BQC23 v BQS23 (Publication of reasons)

Case •

[2023] FCA 890

•

1 August 2023

FEDERAL COURT OF AUSTRALIA

BQC23 v BQS23 (Publication of reasons) [2023] FCA 890

File number: VID 314 of 2023
Judgment of: RARES J
Date of judgment: 1 August 2023
Catchwords: PRACTICE AND PROCEDURE – where party sought to have reasons either not published or published with substantial redactions – where some redactions made to preserve confidential or privileged information.
Legislation: Federal Court of Australia Act 1976 (Cth) ss 17(1) and 37AG
Cases cited:

Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221

Pilmer v Duke Group Ltd (In liq) (2001) 207 CLR 165
Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 8
Date of hearing: Determined on the papers
Solicitor for the applicant:  Matrix Legal
Solicitor for the respondents:  DW Fox Tucker Lawyers

ORDERS

VID 314 of 2023
BETWEEN:

BQC23

Applicant
AND:

BQS23

Respondent

BQR23

Respondent

BQQ23

Respondent

ORDER MADE BY:

RARES J

DATE OF ORDER:

1 AUGUST 2023

THE COURT ORDERS THAT:

1.Subject to order 2 made today, the settled reasons for judgment given ex tempore on 28 June 2023 be published in the redacted form provided to the parties on 28 July 2023 (the redacted reasons).

2.Unless the Court otherwise orders, the redacted reasons be suppressed and not published, other than to the parties and their lawyers, up to and including 15 August 2023.

THE COURT NOTES THAT:

3.The ground for orders 1 and 2 above is that they are necessary to prevent prejudice to the proper administration of justice.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

RARES J:

  1. On 28 June 2023, I gave ex tempore reasons in closed court refusing the application by BQC23 for leave to appeal (the leave application) from the suppressed decision of the primary judge.  His Honour refused BQC23’s interlocutory application to enjoin counsel and solicitors (the lawyers) who, until late 2021, had acted for all of the applicants in the main proceeding, being BQC23 and the respondents to the interlocutory application.  I ordered that all of the parties to the leave application be given pseudonyms.

  2. At the request of the parties, I provided them with my revised reasons to review lest they inadvertently disclosed any information that may have been confidential or subject to legal professional privilege, because of circumstances that both the interlocutory and leave applications required the parties to reveal to his Honour and me communications between BQC23 and the lawyers. 

    BACKGROUND

  3. The basis of BQC23’s interlocutory application was that, because of its wish to be separately represented and to rely on an as yet different but un-pleaded claim, somehow the lawyers and their remaining clients (the investors) might be placed in a position where there was a real and substantial possibility of a conflict between their interests and or duties to BQC23 and their duties owed to the investors: Pilmer v Duke Group Ltd (In liq) (2001) 207 CLR 165 at 199 [78]-[79] per McHugh, Gummow, Hayne and Callinan JJ.

  4. BQC23 sought that my reasons not be published at all or that, if they were, there should be more redactions from them than I now intend be made.

    CONSIDERATION

  5. I do not consider that any of the unredacted passages in the redacted version of my reasons (the redacted reasons) reveals any matter that, in the circumstances, is confidential or privileged.  That is because BQC23 had decided to run its case with its new counsel and solicitors in a manner that necessarily will disclose those matters and it brought the interlocutory application to prevent, what his Honour found, and I agreed, was an unfounded fear the lawyers and or the investors would be able to use any confidential or privileged information against BQC23, or even in respect of, the way in which BQC23 now wishes to put its case in the main proceeding.

  6. The principle of open justice, as reflected in s 17(1) and Pt VAA of the Federal Court of Australia Act 1976 (Cth), requires the Court to act in public unless, and only to the extent that, it is necessary to act otherwise in order to prevent prejudice to the proper administration of justice: see the ground in s 37AG(1)(a) and Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221 at 226-228 [23]-[31] per Rares, Perry and Hespe JJ.

  7. If, as I consider to be the case, the redacted reasons for judgment do not reveal confidential or privileged information, the Court must publish them to justify its use of the judicial power of the Commonwealth as is inherent in the principle of open justice.

  8. Lest I am wrong in the view that I have taken about the publication of my redacted reasons or the extent of redactions in them, I will order that they not be published for 14 days so that, if so advised, BQC23 can seek leave to appeal from that order and seek to obtain an extension of its duration.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

Associate:

Dated:       1 August 2023

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