B v LINES

Case [2018] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

B v LINES

[2018] SASC 4

Reasons for Decision of The Honourable Justice Hinton

23 January 2018

EVIDENCE - MISCELLANEOUS MATTERS - NON-PUBLICATION OF EVIDENCE - ORDERS - NON-PUBLICATION OF IDENTITY

The plaintiff instituted judicial review proceedings seeking orders in the nature of certiorari quashing decisions made by the Ombudsman in the course of investigations under the Ombudsman Act 1972 (SA) embarked upon in consequence of referrals made under s 24(2)(a) of the Independent Commissioner Against Corruption Act 2012 (SA). The proceedings have been instituted to protect the plaintiff’s reputation. The reports have not been made public by the Ombudsman and he has indicated that he will not do so pending the outcome of the proceedings and not before giving the plaintiff the opportunity to be heard.

By interlocutory application heard on 8 December 2017, the plaintiff sought orders that he or she be permitted to file the originating process using a pseudonym, to adopt pseudonyms for witnesses and organisations as may be necessary to preserve his or her anonymity and to seal and keep confidential all evidence filed. The plaintiff argued that the investigations and reports impact directly upon his or her reputation which could be irreparably damaged if the open court principle were applied in the normal way to the proceedings. Such consequence would see the very purpose of the proceedings defeated. The plaintiff relied on the Court’s inherent power and r 209(1)(c) of the Supreme Court Civil Rules 2006 to support the orders sought.

On 8 December 2017, the Court made a number of orders designed to protect the anonymity of the plaintiff and indicated that it would publish reasons on 23 January 2018 as to whether the orders should continue.

Held:

1.      The interim confidentiality orders made on 8 December 2017 should continue until further order.

Ombudsman Act 1972 (SA); Independent Commissioner Against Corruption Act 2012 (SA); Public Corporations Act 1993 (SA); Evidence Act 1929 (SA), referred to.
Russell v Russell (1976) 134 CLR 495; Hogan v Hinch (2011) 243 CLR 506; Hogan v Australian Crime Commission (2010) 267 ALR 12; Paterson & Ors v MacPherson & Anor [2010] SASC 311; R v Tait and Bartley (1979) 24 ALR 473; Australian Broadcasting Commission v Parish (1980) 43 FLR 129; Bakewell v MacPherson  (Unreported, 25 September 1992, SCGRG-92-1893; SCGRG-92-1911), applied.

B v LINES
[2018] SASC 4

Civil

HINTON J:

Introduction

  1. The plaintiff has instituted judicial review proceedings seeking orders in the nature of certiorari quashing decisions made by the defendant, the Ombudsman, in the course of investigations under the Ombudsman Act 1972 (SA) (the Ombudsman Act) embarked upon in consequence of referrals made under s 24(2)(a) of the Independent Commissioner Against Corruption Act 2012 (SA) (the Corruption Act). The impugned decisions concern the plaintiff’s discharge of his or her duties as a member of the board of a statutory corporation to which the Public Corporations Act 1993 (SA) applies. The action asserts jurisdictional…

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AGLC
B v LINES [2018] SASC 4
Case
[2018] SASC 4
Decision Date

CaseChat Overview and Summary

In B v LINES, the applicant sought various confidentiality orders to protect their identity and evidence in a proceeding related to an investigation by the Ombudsman. The applicant's request included using a pseudonym, sealing evidence, and holding hearings in camera to prevent publication of the plaintiff's identity and the evidence. The Supreme Court of South Australia examined whether these orders could be justified under the Evidence Act 1929 (SA) and the inherent jurisdiction of the court. The open court principle, which mandates that court proceedings be conducted publicly, was a significant consideration in the decision.

The legal issues before the court were whether the orders sought could be justified under statutory or inherent powers and whether they could be reconciled with the open court principle. The applicant argued that the need to protect their reputation and prevent reputational damage outweighed the public interest in open justice. The court recognised the importance of reputation and the need for procedural fairness but also considered the public interest in the transparency and integrity of judicial proceedings. The court had to balance these competing interests to determine whether the orders were justified.

The court held that while the orders did infringe on the open court principle, they were necessary to protect the applicant's reputation and to ensure that the substantive proceedings could be fairly conducted. The court found that the public interest in the particular case did not outweigh the need for confidentiality. The confidentiality orders were deemed necessary to prevent reputational harm that would undermine the purpose of the proceedings. The court concluded that the orders could be justified under the inherent jurisdiction of the court and granted the interim confidentiality orders until further order.

In summary, the court granted the interim confidentiality orders sought by the applicant, balancing the need for confidentiality with the open court principle. The orders were necessary to protect the applicant's reputation and ensure the fair conduct of the proceedings. The court emphasised the importance of maintaining public confidence in the administration of justice while acknowledging the specific circumstances of the case that warranted the imposition of confidentiality measures.

Orders

Orders of the court

Held:

1. The interim confidentiality orders made on 8 December 2017 should continue until further order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The interlocutory application as filed seeks to invoke the power contained in s 69A of the Evidence Act 1929 (SA) (the Evidence Act). The orders sought included that the plaintiff be permitted to file the originating process using a pseudonym, to adopt pseudonyms for witnesses and organisations as may be necessary to preserve the plaintiff’s anonymity, to seal and keep confidential all evidence filed, and that all hearings of and in relation to the proceedings be held in camera. In addition the plaintiff sought an order prohibiting the publication of any evidence given and any material that might tend to identify the plaintiff, the corporate body with which he or she and the proceedings are associated, and any witness involved in the investigation subject of the proceedings. It quickly became apparent that the raft of orders sought could not be supported exclusively by the power contained in ss 69 and 69A of the Evidence Act. Accordingly, the plaintiff resorted to the Court’s inherent power and rule 209(1)(c) of the Supreme Court Civil Rules 2006. Rule 209(1)(c) may be seen as a power supported by the inherent power of the Court. The orders sought and those made offend the open court principle. In Russell v Russell Gibbs CJ said:[3]It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v. Scott). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure” (McPherson v. McPherson). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court. If the Act had empowered the Supreme Courts when exercising matrimonial jurisdiction to sit in closed court in appropriate cases I should not have thought that the provision went beyond the power of the Parliament. In requiring them to sit in closed court in all cases—even proceedings for contempt—the Parliament has attempted to obliterate one of their most important attributes. This it cannot do.[footnotes omitted][3] (1976) 134 CLR 495 at 520. Thirty-five years later the constitutional foundation for the open court principle was settled in Hogan v Hinch.[4] In that case French CJ said:[5]An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.[footnotes omitted][4] (2011) 243 CLR 506.[5] (2011) 243 CLR 506 at [20], see also at [85]-[91] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); see also, Condon v Pompano Pty Ltd (2013) 252 CLR 1 at [5], [57]-[70] (French CJ); Australian Federal Police v Zhao (2015) 255 CLR 46 at [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Lastly, the point made by the Full Court of the Federal Court in R v Tait and Bartley, a case concerning the provision by counsel of confidential information relevant to sentence in chambers to avoid proceeding in closed court, should also be observed:[21]Where, in order to do justice in a particular case, it is necessary to exclude the public from the court room, or to limit the public access to the material upon which the court is acting, the court must be astute to ensure that its procedure gives as much information as possible to the public lest the public confidence in the court’s ability to do justice in the generality of cases be impaired.[21] (1979) 24 ALR 473 at 492.Consideration The common law recognises that personal reputation is an interest which should not be damaged in the exercise of executive power unless the person likely to be affected has had a full and fair opportunity to show why any adverse finding should not be made.[22] The importance placed on reputation is reflected in the fact that a person possibly affected by a decision made in the exercise of executive power is, generally speaking, to be afforded procedural fairness despite no right, entitlement or interest being at risk from the exercise of such power.[22] Annetts v McCann (1990) 170 CLR 596. As in Paterson and Bakewell the very reason for these proceedings is to protect the plaintiff's reputation. The arguments to be made in the substantive action include the contention that the plaintiff has not had a proper opportunity to answer the allegations and findings contained in the Ombudsman’s reports. To prove his or her case the plaintiff needs to put the reports before the Court. If those reports, as yet unanswered, are made public I am satisfied that reputational damage will likely follow and the purpose of the proceedings will be undermined – justice will be denied. It is also significant here to bear in mind that the reports are confidential and that no decision has as yet been made by the Ombudsman as to whether under s 26 of the Ombudsman Act they should be published in whole or in part. In relation to this, the Ombudsman challenges the reviewability of the reports in the substantive action. If his argument is upheld, the reports will have been laid before this Court for no purpose and the confidentiality regime in place beyond the Court will have been needlessly defeated. It may be accepted that the public has a very real interest in the operation and conduct of public corporations. However, I do not understand the allegations subject of the Ombudsman’s investigation to concern systemic or organisational issues as opposed to practices and actions particular to the plaintiff. In those circumstances, the public importance attached to this case is of a lesser order and confidentiality is less likely to significantly impair confidence in the administration of justice. On the other hand, the maintenance of confidence in the Ombudsman and the public interest in and reliance upon his scrutiny of complaints and governmental responses to any recommendations made may be said to favour publication. But it is the publication by the Ombudsman of reports and outcomes that promotes confidence in his discharge of his duties. That is not the immediate concern of this Court. The confidentiality orders do not extend to prohibiting the future publication of the reports by the Ombudsman. Thus, confidentiality in these proceedings does not undermine confidence in the Ombudsman, nor does it mean that the allegations and reports will never see the light of day.