Bond, A v Tuohy, A.P.

[1995] FCA 38

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )       No. VG 427 of 1994
  )
GENERAL DIVISION                 )

B E T W E E N:

ALAN BOND & ORS
  Applicants
  - and -

ANDREW PATRICK TUOHY & ORS
  Respondents

JUDGE:    Heerey J

DATE:     6 February 1995

PLACE:    Melbourne

EX PARTE REASONS FOR JUDGMENT

I am not persuaded that I should exclude any material relied upon by Mr Garratt from publication in the same way as all the proceedings in this matter are published. 

I think the starting point, as Mr Garratt says and as Mr Burnside accepts, that what goes on in a court is prima facie public and because of that should be available to the press.  There is no need for me to elaborate on the self-evident importance of that principle.

The documents in question were referred to by Mr Ramsay in his report to the creditors.  He said in his report that he had obtained the documents by use of compulsory powers in Australia and abroad and that

"in each case, the documents are subject to a restriction that they may only be used for the purpose of Mr Bond's bankruptcy. 
I would therefore ask creditors to observe this undertaking and ensure that the only use they make of the information in this report is for the purpose of Mr Bond's bankruptcy.  I do not believe it would be proper for creditors to disclose the document to the press or to use it themselves for the basis of press reports.  If any creditor has any doubts about the operation of the restrictions they should contact me."

However, it is clear that Mr Ramsay is not purporting to restrict what should be done with the documents if and when they are used in the course of court proceedings.  Publication or otherwise of these documents or any other documents has to be decided on the general principles which apply to all court proceedings. 

The two main reasons that were advanced by Mr Burnside against any publication of the documents were, first, that there was no logical connection between them and the subject of the application and, secondly, that they were seized under compulsory process and might prejudice current criminal proceedings involving Mr Bond.

As to the first ground, I think that I do not have to go to the length of making a final ruling on the relevance of these documents.  It is sufficient that they were put forward, as I think they clearly were, in good faith, as part of Mr Ramsay's present application before me.  That application is simply to ask for the fixing of an early date for the hearing of the question as to whether the official receiver under s 77C of the Bankruptcy Act can obtain from the police documents seized under Crimes Act warrants.

Mr Bond, after some proceedings late last year, has, by direction of this court, consented to the trustee inspecting the documents which were seized from him personally.  It is those documents in respect of which this issue of publicity has arisen.  The next step which the trustee seeks to take is to have the other documents seized by the police, also subject to inspection by the trustee.  It seems to me that if the documents already inspected disclose matters which the trustee may wish to investigate further and which may bear on issues such as the termination of Mr Bond's bankruptcy, then it is likely that other documents connected with the same subject matter and which were seized from other people may also bear on these issues.

For the purpose of the present application today, the trustee is concerned to show that there is a degree of urgency and importance about these matters having regard in particular the adjourned meeting of creditors on the 27th of this month and the expiration of Mr Bond's bankruptcy in late April subject to any order to the contrary.  So I do not accept the argument that there is no logical connection between the documents in question of this publicity issue and the present application.

Secondly, the mere fact that documents were seized under compulsory process cannot determine whether they are made public if they are used in the course of court proceedings.  Court proceedings are prima facie public and that means that anything that is said in court or any documents which are produced in court are subject to public inspection and reporting in the press, unless there is some good specific reason shown to the contrary.  The only specific reason advanced here is the possible prejudicial effect on criminal proceedings involving Mr Bond.  The only one of which I was advised was a committal being held in Perth which I was told will resume on 22 February and may conclude shortly thereafter.

Needless to say, because there has been no committal for trial, no date for a trial before a jury has been fixed, I do not see any realistic prospect of publication of these documents affecting any decision of the magistrate in Perth whether or not to commit Mr Bond for trial, and it is entirely speculative at the moment as to whether there will be a jury trial.  Even if there is, it will be a long time off.  So for those reasons I do not propose to make any restriction on the publication of the documents.

Just to avoid misunderstanding, there was some reference by Mr Garratt earlier to the possibility of my reading the documents myself, that is, not being read aloud.  That is often used as a matter of practical convenience, but if a judge simply reads documents himself that does not mean that they are not public, and the fact that I might or might not do that as a matter of convenience does not resolve the issue as to whether they are public and whether they can be recorded.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr J Burnside QC

Solicitor for the applicant:     Galbally Fraser & Rolfe

Counsel for the fifth            Mr R Garrat

respondent:

Solicitor for the fifth          Mallesons Stephen Jaques

respondent:

Date of hearing:                 6 February 1995