AB (A Pseudonym) v Cd (A Pseudonym); Ef (A Pseudonym) v Cd (A Pseudonym)

• Jurisdiction: Australia Federal only
• Judge: Nettle J.
• Judgment Date: 27 February 2019
• Neutral Citation: [2019] HCA 6
• Docket Number: M73/2018 & M74/2018
• Court: High Court
• Date: 27 February 2019

[2019] HCA 6

HIGH COURT OF AUSTRALIA

Nettle J

M73/2018 & M74/2018

AB (A Pseudonym)

Appellant

and

CD (A Pseudonym) & Ors

Respondents

EF (A Pseudonym)

Appellant

and

CD (A Pseudonym) & Ors

Respondents

Representation

P J Hanks QC with E M Nekvapil and D P McCredden for AB in both matters (instructed by Victorian Government Solicitor)

T K Jeffrie for CD in both matters (instructed by Solicitor for Public Prosecutions (Vic))

P W Collinson QC with C M Harris QC for EF in both matters (instructed by MinterEllison)

R J Sharp with M R Wilson for the Commonwealth Director of Public Prosecutions in both matters (instructed by Director of Public Prosecutions (Cth))

No appearance for the Victorian Equal Opportunity and Human Rights Commission

W B Zichy-Woinarski QC with J M Davidson appearing as amici curiae in both matters (instructed by Russell Kennedy Lawyers)

S Mukerjea for the Royal Commission into the Management of Police Informants, intervening (instructed by Holding Redlich)

O P Holdenson QC for The Herald and Weekly Times Pty Ltd, The Age Company Ltd, Nationwide News Pty Ltd and Seven Network (Operations) Limited, intervening (instructed by Macpherson Kelley)

Judiciary Act 1903 (Cth), ss 77RE, 77RF(1)(c).

Practice and procedure — High Court — Suppression and non-publication orders — Power to make — Where risk of harm to persons associated with party to proceeding “acute” — Whether non-publication order necessary to protect safety of persons.

Words and phrases — “administration of justice”, “necessary to protect the safety of any person”, “non-publication order”, “public interest in open justice”.

ORDER

Pursuant to s 77RE(1)(a) of the Judiciary Act 1903 (Cth), by reason of the necessity to protect the safety of a person or persons within the meaning of s 77RF(1)(c) of the Judiciary Act, there be no publication of the real names or images of EF's children or either of them in connection with EF, or in connection with these proceedings or the subject matter of these proceedings, until publication of the final report of the Royal Commission into the Management of Police Informants and thereafter for a period of not less than 15 years.

1 Nettle J. This is an application by EF for orders pursuant to s 77RE of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) to prohibit publication of the names and images of her children (“HI” and “JK”) in connection with these proceedings or the subject matter of these proceedings.

2 The application is supported by a substantial body of affidavit evidence of which, relevantly, the effect is that, because of EF's previous role as a police informant, she and her children are now at grave risk of harm from persons disaffected by her actions.

The application to the Court of Appeal

3 Substantially the same evidence was recently tendered in support of an application by AB in the Court of Appeal of the Supreme Court of Victoria, pursuant to ss 17 and 18(1)(c) of the Open Courts Act 2013 (Vic) (“the Open Courts Act”) and the inherent jurisdiction of the Supreme Court, for orders including that there be no publication of the real names or images of EF, HI or JK in connection with the Supreme Court proceedings.

4 The Court of Appeal rejected the application to prohibit publication of EF's name and image, for reasons which included the presumption under s 4 of the Open Courts Act in favour of disclosure of material to which the court must have regard, and the requirement under s 18(1) of the Open Courts Act that such an order be “necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means” (s 18(1)(a)), or, alternatively, “necessary to protect the safety of any person” (s 18(1)(c)). The Court of Appeal held in substance that, far from prejudicing the proper administration of justice, publication of EF's name and image by the Royal Commission into the Management of Police Informants would be calculated to ensure to the greatest extent possible that the administration of justice is advanced by identification of cases which may be affected by EF's previous conduct, and that a non-publication order with an exception that permitted the Royal Commission to do its job would be ineffective and unenforceable. The Court of Appeal were also not satisfied that the orders sought were necessary to protect the safety of EF, because, in substance, their Honours said, given previous publication of EF's name and image, their Honours were not persuaded that the increase in publication of EF's name and image likely to occur upon termination of existing suppression orders would materially increase any risk to EF's safety.

5 The Court of Appeal similarly rejected the application to prohibit publication of the names and images of HI and JK, but for less extensive reasons. The Court of Appeal observed that the names and images of HI and JK are not relevant to the Royal Commission's inquiry, the details had been redacted from the court files, and the media interests had stated that it was unlikely that they would wish to publish those details. But, as against that, the Court of Appeal stated that the assessment of risk of harm to EF and her children involved an element of speculation, and it was relevant that, although a number of people with convictions for serious offending had known for some time about EF's previous activities, there was no evidence to date of any attempt having been made to harm EF or her children. On that basis, the Court of Appeal concluded that they were not satisfied that the orders sought were necessary to protect the children's safety.

6 The application to this Court is not in any sense an appeal from the orders of the Court of Appeal. It is a new and different application for orders under different statutory provisions. But it is significant that the relevant statutory criteria are not dissimilar to some of those considered by the Court of Appeal. For that reason, their Honours' reasons are pertinent.

Relevant statutory provisions

7 Section 77RD of the Judiciary Act provides that in 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...