Proctor : February 2018
31 PROCTOR | February 2018 by Kylie Downes QC and Philippa Ahern It is also necessary for an applicant to adduce evidence of specific prejudice, or apprehended particular or specific harm or damage, which could flow from disclosure of the material. Mere reliance upon the ‘inherent confidentiality’ of the material, in the absence of any evidence directed to the question of prejudice, will usually be insufficient. During the hearing of the application, the court may examine documents to determine whether access should be granted, the degree of access that should be granted and whether access might be granted on certain conditions, such as only to a party’s lawyers and experts, or the masking of certain passages, or the provision of suitable undertakings. 11 Procedure for bringing application Applications for a suppression order or non-publication order under s37AG of the Act may be made by parties to the proceeding or by any other person considered by the court to have a sufficient interest in the making of the order. 12 Such an order may also be made by the court of its own initiative, and it can be made during a proceeding or after its conclusion. 13 An order can be made on an interim basis pending the determination of the application, which should be done as a matter of urgency. 14 The following persons are entitled to be heard on the application, namely the applicant, a party to the proceeding, the Government of the Commonwealth or state or territory (or an agency), a news publisher and any other person who has a sufficient interest in the question of whether the order should be made (in the court’s opinion).15 Back to basics Kylie Downes QC is a Brisbane barrister and member of the QLS Proctor Editorial Committee. Philippa Ahern is a Brisbane barrister. Form of order The order made by the court: (a) must specify the ground or grounds on which the order is made (being the grounds identified in s37AG)16 (b) may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order17 (c) must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which the order is made18 (d) must specify the period for which the order operates. That period must be no longer than is reasonably necessary to achieve the purpose for which the order was made.19 Notes 1 Hearne v Street (2008) 235 CLR 125 at 157 per Hayne, Heydon and Crennan JJ. 2 Ibid. 3 Hearne v Street (2008) 235 CLR 125. 4 Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org  FCA 1326 at . 5 As a superior court of record, the Federal Court also retains an implied or inherent jurisdiction to restrict publication: Dye v Commonwealth Securities Ltd  FCAFC 115 at . 6 s37AE. 7 ACCC v Cement Australia Pty Ltd (No.2)  FCA 1082 at , . 8 ACCC v Air New Zealand Ltd (No.4)  FCA 1439 at ; ACCC v Air New Zealand Ltd (No 12)  FCA 533 at . 9 ACCC v Air New Zealand Ltd (No.4)  FCA 1439 at . 10 ACCC v Air New Zealand Ltd (No.4)  FCA 1439 at , ,  and . 11 Mobil Oil Australia Ltd v Guina Developments Pty Ltd  2 VR 34 at 40. 12 See s37AH(1). 13 See s37AH(1) and (3). 14 See s37AI. 15 See s37AH(2). 16 See s37AG(2). 17 See s37AH(4). 18 See s37AH(5). 19 s37AJ(2).