Finn Kayaks Pty Ltd v Dawn Harwood
[2013] WASC 339 (S)
•12 SEPTEMBER 2013
FINN KAYAKS PTY LTD -v- DAWN HARWOOD [2013] WASC 339 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 339 (S) | |
| Case No: | CIV:2510/2012 | 12 SEPTEMBER 2013 | |
| Coram: | PRITCHARD J | 12/09/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Orders made for partial suppression of the reasons for decision | ||
| B | |||
| PDF Version |
| Parties: | FINN KAYAKS PTY LTD DAWN HARWOOD |
Catchwords: | Application for suppression order in respect of publication of reasons for decision Potential prejudice to criminal proceedings Anonymisation of reasons for decision where allegations of fraud are made |
Legislation: | Nil |
Case References: | McJannett v Daley [No 2] [2012] WASC 386 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : FINN KAYAKS PTY LTD -v- DAWN HARWOOD [2013] WASC 339 (S) CORAM : PRITCHARD J HEARD : 12 SEPTEMBER 2013 DELIVERED : 12 SEPTEMBER 2013 FILE NO/S : CIV 2510 of 2012 BETWEEN : FINN KAYAKS PTY LTD
- Plaintiff
AND
DAWN HARWOOD
Defendant
Catchwords:
Application for suppression order in respect of publication of reasons for decision - Potential prejudice to criminal proceedings - Anonymisation of reasons for decision where allegations of fraud are made
Legislation:
Nil
Result:
Orders made for partial suppression of the reasons for decision
Category: B
Representation:
Counsel:
Plaintiff : Mr F A Robertson
Defendant : Ms F F Xue
Solicitors:
Plaintiff : CS Legal
Defendant : Gadens Lawyers
Case(s) referred to in judgment(s):
McJannett v Daley [No 2] [2012] WASC 386 (S)
- (This judgment was delivered extemporaneously on 12 September 2013 and has been edited from the transcript.)
1 PRITCHARD J: In this matter, the plaintiff successfully applied for a freezing order to prohibit the defendant from disposing of, or dealing with, or diminishing the value of her assets in Australia up to an unencumbered value. I delivered oral reasons for decision at the conclusion of the hearing on 13 August 2013 (the reasons for decision). Apart from counsel for the parties and the transcript officer and court staff, no one else was present in Court at that time.
2 After I delivered my reasons for decision, counsel for the defendant indicated that she wished to seek a suppression order in respect of the publication of the reasons for decision. I invited counsel to await transcription of the reasons for decision, at which time I would provide the parties with the opportunity to make an application for whole or partial suppression of the reasons for decision, and to make such submissions as they saw fit in relation to any such application.
3 The reasons for decision which I gave are now ready for publication. They have been published confidentially to the solicitors for the parties, but have not yet been entered onto the Court's database or, in other words, published to the world at large including by being made available on the internet.
4 The defendant has now applied by chamber summons, dated 11 September 2013, for an order that the entirety of the reasons for decision be suppressed until the conclusion of the criminal proceedings against the defendant.
The basis for the suppression application
5 The ground for the suppression application is that it is just for the reasons to be suppressed in view of the criminal proceedings, and specifically that the judgment contains information which might be prejudicial to the defendant's criminal proceedings, which are yet to be determined. In particular, that information includes the observation that the defendant did not dispute, for the purposes of the freezing order application, that the plaintiff had a good arguable case on the cause of action being pursued in this Court. That cause of action includes allegations of dishonest or fraudulent conduct by the defendant which, as I understand the position, reflect the basis for the criminal charges now brought against the defendant.
6 The defendant's application for a suppression order was not supported by an affidavit. Instead, the defendant relies on the content of the reasons for decision, and the material already before the Court in the plaintiff's application for the freezing order (which included information as to the criminal proceedings brought against the defendant).
7 Counsel for the defendant submits that the potential prejudice to the criminal proceedings as a result of publication of the reasons for decision arises from the fact that possible witnesses to the criminal proceedings may have access to the reasons for decision, or may become aware of them prior to the commencement of the criminal proceedings. I understand the submission to be that the information in the reasons for decision may affect the evidence of those witnesses in some way.
8 In addition, counsel for the defendant points to the fact that the publication of the reasons for decision in a way which will identify the defendant will result in the publication of very serious allegations of dishonesty and fraud, which have not been tested and which would be damaging to the defendant's reputation.
The orders sought by the defendant
9 At the commencement of the hearing today counsel for the defendant provided a minute of proposed orders, in which she proposed an alternative course to suppression of the entirety of the reasons for decision. In summary, she sought to anonymise the names of the parties to these proceedings and to suppress references in the reasons for decisions to certain information which would have the potential to identify the defendant such as her name, the address of properties owned by her, and identifying details in relation to persons connected with her.
The Court's power to suppress
10 The source of the Court's power to suppress lies in the inherent jurisdiction of the Court.
11 In addition, the Court's Consolidated Practice Directions at 8.2.1 are also of present relevance insofar as they deal with the situation where allegations of fraud are made against a person in proceedings. The Practice Directions contemplate the anonymisation of the reasons for decision published by the Court in relation to claims based on allegations of fraud, or an order that reasons not be entered on the Court's database. Paragraph 5 of Practice Direction 8.2.1 provides:
Where reasons for decision to which this Practice Direction relates -
(a) have been published to the parties; or
(b) will be published to the parties,
a party or other person who has been or may reasonably expect to be identified in the reasons, may apply to the judicial officer for an order that the version of the reasons which are entered on the Court's database not identify that person, or if that is not practicable, for an order that the reasons not be entered on the Court's database.
12 The power to suppress or to restrict the publication of part of a judgment is to be exercised with great caution, because it involves a departure from the principle of open justice. Le Miere J discussed the principle of open justice in McJannett v Daley [No 2]1 at [3] to [4]:
3 An essential characteristic of courts is that they sit in public so that court proceedings are subject to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts: Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] (French CJ). However, the open court principle is not absolute. It may be limited in the exercise of the court's inherent jurisdiction: Hogan v Hinch [21] (French CJ). This may be done where it is necessary to secure the proper administration of justice.
4 The principle of open justice is that judicial proceedings must be conducted in an open court to which the public and the press have access: Scott v Scott [1913] AC 417. The exceptions to this fundamental rule are few. Another aspect of the principle of open justice is that a court is obliged to publish reasons for its decision not merely to provide reasons to the parties. Sir Frank Kitto KBE, a former justice of the High Court, in 'Why Write Judgments?' (1992) 66 Australian Law Journal 787 wrote:
It is not enough that the hearing of a case has been in public. The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practices of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to judicial high performance (790).
14 For the reasons which follow, I am persuaded that the defendant's application for suppression should be granted, to the limited extent which is reflected in the minute of orders now proposed by the defendant's counsel.
15 First, I accept that publication of identifying information in relation to the defendant would have the potential to adversely affect the defendant's fair trial in the criminal proceedings, particularly having regard to the observation in the reasons for decision that the defendant did not contest the existence of the plaintiff's good arguable case for the purposes of the freezing order.
16 Secondly, the allegations referred to in the reasons for decision involve serious allegations of fraud and dishonesty which are as yet untested. Although I place far less weight on this consideration, the possibility exists that those allegations will adversely affect the reputation of the defendant if published at the present time.
17 Thirdly, the suppression order which is sought is confined to specific and limited personal information about the defendant or information which could result in her identity being ascertained. Suppression of identifying information in this limited way is consistent with Practice Direction 8.2.1 in respect to allegations of fraud.
18 Fourthly, the reasons for decision will be intelligible without the information which is the subject of the minute of proposed orders. The limited suppression that is sought would permit the reader to understand the basis for the grant of the freezing order, but without prejudice to the defendant's position.
19 Fifthly and importantly, the suppression order is to be of limited duration - until the criminal proceedings against the defendant have been completed.
20 Finally, while I will hear from counsel in this respect, I do not consider that there is any need to suppress these reasons in relation to non-publication and suppression. I have deliberately refrained from referring to the specific personal information about the defendant which is to be suppressed, so that my reasons in respect to the suppression order can be published, and so that those reasons will be clear and transparent. The only qualification to that is that the names of the parties in the title of these reasons should be anonymised when these reasons are published.
1McJannett v Daley [No 2] [2012] WASC 386 (S).
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