Supreme Court New South Wales

• Medium Neutral Citation: Ashton v Pratt [2011] NSWSC 1092
• Hearing dates: Monday, 12 September 2011
• Decision date: 12 September 2011
• Jurisdiction: Equity Division
• Before: Brereton J

Decision

Application dismissed

• Catchwords: COURTS AND JUDGES - Application for proceedings to be conducted in the absence of the public and for suppression order - applicant relies on (NSW) Civil Procedure Act 2005 s 71(f) that proceedings be conducted in private in Equity Division if court thinks fit - no reason why proceedings should be conducted in private just because in Equity Division - Equity Division applies same rules of open justice as Common Law Division - applicant relies on Civil Procedure Act s 71(b) that public proceedings would defeat ends of justice - s 71(b) addresses situations where public proceedings would practically defeat or circumvent relief sought - not applicable where applicant not a party - (NSW) Court Suppression and Non-publication Orders Act (2010) imposes more stringent test for suppression and non-publication orders - application brought by non-party to proceedings who is referred to in evidence on grounds that scandalous material will occasion detriment to herself and her child - inevitable consequence that children of persons involved in proceedings may be subject to disadvantage when parents mentioned - of itself insufficient basis for intruding on principle of open justice - material of a scandalous nature about applicant is gratuitous and not pressed - administration of justice not prejudiced if case heard in open court
• Legislation Cited: (NSW) Civil Procedure Act 2005, s 71, s 72 (NSW) Court Suppression and Non-publication Orders Act 2010, s 3, s 6, s 8; (NSW) Succession Act 2006
• Cases Cited: AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153; John Fairfax Publications Pty Ltd and Another v District Court of New South Wales and Others (2004) 61 NSWLR 344; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; Re Fenwick; Application of J R Fenwick; Re 'Charles' 22 NSWLR 76; Scott v Scott [1913] AC 417; W v M [2009] NSWSC 1084
• Category: Procedural and other rulings
• Parties: Shari-Lea Hitchcock (applicant); Madison Ashton (plaintiff); Jeanne Pratt (defendant)
• Representation: Counsel: Mr C. C. Branson QC (applicant); Mr F. M. Douglas QC, Mr R. K. Newton and Mr T French (plaintiff); Mr R. Richter QC, Mr N. J. Clelland SC and Mr M. S. Henry (defendant); Solicitors: James Tuite & Associates (applicant); David Legal (plaintiff); Arnold Bloch Leibler (defendant)
• File Number(s): 2010/209167

Judgment (ex tempore)

1 HIS HONOUR: Shari-Lea Hitchcock seeks to file a summons, which I shall treat as a notice of motion, in the current proceedings, seeking orders pursuant to (NSW) Civil Procedure Act, 2005, s 71(b), and s 71(1)(f), to the effect that the proceedings be conducted in the absence of the public, and orders pursuant to (NSW) Court Suppression and Non-publication Orders Act 2010, s 8(a), s 8(c) and s 8(e), prohibiting publication or other disclosure of information tending to reveal her identity and any evidence given or submission made in the proceedings and the contents of documents filed or served or tendered in connection with them.

2 Civil Procedure Act, s 71, provides that subject to any Act, the business of a court in relation to any proceedings may be conducted in the absence of the public in certain specified circumstances. Such circumstances include:

...

(b) if the presence of the public would defeat the ends of justice,

...

(f) if, in proceedings in the Equity Division of the Supreme Court of New South Wales, the court thinks fit.

3 As I observed in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290 (at [2]), s 71 reflects the common law principle that courts ought to conduct their hearings in public, except in situations where open justice would defeat the ends of justice. Examples of cases where the principle of open justice has yielded to the demands of the ends of justice include: where the litigation is "as to a secret process" [ Scott v Scott [1913] AC 417, Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313]; in proceedings where injunctory relief is sought in regards to the publication of defamatory material [ Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153, W v M [2009] NSWSC 1084]; and where injunctive relief is sought to prohibit publications of imputations said to be sourced from breaches of confidence [ AMI v Fairfax ]. These exceptions to the general requirement for hearings to occur in public can be rationalised on the basis that to permit them to be conducted in public would render the relief sought in them futile.

4 As regards the circumstance specified in s 71(f), although certain proceedings in the Equity Division, such as adoption proceedings and some applications of an ex parte character are sometimes conducted in the absence of the public (for example, an unopposed protective list matter dealing with the making of statutory wills for persons lacking testamentary capacity under (NSW) Succession Act 2006, Part 2.2 [ Re Fenwick; Application of J R Fenwick; Re 'Charles' 22 NSWLR 76]), the Equity Division applies the same principles of open justice as the Common Law Division of the court. It is insufficient reason to close the Court merely that the proceedings are in the Equity Division unless some additional ground, such as that the presence of the public would inhibit the attainment of justice, or would unacceptably compromise other rights. Even where proceedings concern the guardianship, custody or maintenance of a minor, as I have said elsewhere, it is usually desirable that the proceedings take place in open court, although often the court will make orders to the effect that information that would tend to identify the minor in question not be published.

5 The ground in s 71(b) addresses circumstances where public proceedings would practically defeat or circumvent the relief sought. This is not readily applicable where the applicant is not a party to proceedings. Additionally, as I indicate below, where the scandalous material will be obliterated from the affidavit material, it is difficult to see how the administration of justice will be prejudiced if the proceedings are not held in secret. As Kirby P (as he then was), observed in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 (at 55), "courts are loathe to expand the field of secret justice".

6 In order to consolidate the grounds for non-publication orders - which were previously largely made in the inherent jurisdiction of the court - Parliament enacted the (NSW) Court Suppression and Non-publication Orders Act 2010. Section 8(1) provides that a court may make a suppression order or non-publication order on one or more of five grounds, including that:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

...

(c) the order is necessary to protect the safety of any person,

...

(e) it is otherwise necessary in the public interest for the order to be made and that that public interest significantly outweighs the public interest in open justice.

7 A "suppression order" is defined in s 3 to mean an order that prohibits or restricts the disclosure of information by publication or otherwise. A "non-publication order" is defined in s 3 to mean an order that prohibits or restricts the publication of information (but does not otherwise prohibit or restrict the disclosure of information). "Publish" is also defined by s 3, to mean disseminate or provide access to the public or a section of the public by any means, including publication in print media, broadcast by radio or television, public exhibition, or broadcast or publication on the internet.

8 Importantly, s 6 of the Act states that in deciding whether to make a suppression order or a non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. In emphasising open justice and stipulating the test of necessity in s 8, the new legislation imposes a more stringent test than that prescribed by (NSW) Civil Procedure Act 2005, s 71 and the former s 72 of that Act - which related to non-publication orders. The second reading speech makes tolerably clear that Parliament's intention was to minimise the circumstances in which suppression and non-publication orders would be made, and their operation, and to emphasise the principle of open justice, with a view to facilitating public knowledge and understanding of proceedings in the courts of New South Wales. The Parliamentary Secretary, giving the second reading on behalf of the Attorney-General, said:

The Government's clear policy intention, not only in this bill, but also in the Court Information Act 2010, has been to promote access to court information to the public, including the media. Our intention is to promote transparency and a greater understanding of the justice system. However, at the same time, we must ensure that the fair conduct of court proceedings, the administration of justice, and the privacy and safety of participants in court proceedings is not unduly compromised.

9 The present application is brought by a person who is not a party, nor a witness, but is referred to in the evidence. As I pointed out in the course of argument, some of the allegations pertaining to her in the affidavit material are of a scandalous character. That is not to make any judgment as to the truthfulness or accuracy of the material. Those allegations, as it seems to me, are gratuitous in the sense that they appear to have practically nothing to do with the plaintiff's cause of action. In my view, they can be omitted from the evidence without detriment to the plaintiff's case. Mr Douglas QC, who appears for the plaintiff, has indicated that some of those allegations are not pressed and in the course of argument this morning, has conceded that others could not be. If that course is adopted, as in my view it should be, it seems to me that the problem of scandalous allegations concerning the interested person being aired in open court can be avoided.

10 Beyond that, the application is based on essentially the proposition that it will be detrimental to the interested person, and more particularly to her 14 year-old daughter, for these proceedings to be heard in public. The evidence does not touch, in any significant way, how the public hearing of the present proceedings would directly impact on the daughter. The argument would seem to be that the daughter may be subject to teasing, bullying or other disadvantage by reason that her mother is referred to in the proceedings.

11 It is an unfortunate consequence of open justice that the children of parties to, and other people involved in, proceedings (including, for example, in criminal proceedings) may be subject to disadvantage when their parents' names are mentioned in court. This has never been a sufficient basis for intruding on the principle of open justice. The tests of necessity referred to in s 8 have often been said to require a high degree of certainty. At least, that was so when necessity was the test imposed by common law, and there is no reason why it would be any less so in the context of the statute [ John Fairfax Publications Pty Ltd and Another v District Court of New South Wales and Others (2004) 61 NSWLR 344, 365-366 (Spigelman CJ)]. I have considered whether the protection of the child amounts to protecting the safety of the person, but I do not think it has been demonstrated that there is any risk to the child's safety.

12 In my view, the proper administration of justice will not be prejudiced if this case is heard in open court and in the absence of a suppression or non-publication order. A suppression order in the context of this case is not necessary to prevent the defeat of any relief claimed in the proceedings. It cannot be said that the public interest in suppressing publication significantly outweighs the public interest in open justice, save at least insofar as the evidence contains irrelevant scandalous allegations which, as I have indicated, ought in any event be struck out.

13 The consequence is that it seems to me that counsel for the interested person should identify those allegations in the affidavit evidence which go beyond what are necessary for proof of the plaintiff's case and do more than identify the interested person but involve some aspect of irrelevant scandal. I will be highly inclined, subject of course to argument from the other parties, to exclude those allegations from the evidence and, being excluded from the evidence, they will not be aired in court.

14 Subject to that, I would dismiss the application.

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Decision last updated: 22 September 2011