Summary
Majority: Unanimous (French CJ, Gummow, Hayne, Heydon and Kiefel JJ)
Decision: Appeal Dismissed
An application to set aside a suppression order made under s 50 of the Federal Court Act was resisted by the appellant on the ground that the documents contained information that was ‘inherently confidential’ to the appellant’s finances. The Court said that s 50 does not require a balancing exercise of convenience, reasonableness or public interest. An order can only be made if it is ‘necessary’ to prevent the dangers set out in s 50. If it is necessary, then an order is mandatory rather than discretionary. The documents do not fit into any established category of confidentiality. The suppression orders were set aside as they are not ‘necessary’ to ‘prevent prejudice to the administration of justice’.
The appellant was Australian personality Paul Hogan. In this appeal he was resisting an application by Nationwide News and Fairfax (“the Media”) to lift suppression orders regarding documents relating to his finances which he claimed to be confidential.
Background of Proceedings
This matter had a complex procedural history, the vast majority of which I have omitted or simplified in the discussion below (see [1]-[28]).
In the course of an Australia wide investigation into a fraudulent tax scheme, the Australian Crime Commission (“ACC”) acquired documents from the appellant’s accountants relating to his finances.
The appellant sought an injunction in the Federal Court restraining the ACC from using or disseminating the documents on the ground that they were subject to legal professional privilege.
The ACC disputed the claim on the basis that the documents were created in furtherance of a fraud.
The appellant tendered evidence through an affidavit which purported to refute the claim of fraud (“the Affidavit Documents”).
On the application of the Appellant, the judge at first instance, Emmett J, made a suppression order under s 50 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") with respect to the Affidavit Documents. This order was intended to be temporary, pending further argument on the suppression issue.
Following this order, the ACC abandoned its argument of fraud, conceded the privilege claim and consented to orders being made requiring return or destruction of all of the documents held by the ACC. However these orders did not dismiss the proceedings, nor did they vacate the suppression orders and the Affidavit Documents remained on the court file.
The Media applied to set aside the suppression orders with respect to the Affidavit Documents. Emmitt J vacated the suppression orders and allowed the Media to access the Affidavit Documents.
Hogan appealed to the High Court claiming that the suppression order should stand because of the ‘inherently confidential’ nature of the documents.
Section 50 provides that the Court “may” make a suppression order if it is “necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth”.
This power operates as an exception to notions of open justice which derive from the common law and which are enumerated in s 17(1) of the Federal Court Act.
Finding
The Court dismissed the appeal and allowed inspection of the Affidavit Documents.
Although s 50 uses the terminology of ‘may’, which suggests a discretion with respect to a suppression order, the Court said that 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"’ (at [33]). Rather, if a court regards a suppression order as necessary, then it must make the order and if it does not regard the order as necessary then it must not make it. It is not a balancing exercise (at [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.
The Court found that there was no prejudice to the administration of justice sufficient to make a suppression order necessary in this case. It was not sufficient for the appellant to claim that the documents were ‘inherently confidential’, without showing that they fall within a settled class of confidentiality (such as commercially sensitive material). These words of the Full Court were adopted (at [38]-[39]):
It is true that, generally speaking, every person has a right to keep from the view of others, or of the world at large, documents and things which he or she regards as his or her private concern. But so to propose is no more, in my view, than to state a conclusion about the absence of a right in any other person to view such documents and things.
Therefore, given that the Affidavit Evidence had been tendered (rather than simply being in the possession of the Court) the principles of open justice are enlivened and in the absence of a suppression order under s 50, or any evidence of harm to the appellant, the Court permitted inspection of the Affidavit Documents.
Comment
Basic statutory interpretation tells us that where the word ‘may’ is used, the decision maker will usually have a discretion. This is reinforced by s 33(2A) of the Acts Interpretation Act 1901 (Cth):
Where an Act … provides that a … court … may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the … court … .
However the Court here found that the use of the word ‘necessary’ rendered it unhelpful to describe the power to make a suppression order as a discretion.
This outcome has serious implications for identifying the nature of an appeal from such a determination. An appeal from the exercise of a discretion requires the appeal court to identify error in the approach of the judge of the kind identified in House v The King (1936) 55 CLR 499, before determining whether or not it would have come to the same conclusion.
Given that the Court in this case has said that s 33 is not in the nature of a true discretion, an error in the nature of that identified in House v The King is not necessary and the Court will set aside an order on appeal if it is considers that it is not ‘necessary’ in the sense required by s 33 (see eg statements in Hogan at [34]).
In other jurisdictions, however, the word ‘necessary’ is not utilised and so it is likely that courts will continue to conduct appeals in those jurisdictions according to House v The King. The jurisdictions that do not use the word ‘necessary’ are: SA, ACT, NT, Tasmania and WA. However, NSW and Victoria (I have left out Qld because their suppression order system appears to be within several different Acts) both use the criterion of necessity.
On another note: proponents of the so called emerging tort of invasion of privacy might be quite disappointment by the high Court’s adoption of such a conservative statement of confidentiality in Australia as that found at [38] of the reasons. The Court accepts, at least for the purposes of the ‘administration of justice’ that confidentiality is restricted to settled notions of confidentiality.
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