Lavin v Toppi (No 2)

[2016] FCA 818

FEDERAL COURT OF AUSTRALIA

Lavin v Toppi (No 2) [2016] FCA 818

File number:

NSD 692 of 2016

Judge:

GLEESON J

Date of judgment:

13 July 2016

Catchwords:

PRACTICE AND PROCEDURE – application for non-publication order – whether the order is necessary to prevent prejudice to the proper administration of justice –application refused

Legislation:

Federal Court of Australia Act 1976 (Cth)

Cases cited:

D1 v P1 (No 2) [2012] NSWCA 440

Hogan v The Australian Crime Commission [2009] FCAFC 71; (2009) 177 FCR 205

Date of hearing:

13 July 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Applicant:

Mr GD McDonald

Solicitor for the Applicant:

Gavin Parsons & Associates

Counsel for the Respondents:

Mr M Pesman SC with Mr C Alexander

Solicitor for the Respondents:

Beazley Boorman Lawyers

ORDERS

NSD 692 of 2016

BETWEEN:

DOLORES LAVIN

Applicant

AND:

PAOLA TOPPI

First Respondent

NEIL CUNNINGHAM

Second Respondent

JUDGE:	GLEESON J
DATE OF ORDER:	13 JULY 2016

THE COURT ORDERS THAT:

1.The application for a non-publication order is refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GLEESON J:

1. Mr McDonald, on behalf of the applicant, has proposed short minutes of order by consent which include a non-publication order in respect of most of [29] of the reasons for judgment of Manousaridis J in Paola Toppi & Anor v Dolores Lavin [2016] FCCA 830.

2. The Court’s power to make a non-publication order is contained in s 37AF of the Federal Court of Australia Act 1976 (Cth) (“the Act”). Section 37AF of the Act is as follows:

   (1)The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

   (a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

   (b)       information that relates to a proceeding before the Court and is:

   (i)information that comprises evidence or information about evidence; or

   (ii)information obtained by the process of discovery; or

   (iii)information produced under a subpoena; or

   (iv)information lodged with or filed in the Court.

   (2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

3. It is not clear that this provision includes the power to make a non-publication order in respect of a judgment of the Federal Circuit Court of Australia (“FCCA”). Rather, the power relevantly extends to orders in respect of information that relates to a proceeding before the Court and satisfies one of the criteria in s 37(1)(b)(i) through to (iv). I will proceed on the assumption that this Court can make an order under s 37AF in respect of the information…