Huikeshoven v Secretary, Department of Education, Skills and Employment

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 05 November 2021
• Neutral Citation: [2021] FCA 1359
• Date: 05 November 2021

Federal Court of Australia

Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359

File number:	SAD 145 of 2021
Judgment of:	JACKSON J
Date of judgment:	5 November 2021
Catchwords:	PRACTICE AND PROCEDURE - application for suppression and/or non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) - identification of applicant and her child - whether order necessary to prevent prejudice to the proper administration of justice or to protect the safety of any person - application dismissed
Legislation:	A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 121, Part 5 Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 44 Federal Court of Australia Act 1976 (Cth) ss 17, 37AA, 37AE, 37AF, 37AG, Part VAA
Cases cited:	AA v BB [2013] VSC 120; (2013) 296 ALR 353 AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046 AX v Stern [2008] VSC 400 BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner [2019] FCA 618 Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629 Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Lew v Priester (No 2) [2012] VSC 153; (2012) 35 VR 216 Porter v Australian Broadcasting Corporation [2021] FCA 863 PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45 Russell v Russell (1976) 134 CLR 495 SRD v Australian Securities Commission (1994) 52 FCR 187 Stanford v DePuy International Ltd [2013] FCA 1304 Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630 Zivanovic v Australian Securities and Investments Commission [2017] FCA 1633
Division:	General Division
Registry:	South Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	74
Date of last submissions:	1 October 2021 (respondent) 13 October 2021 (applicant)
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr A Lazarevich
Solicitor for the Applicant:	Leventis Lawyers
Counsel for the Respondent:	Mr S Cummings
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDERS

		SAD 145 of 2021
BETWEEN:	MELISSA HUIKESHOVEN Applicant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, SKILLS AND EMPLOYMENT Respondent

order made by:	JACKSON J
DATE OF ORDER:	5 NOVEMBER 2021

THE COURT ORDERS THAT:

1. Paragraphs 1 to 4 inclusive of the interlocutory application filed 7 September 2021 are dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1. This proceeding is an appeal (in the sense used in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) from a decision of the Administrative Appeals Tribunal (AAT) published on 29 June 2021. The AAT's decision was the latest in a chain of decisions arising from the rejection, by a delegate of the respondent (Secretary), of the applicant's claims for Child Care Benefit and Child Care Subsidy for the financial year ending 30 June 2018, and the cancellation of an earlier grant of Child Care Subsidy, with effect from 3 December 2018. The reason given for these decisions was that the applicant's child did not meet immunisation requirements which are conditions of eligibility for the receipt of the benefits.

2. By an interlocutory application, the applicant seeks orders under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) suppressing her name and that of her child, and prohibiting the publication of identifying details and the medical history and health of the child. An order is sought in the alternative for the anonymisation of the names of the applicant and her child. That order is sought under s 37AF(2), which authorises orders that the court thinks appropriate to give effect to orders under s 37AF(1). Section 37AF(2) could not, however, be available if no separate order under s 37AF(1) is made. I will proceed on the basis that since an order for the anonymisation of names is an order that restricts the disclosure of information, it too is required to be authorised under s 37AF(1): see s 37AA, definition of 'suppression order'. I will therefore refer to the various orders sought by using the broad term 'suppression orders'.

3. In the same interlocutory application the applicant seeks an order that she be permitted to adduce additional evidence in the appeal. That aspect of the application has been listed to be heard at the same time as the hearing of the appeal.

4. The Secretary does not oppose the application for suppression orders but did make submissions drawing the court's attention to various matters which, if accepted as significant, would be reasons why the orders should not be made.

5. While to date there has been no suppression of any names or other details of the court file, to the applicant's knowledge no person has yet asked for access to the file.

6. For the following reasons the application for suppression orders will be dismissed.

The basis of the application and of the Secretary's position

7. Section 37AF and s 37AG of the Federal Court Act are as follows:

37AF Power to make orders

(1) The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b) information that relates to a proceeding before the Court and is:

(i) information that comprises evidence or information about evidence; or

(ii) information obtained by the process of discovery; or

(iii) information produced under a subpoena; or

(iv) information lodged with or filed in the Court.

(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

37AG Grounds for making an order

(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice;

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c) the order is necessary to protect the safety of any person;

(d) the order is necessary to...