Brown and Brown (No. 3)

[2007] FamCA 1639

FAMILY COURT OF AUSTRALIA

BROWN & BROWN (NO. 3)             [2007] FamCA 1639

FAMILY LAW – PRACTICE AND PROCEDURE – NON-PUBLICATION ORDERS - Applications by several parties to concluded litigation to continue an order made by one judge for suppression of the reasons for judgment of another judge who disqualified himself from hearing any further proceedings – first judge’s suppression order directed removal of reasons from court file, to be placed in a sealed envelope and held in a secure place as well as removal from the court’s intranet and website or related publications - power to make the order sought by the applicants – scope of s 121 – exercise of power in circumstances of this case - issue of risk of identification of parties – issue of content of reasons – extraneous, irrelevant and unnecessary commentary argued to be prejudicial and damaging directly to the lawyers and indirectly to their clients and perpetuates an irremediable injustice from which there is no recourse – reasons to be edited to provide anonymity and otherwise applications dismissed.

Family Law Act 1975 (Cth)

APPLICANT:   Brown Holdings & Others

2nd APPLICANT:   Mr Brown

3rd APPLICANT:   Mrs Brown

FILE NUMBER:   SYF     9777   of       1992

DATE DELIVERED:   21 December 2007

PLACE DELIVERED:   Sydney

PLACE HEARD:   Sydney

JUDGMENT OF:   Moore J

HEARING DATE:   29 November 2007

REPRESENTATION

COUNSEL FOR APPLICANTS              Mr Sheahan SC with Mr Keamey

SOLICITORS FOR APPLICANTS:                   []

ORDERS

1. The applications filed on 21 and 22 November 2007 are dismissed save that the court edited version of Brown and Brown [2007] FamCA 493 is to be further edited to comply with the reasons for judgment delivered this day.

1. The applicants are at liberty to lodge a copy of the court edited judgment referred to in order 1 reflecting the ruling in order 1 provided it is lodged no later than 31 January 2008.

1. The operation of order 1 and publication of the reasons for judgment delivered this day are stayed until 4pm 31 January 2008.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Moore delivered this day will for all publication and reporting purposes be referred to as Brown and Brown

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 9777 of 1992

Brown Holdings & Others
Applicant

And

Mr Brown
2nd Applicant

And

Mrs Brown
3rd Applicant

REASONS FOR JUDGMENT

Applications

1. These are unusual applications. All applicants are united in seeking the same orders, there is no respondent against whom orders are sought and it follows there is no contradictor.

1. The applicants are five companies, the husband and his current wife, all of whom were parties to proceedings now completed. The other party to those proceedings was the husband's former wife. Counsel representing her appeared when the matter was called but withdrew after indicating she did not wish to participate or be heard.

1. The application relates to the suppression, alternatively the editing, of reasons for judgment delivered by O’Ryan J disqualifying himself from hearing further proceedings between the parties on the grounds of reasonable apprehension of bias, thereby acceding to the husband's application.

Background

1. Not a lot need be said of the parties’ background or the completed proceedings to give context. Two years ago O’Ryan J made an order for the husband to pay lump sum spouse maintenance to his former wife, the husband’s appeal was allowed and in the re-exercise of discretion the Full Court reduced the lump sum payable. The former wife instituted enforcement proceedings against the husband, the applicant companies, and the husband’s present wife.  Concurrently she instituted proceedings against her former husband pursuant to s 79A and against his present wife pursuant to s 106B of the Act. The upshot was a raft of interlocutory applications presented for adjudication. The matter came before O’Ryan J who had also heard and determined earlier interlocutory proceedings between the parties and there followed the husband’s application for disqualification and the delivery by his Honour of his reasons for acceding to it.

1. Some months later the matter came before Le Poer Trench J for case management purposes related to the hearing of various pending interlocutory applications. Le Poer Trench J made an interim order that any hard copy of O’Ryan J’s reasons for judgment be removed from the court file and be held by the Registrar in a sealed envelope in a secure place until called upon to be produced to any judicial officer hearing any application in the case. The orders continue:

‘2.       It having been submitted that the publication of the judgment ..... could prejudice the further hearing in this case and/or cause damage to persons named in that judgment (whether named in an anonymised form or otherwise) pending the court being able to consider any of those claims the Judgments Publications Office is directed to remove the judgment from the court's intranet, the Family Court web page and so far as possible from any associated or related publications.’ 

1. I am told no reasons for making those orders were delivered but no doubt his Honour was persuaded to do so by reason of the submission summarised in order 2.

1. A few months later the entire litigation was settled and consent orders were presented to Le Poer Trench J who made the orders all parties proposed save that he declined to make proposed order 11 which continued his earlier suppression order. Instead, he directed the applicants to file an application on or before 9 November and further directed that any application filed be listed for hearing before me on 21 November.

1. As it happened, the applications were filed later than directed but I could find no reason not to exercise the discretion to extend the time to allow them to be argued.

Orders sought

1. The applications propose orders in the alternative:

(i)first, the disqualification reasons remain in a sealed envelope in the possession of the Registrar unless the court orders otherwise, the reasons not be published 'by the Judgments Publications Office or by any other person or entity, including but not limited to by means of the Court's intranet, the Family Court webpage or otherwise unless the Court, having first provided opportunity for the Applicants to be heard in relation to any such determination, orders otherwise.’ or

(ii) in the alternative, if the reasons are to be published then publication not be in a form other than according to [7] annexed to the affidavit of the applicant companies’ solicitor [referred to later as Version A]; or

(iii) in the further alternative, publication not be in a form other than according to [8] annexed to that affidavit [referred to later as Version B].

1. The solicitor’s affidavit annexes various documents identified as follows

   •          [1] O’Ryan J’s reasons for disqualifying himself as delivered

   •          [2] the reasons edited within the Court for publication

   •          [3 & 4] schedules prepared by the solicitor comparing [1] and [2]

   •          [5] orders made by Le Poer Trench J

   •[6] the final consent orders between the parties concluding the litigation, proposed order 11 deleted

   •[7] the Court edited reasons of O’Ryan J’s further edited to exclude the whole of the passages between paragraphs 10 and 187 with further edits between paragraphs 1 and 10 -Version A

   •[8] the Court edited reasons of O’Ryan J’s to include those paragraphs but with proposed edits throughout -Version B

   •          [9] a web page related to the husband’s business position

   •[10] transcript of the hearing by the High Court of proceedings between the husband and his former wife on an application for special leave to appeal

   •          [11] copies of newspaper clippings

1. Submissions I shall come to were directed to the source of power to make suppression or non-publication orders, principles related to the exercise of it, and the proper exercise of it in this instance. They are supplemented with two large folders containing copies of reported decisions from various jurisdictions, some of which were given added emphasis by citation during submissions.

Preliminaries

1. Apart from the extension of time to allow the application to be argued I raised an issue that was dealt with satisfactorily by Mr Sheahan SC. One query was whether Le Poer Trench J’s refusal to make proposed order 11 by consent was in effect an order from which an appeal lies and therefore the argument should be taken to appellate level. But I was persuaded mere consent was not necessarily a sufficient basis for making the order and the directions for the filing of an application effectively recognise it would be proper to endeavour to persuade the court that the relief proposed is warranted on the presentation of material and argument. For similar reasons it was not incumbent on Le Poer Trench J to hear the application although he had made the suppression order the applicants seek to continue, and nor would it be a proper application for determination by O’Ryan J having regard to the nature of the order he made.  I accept that.

Power

1. Contrary to the written outline, the source of power is said not to be s 121 of the Family Law Act 1975 but s 34 and the inherent or implied power of the Court as a superior court of record [s 21(2)]. However, s 121 is said to be significant to the consideration of whether the exercise of the power is appropriate having regard to the powerful countervailing principle to be found in the common law and expressed in courts exercising State and federal jurisdiction that justice ought to be administered in the open.

1. Section 34 of the Act, as does s 23 of the Federal Court of Australia Act 1976, provides the power to make orders the court thinks appropriate in relation to matters in which it has jurisdiction including orders necessary to enable the court to exercise its jurisdiction effectively or to prevent any abuse of or interference with its processes [Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Warby (2002) FLC 93-091; Deputy Commissioner of Taxation v Kliman and Kliman (2002) FLC 93-113]. The orders proposed here fall within that.

1. It is also submitted that the nature of this court's jurisdiction, taken with s 121, suggests the court should more readily move to exercise the power to order non-publication than other jurisdictions. Initially, when there was provision for the conduct of proceedings in closed court, that closure and s 121 operated together to provide strong protection for the privacy of parties, not merely in their own interests. The amendment of s 97 some years ago requiring proceedings to be conducted in open court is important for observation and accountability, yet s 121 maintains the 'line in the sand' to protect the court and allow it to do its work by protecting parties and witnesses from identification through publication. [eg Lowe and Lowe and Herald and Weekly Times Limited (1995) 19 Fam LR 65, FLC 92-592 per Nicholson CJ]. Section 121 therefore gives a different significance, in this jurisdiction, to the principle of open administration of justice by substantially qualifying it, whereas the principle operates as a significant inhibitor against the granting of relief of the kind sought here in courts of general jurisdiction.

1. As for the inherent jurisdiction, this permits the imposition of restraints on publication of proceedings. Cited are several decisions of the New South Wales Supreme Court, drawing on Scott v Scott [1913] AC 417 [House of Lords]: David Syme & Co Ltd v GMH Ltd (1984) 2 NSWLR 294; John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465; Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342; John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131. It is also said, nor is it doubted, that the existence and recognition of the power is common to other jurisdictions including the United Kingdom, the European Community, Canada and New Zealand [see Scott v Scott above, the European Community (B v United Kingdom (2002) 34 EHHR 19); Canada (Dagenais v Canadian Broadcasting Corp [1994] 3 S.C.R. 835; R v Mentuck [2001] 3 S.C.R. 442; Named Person v Vancouver Sun (2007) SCC 43), New Zealand (Taylor v Attorney-General [1975] 2 NZLR 675; Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZLR 120)].

1. I accept there is power from the sources identified. But I do not see the scope for attaching to s 121 the special status I apprehend the submissions do; that is, by operating to permit incursions into the principle of open administration of justice more readily than would otherwise be the case - save as to the specific issue of identification. The section works merely to restrict the publication or dissemination, not of any account of the proceedings or any part thereof but of any publication or dissemination that identifies [without the leave of the court] a class of persons, being -

(a)      a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)       a witness in the proceedings;..

1. Any further restriction on publication or dissemination falls to be considered according to the same principles applied in other courts.

Exercise

1. It is submitted the common law authorities stand somewhat in contrast to the restriction the legislature has determined appropriate for this court by means of s 121. Those authorities begin from the standpoint of recognising the fundamental interest in open administration of justice, yet they also recognise that restrictions on publication are appropriate in circumstances where it is necessary to achieve justice. From the judgment of Kirby P as he then was in John Fairfax Group v Local Court of NSW (1991) above, this passage:

‘[141]...the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case ... or discourage its attainment in cases generally ... or would derogate from even more urgent considerations of public interest ... the rules of openness must be modified to meet the exigencies of the particular case..’'

1. From the judgment of Mahoney JA in John Fairfax & Sons v Police Tribunal (1986) above:

‘'[471] “A superior court of record has the power, and the duty, to secure that justice is done according to the law in respect of those seeking to exercise its jurisdiction” see Scott v Scott [1913] A C 417 at 437 per Viscount Haldane Le. In so far as may be necessary for this purpose, it may make orders for the protection of those relevantly involved in proceedings before it.  The protection of such persons has been recognised as something which, in a judicial system, must be undertaken. '

1. As for the evidence required to support a non-publication order, this passage from the judgement of Mahoney JA in John Fairfax Group v Local Court of NSW (1991) above:

‘[163] ... it has not been the practice of the courts to require evidence that the consequences conventionally attributed to, for example, the disclosure of names in blackmail, security or informer cases, will actually flow. The courts have inferred that they will. No doubt, if it was suggested in a particular case that they would not, that could be the subject of proof’

1. Endorsement of the limiting of matters to be canvassed in the ‘reportable’ reasons and the sealing of other aspects of the judgment - the proceedings there involving confidential and proprietary information - is to be found in the judgment of Street CJ at 300-301 in David Syme & Co Ltd v GMH Ltd (1984) above:

'So far as concerns the statement of reasons I should have thought that it would always be possible for them to be formulated in such general terms as would, in deference to the deeply rooted principle I have referred to earlier, convey an adequate account of the litigation and the reasons underlying the orders. Where it is absolutely necessary that the reasons incorporate confidential material, it is commonplace for that material to be identified by some neutral description and to be set out in a document directed to be sealed up with an appropriate endorsement and placed with the papers. '

1. In Scott v Scott [1913] (above) the House of Lords considered it appropriate to suppress the publication of the course and determination of proceedings. From Lord Haldane's opinion at 437:

   'While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred.  But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. '

This application

1. It is submitted that in this case there is no matter of public importance or interest compelling departure from the intention of the legislature reflected in s 121. I accept that, prohibiting as the section does identification of classes of persons without leave of the court. It is further submitted that there are considerations in this case that justify a more restrictive approach to publication of these particular reasons than s 121 would provide. I do not accept that, but first the arguments are to be summarised.

1. Turning to the first order sought; that is, a continuation of the order made by Le Poer Trench J suppressing the whole of the judgment by having it removed from the court file and from electronic publications.  Mr Sheahan SC concedes the relief sought is ‘quite extreme’, nonetheless he did not abandon it and cited the judgment of Street CJ in David Syme & Co. Ltd & GMH Ltd (1984) above, in particular the passage at 300.  While his Honour said 'I hate to state an absolute but I find it difficult to conceive a situation in which the need for confidentiality is such as to justify a total non-disclosure of the judge’s reasons and order’ he went on to discuss the ability to formulate reasons in general terms so as to convey an adequate account of the litigation and the reasons underlying the orders and the means by which confidential information might be dealt with, including sealing it.

1. But I cannot identify here any sufficient justification for such an extreme measure. To do so would go beyond providing anonymity which is the focus of s 121 and beyond suppressing parts that might possibly be categorised as an acceptable exception to the principle of open administration of justice. If there are legitimate interests to be protected, editing is the answer, not wholesale suppression.

1. The applicants have taken that approach through the alternative orders sought and created versions A and B to support those alternatives.

Versions A & B

1. Here the arguments essentially target two issues - identification and content - more particularly, the risk of identification of the parties and the prejudice and damage reasonably apprehended to flow not only from identification but also from the content of the reasons.

1. Omitting as it does 47 pages of the reasons between paragraphs 10 and 187 with further edits in paragraphs 1-10, version A represents a far more radical edit than version B.  Essentially the arguments for adopting this version are about content which is also the issue attached to some of the proposed edits reflected in version B.  But discussion of the content arguments can be deferred until the identification issues have been resolved.

Identification

1. As version A drops the middle out of the reasons, the risk of identification really relates to version B.  In short, the proposition is that the husband and the companies are ‘significant players’ in a small industry but with a high public profile that has few participants.  For present purposes, that can be accepted.

1. Having reviewed the suggested edits to deal with the risk, I think they can be organised into several categories: (i) those proposing changes to acronyms (ii) those proposing exclusion of dates of orders made in related proceedings between the parties; and (iii) those proposing the exclusion of certain words, phrases, passages or paragraphs.  There are other passages that relate to content but they can be put aside for the moment.

1. The first category relates to changes -

•          acronyms adopted by the court editor

1. In editing for anonymity, the first initial of a company or group of companies was adopted by the court editor in the reasons published electronically. Having regard to what is said of the high profile and small number of participants in the business of the husband and companies, it is an uncomplicated application of s 121 to adopt the suggested changes to those initials.

1. The second category identifies for exclusion -

•the description of the nature of the business in which the husband and companies are engaged

1. For the same reason I find no difficulty with this and the single word references in paragraphs 36 and 74 can be excluded.

1. There is further identified for exclusion -

   •the date on which O’Ryan J made maintenance orders from which the husband lodged his successful appeal and the particulars of those orders

   •          particulars of the orders made on the appeal

   •          the dates of other orders made by O’Ryan J

   •          phrases such as ‘lump sum’ and ‘lump sum maintenance’

   •passages identifying particulars of the wife’s applications including particular sums of money sought

   •the date of orders proceedings in the High Court on an application for special leave to appeal [along with a brief description and outcome]

1. The argument is that while reference to these dates and to the amounts of money involved and particulars of orders does not concern the parties, electronic searches can be made with these parameters to throw up judgments delivered on that date, or for orders of the type described, or of those amounts of money, allowing links to be made to other publicly available material, such as the Court’s website, and in this way the parties would be indirectly identified. 

1. I could not say whether any other judgments - including those delivered by O’Ryan J on any date he made orders or those made by the Full Court - identify the parties by name or in any other way or whether they have been edited satisfactorily for anonymity.  As I see it, if there is an identification problem it lies with those judgments and I do not regard this as sufficient justification to exclude these kinds of references from this judgment.  The remedy, if one is necessary, is to address identification issues as they present elsewhere.

1. I do see some merit, however, in the editing of the date of proceedings in the High Court. That is because it has been demonstrated that the transcript of those proceedings has been published on the site using the parties’ names.  It was confirmed no one had asked the High Court to use pseudonyms in publication, but the point holds good nonetheless that the date permits a ready link to those proceedings and the transcript directly identifies the parties. Therefore the dates in paragraph 42 of the judgment can be omitted.

1. Two other proposed edits can also be disposed of relatively briefly.  One is a deletion of the name of a particular Bank and the other to several particular countries in an order made by O’Ryan J restraining the husband from applying for a passport.  Stretching protection from the risk of identification to its limits, these two references can be edited by deletion.  The name of the Bank in paragraph 35 will become ‘a bank’ and the reference to the named countries omitted.

1. All of these rulings fit comfortably within s 121 and dispose of the proposals for change and most of those for exclusion from Version B. Those that remain are about content.

Content

1. It is said that the reasons in their present form do an irremediable injustice and consequent harm from which there is no recourse.

1. Addressing version A which would suppress 47 pages of the judgment, it is said that to determine the application for disqualification on the grounds of reasonable apprehension of bias, there is introductory material in the first 10 paragraphs and all that follows it until paragraph 187 - where there is discussion of relevant principles before the application is disposed of from paragraph 207 - comprise a very detailed history of the litigation, not only before his Honour but more widely. Yet in giving his decision about disqualification none of it was referred to or identified as giving rise to an apprehension of bias or made referable in some way to the application that was to be determined.  The whole of that part of the judgment can be characterised as extraneous and unnecessary to that application his Honour was asked to decide.  In some passages in that portion of the judgment there is commentary on the conduct of the parties; relevantly, there is commentary on the conduct of the companies and the present wife who were not parties to the disqualification application and nor were they represented when it was argued.  It also includes commentary on the conduct of their solicitors, none of whom had any reason to think their presence would be required on such an application to defend themselves or their clients in matters that became the subject of comment.

1. In developing this submission, Mr Sheahan SC draws attention to a number of specific paragraphs which he says reflects his Honour’s thinking about the behaviour of the parties and is extraneous to the task of disposing of the application; is not logically pertinent to the question of disqualification; foreshadows, makes assumptions about and pre-judges proceedings yet to be determined; is speculative about people’s motives; offers criticism about the conduct of lawyers, expressed in disparaging terms - all providing added cause for the disqualification.  He submits some of the commentary is serious, being said by a Judge about the conduct of lawyers.  But it is not just serious for the lawyers, who had no reason to think their conduct would be impugned in a judgment about disqualification, but for their clients for whom they act because it reflects indirectly on them.  He says if it were a couple of isolated instances of a busy Judge taxed with a long and difficult matter letting off a little steam nothing would be made of it.  But he maintains it goes further because his Honour seems to have been addressing something other than resolving the application for disqualification and he did so in a way that perpetrates a serious injustice to the applicants and to their lawyers.  The solicitor for the present wife later adopted these submissions and identified further passages said to reflect unjustly and unfairly on the solicitors.

1. To continue the submission, version A expunges all of that material from paragraph 11 under the heading ‘Background’ to the commencement of the legal principles, essentially because none of it is framed as an elaboration of the factual findings necessary to determine the matter and nor does it address the question his Honour was called upon to decide.  It was conceded it is a ‘robust remedy’ but is said to be the only effective one that appropriately balances the interests of the parties and the injustice to them from publication, on the one hand, with the interests of the open administration of justice - and it achieves that balance by maintaining still the essential background information, the legal principles and the decision.

1. Yet I see it differently.  I have no difficulty accepting there are circumstances that constitute exceptions to the principle requiring the administration of justice in public and justify judgments or, more usually, portions of a judgment being withheld from publication or dissemination.  It furthers what is referred to by the House of Lords in Scott v Scott at 437-438 as the ‘paramount object’ which must always be to do justice. But I am unable to find here that justice requires portions or even selected passages from his Honour's reasons to be suppressed.

1. In so far as the concept of doing justice is applied to commentary said to be unnecessary or irrelevant or speculative or pre-judges or some other descriptor, the principle of open administration of justice must prevail.  Once made, commentary must stand.

1. In so far as the concept is applied to commentary that is said to be critical of the conduct of the parties, in my view that is addressed by editing to eliminate identification. Applied to criticisms of the conduct of the parties’ lawyers, that can also be addressed satisfactorily by editing to eliminate their identification. In both instances it would be an application of s 121. With identification withheld, the two requirements of open administration of justice and the paramount object of doing justice can be achieved.

1. Subject to those identification edits, which will necessarily apply also to appearances noted in this judgment, and the identification edits earlier mentioned, the reasons must stand as published.

Orders

1. The orders will dismiss the applications save to the extent related only to identification as discussed.  The applicants may wish to lodge an edited copy of the court edited reasons in compliance with this judgment and if they do it is to be lodged no later than 31 January 2008.

1. The consequences of dismissal were not discussed when the matter was argued. But on the chance the applicants might wish to appeal these orders, and given the delivery of this decision a few days before the Christmas closure, I have stayed the operation of the orders and publication of this judgment until 4pm 31 January.  If there is an appeal and the applicants wish to extend the stay, they can apply to do so before that date.

___________________________________________________________________
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore.

Associate:

Date:             21 December 2007