Hillier v Martin
[2021] FCA 269
•16 March 2021
FEDERAL COURT OF AUSTRALIA
Hillier v Martin [2021] FCA 269
File number: SAD 113 of 2020 Judgment of: CHARLESWORTH J Date of judgment: 16 March 2021 Date of publication of reasons: 23 March 2021 Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG, 37AH
Federal Court Rules 2011 (Cth) r 7.32
Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 41 Date of hearing: 16 March 2021 Counsel for the Applicant: Mr R Whitington QC with Mr D O’Leary Solicitor for the Applicant: Sykes Bidstrup Counsel for the Respondent: Ms Hamlyn Solicitor for the Respondent: Norman Waterhouse Counsel for the Non-Party Mr T Martin appeared in person ORDERS
SAD 113 of 2020 BETWEEN: JAMES HILLIER
Applicant
AND: VICTORIA MARTIN
Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
16 MARCH 2021
THE COURT ORDERS THAT:
1.The application for a suppression orders made orally by Mr Thomas Martin today is dismissed.
2.There be no orders as to costs in relation to the application by Mr Martin for a suppression order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
On 16 March 2021 I heard an application for a suppression order made by a non-party to these proceedings. The application was made orally and without notice. The application was dismissed for reasons given orally on that day. What follows is a written record of the oral reasons as transcribed, with minor alterations to correct slips or improve expression.
REASONS GIVEN ON 16 MARCH 2021
These proceedings were commenced by originating application filed in the Court on 11 August 2020. The originating application was supported by an affidavit sworn by the applicant, Mr James Hillier, on the same date. The originating application seeks relief in relation to what is alleged to be a joint venture involving participants that include the applicant, Mr Hillier, and his sister, Ms Victoria Martin.
The originating application contained an interlocutory application (in paragraph 2.1) for an order pursuant to r 7.32 of the Federal Court Rules 2011 (Cth) that:
The Respondent be restrained and an injunction be granted restraining the Respondent, whether by herself, her servants or agents or otherwise, until further order from making any payments out of the revenue, funds or assets, or otherwise dealing with the funds or assets, of the entities, trusts or businesses which trade under the Nordburger name or brand (‘the Nordburger business’) except in payment of the expenses of the Nordburger business in the ordinary course of business.
At the time that the proceedings were commenced, I was then sitting as a duty judge for the month of August 2020.
The originating application was accompanied by a letter directed to the District Registrar of the Court in Adelaide. That letter stated that for the reasons set out in the applicant’s supporting affidavit to the interlocutory application contained in the originating application, it was requested that the application be heard urgently. The letter then specifically referred to a paragraph of the affidavit of Mr Hillier which was said to support the application for urgent relief. The affidavit of Mr Hillier was read in open court on 17 September 2020.
The matter has been the subject of case management orders with a view to progressing the substantive dispute to trial.
It forms a part of the applicant’s case that the respondent’s husband, Mr Thomas Martin, has been involved in the conduct of the business forming the subject matter of the proceedings. The supporting affidavit of Mr Hillier sworn on 11 August 2020 contains serious allegations against Mr Martin. They are contained in [85] and [86], and some context is given to them in [9]. Paragraph 8 of the affidavit alleges that Mr Martin was previously a partner of a law firm until about mid-2016 when that partnership was terminated. Paragraph 9 alleges that to the best of Mr Hillier’s knowledge and belief, Mr Martin had not been gainfully employed since his partnership was terminated by that law firm. Paragraphs 85 and 86 allege as follows:
85I am aware that Mr Martin has been involved in long running, hotly contested litigation in this Court and that there are a number of adverse costs orders against him in relation to those proceedings.
86I hold grave concerns that the Nordburger joint venture funds and profits have been and will continue to be dissipated as a result of Mr Martin’s litigation in this Court given that, to the best of my knowledge and belief, Mr Martin has not been gainfully employed since about July 2016 and, to the best of my knowledge and belief, Mr Martin’s only source of income is through the Respondent.
Other parts of the affidavit refer to attempts made by Mr Hillier to obtain financial records of the business so that he could obtain information about the financial performance of the business and the distribution, if any, of its profits. The allegations made against Mr Martin in those paragraphs are particularly serious given his status as a legal practitioner.
On 27 August 2020 the respondent filed in the proceedings an affidavit sworn by Mr Martin of the same date. In that affidavit, Mr Martin responded to the allegations made against him by Mr Hillier. At [10] after setting out some background, Mr Martin deposed that at no stage in relation to the proceedings in the Federal Court had he utilised funds and profits from the Nordburger business in order to satisfy any adverse costs orders made against him or, for that matter, in order to pay any fees incurred with his legal advisers. He also disputed the assertion that he had not been gainfully employed since July 2016. He stated that he had not been given any notice of the allegations that were made against him prior to these proceedings being filed.
The matter was set down for a case management hearing today. At the commencement of the hearing, Mr Martin sought to be heard in relation to an application that he wanted to make for a suppression order. The Court deferred hearing submissions in relation to that question until matters relevant to the orderly progression of the matter to trial had been dealt with.
Mr Martin makes an application for a suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground specified in s 37AG(1)(a), namely, that the order is necessary to prevent prejudice to the proper administration of justice.
The material sought to be suppressed is that appearing at [9], [85] and [86] of the affidavit of Mr Hillier and also, as I understand it, the content of the letter directed to the Registrar dated 11 August 2020.
I deal first with the letter to the Registrar. It is not established and nor is it the Court’s recollection that the letter of 11 August 2020 was read in open court such that it would be able to be accessed as a matter of right by any member of the public. I will nonetheless consider the letter collectively with the allegations in the affidavit and ask whether or not a suppression order should be made in respect of it in any event. The letter, in effect, repeats the serious allegation at [86] of the affidavit and makes plain that it was that allegation that formed the basis of the assertion that the application for interim relief or interlocutory relief ought to be set down and heard urgently.
The Court has had a number of hearings in relation to the application for interlocutory relief. At the very first of those hearings, the Court asked counsel for Mr Hillier to make submissions in support of the allegation that the claim for interlocutory relief was so urgent that it ought be set down for hearing in such a short timeframe as that sought by Mr Hillier. There was an exchange of submissions and in arguendo exchanges with the bench as to whether or not there was a sufficient basis made good in the affidavit of Mr Hillier to justify such an urgent hearing. The Court was not satisfied that the application for interim relief was so urgent so as to justify the claim for interlocutory relief and certainly not to justify the claim for interlocutory relief to proceed on an ex parte basis.
At a subsequent hearing, the affidavit of Mr Martin was read in open court, as was a second affidavit of Mr Hillier which was responsive to Mr Martin’s affidavit.
Mr Martin is a person who has standing to make an application for a suppression order under s 37AH of the Act in that he is a person considered by the Court to have sufficient interest in the making of the order within the meaning of s 37AH(1)(b). The procedure for making a suppression order includes that in s 37AH(2). It provides that:
Each of the following persons is entitled to appear and be heard by the Court on an application for a suppression order or non-publication order:
(a)the applicant for the order;
(b)a party to the proceedings concerned;
(c)the Government (or an agency of the Government) of the Commonwealth or a State or Territory;
(d)a news publisher;
(e)any other person who, in the Court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.
Subsection (3) provides that:
A suppression order or non-publication order may be made at any time during a proceeding or after a proceeding has concluded.
It was submitted on behalf of counsel for the applicant that the procedure under subs (2) had not been followed in that persons identified as entitled to be heard had not been given notice of the application. I am not persuaded that the provision of notice to the persons identified in subs (2) is an essential precondition to the exercise of power, but I will return to that question in due course.
Section 37AE is titled “Safeguarding public interest in open justice”. It provides:
In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
The phrase “suppression order” is defined under s 37AA to mean:
… an order that prohibits or restricts the disclosure of information (by publication or otherwise).
The word “publish” is defined in s 37AA to mean:
… disseminate or provide access to the public or a section of the public by any means, including by:
(a) publication in a book, newspaper, magazine or other written publication; or
(b) broadcast by radio or television; or
(c) public exhibition; or
(d) broadcast or publication by means of the internet.
It may be accepted that the affidavit of Mr Hillier having been read in open court is a document to which the public already has access. Having been read in open court, it is a document that may be lawfully published, subject, however, to the general law which includes the general law in relation to defamation. Both at common law and in accordance with the Defamation Act 2005 (SA), there exists a defence to the publication of matters relating to court proceedings. That defence is only made out if what is published is a fair report of the proceedings.
At common law, there is otherwise an absolute privilege defence in relation to matters said, for example, in the course of a court proceeding. I refer more generally to the body of common law which is preserved under the Defamation Act which would protect the statement made by Mr Hillier from a suit in defamation by providing a defence of absolute privilege in respect of it.
Mr Martin’s application for the suppression order has a number of bases. Principally, as stated in his affidavit, he alleges that the allegations made against him are untrue. Further, he alleges that the allegations as stated in the affidavit of Mr Hillier were made without factual foundation either at large or in the sense that the foundation for the allegation is not contained in the affidavit itself. He submits that the making of the allegation, the filing of the affidavit in the Court and reliance on the affidavit in support of the contention that the claim for interlocutory relief should be heard urgently together constitute an abuse of the Court’s processes. He also alleges that the instructing solicitor for the applicant and senior counsel for the applicant have (by causing the affidavit to be filed and read) acted in contravention of their duties as legal practitioners arising out of the Australian Solicitors’ Conduct Rules.
Mr Martin further alleges that the material contained in the affidavit was inadmissible as hearsay or as opinion. In relation to the hearsay submission, Mr Martin submitted that the admissibility of the allegation depended upon there being a proper foundation stated for it in the affidavit itself. Mr Martin complains that he was not provided with any notice that the allegation would be made against him before it was, in fact, made. He also submits that Mr Hillier in a second and responsive affidavit has misled the Court on the subject of whether or not advance notice was given of the particular allegations that are the subject of the suppression order. Mr Martin further submits that the conduct of at least Mr Hillier may amount to a contempt of court.
As has been mentioned, the affidavits to which I have referred have been read in open court. That occurred some six months ago. Mr Martin submits that the delay in bringing the present application is explained by his concern that the substantive subject matter of the proceedings as between Mr Hillier and his sister, Ms Martin, has become the subject of media attention, including a newspaper article published in January.
Mr Hillier’s application for interlocutory relief has not been substantively determined in the proceedings, nor has it been formally abandoned. The reason for that is, in part, because of the urging of the Court itself to have the matter proceed in an expeditious way to a trial of the substantive allegations. The Court has not considered the application for interlocutory relief made on behalf of the applicant to be attended with sufficient urgency. Whether or not the proceedings were attended with sufficient urgency and whether or not the affidavit evidence was sufficient to justify such a course was the subject of submissions inter partes. In relation to those hearings, I am satisfied that Mr Martin was aware of the allegations that had been made against him by Mr Hillier and aware of the emphasis that was placed on those allegations in support of the urgency contention.
The hearings in relation to the urgency contention and applications for interlocutory relief in the early stages of the proceedings were conducted by way of web conference on a Teams platform. Whether or not members of the public accessed that hearing, as they were entitled to do, is unknown to the Court. Whether or not any member of the public or any member of the media has accessed the affidavit of Mr Hillier is also unknown to the Court.
The principal basis for the application for the suppression order is to ensure that the affidavit of Mr Hillier does not cause damage or further damage to the reputation of Mr Martin especially in connection with his status as an admitted legal practitioner. Mr Martin expressed concern that should he wish to return to practice, the existence of the allegation of itself may be prejudicial to him. More generally, however, Mr Martin submits that to allow the allegation to remain on the Court record and absent any suppression order in respect of it, the applicant’s reliance on the allegation would bring the administration of justice in this Court into disrepute. I will deal with each of those submissions in turn.
Any fair report of these proceedings that made reference to the allegation or the matters at [9], [85] and [86] of the affidavit of Mr Hillier sworn on 11 August must necessarily include the material upon which the respondent relied in vigorously disputing the allegation and also the affidavit material and submissions to the effect that the allegation was scurrilous and utterly without foundation.
Members of the public and members of the media do not themselves enjoy an absolute privilege in relation to the repetition of allegations made in court proceedings. Accordingly, I do not consider that the protection of Mr Martin’s reputation whether in his capacity as a legal practitioner or otherwise of itself forms a sufficient basis to make a suppression order.
In so concluding, I have regard to the principal consideration contained in s 37AE of the Act, to safeguard the public interest in open justice. To the extent that there is any risk that Mr Martin’s reputation might be harmed by an unfair report of the legal proceedings, I consider that to be a risk that arises in any case in which allegations are made by one person against another. I consider the public interest in open justice to be a weighty consideration. In the present case, it includes the public interest in publishing reports of proceedings of the very kind that are brought today by Mr Martin. It extends to publishing the content of his affidavit, in which counter-allegations are made.
The Court has made no finding in relation to the allegations made by Mr Martin. I accept the submission that the factual bases for the allegations made against him were not only insufficient to justify an urgent hearing to proceed, but were weak and, I consider, fundamentally so. However, I do not consider the allegation against Mr Martin to have been the only premise upon which the application for interlocutory relief was made, even though it was a premise upon which significant emphasis was placed. The other premise for the application was the unsuccessful attempts that had been made by Mr Hillier to obtain financial information about the conduct of a business that counsel for Ms Martin acknowledged Mr Hillier had some interest in.
There is a distinction to be drawn between admissibility of hearsay evidence which may turn on sufficiency of a factual basis stated in the affidavit itself. Evidence may be ruled inadmissible if there appears to be insufficient factual foundation for it. I consider it was open to the respondent to press for a ruling that the affidavit of Mr Hillier (or at least the serious allegations contained in it) not be admitted in evidence on the basis that they were inadmissible. That was not the course taken by the respondent, who it is to be recalled is Mr Martin’s wife. I consider it was open to Mr Martin at the earlier hearings to seek an audience in relation to the allegations made in the affidavit, including for the purposes of seeking a suppression order and for the purposes of seeking orders, as he has done today, striking out the allegations as constituting or manifesting an abuse of the Court’s processes. Instead, Mr Martin deposed to an affidavit in which he disputed the allegations and complained of the absence of a proper foundation for them.
I do not propose to draw any final conclusion as to whether or not the filing of the affidavit of Mr Hillier or the making of submissions in relation to that affidavit constitute such a serious abuse of the Court’s processes that the material should be removed from the Court record. The application made by Mr Martin at the commencement of this hearing was one for a suppression order under s 37AF of the Act.
In my view, the consideration of the public interest in open justice is not safeguarded by prohibiting any publication at all of a fair report of the proceedings, which include the allegations of Mr Martin made in his own affidavit.
To the extent that it is submitted that the administration of justice is brought into disrepute by the making of the allegations, again, I consider that Mr Martin is a participant in the proceedings in the sense that he has willingly given evidence in support of the respondent’s case and in doing so has countered the allegations made against him and strenuously so.
Turning then to the letter of 11 August 2020, I do not consider the letter to have been admitted in evidence in open court. Whether it forms a part of the Court record in the strict sense is not necessary to decide. I do not consider the letter to be a document to which the public is entitled to have access without the leave of the Court. In respect of any alleged damage to Mr Martin’s reputation arising from the letter, his remedies may ultimately depend upon whether there exists a defence of absolute privilege in connection with the letter about which I make no finding. I have otherwise accepted Mr Martin’s submission that the allegations of Mr Hillier contained in the affidavit were relied upon as a basis for the application for urgent relief.
As to the allegations of professional misconduct directed against legal practitioners representing the applicant in the proceedings, I do not consider that to be a matter that is appropriate to be tried on an oral application for a suppression order made without notice to the practitioners concerned.
In summary, in proceedings in this Court, documents are filed and read in open court, physical exhibits are admitted in evidence, oral testimony is adduced and invariably in the multitude of actions allegations are made that, if accepted and published without qualification, are harmful to the reputation of non-parties. The interests of non-parties are protected by the laws of defamation that do not afford a defence to a publisher who publishes anything other than a fair report of the proceedings. Any person publishing a report in relation to this matter that includes the allegations made by Mr Hillier against Mr Martin are obliged to include in such a report Mr Martin’s response to the allegation, including the responses he has made to the allegation in open court today.
In relation to any other factors or circumstances relied upon by Mr Martin, I once again emphasise my conclusion that a primary objective of the administration of justice is to safeguard the primary interest in open justice. My refusal to grant the suppression order is founded on that objective outweighing the other substantive matters raised by Mr Martin, however serious they may be.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 16 March 2021
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