BK v ADB

[2003] VSC 125

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4934 of 2003

BK	Plaintiff
V
ADB	Defendant

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2003
DATE OF RULING:	18 March 2003
CASE MAY BE CITED AS:	BK v ADB
MEDIUM NEUTRAL CITATION:	[2003] VSC 125

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Practice and procedure – suppression order – exceptional circumstances - prohibition of name of party pending hearing and determination of application under s.23A of the Limitation of Actions Act 1958 – Supreme Court Act 1986, s.18(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J. Burnside QC with Mr. J. Gordon	Riordan & Partners
For the 1st and 2nd Defendants	Ms. J. Nicholls	Herbert Geer & Rundle
For the 3rd Defendant	Mr. N. J. Young QC with Dr. M. J. Collins	Mallesons Stephen Jaques
For the 4th Defendant	No appearance	Victorian Government Solicitor

HIS HONOUR:

1. This matter was last before me on 20 February 2003, when I made orders pursuant to s 18(1)(c) of the Supreme Court Act 1986, and in exercise of the inherent jurisdiction of the Court, that publication of the application proposed to be made pursuant to s 23A of the Limitation of Actions Act 1958 and other matters pertaining to it be prohibited to the extent that publication might otherwise tend to identify the name, address or occupation of the proposed plaintiff.

1. There now comes before me an application on behalf of the proposed third defendant for orders that publication of the name and any other information which might lead to the identification of that person in connection with the application under s 23A of the Limitation of Actions Act, be prohibited until the hearing and determination of that application or further order.

1. Mr Young, of Her Majesty's counsel, who appears with Dr Collins for the proposed third defendant, has favoured me with extensive submissions as to the basis of the Court's inherent jurisdiction, and its jurisdiction under s 18(1)(c), to prevent publication of details that would disclose the identity of a party or a proposed party to the proceeding, and in the course of those submissions he has made reference to a large number of the many authorities which now bear upon the exercise of the jurisdiction. I referred to some of those authorities in my ruling of 19 February 2003, but by no means to all of those that Mr Young has identified this morning.

1. This is not the occasion and time does not allow for extensive review of the authorities or even of the principles that are identified in the authorities.  It must suffice for present purposes to say that the first and principal consideration is the need for open justice, and thus that the Court should be keen to ensure that proceedings in the Court ordinarily take place in public.

1. The second is that the principle of open justice is subject to exceptions in order to preserve the integrity of the Court's process and to ensure that injustice not be caused. The third is that, while the categories of cases in which exceptions will be made are not closed, there are now a number of recognised categories and, at least in the first place, it is prudent to proceed by reference to those recognised categories in determining whether the circumstances of a particular case should be regarded as so exceptional as to order the prevention of publication.

1. Having regard to the decided categories of cases, Mr Young has identified two considerations which he submits are of seminal importance to the determination of this application. One is that if the application under s 23A is unsuccessful, there will be no proceeding. That means that unless an order of the kind which he seeks is made, there may be extensive publicity of allegations which are made in the s 23A application, with consequent prejudice to his client, and yet his client will be denied the opportunity to advance substantive defences to those allegations and have them ruled upon.

1. The second consideration is that, because of the identity of the proposed third defendant and the position which he occupies, the degree of publicity likely to be attracted to the application could well deter him from defending the s 23A application in a way which one would ordinarily expect of a defendant facing such an application. The proposed third defendant would thereby be caused considerable injustice.

1. None of the cases to which reference has been made this morning is directly analogous to the facts of this matter but, among the many to which Mr Young has referred me, the decision of the New South Wales Court of Appeal in Raybos Australia Pty Ltd v Jones[1] does appear to come close and I consider that it affords me the greatest degree of assistance in determining whether orders should be made.

   [1](1985) 2 NSWLR 47

1. In that case Rogers J has made an order prohibiting publication of the details of an application to join parties to a cross claim in which it was proposed to make extraordinary and very damaging allegations.  Subsequently while the application for joinder stood reserved pending decision, a further application for contempt was made against the same parties directly to the Court of Appeal, and orders were sought from the Court of Appeal prohibiting publication of the names of the respondents to the application for contempt until the motion had been dealt with.  Although the court of Appeal refused the orders sought, Kirby P and Samuels JA were careful not to be critical of the orders for prevention of publication of the joinder application which had been made by Rogers J.

1. At p 58, Kirby P observed that there were marked differences between the nature of the application which had been before Rogers J and the application which was before the Court of Appeal.  His Honour said that:

"Not only was it a civil case involving a matter in the Commercial List, it was a case where the very question to be determined by the Court was whether leave should be given to a party to join cross defendants including Mr Jones and other lawyers.  The question in that case was whether there was any evidence at all to sustain the proposed cross claim.  That is the question upon which judgment stood reserved before Mr Justice Miles when this motion was before the Court." (Emphasis added).

At p 62 Samuels JA was careful to say that he did not express any opinion about the validity or propriety of the orders which had been made by Rogers J and then went on to add that the actual exercise of the discretion identified by the authorities may depend upon consideration of the party's occupation or profession, along with other material, because what may substantially prejudice one person may have very little impact upon another, and vice versa.

1. By parity of reasoning it seems to me that in this case, where the proposed application pursuant to s 23A of the Limitation of Actions Act will determine whether or not there is a case to be made against the proposed third defendant, and that the proposed third defendant's position is such that any publication is likely to have the most damaging effect upon him and upon the discharge of his duties, the circumstances may be regarded as sufficiently exceptional to warrant the making the sort of orders requested.

1. To that may be added the thought that in the absence of an order preventing publication, the third defendant is likely to feel the most significant pressure not  fully to defend the application and thus be caused real injustice.  To that extent the situation resembles the position dealt with by Ashley J in AAA v BBB[2] in which his Honour held that the subject matter of the action was such, and the interests of certain sections of society in it would be likely to be such, that prohibition of publication was necessary to prevent the parties being deterred from prosecuting their claims.

   [2]unreported 26 August 1994, Butterworth Cases 9406139

1. In the result I am disposed to make orders of the kind which are sought on behalf of the proposed third defendant prohibiting publication of his name or information which may lead to the identification of him in connection with either this application or the proposed application under s 23A of the Limitation of Actions Act, until the hearing and determination of that application or further order.

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