Elfar (formerly EGS21) v Commonwealth of Australia

Preliminary discovery 24 Rule 7.23 of the Rules provides: 7.23 Discovery from prospective respondent (1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant: (a) reasonably believes that the prospective applicant may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and (b) after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and (c) reasonably believes that: (i) the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent's control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and (ii) inspection of the documents by the prospective applicant would assist in making the decision. (2) If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1)(c)(i). 25 Rule 7.21 defines "prospective applicant" to mean a person who reasonably believes that there may be a right for the person to obtain relief against another person who is not presently a party to a proceeding in the Court. The term "prospective respondent" is defined to mean a person, not presently a party to a proceeding in the Court, against whom a prospective applicant reasonably believes the prospective applicant may have a right to obtain relief. 26 The policy underlying r 7.23 is that, "even where there is a reasonable cause to believe that a person may have a right to relief, nevertheless that person may need information to know whether the cost and risk of litigation is worthwhile": Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435 at [36]; Poole v Australian Pacific Touring Pty Ltd [2017] FCA 424 at [38]. 27 In Poole, Bromwich J summarised the applicable principles as follows at [39]: (1) Rule 7.23 is to be beneficially construed and given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case. (2) Each of the pre-requisites set out in r 7.23(1) must be met before the discretion in r 7.23(2) is enlivened. (3) Not every element of any relevant cause of action must be established, provided there exists a reasonable cause to believe the prospective applicant "may have" a right to obtain the relief. (4) A "belief" requires more than mere assertion and more than suspicion or conjecture. The evidence must "incline the mind towards the matter of fact in question". (5) The rule does not speak in terms of a belief in the existence of a cause of action. It speaks of a right to relief. By reason of the expression "may have", the rule is concerned with a belief in the possibility (not the existence) of such a right. (6) The notion that an order for preliminary discovery is no longer appropriate once a prospective applicant has sufficient information to meet the threshold of "a bare pleadable case" is fundamentally inconsistent with the purpose of the rule, which is concerned not just with reasonable belief as to the possible right to relief, but also with whether the cost and risk of litigation is worthwhile. It follows that the question posed by r 7.23(1)(b) is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent, but rather whether the applicant has sufficient information to make a decision whether to commence proceedings in the Court. (7) It is not an answer to an application to say that preliminary discovery is in the nature of a fishing expedition, because that is precisely what such a rule contemplates. (Citations omitted.) 28 Rule 7.23(1)(a) and (c), read with r 7.23(2), requires that the Court must be satisfied that the prospective applicant "reasonably believes" the stipulated matters. This requires the prospective applicant to prove a subjective state of belief, the reasonableness of which is to be assessed objectively by reference to the circumstances giving rise to that belief: Poole at [42], [53] and [63]. 29 The power to order preliminary discovery is discretionary. In Reeve v Aqualast Pty Ltd [2012] FCA 679, Yates J observed at [64]: The language of r 7.23(1) makes clear that the power to order a prospective respondent to give preliminary discovery is contingent upon each of its requirements being established. Even if the prospective applicant establishes these requirements, r 7.23(2) shows that a broad discretion remains in the Court as to whether, and to what extent, discovery should be granted. In this connection the intrusive nature of an order for preliminary discovery should be borne in mind. Nevertheless, the rule is to be construed beneficially so as to be given "the fullest scope that its language will reasonably allow": St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 at [26]. 30 In Optiver Australia Pty Ltd v Tibra Trading Pty Ltd, the Full Court at [43] endorsed the opinion of Burchett J in Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733 that: It would be unfortunate if a rule designed to amplify the court's power to penetrate obscurities and uncertainties in the interests of justice were to be weakened by restrictive and unnecessary glosses. I think the rule is of a beneficial kind within the meaning of the well known principle of interpretation, and should be given the fullest scope its language will reasonably allow. The proper brake on any excesses in its use is the discretion of the court, which is required to be exercised in the particular circumstances of each case. (Citations omitted.)

Consideration 31 The following issues require or may require determination: whether the Commonwealth of Australia should be substituted as the prospective respondent on the basis that the Australian Criminal Intelligence Commission is not a legal entity; whether the prospective applicant should be permitted to rely upon documents the subject of a Harman undertaking owed to the Supreme Court of Queensland; whether the prospective applicant reasonably believes he may have the right to obtain relief against the prospective respondent: r 7.23(1)(a); whether the prospective applicant has insufficient information following reasonable inquiries of the prospective respondent to decide whether to start a proceeding in the Court to obtain that relief: r 7.23(1)(b); whether the prospective applicant reasonably believes that inspection of the documents would assist in making the decision as to whether to start a proceeding in the Court to obtain that relief: r 7.23(1)(c); whether the Court should refuse to make an order for preliminary discovery in the exercise of its discretion: r 7.23(2); and whether the pseudonym used by the prospective applicant should be removed and his real name substituted.

Whether the Commonwealth of Australia should be substituted as the prospective respondent 32 The prospective applicant commenced the application against the Australian Criminal Intelligence Commission. Section 7(1) of the ACC Act provides that the ACC is established. Section 7(1A) provides that the ACC may also be known by one or more names or acronyms specified in the regulations. The ACC has been known as the Australian Criminal Intelligence Commission since 1 July 2016. It is, however, convenient to continue to refer to "the ACC" in these reasons. 33 The first issue concerns an oral application made by Counsel for the ACC to substitute the Commonwealth of Australia as the prospective respondent on the basis that the ACC is not a juristic entity but is an emanation of the Commonwealth. The prospective applicant opposes that application. 34 In State Superannuation Board v Trade Practices Commission (1982) 41 ALR 279, Ellicott J (the other members of the Court agreeing) held at 302: This leaves for consideration whether the appellant is the Crown or an emanation of the Crown in right of the State of Victoria and is therefore entitled to rely on the shield of the Crown. Whether a body set up by legislation is so entitled either generally or in particular respects depends on the intention of the legislature ascertained from the relevant legislation. The nature of the functions the body is established to perform, the capacity of the executive government to control its operations, the existence and degree of any external control over the exercise of its functions, the rights it has or others have over any assets committed to it and its obligation, if any, to supply information to the government, are all important matters to be taken into account. The question, in effect, is whether the body is the alter ego of the Crown. Therefore, if the functions conferred on it by statute are appropriate for the government to undertake, if the government has power under the legislation to control the exercise of those functions or the composition from time to time of its governing board or council, there will be strong grounds for holding that it is an emanation of the Crown. 35 In XX v Australian Crime Commission [2014] FCA 177; (2014) 321 ALR 575, Besanko J considered an application for the joinder of the Board of the ACC. His Honour held at [19]: … I have reached the view that the board is not a juristic entity. There is nothing in the Act to indicate that the board has been accorded an artificial legal personality. There is no express statement to the effect that it is an incorporated body, or is capable of suing or being sued. It has no assets and it is not given the power to enter into contracts. Subject to the qualification referred to in s 18(2) of the Act, it is bound to comply with any directions or guidelines issued by the Commonwealth minister. 36 In the civil proceeding brought by the prospective applicant in the Supreme Court of Queensland, the presiding judge held that an order should be made substituting the Commonwealth of Australia for the ACC as a defendant on the basis that the ACC was not a juristic entity. 37 The ACC is established to perform the important public functions described in s 7A of the ACC Act, including collecting, correlating, analysing and disseminating criminal information and intelligence, and undertaking special ACC operations and investigations. 38 The Act does not expressly provide that the ACC is an incorporated body, or is capable of suing or being sued. To the contrary, s 7(2) provides that the ACC "consists of" the CEO, the examiners and the members of the staff of the ACC. The ACC is a "Non-corporate Commonwealth entity" under the Public Governance, Performance and Accountability Act 2013 (Cth). Staff of the ACC are employed by the Commonwealth pursuant to the Public Service Act 1999 (Cth): s 47(1) of the ACC Act. The ACC is declared to be a "statutory agency" for the purposes of the Public Service Act. The Board has statutory authority to provide strategic direction to the ACC and to determine the priorities of the ACC: s 7C(1)(b) of the ACC Act. A number of provisions demonstrate that the Board is subject to ministerial and other governmental direction and control, although there are limits upon that direction and control: see ss 8(1), 9(1), 18(1),(2) and 59 of the ACC Act. 39 There is nothing in the Act to suggest a legislative intention to create the ACC other than as an emanation of the Crown. The ACC is not a juristic entity. 40 Counsel for the ACC and the Commonwealth confirmed that the Commonwealth would produce any documents ordered under any order for preliminary discovery. 41 I will make an order substituting the Commonwealth of Australia as the prospective respondent.

Whether the prospective applicant should be permitted to rely upon documents the subject of a Harman obligation; and whether the prospective applicant reasonably believes he may have the right to obtain relief against the prospective respondent 42 Whether the prospective applicant can establish that he reasonably believes he may have the right to obtain relief against the prospective respondent will largely depend upon whether he is permitted to rely upon several documents the subject of a Harman obligation to the Supreme Court of Queensland. Accordingly, it is convenient to consider the second and third issues identified above together. 43 As r 7.23(1)(a) of the Rules requires a prospective applicant to establish that they reasonably believe they may have the right to obtain relief, the prospective applicant should identify the prospective right to obtain relief. This is somewhat difficult to discern from the prospective applicant's material. 44 The prospective applicant has filed an affidavit annexing a draft proposed application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). At the hearing, the prospective applicant handed up a document entitled, "Overview of the violation of enacted protection mechanisms within Commonwealth statute being the Australian Crime Commission Act" (the Overview Document). I understand the Overview Document to describe grounds upon which the prospective applicant may allege that his compulsory examination was conducted in contravention of the ACC Act and the relief he may seek in respect of such contraventions. I understand that document to have overtaken his draft ADJR Act application. 45 The Overview Document was accompanied by a series of documents, described by the prospective applicant as Exhibits 1-30. The contents of those documents are described in the Overview Document. As it appeared that some of those documents may have been the subject of Harman obligations, I made an interim order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) that the Overview Document and the accompanying documents not be disclosed to any person other than the prospective respondent without further order of the Court. It is now apparent that some parts of the Overview Document can be published without revealing the contents of the documents it describes. 46 In the Overview Document, the prospective applicant states, relevantly: 9. The relief and adjudication sought of the Court through a pending application under s. 57 of the ACC Act, substituting s. 11(1)(c) of the Act, which will be joined with a parallel application under 39B(1A) of the Judiciary Act 1903, is to determine ultimately and conclusively the level of unlawfulness and the accumulative effect (or as a whole) of such unlawfulness in the violation of the protection mechanisms or safeguards enacted under provisions ss. 24A, 28 (7), 28(1), 25A(3), 25A (7), 25A(9), 25A(12), 25A (13), 25A(14) and 30(5) within Commonwealth Statute (the ACC Act), has or has had upon the accusatorial nature of the criminal trail process and Constitutional right to a fair trial according to law. 10. If the Court is of the belief there are or were violations of protection mechanisms or safeguards within the ACC Act, exist in fact and declarations are made inconsideration to those violations of protection mechanisms or safeguards, within enacted provisions Commonwealth statute (the ACC Act), the question that will arise for this Court to consider within a parallel application, under provisions within 39B (1A) of the Judiciary Act 1903 are; - Draft only Question 1/ - Does the cumulative effect of the multitude of violations of protection mechanisms or safeguards enacted within Commonwealth statute (the ACC Act) result in "gross unlawfulness" apt to bring the administration of justice into disrepute? - Draft only Question 2/ - Does the cumulative effect of the multitude of violations of protection mechanisms or safeguards enacted within Commonwealth statute (the ACC Act) result in a "defect in the process so profound as to offend the integrity and functions of the Court"? - Draft only Question 3/ - Has the constitutional validity of a fair trial according to law been violated by the accumulative effect of the multitude of violations of protection mechanisms or safeguards enacted within Commonwealth statute (the ACC Act) implemented by Parliament to protect and uphold that constitutional entrenched fair trial right? 11. Moreover a "Writ of Mandamus" will be sought once declaration is made, pertaining to the highly prevalent suggestion that fraud exists. The Prospective applicant will assert within grounds, as the High Court has in many a case stated: - A decision which involves fraud is "regarded in law, as no decision at all". - Fraud "unravels everything" or "vitiates all judgements", once it is proved. (Footnotes omitted.) 47 Section 57 of the ACC Act operates to require that an application for an order of review under the ADJR Act in respect of a matter arising under the ACC Act be lodged for filing within five business days after the prospective applicant becomes aware of the matter, or within any further period allowed by a court in special circumstances. The prospective applicant foreshadows that he may apply for an extension of time and other relief under the ADJR Act and for relief under s 39B of the Judiciary Act 1903 (Cth). 48 As I understand it, the relief the prospective applicant asserts he may claim includes declarations that the ACC contravened ss 24A, 28(1), (7), 25A(3), (7), (9), (12), (13), (14), 30(5) and 49 of the ACC Act, and declarations about the effect of such contraventions upon the validity of the criminal proceedings in the Supreme Court of Queensland. The prospective applicant may also seek mandamus, although he has not specified against whom that order will be sought and what unperformed duties might be ordered to be performed. 49 The Overview Document sets out the allegations of contraventions of the ACC Act that the prospective applicant may make and the material upon which he claims to have formed a reasonable belief that he may have a right to obtain relief in respect of those contraventions. The prospective applicant's claims of possible contraventions may be summarised as follows: (1) Section 28(1) provides that an examiner may summon a person to appear before an examiner at an examination. The prospective applicant alleges that although the summons issued required him to attend for examination on 22 October 2010, he was in fact required to give evidence on 28 October 2010. The prospective applicant relies, in part, upon a transcript of the compulsory examination to establish that he has a reasonable belief that he may have the right to obtain relief in respect of contraventions of this provision. (2) Section 24A provides that an examiner may conduct an examination, "for the purposes of a special ACC operation/investigation". Section 28(1A) provided that, "before issuing a summons … the examiner must be satisfied that it is reasonable in all the circumstances to do so". Section 28(7) provides that, "the powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation". The prospective applicant proposes to allege that when the summons was issued, there was no special ACC operation/investigation, the only investigation on foot being one conducted by the Australian Federal Police (the AFP). The prospective applicant relies upon correspondence between staff of the ACC and the AFP to establish that he has a reasonable belief that these provisions may have been contravened. In Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, the High Court held at [71]-[73] and [130] that the ACC does not have power to conduct a coercive examination for the purposes of assisting a police investigation. (3) Section 49 provides, relevantly, that, "the ACC shall be assisted in the performance of its functions by … members of the Australian Federal Police whose services are made available to the ACC". The prospective applicant asserts that he will swear that he was, "never provided with the ACC summons (0416/10) at the time of service", by, "the purported seconded AFP officer". He seeks documents, "requesting the AFP services being made available or seconded to the ACC". It is quite unclear as to how the prospective applicant claims that s 49 may have been contravened. The prospective applicant relies upon the summons to establish that he has a reasonable belief that he may have the right to obtain relief in respect of contraventions of that provision. (4) Section 25A(3) provides that an examination, "must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination". Section 25A(7) provides that if a person other than a member of the staff of the ACC is present at an examination, the examiner must inform the witness that the person is present and give the witness an opportunity to comment on the presence of the person. Section 25A(14) makes it an offence for a person to be present at an examination unless entitled to be present by reason of a direction given by the examiner. The prospective applicant relies upon a transcript of the compulsory examination and communications between staff of the ACC and the AFP to assert that some 16 AFP officers were "clandestinely viewing" the examination without authorisation from the examiner. (5) Section 25A(9) of the ACC Act provided, relevantly, that an examiner may direct that any evidence given before the examiner or the contents of any documents produced to the examiner must not be published except to such persons as the examiner specifies. In a hearing before Ann Lyons J, the prosecutor indicated that he had, and could hand up, two of the co-accused's ACC examinations that had been transcribed and compact discs of the video of the remaining material. The prospective applicant alleges that the CDPP and the prosecutor were in possession of the transcript of his examination in contravention of s 25A(9). The prospective applicant relies, in part, upon a transcript of the examination hearing. (6) Section 30(5) of the ACC Act provides that the answer to a question asked in a compulsory examination, "is not admissible in evidence against the person in … a criminal proceeding". The prospective applicant claims that a transcript of his compulsory examination was used in the hearing before Ann Lyons J in contravention of that provision. To establish that matter, he relies upon extracts from a restricted transcript of the hearing before Ann Lyons J. (7) Underlying these claims is the fact that, despite the ACC Act not authorising an examiner to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence, the prospective applicant's compulsory examination was conducted after he had been charged. 50 At this stage, it is necessary to consider the provenance of some of the documents the prospective applicant relies upon to assert the reasonableness of his belief that there may have been contraventions of the ACC Act giving rise to a right to obtain relief. Those documents include a transcript of the compulsory examination, correspondence between staff of the ACC and the AFP, and a "restricted" transcript of proceedings before Ann Lyons J in the criminal proceeding. 51 On 12 September 2012, the prospective applicant issued a subpoena directed to the ACC in the criminal proceedings in the Supreme Court of Queensland requiring the production of various documents, including documents evidencing dealings between the ACC and the AFP relating to the prospective applicant's examination, a transcript of the compulsory examination and documents identifying AFP members involved in the examination and any non-publication and dissemination directions made by the ACC. A number of documents were produced to the Court by the ACC. 52 On 19 September 2012, Ann Lyons J ordered that the documents supplied in response to the subpoena be placed in an envelope and marked, "Not to be opened without an order of the Court or a Judge", and that the prospective applicant be permitted to copy and uplift those documents. 53 On 29 January 2013, Ann Lyons J ordered, pursuant to s 25A(12) of the ACC Act, that a certificate issue requiring the evidence given before the examiner to be produced to the Court. Her Honour also ordered, pursuant to s 25A(13) of the ACC Act, that the evidence be made available to the prospective applicant's legal practitioners. 54 On 30 January 2013, Ann Lyons J ordered that the ACC provide further documents pursuant to the subpoena and that the prospective applicant's legal representatives be permitted to copy and inspect those documents. 55 On 23 April 2013, Ann Lyons J made consent orders stipulating that the transcript of the compulsory examination produced by the ACC on 29 January 2013 to the prospective applicant's counsel was not to be disclosed or used except by further order of the Court. 56 On 29 August 2014, the prospective applicant issued a subpoena directed to the ACC requiring production of further documents. On 6 November 2014, Mullins J (as her Honour then was) ordered the production of some documents to the prospective applicant pursuant to that subpoena. 57 The prospective applicant relies upon documents to establish the reasonableness of his belief that there may have been contraventions of the ACC Act which include communications between the staff of the ACC and the AFP and the examination transcript. He has not directly admitted that he obtained these documents following their production to the Supreme Court pursuant to the subpoenas of 12 September 2012 and 29 August 2014 and the certificate issued on 29 January 2013. However, the applicant has not explained the source of those documents. The orders of 19 September 2012 and 29 and 30 January 2013 permitted the prospective applicant or his lawyers to access those documents. In the absence of any such explanation, I infer that he obtained those documents as a result of the production of the documents under the processes of the Supreme Court. 58 The prospective applicant also relies upon extracts of a transcript of a hearing before Ann Lyons J. The extracts are stamped "Restricted". I infer that her Honour made an order restricting publication of the transcript to the parties to the criminal proceedings or their lawyers. That order has not been placed before the Court. 59 In Harman v Secretary of State for Home Department [1983] 1 AC 280, the House of Lords identified a doctrine that has become known as the "Harman obligation". That doctrine was summarised by Hayne, Heydon and Crennan JJ in Hearne v Street (2008) 235 CLR 125 at [96] as follows: Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. (Citations omitted.) 60 The rationale for the obligation was explained by Lord Denning MR in Riddick v Thames Board Mills Ltd [1977] QB 881 at 896: Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice. 61 The obligation is owed to the court, not merely to the party producing the documents, and it is generally for the court to control, modify or release a party from the implied undertaking: Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 321, 338. Breach of the obligation is punishable as a contempt of court: see, for example, Harman at 313, Hearne at [126]. 62 The range of circumstances that may constitute a breach of the obligation are broad. Any use that would, "promote some private interest ... not within the parameters of the action which brought about their disclosure" would breach the obligation: Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 at 485. Use in subsequent or separate proceedings may be a breach of the obligation: Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578. 63 In Holpitt, the applicants in a proceeding before the Federal Court filed a notice of motion seeking to use documents obtained on discovery in other proceedings before the Federal Court. Justice Burchett indicated at 577 that the notice of motion, "should properly have been taken out in the proceedings in which the implied undertaking to the court was given". However, his Honour considered it appropriate to determine the application as all parties had agreed to that course and as both proceedings were in the Federal Court. 64 In Commissioner of Taxation v Rawson Finances Pty Ltd [2015] FCA 628, the applicant sought leave to use in a proceeding in the Federal Court, parts of the respondent's affidavit filed in the Administrative Appeals Tribunal. Justice Flick, relying on Holpitt at 577 and Transfield Philippines Inc v Pacific Hydro Ltd [2006] VSC 175 at [133]-[134], held at [7] that any application for a party to be relieved from the implied undertaking should be made in the proceedings in which the undertaking was given. His Honour evidently did not regard the application as one for relief from the implied undertaking since he proceeded to determine the application. His Honour concluded at [14] that, "the good administration of justice requires that the leave sought by the Commissioner should be granted". 65 In Transfield Philippines Inc, Hollingworth J observed at [113] that her Honour was unaware of a case where a court had determined an application to be released from the implied undertaking given to a different court. Her Honour was not persuaded that the Court had "inherent jurisdiction" to release a party from the implied undertaking. 66 In Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436, the applicant sought to rely upon a letter discovered in County Court proceedings to demonstrate the inadequacy of the respondent's discovery in Federal Court proceedings. Justice Tamberlin referred to Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33, where Mason CJ (Dawson and McHugh JJ agreeing) observed: No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. 67 Justice Tamberlin held at [20]: There is a clash of two important public interest considerations in this case. First, there is the public interest in protecting the discovery process in the interest of encouraging openness and frankness in discovery made in the County Court proceeding by way of consistent and effectively enforced assurance to the party faced with compulsory discovery that the documents will not be used for any other purpose than the purpose for which they were discovered in that court. Second, there is the competing important public interest in the due and proper administration of justice in the proceedings before this Court by ensuring compliance with its orders. In these circumstances if the document was one which ought to have been discovered I am not persuaded either as a matter of power, discretion or comity that release of the undertaking must or should be first obtained from the County Court. 68 In Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No 3) [2008] FCA 976, Lander J ordered discovery and production for inspection of two witness statements created for the purposes of other proceedings. The respondent sought an order for inspection of the witness statements produced by the applicant and another party to proceedings in Hong Kong. The other party in the Hong Kong proceedings raised no objection. The applicant sought to rely upon the Harman obligation owed to the Hong Kong court to resist the production of the witness statements. His Honour, referring to the dicta of Mason CJ in Esso, held: [20] The point which the Chief Justice made and which was applied in Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 is that, notwithstanding the implied undertaking, if rules of court of a jurisdiction apply to a party who has a document in that party's possession by reason of a process in another jurisdiction, that party is still obliged to comply with the processes in the second jurisdiction and make discovery of the document if it be an application for discovery and production if production follows upon discovery. For that reason, in my opinion, the document should be produced. [21] Secondly, there has been no suggestion made by the applicant that the applicant could not obtain a release from the implied undertaking in the High Court of Hong Kong. Indeed, the applicant has sought and obtained a release in relation to other documents. … [22] Whilst those documents are subject to the implied undertaking referred to in O 24 r 14A of the Hong Kong Rules, in my opinion, consistent with the decisions in Esso Australia Resources Limited v Plowman 183 CLR 10 and Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436, the applicant should make production of those documents in this jurisdiction. No doubt the applicant will, at or before making production, apply to the High Court of Hong Kong for a release from the implied undertaking in relation to those documents. I should say that the defendants in the Hong Kong proceedings have indicated they have no objection to the documents being produced. 69 In Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204, the respondent sought discovery in Federal Court proceedings of all documents and evidence filed in the Family Court relating to certain shares. Justice Barker ordered that the Family Court documents should be discovered. His Honour said at [30]: Even without the existence of the public domain exception, this Court has the power to grant leave for the documents used in the Family Court proceedings to be used in this Court. (Citations omitted.) 70 In Bondelmonte v Bondelmonte [2017] FamCA 924; (2017) 57 Fam LR 567, Watts J had ordered that the registrar of the Family Court request that a Federal Court file be produced to the Family Court, and the file was duly produced. The wife made an application to the Family Court for an order allowing her to inspect the file. His Honour at [78] considered that a question arose, "as to whether this court has the implied power to release the wife from the Harman obligation owed to the Federal Court". His Honour held at [94] that the Family Court had an implied power to facilitate the expeditious and just conduct of the case by making an order allowing the wife, a party to the proceedings, to inspect the documents. His Honour decided to exercise that power in circumstances where the wife's application to the Federal Court for access to documents produced by the husband in that Court had not been resolved. 71 These cases have generally distinguished between, on one hand, an application to a court for release of a party from an implied undertaking given to a different court and, on the other hand, an application to a court to use in that court documents that are the subject of an implied undertaking given to a different court. In the former case, the application should properly be made to the court to which the undertaking was given. In the latter case, the court to which the application is made may allow use of the documents in its discretion. The use of such documents has been allowed where, for example, doing so is, "in the interests of justice", or, "in the good administration of justice", or is to, "facilitate the expeditious and just conduct of the case". 72 In the present case, the prospective applicant seeks to make use of documents that are subject to an implied undertaking given by him to the Supreme Court of Queensland. The question is not whether the prospective applicant should be released from the undertaking given to the Supreme Court. It is whether the prospective applicant should be permitted to rely upon the documents in circumstances where the prospective applicant has not sought or obtained a release of the implied undertaking from the Supreme Court. 73 This is not a case comparable to Patrick v Capital Finance where the Federal Court allowed the use of a document discovered in a proceeding in another court in order to ensure compliance with the Federal Court's orders for discovery. Nor is it a case like Australian Medic-Care where the party whose document was subject to an undertaking in another court did not object to its production and where it was anticipated that an application for release from the undertaking would subsequently be made to the other court and would be uncontroversial. Nor is it a case like Bondelmonte where inspection of documents was allowed where there would otherwise be an unwarranted delay in seeking a release of the undertaking from the other court. 74 The prospective applicant asserts that he applied to the Court of Appeal for release from his Harman obligation. He points to a transcript of an application before McMurdo JA where he sought that all documents concerning him held within the Court's sealed files be made available to him for preparation and presentation before the High Court. Justice McMurdo indicated that he would be prepared to make such an order subject to ascertaining the attitude of the ACC. That was not, however, an application to allow the prospective applicant to use such documents for the purpose of his application for preliminary discovery in this Court. 75 The prospective applicant has not explained why he has not sought release of his undertaking to the Supreme Court of Queensland to enable him to use the relevant documents in his application for preliminary discovery. Nor has he suggested that there is any obstacle to making an application for that release. In addition, a number of the documents the prospective applicant wishes to rely upon in support of his application for preliminary discovery appear to be the subject of extant non-publication orders made by the Supreme Court, including a specific order stipulating that the transcript of the compulsory examination not be disclosed or used except by further order of the Supreme Court. The prospective applicant should not be permitted to act inconsistently with the orders of the Supreme Court by making use in this proceeding of documents subject to those orders. In my opinion, the prospective applicant should not be permitted to rely upon the documents the subject of the prospective applicant's Harman obligation to the Supreme Court unless and until he is released from that obligation by that Court. 76 I have summarised the prospective applicant's Overview Document in which he describes his claims of possible contraventions of the ACC Act and the material upon which he claims to have formed a reasonable belief that he may have a right to obtain relief in respect of those contraventions. 77 In respect of the prospective applicant's allegations of possible contraventions of ss 24A, 28(1), 28(1A), 28(7), 25A(3), (7), (9), (14) and 30(5) of the ACC Act, the prospective applicant seeks to rely upon the transcript of his compulsory examination, correspondence between the staff of the ACC and the AFP, or the "restricted" transcript of proceedings before the Supreme Court. However, I decline to allow the prospective applicant to rely upon those documents. 78 It is necessary to examine whether there is any other evidence before the Court that establishes reasonable grounds for the prospective applicant's belief that the ACC Act may have been breached. In my opinion, no reasonable grounds for any such belief have been established in respect of ss 24A, 28(1), 28(1A), 28(7), 25A(3), (7), (9), (14) and 30(5) of the ACC Act. 79 There are two allegations of possible contraventions of the ACC Act which do not rely upon documents that are the subject of Harman obligations owed to the Supreme Court. 80 The first is the prospective applicant's allegation of contravention of s 49 of the ACC Act, which provides, relevantly, that, "the ACC shall be assisted in the performance of its functions by … members of the Australian Federal Police whose services are made available to the ACC". The prospective applicant seems to allege that although he was served with the examination summons, he was "never provided with" the summons by the "purported seconded AFP officer". He may be asserting that he ought to have been left with a copy of the summons, or that the AFP officer was not in fact seconded to the ACC, or both. He seeks to rely upon a copy of the summons apparently produced by the ACC under subpoena in the criminal proceedings in the Supreme Court. However, a solicitor for the ACC has voluntarily annexed a copy of the summons to an affidavit read in the application for preliminary discovery. That copy is not subject to any Harman obligation and can be taken into account. Nevertheless, it is quite unclear as to how it is the prospective applicant asserts that s 49 may have been contravened. I am not satisfied that the prospective applicant has demonstrated any reasonable grounds for his belief that there may have been a contravention of s 49 of the ACC Act. 81 Secondly, I am satisfied that the prospective applicant has demonstrated reasonable grounds for his belief that there was no lawful basis for his compulsory examination in circumstances where he had been charged prior to that examination. I accept that in proceedings under s 5(1) of the ADJR Act and s 39B of the Judiciary Act, the prospective applicant may establish a basis for a declaration that the examiner had no lawful authority to conduct the compulsory examination. The grant of declaratory relief is discretionary and the court should generally be satisfied, at least, that the question is a real and not merely a hypothetical or theoretical one before making such an order: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438. In the present case, it seems doubtful that the prospective applicant could establish any practical benefit from the making of a declaration that there was no lawful authority to conduct the compulsory examination, particularly when that was accepted by the Supreme Court in the criminal proceedings. Nevertheless, I am unable to exclude the possibility that such a declaration may be made. I accept that the prospective applicant has shown reasonable grounds for the belief that he may have a right to obtain relief in respect of the unlawfulness of the compulsory examination.

Whether the prospective applicant has insufficient information to decide whether to start a proceeding in the Court to obtain that relief; and whether the prospective applicant reasonably believes that inspection of the documents would assist in making the decision as to whether to start a proceeding to obtain that relief 82 It is necessary to examine whether the requirements of r 7.23(1)(b) and r 7.23(1)(c)(ii) are satisfied in respect of the prospective applicant's belief that he may have a right to obtain relief in respect of the unlawfulness of the compulsory examination. 83 The Court of Appeal and Ann Lyons J accepted that the examiner had no authority to conduct the compulsory examination of the prospective applicant. That seemed inevitable following the judgment in X7. The ACC has not contended to the contrary. In these circumstances, preliminary discovery is unlikely to add anything that would assist the prospective applicant in deciding whether to commence proceedings for a declaration that the compulsory examination was unlawful. 84 I do not accept that the prospective applicant does not presently have sufficient information to decide whether to start a proceeding to obtain that relief. Nor do I accept that inspection of relevant documents would assist in making the decision.

Whether the prospective applicant's pseudonym should be removed 85 The prospective applicant commenced his application for preliminary discovery under the pseudonym "ESG21". After I had reserved my judgment, I sought written submissions from the parties as to whether the prospective applicant's pseudonym ought to be replaced with his real name, and indicated the issue would be determined on the papers. 86 The prospective applicant's submissions explained that he had originally lodged his originating application for filing in the Court using his own name. He was allocated a pseudonym by registry staff because of concerns that his identity may be sensitive given the subject matter of the proceeding. The prospective applicant asserts that he was, "put in peril and has already suffered assault in prison pursuant to published judgments of the Supreme Court exposing the very fact the Applicant had attended an Executive coercive examination hearing". However, the prospective applicant also submits that, "the administration of justice must occur without pseudonym or executive constraint". 87 The prospective respondent submits that there is no basis for maintaining the use of the pseudonym. 88 The prospective applicant did not file any submissions in reply. I understand the prospective applicant to indicate that he does not seek to retain his pseudonym in the present application. 89 Section 17 of the Federal Court Act provides that, except where that or another Act authorises, "the jurisdiction of the Court shall be exercised in open court". 90 Part VAA of the Federal Court Act has the heading, "Suppression and non-publication orders". Section 37AE requires that in deciding whether to make such an 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". 91 The Court may make a suppression or non-publication order under s 37AF(1)(a) to, "prohibit or restrict the publication or other disclosure of … information tending to reveal the identity of, or otherwise concerning any party". Such an order may be made on one or more of the grounds set out in s 37AG(1), namely: (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 avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency). 92 Section 37AG(2) provides that if the Court makes a suppression or non-publication order, it must specify the ground or grounds for doing so. 93 In Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160, the Full Court held: 30 The power to permit use of a pseudonym to anonymise the name of a party to, or witness in, a judicial proceeding is based on considerations of the public interest in the administration of justice, and so, is exercisable only in limited circumstances. Importantly, in the context of the administration of justice by this Court, the public interest also requires attention to the requirements of s 17(1) (in respect of the exercise of both its inherent and statutory power), s 37AE (for the exercise of its statutory power under s 37AF) and the use of the word "necessary" in each of the grounds in s 37AG. It follows that any decision to derogate from the Act's requirement that the Court exercise its jurisdiction in open court must be "necessary". That is, the Court must determine that justice cannot be done if the proceeding is heard in open court or without the use of a pseudonym or other derogation from open justice. If the Court decides that it is necessary in order to do justice in the proceeding to derogate from the principle of open justice, it must craft an order or procedure that limits the derogation only to the extent necessary to ensure that justice will be done. 31 In this context, the Court would have to conclude that there is no other way to administer justice in the proceeding than to make the order, suppressing or prohibiting the publication of the particular evidence, matter or identity, or to adopt a procedure that achieves a similar result. As Viscount Haldane LC said in Scott [1913] AC at 438, the person seeking an order, such as a pseudonym, "must satisfy the Court that by nothing short of the exclusion of the public can justice be done". (Most citations omitted.) 94 In that case, it was necessary for the Court at first instance and on appeal to refer to several earlier cases in which Dr Ogawa's real name had been used. The Full Court observed at [39]: This demonstrates that not only was the use of the pseudonym wholly ineffective in anonymising Dr Ogawa's identity, but it could not conceivably have been necessary in the interests of justice or her safety to protect her identity from disclosure, since it was never protected from disclosure. The Full Court held that the use of a pseudonym was unjustifiable in circumstances where Dr Ogawa's identity was already discernible from the earlier cases that had to be referred to in the judgments and the pseudonym served no purpose. 95 The circumstances of the present case are similar. The judgments in R v Elfar (No 3) and Elfar v ACC (No 5) were apparently not published because of a confidentiality order made by the ACC. However, the judgment of the Court of Appeal in R v Elfar, Golding and Sander used the prospective applicant's real name and referred to R v Elfar (No 3), making the applicant's identity apparent. It may be that the ACC's orders had been discharged by that time, or that the Court of Appeal regarded the orders as being vitiated by the illegality of the compulsory examination. Certainly, counsel representing the ACC and the Commonwealth in the present application did not suggest such an order remained extant. In fact, counsel submitted there was no basis for maintaining the prospective applicant's pseudonym. 96 It is necessary to refer to the judgments of Ann Lyons J and the Court of Appeal in deciding the prospective applicant's application for preliminary discovery. Even if a pseudonym were used in this proceeding, the prospective applicant's identity would be readily ascertainable at least from R v Elfar, Golding and Sander. I am not satisfied that it is necessary that the pseudonym be retained to prevent prejudice to the proper administration of justice. 97 The prospective applicant does not appear to express any concerns for his safety if his real name were used. In any event, I would not accept that the prospective applicant's claim to have been assaulted in prison when the publication of the Supreme Court judgments made it known that he had given evidence in the compulsory examination provides an adequate reason for the use of a pseudonym. He does not assert that the use of his real name in the present proceeding would create any risk additional to that already created by the Supreme Court judgments. 98 The prospective respondent has not raised any national security grounds. 99 In these circumstances, I will order that "Terrance Elfar" be substituted as the name of the prospective applicant in this proceeding.

Conclusion 100 In these circumstances, the prospective applicant's application for preliminary discovery must be dismissed. 101 I will make orders for the substitution of the prospective applicant's real name and for substitution of the prospective respondent. 102 I will make orders preserving the confidentiality of the documents the prospective applicant sought to rely upon in this Court that are subject to Harman obligations owed to the Supreme Court. 103 I will order that these reasons not be published until the parties have had an opportunity to make submissions as to whether any redactions of these reasons should be made. 104 I will order that the prospective applicant pay the prospective respondent's costs of the application for preliminary discovery. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.