In the matter of Dymocks Book Arcade Pty Limited (No 2)

[2013] NSWSC 300

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Dymocks Book Arcade Pty Limited (No 2) [2013] NSWSC 300

Hearing dates:

8 February 2013

Decision date:

08 February 2013

Jurisdiction:

Equity Division - Corporations List

Before:

Brereton J

Decision:

Application for suppression order refused

Second defendant to pay plaintiff's costs

Catchwords:

SUPPRESSION ORDERS - Interim -privileged material - where privilege has been waived - whether privileged material in evidence will ground a suppression order

SUPPRESSION ORDERS - Interim - privileged material - where privilege has been waived - whether publication of reasons would prejudice the mind of the trial judge

SUPPRESSION ORDERS - Interim - whether matters cross-examined in open court will ground a suppression order

Legislation Cited:

(NSW) Civil Liability Act 2002
(NSW) Court Suppression and Non-Publication of Orders Act 2010

Category:

Separate question

Parties:

Dymocks Book Arcade Pty Ltd (Plaintiff)
Capral Limited (First Defendant)
Peter Dalton Architects Pty Ltd (Second Defendant)

Representation:

Counsel:
D A Hughes (Plaintiff)
LW Chan (Second Defendant)
Solicitors:
Norton Rose Australia (Plaintiff)
Kennedys (Australasia) Pty Ltd (Second Defendant)

File Number(s):

2009/ 298893-008

Judgment (ex tempore)

1. HIS HONOUR: Yesterday I gave oral reasons for judgment for granting the plaintiff leave to amend its reply by withdrawing an admission that its negligence claim against the second defendant was, for the purposes of the (NSW) Civil Liability Act 2002, an apportionable claim. In the course of that judgment I referred to and summarised aspects of advice that had been given by the second defendant's lawyers to the second defendant, and some communications between the second defendant's lawyers referable to that topic. I was able to do so because that material was in evidence, it having earlier been held by McDougall J, on 12 December, 2012 that privilege had been waved in respect of that material.

1. The second defendant now asks that the written form of my reasons - which I should interpolate have not yet been produced - not be published until after the hearing of the substantive proceedings due to commence later this month. This is said to be an application under the (NSW) Courts Suppression and Non-Publication of Orders Act 2010.

1. However, the second defendant concedes that if, as is possible, it makes an application for leave to reinstate the cross-claim against Mr Wallwork, then my reasons would be relevant and should be available on the hearing of such an application.

1. Such an application, if it is to be made before the substantive trial, will presumably be made at the directions hearing which, as I understand it, is to take place next week. It, therefore, seems to me that if an application is made for leave to amend by rejoining Mr Wallwork my reasons will, in any event, be available and before the judge. If no such application is made, then the views that Ms Golovanoff and others might have had about the merits of a claim against Mr Wallwork at any time would not bear on any remaining issue in the proceedings, and could not possibly prejudice the mind of a tribunal of fact on a question which it simply would not have to decide. It therefore seems to me that there is no scope for publication of these reasons to prejudice the mind of the trial judge.

1. In any event, the trial will be before a judge alone, who is amply capable of realising that one judge's mind might differ from another's and who will, no doubt, make up his Honour's own mind on the topic. That the judgment contains material that is otherwise privileged is beside the point, as it has already been held that privilege has been waived, and on an application for leave to rejoin the cross-defendants, or any of them, the plaintiffs would, presumably, tender not my judgment, which would not be admissible evidence, but the same communications that they tendered before me.

1. Those matters indicate to me that, even without the considerations to which I shall come, a basis for fearing prejudice as a result of the publication of this judgment in a trial before a judge alone is simply not sustainable.

1. Beyond that, the hearing of the motion before me took place in open court. Ms Golovanoff was cross-examined on the communications in question in open court. My judgment was pronounced orally with reasons in open court, effectively for all the world to hear. It is already in the public domain in this sense.

1. For those reasons, it seems to me that a basis for an order suppressing publication of the judgment on an interim basis, or at all, is not made out. Ms Chan has said, articulately and courageously, everything that could be said in support of the application, but there is no basis for it.

1. I refuse the application. I order that the second defendant pay the plaintiff's costs of the appearance today.

**********

Decision last updated: 08 April 2013