The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 16 March 2020
• Neutral Citation: [2020] FCAFC 44
• Date: 16 March 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44

Appeal from:	The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 30
File number:	VID 10 of 2020
Judges:	ALLSOP CJ, WIGNEY AND ABRAHAM JJ
Date of judgment:	16 March 2020
Catchwords:	PRACTICE AND PROCEDURE – application for an extension of a non-publication order in respect of judgment in criminal matter – where primary objective of the administration of justice is to safeguard the public interest in open justice – whether non-publication order necessary to prevent prejudice to the proper administration of justice – whether publication of judgment would potentially prejudice the right to a fair trial – non-publication order not necessary to prevent prejudice to the proper administration of justice – application dismissed
Legislation:	Competition and Consumer Act 2010 (Cth) Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AG(1)(a) Juries Act 2000 (Vic) s 78A
Cases cited:	Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 Minister for Immigration and Border Protection v Egan [2018] FCA 1320 Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97 R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Date of last submissions:	9 March 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Federal Crime and Related Proceedings
Category:	Catchwords
Number of paragraphs:	32
Counsel for the First and Second Appellants:	Mr D Jordan SC with Ms K Morgan, Ms S Keating and Mr S Snow
Solicitor for the First and Second Appellants:	HWL Ebsworth
Counsel for the Third Appellant:	Mr D Staehli SC with Mr C Bannan
Solicitor for the Third Appellant:	Mills Oakley
Counsel for the Respondent:	The Respondent did not file any submissions
Solicitor for the Respondent:	Commonwealth Director of Public Prosecutions

ORDERS

		VID 10 of 2020
BETWEEN:	THE COUNTRY CARE GROUP PTY LTD First Appellant ; ROBERT MARTIN HOGAN Second Appellant ; CAMERON HARRISON Third Appellant
AND:	COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Respondent

JUDGES:	ALLSOP CJ, WIGNEY AND ABRAHAM JJ
DATE OF ORDER:	16 march 2020

THE COURT ORDERS THAT:

1. The appellants’ application for an extension of the non-publication order made on 6 March 2020, or in the alternative the making of a limited non-publication order which would permit publication of a redacted version of the judgment handed down on 6 March 2020, and/or the use of pseudonyms, be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1. The appellants in this matter have been committed for trial before the Court on various indictable offences under the Competition and Consumer Act 2010 (Cth). That trial is provisionally listed to commence on 27 April 2020. In a pre-trial hearing before the trial judge, the appellants applied for an order severing three charges from the indictment and staying them until further order. That application was dismissed by the trial judge. The appellants were given leave to appeal the trial judge’s orders dismissing the application. The appeal was heard on 31 January 2020 and 3 February 2020. On 6 March 2020, the Court ordered that the appeal be dismissed. An order was also made on that day restricting the publication of the Court’s reasons (Judgment) for dismissing the appeal to the parties and their legal advisers until midnight on 10 March 2020 upon the ground that that order was necessary to prevent prejudice to the proper administration of justice. That limited non-publication order was extended by order of the Court until midnight on 16 March 2020. The parties were invited to make any submissions they wished to make in relation to the extension of the non-publication order.

2. Each of the appellants subsequently filed submissions concerning the extension of the order. The first and second appellants submitted that a limited non-publication order should be made which, until the conclusion of the trial, only permitted the publication of a redacted version of the reasons using pseudonyms for the names of the appellants. The third appellant sought an extension of the non-publication order to 30 June 2020, or, in the alternative, an order in similar terms to the order sought by the first and second appellants, though with additional redactions. The prosecutor neither consented to nor opposed the making or extension of a non-publication order and did not file any submissions.

3. For the reasons that follow, we are not persuaded that there is a sound basis for extending the existing non-publication orders or for making the more limited orders proposed by the appellants. We are, in short, not satisfied that such orders are necessary to prevent prejudice to the proper administration of justice.

Relevant provisions and principles

4. Section 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that the Court may, by making a suppression order or non-publication order, prohibit or restrict the publication or disclosure of, inter alia, information tending to reveal the identity of any party in a proceeding before the Court, or information that relates to a proceeding before the Court and is “information that comprises evidence or information about evidence”.

5. Section 37AG of the FCA Act specifies the grounds upon which the Court is permitted to make such an order. One of those grounds, being the only ground potentially applicable to the circumstances of this case, is that “the order is necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a) of the FCA Act.

6. Section 37AE of the FCA Act provides that in deciding whether to make a suppression or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7. The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are fairly well settled.

8. Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

9. The critical question is...