DPP (Cth) v Corcoris & The Age (No 2)
[2005] VSC 142
•18 February 2005
| 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. 2) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 142 | |
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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:
This is an application by The Age Co Ltd, pursuant to O. 1.11(4) of the Supreme Court (Criminal Procedure) Rules 1998, which are contained in Ch. VI of the Rules of the Supreme Court. The application is that The Age be permitted to inspect the documents on the file in this matter, and in particular, firstly, two orders of Hansen J made respectively on 13 December and 17 December 2004 and, secondly, any affidavit or other material which was before his Honour in support of the applications for those orders.
The proceedings themselves, in respect of which this application is brought, consist of an application by the Commonwealth Director of Public Prosecutions against the respondent, Nicholas Corcoris, for penalty orders and forfeiture orders pursuant to the provisions of the Commonwealth Proceeds of Crime Act 2002. The two orders made by his Honour on 13 December and 17 December consisted, firstly, of restraining orders and, secondly, of orders for examination of certain persons. The later order was merely a variant of the earlier order.
No other step of any substance seems as yet to have been taken in the proceedings brought under the Proceeds of Crime Act. At the same time, I understand that criminal proceedings have been instituted against the respondent, Mr Corcoris, and that there is an initial committal mention hearing due to take place in the Melbourne Magistrates' Court on 10 May next.
The main arguments which were advanced in support of access to the file were directed to permitting The Age to have access to the two orders of Hansen J to which I have referred. Mr McEvoy of counsel, who appeared on behalf of The Age, in his thorough and skilful argument, drew my attention to the principle of high public policy which dictates that the processes of the court should be open and that the public should be provided with such information as enables it to properly scrutinise the processes of these courts.
Mr Maidment of Senior Counsel, who appeared with Ms Hodgson for the Director of Public Prosecutions, Mr Scott, who appeared for the respondent Mr Corcoris, and Mr Giacco, who appeared on behalf of the Official Trustee, all opposed the application brought on behalf of The Age. In essence they submitted that these proceedings are different to ordinary proceedings which ordinarily are open to public scrutiny. In particular, the proceedings are at a very early stage, the application was made before Hansen J ex parte, the orders were made pursuant to the unusual and strict provisions of the Proceeds of Crime Act, there has been no adjudication on the merits, and the respondent has had little, if any, real legal opportunity to apply to vary or set aside the orders. Thus it is put that publication of the full content of the orders might unduly harm the interests both of the respondent and also of a number of other persons who are mentioned or referred to in the orders.
There is, of course, the high public policy to which Mr McEvoy has correctly referred. In my earlier ruling today, I stressed the fact that from time immemorial it has been recognised by all the courts in the common law world, and in particular in this country, that it is of utmost importance that the processes of this court be open to public scrutiny. It is also an obvious fact of modern life that members of the general public rarely have the opportunity to come and see the courts at first hand, and thus their opportunity to learn of what happens in court, and to scrutinise and comment in an informed way on it, is provided to them by the services of institutions such as The Sunday Age in providing information to them about the processes of the courts. It is unnecessary for me to dwell further on the strength of the public policy which has been long recognised and time and again protected by decisions of this court.
On the other hand, there are, in my view, important and indeed unique features which attach to the orders that were made by Hansen J. The orders were made pursuant to the particular regime under the Commonwealth Proceeds of Crime Act to which Mr Scott, in his helpful submissions, took me. As Mr Scott correctly pointed out, the provisions operate, no doubt for important public purposes, in a peremptory and, indeed, from the point of view of a respondent, quite draconian manner. The application is made in the absence of the respondent, who cannot argue against it. The orders having been made, they are in effect until the completion of the proceeding. They are different to ordinary ex parte orders where the respondent has an opportunity to return to court on short notice and to apply to set them aside fully.
Secondly, it is important to bear in mind that the threshold of proof required of the Director of Public Prosecutions in order to obtain such an order has been set quite low by the legislation. In other words, an order, which is made in an uncontested manner and which stands for some time, is made on proof which might not otherwise satisfy a court to grant an ex parte order. The effect of the order itself can be quite dramatic. But, more importantly, publication of the order in such a manner that affects third parties can have, quite obviously, very significant adverse effects. In this case, it is clear that a number of persons would be affected if their names were publicised in conjunction with publication of the orders. Members of the public might well draw inferences about their roles and their reputations which could be grossly and entirely unfair to them. The commercial interests of such persons could be adversely affected and, in particular, commercial ventures in which those persons are currently involved could suffer significant loss. Most importantly, none of those persons have had the opportunity to come to court to say anything about the order, and yet the order does impact on them. In those circumstances, it would, it seems to me, be a matter of grave detriment to them should publication be permitted of the orders in a manner which disclosed the names and identities of those persons to the orders.
I have been referred to authorities which do place some emphasis on the fact that a relevant factor, in an application of this type, is the actual stage in the proceedings at which the application is made. Where, as in this case, applications are made at a very early stage in proceedings, courts often deem it premature to permit their files to be inspected for the purposes of the media publishing them. It is only necessary in this respect for me to refer in general to cases such as Eisa Ltd v Brady;[1] Australian Securities and Investment Commission v Rich.[2]
[1][2000] NSWSC 929 at [18]-[20].
[2][2002] NSWSC 198 at [19].
Bearing in mind the description which I have already given of the nature of these proceedings, it is in my view premature for the media to have access to the court files for the purpose of publishing the full contents of the two orders made by Hansen J to the general public. These proceedings, and the criminal proceedings concerning Mr Corcoris, no doubt have a fair distance to travel. It may well be that later in those proceedings the issues to which I have already referred may be of far less moment. It would therefore be open to The Age or other representatives of the media at an appropriate time to make application again for access to the orders made by Hansen J in their full form. But I consider that the interests of the third parties who would be affected by publication are of such gravity that they outweigh the very high public policy in favour of publication to which I have already adverted. Thus, I would not permit access to the court file to permit The Age or any other representative of the media to have inspection of the two orders of Hansen J in a manner which would reveal the names of persons contained in either Clause 7, relating to examinations, or in the schedules.
That leaves an alternative proposition put by Mr McEvoy, to whom the opportunity was given to inspect the orders on an undertaking of strictest confidentiality. Having done so, Mr McEvoy submitted to me that if I was against his argument for a full disclosure of the contents of the orders, I should nevertheless permit his client to have access to the two orders, but with the schedules being deleted. Mr Maidment contended that, whilst such a step would be a vast improvement, nevertheless dissemination of the orders with those deletions, and even with the deletion of the names in Clause 7, might give rise to some speculation as to who else is connected with the order. Mr Scott realistically conceded that the deletions suggested by Mr McEvoy would go a long way to alleviating the type of damage to which he drew my attention and upon which he relied in his submissions. As I understand it, Mr Giacco agreed with the propositions advanced by both Mr Maidment and Mr Scott.
If the names in Clause 7 and if the schedules were to be deleted, I would still have some concern as to residual harm which might be occasioned in the manner suggested by Mr Maidment. In other words, I do not consider that Mr Maidment's response to the suggestion of Mr McEvoy is entirely fanciful.
However, I do not consider that that type of possible harm is of sufficient magnitude to outweigh the public interest in knowing of the court processes and in receiving information in general terms about the orders pronounced by Hansen J on 13 December and 17 December.
Accordingly, I shall shortly make orders which will have the effect of permitting the applicant to have access to copies of both of the orders, but with all of the names in Clause 7 deleted and with all of the schedules to the orders being deleted.
I should note that Mr McEvoy contended that rule 1.11(4) does not apply to an order. He may be correct. The matter was not fully argued before me and I do not need to decide it, because he properly and correctly conceded that in any event, if his argument is correct, I nevertheless have a discretion to prevent disclosure of the documents.
I shall therefore make orders and would welcome the assistance of counsel in their proper drafting which would have the effect of permitting the applicant to have copies for its inspection of the orders of Hansen J dated 13 December and 17 December 2004, such copies to have deleted from them the names in Clause 7 and the schedules to the orders.
I should perhaps finally remark that Mr McEvoy also kept alive an argument that his client should also have access to the materials, in particular the affidavits in support of the orders, but he did, again realistically and properly, concede that such an argument was by no means as strong as in relation to the orders.
I have said sufficient in relation to the access to the orders to cover the affidavits and other material. For the reasons I have already set out, I would not permit access to the affidavits and other material.
MR MAIDMENT: For the sake of abundant caution, Your Honour, although it may be said that Table A to the order is part of the schedules, would Your Honour specify that that too ought to be deleted?
HIS HONOUR: Yes, I would specify Table A. What I said intended to pick up Table A. Was that not part of the schedule?
MR MAIDMENT: Arguably it is.
HIS HONOUR: Yes, certainly, Table A will be part of the deletion. What is the correct order, then, gentlemen? I assume Order 1.11(4) applies. Can I make the order under that - simply direct that the Prothonotary permit the applicant to inspect a copy of each of the orders of His Honour Mr Justice Hansen made 13 December 2004 and 17 December 2004, such copies to have deleted from them the names in Clause 7, each of the schedules and Table A. That will be Clause 1 of my order. Clause 2 will be: "The application on amended summons by the applicant The Age Ltd is otherwise dismissed."
MR McEVOY: Your Honour, I am concerned that if possible we get access to those orders today, and so to that extent - -
HIS HONOUR: What can be done in that respect?
MR McEVOY: Ordinarily if I have the orders available in those terms I can hand them up to be signed by Your Honour. What I might perhaps suggest is that I have my instructors prepare those orders immediately, and if we return - -
HIS HONOUR: If your instructor can do that quickly, either bring them here or e-mail them and I will sign them.
MR McEVOY: Perhaps we should have as our third order, Your Honour, that pursuant to rule 60.04 - - -
HIS HONOUR: Yes, I will make the usual order under 60.04(1) or whatever it is. Yes, certainly, that can be included.
(Discussion ensued re costs.)
HIS HONOUR: I will make no order for costs.
(Discussion ensued.)
HIS HONOUR: Order No. 3 will be that there will be no order as to costs. No. 4 will be Mr Maidment's direction, that is, that I will direct that the documents filed in the proceedings to date not be open for inspection save in accordance with this order.
MR McEVOY: 5 would be no order as to costs. 6 would be liberty to apply, and 7 would be - - the final order would be the Order 60 order. It might be 6, I think.
MR MAIDMENT: Just one matter, Your Honour. It arises from the application we made for suppression of the proceedings before Hansen J and I told Your Honour effectively that nothing was said capable of disclosing the content of the order. I have now been supplied with a copy of the notes taken. They are brief, but there was some discussion between the solicitor appearing for my client and Hansen J in which some of the names referred to in the schedule and Table A were mentioned, including joint venturers.
HIS HONOUR: This matter should have been drawn to my attention earlier, really. I am not being critical of you, Mr Maidment, but I gave a ruling this morning, we have heard argument all afternoon. What do you want me to do?
MR McEVOY: No one was there, Your Honour. It doesn't arise.
HIS HONOUR: I don't think anyone was there.
MR McEVOY: It doesn't arise. We don't know about any of this.
MR MAIDMENT: My concern, Your Honour, is if there is a transcript.
HIS HONOUR: I think in fact there is a running transcript which we don't get. Someone down there may record all this.
MR McEVOY: But that is covered by Your Honour's order, isn't it, that nothing else be provided.
HIS HONOUR: No, because I am really only making orders under 1.11.
MR McEVOY: Yes, but if the transcript to which reference is being made is on the file- - -
HIS HONOUR: You are right, actually. Mr McEvoy is correct. It is not on the file. Mr Maidment, I am going to hear the next matter. If there is an issue, you come back. If you do have a concern, I will be here.
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