Ives v The State of Western Australia [No 2]
[2010] WASC 221
•3 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IVES -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2010] WASC 221
CORAM: LE MIERE J
HEARD: 6 AUGUST 2010
DELIVERED : 3 SEPTEMBER 2010
FILE NO/S: CIV 1069 of 2010
BETWEEN: BENJAMIN WILLIAM IVES
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Defamation - Reasons for decision - Suppression of nonparties and plaintiff - Suppression of defamatory material complained of - Proceedings in open court
Legislation:
Nil
Result:
Plaintiff's application that he be described by his initials is dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr S M Nunn
Solicitors:
Plaintiff: In person
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171; (2008) 38 WAR 125
J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10
Reynolds v Panten (No 1) [1993] WASCA 89; (1999) 23 WAR 215
Scott v Scott [1913] AC 417
TK v Australian Red Cross Society (1989) 1 WAR 335
LE MIERE J: The plaintiff applies by chamber summons for orders that the names of all people referred to in judgments be altered to initials only, that the plaintiff be referred to as 'X' or alternatively 'B' and every other individual be referred to with the initials of their first and last names. The plaintiff also seeks an order that the identity of a certain internet name or alias be suppressed.
Background
In this action the plaintiff seeks relief against the State of Western Australia. The plaintiff complains that he was defamed by statements made by a police officer on 31 December 2009 for which the State is vicariously liable. The plaintiff filed a statement of claim. The defendant applied for orders that the plaintiff's statement of claim be struck out on the grounds that it reveals no reasonable cause of action, is scandalous, frivolous and vexatious and may prejudice, embarrass or delay the fair trial of the action and that the action be dismissed. I received submissions from the parties. To assist the parties in formulating orders to be made in light of my decision I caused a draft of my reasons for decision to be delivered to the parties and informed them of the date and time at which the decision and reasons would be published. Before I published my reasons the plaintiff applied for the orders that the names of people referred to in the judgment be altered to initials only and that the identity referred to be suppressed.
Consolidated practice direction 8.2.1
Consolidated practice direction 8.2.1 is concerned with limitations on publication of identifying information in reasons for decision in fraud and defamation cases. The practice direction does not apply to the publication of reasons for decision to the parties to proceedings. It is limited to the form of reasons for decision published on the court's database and through that database, the internet.
Paragraph 5 of the practice direction provides that where reasons for decision to which the practice direction relates will be published to the parties, a party or other person who has been or may reasonably be expected 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. Paragraph 6 of the practice direction provides that in considering whether to make such an order, the judicial officer must have regard to the fundamental principle of open justice.
The principle of open justice is one of the most fundamental rules of our legal system. It is reflected in a wide range of characteristics of the judicial process. The fundamental rule 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 ALJ 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 practice 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).
In Reynolds v Panten (No 1) [1993] WASCA 89; (1999) 23 WAR 215 Steytler J at [79] said:
While the courts will always do what they can, within the limits of their function, to protect private rights and interests (cf John Fairfax Group v Local Court of NSW (1992) 26 NSWLR 131 and Kelson v Forward (1995) 60 FCR 39 at 43), it will be a rare case in which it can safely be said that a private interest, or even some competing public interest, is such as to override the public interest in knowing what has taken place in a court. As was said by Kirby P in John Fairfax Group v Local Court of NSW (at 142 ‑ 143):
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms …
The court should do what it can to avoid unnecessary harm to a party or other persons by the publication of reasons for judgment. In a defamation case the court should formulate its reasons for judgment in such a way as to avoid unnecessarily repeating the defamatory material of which the plaintiff complains. However, it may be necessary to expose some of the matters of which the plaintiff complains in order to adequately disclose the court's reasoning. The court should avoid unnecessarily identifying non‑parties. I have reviewed my draft reasons for judgment and have made some changes to more fully give effect to these principles. The reasons for judgment do not set out the defamatory words allegedly spoken by Sgt Skehan in any more detail than is reasonably necessary to explain the reasons for the decision.
The plaintiff seeks that he and others be identified only by their initials. The court has inherent jurisdiction to order that a party's name not be published: TK v Australian Red Cross Society (1989) 1 WAR 335; Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171; (2008) 38 WAR 125 [151].
The plaintiff says that if the reasons for judgment are published they will become available to the public on the internet. The plaintiff said that the publication of the reasons for decision is likely to cause him more harm than the original publication of which he complains.
In J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10 Fitzgerald P and Lee J stated the following guidelines:
1.Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.
2.The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court’s decision of practical utility. National security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law.
3.The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
4.No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
5.Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
(a)Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information: cf R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society.
(b) A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
(c)An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed (44 ‑ 45).
The publication of the reasons for judgment on the application in question will not deprive the proceeding of practical utility. Describing the plaintiff by his initials is not necessary to ensure the proceeding is fair. The description of persons to whom the alleged defamations were published by their initials is permissible because they are not directly material to the matters in issue. I have formulated the reasons for judgment so as to avoid identifying those persons. There is no sufficient reason to suppress the name of the plaintiff or to identify him by his initials.
The plaintiff's application that he be described by his initials is dismissed.
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