B v LINES - [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

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 error and the failure to afford the plaintiff procedural fairness. The plaintiff also seeks a number of related and consequential declarations.
On 8 December 2017 the matter was called on before me for directions. At the same time I heard an interlocutory application (FDN 2) filed by the plaintiff seeking orders that prevented, in effect, his or her identity being revealed. I listed the substantive proceeding for trial before myself on 30 January 2018 and made a number of other consequential orders not presently relevant.
As to the interlocutory application, the respondent did not wish to be heard. I made the following orders (the confidentiality orders):
1. Until further order:
1.1The Plaintiff’s name is not to be published on any cause list in respect of these proceedings.
1.2In all documents filed by any party to the proceedings hereafter the Plaintiff’s name is to be anonymised by identifying him or her only as ‘B’.
1.3The originating process and the pleadings in this matter, including the Statement of Grounds, the supporting Affidavit of Jessica Kate McBride and the sealed envelope marked Exhibit JKM-1 filed on 30 November 2017 and any response to the Statement of Grounds or any affidavit filed by the Defendant, and any other documents to be filed pursuant to orders 3, 4, 5 and 6, are to be sealed up in the Court registry and marked “Not to be opened except by order of a Judge of the Court”.
1.4The transcript of the hearing on 8 December 2017, the Draft Minutes of Order tendered to the Court on 8 December 2017, the Interlocutory Application filed on 30 November 2017, and the Notice of Address for Service filed by the Defendant on 7 December 2017 are to be sealed up in the Court registry and marked, ‘Not to be opened except by order of a Judge of the Court’.
Without the benefit of a contradictor and bearing in mind the exceptional nature of the confidentiality orders, I indicated that I would provide reasons on 23 January 2018 as to whether, in my view, those orders should continue.
In my view, for the reasons that follow, the confidentiality orders should remain in place until further order.
The application for anonymity
In support of the application I have had the benefit of three affidavits from Adam Simon Bannister, each sworn 30 November 2017, and the exhibits referred to therein, in addition to the affidavit of Jessica Kate McBride, also sworn 30 November 2017, and the exhibit referred to therein.
Mr Bannister advises that the Ombudsman’s investigations have to date been conducted according to a confidentiality regime largely matching that applicable under the Corruption Act. He also advises that the Ombudsman has given the plaintiff an undertaking not to publish or otherwise distribute the final reports produced in relation to the investigations concerning the plaintiff until these proceedings are complete and until after the plaintiff has had the opportunity to make representations to the Ombudsman as to whether the reports, or any of them, should be published.
Mr Bannister contends that the investigations and reports impact directly upon the plaintiff’s reputation as an officeholder of a public corporation [redacted].
Bearing in mind the confidentiality regime currently in place, Mr Bannister points to the unfairness to the plaintiff arising from the fact that in the course of pursuing these proceedings, designed to protect his or her reputation, his or her reputation could be irreparably damaged if the open court principle were applied in the normal way. The whole purpose of instituting the proceedings would likely be undermined.
Confidentiality and the statutory context in which the investigation was undertaken
It is important to the application to understand the statutory context in which the investigation has been undertaken.
As mentioned, the decisions the subject of the substantive action were made in consequence of an investigation undertaken by the Ombudsman after matters were referred to him under s 24(2)(a) of the Corruption Act. It may be inferred from such action that the initiating complaint has been assessed as raising potential issues of misconduct or maladministration in public administration and is not an allegation of corruption in public administration as defined in the Corruption Act. It may also be inferred that the Independent Commissioner Against Corruption has determined that the matter is not one that warrants his exercising the powers of an inquiry agency.[1]
[1] Corruption Act, s 24(2)(b) and (c).
A referral having been made, s 14B of the Ombudsman Act 1972 (SA) is enlivened. It provides:
14B—Referral of matter by OPI or ICAC
(1)     If a matter is referred to the Ombudsman under the ICAC Act, the matter—
(a)     will be taken to relate to administrative acts for the purposes of this Act; and
(b)     must be dealt with under this Act as if a complaint had been made under this Act and—
(i)if the matter was the subject of a complaint or report under the ICAC Act—as if the person who made the complaint or report under that Act was the complainant under this Act; or
(ii)if the matter was assessed under that Act after being identified by the Commissioner acting on the Commissioner's own initiative or by the Commissioner or the Office in the course of performing functions under any Act—as if the Commissioner was the complainant under this Act.
(2)     In this section—
Commissioner means the person holding or acting in the office of the Independent Commissioner Against Corruption under the ICAC Act;
ICAC Act means Independent Commissioner Against Corruption Act 2012;
Office means the Office for Public Integrity under the ICAC Act.
Section 14B speaks to the Ombudsman. In practical terms the effect of the section is to disengage the application of the Corruption Act to the extent that that Act purports to prescribe the manner in which the complaint subject of the referral is to be dealt with, and, simultaneously, engage the Ombudsman Act. In addition, despite the fact that the complaint was made under the Corruption Act, it is to be treated as if it were made under the Ombudsman Act. Thus, the investigative powers available and procedures applicable to the investigation of a referred complaint are those provided by the Ombudsman Act. This being so, where upon the completion of an investigation the Ombudsman forms an opinion falling within the terms of s 25(1) of the Ombudsman Act, consequential action is governed by s 25(2) and (3) of the Ombudsman Act. Further, in the hands of the Ombudsman the confidentiality requirements of s 26 of the Ombudsman Act apply to a complaint and related investigation. Section 26 provides:
26—Confidentiality, disclosure of information and publication of reports
(1)A person engaged or formerly engaged in the administration of this Act must not disclose information obtained in the course of the administration of this Act except—
(a)     for the purposes of the administration of this Act or proceedings under this Act or the Royal Commissions Act 1917; or
(b)     for the purposes of the performance of official functions by an agency to which this Act applies, any agency or instrumentality of this State, the Commonwealth or another State or a Territory of the Commonwealth, or any other statutory authority or statutory office holder; or
(c)     as authorised or required by the Ombudsman.
Maximum penalty: $20 000.
(2)The Ombudsman is only to authorise or require information to be disclosed if of the opinion that the disclosure is in the public interest (but a person to whom an authorisation or requirement is directed need not inquire into the basis of the authorisation or requirement).
(3)The Ombudsman may, if of the opinion that it is in the public interest to do so, cause a report on an investigation, or a statement about an investigation, or a decision not to investigate or to discontinue an investigation, to be published in such manner as the Ombudsman thinks fit.
(4)Information that has been disclosed under this section for a particular purpose must not be used for any other purpose by—
(a)     the person to whom the information was disclosed; or
(b)     any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure.
Maximum penalty: $20 000.
Two points fall to be made here; first, under s 26 the Ombudsman is vested with the power to control whether and what information relating to an investigation may pass into the public domain where, as here, neither s 26(1)(a) or (b) is enlivened. Second, and as a corollary of the first point, confidentiality is the norm save and unless the Ombudsman determines otherwise. This reflects an acceptance by Parliament that the effective investigation of administrative acts by the Ombudsman, the interests of the individuals and organisations concerned in such investigations, and the broader interests of the community in the administration of the executive government and councils are, generally, but not exclusively, not best served by an open process, and that the Ombudsman is best placed to determine, having regard to all relevant interests, and to the content, outcome and remedial action proposed, what of an investigation should be made public.
Despite s 14B of the Ombudsman Act, ss 54 and 56 of the Corruption Act continue to have work to do in relation to referrals made under s 24. Difficult questions of construction arise such as whether s 54(3) applies to the Ombudsman and the officers of the Ombudsman, or only the latter, and, if either or both, whether dealing with a matter within the contemplation of s 54(3)(b) includes publishing a report under the Ombudsman Act including mention of the fact of a referral. Complexity in the answer to the last issue is introduced by s 56(a) and whether, if s 54(3)(b) applies, the term “dealing with” includes publishing within the meaning of s 56(a).[2]
[2] I was told that the Independent Commissioner Against Corruption had delegated his power under s 54(3)(a) to the Ombudsman. I assume it is in the exercise of that authorisation that the fact of the referral has been disclosed and appears in the draft reports.
I did not have the benefit of full argument on these questions. In the end I have not found it necessary to resolve them. It is sufficient for my purposes to observe that the Ombudsman Act alone provides for a regime that protects the identity of complainants, witnesses, agencies and accused during the course of an investigation unless and until the Ombudsman determines to the contrary. It may well be that in making that determination and any related publication the Ombudsman is constrained in some respects by the Corruption Act, but such constraint, if it applies, does not extend beyond the fact of a referral and material disclosed by the Commissioner as part of the referral. It does not extend to material gathered by the Ombudsman in the course of his investigation of the matters referred. And, to be clear, that is an investigation of an administrative act within the meaning of the Ombudsman Act, not an investigation of misconduct or maladministration under the Corruption Act. A report into the former need not make mention of the fact of any referral if to do so is not authorised. What is important for this application, however, is that to date confidentiality has been maintained and is intended to continue until such time as the substantive proceedings are resolved and the plaintiff has had the opportunity to make representations to the Ombudsman as to whether, pursuant to s 26(3) of the Ombudsman Act, it is in the public interest to publish the final reports of the investigations undertaken.
The applicable legal principles
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).
The Chief Justice added:[6]
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could “cause an entire destruction of the whole matter in dispute”. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the “keen public interest in getting blackmailers convicted and sentenced” and the difficulties that may be encountered in getting complainants to come forward “unless they are given this kind of protection”. So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was “parental and administrative, and the disposal of controverted questions … an incident only in the jurisdiction”. Proceedings not “in the ordinary course of litigation”, such as applications for leave to appeal, can also be determined without a public hearing.
[footnotes omitted]
[6] Hogan v Hinch (2011) 243 CLR 506 at [20].

Stripped bare the issue for resolution in the present case is whether the grounds for the confidentiality orders “provide proper reason for departing from the principle”.[7] In answering that question it is important to understand that in this case the power engaged is the inherent power of the Court. That power is one “necessary to the effective exercise of the jurisdiction granted”.[8] It is auxiliary in character. Relevantly in Hogan v Hinch Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said:[9]
In Dupas v The Queen the Court observed:
“Having regard both to the antiquity of the power and its institutional importance, there is much to be said for the view that in Australia the inherent power to control abuse of process should be seen, along with the contempt power, as an attribute of the judicial power provided for in Ch III of the Constitution.”
An understanding of those and other attributes of the federal judicial power may be assisted by the remarks of Isaacs J in R v Macfarlane; Ex parte O'Flanagan and O'Kelly:
“The final and paramount consideration in all cases is that emphasised in Scott v Scott, namely, ‘to do justice’ (Viscount Haldane LC). All other considerations are means to that end. They are ancillary principles and rules. Some of them are so deeply embedded in our law as to be elementary and axiomatic, others closely approach that position. Of the latter class is publicity, which can only be disregarded where necessity compels departure, for otherwise justice would be denied to those whom Earl Loreburntermed ‘the parties entitled to justice.’”
Some care is required here. First, the present issue does not concern the authority of the courts by further decision to add to those situations where the necessity spoken of by Isaacs J compels departure from the requirement that justice be administered publicly. In Scott v Scott, Viscount Haldane LC recognised the diverse and special cases which arose in the wardship and lunacy jurisdictions and in disputes respecting trade secrets. …
[footnotes omitted]
[7] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[8] Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268 at [36] (French CJ); NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978 at [67]-[69] (French CJ, Kiefel and Bell JJ).
[9] (2011) 243 CLR 506 at [86]-[88].
The joint reasons in Hogan v Hinch touch upon the fact that there is no inherent power to dispense with the common law requirement that a court sit in public save if the presence of the public would make the securing of justice of “doubtful attainment”.[10] Consistent with this and bearing in mind the auxiliary nature of the inherent power, generally it may be taken that departure from the principle of open justice by orders made in the exercise of the inherent power is appropriate where necessary to achieve “the chief object of courts of justice … to secure that justice is done”.[11]
[10] Dickason v Dickason (1913) 17 CLR 50 at 51 (Barton ACJ); R v Tait and Bartley (1979) 24 ALR 473 at 487-490 (The Court); Scott v Scott [1913] AC 417 at 443 (Earl of Halsbury). Section 69 of the Evidence Act 1929 (SA) now provides a statutory power. See also s 46A of the Supreme Court Act 1935 (SA) and rule 9 of the Supreme Court Civil Rules 2006.
[11] Scott v Scott [1913] AC 417 at 437 (Viscount Haldane LC).
In Hogan v Hinch French CJ identified the circumstances in which it was appropriate to depart from the open court principle at common law as arising where it is necessary to secure the proper administration of justice.[12] So stated the test is not materially different to that prescribed by s 50 of the Federal Court Act 1976 (Cth). In that connection, in Hogan v Australian Crime Commission the High Court said of s 50:[13]
… The administration of justice by the Federal Court, which is the focus of s 50, certainly includes not only the generally recognised interest in open justice openly arrived at which is reinforced by the terms of s 17(1), but also restraints upon disclosure where this would prejudice the proper exercise of its adjudicative function. Bowen CJ pointed this out in Parish. His Honour went on to describe the litigation in Parish as analogous to a case where confidential information “is the subject-matter of the proceedings”; he concluded that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter.
[footnotes omitted]
[12] The categories of case are not closed, although they will not lightly be extended, see (2011) 243 CLR 506 at [21] (French CJ).
[13] (2010) 267 ALR 12 at [42] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
Parish was a case concerning a dispute under the Trade Practices 1974 (Cth) instituted by the Australian Broadcasting Commission arising out of a written agreement between the Australian Cricket Board and three corporations.[14] The agreement, which was said to be confidential and to which the Commission was not a party, was tendered in evidence. The question was whether the Commission should be permitted unrestricted access to the agreement. The trial Judge refused to make an order restricting access to the agreement. On appeal Bowen CJ said:[15]
Open justice is the underlying assumption of s 50, not the criterion it prescribes. The section refers to preventing “prejudice to the administration of justice”. This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is, the public interest that the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties.
…
Section 50 says the court may make such order forbidding or restricting publication of certain things as appears to the court to be necessary in order to prevent prejudice to the administration of justice. In exercising this discretion, I am of the opinion the court should also take into account what s 50 does not mention in terms but what is the underlying principle of open justice. The English language does not readily provide the means of describing the process by which this is taken into account. It is a process of judgment. A useful metaphor is that of weighing in the scales the various factors involved. It might be said the process is more complex than such a metaphor would suggest (see Science Research Council v Nasse); but that metaphor is the best available.
[footnotes omitted]
[14] Australian Broadcasting Commission v Parish (1980) 43 FLR 129.
[15] Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 133.
In the same case Deane J said:[16]
The prejudice to which s 50 refers is plainly overall prejudice and the question whether an order should be made pursuant to the section will ordinarily involve the weighing of conflicting factors and considerations. In every case, one starts with the prima facie rule that the proceedings of the Federal Court should be conducted in open with public access to the evidence. The whole point of the section is, however, to confer a broad discretionary power to depart from this prima facie rule and the weight to be given, as a factor in the weighing process, to the prima facie desirability of the open administration of justice will vary from case to case according to the nature of the case and the materiality of the evidence. Public confidence in the administration of justice is, for example, unlikely to be significantly impaired by an order for confidentiality if the case is a civil case one in which no issues of general public interest or of status are involved and if the evidence in respect of which confidentiality is granted can readily be perceived to be of little materiality to the outcome of the proceedings. The fact that the case is one in which the relevant evidence is of real materiality to the outcome of proceedings of general public importance will not however be the end of the matter. Indeed, the public importance of the case may provide grounds for concluding that the widened publicity that could be expected from disclosure would involve greater prejudice to the administration of justice than would otherwise be the case. In every case, the advantages and disadvantages of an order under s 50 must be weighed for the purpose of determining whether, on balance, the making of an order is warranted by the need to prevent prejudice to the administration of justice.
[16] Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 155-6.
I do not consider the approach of Bowen CJ materially different to that of Deane J. Whilst it may be more accurate to speak of the exercise of the inherent power in the present case as requiring the making of an evaluative judgment, the factors to which Bowen CJ and Deane J refer are nonetheless highly relevant.
Some assistance in the resolution of the present case can also be found in the treatment of draft investigation reports in Bakewell v MacPherson[17] (Bakewell) and Paterson v MacPherson (Paterson).[18]
[17] Unreported, 25 September 1992 (SCGRG-92-1893; SCGRG-92-1911).
[18] [2010] SASC 311.
In Bakewell judicial review proceedings were instituted in this Court in relation to an investigation by the Auditor-General into the State Bank of South Australia’s operations. The plaintiffs included directors and other executive office holders of the Bank. Some of the plaintiffs complained that the Auditor-General had exceeded his terms of reference in purporting to make certain findings as contained in draft chapters released to them for their response before the final report was to be published. Evidence was received by the Court on a confidential basis. King CJ explained:[19]
Before turning to the grounds upon which relief is sought, it is necessary to refer to the confidential nature of the evidentiary material in the actions. The purpose of these actions is to protect the business and personal reputations of the plaintiffs against what they claim to be unjust criticisms. If those criticisms became public knowledge before the plaintiffs had had a proper opportunity to answer them, the purpose of the actions would be defeated. For that reason an order was made by the Court prohibiting publication of the evidentiary material on which the actions are based. For the same reason, I consider it to be necessary to avoid reference to the nature of the criticism in this judgment.
[19] Bakewell v MacPherson Unreported, 25 September 1992 (SCGRG-92-1893; SCGRG-92-1911).
In Paterson, Mr MacPherson was commissioned by the Minister for State/Local Government Relations (SA) to investigate and report on aspects of the affairs of Burnside Council. Mr MacPherson circulated a draft report to the plaintiffs inviting comment before he proceeded to make his final report to the Minister. An application for a suppression order was made in relation to the draft report. Whilst the application invoked s 69A of the Evidence Act, White J’s approach in determining whether to make a suppression order is instructive. He said:[20]
First, as the plaintiffs submitted, the fact that Mr MacPherson has thought it appropriate, in the discharge of an obligation to provide procedural fairness, to provide them with copies of the draft Report and an adequate opportunity to comment on its contents, carries with it the implication that those contents do have the potential to affect adversely the reputations of the plaintiffs and possibly of others. In other words, it is reasonable to proceed on the basis that the publication of the Report has the potential to cause detriment to the plaintiffs. Of course this consideration is not sufficient by itself to warrant a suppression order, but in the circumstances of this case, it is a necessary condition.
Secondly, the draft Report is, at this stage, a confidential document. The affidavit evidence indicates that Mr MacPherson has provided a copy of the draft Report to members of the Burnside Council only for the purposes of discharging his obligations with respect to procedural fairness, and that he did so only after first obtaining from each person to whom a copy was provided, an undertaking to keep the draft Report confidential. If the undertakings have been honoured, the draft Report has had only a very limited circulation to date, and a circulation for a limited purpose only.
…
Thirdly, I note that action has already been taken in this Court to protect the confidentiality of the draft Report. By order of a Master, the draft Report has been sealed up and no person may have access to it without the permission of a Judge or Master of the Court.
Fourthly, it was necessary for the plaintiffs, in order to obtain permission to serve the judicial review proceedings, to satisfy the Court that there was a reasonable basis upon which they may be able to obtain an order for judicial review. Without exhibiting a copy of the draft Report to an affidavit in support of the application for permission to serve, it would have been very difficult for the plaintiffs to establish such a basis. Thus the very invoking of this Court’s jurisdiction involved the plaintiffs putting before the Court, and therefore potentially into the public domain, the evidential material which is the subject of the suppression application.
Fifthly, a fundamental part of the relief sought by the plaintiffs is an order restraining permanently the publication of the draft Report by each of Mr MacPherson and the Minister. If the plaintiffs succeed in the action, they may obtain such an order. However, the effect of such an injunction would be rendered nugatory if there was in the meantime publication of the draft Report’s contents. If there is publication of the draft Report before the Court can determine the merits of the plaintiffs’ claims, the Court’s ability to grant the relief to which the plaintiffs may ultimately be entitled would be lost, or at least compromised. This would be a significant compromise of the proper administration of justice…
[20] [2010] SASC 31, [18].
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.
In my view, for the reasons given above, it is appropriate to depart from the open court principle in relation to the reports prepared by the Ombudsman that are the subject of the proceedings. It is appropriate to do so to secure the proper administration of justice.
The jurisdictional errors asserted in the substantive action include the failure to take into account relevant factors and the taking into account of irrelevant factors. It also appears that it may be argued that there has been a failure to genuinely consider the evidence. The evidence led in support of these contentions in addition to the reports will, if made available to the public, have the same consequence as if the reports were made available.
I have not overlooked the question of whether the ultimate judgment in the substantive action may vindicate the plaintiff and his or her reputation. I think the answer to this consideration is that the substantive action is not concerned with the merits of the Ombudsman’s investigation. Accordingly, adverse criticism contained in the reports may be highlighted along with any defect in process or excess of power, but no finding of error as to the merits may be made by this Court. Thus the damage to reputation caused by the publication of the material may not be remedied by success in the substantive application. Indeed there is no process for merits review.
I have considered whether it is necessary that the plaintiff’s identity remain confidential. If his or her identity were made known what damage to his or her reputation would flow if the content of the reports and the evidence remained confidential? All that would be known is the fact of the complaints, referral, investigations and reports, but no detail. I do not think it can be said that the fact of complaints made to the Independent Commissioner Against Corruption and the referral of the same to the Ombudsman carries with it no risk to a person of reputational damage. If the plaintiff is ultimately successful he or she may satisfy the Ombudsman that the complaints are without foundation and that it is not in the public interest that any report of the investigation and outcome be published. These proceedings are then a step in the process of the protection of his or her reputation that may see the fact of the complaint, investigation and outcome never published in the public domain. That possibility, it appears, has motivated the Ombudsman to hold his hand on the question of publication pending the outcome of these proceedings and receipt from the plaintiff of submissions on the merits of publishing his reports. In the circumstances, for this Court to require the plaintiff’s identity to be revealed is to require him or her to sustain a level of reputational damage in the course of his or her enlisting the judicial power as a necessary step in the process of protecting his or her reputation. It is to force the plaintiff to sustain embarrassment where if he or she is successful in these proceedings and more generally, they should never have suffered the embarrassment in the first place. In my view that provides proper reason to depart from the open court principle and order that the plaintiff’s identity remain anonymous.

Lastly, the affairs of the public corporation have recently attracted scrutiny. Revealing the identity of the plaintiff would likely wrongly fuel speculation of his or her association with those matters damaging his or her reputation. I am satisfied that not revealing his or her identity does not affect the public interest in the affairs of the public corporation and would not undermine confidence in the administration of justice.
For these reasons I order that the confidentiality orders made on 8 December 2017 continue until further order.