Brooks v Easther

Case [2017] TASSC 44

[2017] TASSC 44

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Brooks v Easther [2017] TASSC 44

PARTIES:  BROOKS, PETER FRANCIS THOMAS
  v
  EASTHER, BARRY MAXWELL
  MASON, NORMA LYNN

THE HONOURABLE MATTHEW GROOM,         

ACTING ATTORNEY-GENERAL FOR THE STATE OF

TASMANIA

FILE NO:  1656/2017
DELIVERED ON:  13 July 2017
DELIVERED AT:  Hobart
HEARING DATES:  5 and 13 July 2017    
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Evidence – Miscellaneous matters – Non-publication of evidence – Powers:  source and exercise – Prejudice to administration of justice – Injury to reputation insufficient – Disclosure of inherently confidential material insufficient – Requirement of necessity to secure the proper administration of justice – Suppression order refused.

Aust Dig Evidence [1253]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine SC (5 July)
  J Zeeman (13 July)   
             1st & 2nd Respondents:  Notice of submission             
             3rd Respondent:  P Turner
Solicitors:
             Applicant:  Shaun McElwaine + Associates  
             1st & 2nd Respondents:  Notice of submission  
             3rd Respondent:  Office of the Solicitor-General (Litigation)
Judgment Number:  [2017] TASSC 44
Number of paragraphs:  27

Serial No 44/2017

File No 1656/2017

PETER FRANCIS BROOKS v BARRY MAXWELL EASTHER,

NORMA LYNN MASON and THE HONOURABLE MATTHEW GROOM,

ACTING ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT  HOLT AsJ
  13 July 2017

An application for a suppression order

  1. The applicant is the General Manager of the Glenorchy City Council. He has applied for the issue of a general order to show cause calling upon the first and second respondents, in their capacity as a Board of Inquiry constituted under Part 13 of the Local Government Act 1993 (the Act) to inquire into the governance arrangements and practices of the Glenorchy City Council, to show why they should not be restrained from continuing to conduct the inquiry.

  2. The Act, s 224, provides that the Board is to submit its report to the relevant Minister.  When the report is finalised it can be made public.  The Act, s 227, provides that an action does not lie against a person who publishes, in good faith and for the information of the public, a copy of the report.  Upon receipt of the report and consideration of it by the Minister, the Minister may issue directions to the council or recommend that the Governor dismiss the councillors:  The Act, ss 225 and 226.

  3. The conduct of the Board of Inquiry had been brought into question in Branch-Allen v Easther [2016] TASSC 29. There Blow CJ said at [133] and [134]:

    "I will confine the operation of that order so that it protects only the applicant since the other aldermen who have participated in these proceedings are not applicants.  However, if the Board is thinking of making findings or recommendations that might prejudice the interests of one or more of them in relation to his or her status and/or reputation, then the Board's procedural fairness obligations to the individual or individuals in question will be similar in nature to its obligations to the…

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Brooks v Easther [2017] TASSC 44
Case
[2017] TASSC 44
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CaseChat Overview and Summary

Brooks v Easther is a case before the Supreme Court of Tasmania concerning the non-publication of evidence. The court was asked to consider whether a suppression or non-publication order could be made, preventing the content of a draft report from being published as part of the court proceedings. This application arose from a draft report of the Board of Inquiry, which was alleged to include significantly adverse evidence without the opportunity for the General Manager to test such evidence.

The legal issues before the court were whether the court had the inherent power to make a suppression or non-publication order, and if such an order was justified in the interests of the administration of justice. The court considered whether the necessity for such an order existed, given the requirement to secure the proper administration of justice. The court also considered whether the publication of the draft report would cause prejudice to the administration of justice or injury to the reputation of the General Manager.

The court found that the power to make a suppression or non-publication order does not arise by statute in Tasmania and can only exist as a common law inherent power of the Court to regulate its proceedings for the purpose of administering justice. The court referred to Hogan v Hinch and recognised that such an order may be made to bind parties, witnesses, counsel, solicitors, jurors, media representatives, or other persons present in court. The court held that the requirement of necessity to secure the proper administration of justice must be satisfied. In this case, the injury to the General Manager's reputation was not sufficient to justify the making of a suppression order. Furthermore, the disclosure of inherently confidential material was not considered sufficient to justify the suppression order. Therefore, the court refused to make the suppression order.

The court did not make a suppression or non-publication order, and the draft report was allowed to be tendered as evidence in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The conduct of the Board of Inquiry had been brought into question in Branch-Allen v Easther [2016] TASSC 29. There Blow CJ said at [133] and [134]:"I will confine the operation of that order so that it protects only the applicant since the other aldermen who have participated in these proceedings are not applicants. However, if the Board is thinking of making findings or recommendations that might prejudice the interests of one or more of them in relation to his or her status and/or reputation, then the Board's procedural fairness obligations to the individual or individuals in question will be similar in nature to its obligations to the applicant. ConclusionFor these reasons, I have decided to discharge the injunction granted by Holt AsJ, and to order that the respondents be restrained from submitting a report of their findings and recommendations as a Board of Inquiry to the Minister for Planning and Local Government until:(a)they have notified the applicant of every contemplated finding or recommendation which, if made, would be likely to prejudicially affect her status as an alderman and/or her reputation, and of the information or evidence considered by them to support such a finding or recommendation;(b)they have allowed the applicant a reasonable time to make submissions to them in writing, personally or by a solicitor or agent, as to such matters; and(c) they have considered any such submissions." The Board of Inquiry, apparently in purported compliance with the decision of the Chief Justice, has published a draft of its report to the General Manager of the Glenorchy City Council so that he might make submissions on the draft insofar as its contents contain contemplated findings which, if made, would be likely to prejudicially affect his status and/or reputation. The complaints of the General Manager include a complaint that "significantly adverse evidence at an oral hearing" is included in the draft report when the General Manager was not given an opportunity to "test" such evidence. Counsel for the General Manager has informed me that in order to pursue the application for a general order to show cause, he needs to put into evidence the draft report. Before the draft report is tendered counsel for the General Manager has asked me to make a suppression or non-publication order so that the content of the draft report cannot be published as part of a report of the proceedings in this court. The power of a court to make an order of the type sought does not arise by statute in this State and can only exist, if it does exist, as a common law inherent power of the Court to regulate its proceedings for the purpose of administering justice. In Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398, although the other members of the Court did not consider it necessary to decide the question, French CJ said at 408 [26]:"In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice. Such an order may be made to and bind the parties, witnesses, counsel, solicitors and, if relevant, jurors and media representatives, or other persons present in court when the order is made, or to whom the order is specifically directed. It is not necessary for present purposes to reach a concluded view on the full extent of the power in relation to the general public."

Ratio Decidendi

Legal Principle Established

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