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.)