Collard v The State of Western Australia
[2013] WASC 74
•5 FEBRUARY 2013
COLLARD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 74 | |
| Case No: | CIV:1772/2010 | 5 FEBRUARY 2013 | |
| Coram: | PRITCHARD J | 5/02/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted to inspect and copy the amended statement of claim and defence | ||
| B | |||
| PDF Version |
| Parties: | DONALD COLLARD SYLVIA RACHEL COLLARD GLENYS DALE COLLARD ELLEN THOMAS EVA JETTA WESLEY ROHAN COLLARD BEVERLEY ANNE HUMPHRIES DARRYL FREDERICK COLLARD BONNIE COLLARD MILLER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Application by media for leave to inspect and copy amended statement of claim and defence Principles governing leave under Rules of the Supreme Court 1971 (WA), O 67 r 11(1)(d) Interests of open justice Public interest in the accurate reporting of the issues |
Legislation: | Rules of the Supreme Court 1971 (WA), O 67 r 11(1)(d) |
Case References: | Bernardus Hubertus Van Stokkum and the People Named in Schedule A v The Finance Brokers Supervisory Board [2002] WASC 192 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First-named First Plaintiff
SYLVIA RACHEL COLLARD
Second-named First Plaintiff
GLENYS DALE COLLARD
Second Plaintiff
ELLEN THOMAS
Third Plaintiff
EVA JETTA
Fourth Plaintiff
WESLEY ROHAN COLLARD
Fifth Plaintiff
BEVERLEY ANNE HUMPHRIES
Sixth Plaintiff
DARRYL FREDERICK COLLARD
Seventh Plaintiff
BONNIE COLLARD MILLER
Eighth Plaintiff
- AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Application by media for leave to inspect and copy amended statement of claim and defence - Principles governing leave under Rules of the Supreme Court 1971 (WA), O 67 r 11(1)(d) - Interests of open justice - Public interest in the accurate reporting of the issues
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 11(1)(d)
Result:
Leave granted to inspect and copy the amended statement of claim and defence
Category: B
Representation:
Counsel:
First-named First Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Second-named First Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Second Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Third Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Fourth Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Fifth Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Sixth Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Seventh Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Eighth Plaintiff : Mr G M G McIntyre & Mr J I Crabtree
Defendant : Mr R M Mitchell SC & Mr T C Russell
(Page 3)
Solicitors:
First-named First Plaintiff : Lavan Legal
Second-named First Plaintiff : Lavan Legal
Second Plaintiff : Lavan Legal
Third Plaintiff : Lavan Legal
Fourth Plaintiff : Lavan Legal
Fifth Plaintiff : Lavan Legal
Sixth Plaintiff : Lavan Legal
Seventh Plaintiff : Lavan Legal
Eighth Plaintiff : Lavan Legal
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bernardus Hubertus Van Stokkum and the People Named in Schedule A v The Finance Brokers Supervisory Board [2002] WASC 192
(Page 4)
- PRITCHARD J:
(This judgment was delivered extemporaneously on 5 February 2013 and has been edited from the transcript.)
1 This is an application by the publisher of The West Australian newspaper for leave to inspect and copy the amended statement of claim and the defence which have been filed in these proceedings. The application is made pursuant to O 67 r 11(1)(d) of the Rules of the Supreme Court 1971 (WA). The application was set out in writing to my associate and was supplemented by submissions by counsel for the applicant, Mr McCarthy, today.
The principles governing leave under O 67 r 11
2 The principles which govern such applications for leave were referred to by McLure J (as she then was) in Bernardus Hubertus Van Stokkum and the People Named in Schedule A v The Finance Brokers Supervisory Board [2002] WASC 192. Her Honour indicated that:
Where an application is made under Order 67 rule 11(1)(d) factors relevant to the exercise of the court's discretion would include
(a) whether and if so to what extent the document has been referred to in open court;
(b) the stage reached in the proceedings;
(c) the contents of the document;
(d) the nature of the proceedings;
(e) whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process; and
(f) the purpose for which access is required [27].
Application of principles
3 Having regard to Mr McCarthy's submissions and the applicant's written application, I understand that the basis for the application for leave is that access to the documents is sought in the interests of open justice and in order to ensure a fair and accurate report of the proceedings.
4 Having regard to the factors referred to by McLure J in Van Stokkum, I am satisfied that this is an appropriate case for the grant of leave to inspect the amended statement of claim and the defence filed by
(Page 5)
- the defendant in response to that statement of claim. Having regard to the factors identified by her Honour, I have reached that conclusion for the following reasons.
5 First, the statement of claim has been extensively referred to in open court in the course of the opening submissions made by Mr McIntyre, and the provision of the written version of what has been extensively referred to would, in my view, assist in the accurate reporting of the discussions that have taken place between the Court and counsel and the submissions of counsel himself.
6 Secondly, the stage reached in the proceedings is the trial stage, so the considerations that sometimes arise in these matters when documents are sought far in advance of trial are not of relevance.
7 Thirdly, the contents of the documents are of some concern insofar as there are some serious allegations made in relation to sexual assaults that some of the plaintiffs allege occurred and in the context where the alleged perpetrators of those assaults are not before the Court and able to answer the allegations. However, my concerns in relation to those matters are considerably ameliorated by virtue of the lack of detail with which the sexual assaults are referred to in the pleadings themselves (in contrast to the witness statements where greater detail is provided).
8 Counsel for the applicant has indicated that the applicant is well aware of the prohibitions on the publication of the identity of complainants in sexual assault matters. Consent has been sought and obtained from at least one of the plaintiffs in that respect. Until (if at all) consent is given by the other plaintiff to whom these sexual assault allegations pertain, there will not be identification of that plaintiff in that context.
9 Finally, in relation to the nature of the proceedings, I have taken into account the fact that this is a novel action and there is a considerable degree of public interest in the accurate reporting of the issues which are before the Court in those circumstances. I have taken into account the purpose for which access is required, which is to facilitate the accurate reporting of the trial.
10 In all of the circumstances there will be a grant of leave pursuant to O 67 r 11(1)(d) of the Rules of the Supreme Court to inspect and copy the amended statement of claim and the defence.
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