Harrington v Coote (No 3)

[2012] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

HARRINGTON & ORS v COOTE & ANOR (No 3)

[2012] SASC 207

Reasons for Decision of The Honourable Justice Gray

8 November 2012

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - EVIDENCE

Application by the first defendant for the suppression of material filed in Court through the sealing of documents - where the action arises out of private Church proceedings in relation to alleged misconduct - where the first defendant has been brought to Court over questions of the interpretation of Church documents and the jurisdiction of Church disciplinary processes - whether the documents should be sealed.

Held:  Application granted - the documents to be sealed until further order of the Court - there is an equity of confidence in the material sought to be suppressed.

Scott v Scott [1913] AC 417; Attorney-General v Leveller Magazine Ltd [1979] AC 440; Hogan v Hinch (2011) 275 ALR 408; Australian Broadcasting Commission v Parish (1980) 43 FLR 129, considered.

HARRINGTON & ORS v COOTE & ANOR (No 3)
[2012] SASC 207

Civil

GRAY J.

1. This is an application for the suppression of material filed in Court.

2. The first defendant, Peter John Coote, seeks an order to have documents sealed and confidentiality maintained in respect of those documents.  Earlier in the proceedings, I made orders that the relevant documents be sealed, but indicated that I would revisit those orders at a convenient time when I had had the opportunity to consider Mr Coote’s detailed submissions.  On 11 October 2012, I made an order for the sealing of four documents until the further order of the Court.  These are my reasons for making that order. 

3. This action arises out of private Church proceedings in relation to alleged misconduct by Mr Coote.  In accordance with that process, a reviewer, the second defendant, Neville Morcombe QC, held that the Professional Standards Board did not have “jurisdiction” under the relevant rules, the Professional Standards Ordinance 2007, to inquire into Mr Coote’s conduct in the period from 1994 to 1998.

4. Five of the plaintiffs are members of the Professional Standing Committee for the Anglican Diocese of the Murray, the sixth plaintiff is the administrator of the Diocese of The Murray of the Anglican Church of Australia and the seventh plaintiff is the Synod of the Diocese of The Murray of the Anglican Church of Australia.  The plaintiffs, by the within action, seek to challenge the jurisdiction of the reviewer to examine, inter alia, whether the Professional Standards Board had jurisdiction to conduct the inquiry, or exceeded its jurisdiction during the conduct of the inquiry.[1]  The plaintiffs have brought Mr Coote to court to address the legitimacy of the Church’s internal processes.

   [1]    The orders sought in the amended summons are:

   1A declaration that the Professional Standards Board appointed under Part 7 of the Professional Standards Ordinance 2007 of the Diocese of The Murray of the Anglican Church of Australia had jurisdiction under Part 8 of that Ordinance to determine the Reference made on 28 February 2008 by the Professional Standards Committee appointed under Part 4 of the Ordinance.

   1(a) In the alternative, a declaration that the decision of the second defendant, that the Professional Standards Ordinance 2007 properly construed does not authorise an inquiry into the conduct of the first defendant in 1995-1998, is invalid.

   2An injunction restraining the second defendant from making any determination under Section 74N or any order under Section 74O of the Professional Standards Ordinance 2007.

5. The documents which Mr Coote seeks to have sealed are the decision and reasons of the Professional Standards Board, dated 4 March 2011; the decision and reasons of the reviewer, dated 18 April 2011; a redacted complaint and particulars before the Professional Standards Board; and a statement of facts tendered before the Professional Standards Board.

6. The relevant provisions of the Professional Standards Ordinance include:

   -section 15, which provides that, subject to the provisions of the Ordinance, the Director, the Professional Standards Committee, a Church authority and a person employed or engaged in work related to the affairs of the Professional Standards Committee must not divulge information received, except in limited identified circumstances;

   -section 17, which provides that only the Professional Standards Board has the power to direct and approve the publication of information concerning a matter the subject of a reference to the Professional Standards Board;

   -section 18, which provides limited reporting obligations of the Professional Standards Committee;

   -section  70, which provides that the Professional Standards Board is required to provide a copy of its determination and recommendation to the relevant Church authority and to the Church worker whose alleged conduct or omission is the subject of information; and

   -section 74E, which provides that an application for review operates as a stay of the “reviewable decision” pending the review.

7. Whether or not the Ordinance is legally ineffective, either wholly or in part, the parties appear to have conducted themselves until the review by Mr Morcombe QC as if it were legally effective.

8. The Court was informed by counsel for Mr Coote that the Professional Standards Board exercised its purported powers under section 17 of the Ordinance to direct that there be no release of its determination until the application for review, then extant, had been heard and determined.  It gave reasons.  It was said that that direction stood because the first Professional Standards Board’s determination and recommendation were set aside on the review and the Reference was remitted for hearing before a differently constituted Professional Standards Board.  The Court was also informed that the reviewer gave no directions as to the publication of its determination and recommendation, and nor has the second Professional Standards Board.

9. It was submitted that there is no legitimate public policy to be served by the release of information which has the quality of confidential information.  It was said that it would be an injustice to expose to public view the content of a private inquiry which, according to the Church’s chosen decision-maker, should never have occurred.  These proceedings are likely to produce a degree and intensity of publicity that could not have been achieved in the ordinary course of the processes of the Church.

10. Mr Coote also claimed that an injustice may arise because the identity of the complainant is placed at risk.  The impugned conduct took place within a context and in circumstances which, in themselves, would identify the complainant to many.

11. Finally, it was submitted that the interests of justice would best be served by preserving the privacy of this information in accordance with the expectations of the Church and its members and of those who participated in the process, including Mr Coote and the complainant.

    The Legal Principles

12. The courts have long recognised that there are exceptions to the general principle that the courts should administer justice in public.  As Viscount Haldane LC observed in Scott v Scott:[2]

    … 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 … 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.

    Lord Diplock expressed a similar view in Attorney-General v Leveller Magazine Ltd:[3]

    … since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule.

    [2]    Scott v Scott [1913] AC 417, 437-438.

    [3]    Attorney-General v Leveller Magazine Ltd [1979] AC 440, 450.

13. Recently, the High Court in Hogan v Hinch[4] had occasion to consider the open court principle.  French CJ addressed the topic and reviewed relevant authorities from most common law jurisdictions:[5]

    An essential characteristic of courts is that they sit in public[6].  That principle is a means to an end, and not an end in itself.  Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny[7]. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard[8].  However, it is not absolute[9].

    It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers[10].  This may be done where it is necessary to secure the proper administration of justice[11].  In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could "cause an entire destruction of the whole matter in dispute"[12].  Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence.  In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the "keen public interest in getting blackmailers convicted and sentenced" and the difficulties that may be encountered in getting complainants to come forward "unless they are given this kind of protection."[13]  So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer[14].  The categories of case are not closed, although they will not lightly be extended[15].  Where "exceptional and compelling considerations going to national security" require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified[16].  The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle.  The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was "parental and administrative, and the disposal of controverted questions … an incident only in the jurisdiction."[17]  Proceedings not "in the ordinary course of litigation", such as applications for leave to appeal, can also be determined without a public hearing[18]. 

    It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings[19].

    [4]    Hogan v Hinch (2011) 275 ALR 408.

    [5]    Hogan v Hinch (2011) 275 ALR 408, [20]-[22].

    [6]    Daubney v Cooper (1829) 10 B & C 237 at 240 [109 ER 438 at 440]; Dickason v Dickason (1913) 17 CLR 50; [1913] HCA 77; Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; [1976] HCA 23.

    [7]    Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J.

    [8]    Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [64], 81 [78] per Gummow, Hayne and Crennan JJ; [2006] HCA 44.

    [9]    Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 359 [56] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9, adopting the remarks of Gaudron J in Harris v Caladine (1991) 172 CLR 84 at 150; [1991] HCA 9, referring to "limited exceptions" to the open and public inquiry involved in the exercise of judicial power.

    [10] Inferior courts lack the "inherent jurisdiction" of superior courts, but have analogous implied powers:  Grassby v The Queen (1989) 168 CLR 1 at 15-17 per Dawson J; [1989] HCA 45; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 354 [28] per Spigelman CJ, Handley JA and M W Campbell A-JA agreeing at 368. In federal courts created by statute implied incidental powers also take the place of "inherent jurisdiction": DJL v Central Authority (2000) 201 CLR 226 at 240-241 [25] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 17; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 618-619 per Wilson and Dawson JJ, 623-624 per Deane J, Mason CJ agreeing at 616, 630-631 per Toohey J; [1987] HCA 23.

    [11] John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476‑477 per McHugh JA, Glass JA agreeing at 467.

    [12] Andrew v Raeburn (1874) LR 9 Ch 522 at 523. See also Nagle-Gillman v Christopher (1876) 4 Ch D 173 at 174 per Jessel MR; Mellor v Thompson (1885) 31 Ch D 55; Scott v Scott [1913] AC 417 at 436-437 per Viscount Haldane LC, 443 per Earl of Halsbury, 445 per Earl Loreburn, 450-451 per Lord Atkinson, 482-483 per Lord Shaw of Dunfermline.

    [13] R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] QB 637 at 644 per Lord Widgery CJ, Milmo and Ackner JJ agreeing at 653, referred to with apparent approval in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 452 per Lord Diplock, 458 per Viscount Dilhorne, 471 per Lord Scarman. See also John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 at 141 per Kirby P.

    [14] Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246 per McHugh JA; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 472 per Mahoney JA, 480 per McHugh JA, Glass JA agreeing at 467; John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 at 141 per Kirby P, 159 per Mahoney JA, Hope A-JA agreeing at 169; Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267 at 293 [85]; R v Lodhi (2006) 65 NSWLR 573 at 584 [25]-[26] per McClellan CJ at CL.

    [15] R v Kwok (2005) 64 NSWLR 335 at 340-341 [12]-[14] per Hodgson JA, 343-344 [29]-[31] per Howie J, 345-346 [38]-[39] per Rothman J; Commissioner of Police (NSW) v Nationwide News Pty Ltd (2008) 70 NSWLR 643 at 648 [32]-[38] per Mason P, Ipp JA agreeing at 657, 658 [90]-[91] per Basten J; P v D1 [No 3] [2010] NSWSC 644 at [11]-[20].

    [16] A v Hayden (1984) 156 CLR 532 at 599 per Deane J; [1984] HCA 67; John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 at 141 per Kirby P; R v Lodhi (2006) 65 NSWLR 573 at 584-585 [26] per McClellan CJ at CL; R v Governor of Lewes Prison; Ex parte Doyle [1917] 2 KB 254 at 271-272 per Viscount Reading CJ; Taylor v Attorney-General [1975] 2 NZLR 675.

    [17] Scott v Scott [1913] AC 417 at 437 per Viscount Haldane LC. See also John Fairfax Publications Pty Ltd v Attorney-General(NSW) (2000) 181 ALR 694 at 723 [165] per Meagher JA.

    [18] Coulter v The Queen (1988) 164 CLR 350 at 356 per Mason CJ, Wilson and Brennan JJ; [1988] HCA 3.

    [19] Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450 per Lord Diplock, 459 per Lord Edmund-Davies, 469 per Lord Scarman; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 per Kirby P, 61 per Samuels JA; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 per McHugh JA, Glass JA agreeing at 467; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 43 per Toohey J; [1995] HCA 19; J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 44 per Fitzgerald P and Lee J; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 335 [15] per Gleeson CJ and Gummow J; [2003] HCA 52; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at 353 [20] per Spigelman CJ, Handley JA and M W Campbell A‑JA agreeing at 368.

14. It is to be emphasised that the relevant decision involves a balancing process, to which a number of factors unique to the particular case are to be had regard.  This balancing process was described by Deane J in Australian Broadcasting Commission v Parish in the following way:[20]

    The decision whether an order under s 50 should be made will be the outcome of a balancing process in respect of which there will commonly be room for differences of opinion as to the weight to be attached to particular factors to be placed in the balance and, in the result, as to the precise outcome of the process itself. It is a decision that will ordinarily need to be made in the course and in the atmosphere of the particular proceedings. It will involve an assessment of a multiplicity of factors including the importance which the relevant evidence will play in the actual conduct of the particular proceedings and, in some cases, an assessment of the degree and nature of the publicity which is likely to follow a refusal to make an order. It is a process which may need to be repeated on a number of occasions in the course of particular proceedings in that the perception of the importance of the particular evidence to the result and understanding of the proceedings may vary, as the case proceeds, to an extent that an order for confidentiality which was justified, on balance, at the time it was made can no longer properly be sustained. The decision whether an order should be made under s 50 is a decision as to practice and procedure entrusted to the discretion of the judge hearing the proceedings. …

    [20] Australian Broadcasting Commission v Parish (1980) 43 FLR 129, 158.

15. The Professional Standards Board’s reasons and the reviewer’s reasons have the necessary quality of confidentiality for the purpose of supporting an equity of confidence.  This is relevant to the exercise of the Court’s discretion.

16. In my view there is an equity of confidence in the material sought to be suppressed.  The relevant material is not germane to the issues to be argued and the questions to be determined in this proceeding.  Mr Coote has been brought to Court over questions of the interpretation of Church documents and the jurisdiction of Church disciplinary processes. 

17. The balancing exercise results in the making of the orders for confidentiality.