevent prejudice to the proper administration of justice (see Hogan at [31]-[32]). The applicant's case did not reflect that approach. Rather, it was submitted on his behalf that "while there may generally be a public interest in open justice, in this particular case there is little perceptible public interest in requiring the applicant's name to appear in publications or listings". This was because, so it was submitted, the appeal involves a very narrow point of law. The applicant further submitted that, in the circumstances of this particular case, "the open justice consideration is of less weight than in other cases". That approach to the matter assumes, erroneously in my view, that the correct test is one which does involve the balancing of competing interests. 15 The applicant has failed to meet the high threshold of establishing that the order sought by him is necessary to prevent prejudice to the proper administration of justice. 16 The applicant has also failed to demonstrate any proper basis for making such an order in the Court's inherent jurisdiction. The evidence relied upon in support of the application falls well short of establishing an appropriate basis for the making of such an order. In these circumstances it is unnecessary to express a final view on whether the Court's inherent or implied power to make a suppression order has more flexibility than its statutory power. It should be noted, however, that current authorities suggest that a test of necessity is applied in determining whether or not the inherent power should be exercised (see the detailed analysis by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344 at [38]-[49] (with whom Handley JA and M W Campbell A-JA agreed, and see also Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 at [8] per Bathurst CJ and at [45]-[47] per Basten JA)). The High Court's observations in Hogan at [30] in respect of the word "necessary" in s 50 of the then FCA Act are also apposite concerning the correct test to apply when considering the exercise of the Court's inherent power. Conclusion 17 For these reasons, the applicant's interlocutory application dated 31 May 2016 should be dismissed, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 2 June 2016