Federal Court of Australia AZO24 v Commonwealth (Suppression Orders) [2024] FCA 1113 File number: NSD 1036 of 2023 Judgment of: KENNETT J Date of judgment: 25 September 2024 Catchwords: PRACTICE AND PROCEDURE – application for suppression and non-publication orders – where interim suppression orders made earlier in proceeding – whether interim suppression order still in effect PRACTICE AND PROCEDURE – where applicant's originating process and interlocutory application seeking to set aside orders in AZO24 v Commonwealth [2024] FCA 555 (leave to appeal judgment) rejected for filing by the Registrar – whether failed attempt to lodge documents constitutes "applying" for orders that the orders made in the leave to appeal judgment be set aside PRACTICE AND PROCEDURE – application for order that dismissal of proceedings in AZO24 v Commonwealth (Summary Dismissal) [2024] FCA 1053 be without prejudice to right to bring further proceedings under r 39.03(1) of the Federal Court Rules 2011 (Cth) – consideration of relevant principles – whether order should be made PRACTICE AND PROCEDURE – application for order that future proceedings be stayed under r 39.03(2) of the Rules – consideration of principles – where future proceedings not yet instituted –– whether order should be made Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A, 37AF, 37AG, 37AI Federal Court Rules 2011 (Cth) r 39.03 Cases cited: AZO24 v Commonwealth [2024] FCA 555 AZO24 v Commonwealth (Summary Dismissal) [2024] FCA 1053 AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004 Easton v Kostov [2018] FCA 2002 [redacted] [redacted] Kostov v Australian Financial Security Authority [2020] FCA 1105 Skinner v Commonwealth [2012] FCA 1194 UBS AG v Tyne [2018] HCA 45; 265 CLR 77 Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132; 265 FCR 290 Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 24 Date of hearing: 18 September 2024 Counsel for the applicant: The applicant appeared in person Counsel for the first respondent: R Karunakar (solicitor) Solicitor for the first respondent: Australian Government Solicitor Counsel for the second respondent: A Hendriks (solicitor) Solicitor for the second respondent: NSW Crown Solicitor ORDERS NSD 1036 of 2023 BETWEEN: AZO24 Applicant AND: COMMONWEALTH OF AUSTRALIA First Respondent STATE OF NEW SOUTH WALES Second Respondent order made by: KENNETT j DATE OF ORDER: 25 september 2024 THE COURT ORDERS THAT: 1. The applicant's interlocutory application filed 12 September 2024 be dismissed. 2. The second respondent's application for an order staying any future proceedings brought by the applicant against the second respondent under r 39.03 of the Federal Court Rules 2011 (Cth) be dismissed. 3. The applicant pay the respondents' costs of the interlocutory application filed 12 September 2024. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NOTE: Some parts of these reasons have been redacted, noting the order made on 28 August 2024 in NSD942/2024. KENNETT J: Background 1 On 12 September 2024 I made orders summarily dismissing this proceeding under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act): AZO24 v Commonwealth (Summary Dismissal) [2024] FCA 1053. The procedural history of the case, and related proceedings, is set out at [1]-[14] of my reasons for making those orders (summary dismissal reasons). The nature of the claims that the applicant sought to advance can be seen at [19]-[20] of my reasons, and in the "overview" of the statement of claim which forms an annexure to the reasons. 2 At the case management hearing on 7 March 2024 I made an interim order, pursuant to s 37AI of the FCA Act, that the identity of the applicant not be published or otherwise disclosed (other than to court staff, the respondents and legal advisers) and the applicant be referred to by a pseudonym in public notifications and disclosures of information in relation to the proceeding (the first interim suppression order). The order was to have effect until 26 April 2024 or earlier order. I directed that the applicant file any application for further suppression or non-publication orders by 5 April 2024. 3 On 3 April 2024 I extended the interim suppression order until four weeks after the determination of the proceeding in which the applicant sought leave to appeal from my decision not to disqualify myself. I also extended the time for filing any application for further suppression or non-publication orders to two weeks after the determination of that proceeding. That proceeding was determined by the judgment of Abraham J delivered on 28 May 2024 (AZO24 v Commonwealth [2024] FCA 555). 4 On 7 June 2024 I extended the first interim suppression order further, until two weeks after the determination of any application for special leave to appeal that might be made in respect of the judgment of Abraham J. 5 The interim order was vacated and a further order under s 37AI (the second interim suppression order) was made on 21 June 2024. It was expressed to have effect until: a. 19 July 2024; or b. if the applicant applies for special leave to appeal from the orders made in AZO24 v Commonwealth of Australia [2024] FCA 555 or otherwise applies to have those orders set aside, until 2 weeks from the determination of that application. 6 This formulation was adopted because the applicant foreshadowed some form of application in this Court to re-open the issues decided by Abraham J. 7 In hindsight, my orders on 7 and 21 June 2024 were defective because no provision was made requiring the filing of evidence and submissions in support of an application for ongoing orders (no such evidence or submissions having been filed). The applicant had had the benefit of suppression orders for some months without filing evidence and submissions explaining how they were justified on any of the grounds referred to in s 37AG of the FCA Act. 8 The applicant sought to have the judgment of Abraham J set aside by filing in this Court an application for judicial review of that judgment on or around 31 May 2024 and 14 June 2024, but these documents were not accepted for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules). A third document, styled as an interlocutory application to re-open the application for leave to appeal application decided by Abraham J, interwoven with various prayers for relief having a bearing on this proceeding, was lodged for filing on 5 July 2024 together with a supporting affidavit. On 9 July 2024, a Registrar refused to accept these documents for filing, also pursuant to r 2.26. The applicant then commenced the Registrar Review proceeding (referred to in my summary dismissal reasons), which was dismissed by Needham J on 2 September 2024: see AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004 (AZO24 (No 2)). A notice of appeal from her Honour's judgment has been filed. The interlocutory application 9 By an interlocutory application filed on 12 September 2024 (the interlocutory application), the applicant now seeks: (a) an order under s 37AF or alternatively s 37AI retaining the use of a pseudonym and the suppression of her identity, on the basis that she intends to appeal from the summary dismissal orders; (b) an order under s 37AF that the extract from the statement of claim annexed to my summary dismissal reasons be removed or redacted; and (c) an order under r 39.03(1)(a) of the Rules that the dismissal of the proceeding be without prejudice to any right of the applicant to bring fresh proceedings. 10 I listed the interlocutory application on 18 September 2024 with a view to either resolving it or making timetabling orders for evidence and submissions. No party sought to adduce any evidence. The solicitor who appeared for the Commonwealth handed up short written submissions on behalf of the Commonwealth (which the State of New South Wales adopted). Brief oral submissions were made by the applicant and the respondents' solicitors. Suppression orders 11 The interlocutory application has provided an opportunity to review the status of the second interim suppression order. That order had effect until either 19 July 2024 or the determination of any application to set aside the orders of Abraham J. The reference to an application should be understood to refer to some step that successfully engages the judicial power of the Commonwealth so as to put the orders of Abraham J in issue. There was no such step here: the applicant's attempts to engage the jurisdiction of this Court were ineffective because the documents were (correctly: see AZO24 (No 2) at [72]) rejected. 12 Alternatively, if the applicant can be said to have "applied" to set aside those orders, that application came to an end upon the refusal of the Registrar to accept the documents for filing. I do not regard the application for judicial review of the Registrar's decision on 9 July 2024, let alone the appeal from the judgment dismissing that application, as forming in any relevant sense part of an application to have the orders of Abraham J set aside. The result is that the second interim suppression order ceased to have effect, at the latest, on 23 July 2024. 13 The proposition that suppression orders are currently in place, which should be extended pending the outcome of an application for leave to appeal, is therefore not correct. Even if there were interim orders in place, I would not be prepared to extend those orders yet again. What has occurred so far is very difficult to reconcile with the injunction in s 37AI(2) of the FCA Act that, where an interim order is made, the application for ongoing orders is to be dealt with as a matter of urgency. Further interim orders should not be contemplated in circumstances where the applicant has not come to court seeking some defined time in which to prepare an application for ongoing orders under s 37AF. 14 As to whether there is a case for the making of ongoing orders, no affidavit was filed in support of the interlocutory application. The applicant was content for the application to be dealt with on 18 September 2024 and, having been asked directly, did not seek to file any evidence in support of it. 15 The applicant gave an explanation from the bar table of why she considered that suppression of her identity was necessary to protect her safety and to prevent prejudice to the proper administration of justice. To the extent that I was able to follow this explanation, it assumed the truth of factual allegations which I found in my summary dismissal reasons to have no substance. Even if those allegations are assumed to be true, it is obvious that the persons who (the applicant believes) are persecuting or spying on her know her identity and where to find her. She accepted this but said that disclosure of her identity to the public should nevertheless be prevented. However, the main reason given was that "angry fans" of Mr Trent Reznor might wish to harm her because of her revelations about Mr Reznor (see the summary dismissal reasons at [23], and the annexure thereto). This does not rise above speculation, and neither did the other reasons given. In any event the applicant's identity is already in the public domain, in connection with the subject matter of this proceeding, as a result of applications that she has made in the High Court: [redacted]; [redacted]. 16 I therefore do not consider that any basis has been shown for further suppression orders to be made. For the same reasons, there is no justification for suppressing any of the content of the statement of claim referred to or set out in my summary dismissal reasons. In any event, the extract annexed to my reasons does not include the applicant's identity or material from which her identity could be deduced. Future proceedings 17 The solicitor for New South Wales made an oral application for an order under r 39.03(2) of the Rules that any future proceedings brought by the applicant on substantially the same causes of action be stayed until the costs ordered against the applicant have been paid. 18 Rule 39.03(2) was drawn to my attention by counsel at the hearing on the respondents' summary dismissal applications. My initial reaction was that there was some incongruity involved in staying proceedings that had not yet been commenced, and the sub-rule thus appeared to contemplate the making of an application for a stay in subsequent proceedings rather than in the proceeding in which costs were ordered. However, it does appear that there are precedents for the use of this provision in an anticipatory way, to foreclose the commencement of proceedings in future while costs remain unpaid: eg Easton v Kostov [2018] FCA 2002 (Robertson J); Kostov v Australian Financial Security Authority [2020] FCA 1105 (Farrell J). 19 In deciding whether future proceedings should be stayed, it is important to bear in mind that the present case has been decided without a trial on the merits. Although I came firmly to the view that the applicant had no reasonable prospect of being able to make out her central factual allegations, this was a conclusion reached on the basis that no concrete primary facts had been properly alleged upon which the allegations could be founded, and no evidence presented that was capable of indicating real issues for trial. In principle, it is not impossible that these defects might be overcome; and if they are, a future proceeding—to the extent that doctrines of res judicata, issue estoppel or abuse of process do not stand in its way—should not be foreclosed by a decision made in advance. The fact that the applicant's factual claims appear extremely unlikely to be true is not in itself sufficient to exclude the possibility that they might one day be proven. 20 For this reason I have concluded that an order under r 39.03(2) should not be made at this stage. This, of course, does not prevent an application for a stay being made under r 39.03(2) in any future proceeding that the applicant might commence involving similar allegations. 21 Nor, however, has any reason been offered as to why the Court should exercise its discretion under r 39.03(1)(a) to insulate the applicant from whatever impacts the summary dismissal of this proceeding might have on her ability to maintain future proceedings, even though those impacts may include that the causes of action sought to be litigated in this proceeding are res judicata: see Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132; 265 FCR 290 at [27] (Allsop CJ, Moshinsky and Colvin JJ) (or that an attempt to re-litigate the same or related allegations would be an abuse of process: see eg UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [43]-[44] (Kiefel CJ, Bell and Keane JJ)). 22 The discretion is to be exercised with an eye to fairness as between the parties (cf Skinner v Commonwealth [2012] FCA 1194 (Flick J)). Although I have noted that there was not a trial on the merits in this case, it is also the case that the proceeding did not fail at the threshold for some technical or procedural non-compliance (as was the case in Skinner). The respondents were put to the trouble, no doubt at significant cost to public resources, of trying to decipher a long and sometimes incoherent statement of claim and preparing and arguing their summary dismissal applications. The applicant had the opportunity (which she did not take up) to adduce evidence that her claims had substance and explain why the proceeding should not be dismissed. There is no sufficient basis to prevent the respondents from relying on whatever doctrines or principles are available to them in the event that the same claims are sought to be advanced again in some future proceeding. Disposition 23 The applicant's interlocutory application and the second respondent's oral application for an order under r 39.03(2) will be dismissed. 24 It was appropriate for the respondents to appear in order to assist the Court in relation to the application for suppression orders. Both respondents have kept those costs within sensible bounds by not briefing counsel to appear on 18 September 2024. The respondents should have their costs of the interlocutory application. No costs were incurred by the applicant as a result of the unsuccessful application for an order under r 39.03(2). I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett. Associate: Dated: 25 September 2024