FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission v TAL Life Limited [2020] FCA 59 File number: VID 1360 of 2019 Judge: ALLSOP CJ Date of judgment: 24 January 2020 Date of publication of reasons 5 February 2020 Catchwords: PRACTICE AND PROCEDURE – whether Court should make non-publication order with respect to information tending to reveal identity of individual featured in case study during Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry – non-publication order necessary to prevent prejudice to the proper administration of justice Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AE 37AF(1)(a), 37AG(1), 37AG(2), 37AJ Royal Commissions Act 1902 (Cth), s 6D(3) Federal Court Rules 2011 (Cth), r 39.05(h) Cases cited: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 Cantor v Audi Australia Pty Limited (No 4) [2019] FCA 1633 Minister for Immigration and Border Protection v Egan [2018] FCA 1320 Date of hearing: Determined on the papers Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance – Insurance List Category: Catchwords Number of paragraphs: 24 Solicitor for the Plaintiff: Johnson Winter & Slattery Solicitor for the Defendant: Gilbert + Tobin ORDERS VID 1360 of 2019 BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff AND: TAL LIFE LIMITED Defendant JUDGE: ALLSOP CJ DATE OF ORDER: 24 JANUARY 2020 THE COURT ORDERS THAT: 1. Pursuant to section 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth), until further order of the Court, the true name, contact and other information tending to reveal the identity of the person known as the "Second Insured" during the TAL case studies heard as part of the sixth round of hearings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry be prohibited from being published in relation to this proceeding. 2. The costs of and incidental to this Interlocutory Application be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS VID 1360 of 2019 BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff AND: TAL LIFE LIMITED Defendant JUDGE: ALLSOP CJ DATE OF ORDER: 5 FEBRUARY 2020 THE COURT ORDERS THAT: 1. Pursuant to r 39.05(h) of the Federal Court Rules 2011 (Cth) (the "slip rule"), the words "and section 37AG(1)(a)" be inserted into Order 1 of the orders of the Court made on 24 January 2020 following "section 37AF(1)(a)". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ALLSOP CJ: 1 The underlying proceeding between the Australian Securities and Investments Commission (ASIC) and TAL Life Limited (TAL) concerns ASIC's contentions that TAL contravened certain provisions of the Australian Securities and Investments Commission Act 2001 (Cth), the Corporations Act 2001 (Cth) and the Insurance Contracts Act 1984 (Cth), for which alleged contraventions ASIC seeks declarations and pecuniary penalties. 2 By an interlocutory application filed on 24 January 2020, ASIC sought an order from the Court pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) prohibiting the publication in relation to this proceeding, until further order of the Court, of the true name, contact and other information tending to reveal the identity of the person known as the 'Second Insured' during the TAL case studies heard as part of the sixth round of hearings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission). 3 In support of its interlocutory application, ASIC filed an affidavit of one of its solicitors, Caroline Anne Lewis, which affidavit was affirmed on 24 January 2020 (the Lewis affidavit). 4 On 24 January 2020, I made the non-publication order sought by ASIC in chambers. These are my reasons for making that order. Background 5 The 'Second Insured' was a pseudonym provided to an individual whose circumstances formed part of a case study examined by the Royal Commission in 2018. This pseudonym was used instead of the individual's true name throughout the sixth round of Royal Commission hearings, the Royal Commission's Final Report dated 1 February 2019 and the originating application and concise statement which ASIC filed in this proceeding on 13 December 2019. 6 During the Royal Commission, Commissioner Hayne AC QC made the following non-publication directions pursuant to s 6D(3) of the Royal Commissions Act 1902 (Cth) which were relevant to the 'Second Insured': (a) DIR-360 dated 12 September 2018; (b) DIR-361 (date unknown); (c) DIR-362 dated 12 September 2018; and (d) DIR-384 dated 14 September 2018. 7 DIR-361 is not publically available because DIR-362 directed that the contents of non-publication direction DIR-361 not be published except to the Commission, its staff and counsel and solicitors assisting the Commission, and to TAL Life and its counsel and solicitors. 8 Annexed to these reasons and marked "A" are copies of DIR-360, DIR-362 and DIR-384. 9 Paragraph 11 of the Lewis affidavit identifies a number of documents subject to DIR-360 which are referred to in ASIC's concise statement and which disclose contact, identifying and/or medical information relating to the 'Second Insured', as follows: (a) Recording of a telephone call between iSelect and the Second Insured on 26 September 2013 asking questions relevant to her policy application (TAL.500.029.0575 and Exhibit LVE-61 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraphs 4 and 5 of the Concise Statement. (b) Letter from TAL to iSelect dated 3 October 2013 offering the Second Insured an income protection policy (TAL.500.020.1250 and Exhibit LVE-65 to the statement of Loraine Karen van Eeden referred to in DIR-360) referred to in paragraph 6 of the Concise Statement. (c) Recording of a telephone call between iSelect and the Second Insured on 8 October 2013 (TAL.500.029.0688 and Exhibit LVE-66 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraph 7 of the Concise Statement. (d) Letter from TAL to the Second Insured dated 9 October 2013 (TAL.500.020.1349), referred to in paragraph 8 of the Concise Statement. (The first page of the letter was also TAL.001.001.0096 which was Exhibit LVE-67 to the statement of Loraine Karen van Eeden referred to in DIR-360.) (e) Letter from TAL to the Second Insured dated 17 December 2013 enclosing the Claims Pack (TAL.500.020.1288 and Exhibit LVE-70 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraph 12 of the Concise Statement. (f) The completed Claims Pack documents sent by the Second Insured to TAL on 3 January 2014 (TAL.500.020.0879 and Exhibit LVE-71 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraph 15 of the Concise Statement. (g) Letter from TAL to the Second Insured dated 9 January 2014 informing the Second Insured that it had accepted her claim (TAL.001.001.0370 and Exhibit LVE-75 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraph 16 of the Concise Statement. (h) Letter from TAL to Medicare Australia dated 8 January 2014 requesting the Second Insured's medical history (TAL.001.001.0373 and Exhibit LVE-82 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraph 18 of the Concise Statement. (i) Email from Unified Healthcare Group (UHG) on 5 May 2014 confirming TAL's request for the Second Insured's medical evidence (TAL.500.044.0003 and Exhibit LVE-86 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraph 18 of the Concise Statement. (j) Medical records (123 pages) from the Second Insured's general practitioner received by TAL on or around 22 January 2014 (TAL.500.020.0909 and Exhibit LVE-84 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraph 19 of the Concise Statement. (k) Letter from TAL to the Second Insured on 3 July 2014 avoiding her income protection policy (TAL.001.001.0175 and Exhibit LVE-81 to the statement of Loraine Karen van Eeden referred to in DIR-360), referred to in paragraph 22 of the Concise Statement. 10 Further, paragraph 12 of the Lewis affidavit refers to a telephone call between TAL and the 'Second Insured' on or about 30 June 2014, the recording and transcript of which discloses identifying information and medical information of the 'Second Insured'. This call is referred to in paragraph 21 of ASIC's concise statement, and its recording and transcript, marked with identifier TAL.500.026.0221) is subject to DIR-384. 11 On 4 December 2019, the 'Second Insured' requested, through her solicitor, that ASIC take steps to protect her privacy in the same way that the Royal Commission protected her privacy. ASIC's solicitors informed TAL's solicitors on 16 December 2019 of ASIC's intention to seek the non-publication direction that is the subject of the present interlocutory application. TAL's solicitors replied on 17 December 2019 that TAL did not have a difficulty with the order being sought in respect of the 'Second Insured'. Principles 12 The making of non-publication orders is governed by Pt VAA of the FCA Act. Section 37AE provides that, 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. 13 Set against that primary objective are the following four grounds contained in s 37AG(1), upon one or more of which a non-publication order may be made: (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). 14 Section 37AG(2) further provides that a non-publication order must specify the ground or grounds on which the order is made. Consideration 15 It is clear that ss 37AG(1)(b), 37AG(1)(c) and 37AG(1)(d) are not relevant in this case. There is no matter of national or international security, the safety of the 'Second Insured' is not jeopardised by the publication of the relevant information and there is no criminal proceeding involving a sexual offence. 16 As for the interplay between ss 37AE and 37AG(1)(a), I recently made the following observation about this balancing exercise in Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4]: The principle of open justice is one of the overarching principles in the administration of justice, in this Court and all others. It lies at the heart of the exercise of judicial power as part of the wider democratic process. The principle involves justice being seen to be done. A key part of this task is enabling accurate and fair public reports of proceedings. Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice or the protection of victims. Nevertheless, an order restricting the ordinary open justice approach is not lightly made. This balancing exercise is reflected in ss 17, 37AE and 37AG of the Federal Court of Australia Act 1976 (Cth), as well as in the Federal Court Rules 2011 (Cth): see e.g. rr 2.31, 2.32. 17 In this case, I was of the view that the balancing exercise should be resolved in favour of the non-publication order being made. 18 I did not consider that open justice was adversely affected in circumstances where the information to which ASIC's proposed order applies was, and remained, subject to active non-publication directions validly made pursuant to s 6D(3) of the Royal Commissions Act 1902 (Cth). The order sought by ASIC in relation to the present proceeding therefore simply aimed to preserve the status quo maintained during, and following, the Royal Commission. 19 The lack of any additional restriction on open justice from the making of the order sought must be weighed against the prejudice to the administration of justice that the publication of the identifying information of the 'Second Insured' would cause. The relevant documents to which the existing Royal Commission non-publication directions relate, as described at [9]–[10] above, contains extremely personal information, including over 100 pages of medical records and discussions between TAL and the 'Second Insured' concerning, amongst other things, her mental condition. Justice is not administered if the 'Second Insured' is identified during this proceeding such that her previously safeguarded private affairs become a matter of public record, rendering inutile the relevant non-publication directions made by the Royal Commission which would otherwise continue to operate. 20 This approach is consistent with the recent observation of Foster J, albeit made in relation to suppression orders, in Cantor v Audi Australia Pty Limited (No 4) [2019] FCA 1633 at [26] that: In my view, in an appropriate case, the proper administration of justice permits the taking into account of relevant considerations which extend beyond the particular proceedings in which the suppression order is sought and which also extend beyond considering only the interests of the parties to that proceeding. 21 In such circumstances, I was satisfied that the non-publication order sought by ASIC was necessary to prevent prejudice to the proper administration of justice. It was not merely desirable to make the order sought (see Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8]); nor would the publication of the identifying information of the 'Second Insured' result in mere embarrassment or annoyance: see Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) at [7]. 22 Pursuant to s 37AJ of the FCA Act, the non-publication order shall operate until further order of the Court. Disposition 23 For the above reasons, I made the non-publication order sought by ASIC on 24 January 2020. 24 That order did not specify the ground or grounds on which it was made. To comply with s 37AG(2) of the FCA Act, the words "and section 37AG(1)(a)" should be inserted into Order 1 of the orders of the Court made on 24 January 2020 following "section 37AF(1)(a)", pursuant to r 39.05(h) of the Federal Court Rules 2011 (Cth) (the "slip rule"). I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate: Dated: 5 February 2020 Annexure A