Churche v Australian Prudential Regulation Authority

Churche v Australian Prudential Regulation Authority - [2006] FCA 1168 - FCA 2006 case summary — Zoe

SCHEDULE 1 Documents to which s 50 order applies Documents Part of document to which restriction applies By reason of Exhibit 1 (Excerpt from draft reports) All. s 56 of the APRA Act Affidavit of Warwick James Churche sworn 9 December 2005 Paragraphs 42, 44 and 46. Both annexures. Derived from information to which s 56 of the APRA Act applies Affidavit of Janine Amanda Wilson sworn 9 December 2005 All annexures except C, E, J, K, L, M, N, R, T s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies Affidavit of Mark David Godfrey sworn 21 February 2006 Paragraph 3 and all annexures s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies Affidavit of Brett McKenzie-Craig sworn 21 February 2006 All annexures s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies Affidavit of Brett McKenzie-Craig sworn 20 March 2005 Paragraph 4 last 7 words of first sentence of (following the words "report to"). s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies Paragraph 4 last 5 words of first sentence of (following the words "report to"). Affidavit of Brett McKenzie-Craig sworn 7 April 2006 All annexures except D, F, H s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies Applicant's submissions dated 10 March 2006 Last sentence of paragraph 2. s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies All of paragraph 6. All annexures. Reasons for judgment of Cowdroy J dated 26 May 2006 Paragraph 43, last 15 words of first sentence. s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies Affidavit of Stephen Mark Gorry sworn 24 July 2006 Paragraphs 10, 13, 16(b), all exhibits to the affidavit. s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies Applicant's submissions dated 2 August 2006 Annexure A s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies Exhibit 2 All. s 56 of the APRA Act, or derived from information to which s 56 of the APRA Act applies

[9]

The existing order of the Court 3 Order 8 of the orders made on 14 July 2006 provides: '8. Otherwise than as provided by order 7, until further order of the Court publication be restrained of: (a) evidence tendered or admitted in the proceedings relating to a document which is a report or draft report or an excerpt from a report or draft report made under s 60 of the Insurance Act 1973 (Cth) ('the Act'); (b) the name of any person or entity named or identified in the evidence tendered or admitted in the proceedings, which is a report, or draft report, or an excerpt from a report or draft report made under s 60 of the Act; and (c) any information that may identify any person or entity named or identified in a report, or draft report, or an excerpt from a report or draft report made under s 60 of the Act.' 4 Order 46 r 6(3) provides the Court with the discretion to refuse other parties to have access to Court documents. Such Rule provides: (3) Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding: (a) an affidavit (other than an affidavit mentioned in subparagraph (2) (l) (i)); (b) an unsworn statement of evidence filed in accordance with a direction given by the Court or a Judge; (c) interrogatories or answers to interrogatories; (d) a list of documents given on discovery; (e) an admission; (f) evidence taken on deposition; (h) a subpoena or document lodged with the Registrar in answer to a subpoena for production of a document; (i) a judgment, order, or other document that the Court has ordered is confidential. 5 Section 50 of the Federal Court of Australia Act 1976 (Cth) provides: 'The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.'

[15]

14 Further, I consider that any documents which contain information derived from documents subject to s 56 of the APRA Act should remain the subject of an order under s 50, except where that information is otherwise in the public domain. Although documents created by the applicant in response to the reports may not, in all cases, be themselves covered by the operation of s 56, it would, in my opinion, undermine the operation of s 56 if they were not also restrained from publication. Further, it would be likely that organisations such as APRA would cease to provide such documents to external interested parties if they could not ensure that confidentiality of the material contained within them would be maintained. 15 I accept that in some circumstances, documents which disclose the investigative processes of APRA might be appropriately restrained from publication. In the present case, however, having considered those documents which fall outside the restrictions already discussed, I do not consider that the material contains significant details which would prejudice APRA's conduct of future investigations if it were publicly revealed. Accordingly, I do not consider that any additional material should be withheld by order under s 50 on the basis that it reveals APRA's investigative processes. 16 In respect of the suggestion that a duty of confidentiality applies by virtue of s 60 of the Insurance Act 1973 (Cth), I agree with this submission but only to a limited extent. I accept that information relating to the contents of the final report would be subject to a duty of confidentiality, on the basis that publication is prohibited without the agreement of the Attorney-General. It is possible that this duty would extend also to the contents of the draft reports, but it is unnecessary to decide this point at present since s 56 of the APRA Act applies to the draft reports. However I do not consider that s 60 of the Insurance Act would prevent the applicant disclosing his knowledge of the investigation by APRA outside of these parameters. 17 I have read the file and considered the documents contained in it. I propose to amend order 8 of the orders of 14 July 2006 to restrict its operation to those portions of the documents which I believe fall into one of the two categories referred to above (namely, documents to which s 56 of the APRA Act applies, or documents derived from documents to which s 56 applies). Because of the nature of the documents in question, I have prepared a schedule of those documents to which I consider the s 50 order should continue to apply. Any further documents filed in the proceedings will need to be subject to consideration on a case-by-case basis.

[16]

Order 46 considerations 18 The second matter which the Court must consider is whether leave should be granted to various media organisations to access parts of the file to which O 46 r 6(3) applies. Obviously, the Court will not grant access to any part of a document to which an order under s 50 applies. However, there are further considerations which may require access to be restricted, at this point in time, to documents which will not be the subject of the order I now propose to make under s 50. 19 It is important to bear in mind that the application before this Court is an application for preliminary discovery. Further, only an interlocutory hearing has taken place, so the ultimate merits of the applicant's preliminary discovery claim have not yet been considered and much of the evidence filed in the proceedings has not yet been read in open court. 20 In Australian Competition & Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) ATPR 41-873, Finkelstein J observed at [7]: 'The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position.'

[19]

The above passage was approved by French J in Australian Securities and Investments Commission, in the matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 2) [2006] FCA 407 at [18]. 0 23 I agree with Rares J in Llewellyn that the approach adopted in the Supreme Court of New South Wales, in which different rules apply, is different from the approach adopted by the rules of this Court: see at [21] and [22] of his Honour's judgment. Pursuant to O 46 r 6(1) of the Federal Court Rules, a non-party will generally be entitled to access the pleadings. Accordingly I do not consider the comments of Santow J in eisa Ltd v Brady and Ors [2000] NSWSC 929 at [20] are applicable to this Court in so far as they apply to pleadings. However, in respect of affidavit material which has not been read in Court, the comments of Santow J in respect of affidavits accord with the principle outlined by Sackville J in Macquarie Radio and Seven Network. 24 None of the affidavits filed by the applicant have been admitted into evidence except for the affidavit of Stephen Mark Gorry sworn 24 July 2006, which was admitted to evidence on 11 August 2006, subsequent to the provision of submissions upon this matter. 25 Each of the affidavits filed by the respondents, being the affidavit of Mark David Godfrey sworn 21 February 2006, and affidavits of Brett Gregory McKenzie-Craig sworn 21 February 2006, 20 March 2006 and 7 April 2006, have been admitted into evidence. 26 In accordance with the principles outlined above, the appropriate course would usually be for leave to be granted to access those affidavits which have been admitted into evidence, but not be otherwise granted. 27 The applicant submits that even though the respondent's affidavits have been read in open court, because they have been read only on an interlocutory application they remain untested. The applicant claims that it would be unfair for the Court to grant media access to the affidavits filed by the respondent if access is not also granted to the affidavits of the applicant, and submits that accordingly, the Court should not grant access to any of the evidence. 28 I am not convinced that there is any real risk of significant damage to the applicant's reputation arising from those portions of the respondent's affidavits which I propose to release. It could not be said that the respondent's affidavits contain 'untested allegations' which relate specifically to the applicant. Accordingly, I am not satisfied that this should prevent leave being granted to access those affidavits. 29 Accordingly, subject to continuing publication restrictions arising from the order made under s 50 of the Federal Court Act, I propose to grant leave to the applicant media organisations to access those affidavits which have been admitted into evidence. In order to avoid confusion concerning what has, and has not, been released, I have prepared a second schedule which specifically indicates those portions of the file in respect of which leave is granted. The second schedule is divided into two portions. The first part lists documents to which access is granted immediately upon the order having effect (subject to those portions which are embargoed). The second part lists documents over which leave is granted if they are admitted into evidence. 30 In order that the parties may have an opportunity to consider the effect of these reasons, I propose to make these orders effective as from 4 pm on Tuesday 12 September 2006. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

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