DPP (Cth) v Corcoris & The Age (No 1)

[2005] VSC 141

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1530 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)	Plaintiff
v
CORCORIS AND THE AGE	Defendants

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2005
DATE OF RULING:	18 February 2005
CASE MAY BE CITED AS:	DPP (Cth) v Corcoris and The Age (No. 1)
MEDIUM NEUTRAL CITATION:	[2005] VSC 141

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APPLICATION TO INSPECT COURT FILE – Public interest.

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APPEARANCES:	Counsel
For the Commonwealth Director of Public Prosecutions	Mr R. Maidment, S.C. with Ms Hodgson
For The Age Co Ltd	Dr T. McEvoy
For the Official Trustee	Mr J. Giacco
For Corcoris	Mr C. Scott

HIS HONOUR:

1. This matter comes before me on an application by The Age Co Ltd, pursuant to O.1.11(4) of Ch. VI of the Rules of the Supreme Court, to inspect documents on the court file including, inter alia, a copy of an order made by Hansen J on 13 December 2004. 

1. When the matter came before me, at the suggestion of Mr McEvoy, who appears on behalf of The Age, Mr Maidment SC, who appears with Ms Hodgson for the Commonwealth Director of Public Prosecutions, commenced with a foreshadowed application seeking an order that I suppress publication of the proceedings which occurred before Hansen J on that date.  (Justice Hansen also heard the matter on 17 December and slightly varied the orders that he made on 13 December.)  The opposition which was made to publication of those proceedings by Mr Maidment, which was supported by Mr Scott on behalf of Mr Corcoris and Mr Giacco on behalf of the Official Trustee, was that publication of those matters might detrimentally harm the commercial interests particularly of third parties.

1. It appears from what has transpired in argument that little if anything was in fact said before Hansen, J. on the day.  No members of the public were present.  So far as I can glean, an application was made for an order in respect of Mr Corcoris under s.18 of the Commonwealth Proceeds of Crime Act.  His Honour read the papers silently and made the orders which he did.

1. It is unnecessary for me to resort to the authorities to reiterate the high public interest that exists in having the public know about the proceedings which occur before this court or any other court in this land.  For centuries this court and other courts have set their face against the closing of its processes and suppression of its processes unless there is a pressing need which overrides the high public interest in publication of its processes. 

1. I understand that no application was made to Hansen J to hear the matter in closed court, although as a matter of practicality it appears no one else was present.  As yet no material has been put in evidence before me indicating the repercussions which might occur should not only the fact of the order but also the detail of the order be made public.  However, as I understand it, Hansen J did not read out the order.  Therefore, publication of the proceedings would not descend to that detail. 

1. The matter before me is difficult because the Act in its present form is fairly new and I am moving into uncharted waters.  The orders that can be made under the Act are draconian, they are made ex parte, and they are, as I say, far‑reaching.  They can impact quite adversely on the interests of innocent third parties and indeed they can impact quite unfairly on the interests of the party in respect of whom they are directly made.  In those circumstances a court may well conclude, in appropriate circumstances, that it is inappropriate for its proceedings to be publicised, particularly where publication would bring to the public notice not simply the fact of the proceeding and the fact in general terms of the making of an order, but the content and detail of the order.  However, as I have stated, nothing has been put before me to show that if the mere proceeding before Hansen J on 13 December or 17 December were publicised, it would lead to publication of any of those matters.  Nothing was put before me to show that the affidavit was read or that the orders were pronounced publicly. 

1. In those circumstances, whilst I am troubled by this matter, I am not convinced that the high public policy that does exist in retaining the openness of court processes is overridden to the extent that I should make an order which Hansen, J. was not invited to make, namely, suppressing publication of the proceedings which took place in front of his Honour on the two days I have mentioned.

1. For those reasons I decline to make the order sought. 

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