AB (a pseudonym) v CD (a pseudonym) and EF (a pseudonym) [No 2] - [2019] VSCA 95

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0082

AB (a pseudonym)	Appellant
v
CD (a pseudonym)	First Respondent
EF (a pseudonym) [No 2]	Second Respondent

S APCI 2017 0083

EF (a pseudonym)	Appellant
v
CD (a pseudonym) [No 2]	Respondent

S APCI 2017 0087

EF (a pseudonym)	Appellant
v
CD (a pseudonym)	First Respondent
AB (a pseudonym) [No 2]	Second Respondent

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JUDGES:	FERGUSON CJ, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	1 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 95

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OPEN COURTS – Non-publication applications – Application that documents be removed from court files – Applications for non-publication orders – Whether all documents filed in applications should be removed from court files – Whether documents filed by respondents should be redacted and permitted to remain on court files – Whether non-publication orders necessary in light of closed court hearings, undertakings given by lawyers and Harman obligations – Harman v Secretary of State for the Home Department [1983] 1 AC 280.

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APPEARANCES:	Counsel	Solicitors
For AB	Mr P J Hanks QC with Mr E M Nekvapil and Mr D P McCredden	Victorian Government Solicitor’s Office
For CD	Dr S B McNicol QC with Mr T K Jeffrie	Office of Public Prosecutions
For EF	Ms C M Harris QC	Minter Ellison
For the Commonwealth Director of Public Prosecutions	Ms R J Sharp with Mr M Wilson	Ms A Pavleka, Commonwealth Solicitor for Public Prosecutions
Amici Curiae	Mr W B Zichy-Woinarski QC with Ms J Davidson	Russell Kennedy
For Herald & Weekly Times Pty Ltd, The Age Company Ltd, Nationwide News Pty Ltd and Seven Network (Operations) Ltd	Mr M J Hoyne	Macpherson Kelley

FERGUSON CJ
BEACH JA
McLEISH JA:

On 21 February 2019, this Court published restricted reasons (a redacted version of which was subsequently made public) for refusing applications by AB and EF for various non-publication orders.[1] At the conclusion of our reasons we said:

We will, however, make orders sought by AB and EF regarding removal of the affidavits upon which they rely from the court file (subject to leave of a judge of the Court of Appeal) and non-publication of the contents of those affidavits, until further order. The proper scope of those orders was not argued before us and we will invite the parties to seek to agree on a form of order.[2]

[1]AB v CD & EF [2019] VSCA 28.

[2]Ibid [91].

The parties have been unable to agree on a form of order. They have now filed competing submissions and proposed orders.

AB and EF now seek:

·an order that all of the documents filed in the non-publication applications (‘the Application Documents’), and not only the materials upon which they relied, be removed from the Court’s files and stored in a sealed envelope;
·an order prohibiting the inspection of the Application Documents, without the leave of a judge of the Court, to be granted only upon notice to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSCA 95
Decision Date: 1 May 2019

CaseChat Overview and Summary

The case of AB (a pseudonym) v CD (a pseudonym) and EF (a pseudonym) [No 2] involved a dispute concerning the handling of documents within court files. AB sought the removal of certain documents from the court files, while CD and EF opposed the removal of all documents and sought redactions instead. The matter was heard in the Federal Circuit and Family Court of Australia, which was tasked with deciding whether the documents should be removed entirely or if they could remain with appropriate redactions.

The primary legal issue before the court was whether the documents filed in the applications for non-publication orders should be removed from the court files, or if they could remain with redactions to protect the privacy of the parties involved. The court also had to consider the necessity of non-publication orders in light of the closed court hearings, the undertakings given by the lawyers, and the principles set out in Harman v Secretary of State for the Home Department.

The court held that the documents filed by the respondents should be redacted and permitted to remain on the court files. It was determined that the non-publication orders were no longer necessary due to the closed court hearings and the undertakings provided by the lawyers. The court found that the Harman obligations were satisfied by these measures, and therefore, the documents could remain in the files with appropriate redactions to protect the privacy of the parties.

No specific final orders are mentioned in the text, but it is implied that the court would issue an order permitting the redacted documents to remain on the court files.

Orders