Ashton v Pratt (No 2)
[2013] NSWCA 448
•12 December 2013
Court of Appeal
New South Wales
Case Title: Ashton v Pratt (No 2) Medium Neutral Citation: [2013] NSWCA 448 Hearing Date(s): 12 December 2013 Decision Date: 12 December 2013 Before: McColl JA Decision: Application for non-publication order in relation to the names of the second and third respondents refused.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: COURTS - practice - non-publication order - no question of principle Cases Cited: Ashton v Pratt [2013] NSWCA 400 Texts Cited: Practice Note SC Gen 2 Category: Interlocutory applications Parties: Madison Ashton - Appellant
Jeanne Pratt - First Respondent
Indra Heslop-Blochowiak and Xavier Conor Heslop-Kelly by their tutor Liam Kelly - Second and Third RespondentsRepresentation - Counsel: G O'L Reynolds SC with R K Newton - Appellant
M Henry SC - First Respondent
J C Hewitt - Second and Third Respondents- Solicitors: David Legal - Appellant
Arnold Bloch Leibler - First Respondent
Beazley Singleton Lawyers - Second and Third RespondentsFile Number(s): SC 2012/42742 Decision Under Appeal - Before: Brereton J - Date of Decision: 16 January 2012 - Citation: Ashton v Pratt (No 2) [2012] NSWSC 3 - Court File Number(s): SC 2010/56518 Publication Restriction: No
JUDGMENT
HER HONOUR: Subsequent to the publication of the Court's reasons for making its orders on 18 November 2013 (Ashton v Pratt [2013] NSWCA 400), the Court received an application from members of the media for access to the statement of facts and contentions of the second and third respondents and the evidence relied upon by the second and third respondents. Having regard to the fact that the Court's orders contemplated that further documents should be brought into existence in response to that statement of facts and contentions, I took the view that it was not appropriate to accede to the media request until all documents had been provided in compliance with those orders. This was to ensure that should any publication be made by the media, all material would be available to it in the hope that a balanced report would be published.
Once the process of complying with the 18 November timetable had been achieved I sought the parties' attitude as to whether those documents could be released to the media, meaning the documents referred to in the 18 November orders, as well as the responses to those documents. The appellant and the first respondent advised that they did not object to those documents being released to the media. The second and third respondents submit that, if they are to be released, an order that their names should not be published should be made.
The second and third respondents were joined in the proceedings on 18 November 2013 pursuant to an application made on their behalf by their tutor, Mr Kelly. Their names were read in open court into the court record when the orders were made and appear on the cover sheet and in the body of the reasons for the 18 November 2013 orders. Their names also appeared in the application for their joinder and, as I recall, in the affidavits in support of that application.
Mr J C Hewitt, who appears for the second and third respondents today, has drawn the Court's attention to the fact that, pursuant to Practice Note SC Gen 2 (at [7]), the Court's practice is that access will normally be granted to non-parties in respect of, among other documents, pleadings and judgments in proceedings that have been concluded except insofar as an order has been made that they or portions of them be kept confidential. He submits, and I accept, that the statement of facts and contentions could be understood to fall within the category of pleadings, so that, prima facie, they would not be released until the proceedings had been concluded, which is not going to happen for a while yet.
Mr Hewitt acknowledges that the names of the second and third respondent are already in the public domain in connection with these proceedings but submits that, they being young children, every publication of their names in any further reports has the capacity to embarrass them. I accept that publication of matters in connection with these proceedings and in relation to these proceedings may have that effect upon the children, nevertheless their names are in the public domain in the manner in which I have already recorded.
Open justice is a principle to which all courts adhere, nevertheless there is no right for any non-party or media to obtain access to court documents. However the practice set out in the Practice Note is only an indication of a "normal" approach. Insofar as it indicates pleadings are normally accessible after proceedings have concluded, I take into account that the second and third respondents do not otherwise object to the relevant documents being published, or made available, to the media and nor do the appellant and the first respondent. In my view, the matters to which Mr Hewitt has drawn the Court's attention in relation to the potential embarrassment of the second and third respondents should not stand in the way of the Court giving full effect to the open justice principle. It is not appropriate in the circumstances that the non-publication order he seeks be made. I will accordingly permit the Court's Public Information Officer to make the documents to which I have referred available to the media who sought access to them.
This is also an opportune time to have regard to another matter which Mr Hewitt drew to the Court's attention: the necessity to correct a part of the Court's reasons for its orders of 18 November. In [16] of those reasons the Court repeated a submission made by Mr Henry SC, who appeared for the first respondent, that the children's tutor was the appellant's partner. The Court noted that that submission was made without contradiction. Mr Hewitt informs the Court today that there was in fact material in the papers, which indicated that Mr Kelly had not been the appellant's partner for some period of time and says, without contradiction, that that remains the case. The Court's earlier reasons should be taken to have been corrected in that respect.
Orders
I refuse the application for a non-publication order in relation to the names of the second and third respondents.
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