Lee v Di Carlo

Case [2023] QDC 199

DISTRICT COURT OF QUEENSLAND

CITATION:

Lee v Di Carlo [2023] QDC 199

PARTIES:

CHOONHWA LEE
(plaintiff/respondent)
v
SALVATORE DI CARLO

(defendant/applicant)

FILE NO:

BD No 726 of 2021

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Date of Order: 23 October 2023
Date of Publication of Reasons: 3 November 2023

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

23 October 2023

JUDGE:

Sheridan DCJ

ORDER:

The application filed 18 October 2023 is refused.

CATCHWORDS:

COURTS AND JUDGES – COURTS – OTHER MATTERS – OTHER PARTICULAR MATTERS – where defendant in a civil trial is facing criminal charges – where defendant applies for an order prohibiting the publication of evidence and outcome in respect of civil trial and related proceedings – whether non-publication order necessary in the interests of justice or the public interest
LEGISLATION:

District Court Act 1967 (Qld), s 69, s 126

CASES:

Emanate Legal Services Pty Ltd v Hood (2021) 7 QR 575
Ex parte The Queensland Law Society Incorporated [1984] 1 Qd R 166
Hogan v Hinch (2011) 243 CLR  506
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221
Russell v Russell (1976) 134 CLR 495

COUNSEL:

P G Jeffrey for the plaintiff/respondent

M J Jackson for the defendant/applicant

SOLICITORS:

Aitken Whyte Lawyers for the plaintiff/respondent

NR Barbi Solicitors for the defendant/applicant

Introduction

  1. The defendant seeks an order from the court prohibiting the publication of any evidence given in these proceedings and of the outcome of the proceedings until criminal proceedings against him are finalised.

  2. The application was heard on the first day of the trial, prior to the commencement of the trial. On that day, I refused to make the order and indicated I would provide my reasons at a later time.  These are my reasons.

    Background

  3. The plaintiff’s claim is for $240,000 said to have been monies loaned by the plaintiff to the defendant at the defendant’s request.  The total amount loaned is said to be $290,000, paid in various amounts between on or about 2 April 2015 and on or about 23 December 2015.  The terms of the loan are said to have been varied from time to time with the plaintiff accepting that the defendant had repaid an amount of $50,000 and had paid an amount of $20,000 by way of interest on the loan.  The defendant denies he owes any debt to the plaintiff.

  4. The defendant is awaiting two separate criminal jury trials in the District Court.

    Contentions

  5. In written submissions filed on behalf of the defendant, it was submitted that parts of the evidence in the civil proceedings are inflammatory and, whilst not relevant to the criminal proceedings, would prejudice (if published) the defendant’s right to a fair trial.  In oral submissions, it was conceded by counsel that it was not the evidence in the civil proceedings that was likely to be inflammatory but rather, it was submitted, there was a real possibility of any reporting on the civil trial being inflammatory. 

  6. In support…

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Details
AGLC
Lee v Di Carlo [2023] QDC 199
Case
[2023] QDC 199
Decision Date

CaseChat Overview and Summary

In the matter of Lee v Di Carlo, the defendant sought an order prohibiting the publication of evidence and the outcome of the civil trial, which concerns a debt claim for $240,000. The defendant, who is also facing separate criminal charges, argued that inflammatory content in any publication could prejudice his right to a fair trial. The application was made on the first day of the civil trial before any proceedings had commenced. The court considered the defendant's submissions that prior media coverage could unfairly influence jurors in his upcoming criminal trials. However, the court noted that the civil proceedings were unrelated to the criminal charges, and any potential prejudice was speculative given the significant time gap until the criminal trials were scheduled to commence.

The court examined whether the principle of open justice could be overridden in this case, recognising that such orders are only made in exceptional circumstances. The court found no clear nexus between the civil and criminal proceedings, and the potential for prejudice was not sufficiently immediate or certain to warrant a non-publication order. The court also highlighted the importance of maintaining public confidence in the justice system by adhering to the principle of open justice unless compelling reasons dictate otherwise.

Based on the evidence presented, the court concluded that there was no substantial risk that publication of the civil trial evidence or outcome would unfairly prejudice the defendant's criminal trials. The application was therefore refused, and the court allowed the civil proceedings to continue without restrictions on publication.

The court's final order was that the application filed on 18 October 2023 was refused, permitting the civil proceedings to proceed with no non-publication order in place.

Orders

Orders of the court

The application filed 18 October 2023 is refused.

Background

Background to the litigation

The application was heard on the first day of the trial, prior to the commencement of the trial. On that day, I refused to make the order and indicated I would provide my reasons at a later time. These are my reasons.Background The plaintiff’s claim is for $240,000 said to have been monies loaned by the plaintiff to the defendant at the defendant’s request. The total amount loaned is said to be $290,000, paid in various amounts between on or about 2 April 2015 and on or about 23 December 2015. The terms of the loan are said to have been varied from time to time with the plaintiff accepting that the defendant had repaid an amount of $50,000 and had paid an amount of $20,000 by way of interest on the loan. The defendant denies he owes any debt to the plaintiff. The defendant is awaiting two separate criminal jury trials in the District Court.Contentions In written submissions filed on behalf of the defendant, it was submitted that parts of the evidence in the civil proceedings are inflammatory and, whilst not relevant to the criminal proceedings, would prejudice (if published) the defendant’s right to a fair trial. In oral submissions, it was conceded by counsel that it was not the evidence in the civil proceedings that was likely to be inflammatory but rather, it was submitted, there was a real possibility of any reporting on the civil trial being inflammatory. In support of this submission, reliance was placed upon an annexure to the affidavit of the solicitor for the defendant of an article published in the Courier Mail on 11 August 2023 titled, “Paul Pisasale’s madam Choonhwa ‘Pam’ Lee suing ‘sick’ barrister Di Carlo for $240k loan.” The article appeared in the Courier Mail following an adjournment of the civil trial in July 2023. The article described Ms Lee as a “brothel madam” and referred to the fact of Ms Lee having been convicted of a charge of conducting unlawful prostitution between November 2015 and December 2017 from premises on Stanley Street, East Brisbane. Ms Lee referred to in the article is one and the same person as the plaintiff in the civil proceedings brought against the defendant. The article referred to there being a connection between the applicant and Paul Pisasale. It was said that the defendant was the “barrister awaiting trial on a corruption charge related to ex-mayor Paul Pisasale.” In making submissions, counsel acknowledged that there was no express power of the District Court to make a non-publication order but referred to s 69(1)(b) of the District Court Act 1967 (Qld). Section 69(1)(b) provides that:“69Powers of District Court (1) Subject to this Act and to the rules of court, the District Court has, for the purposes of exercising the jurisdiction conferred by this part, all the powers and authorities of the Supreme Court, including the powers and authorities conferred on the Supreme Court by an Act, and may in any proceeding in like manner and to like extent – …(b) make any order, including an order for attachment or committal in consequence of disobedience to an order; and”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Counsel for the plaintiff submitted there was no nexus between the present proceedings and the criminal proceedings and the evidence in the civil trial will speak only of the defendant’s failure to repay the debt.Consideration It is appropriate to determine the application on the basis that this court has power to prohibit publication of its proceedings conducted in open court but that such a power is limited to the regulation of its own proceedings for the purpose of administrating justice, and hence will only be exercised in exceptional cases.[2][2]Ex parte The Queensland Law Society Incorporated [1984] 1 Qd R 166, 170; quoted with implicit approval by French CJ in Hogan v Hinch (2011) 243 CLR 506, 533; and see Emanate Legal Services Pty Ltd v Hood (2021) 7 QR 575, 589. The rationale for the principle of open justice is that “exposure of court proceedings to public scrutiny is essential for the maintenance of confidence in the integrity and independence of the courts.”[3][3]Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221, [33]. I accept as relevant the factors referred to by counsel for the defendant; each of those factors having been identified by McPherson J in Ex parte The Queensland Law Society Incorporated.[4][4][1984] 1 Qd R 166. In reliance on the article published in the Courier Mail, the focus of the submissions on behalf of the defendant was on the likely content of further articles and the possibility of that content arousing jurors’ emotions unfairly against the defendant. The difficulty for the defendant is that there is no connection between the evidence in the civil proceedings and the criminal proceedings. The article does not suggest otherwise. Rather it is the headline of the article which attempted to draw an association between the plaintiff, the defendant and a third party, Mr Pisasale. The full text of the article makes it clear the suit between the plaintiff and the defendant is a debt claim and does not involve Mr Pisasale. Whilst there appear to have been a number of articles regarding the previous criminal proceedings, in respect of which the defendant is waiting a re-trial, in the affidavit of Mr Hunt there is only the one article making any reference to the civil proceedings. The affidavit of Mr Hunt deposed to the fact that there is as yet no date for the re-trial and that there are in fact to be two pre-trial applications, one of which is not until May 2024. In oral submissions, counsel accepted that any re-trial would not be before June 2024. Even if a further article were to be published regarding the civil proceedings currently before the court, it is hard to imagine that such an article would impact a jury in a criminal trial to be held not before June next year. In all the circumstances, I am not satisfied that the interests of justice or the public interest requires the making of a non-publication order in relation to the evidence in or the outcome of the civil proceedings.