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Ashton v Pratt

Ashton v Pratt

Case [2011] NSWSC 1092 12 September 2011

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Open Justice

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Civil Litigation & Procedure

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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)

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…

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.

Continue reading Ashton v Pratt

Details

AGLC: Ashton v Pratt [2011] NSWSC 1092
Case: [2011] NSWSC 1092
Decision Date: 12 September 2011

CaseChat Overview and Summary

In the matter of Ashton v Pratt, the applicant, Ms Ashton, sought an order for the proceedings to be conducted in private and for a suppression order to be made in relation to evidence given by her. The dispute revolves around a defamation claim brought by the defendant, Mr Pratt, against a third party, which indirectly implicates Ms Ashton. The application was heard in the Equity Division of the Supreme Court of New South Wales. The core legal issues before the court were whether the proceedings should be conducted in private and whether a suppression order should be imposed under the Court Suppression and Non-publication Orders Act 2010 (NSW).

The court found that the proceedings should not be conducted in private, as the Equity Division applies the same rules of open justice as the Common Law Division. Furthermore, the court held that the application under Civil Procedure Act 2005 s 71(b) (NSW) was not applicable since it is concerned with situations where public proceedings would practically defeat or circumvent relief sought, and the applicant was not a party to the proceedings. The court also determined that the more stringent test imposed by the Court Suppression and Non-publication Orders Act 2010 (NSW) was not satisfied, as the evidence in question was gratuitous and not pressed. The mere possibility that children of persons involved in the proceedings might be subject to disadvantage when their parents are mentioned was not sufficient to justify intruding on the principle of open justice.

As a result, the court dismissed the application for proceedings to be conducted in private and for a suppression order to be made. The defamation case between Mr Pratt and the third party will proceed in open court, in line with the principle of open justice. The decision underscores the importance of maintaining open court proceedings, even when non-parties are indirectly implicated, unless there are compelling reasons to deviate from this principle.

Orders