Birketu Pty Ltd v Westpac Banking Corporation
[2018] NSWSC 513
•13 April 2018
Supreme Court
New South Wales
Medium Neutral Citation: Birketu Pty Ltd v Westpac Banking Corporation [2018] NSWSC 513 Hearing dates: 13 April 2018 Date of orders: 13 April 2018 Decision date: 13 April 2018 Jurisdiction: Common Law Before: Garling J Decision: 1. Grant access to the file as requested by Ms Misa Han of Fairfax Media and as requested by Ms Michaela Whitbourn, also Fairfax Media;
2. Exclude from their access the affidavit of Mr Brody Jack Clarke of 12 October 2017.Catchwords: CIVIL PROCEDURE – judgments and orders – media application for access to court file – where pending criminal proceedings arising out of same events – where personal medical information disclosed in one affidavit – weighing of public interest – grant of access to file with the exception of affidavit containing medical information Legislation Cited: Court Suppression and Non‑publication Orders Act 2010 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Birketu Pty Ltd (P1)
WIN Corporation Pty Ltd (P2)
Westpac Banking Corporation (D1)
Sportsbet Pty Ltd (D2)
Tabcorp Holdings Ltd (D3)
Betfair Pty Ltd (D4)
Brody Jack Clarke (D5)
TAB Ltd (D6)
Tabcorp Wagering (Vic) Pty Ltd (D7)
Tabcorp Act Pty Ltd (D8)Representation: Counsel:
Solicitors:
D B Studdy SC / A R R Vincent (P1, P2)
R Laban (D1)
Submitting (D2, D3, D4, D6, D7, D8)
G Thomas (D5)
HWL Ebsworth Lawyers (P1, P2)
Norton Rose Fulbright Australia (D1)
C Stevens (D3, D6, D7, D8)
Shore Stack Lawyers (D5)
File Number(s): 2017/294767 Publication restriction: Not Applicable
EX TEMPORE Judgment
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Application has been made by two members of the media for access to the Court file and in particular for access to the pleading, the Notices of Motion which are before the Court today, the affidavits which have been read in Court today, and the written outline of submissions which each party has filed with the Court.
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The plaintiffs do not wish to be heard with respect to that application. The fifth defendant opposes the application for access to the documents. As far as can be identified, that opposition falls into two discrete categories.
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The first, which is articulated to all of the matters requested, is that the Court would not be persuaded to make an order allowing access to the file, at least at any time prior to the completion of service of the Police Brief in criminal proceedings because of the potential impact which release of this material may have on such criminal proceedings.
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It seems that the fifth defendant has been charged with eight offences, which procedurally can be categorised as offences of fraud relating to transactions which form the foundation of the plaintiff's proceedings in this case.
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It is unclear to me whether or not those charges raise offences which are strictly indictable or whether they raise offences which could be dealt with in either the Local Court or the District Court, but perhaps that is not determinative. At the moment the proceedings are still before the Local Court.
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The Police Brief is due to be served by 24 April 2018, and I understand there is then a period of time for a reply by 1 May 2018.
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No doubt, as is common practice in the Local Court, there will then be a period, probably of a month or so, in which the parties will have the opportunity to discuss the nature and content of the charges and what attitude the defendant may take to those charges.
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But in any event, the proceedings in the Local Court are not on the cusp of determination, nor is there any circumstance in which this matter will come before a jury – in the event that it is ultimately contested and the charges are committed to the District Court – for some considerable period of time.
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I am asked to conclude that I should refuse this request for access because it would be open to the plaintiff to seek, and the plaintiff would be likely to obtain, an order on the grounds set out in s 8(1)(e) of the Court Suppression and Non‑publication Orders Act 2010 (“the CSNPO Act”), namely, that it is otherwise necessary in the public interest for a suppression or non‑publication order to be made, and that that public interest significantly outweighs the public interest in open justice.
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In considering that submission I would need to have regard to the provisions of s 6 of the CSNPO Act which obliges this Court, in deciding whether to make a suppression order or non‑publication order, to take into account that the primary objective of the administration of justice is to safeguard the public interest in open justice.
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Giving full allowance to the fact that the fifth defendant is facing a number of criminal charges, and that it is sometimes in the public interest in order to prevent prejudice to the individual the subject of those proceedings, or else the administration of justice generally, to make suppression orders, I am nevertheless unpersuaded that at this stage of the criminal proceedings, and having regard to the issues that are likely to arise in those proceedings, that the public interest in making a suppression order in respect of these proceedings (with the result that the application for access to the file would be refused) outweighs the public interest in open justice.
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Moreover, I am wholly unpersuaded that it would “significantly outweigh” that public interest.
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I would not be prepared to refuse the application for access to the files on the basis of the existence of criminal proceedings.
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The second basis upon which the fifth defendant opposes access is that the file contains information personal to the fifth defendant which is of no public interest. In particular, my attention was drawn to the fact that one of the affidavits to which access is sought, namely that of the fifth defendant sworn 12 October 2017, contains considerable material of a confidential nature relating to the fifth defendant's state of health at the time.
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In my view that material ought not be the subject of the access order. The content of that material is extremely personal in nature, the detail of it is of no public interest and, in respect of that matter, the fifth defendant has a strong interest in preserving the confidentiality of his health and medical condition.
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There is an overwhelming public interest in not making available to the media details of an individual's personal health in circumstances where that material is not adduced for any reason other than relevance to procedural steps in the proceedings.
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Accordingly, I will grant access to the file as requested by Ms Misa Han of Fairfax Media and as requested by Ms Michaela Whitbourn, also Fairfax Media, but I exclude from their access the affidavit of Mr Brody Jack Clarke of 12 October 2017.
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Decision last updated: 24 April 2018
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