A1 v B (pseudonyms) (Ruling No 1)
[2025] VSC 435
•18 July 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI (redacted)
| A1 (a pseudonym) | First Plaintiff |
| and | |
| A2 (a pseudonym) | Second Plaintiff |
| v | |
| B (a pseudonym) & ORS (redacted) | Defendants |
---
JUDGE: | DELANY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2025 |
DATE OF JUDGMENT: | 18 July 2025 |
CASE MAY BE CITED AS: | A1 v B (pseudonyms) (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 435 |
---
OPEN COURTS — Application for proceeding suppression order without notice — Application for closed Court order — Application to transfer proceeding to Federal Circuit and Family Court of Australia and related applications — Orders by the Federal Circuit and Family Court of Australia permitting reference to documents filed and information concerning proceedings in that Court on the hearing of the transfer and related applications in this Court — Appropriate to make suppression order without notice and closed Court order in respect of the application to transfer and related applications — Statement of reasons may be provided adopting pseudonyms and other restrictions without rendering the suppression order ineffective — Open Courts Act 2013 (Vic) ss 4, 8, 10, 11, 13, 14, 17, 18, 19 — Federal Circuit and Family Court of Australia Act 2021 (Cth) s 69(1) — Family Law Act 1975 (Cth) ss 114Q(2)(a)‑(b), 114R(2)(b)(i) — Napier v Treasury Wine Estates Ltd [2020] VSC 765; Re WD (No 2) (2023) 72 VR 589; [2023] VSC 790, applied; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, referred to.
STATUTORY INTERPRETATION — Construction of ss 8(1A) and (3) of the Open Courts Act 2013 (Vic) — Interaction with s 114Q of the Family Law Act 1975 (Cth) where orders made pursuant to s 114Q(2) of the Family Law Act 1975 (Cth) — Suppression order made with carve out concerning operative provisions of the Family Law Act 1975 (Cth) — Re WD (No 2) (2023) 72 VR 589; [2023] VSC 790, referred to.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Not to be disclosed | Not to be disclosed |
| For the Defendants | Not to be disclosed | Not to be disclosed |
HIS HONOUR:
By paragraph 3 of the summons dated 12 June 2025, the first defendant, to whom for confidentiality reasons I will refer to as B, seeks the following orders:
Pursuant to sections 17 and 20 of the Open Courts Act 2013 (Vic), Rule 28.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) or alternatively the Court’s inherent jurisdiction:
a.any documents filed in connection with this summons, including affidavits, exhibits to affidavits and written submissions, be confidential and held on the Court file on that basis until further order; and
b.the publication of any information concerning this summons or alternatively the publication of the names of the parties to this summons or any information which might be expected to enable such identification, be prohibited until further order of the Court.
The hearing of the substantive relief sought by B in the 12 June 2025 summons was scheduled to take place together with the hearing of a summons for leave to amend a pleading issued on behalf of the plaintiffs, to whom for confidentiality reasons I will refer to as A1 and A2, and a directions hearing listed pursuant to liberty to apply regarding another summons previously filed by A1 and A2 (‘directions’).
In the days prior to the hearing the Court received an email from the solicitors for B which stated that having regard to the nature of the application, one aspect of which involved the proposed transfer of the proceeding to the Federal Circuit and Family Court of Australia (‘FCFCOA’), that B proposed to rely on s 10(3) of the Open Courts Act 2013 (Vic) (‘OCA’) and that it was neither necessary nor appropriate for the media to be given notice of the scheduled hearing.
Following receipt of that email the proceeding was not listed in the daily list, as was the request of B and not opposed by A1 and A2. The Court also did not take steps to ensure that relevant news media organisations were notified of the application in line with s 11(1) of the OCA as the Court would have been obliged to do, had the application by B relied on s 10(1) of the OCA.
At the hearing B sought an order that the Court be closed in reliance on s 30 of the OCA.
A1 and A2 do not oppose the making of the order sought by paragraph 3 of the summons or the Court closure order. The other parties to the proceeding do not take a position on the application.
The applicable legislation and principles
Section 1 of the OCA contains a statement of the main purposes of the Act. That section is in the following terms:
1 Purposes
The main purposes of this Act are to—
(aa)recognise and promote the principle that open justice is a fundamental aspect of the Victorian legal system which—
(i)maintains the integrity and impartiality of courts and tribunals; and
(ii)strengthens public confidence in the system of justice;
(a)reform and consolidate provisions for suppression orders relating to information derived from proceedings applicable to the Supreme Court, the County Court, the Magistrates’ Court, the Coroners Court, the Victorian Civil and Administrative Tribunal and other prescribed courts and tribunals;
(b)reform and consolidate provisions for suppression orders relating to other information relevant to, but not derived from, certain proceedings in the County Court and the Magistrates’ Court;
(c)make general provisions applicable to all suppression orders made pursuant to the exercise of the inherent jurisdiction of the Supreme Court and by courts or tribunals under this Act;
(d)reform and consolidate provisions for closed court orders applicable to the Supreme Court, the County Court, the Magistrates’ Court, the Coroners Court, the Victorian Civil and Administrative Tribunal and other prescribed courts and tribunals.
Sections 10 and 11 of the OCA are in the following terms:
10 Notice of applications for suppression orders
(1)Subject to subsection (3), an applicant for a suppression order must give 3 business days’ notice of the making of the application to—
(a)the court or tribunal in which the application is to be made; and
(b)the parties on the record in the proceeding to which the application relates.
(2)Notice under subsection (1) must be in accordance with rules of court (if any) applying in the court or tribunal in which the application is made.
(3)The court or tribunal may hear an application for a suppression order despite the failure of the applicant to give notice in accordance with subsection (1) if the court or tribunal is satisfied that—
(a)there was a good reason for the notice not being given or not being given within the required time period; or
(b)it is in the interests of justice that the court or tribunal hear the application without notice being given.
(4)This section does not apply to the making of a proceeding suppression order by a court or tribunal on its own motion.
11Notifications to relevant news media organisations
(1)On receiving a notice under section 10(1), the court or tribunal must take reasonable steps to ensure that any relevant news media organisation is notified of the application for a suppression order.
(2)Notification under this section may be by electronic communication or any other means that the court or tribunal considers appropriate.
(3)In this section, relevant news media organisation means a news media organisation which the court or tribunal would ordinarily ensure was sent notice of the making of a suppression order.
Section 17 upon which B places reliance in the summons is in the following terms:
17 Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.
Section 18(1)(a) of the OCA is in the following terms:
18 Grounds for proceeding suppression order
(1)A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
Example
Another reasonably available means may be directions to the jury.
Section 30 of the OCA is relevantly in the following terms:
30 Power to close proceeding to the public
(1) Subject to subsections (2) and (3), a court or tribunal—
(a)may order that the whole or any part of a proceeding be heard in closed court or closed tribunal; or
(b)may order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding.
(2)A court or tribunal other than the Coroners Court may make a closed court order if satisfied as to one or more of the following grounds—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
…
(d) if giving a statement of reasons would render the suppression order in effective.
Also relevant in this case is s 8 of the OCA, which is in the following terms:
8 Other laws restricting or prohibiting publication not affected
(1)This Act does not limit or otherwise affect the operation of a provision made by or under any other Act, including an Act of the Commonwealth, that—
(a)prohibits or restricts, or authorises a court or tribunal to prohibit or restrict, the publication or other disclosure of information for or in connection with any proceeding; or
(b)requires or authorises a court or tribunal to close any proceeding to the public.
(1A)If a provision of an Act referred to in subsection (2) prohibits or restricts, or authorises a court or tribunal to prohibit or restrict, the publication or other disclosure of information for or in connection with any proceeding, a court or tribunal must not make a suppression order that prohibits or restricts the publication or other disclosure of information which is already prohibited or restricted by that other provision.
(2)Without limiting the generality of subsection (1), this Act does not limit the operation of the following provisions—
(a)section 121 of the Adoption Act 1984;
(b)section 534 of the Children, Youth and Families Act 2005;
…
(3)A suppression order that prohibits or restricts the publication or other disclosure of information which is already prohibited or restricted by the operation of a provision made by or under any Act, including an Act of the Commonwealth, is not invalid merely because it covers the same prohibition, restriction or disclosure as the provision of an Act.
Sections 14 and 14A of the OCA are relevantly in the following terms:
14Order must be made on basis of evidence or sufficient credible information
(1)In making a suppression order, a court or tribunal must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory to the court or tribunal, that the grounds for making the order are established.
(2) Subsection (1) does not apply to an interim order.
14A Statement of reasons for making a suppression order
(1)Subject to subsection (2), a court or tribunal which makes a suppression order must give a statement of reasons that sets out—
(a) the reasons for the terms of the order; and
(b)the reasons for the duration, grounds and scope of the information covered by the order.
(2)A court or tribunal is not required to give a statement of reasons—
(a)for an interim order; or
…
(d)if giving a statement of reasons would render the suppression order ineffective.
In Napier v Treasury Wine Estates Ltd,[1] Nichols J identified the principles to be applied when the Court is asked to make a suppression order under the OCA:
[1]Napier v Treasury Wine Estates Ltd [2020] VSC 765 (footnotes omitted) (‘Treasury Wines’).
26A proceeding suppression order may be made if the Court is satisfied that the order is “necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means”. General law principles are applicable to the determination whether a suppression order is necessary for the proper administration of justice. As has been often observed, necessity is a stringent standard. It is not enough that an applicant for an order wishes to avoid scrutiny or maintain confidence, or that the making of a suppression order appears to be reasonable or sensible.
27In making a suppression order of any kind other than an interim order, including a proceeding suppression order, the Court must be satisfied on the basis of evidence or sufficient credible information that is satisfactory to the court or tribunal, that the grounds for making the order are established. The Open Courts Act requires that the statement of reasons for making a suppression order must set out the reasons for the terms, duration, grounds and scope of the order. Reasons are not required to be stated if they would render the suppression order ineffective.
…
30At general law, it is well accepted that a suppression order may be necessary to prevent a substantial risk to the administration of justice, in circumstances where “trial publicity might defeat the purpose of the litigation”, or more specifically in respect of disputes concerning allegedly confidential information, where the public nature of proceedings would render the relief sought inutile, or destroy the subject matter of the dispute (ie the confidential nature of the information). As Kirby P said in John Fairfax Group v Local Court of NSW:
the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case … or would derogate from even more urgent considerations of public interest … the rule of openness must be modified to meet the exigencies of the particular case.
31In relation to disputes where “confidential information is the subject matter of the proceedings”, Bowen CJ of the Federal Court said the following in Australian Broadcasting Commission v Parish:
[i]t is in the interests of the administration of justice that the very proceedings before the court should not be permitted to destroy or seriously depreciate the value of such confidential information. If it were otherwise, not only might the parties and members of the public consider the court was not paying proper regard to confidentiality but also it might open the way to abuse.
32These principles were more recently applied by Pembroke J of the New South Wales Supreme Court in X v Twitter Inc, in circumstances broadly analogous to the present facts, in that the information made the subject of a suppression order (which was not itself confidential) was such that its publication would likely have enabled a third party to discover the allegedly confidential information.
Consideration
As referred to by Nichols J in Treasury Wines, s 14 of the OCA provides that an order must be made on the basis of evidence or sufficient credible information. Section 14A of the OCA requires that the Court which makes a suppression order must give a statement of reasons unless one of the exceptions in s 14A(2) applies.
In this case I am satisfied on the basis of the evidence and credible information to which I will refer that pursuant to s 17 of the OCA a proceeding suppression order should be made concerning the summons dated 12 June 2025 and the directions. I am satisfied a statement of reasons which adopts pseudonyms in place of the names of the parties, which does not identify counsel or solicitors who acted in the matter or the proceeding number, enables the provision of a statement of reasons as required by s 14A(1) without rendering the suppression order ineffective as referred to in s 14A(2)(d) of the OCA.
A1 and B are parties to existing proceedings in the FCFCOA (‘FCFCOA proceeding’).
Section 114Q(1) of the Family Law Act 1975 (Cth) (‘FLA’) is in the following terms:
114QIndictable offence—communication to the public of account of proceedings that identifies parties or others involved in proceedings
(1)A person commits an indictable offence if:
(a)the person communicates to the public an account of proceedings under this Act; and
(b)the account identifies:
(i)a party to the proceedings; or
(ii)a witness in the proceedings; or
(iii)a person who is related to, or is associated with, a party to the proceedings; or
(iv)a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate.
Penalty: Imprisonment for 1 year.
Section 69(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’) is in the following terms:
69Power of the Federal Circuit and Family Court of Australia (Division 1) to give directions about practice and procedure in a civil proceeding
(1)The Federal Circuit and Family Court of Australia (Division 1) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of a civil proceeding, before the Court.
Sections 114Q(2)(a), 114Q(2)(b) and 114R(2)(b)(i) of the FLA are in the following terms:
114QIndictable offence—communication to the public of account of proceedings that identifies parties or others involved in proceedings
…
(2)Subsection (1) does not apply if the communication is:
(a)in accordance with a direction of a court; or
(b)otherwise approved by a court.
114RIndictable offence—communication to the public of list of court etc. proceedings that refers to names of parties
…
(2) Subsection (1) does not apply if:
…
(b) the communication is:
(i)in accordance with a direction of a court or otherwise approved by a court …
On 19 and 26 June 2025 the FCFCOA made Orders permitting reference to and reliance upon evidence and documents filed in or recording matters and events that have taken place in that proceeding on the hearing of B’s summons dated 12 June 2025 in this Court. Those Orders were expressed to be made pursuant to ss 30 and 69(1) of the FCFCOA Act, ss 114Q(2)(a) and 114Q(2)(b) and/or 114R(2)(b)(i) of the FLA and/or r 6.04(1)(b) of the FCFCOA (Family Law) Rules 2021.
The evidence relied on by B in support of the substantive relief sought in the summons included references to what has occurred and what is anticipated to occur in the FCFCOA proceeding and exhibited documents filed in that proceeding as permitted by the Orders to which I have referred. Responsive evidence filed on behalf of A1 and A2 cross-referred in part to aspects of that evidence.
Section 10(3) of the OCA
While the summons filed by B did not indicate B’s intention to seek a suppression order pursuant to s 10(3) of the OCA, the email sent by B’s solicitors prior to the date fixed for hearing informed the Court of that intention.
Having regard to the contents of the email, the nature of the substantive application made by the summons and the evidence filed in support of it, I determined that it was not appropriate to publish on the daily Court list or provide to media sources the details of the hearing, including the names of the parties, before hearing from the parties in relation to the application by B for orders pursuant to the OCA.
Having heard those submissions I accept that both of the independent limbs of s 10(3) of the OCA are satisfied in this case.
There is ‘good reason’ for notice not having been given in accordance with s 10(1) of the OCA in circumstances where the giving of notice would, or at the very least might, following the notice to then be given to the media by the Court under s 11(1), alert relevant news media organisations of the existence of proceedings involving A1 and B in the FCFCOA. To have identified parties A1 and B as parties involved in proceedings in the FCFCOA would likely have been a contravention of s 114Q(1) of the FLA.
The Orders made by the FCFCOA permitting reliance on materials filed in that Court in this proceeding are carefully crafted to ensure that the confidentiality which otherwise attaches to those documents pursuant to the FLA is protected while permitting those same documents to be employed by the parties on the hearing of B’s summons in this Court.
It is in the interests of justice that this Court hear the substantive application made by B without the risk that A1 and B be identified as parties involved in proceedings in the FCFCOA and without the risk of disclosure of the existence and/or the contents of documents filed in or recording or evidencing matters that have taken place in the FCFCOA proceeding.
Section 8 of the OCA
As the Court of Appeal observed in Hoser v Pelley (No 4), ‘[t]he relationship between [subsections] [8](1A) and (3) [of the OCA] and their overall effect is not immediately obvious’.[2]
[2]Hoser v Pelley (No 4) 2023 VSCA 319 [24(c)] (‘Hoser v Pelley’).
In Re WD (No 2),[3] Elliott J, who had sat as an Acting Justice of Appeal in Hoser v Pelley, was called upon to consider the operation of these provisions in circumstances where s 534 of the Children, Youth and Families Act 2005 (Vic) (‘CYF Act’) contained a prohibition upon the publication of certain information. On the hearing of an application for bail, there was an application to close the Court pursuant to s 30 of the OCA. Elliott J gave careful consideration to the relationship between ss 8(1A) and 8(3). In the course of so doing, his Honour traced the history of the legislative provisions:[4]
[3]Re WD (No 2) (2023) 72 VR 589; [2023] VSC 790 (‘Re WD’).
[4]Re WD (No 2) (2023) 72 VR 589; [2023] VSC 790 [88]–[93].
88Prior to the introduction of the Open Courts Act, the statutory source of the court’s power to make suppression orders was sections 18 and 19 of the Supreme Court Act 1986 (Vic). These sections were not complemented by any provision with a comparable or equivalent function to that of section 8 of the Open Courts Act.
89.When the Open Courts Act was introduced in 2013, section 8(1A) and (3) did not feature …
90.In 2017, an independent review of the Open Courts Act was conducted …
91.[T]he Open Courts Review found that the vast majority of suppression or non-publication orders in Victoria between 2014 and 2016 were made under the Open Courts Act. However, it was noted that:
… analysis of the suppression orders made since the introduction of the [Open Courts Act], indicates that they may, at least on some occasions, have been made in circumstances where dissemination of the encompassed information would have been contrary to law by virtue of provisions contained in other legislation.
92.The Open Courts Review [recommended that] That the Open Courts Act be amended to restrict the power to make suppression orders to situations not otherwise encompassed by statutory provisions prohibiting or limiting publication.
According to the Open Courts Review, this recommendation was intended to “assist in reducing the number of unnecessary orders and direct attention to what may be required in the circumstances”.
93.Following the Open Courts Review, the Open Courts and Other Acts Amendment Act 2019 (Vic) was introduced, section 6 of which made substantial modifications to section 8 of the Open Courts Act. These modifications included the introduction of subsections (1A) and (3) and the amendment of subsection (2) to list several other specialised statutory regimes which prohibited or limited the publication of certain information. The explanatory memorandum to the Open Courts and Other Acts Amendment Bill 2019 (Vic) offers the following explanation in relation to clause 6:
Subclause (2) inserts new section 8(1A) which precludes a court or tribunal from making a suppression order under the [Open Courts Act] in respect of certain information for, or in connection with, the proceeding if the publication of that information can be or is prohibited or limited by the operation of a provision referred to in section 8(2) of the [Open Courts Act].
…
Subclause (5) inserts a new section 8(3) for the purpose of ensuring that a suppression order made under the [Open Courts Act] which prohibits or restricts the publication of information contrary to the statutory requirement in section 8(1A) is not invalid as a result of covering the same prohibition, restriction or disclosure.
[Emphasis in original.]
Having traced the legislative history, his Honour went on to analyse the operation of s 8 of the OCA. His Honour made a number of helpful observations in the context of a Victorian statute containing restrictions on publication (being those in s 534 of the CYF Act) that are of equal application in circumstances where the FLA, a Commonwealth statute, includes provisions that prohibit publication:[5]
101… the position as far as section 8(1A) is concerned is relatively straightforward. As is clear from the text of the provision, it operates to preclude a court from making a suppression order in relation to information the publication or disclosure of which is already prohibited or restricted by the operation of a provision referred to in section 8(2). Thus, on its face, section 8(1A) precludes the court from making the suppression order sought by the Secretary, which proposes to prohibit the publication or disclosure of information that is already captured by the restriction on publication in section 534 of the Children, Youth and Families Act …
104In the absence of section 8(3), a literal reading of section 8(1A) might suggest that a suppression order of this nature “must not” be made, as it would operate to prohibit or restrict “the publication or other disclosure of information which is already prohibited or restricted by” section 534. In such circumstances, absent subsection (3), it might have been necessary for a suppression order of this kind to include an express carve-out for any information the publication or disclosure of which is already prohibited or restricted by operation of a provision referred to in section 8(2). Evidently, this scenario would have the potential to create serious inefficiencies, confusion and other undesirable outcomes. With this in mind, it may be the case that the purpose of section 8(3) is to affirm the validity of a suppression order made in such circumstances, notwithstanding it covers some information already the subject of statutory restrictions on disclosure or publication.
105.However, on a plain reading of section 8(3), there is equally no warrant to confine its operation to situations of partial overlap. It may be that section 8(3) is intended to operate more broadly as a legislative “safety net” of sorts, acting to save suppression orders that are made in spite of or in ignorance of the fact that the information is already subject to a prohibition or restriction on disclosure or publication by operation of a provision listed in section 8(2) …
107.Ultimately, it is unnecessary to determine the precise scope and operation of section 8(3) for present purposes. Whatever the position might be, it is clear that the subsection does not operate as an empowering provision. The language used in the provision does not in any way evoke a power on the court’s part to make suppression orders where specialised regimes prohibiting or restricting the publication of the relevant information are already in place … section 8(3) is a safeguard against invalidity, rather than a source of power. In this way, the provision stands in stark contrast to the strong prohibitive language adopted in section 8(1A), which provides that a court “must not” make a suppression order where the publication or disclosure of the relevant information is already prohibited or limited by the operation of a provision referred to in section 8(2).
[5]Re WD (No 2) (2023) 72 VR 589; [2023] VSC 790 [101], [104]–[105], [107].
In this case, the FCFCOA has made Orders permitting reference to and reliance upon documents filed in the FCFCOA in this proceeding which, absent such Orders, would otherwise be prohibited pursuant to s 114Q of the FLA. Those Orders apply to the use by the parties of documents and information forming part of the FCFCOA file but understandably are silent about reference to those documents by the Court when dealing with and determining the application.
The Orders having been made by the FCFCOA pursuant to ss 114Q(2) and 114R(2)(b)(i) permitting the use of documents and information otherwise covered by the prohibition in s 114Q(1) in this Court creates a circumstance where this Court, in the exercise of its jurisdiction, is permitted to have regard to documents and information, reference to which would otherwise be prohibited by s 114Q(1). In those circumstances, it is appropriate and consistent with the proper administration of justice that this Court make separate orders to ensure the non-disclosure of the FCFCOA proceeding and the documents and information forming part of those proceedings, as a result of the permitted use of those documents and that information in this Court.
Because it may be the case that any publication of the documents and information concerning the proceedings in the FCFCOA is already prohibited by s 114Q(1) of the FLA, notwithstanding the Orders made by the FCFCOA to which I have referred, having regard to the text of s 8(1A) of the OCA I consider it is appropriate to make orders under the OCA but, as canvassed as a possibility by Elliott J in Re WD, to express those orders in a manner that includes a carve out for any information, the publication or disclosure of which is already restricted by operation of s 114Q(1).
Section 30 of the OCA
Shortly prior to the commencement of the hearing, B contacted my Chambers foreshadowing an application for an order to close the Court for the hearing of B’s summons pursuant to s 30 of the OCA.
In Re WD, Elliott J said as follows concerning the importance of ‘necessity’ when dealing with an application pursuant to s 30 of the OCA:[6]
The importance of necessity in the context of the proper administration of justice was explained in an oft-quoted passage:[7]
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.
(Emphasis added.)
[6]Re WD (No 2) (2023) 72 VR 589; [2023] VSC 790 [59].
[7]John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476G–477B (McHugh JA, with whom Glass JA agreed) (‘John Fairfax’).
Having heard submissions in support of the application and having given consideration to the passage from John Fairfax to which Elliott J referred in Re WD, I am comfortably satisfied that a closed Court order pursuant to s 30 of the OCA was and remains necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means. That is the case because the hearing and determination of the substantive application the subject of B’s summons involved and required reference to evidence and documents permitted to be relied on pursuant to the Orders made by the FCFCOA on 19 and 26 June 2025.
Submissions filed on behalf of A1 and A2 in relation to the directions hearing traversed some of the same issues to be dealt with on the hearing of B’s summons. For that reason I determined it was appropriate to express the order pursuant to s 30 apply, in addition, to that aspect of the hearing.
De-identifying the parties, the transcript records the following closed Court order made pursuant to s 30:
That that part of the proceeding dealing with the summons dated 12 June 2025 issued on behalf of the first defendant is to be heard in closed court and … that only those persons who are parties to the proceeding or representing those parties and their legal practitioners may be present during that part of the proceeding that involves the hearing in determination of that summons.
… That subject to further order, the court is also closed and the same persons only be permitted to be present for the hearing of submissions and argument concerning the plaintiff’s application for directions …
Although the s 30 order concerning the submissions of A1 and A2 on directions was expressed to be subject to further order, having heard the matter, it is appropriate that the order as pronounced in Court stands as a permanent Court closure order preventing the disclosure of any of the matters that took place during the hearing of B’s summons and the directions.
There was no application to close the Court in relation to the pleading amendment application and I did not do so.
Section 17 proceeding suppression order
The proper administration of justice in this case requires that this Court act so that information otherwise required not to be disclosed by s 114Q(1) of the FLA is protected from disclosure in circumstances where, for the proper hearing and determination of B’s summons dated 12 June 2025, such documents and information were permitted to be relied on in this Court pursuant to the Orders of the FCFCOA.
For the reasons previously discussed, in particular concerning the closed Court order made pursuant to s 30 of the OCA, it is appropriate to make a proceeding suppression order pursuant to s 17 of the OCA, prohibiting the disclosure by publication or otherwise of a report of that part of the proceeding involving or concerning the summons filed by B dated 12 June 2025 and the directions and of any information derived from either of those matters. I am satisfied that such an order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
To be clear, the proceeding suppression order includes any report or reference to the transcript of that part of the hearing concerning the subject matter of this application, the substantive application by summons dated 12 June 2025 and the directions.
Disposition
I have asked counsel and solicitors to prepare a form of order to give effect to these reasons.
---
0
3
0