Australian Broadcasting Corporation v Registrar of the Federal Court of Australia

1. The audio recording of the primary proceeding before the Federal Circuit Court of Australia in the matter of Dennis v Commonwealth Bank of Australia [2018] FCCA 1159 not be provided to the Australian Broadcasting Corporation. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 On 6 January 2020, the Australian Broadcasting Corporation ("ABC") made a request of the Court for production of a copy of the audio recording of proceedings conducted by Judge Vasta in a matter before the Federal Circuit Court of Australia which was the subject of a judgment described as Dennis v Commonwealth Bank of Australia [2018] FCCA 1159. 2 There had been an earlier request for production of the audio recording of that proceeding and the Court had responded by declining production of the audio recording and suggesting an alternative mechanism by which the ABC's reporter would be able to listen to the recording. The recording had been listened to by each member of the Full Court in the Full Court reaching a decision on the matters raised by an appeal from the orders of the primary judge. 3 The ABC's request of 6 January 2020 made by a letter of that date was treated by the Court as an application for review of the Registrar's decision under s 35A(5) of the Federal Court of Australia Act 1976 (Cth). 4 That matter was referred to me on Wednesday, 15 January 2020. The ABC proposes to broadcast a program called Background Briefing which addresses aspects of the conduct of the primary judge which resulted in the Full Court setting aside the primary judge's orders: see Dennis v Commonwealth Bank of Australia [2019] FCAFC 231, Greenwood, Besanko and Reeves JJ. Because that program is to go to air on 31 January 2020, it became necessary to urgently decide the question. Accordingly, I addressed the matter on Tuesday, 21 January 2020, decided the question and provided reasons to the ABC by email. This judgment at [5] to [25] precisely reflects the terms of the email as sent that day. 5 As you know from the email on Friday, 17 January 2020 from Mr Murray Belcher, one of the Court's National Judicial Registrars, the question raised by your letter on behalf of the ABC of 6 January 2020 has been treated by the Court as a request under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) for review of the decision to refuse the ABC's request for provision of a copy of the audio recording of the proceedings before Judge Vasta in the primary proceeding. 6 That matter has now been referred to me. 7 I am taking the unusual step of communicating to you by email the decision I have reached about that matter as I understand that there is some urgency attached to resolving the matter. Although I am presently in Canberra, I want to let you know the outcome of my consideration of your request and your submissions of 6 January 2020 as soon as possible. 8 The text of this email will be published, as is, in a formal Judgment with a Media Neutral Number next week. 9 As you know, I was the Presiding Judge in the hearing and determination by the Full Court of the appeal by Ms Dennis. The decision I have reached is that the audio recording of the primary proceeding is not to be provided to the ABC. 10 I will now explain why that is so. 11 Before I do, I should say that the application made by Ms Hagar Cohen supported by your letter of 6 January 2020 was not referred to the Judges who constituted the Full Court in hearing and determining the appeal because the Full Court having exercised, and having completed the exercise of, the Court's appellate power conferred under s 24 of the Act in the subject matter of the Dennis appeal no longer has any statutory jurisdiction under s 25 of the Act to continue to exercise the appellate power of the Court conferred under s 24. 12 There is a power under s 25(2B)(ab) to exercise the Court's appellate power after the determination of an appeal to the Court but the character of the order that might be made in the exercise of that power is described as "an interlocutory order". Section 25(2BB) is also relevant to this question. Although the term "interlocutory order" is not defined in the Act, it contemplates an order that has some inter-parties character in relation to the issues alive in the proceeding even though those issues might also engage matters affecting a third party. 13 The ABC's request is a truly discrete application under the Act for access the audio recording and any order made pursuant to that application does not have the character of an "interlocutory order" for the purposes of s 25(2B) of the Act. 14 I now return to the review of the Registrar's refusal to provide a copy of the audio recording. 15 The audio recording came to be examined in this way. In considering an application for leave to appeal, Justice Rangiah elected to listen to the audio recording of the primary proceedings. Having regard to the issues raised on the appeal, each of the Judges constituting the Full Court elected to listen to the audio recording. Each Judge individually listened to the recording in coming to a view on the issues and the decision reached as reflected in the orders and the explanatory reasons. The audio was not an exhibit in the proceeding. Each Full Court Judge elected to listen to the audio recording from beginning to end. Counsel for the Bank was advised that the Full Court members would be doing so. As you know, Ms Dennis did not appear at the hearing of the appeal and relied on material she had put before the Court. 16 However, the ABC's application for access to the audio recording is not refused on the footing that the audio recording was not a formal exhibit. The request is considered on the footing on which it is made as reflected in the submissions of 6 January 2020. 17 In the ABC's submissions emphasis is given to the importance of exercising judicial power in public in an open way so that proceedings are fully exposed to public and professional scrutiny and criticism. I accept entirely that these principles are fundamental to public confidence in the integrity and independence of the courts and the functioning of courts. Citizens in this country know and understand that independent courts not only determine rights as between citizens but also stand between the citizen and excesses of executive power. The exercise of judicial power by independent courts is the very expression of the rule of law. 18 In this case the starting point is to recognise that the proceedings before the primary Judge were conducted in open court where the matters that caused the Full Court to set aside the orders of Judge Vasta for all the reasons identified by the Full Court were "in the full light of day" and in the "full view" of the public. So too, the proceedings before the Full Court were conducted in open court with robust examination in public of the criticisms made of the conduct of the primary judge. In no sense were the proceedings in either court closed or withheld from public examination. All of the relevant matters are open to examination and criticism. 19 It is critical to keep firmly in mind the test the Full Court is applying when it exercises its important public role of supervising the orders and decisions of inferior courts and the conduct of judicial officers constituting those courts where allegations of bias, pre determination and inappropriate conduct arise. The judges in such cases have to form a view whether a fair-minded lay observer might reasonably apprehend that the judge in question might not bring an impartial and unprejudiced mind to the resolution of the question the judge has to decide. The judges have to postulate the hypothetical reasonable lay observer of the judge's conduct in order to emphasise that the test is an objective one that must inform their view. For that purpose, each of the Full Court judges listened to the entirety of the recording to apply the test. The difficulty with broadcasting excerpts of the audio is that it invites the listener to form his or her own view on some parts of the audio recording whereas the important matter is the view the Full Court formed as a result of having heard the entirety of the recording and measuring and reflecting upon it in applying the test. 20 Those who hear selections of the recording cannot be put in the appropriately informed place occupied by the Full Court. There can be no doubt that the Full Court comprehensively addressed the conduct in question and the reasons make that plain. 21 In Ms Cohen's email of 19 December 2019, she says that access to the audio is required so that "excerpts" of the hearing can be broadcast "so that the public will be able to make an accurate assessment of the issues at stake". The question though is not one of substituting public opinion about excerpts of the recording, for the intervention the Full Court was called upon to make in applying the test based on having reviewed the whole of the audio recording. This is why the Court sought to put Ms Cohen in the same position any citizen would have been in had they been in the Federal Circuit Court on the day to see the proceedings conducted by Judge Vasta, by making the audio recording available to be heard and notes taken (in conjunction with the transcript), without any recording of the recording being made. 22 In the submissions emphasis is put upon the proposition that disclosure of the audio recording and correspondingly use of parts of it is "necessary" in ensuring that the community has confidence in the exercise of judicial power. I do not accept the breadth of that proposition. The community and the ABC as a part of our civil society ought to have confidence in the very fact that three experienced judicial officers exercising supervisory review of the conduct of a judicial officer sitting on an inferior court, publicly examined the conduct in question, applied the test without fear or favour, set aside the orders made in the context of the conduct found to have occurred, vindicated the rights of the citizen in the case in question and did all of this in published explanatory reasons or as the High Court says, by fully exposed reasons. 23 There is another consideration. 24 Should the audio recording be made available and excerpts of it broadcast, there can be no real assurance that sections of the recording will not be taken out of context and used inappropriately on websites not directed to a proper analysis of the question being examined by Background Briefing, but for some other purpose. Put simply, how can any assurance be given that once broadcast, excerpts will not be "used and abused" in the sense that use is not fairly directed to the issues the ABC quite properly wants to examine. 25 These observations should be read with the Full Court's reasons in Dennis v Commonwealth Bank of Australia [2019] FCAFC 231. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.