Nicholls v Australian Federal Police

REASONS FOR JUDGMENT 1 This proceeding involved an attack upon the validity of decisions to apply for, issue, and execute a search warrant in respect of certain materials of the applicant and his wife and certain entities with which he was associated. The search warrant was executed on 6 May 2008, but for various reasons the seized material has not yet been inspected by those apparently authorised to seize it. 2 The respondents objected to the competency of the proceeding, and complained about the applicant's persistent failure to comply with orders of the Court directed at progressing the matter. On the hearing of those issues, the applicant through counsel read a number of affidavits which had been filed. On 15 January 2009, I dismissed the proceeding: Nicholls v Australian Federal Police [2009] FCA 15. 3 The applicant has appealed from that decision. The appeal is likely to be heard in the May sittings of the Full Court. In the meantime, the inspection of seized documents has been stayed pending the hearing and determination of the appeal. 4 On 19 February 2009, I published reasons for ruling that the documents on this file to which O 46 r 6(1) and (2) of the Federal Court Rules apply should be available for inspection by any member of the public: Nicholls v Australian Federal Police (No 2) [2009] FCA 123. That ruling is no longer contentious, and I do not need to address it further. By the same ruling, I decided under O 46 r 6(3) that the affidavits read in Court on behalf of the applicant referred to above, and which are listed in [9] of the reasons for ruling, should also be available for inspection by the public. Those reasons are to be read with the reasons for a similar ruling in a related matter: Deputy Commissioner of Taxation v Nicholls [2009] FCA 122. In relation to that ruling, the applicant had opposed those affidavits being available for inspection, relying upon s 50 of the Federal Court of Australia Act 1976 (Cth). He unsuccessfully contended that the content of those affidavits should be restricted from publication in order to prevent prejudice to the administration of justice. He also sought to rely upon the protection from publication of his taxation affairs under "taxation laws" and by reason of the Australian Taxation Office Taxpayer's Charter, January 2007. 5 The applicant, by motion, now seeks leave to appeal from that ruling to the extent that it rejected his claim for an order that those affidavits and their contents should not be available for inspection because they or their contents are confidential. I note that his claim to confidentiality has been moderated from a blanket one, including as to the existence of the proceeding and any document filed in it. The applicant, by the motion, also seeks a stay of the operation of the ruling of 19 February 2009 in relation to those affidavits pending the hearing and determination of his appeal. 6 Whatever the outcome of the motion, the appeal will not be rendered nugatory. If it is successful, the seized documents will have to be returned to the applicant. The contents of the seized documents will not in the meantime be inspected by the respondents. Their contents will not have been seen by those involved in the execution of the search warrants. The applicant, with one possible exception discussed below, accepts that none of the affidavits in issue disclose any of the contents of the seized material. 7 In my view, leave to appeal should be refused. 8 With the motion, the applicant has filed a draft notice of appeal. It is only generally assertive in its claims of error. It does not identify any particular error alleged to have been made in deciding that the affidavits, having been read in open court, should not be available for inspection by the public. 9 The exercise of the power under s 50 is discretionary. The applicant has previously been invited to identify the particular parts of any of those affidavits which he says may contain information, the disclosure of which might be prejudicial to the administration of justice. Until oral submissions today, he has not done so. He has also previously been invited to file such affidavit evidence as he may rely upon to support his claim that any of the contents of any of those affidavits, if disclosed, pending the hearing and determination of his appeal, might be prejudicial to the administration of justice. He has not filed any such information. 10 In his oral submissions today he has referred to the Australian Taxation Office Taxpayer's Charter which addresses, as between the ATO and taxpayers, issues as to the confidentiality of information provided to that office. But the affidavits and the information they contain is not of that character. It is information which the applicant, through his counsel, chose to make use of in the course of a hearing in open Court. Moreover, when that information was read, no application was made to have the content of any of those affidavits treated as confidential. There is no evidence to explain why such an order is now sought but was not then sought. 11 In his oral submissions, the applicant identified only two affidavits which might contain confidential information. The first is his own affidavit and then only to the extent that it exhibits a copy of the search warrant, the validity of which is under challenge, and in particular, the offences which are suspected to have been committed to support the issue of the warrant. They appear on pages 3 to 6 of 9 of the warrant. However, as I have indicated, there is no evidence upon which the Court could be satisfied that the disclosure of that information might cause prejudice to the administration of justice, and far less that its non-disclosure would be necessary in order to prevent prejudice to the administration of justice. In respect of that information, therefore, there is simply no foundation upon which the Court could consider that the applicant would have any prospect of successfully reversing the effect of the reasons for ruling made on 19 February 2009 in relation to them.