A week ago, the High Court’s registry listed the following matter before Gageler J at 11am in the Court’s Sydney registry:
APPLICATION FOR NON-PUBLICATION
[NAME SUPPRESSED] v THE QUEEN
While it appears likely that this is a criminal law matter, no other information about it is public knowledge. Apart from insiders (and whoever else happened to be in the courtroom that day), no-one knows who the applicant is, who (or what) the non-Queen party was, what orders were already in place, what orders were sought, the grounds for the application, the arguments made, what orders (if any) were made and the reasons for Gageler J’s decision (if any.) In these respects, the High Court is similar to other Australian courts, where such opaque listings are commonplace. Thanks to its practice of publishing transcripts of its hearings online for free, the High Court is usually much more open than other Australian courts. However, no transcript of any hearing from last Wednesday has been published.
However, transcripts from a different matter a week earlier are more illuminating. On 12 January, French CJ heard an application from the ANZ bank in relation to the ongoing litigation about the enforceability of some of the bank’s fees. The bank sought an order restricting public access to the High Court’s files, which the Court typically readily allows anyone to access, albeit after paying a fee. The bank, though, wanted the Chief Justice to make orders restricting public access to some information on the file (apparently relating to the bank’s fee procedures.) However, French CJ pointed out that the bank had provided too little information:
All I know is that orders were made previously in the Federal Court. Those orders were made two years ago. It may be, for example, that time has overtaken some of the concerns relating to the disclosure of some of those matters but there is nothing in the material before me to indicate why I should make the order that you seek, apart from the fact that it has been made before and that the Bank perceives these matters as being matters of a sensitive commercial character requiring their suppression or non-disclosure.
In response to the bank’s reply that the other party in the case (the customers challenging the late fee) were not opposed to the order (which did not apply to them or affect the arguments before the Court), French CJ observed;
It is not unusual for the respondent to have no interest in whether an order of this kind is made, so the respondent’s acquiescence, if you like, is neither here nor there. There is a public interest I mention which is obvious and, of course, made explicit in section 77RD.
The statutory provision referred to by French CJ states that, ‘[i]n deciding whether to make a suppression order or non-publication order, the High Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.’
The Chief Justice’s remarks are a clear stance against routine re-making of another court’s orders. Indeed, French CJ followed his orders by stating:
I want to make it crystal clear that these orders are not made lightly and that the mere fact – with no disrespect of course to the primary judge who made them on the basis of materials before her, I do not have adequate materials before me at the present time upon which I will be prepared to make such orders.
The primary judge was actually Gordon J, since elevated the High Court. The bank’s counsel, presumably to defend the bank’s approach, pointed out that ‘there was no material before her Honour in the form of an affidavit’ when Gordon J partially closed the Federal Court’s file.
Alas, that is the end of the (public) tale. The Chief Justice explained what would happen next as follows:
I think that perhaps the basis upon which you can do that is to file the affidavit within, say, the next seven days. If I am satisfied with the terms of the affidavit then I will make an order on the papers – I will not require further oral argument – but if I am not satisfied then you will be notified and you will have to come back before me
Two weeks since, no further hearing has been listed and no transcript of further argument has emerged. This may mean that the bank’s new affidavit satisfied the Chief Justice and he made the orders originally sought. Or it may mean that the bank changed its mind on the need for an order and declined to pursue it. Or perhaps the whole thing is still up in the air. One way (perhaps) to find out is to apply to see the file in the case. (The last time I ordered a court file from the Court’s Melbourne registry, the fee was about $40.)
Thanks for the interesting update.
Thanks for the interesting post. The Supreme Court of the United Kingdom has today delivered a judgment on anonymity in civil proceedings relating to a patient detained in a psychiatric hospital. Earlier this month it heard two immigration appeals. At the start of the hearing the Justices have declined to make anonymity orders. The appellants’ names are now stated in the Court’s site, eg in the list of sittings, where they were previously shortened. Last year that Court dismissed proceedings intended to prevent the publication of an autobiography. The author’s name was not revealed throughout the proceedings, up until the end of the handing down of the UKSC judgment. It was a visual demonstration of lifting an anonymity order.
Interesting. I am glad that this policy seems to be being followed throughout our court system and suppression orders are not being granted willy-nilly (unlike the common complaints about the UK’s so-called “superinjunctions”), although they can be necessary. I obtained one for a client last year in a Federal Court matter but the judge quite reasonably required us to limit the suppression order we applied for to particular paragraphs of documents and affidavits wherever possible rather than the entire document or affidavit let alone the entire court file, so that the suppression was kept to a minimum. That suppression was required to preserve legal professional privilege in other proceedings the parties were involved with, rather than for commercial confidentiality.
I agree that this careful approach to suppression is welcome (although I don’t know whether or not it is being followed throughout the court system.) I do have some experience, though, about how such careful orders are implemented that is less positive. In 2004, I read a transcript of an application by Victoria Police to Kirby J seeking to suppress some documents in the court file about the police’s failed attempt to suppress information about the ‘crime boss’ sting (later the subject of an evidence law ruling by the HCA in 2007.) Notably, Kirby J was at pains to limit the suppression to the identity of the undercover officers, so that ‘the overwhelming majority of the materials that were before this Court in the applications and appeals open to inspection in the ordinary way so that an inquirer would be able to understand the proceedings and issues in this Court from the file’. But, when I went to the Melbourne registry to look at the file, I was told that I couldn’t look at any of it because it was subject to a suppression order. I eventually got to look at the file (as Kirby J intended), but only because I had a copy of the transcript on hand and enough legal expertise to make the case to the registry staff and, eventually, get them to consult with someone more senior. A more ordinary member of the public may well have not gotten access, despite the clarity of Kirby J’s reasons. I later had a similar problem getting access to a Qld bail file that was marked with a note referring to some narrow statutory suppression provisions, and had to appear in court (a bail court on Christmas Eve!) and argue on my feet before a Supreme Court judge for 45 minutes to get access. My point is that the court registry staff are not always able to implement nuanced suppression orders (and, indeed, such orders may be incorrectly implemented if the judge’s reasons are not available to both the registry staff and the public.)
Ah, yes- the practical side of things. I never really thought about that, definitely worth keeping in mind.