Brooks v Easther
[2017] TASSC 44
•13 July 2017
[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
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.
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.
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.
Conclusion
For 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 applicable principles
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."
As there was no submission that the power to make the order sought does not exist, I shall proceed on the assumption that the asserted power is available.
The ambit of the inherent power to make a suppression or non-publication order is strictly confined. The starting point is the principle of open justice. In Eastman v Director of Public Prosecutions (No 2) [2014] ACTSCFC 2 Rares J, Wigney J and Cowdroy J said at [152] – [154]:
"152 The only exception to the principle of open justice allowed at common law is where justice cannot be done if the court remains open. Unless a statute provides otherwise, a court may only limit the right of the public to be present or to make a fair report of the proceedings in public either by making non-publication or suppression orders or by closing the court, if, and only to the extent that, such an order is necessary in the interests of justice. Mere convenience, or concern for sensitivities of parties or witnesses, can never justify a departure from the rule that justice must be administered in public: Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30] - [31], 667 [42] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; see too Rinehart v Welker (2012) 83 NSWLR 347 at 359 [53] per Bathurst CJ, Beazley and McColl JJA. As Barton ACJ said with the agreement of Isaacs, Gavan Duffy, Powers and Rich JJ in Dickason v Dickason (1913) 17 CLR 50 at 51 in applying the seminal case of Scott v Scott [1913] AC 417:
… there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings.
153 The principle of open justice requires that justice be administered by a court in public. This is so that the public may see, and publicity may be given to, what takes place in open court. The importance of the right of the public to be present at, and to make a fair and accurate report in good faith of, court proceedings even where that report is likely to prejudice the fair trial of pending proceedings is reflected in two important common law principles.
154 This right of any member of the public to be present in open court is deeply ingrained in the common law. Indeed, the Court of King’s Bench held that an action of assault lay against a magistrate who had excluded a member of the public from proceedings in a court room: Daubney v Cooper (1829) 10 B & C 237 at 240 - 241. A criminal conviction will be quashed if the court was closed during the trial without lawful justification: R v Hamilton (1930) 30 SR (NSW) 277 at 278 per Street CJ, Ferguson and Halse Rogers JJ agreeing. And McHugh JA explained in Police Tribunal 5 NSWLR at 481C-F, esp at E - F, that the common law right to publish fair and accurate reports of court proceedings can only be excluded by statutory words of plain intendment. He concluded that:
The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice."
If there is an inherent power to make a suppression order in the present case it can only be validly exercised if it is necessary to secure the proper administration of justice in proceedings before the Court. The terms of any order must not extend beyond that which is necessary. This was made clear in Rinehart v Welker [2011] NSWCA 403 where Bathurst CJ and McColl JA said at [29] – [31]:
29 A number of authorities are cited in the Discussion Paper (at [10.92]) as authority for the proposition that the test for making a suppression or non-publication order should be that it be 'necessary'. Of those authorities, the clearest statement, and that which appears to underlie the form of s 8, appears in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 (at 476 - 477) per McHugh JA (Glass JA agreeing):
'The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice . The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.' (Emphasis added)
John Fairfax & Sons Ltd v Police Tribunal (NSW) was the principal authority on the subject of making non-publication orders in New South Wales prior to the enactment of the CSPO Act: John Fairfax Publications Pty Ltd & Anor v District Court of NSW (at [38]). French CJ referred to this passage with approval in Hogan v Hinch (at [21]).
30 The necessity requirement may also be stated by quoting Isaacs J's statement in R v Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518 (at 549) (approved by the plurality (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in Hogan v Hinch (at [87]):
'The final and paramount consideration in all cases is that emphasized in Scott v Scott namely, "to do justice" (Viscount Haldane LC). All other considerations are means to that end. They are ancillary principles and rules. Some of them are so deeply embedded in our law as to be elementary and axiomatic, others closely approach that position. Of the latter class is publicity, which can only be disregarded where necessity compels departure, for otherwise justice would be denied to those whom Earl Loreburn termed "the parties entitled to justice."'
31 Significantly, an order is not 'necessary' if it appears to the court 'to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some "balancing exercise", the order appears to have one or more of those characteristics': Hogan v Australian Crime Commission (at [31]). Further, it is not a sufficient basis for such an order that the information is inherently confidential as distinct from personal or commercial information the value of which as an asset would be seriously compromised by disclosure: Hogan v Crime Commission [2010] HCA 21 at [38]; (2010) 240 CLR 651."
A suppression order is not available for the purpose of preventing pain or humiliation, even if the risk of pain or humiliation may deter parties and witnesses. Speaking of the open justice principle in Scott v Scott (1913) AC 417 Lord Atkinson observed at 463:
"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect."
To similar effect in John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 Kirby P said at 142 – 143:
"It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: see, eg, David Syme & Co Ltd v General Motors-Holden's Ltd; Raybos Australia Pty Ltd v Jones; R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society[1984] QB 227 at 235; R v Bromfield; Rockett v Smith. A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported."
Is the draft report of a kind that a suppression order might be made to preserve confidentiality?
Here, the draft report which the applicant wishes to keep from publication as part of a report of court proceedings, is a document which I am told has been marked "confidential" by the Board of Inquiry. However, the mere fact that the Board of Inquiry did not intend that the draft report be published to persons other than direct recipients from the Board is insufficient to give rise to the power to make a suppression order. This is because the relevant question is not whether the document is inherently confidential, but rather whether it is necessary to keep it confidential for the purpose of the administration of justice in particular proceedings before the Court. As much is clear from the decision in Hogan v Aust Crime Commission [2010] HCA 21; (2010) 240 CLR 651. There the Court was concerned with a document produced by the Australian Crime Commission setting out inferences as to the alleged involvement of the appellant in tax evasion schemes. The document was produced as a result of a trial direction. Obviously, it was not intended for general publication. However, it was tendered in evidence at the hearing of an interlocutory application and despite its inherent confidentiality, once tendered, no reason based on confidentiality existed for its contents to be suppressed. In particular, the Court said at 666 [38] and [39]:
"38 In the Full Court, and again in this Court, Mr Hogan submitted that Emmett J had failed to recognise what was said to be 'the inherently confidential nature' of the Inference Schedule and the Accounting Advices. In rejecting this submission, Jessup J, with whom Moore J agreed generally, noted that Mr Hogan was not relying here on legal professional privilege and continued:
'How, then, does the applicant assert that the contentious documents were, and remain, inherently confidential? It is true that, generally speaking, every person has a right to keep from the view of others, or of the world at large, documents and things which he or she regards as his or her private concern. But so to propose is no more, in my view, than to state a conclusion about the absence of a right in any other person to view such documents and things. There are, of course, all manner of situations in which a claim to keep a particular document confidential will be recognised by a court. For example, equity recognises that the information contained in certain documents is, of its nature and by reason of the circumstances of its communication, subject to a duty of confidence. So too will the law protect trade secrets in well‑recognised situations. And it is commonly the case that the court will protect from the public eye personal or commercial information the value of which as an asset would be seriously compromised by disclosure. In this latter category, the source of the jurisdiction (in this court) to provide such protection is s 50 itself. That is to say, the question will always be: is an order necessary to prevent prejudice to the administration of justice? Absent an affirmative answer to this question it is, in my view, almost meaningless to propose that documents themselves are, or that the information in them is, inherently confidential to an extent justifying, or assisting in the justification of, the making of an order permanently protecting them from public view.'
39 We agree with what his Honour said in that passage."
Although in Hogan v Aust Crime Commission the Court was dealing with a statutory provision authorising the making of suppression orders, the statutory pre-requisite for the making of an order was the same as that applying in cases where it has been held that an inherent power exists at common law. I can see no relevant distinction between the inference schedule in Hogan and the draft report of the Board of Inquiry. Both documents were produced as a result of court intervention and neither was produced with a view to it becoming a document in the public domain.
Would publication of the draft report interfere with the administration of justice?
The subject matter of this proceeding is the conduct of the Board of Inquiry. The claim of the General Manager is that the inquiry should be put to an end because it has been conducted without affording to him a proper opportunity to be heard and additionally because of bias (actual or apprehended) against him.
Unlike, for example, proceedings to protect a trade secret, the subject matter of this litigation would not be destroyed, or even affected, by publicity. Justice can be administered without there being any necessity to prohibit a fair report of the Court proceedings. The fact that publicity would, or might, damage the professional reputation of a litigant has never been a justification for a court hearing to be conducted in private or for the making of an order suppressing the reporting of evidence presented in the course of the hearing.
Counsel for the General Manager submits:
"The ultimate purpose of the proceeding is to prevent damage to the Applicant's reputation through the publication of a report that was prepared in breach of procedural fairness obligations. The consequence that will flow if the orders sought in paragraph 1(b) of the Application, or orders of a similar type, are not made is that the integrity of the ultimate relief sought will be lost."
With respect, the submission confuses the motivation for bringing the proceedings with the subject matter of the proceedings. The power to suppress can only arise if its exercise is necessary in the interests of the administration of justice. Proceedings to put an end to the inquiry will not be undermined by the publication of the draft report as part of a fair report of proceedings being conducted in court.
Counsel quoted the following extract from Rinehart v Welker at [40]:
"This leads to the consideration of what is meant by 'necessary to secure the proper administration of justice' in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceedings will go on: at least the instant proceeding will. ... The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court."
The balance of the passage, which counsel did not quote, is informative as to the limited type of "consequences" which may justify the making of a suppression order. The balance of the passage is as follows:
"The kind of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restricted powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based."
Injury to reputation is not a consequence which can be said to interfere with the administration of justice so as to be capable of justifying the making of a suppression order.
Counsel for the General Manager further submitted that a suppression order was necessary in the interests of justice so that potential future litigants would not be deterred. Reliance was placed on Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 where Dixon J said at [27]:
"I am satisfied that the risk of prejudice to the administration of justice follows on the prospect that other persons with a public profile that attracts a particular form of media attention who wish to seek vindication of rights against powerful media companies may be discouraged from seeking to vindicate their rights if required to act to their possible future prejudice in dealings with third parties through disclosure of confidential information. Such prejudice arises when the consequence of a perception that third parties may not treat with a person who is willing to, or incidentally required to, disclose commercially confident information discourages a potential plaintiff from litigating. To the extent that a potential plaintiff is discouraged from seeking vindication of a right in a court of law, there is prejudice to the administration of justice."
Without expressing an opinion as to whether his Honour might have arrived at the same conclusion if the application before him had been based on inherent jurisdiction rather than, as it was, based on the provisions of the Open Courts Act 2013 (Vic), I do not regard this passage as providing any assistance in the present case. The statement was made with respect to "persons with a public profile that attracts a particular form of media attention". The passage quoted does not support a general proposition that fear of injury to reputation, however grave, which might discourage litigants generally, would ever be a justification for an exception to the open court principle.
Participation on the hearing of the application
On the question of whether or not a suppression order should be made the first and second respondents, being the persons constituting the Board of Inquiry, did not participate. They have filed a notice of submission. The third respondent, being the Acting Attorney-General, took a neutral position. I allowed counsel for a media organisation to make submissions. Media interests have standing at common law to be heard on the making of orders affecting the publication of court proceedings: Rinehart v Welker [2011] NSWCA 403 at [33]. I am grateful for the submissions made on behalf of the media organisation, but I record that absent the submissions my conclusion would have been the same.
Disposition
The pre-requisite for the making of a suppression order, namely, that such an order is necessary in the interests of the administration of justice, not having been established, it follows that the application for the order must be refused.
In the event that the draft report is put into evidence in the course of the current proceedings it will not be made the subject of a suppression order.
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