Legal Profession Conduct Commissioner v Belperio (No 2)

[2024] SASCA 133

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

LEGAL PROFESSION CONDUCT COMMISSIONER v BELPERIO (No 2)

[2024] SASCA 133

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and
the Honourable Justice Stein)

22 November 2024

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - OTHER MATTERS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - FILING DOCUMENTS AND ACCESS THERETO

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - OTHER MATTERS

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - CONTROL OF COURT PROCEDURE

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - OTHER MATTERS - DEFINITIONS - OTHER WORDS OR PHRASES

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA

These were multitudinous applications brought by the Respondent for: a suppression order; an order preserving and continuing the anonym of ‘A Practitioner’; an order restricting materials filed in the matter on a party-access basis; and an order variously redacting and withholding certain materials filed in the matter from members of the public.

Following publication of the Court’s reasons for upholding an appeal from an order of the Legal Practitioners Disciplinary Tribunal, summarily dismissing a charge of professional misconduct against the Respondent by reason of a purported lack of jurisdiction (Legal Profession Conduct Commissioner v A Practitioner [2024] SASCA 102), the Respondent variously applied for: an order suppressing publication of his identity as the practitioner so charged; orders preserving and continuing the Respondent’s anonym in the Court’s cause list and restricting materials filed in the matter on a party-access basis; and an order that certain materials filed be redacted so as to de-identify the Respondent and withheld from members of the public, who might otherwise apply for access thereto under s 131 of the Supreme Court Act 1935 (SA). Similar orders were sought in respect of materials filed in a simultaneously instituted application for judicial review. Those applications were opposed.

The bases from which the Respondent pressed his application for a suppression order consisted, primarily, of the anticipated damage to his personal and professional reputation, as well as to his mental health, should he be publicly identified as ‘A Practitioner’. The Respondent also contended that, in circumstances where his wife might be called to give evidence before the Tribunal hearing of the substantive allegations against him, the publication of his identity would cause her, and the couple’s children, undue hardship, within the meaning of s 69A(1)(b) of the Evidence Act 1929 (SA). The Respondent relied on substantively the same grounds in pressing his ancillary applications for restrictions and redactions of materials filed in the instant and judicial review proceedings. The Respondent further contended, to this end, that such restrictive or redactive orders ought to be made with respect to materials filed, and recordings of submissions made, in closed court.

For his part, the Appellant contended, generally, that: the suppression order sought by the Respondent was impermissibly designed to protect the Respondent’s personal interest in his reputation, rather than to prevent prejudice to the proper administration of justice; the suppression order was, in any event, unsupported by reliable and credible evidence as to the impact publicity would occasion on the Respondent’s mental health and ability to defend the charge before the Tribunal; there was a lack of demonstrable undue hardship that would be suffered by the Respondent’s wife if the allegations levied against her husband were to be made public; and the ancillary orders sought to restrict and redact certain materials were inconsistent with the right of access conferred by s 131 of the Supreme Court Act 1935 (SA). The appellant further contended that the Court ought accordingly to vacate certain interim suppression orders, an anonymisation order, and orders restricting access to materials filed in the matter. Those contentions were broadly echoed by the Interested Party and the Intervenor.

Held, by Kourakis CJ, Bleby JA and Stein AJA agreeing, dismissing the Respondent’s applications:

1.The preservation of a person’s personal or professional reputation is a consideration exogenous to the determination of whether it is appropriate to grant a suppression order pursuant to s 69A of the Evidence Act 1929 (SA) or necessary otherwise to close the Court to the public.

Consideration of the nature, characteristics, and incidents of the principle of open justice.

Further held, by Kourakis CJ, Bleby JA and Stein AJA agreeing:

2.The primary reason for the application of s 69(1) of the Evidence Act 1929 (SA) is to facilitate the administration of justice by ensuring that a witness is not burdened by giving an account of embarrassing or humiliating events in a courtroom full of strangers. The power conferred by that subsection should not be used for a collateral purpose which undermines access to, and publication of court hearings, when to do so would neither prejudice the administration of justice nor cause undue hardship to a victim, witness or child.

3.For the purposes of s 69A(1)(b) of the Evidence Act 1929 (SA), undue hardship requires an evaluative judgment that the hardship that will be endured by a person is greater than that suffered in the generality of cases. That judgment requires close attention to the nature of the witness’ testimony and any peculiar circumstances of the witness affecting that hardship.

4.It was not established on the evidence adduced by the Respondent that there was an appreciable risk that the Respondent’s mental ability to defend himself would be comprised, nor that the Respondent’s wife and children would suffer any hardship over and above that which is a necessary and common incident of the open justice principle, were he publicly to be identified as ‘A Practitioner’. In relation to the Respondent’s wife, as distressing as it might be facing her professional colleagues and acquaintances, hardship of that kind is an inherent consequence of the charging of a person with allegations of criminal or professional misconduct that must be tried by a court or tribunal in due course.

5.In making a judgment on whether there is good reason to depart from the open justice principle, the extent to which the relevant information is in the public domain is a pertinent consideration. To this end, the effect of the publication, and tabling, of the Respondent’s name in the Tribunal’s annual report to Parliament was that the Respondent had already been publicly identified as the barrister the subject of the disciplinary proceedings.

6.The failure of an application for a suppression order leaves little latitude for the making of other orders shielding the proceedings from public scrutiny in order to deny members of the public, and the news media, access to the information in the records of the Court which they would then be free to disseminate publicly.

7.For the purposes of s 131(1)(aa) of the Supreme Court Act 1935 (SA), the term ‘process’ encompasses the writ originating an action; summons, or other instrument of complaint, even before issue is joined; pleadings; interlocutory applications filed by the parties; interlocutory orders made; and processes issued by the Court.

8.The Respondent’s application to uplift and redact the charge the subject of the disciplinary proceedings, notwithstanding that it had been relied upon in open court on the hearing of the substantive appeal, was fundamentally at odds with the plain text and context of, and statutory purpose underpinning, s 131(1) of the Supreme Court Act 1935 (SA).

9.Rule 32.2 of the Uniform Civil Rules 2020 (SA) must be read down to conform with s 131 of the Supreme Court Act 1935 (SA) in two respects. First, an order restricting materials filed in proceedings on a party-access basis only cannot remove a document which falls within the meaning of a ‘process’ of the Court from the scope of s 131(1)(aa) of the Act. Secondly, such an order cannot apply to a filed document of any kind which is subsequently received in open court, even on an interlocutory application.

Consideration of the procedures by which commercially confidential documents or other publicly sensitive materials might be treated.

Further held, by Kourakis CJ, Bleby JA and Stein AJA agreeing:

10.The power conferred by s 84A of the Legal Practitioners Act 1981 (SA) to hold an inquiry, or part of it, in private is not concerned with the laying of the charge or with the filing of any other documents or the correspondence the Tribunal may receive about an inquiry. It is the inquiry which may be conducted in private. Nor does the power, by implication, extend to the making of a non-publication order. In particular, it does not prohibit the publication of information concerning the complaint which might have been obtained from sources other than by being present in the hearing room in which the Tribunal undertook the inquiry.

Further held, by Bleby JA and Stein AJA:

11.For the purposes of s 131(1)(aa) of the Supreme Court Act 1935 (SA), the term ‘process’ does not encompass affidavits filed in proceedings, even where such affidavits define the controversy in place of pleadings. Notwithstanding that affidavits filed within the contemplation of certain civil procedure rules may go some way to setting the parameters of a controversy, any such affidavits are to be characterised as ‘material’ within the meaning of s 131(2) and not a ‘process’ within the meaning of s 131(1)(aa).

Consideration of the accessibility of evidentiary material tendered at trial or at hearing and status of documentary material transmitted to the Supreme Court under r 214.3 of the Uniform Civil Rules 2020 (SA).

Further held, by Kourakis CJ:

12.Any document filed in Court which defines or delimits the controversy, or amends the scope of the controversy, as well as interlocutory applications, are processes related to proceedings within the meaning of s 131(1)(aa) of the Supreme Court Act 1935 (SA).

District Court Act 1991 (SA) s 54; Evidence Act 1929 (SA) ss 68, 69, 69A, 70(1), 71A; Evidence Act Amendment Act 1979 (SA) s 12; Evidence Act Amendment Act (No 3) 1984 (SA) s 4; Evidence Act Amendment Act 1989 (SA); Family Law Act 1975 (Cth) s 121; Inheritance (Family Provision) Act 1972 (SA); Law Society Act 1915 (SA) ss 19(1), 21, 22, 23, 31; Legal Practitioners Act 1936 (SA); Legal Practitioners Act 1981 (SA) ss 68(2), 69(b), 70(6), 72, 78, 82, 84(3), 84A, 89C, 90A; Legal Practitioners Disciplinary Tribunal Rules rr 4, 9, 11; Legal Practitioners (Miscellaneous) Amendment Act 1996 (SA); Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA); Legislation Interpretation Act 2021 (SA) s 19(1); Magistrates Court Act 1991 (SA) s 51; Matrimonial Causes Act 1857, 20 & 21 Vict, c 85, ss 22, 57; Open Courts Act 2013 (Vic) ss 17, 18; Statutes Amendment (Attorney-General’s Portfolio) Act 1996 (SA); Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 28; Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA) s 14; Statutes Amendment (Courts) Act 1993 (SA); Statutes Amendment (Courts) Act 1995 (SA) s 23; Statutes Repeal and Amendment (Courts) Act 1991 (SA) s 9(h); Supreme Court Act 1935 (SA) ss 45, 46A, 72, 131; Uniform Civil Rules 2020 (SA) rr 12.1(2), 15.3, 32.2, 74.2, 74.10, 214.3, 217.5, 256.4, referred to.

A County Council v W (Disclosure) [1991] 1 FLR 574; A-G v Leveller Magazine Ltd [1979] AC 440; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; Carr v Western Australia (2007) 232 CLR 138; Chamberlain v Law Society of Australian Capital Territory (1993) 43 FCR 148; Channel Nine SA Pty Ltd v Police (2014) 119 SASR 447; Dickason v Dickason (1913) 17 CLR 50; DPP (Vic) v Smith [2023] VSCA 293; E v SE [2007] SASC 198; East Rockingham RRF Project Co Pty Ltd v Acciona Construction Australia Pty Ltd [2024] FCA 759; Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475; General Television Corp Pty Ltd v DPP (Vic) (2008) 19 VR 68; Hogan v Hinch (2011) 243 CLR 506; HT v The Queen (2019) 269 CLR 403; J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Legal Services Commission v JXL [2023] QSC 283; McPherson v McPherson [1936] AC 177; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; Newcrest Mining Ltd v Santos WA Northwest Pty Ltd (No 2) [2022] WASC 410; Packer v Police (2007) 247 LSJS 410; R v Kwok (2005) 64 NSWLR 335; Reynolds v Panten (1999) 23 WAR 215; Roylance v General Medical Council (No 2) [2000] 1 AC 311; Russell v Russell (1976) 134 CLR 495; Samuels (a Pseudonym) v The King [2024] SASCA 50; Scott v Scott [1913] AC 417; WEQ (a Pseudonym) v Medical Board of Australia (2021) 69 VR 1; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 22) [2023] WASC 285; Zhang v Age Co Pty Ltd [2023] ACTCA 10, applied.
Re a Practitioner of the Supreme Court [1970] SASR 199, distinguished.
Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; Ex parte Pratt; Re P V M’Culloch (1889) 6 WN (NSW) 31; G v The Queen (1984) 35 SASR 349; Jackson v Johnson (2010) 269 LSJS 296; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; Legal Profession Conduct Commissioner v A Practitioner (No 2) (2017) 128 SASR 444; R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Bro Ltd (1998) 8 Tas R 283; R v Keogh [2013] SASCFC 74; Re (Attorney) (1860) 2 LT Rep (NS) 432; Re a Gentleman, One (1897) 13 WN (NSW) 229; Re Charles Wood Readett (1888) 5 WN (NSW) 20; Re Legal Practitioners Ordinance 1970; Ex parte Law Society (ACT); Re Giles (1985) 61 ACTR 1; Scott v Scott [1912] P 4; Scott v Scott [1912] P 241, discussed.

Chambers v James Cook University (No 2) (1995) 61 IR 145; Craig v Medical Board of South Australia (2001) 79 SASR 545; ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782; Hospital v T [2015] QSC 185; House v The King (1936) 55 CLR 499; Kearney v Amirbeaggi [2022] NSWSC 805; Marin v Chiropractic Board of Australia [2020] SASCFC 74; Nest & Nest (No 2) [2014] FamCA 269; Porter v Australian Broadcasting Corporation [2021] FCA 863; R v Hermes; Ex parte V [1963] SASR 81; Roberts v Prendergast [2014] 1 Qd R 357; Rush v Nationwide News Pty Ltd (2018) 359 ALR 473; Zollo v Commissioner of Consumer Affairs [2020] SASCFC 118, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER
v BELPERIO (No 2)

[2024] SASCA 133

Court of Appeal – Civil:  Kourakis CJ, Bleby JA and Stein AJA

1. KOURAKIS CJ:   On 22 August 2024, this Court delivered its judgment allowing an appeal brought by the Legal Profession Conduct Commissioner (“the Commissioner”) against a decision of the Legal Practitioners Disciplinary Tribunal (“the Tribunal”), summarily dismissing a charge of professional misconduct which alleged that Mr Belperio, a barrister, had engaged in professional misconduct (“the charges”) in relation to a junior female solicitor (“F”) on the ground that it did not have jurisdiction to inquire into it.[1] 

   [1]     See Legal Profession Conduct Commissioner v A Practitioner [2024] SASCA 102.

2. This judgment deals with applications by Mr Belperio and his wife for orders:

   ·which would deny members of the public, including representatives of the news media, access to Court records, which reveal his identity as the practitioner the subject of the charges and which disclose the particulars of the alleged misconduct; and

   ·which suppress publication of his identity as the legal practitioner charged with that misconduct. 

3. The Law Society of South Australia was joined as an interested party in the appeal and the Attorney-General of South Australia intervened.  Counsel for the Law Society and the Solicitor-General also made submissions on those applications. 

4. For the reasons which follow, I would not make any of the orders in the form sought.  I would not disturb the orders which have been made pursuant to r 32.2 of the Uniform Civil Rules 2020 (SA) (“the UCR”), but I would receive in open court the affidavits of Mr Belperio, Mrs Belperio, and the report of Mr Broomhall, which are to be redacted in accordance with these reasons.  I would give liberty to apply for orders suppressing the Christian names of the couple’s children and the schools they attend. 

5. The Tribunal previously made an order that the hearing of the application by Mr Belperio that the charge be summarily dismissed as an abuse of process be conducted in private pursuant to s 84A(2) of the Legal Practitioners Act 1981 (SA) (“the LPA”). The Tribunal also made a “party-access” order in respect of the documents filed in connection with that hearing, purportedly pursuant to r 32.2 of the UCR. Mr Belperio urged this Court to preserve the confidentiality regime established by those orders, pending reconsideration by the Tribunal when the inquiry is resumed. However, as we shall see, it is doubtful that the power to conduct an inquiry in private pursuant to s 84A(2) of the LPA extends to the hearing of a summary dismissal application. In any event, there was no material before the Tribunal that warranted the making of that order. Furthermore, r 32.2 of the UCR has not been made or adopted as a rule of the Tribunal. Importantly, there was, again, no material before the Tribunal that warranted making an order of that kind, even if it were empowered to restrict access to documents lodged with it. In any event, this Court must exercise the powers it has with respect to access to its courtrooms and records, and its statutory powers to make suppression orders on its own assessment of the merits of the case.

6. On 12 April 2024, the Commissioner also challenged the decision of the Tribunal by bringing an application for judicial review, which was stayed pending the hearing of the appeal and then dismissed when the appeal was allowed. 

7. During the course of these proceedings, this Court made orders preserving the confidentiality of Mr Belperio’s name until it had the opportunity, in the light of the result of the appeal, to consider the question of the confidentiality regime sought by Mr Belperio on its merits. 

8. On 22 April 2024, an order was made that Mr Belperio’s name not be included in any cause list, and that he should instead be referred to anonymously as “a Practitioner”.  On 20 June 2024, after written submissions thereabout had been filed, an interim party-access order was made with respect to documents filed in connection with the appeal and the application for judicial review. On 30 August 2024, that interim order was continued until close of business on that day, and the parties were directed to file submissions on any further orders governing the anonymisation of Mr Belperio’s name.

9. Mr Belperio subsequently filed an affidavit sworn by him on 30 August 2024 in support of the foreshadowed applications.  That affidavit primarily dealt with Mr Belperio’s knowledge of the extent to which his identity had already been disclosed into the public domain.  It also described in paras [9], [10], and [14] symptoms and conduct indicative of depression and anxiety.

1. On Friday, 6 September 2024, the Court received Mr Belperio’s affidavit in closed court on an interim basis.  The Court heard submissions on Mr Belperio’s application, as it then stood, to:

   ·close the courtrooms in which the hearings were heard retrospectively;

   ·redact documents in a way which would deny members of the public information which they might otherwise have enjoyed a statutory right to access as records of the Court; and

   ·receive in closed court, or make a party-access order only in respect of, paras [9], [10], and [14] of Mr Belperio’s affidavit.

2. At the recommencement of the hearing after the luncheon adjournment, Mr Belperio’s counsel informed the Court that he had received recent instructions that, ‘in all propriety’, required him to make an application for a suppression order on the grounds of undue hardship to Mr Belperio’s wife, who might be a witness in the inquiry before the Tribunal.  An interim suppression order was made, and the matter was listed to resume on the morning of Monday, 9 September 2024.  At the resumed hearing, counsel for Mr Belperio made an oral application for a suppression order and provided an affidavit of Mr Belperio’s solicitor, Mr Selley, annexed to which was a report of a psychologist, Mr Broomhall.  He also provided an affidavit of Mrs Leesah Belperio, Mr Belperio’s wife, sworn on 9 September 2024. At that hearing, Mr Campbell appeared for Advertiser Newspapers Pty Ltd. 

3. The Court declined to receive the affidavits on that occasion in order to preserve the right of the parties and any interested persons to make submissions on the basis on which they might be received.  Orders and directions were given to ensure that the parties, the interested party, the intervenor, and counsel for the Advertiser were served with the material necessary to afford them procedural fairness.

4. When the hearing resumed on Friday, 13 September 2024, the affidavits were received in closed court, so as to preserve the operation of the interim suppression order and order anonymising Mr Belperio’s name.

5. The orders finally sought by Mr Belperio in order to keep his identity hidden from the public may be summarised as follows:

   1.Suppression orders pursuant to s 69A of the Evidence Act 1929 (SA) (“the Evidence Act”) with respect to the practitioner and his wife;

   2.In the event that there is no suppression order covering the field, orders that certain materials filed or to be filed by Mr Belperio be treated as having been filed on a party-access basis only;

   3.In the alternative to 2, orders that the Court files be endorsed to the effect that they do not constitute a “process” within the meaning of s 131(1)(aa) of the Supreme Court Act 1935 (SA) (“the Supreme Court Act”);

   4.In the further alternative to 2, orders that access not be provided in any event to the Court files pursuant to s 131(2) of the Supreme Court Act;

   5.In the event that a request is made pursuant to s 131(1)(a) for access to a transcript of the hearing on 31 May 2024, if the transcript is the subject of a material suppression order, access only be provided subject to the terms of the suppression order;

   6.If there is no suppression order in respect of the transcript, access only be provided on terms that do not allow inspection or copying which would identify the practitioner;

   7.In the event that a request is made pursuant to s 131(1)(f) of the Supreme Court Act for access to Court orders on the two Court files, if the orders are the subject of a material suppression order, access only be provided subject to the terms of the suppression order;

   8.If there is no suppression order in respect of the Court files, access only be provided on terms that do not allow inspection or copying which would identify the practitioner.

6. As shall be seen, the application for the first order will largely be determinative of the applications for the other orders to stifle publication at its source. Only in rare cases will a court resort to its implied, inherent, or rules-based powers to depart from the open justice principle if a suppression order is not justified by s 69A of the Evidence Act for at least three reasons. First, if there is no warrant to make a statutory suppression order binding on all persons not to disseminate information publicly about a judicial proceeding, it is difficult to envisage circumstances in which there will nonetheless be good reason to keep a small number of members of the public out of a courtroom altogether, or to deny them access to court records to which they have a statutory entitlement. Secondly, the common law principle of open justice must develop coherently with the extension of, and the weight given to, that principle by the legislature. Thirdly, it will generally be an abuse of the process to invoke a court’s inherent, implied, or rules-based powers to exclude persons from a courtroom, or to deny them access to court records, for the purposes of obstructing, at its source, publication of information about court proceedings which could not be suppressed by a proper exercise of the power conferred by s 69A of the Evidence Act. Within the interstices of those three reasons for restraint in the exercise of those general law powers there may, occasionally, be reason to depart from the open justice principle even when, if access were allowed, public dissemination could not properly be suppressed pursuant to s 69A of the Evidence Act.  As we shall see, this application is not one of those occasions.

7. Mr Belperio is a party to these proceedings and his name can only be suppressed pursuant to s 69A(1)(a) of the Evidence Act if the Court is satisfied that it should so order to prevent prejudice to the administration of justice. For the reasons given below, harm to Mr Belperio’s professional and personal reputation before the charge is determined will not prejudice the administration of justice. Nor has it been shown that there is a real prospect that Mr Belperio’s distress will compromise his capacity to defend the charge. Similarly, the evidence does not show that Mr Belperio’s wife will suffer undue hardship for the purposes of s 69A(1)(b)(ii) of the Evidence Act, nor the couple’s children for the purposes of s 69A(1)(b)(iii) of the Evidence Act.  I would, therefore, refuse the applications for a suppression order. 

8. Orders 2 to 8 are calculated to affect the application of s 131 of the Supreme Court Act in two ways. First, orders are sought denying the public the access it enjoys as of right pursuant to s 131(1) by making an order pursuant to r 32.2(2) of the UCR that documents be treated as filed on a party-access basis only or ordering the redaction of Mr Belperio’s name.

9. Secondly, orders, including an order pursuant to r 32.2(2) of the UCR, are sought which would prospectively deny any future application to access the records of the Court pursuant to s 131(2) of the Supreme Court Act. Decisions on applications made pursuant to s 131(2) of the Supreme Court Act are, by force of s 131(4) thereof, administrative, not judicial, in nature and are made from time to time by the judicial officer or delegated officer who considers them. Mr Belperio accepts that this Court is not presently sitting on an application for access pursuant to that section. This Court cannot proleptically determine an application which is yet to be made. Order 4, therefore, should not be made. However, it is necessary for this Court to consider the proper construction of s 131 of the Supreme Court Act in order to determine Mr Belperio’s other applications.  That exegesis will hopefully inform future decisions under that section in respect of this, and other, matters. 

10. The second order if made, could not displace, or in some way override the mandate contained in, s 131 of the Supreme Court Act.[2]  This Court retains the ability, on its own initiative and whenever it considers it appropriate in the interests of justice, to depart from or to make an order inconsistent with, or in lieu of, a rule found in the UCR;[3] there exists no such ability with respect to the statutory mandate contained in s 131 of the Supreme Court Act. Insofar as the material is a process of the Court or has been received in open court, s 131(1) confers an unconditional right of access to it. Insofar as it is material which requires the permission of the Court to access it, the grant of permission pursuant to s 131(2) of the Supreme Court Act would be an order to the contrary, for the purposes of r 32.2(2) of the UCR.  The only utility of an order pursuant to r 32.2(2) of the UCR in respect of the latter is that it precludes access unless and until an application for access has been approved pursuant to that rule.  It is appropriate that such an order be made in respect of certain sensitive personal information, and the details of the symptoms of Mr Belperio’s mental health (personal and sensitive information).

    [2]     Cf Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265, 268 [14] (Basten JA).

    [3]     See, eg, UCR 12.1(2)(a)-(b).

11. An endorsement of the kind contemplated by order 3, that the “files” are not a process, fundamentally misunderstands the constitutional relationship between the inherent powers of this Court over its records and the statutory regulation of those records. The Court cannot, in the exercise of its implied or inherent powers, declare that a document is not a process, if, on a proper construction of s 131(1)(aa) of the Supreme Court Act, it is a process.  Order 3 should not be made.

12. Orders 5 and 7 are otiose because, if a suppression order were made, the transcript, insofar as it identifies Mr Belperio, could not be accessed as of right, because it would fall within s 131(2) of the Supreme Court Act. Moreover, any person who is permitted to inspect a document is bound by the direct operation of the suppression order, and liable to prosecution under s 70(1) of the Evidence Act for disobedience to the order.   It follows that a condition to that effect is mere surplusage.  Orders 5 and 7 should not be made. 

13. Orders 6 and 8 are premised on an unidentified power in this Court to abrogate s 131(1) of the Supreme Court Act, even if the transcript and/or documents to which access is sought are either processes relating to the proceedings, or material which was received in open court. This Court has no power to do so. Nor can this Court apply s 131(2) of the Supreme Court Act on a retrospectively constructed fiction that the transcript or records were not received in open court. 

14. The orders receiving the affidavits of Mr Belperio, Mrs Belperio, and Mr Selley in closed court (the first of which was done so on an interim basis) were made to prevent the pre-emptive dissemination of some very personal information in, or annexed to, those affidavits before the applications were properly heard and determined.  So, too, were the orders closing the court while Mr Broomhall gave evidence, and while the parties made submissions thereon.  The exercise of the statutory power to make a suppression order in a proper case serves the administration of justice.  That aspect of the administration of justice would be prejudiced if persons were deterred from making an application by the prospect that very personal family, social, and/or health circumstances on which the application is founded would be disclosed.  Accordingly, evidence of personal and sensitive information which extends beyond general references to Mr Belperio’s depression and anxiety should not be disclosed.  However, the same cannot be said of general material in the affidavits not falling within that description.  A mechanism to achieve protection of the personal and sensitive material contained in those affidavits would be to leave the orders already made pursuant to r 32.2 of the UCR in place, but to exercise this Court’s inherent jurisdiction to receive in open court appropriately redacted affidavits of Mr Belperio, Mrs Belperio, and Mr Selley and to make a suppression order in respect of those parts of the evidence and submissions heard by the Court on Friday, 13 September 2024, which disclose personal and sensitive information. I would hear the parties as to the precise redactions and any required supplementary orders. But, speaking generally, the Court will order that appropriately redacted iterations of those affidavits be provided in open Court.

    Open justice and closed courts

15. Ordinarily, the adjudication of controversies occurs ‘publicly and in open view’,[4] publicity being ‘one of the normal attributes of a Court’.[5]  Together the adversarial procedures and the open justice principle of common law courts distinguish them from the courts following the civil law tradition.

    [4]     Scott v Scott [1913] AC 417, 441 (the Earl of Halsbury); McPherson v McPherson [1936] AC 177, 199‑200 (Lord Blanesburgh for the Board); Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 71 [67] (French CJ); Legal Services Commissioner v JXL [2023] QSC 283, [136] (Crowley J).

    [5]     Dickason v Dickason (1913) 17 CLR 50, 51 (Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ agreeing).

16. The administration of justice in public, however, is not an end pursued by the common law absolutely.  The ultimate object is fidelity to the judicial oath.  It has been observed that open justice ‘is a means to an end, and not an end in itself.  Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny’.[6] To this end, at common law and pursuant to s 69(1) of the Evidence Act, the Court may, respectively, order that proceedings be dealt with in closed court,[7] or order that the Court be cleared for the ‘whole or any part of the proceedings’. 

    [6]     Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ). See also HT v The Queen (2019) 269 CLR 403, 423-4 [44]-[46] (Kiefel CJ, Bell and Keane JJ); Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 22) [2023] WASC 285, [47] (Smith J); DPP (Vic) v Smith [2023] VSCA 293, [22] (Priest JA, Emerton P agreeing); East Rockingham RRF Project Co Pty Ltd v Acciona Construction Australia Pty Ltd [2024] FCA 759, [75] (Feutrill J).

    [7]     See, eg, General Television Corp Pty Ltd v DPP (Vic) (2008) 19 VR 68, 75 [21] (Warren CJ, Vincent and Kellam JJA); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 72 [69] (French CJ).

17. As regards the latter, the Court’s power to order that a certain person or persons absent themselves from the courtroom is predicated on the Court considering that course to be ‘desirable in the interests of the administration of justice, or in order to prevent hardship or embarrassment to any person’.[8]  Embarrassment or anxiety may also so compromise a witness’ capacity to give his or her testimonial account of the relevant events that it prejudices the administration of justice.

    [8]     The Court may, however, in respect of such a person or persons, on application, make an order rendering any transcript of proceedings available thereto. See Evidence Act 1929 (SA) s 69(2).

18. As regards the former, absent statutory mandate to the contrary,[9] the Court will not hasten to depart from the ‘fundamental rule of the common law … that the administration of justice must take place in open court’.[10]  In general terms, the Court will order that a hearing be closed to members of the public where to do so is necessary for the proper administration of justice.[11]  The decision of the House of Lords in Scott v Scott[12] exemplifies the strong position taken by the common law against the adjudication of proceedings in closed court.  That case concerned proceedings instituted by the appellant, seeking an annulment of her marriage to the respondent on the ground of the respondent’s impotence.  Those proceedings were instituted in the Court for Divorce and Matrimonial Causes, which, by virtue s 22 of the Matrimonial Causes Act 1857,[13] had subsumed the jurisdiction with respect to matrimonial causes previously exercised by the Ecclesiastical Courts.  In accordance with the practice of the Ecclesiastical Courts in dealing with such matters, a Registrar of the Court directed that the appellant’s annulment proceedings be heard in camera.

    [9]     See, eg, R v Kwok (2005) 64 NSWLR 335, 344-5 [33] (Howie J).

    [10]   John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476 (McHugh JA, Glass JA agreeing). Cf ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782, [17] (Abraham J).

    [11]   See, eg, Scott v Scott [1913] AC 417, 437 (Viscount Haldane LC); John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476-7 (McHugh JA, Glass JA agreeing); Hogan v Hinch (2011) 243 CLR 506, 532-3 [21] (French CJ). Cf Rush v Nationwide News Pty Ltd (2018) 359 ALR 473, 513 [186]-[188] (Wigney J); Porter v Australian Broadcasting Corporation [2021] FCA 863, [51] (Jagot J).

    [12] [1913] AC 417.

    [13]   20 & 21 Vict, c 85.

19. After the parties’ union had been annulled by a decree absolute, the appellant circulated shorthand notes of the proceedings to, inter alios, the respondent’s father and sister.  Thereafter, the respondent sought to charge the appellant in the Probate, Divorce and Admiralty Division of the High Court of Justice with contempt of court, insofar as the appellant had disseminated evidence and materials gathered and disclosed in camera to non-parties to the proceedings.  At first instance, Bargrave Deane J found the appellant guilty of what appears to have been criminal contempt, and ordered her to pay the costs of the respondent’s application.  In so holding, Bargrave Deane J stated that:[14]

    It is manifest that the reason for trying such unhappy cases as this in camera is the protection of both parties, inasmuch as the details of evidence are of a very delicate and private character. The medical evidence and the evidence of the petitioner in particular is of such a nature that it ought to be kept absolutely private and not disclosed to any one.  The object, and the result, of the inquiry into the most intimate relations of the parties is to shew which of the two parties has caused the state of things which eventuates in the decree of nullity.

    …

    One of the main objects of trying these unhappy cases in camera is that the evidence should be kept secret: the result may be made known, but none of the details may be published.

    It is gross contempt of Court for people to go spreading about the country particulars of that which is done in camera.  It is gross contempt of Court to report anything heard in camera.  It is the same even in regard to reporting summonses heard in chambers, or in Court as in chambers, which is, in effect, the same thing, unless by special leave of the judge.

    Justice Bargrave Deane’s findings were upheld by a majority of the Court of Appeal, which, owing to the peculiarity of the case, sat as a Full Court.[15]

    [14]   Scott v Scott [1912] P 4, 6-7 (Bargrave Deane J).

    [15]   See Scott v Scott [1912] P 241.

20. Before the House of Lords, the primary question before the Law Lords was whether or not the Registrar’s direction that the annulment proceedings be heard in camera was properly within power, so as to support the conclusion that the appellant had acted in contempt of the Divorce Court.  It was held that that direction was beyond power.  Opining generally on the right of members of the public to attend upon, and observe proceedings before, Courts of Justice, the Earl of Halsbury, stated that:[16]

    I am of opinion that every Court of justice is open to every subject of the King. …

    I believe this has been the rule, at all events, for some centuries … it has been the unquestioned rule since 1857, unquestioned by anything that I can recognize as an authority.  Mr Lords, if this were merely an antiquarian investigation I might point to the treatise of Mr Emlyn in 1730, as a preface to the second edition of the State Trials, in six volumes folio. “In other countries,” Mr Emlyn says (at p iv), “the Courts of justice are held in secret; with us publicly and in open view.”

    He is there speaking of criminal trials, but he certainly has no good word to say of the Ecclesiastical Courts of his time, and if he could have added that they claimed a right to sit in secret he certainly would not have omitted to do so.

    From the woolsack, Viscount Haldane LC gave the leading judgment.  The Lord Chancellor, in holding that the erstwhile practice of the Ecclesiastical Courts in determining such proceedings in camera was not to be adopted by the Divorce Court, as a Court of Justice, stated that:[17]

    My Lords, it was not unnatural that the judges of the Divorce Court should have felt embarrassed by the want of the power which the old Ecclesiastical Courts possessed to hear in camera any case which for reasons of decency they thought ought to be so heard … But while the learned judge held, somewhat hesitatingly I think, that the Divorce Court had in a suit for judicial separation inherited the power of the Ecclesiastical Courts to hear in camera, he went on to say that even in suits for dissolution this could be ordered if it was reasonably clear that justice could not be done unless the hearing was so conducted. …

    In cases in other Courts, where all that is at stake is the individual rights of the parties, which they are free to waive, a judge can exclude the public if he demits his capacity as a judge and sits as an arbitrator.  The right to invoke the assistance of a Court of Appeal may be thereby affected, but the parties are at liberty to do what they please with their private rights.  In proceedings, however, which, like those in the Matrimonial Court, affect status, the public has a general interest which the parties cannot exclude, and I am unable to see how their consent can justify the taking of an exceptional course …

    In order to make my meaning distinct, I will put the proposition in another form. While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred.[18]  But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic.  … The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing.  There it may well be that justice could not be done at all if it had to be done in public.  As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield.

    [16]   Scott v Scott [1913] AC 417, 440-1 (the Earl of Halsbury).

    [17]   Scott v Scott [1913] AC 417, 435-8 (Viscount Haldane LC, the Earl of Loreburn and Lord Atkinson agreeing).

    [18]   Namely, the general position that cases involving the exercise of the Court’s parens patriae jurisdiction be heard in closed court.

1. It can be observed that both speeches pointedly distinguished between the courts of England and ‘other countries’.  I draw attention also to the careful and precise identification in the speech of Viscount Haldane LC of the two competing interests of justice which may fall to be weighed against the open justice principle.  In both examples, if the open justice principle were not modified, justice could not be done in litigation of that kind.  Even then, the modification of open justice is not inexorable or absolute.  While, as a matter of ordinary course, proceedings in the Court’s parens patriae jurisdiction, for instance, may be heard in closed court,[19] the protections usually afforded by statute against publication in such matters may well be enough to protect the interests of the child the subject of the Court’s jurisdiction.  In this regard, Brereton J remarked in Director-General, Department of Community Services; Re Jules that: [20]

   Proceedings in the Family Court of Australia — in which there is a large amount of litigation concerning the welfare, custody and guardianship of children — are not heard in closed court, although they are protected by a statutory prohibition on publication that would identify the parties. Adoption proceedings are required to be heard in closed court by the particular legislation which applies to adoptions, but traditionally special considerations of confidentiality have applied to them. I do not see why proceedings in the parens patriae jurisdiction, including for medical treatment orders, should as a general rule be heard in closed court. There may no doubt be some cases in which that course is appropriate, but ordinarily sufficient protection of the child will be achieved by a non-publication order of the type to which I have referred.

   [19]   See, eg, Scott v Scott [1913] AC 417, 483 (Lord Shaw of Dunfermline).

   [20]   Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122, 130 [25] (Brereton J). Cf Hospital v T [2015] QSC 185, [8]-[9] (Douglas J).

2. Speaking more specifically about proceedings of the kind instituted by the appellant, Viscount Haldane LC observed in Scott v Scott that:[21]

   … it may well be that in proceedings in the Divorce Court, whether the proceedings be for divorce, or for declaration of nullity, or for judicial separation, a case may come before the judge in which it is evident that the choice must be between a hearing in public and a defeat of the ends of justice.  Such cases do not occur every day.  If the evidence to be given is of such a character that it would be impracticable to force an unwilling witness to give it in public, the case may come within the exception to the principle that in these proceedings, and not the less because they involve an adjudication on status as distinguished from mere private right, a public hearing must be insisted on in accordance with the rules which govern the general procedure in English Courts of justice.  A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands.  I think that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made. Whether this state of the law is satisfactory is a question not for a Court of justice but for the Legislature…

   My Lords, in my opinion the facts before Bargrave Deane J fell short of what was requisite to justify departure from the principle which requires the hearing, in all but exceptional cases of the class I have indicated, to take place in open Court.  No doubt the petitioner and the respondent preferred to give their evidence in private.  But the evidence actually given was of a brief and simple character, and it might without difficulty have been tendered in open Court.  In my opinion there was no valid reason for hearing the case in camera and the order was made in reality for the benefit of the parties who concurred in asking for it, and was therefore made under a mistaken impression of law.

   (Underlining added)

   [21] Ibid 438-9 (Viscount Haldane LC, the Earl of Loreburn and Lord Atkinson agreeing).

3. The principles articulated by the House of Lords in Scott v Scott, in part, were extended by the Judicial Committee of the Privy Council in McPherson v McPherson,[22] on an appeal from the Appellate Division of the Supreme Court of Alberta.  In that case, the respondent instituted proceedings for divorce from the appellant, whom he alleged had engaged in an affair with a third party.  The proceedings were undefended.  Following the pronouncement of the decree nisi and decree absolute, the respondent remarried, following which the appellant instituted her own proceedings seeking to have the relevant decrees set aside, and an order for the restitution of her conjugal rights.  Insofar as the decrees were concerned, the appellant contended that each was voided by the manner in which the trial Judge heard and determined the case, which was tried, unrobed, in the Supreme Court’s law library during the Court’s lunch adjournment.

   [22] [1936] AC 177.

4. Architecturally, it appears that the law library could be accessed through a corridor open to the public, following the traversal of which a person would have to walk through a double-swing door, upon which there was an inscribed plate informing any such traverser that the library was “Private”.  As recorded in the headnote to the Appeals Cases report of the decision, the swing door was kept unfastened during the trial, and the inner door of the library, in which the suit was tried, was kept open throughout.  Somewhat curiously, the trial Judge declared before sitting that the suit was, notwithstanding its obscured location, being heard in open court.  At the time, the Supreme Court of Alberta did not publish a daily cause list and provided no written notice of cases to be argued therebefore to the public.  Information could, however, be obtained from the Court’s orderlies, who were aware that the hearing was proposed to take place in the law library.  Before the Board, underpinning the appellant’s contention that the impugned decrees were void ab initio was her assertion that, by sitting in a secreted and obscured location, the respondent’s divorce proceedings were not heard in open court as required by the common law.

5. Ultimately, the appeal was dismissed, though only on the ground that the impugned decree absolute was never void ab initio, but rather only voidable, and had, by the time of the appeal, become unassailable pursuant to s 57 of the Divorce and Matrimonial Causes Act 1857.[23]  The Judicial Committee, however, took the opportunity to emphasise that courtrooms must be open and accessible as a matter of principle, whether or not members of the public exercise their right to enter.  In this regard, Lord Blanesburgh, delivering the advice of the Board, observed:[24]

   [23] 20 & 21 Vict, c 85.

   [24] McPherson v McPherson [1936] AC 177, 197 (Lord Blanesburgh for the Board).

   Had the learned judge on the occasion in question directed this divorce case to be taken in one of the empty Courts no greater degree of publicity would apparently, so far, have attended the proceedings.

   That observation serves to highlight that, in its earlier expositions, the open justice principle focussed on maintaining an open door to the courtroom.  So much is also apparent from Lord Blanesburgh’s description of the steps which the Judge took to keep the door leading from the library to the corridor open whilst at the same time overlooking the swing door:[25]

   The proceedings took place during the luncheon interval, probably as the most convenient hour for all concerned.  They were in one respect less formal than those of an ordinary trial in open court.  The learned judge was not robed.  Neither was counsel.  In other respects the proceedings seem to have been quite regular.  Tweedie J entered the library from a door accessible only to judges.  He was attended by an official shorthand writer and by the Assistant-Clerk of the Court — Mr Mason.  Before taking his seat at the head of the table in the library he stated that he was sitting in open court … He directed Mr Mason to open and to keep open the door already mentioned leading from the library to the inner corridor.  He evidently overlooked the swing door outside, with its appearance of being closed and its warning against public intrusion, for he gave no regard to that door.  …

   Lord Blanesburgh continued:[26]

   The facts of this case, for example, have little correspondence with those in Scott v Scott …  Here … there was no actual exclusion of the public, although there was no actual public attendance.  No such exclusion was intended nor, possibly, even desired.  The learned judge would probably have been gratified by the presence of a small audience. But, even although it emerges in the last analysis that their actual exclusion resulted only from the word “private” on the outer door, the learned judge on this occasion, albeit unconsciously, was, their Lordships think, denying his Court to the public in breach of their right to be present, a right thus expressed by Lord Halsbury in Scott v Scott: “Every Court of justice is open to every subject of the King.” …

   But publicity is the authentic hall-mark of judicial as distinct from administrative procedure, and it can be safely hazarded that the trial of a divorce suit, a suit not entertained by the old Ecclesiastical Courts at all, is not within any exception.

   The actual presence of the public is never of course necessary.  Where Courts are held in remote parts of the Province … there may be no members of the public available to attend. But even so, the Court must be open to any who may present themselves for admission.  The remoteness of the possibility of any public attendance must never by judicial action be reduced to the certainty that there will be none.[27]

   From that passage it may be noted that, again, the distinction is drawn between common law courts and the courts of civil law systems, and that the court door must be open to the public, howsoever remote the prospect of any member of the public being sufficiently interested to pass through it might be. 

   [25] Ibid 198.

   [26] Ibid 199-200.

   [27] Ibid 199-200.

6. In A-G v Leveller Magazine Ltd,[28] Lord Diplock succinctly articulated the question of principle in this way:[29]

   … the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule.  Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.

   Generally, that test has been accepted in Australia as a correct statement of the law.[30]

   [28] [1979] AC 440.

   [29]   Attorney-General v Leveller Magazines Ltd [1979] AC 440, 450 (Lord Diplock).

   [30]   See, eg, Zhang v Age Co Pty Ltd [2023] ACTCA 10, [37]-[53] (McCallum CJ, Mossop and Kennett JJ), and the cases cited therein.

7. The relevant principles which emerge from those authorities may be stated as follows.  Subjecting judicial proceedings to public and professional scrutiny is in the interests of justice because it: informs the public as to how the judicial arm of government functions; promotes sound judicial decision-making; safeguards the integrity of judicial proceedings; and enhances public confidence in the administration of justice.  Only in those exceptional cases in which public access would, in itself: compromise the fair and just resolution of the proceedings; cause substantial damage to private interests protected by the law; or frustrate a public interest connected with the administration of the law, can the door of the courtroom be closed. 

8. Examples of private interests which may warrant departure from the principle of open justice are the need to maintain the confidentiality of commercial contracts and the protection of intellectual property rights.[31]  Turning to public interests which may warrant the closure of a court, I have mentioned the guardianship jurisdiction of this Court, a jurisdiction which does not, inexorably, demand that the Court close its doors to the public in the exercise thereof.  The protective responsibility of this Court is also a proper interest in the administration of justice more generally which might be prejudiced if a court is not closed when a protected person is a party or a witness.  Justice may not be able to be administered at all unless a vulnerable witness feels safe enough to testify, which may require a closed court hearing.[32]  Turning to another example of the public interest, the enforcement of the criminal law may be prejudiced if measures, which impinge on the open justice principle, are not taken to protect the identity of informants.[33]

   [31]   See, eg, Newcrest Mining Ltd v Santos WA Northwest Pty Ltd (No 2) [2022] WASC 410, [17]-[18] (Tottle J); Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 22) [2023] WASC 285, [49] (Smith J).

   [32]   See, eg, Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 72 [68] (French CJ).

   [33] See, eg, ibid; Samuels (a Pseudonym) v The King [2024] SASCA 50, [9] (Livesey P).

9. I wish to emphasise by repetition that the abovementioned competing interests of justice are examples only and that the categories of interests that may be prejudiced are not closed.

10. Nonetheless, it follows that inherent common law or rules-based powers to order that a hearing, or part of a hearing, not be held in open court are not unfettered discretions to be exercised as the presiding judicial officer thinks desirable, having regard to a wide range of subjective considerations which might compendiously be described ‘as feelings of delicacy’, to borrow from the speech Viscount Haldane LC in [31] above.  Rather, the exercise of the power must be based on an evaluative judgment that departure from the open justice principle is justified in order to preserve another object of the administration of justice. That evaluative judgment is an indispensable criterion for the power to be exercised judicially.

11. In South Australia, the open court principle has been given statutory force. 

12. Section 46A of the Supreme Court Act provides:

    46A—Sittings in open court or in chambers

    Subject to any provision of an Act or any rule to the contrary, the court’s proceedings must be open to the public.

13. Statutory headings are parts of the Act.[34] The proceedings the subject of s 46A should, therefore, be construed to mean any form of hearing, whether final or interlocutory, and whether held in chambers, in court, or in court as in chambers.

    [34]   Legislation Interpretation Act 2021 (SA) s 19(1).

14. Prior to the enactment of s 46A by the Statutes Amendment (Attorney-General’s Portfolio) Act 1996 (SA), s 45 of the Supreme Court Act provided:

    Place and time of sittings, and power to adjourn

    45.     (1)     The court may sit and act at any time and at any place for the transaction of any part of the business of the court, or for the discharge of any duty under this or any other enactment.

    (2)     The hearing or further hearing or determination of any cause or matter commenced in the court may be adjourned from time to time, and from place to place, as the court thinks fit.

    (3)     A judge sitting in open court may adjourn for consideration in chambers any matter which in his opinion may be more conveniently disposed of in chambers; and any judge sitting in chambers may adjourn any matter to be heard in open court.

15. On the enactment of s 46A, s 45 and s 46 were substituted with the following provisions:

    Time and place of sittings

    45.     (1)     The court may sit at any time (including a Sunday).

    (2)     The court may sit at any place (either within or outside the State).

    (3)     The court will sit at such times and places as the Chief Justice may direct.

    (4)     Registries of the court will be maintained at such places as the Governor may determine.

    Adjournment from time to time and place to place

    46.    (1)     The court may—

    (a)adjourn proceedings from time to time and from place to place; or

    (b)adjourn proceedings to a time, or a time and place, to be fixed; or

    (c)order the transfer of proceedings from place to place.

16. Section 45, as it was before the 1996 Statutes Amendment (Attorney-General’s Portfolio) Act, was premised on Chambers not being accessible to the public but being a more convenient forum for the disposal of interlocutory matters.

17. Section 46A reflects the changing practice of the Court at about that time, which moved the hearing of many interlocutory matters from the Chambers of its Judges and Masters, which were accessible only to practitioners through private corridors, into the courtrooms to which the public enjoyed access. That changed practice, and s 46A of the Supreme Court Act, reflect an evolutionary expansion of the open justice principle to encompass not only the final adjudication of a controversy but also the preceding steps in the proceedings. 

18. The ‘rule to the contrary’ of which s 46A of the Supreme Court Act speaks, and to which the open justice principle is made subject, is not defined.  In the Committee stages of the Bill, there was the following exchange between the Attorney-General, the Honourable KT Griffin, and another member of the Legislative Council, the Honourable RL Lawson QC, who were both closely familiar with the practice of the Court:[35]

    The Hon. K.T. GRIFFIN: My recollection is that it arose from a representation from the judges as to the effect of the amendment rather than from a particular case.  I will have that checked and, if there is any change from that response, I will ensure that the honourable member is informed, but it will be after the Bill passes through this Chamber.  So far as the application of the amendment to any existing matter is concerned, when passed the Act will come into effect on a date to be fixed by proclamation.  My understanding is that there is nothing in the pipeline that will be adversely affected by this, but I can undertake to check that and, if it is likely to have some adverse effect, we will do all that we can to ensure that that is mitigated as far as is possible to do so.  However, I do not think there will be a problem in that context.

    Clause passed.

    Clauses 9 to 34 passed.

    Clause 35—‘Substitution of sections 45 and 46.’

    The Hon. R.D. LAWSON: I refer to proposed new section 46A to which the marginal note reads, ‘Sittings in open court or in chambers’. The clause goes on to provide that, subject to any other Act or rule, ‘the court’s proceedings must be open to the public’. Is that provision a change to the existing law because I do not understand it to be? If it is a change, why is it necessary? In relation to proposed new section 46B, this provision enables the Governor by proclamation to require that the sittings of the Supreme Court be held with a specified frequency in specified parts of the State. So far as I am aware, the Governor does not have power to require sittings of a court such as the Magistrates Court, for example, in any particular parts of the State, that being left to the discretion of the Courts Administration Authority. Is it intended to remove from the Courts Administration Authority and vest in the Governor power to require Magistrates Courts, for example, to sit with specified frequency in specified parts of the State?

    The Hon. K.T. GRIFFIN: So far as the heading for proposed new section 46A is concerned, it is probably correct because, if one looks at 46A, it is subject to any provision of an Act or any rule to the contrary that courts’ proceedings must be open to the public. It seems that if there is an intention to ensure that matters in chamber are not open to the public, that is covered by a rule of court. The principal Act does not specifically deal with this issue. Proposed new section 45 refers particularly to a judge sitting in open court in subsection (3) in relation to adjournments and any judge sitting in chambers may adjourn any matters to be heard in open court. Certainly, the intention of the section was to give the court the power to make its own rules which will determine what limitations should be placed upon sittings which should generally be in public but, when in chambers, may not necessarily be so.

    [35]   South Australia, Parliamentary Debates, Legislative Council, 9 July 1996, 1656 (KT Griffin, RD Lawson).

1. It is capable of including a rule made by a judicial officer which is in the nature of an order, or, as the Attorney-General explained, a rule of court made pursuant to s 72(1) of the Supreme Court Act. However, it should not be understood to leave the matter to the unfettered discretion of individual judicial officers. The ‘rule to the contrary’ must be an evaluative decision in a particular case, or an exercise of the statutory rule-making power, that the interests of justice warrant a departure from the general rule legislated by s 46A of the Supreme Court Act.

2. Section 46A of the Supreme Court Act is reinforced by r 15.3 of the UCR, which provides:

   15.3 Hearings ordinarily in court in public

   (1)Hearings are ordinarily held in a place open to the public.

   (2)The Court may conduct a hearing in chambers if it considers it necessary or desirable to preserve the health of the participants or that it is otherwise in the interests of justice to do so.

   (3)The Court may, on its own motion or on application by any person, order that specified persons, or all persons except those specified, absent themselves from a hearing under section 69 of the Evidence Act 1929.

3. Rule 15.3(1) applies the open justice principle generally to all hearings. Although, as a rule of Court, the Court retains a discretion to order, inter alia, that r 15.3(1) not be applied, or be modified in its application, pursuant to r 12.1(2)(a) of the UCR, it retains no such discretion with respect to the statutory mandate contained in s 46A of the Supreme Court Act.

4. Rule 15.3(2) appears to contrast a private hearing held in Chambers with a hearing held in a court open to the public.  It identifies two grounds for conducting a hearing in Chambers:  it being in the interests of justice; or it being necessary or desirable to ensure the preservation of the health of a participant.  Plainly enough, the preservation of the health of a participant is a much higher threshold than mere distress and anxiety of the kind which participants commonly experience.  Were it otherwise, the exception would swallow the rule.  Were it otherwise, it would disingenuously depart from the aphorism that “All litigation is stressful”.[36]  The rationale for that ground is that the administration of justice in public should not harm the health of the participants in the action.  To ignore their health may frustrate the achievement of justice in that particular case, and deter others from seeking justice. 

   [36]   Kearney v Amirbeaggi [2022] NSWSC 805, [20] (Beech-Jones CJ at CL). See also Nest & Nest (No 2) [2014] FamCA 269, [13] (Berman J).

5. Rule 15.3(3) reflects the power in s 69 of the Evidence Act and does not add to it. Given the lower threshold for excluding the public enacted by s 69(1) of the Evidence Act, it is difficult to envisage the circumstances in which r 15.3(3) of the UCR would ever fall to be applied. If it were to apply, a question would arise as to whether a transcript of the kind required by s 69(2) of the Evidence Act should also be provided on an application by a party.  I tend to the view that it should.  At the very least, r 15.3(2) of the UCR should not be engaged on the ground that a participant’s health might be harmed, for the purpose of denying the public a transcript of the proceedings in those cases.  Different considerations apply if there is a reason in the interest of justice to deny access to the evidence.

6. The common law principle of open justice rests on liberal democratic political values of transparency, integrity, and accountability in the exercise of judicial power.  It follows that the common law principle may be affected by statutory provisions which manifest a legislative judgment on the scope and weight to be given to that principle.  There should be no incoherence between statutory statements of the principle and the common law. 

7. As we have seen, the core of the early common law statements of the open justice principle could be expressed as an ‘open court door’ rule. Urbanisation, and the centralisation of courts, have challenged the efficacy of the open court door rule. Courthouses are now often some distance from the community out of which the controversy arose. Over time, too, the public has become accustomed to relying on news media reports of judicial proceedings. Amendments to s 69A of the Evidence Act over the last four decades have placed increasing weight on the open justice principle and have extended it from an open court door rule to include public dissemination of information about court proceedings. I deal with the reach of s 69A of the Evidence Act further below, but, for now, the point I seek to make is that attention must be given to that provision when considering the scope and application of the court’s inherent or implied common law powers to exclude members of the public from courtrooms or to deny them access to its records.

8. In particular, I would emphasise that it would generally be wrong to conduct a proceeding, or part of a proceeding, in closed court in order to deny access to a record of the Court because, if the information became known, a suppression order would not be made pursuant to s 69A of the Evidence Act. If a proper exercise of the discretion conferred by s 69A would not result in a suppression order, rarely should the proceedings be concealed from a smaller number of the public who wish to come into the courtroom to observe the hearing or who seek access to the records of the court at the registry.

   Preservation of reputation – an interest of justice?

9. It has been observed thus far that it is only where the conduct of a proceeding before the public gaze would itself prejudice the administration of justice, whether by virtue of the underlying subject-matter of the proceeding, or for some other recognised reason, that the common law departs from the open justice principle.

10. The prejudice to the administration of justice on which Mr Belperio relied before the Tribunal, and before this Court, was that his professional and personal reputation would be unfairly damaged if the allegations were published before, and without, the charges being proved.  At the level of principle, a number of obstacles stand in the way of that contention.  First, there is no obvious interest in the administration of justice connected to personal and professional reputation.[37]  It is not analogous to commercially confidential information or intellectual property.  Nor does it raise a public interest in the administration of justice like the encouragement of informers or victims to engage in the enforcement of the criminal law. To this end, as McCallum CJ, Mossop and Kennett JJ recently observed in Zhang v Age Co Pty Ltd:[38]

    … The costs of open justice include costs to the privacy and reputation of individuals, the potential costs to the fairness of trials, the risk of sensationalisation and distortion of what occurs in court, and risks to the security of individuals and governments … Where the balance falls between the undoubted benefits of open justice and its costs is a legitimate subject for debate. Further, where the balance falls may change over time. Modern technology has reduced the technical and physical barriers to mass collection and distribution of information and this changes the consequences of the application of the open court principle, potentially increasing the costs to people’s privacy or reputation without a corresponding increase in the discipline imposed upon the judicial system. Similarly, it may be affected by the extent to which media organisations conduct themselves responsibly and the extent to which media reporting is seen to be advancing the public interest in a manner which is consistent with the values of fairness and impartiality underlying the proper administration of justice.

    [37]   See, eg, J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, 12 (Fitzgerald P and Lee J); Reynolds v Panten (1999) 23 WAR 215, 230-1 [75]-[77] (Steytler J).

    [38]   Zhang v Age Co Pty Ltd [2023] ACTCA 10, [49] (McCallum CJ, Mossop and Kennett JJ).

11. Indeed, the common law has not recognised such an interest in the case of criminal defendants generally.  The short‑lived statutory protection given to defendants charged with sexual offences[39] was based on now exploded myths and remains only as collateral consequence of the protection of a victim’s privacy. 

    [39]   Evidence Act 1929 (SA) s 71A; R v Hermes; Ex parte V [1963] SASR 81, 84 (Napier CJ, Travers and Hogarth JJ).

12. Secondly, publicity before adjudication is necessarily an ordinary incident of the open justice principle. 

13. Thirdly, consistently with the open justice principle, a bare statement that a person has been charged with a criminal offence or disciplinary action, if that is the truth of the matter, is not defamatory.  The law of defamation does not protect the charged person from the harm to his or her reputation caused by the reporting of that fact.  However, the law of defamation protects persons charged with an offence from commentary on the allegations which seeks to pre-empt their proper adjudication, as observed by Steytler J in Reynolds v Panten:[40]

    Acceptance of [the open justice] principle does not have the consequence that individual rights, whether to the protection of reputation or otherwise, might, at will, be exposed to unjustifiable attacks in circumstances in which publication of those attacks will ordinarily be protected by privilege (cf R v Horsham Justices (at 797)). Great harm can, as was mentioned by Kirby P in Raybos Australia Pty Ltd v Jones (at 59-60), be done to individuals by the widespread circulation of protected reports of their involvement in criminal or quasi criminal proceedings in circumstances in which this damage might be quite unjustifiable.

    [40]   Reynolds v Panten (1999) 23 WAR 215, 231 [78] (Steytler J).

14. Fourthly, there is a strong, countervailing, public interest in the public knowing that persons who hold a licence to practise in a professional capacity, and are, therefore, held out as fit and proper persons to do so, are subject to charges which, if proved, may result in a finding that they are not fit and proper to do so and the suspension or revocation of their right to practise.

15. Counsel for Mr Belperio contended that, even if proved, the professional misconduct with which he is charged might not lead to a finding that he is not a fit and proper person to practise the law, because the conduct was not directly connected to legal practice.  It is beyond argument that professional misconduct ‘on the part of a legal practitioner may extend to conduct in his private capacity’.[41] Professional misconduct encompasses conduct ‘occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law’.[42]  The setting in which it is alleged Mr Belperio engaged in misconduct was a social occasion but was closely connected to Mr Belperio’s practice as a barrister and F’s employment in a firm which often briefed him.  It is alleged that F attended that occasion because Mr Belperio asked a more senior solicitor in that firm to ask her to attend.  That conduct, on its face, involves two imbalances of power, founded in the hierarchy of the legal profession. 

    [41]   Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148, 163 (Lockhart J), citing Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279.

    [42] LPA s 69(b).

16. The charge alleged that Mr Belperio further abused the imbalance of power inherent in his relative seniority and as a member of the Bar in the way he conducted himself towards the junior solicitor in a public bar, and later in his Chambers. 

17. Should the charge be proved against Mr Belperio, he is likely to be found to have behaved in a way which brings his fitness to practise as a legal practitioner into question.[43]  The administration of the law is premised on respect for the equal human dignity of all persons.  The charged conduct, if proved, is antithetical to that most fundamental of all liberal democratic values. 

    [43]   Roylance v General Medical Council (No 2) [2000] 1 AC 311, 332 (Lord Clyde for the Board), quoted in Reyes v Dental Board of South Australia (2002) 83 SASR 551, 559-60 [33] (Duggan J). See also A County Council v W (Disclosure) [1997] 1 FLR 574, 581 (Cazalet J); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279, 289 [56] (Spigelman CJ, Mason P and Handley JA agreeing).

18. There is a public interest in relatively junior legal practitioners, and their employers and supervisors, knowing that the charges have been brought so that it may be taken into account before deciding to brief Mr Belperio.  It is a matter for them to give the fact that a contested charge has been brought, but not yet determined, such weight as they see fit in discharging their duties to their clients and employees.  There is also a public interest in clients knowing of the charges before accepting a solicitor’s advice to brief Mr Belperio.  Suppression of the information is not only contrary to the open justice principle, and, therefore, liable to diminish public confidence in the disciplinary regime, it is also a paternalistic denial of the personal autonomy of those legal practitioners and of members of the public who may have dealings with Mr Belperio in his professional capacity.

19. In Legal Profession Conduct Commissioner v A Practitioner (No 2),[44] Nicholson J agreed to anonymise the respondent in the judgment his Honour delivered so that publication would not adversely affect the respondent’s reputation before the charge was heard and determined.  His Honour did so on the understanding that the judgments of the Court are disseminated as a matter of course to judicial officers and members of the profession and to free online legal publishers, such as and .

    [44] (2017) 128 SASR 444.

20. Justice Nicholson made the point that his order was neither a suppression order, nor an order prohibiting in any way a member of the public from making an application to see the judgment and other parts of the file pursuant to s 131(1)(f) of the Supreme Court Act.  The form and style of the judgments delivered and disseminated by a court are a matter for the judges of that court. 

21. Nonetheless, in the course of the judgment, Nicholson J surveyed changes over time of the approaches to the publication of disciplinary proceedings brought against practitioners before they are determined.  Much of that history is set out in Re Legal Practitioners Ordinance 1970; Ex parte Law Society (ACT); Re Giles.[45]  In short, the traditional rule was that the practitioner’s name would be suppressed until an adverse finding had been made.  The 19^th Century justification for the rule was that the charge might not be proved and that, therefore, ‘a becoming delicacy should be observed in such applications’.[46]  It will be recalled that in Scott v Scott[47] Viscount Haldane LC firmly rejected the proposition that ‘feelings of delicacy’ alone were enough to justify departure from the open justice principle.  The traditional rule was rejected in New South Wales in Re Charles Wood Readett[48] and Ex parte Pratt; Re P V M’Culloch,[49] but restored in Re a Gentleman, One.[50]  The traditional rule was formulated before the exposition of the open justice principle in Scott v Scott and is, therefore, of doubtful authority.  It was also formulated at a time when the public interest in the regulation of the legal profession was little recognised.  The inclusion of lay persons in the membership of disciplinary bodies in the late 20^th Century marks a fundamental shift in that respect. 

    [45] (1985) 61 ACTR 1, 4-5 (Blackburn CJ, Kelly and Gallop JJ).

    [46]   Re (Attorney) (1860) 2 LT Rep (NS) 432, 432 (Erle CJ).

    [47] [1913] AC 417, 438-40.

    [48] (1888) 5 WN (NSW) 20, 20 (Darley CJ, Windeyer and Stephen JJ).

    [49] (1889) 6 WN (NSW) 31, 31 (Darley CJ).

    [50] (1897) 13 WN (NSW) 229, 229 (Darley CJ, Stephen and Owen JJ).

22. The traditional rule was applied in this State in Re a Practitioner of the Supreme Court, where Bray CJ, Mitchell and Zelling JJ observed:[51]

    There is no doubt, we think, that it is proper to make a suppression order in matters such as this until the matter has been finally disposed of, or that it is proper in normal circumstances for the Court to make a perpetual order when the charge is dismissed.  Equally the name should be released if there is an order for disbarment or suspension.  The present case is in the doubtful borderland between the two, where there is an adverse order but only of admonition.

    [51] [1970] SASR 199, 202.

23. Ultimately, the Court did not make a suppression order and revoked an order prohibiting the publication of the practitioner’s name. Section 69 of the Evidence Act then provided that a suppression order could be made ‘for the furtherance of, or otherwise in the interests of, the administration of justice’.  The decision in Re a Practitioner pre-dates by nearly three decades the amendments to the Evidence Act which strengthened and extended the scope of the open justice principle. I consider the relative width of that expression in contrast to the narrower terms of s 69A of the Evidence Act further below. Moreover, it was decided well before s 131 of the Supreme Court Act in its current expansive form.  The decision in Scott v Scott was not referred to. 

24. The prevailing attitude of the profession and the Court at the time Re a Practitioner was decided, favoured keeping information about disciplinary matters from the public.  It was considered a matter to regret that ‘the Statutory Committee of the Law Society has not the power that other professional bodies have, to deal … with minor and venial infractions of professional discipline’[52] in private.  There is a notable omission in the reasons of the Court in Re a Practitioner of any reference to the public interest in disclosure so that members of the public could make informed choices about the legal practitioner with whom to entrust their personal affairs, transactions, or litigation.  As I have already observed, a practitioner subject to disciplinary proceedings continues to be held out by this Court, as the ultimate licensing authority, to be a fit and proper person to practise law.  Without in any way diminishing the importance of the presumption of innocence, which in this respect has the effect that the practitioner is entitled to practise unless and until the charge is proved, and a sanction which removes or limits that right is imposed, a charge necessarily brings that privilege into question.  It is no small matter to conceal from the public that a practitioner’s entitlement to practise has been brought into question, and the reason(s) therefor, by the laying of a charge for a disciplinary offence and the grounds on which the charge is brought.  The reasonably prudent member of the public would take into account that a practitioner has a pending charge, and the nature of the charge, before entering into a relationship in which he or she must rely on the practitioner discharging his or her professional and fiduciary duties. 

    [52]   Re a Practitioner of the Supreme Court [1970] SASR 199, 201-2 (Bray CJ, Mitchell and Zelling JJ).

25. The move toward the recognition of the public’s interest in having information about whether the professional person being consulted is subject to disciplinary proceedings is reflected in the decisions of the disciplinary bodies constituted in respect of other professions: that public interest is served by the ultimate purpose of such proceedings, being the protection of the public.[53]

    [53]   Craig v Medical Board of South Australia (2001) 79 SASR 545, 553-4 [41] (Doyle CJ, Williams and Martin JJ agreeing); Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118, [46] (Stanley J, Peek and Blue JJ); Marin v Chiropractic Board of Australia [2020] SASCFC 74, [2] (Kourakis CJ, Peek and Nicholson JJ agreeing).

1. The scope of the statutory rule making power in s 72 of the Supreme Court Act is necessarily limited by s 131(1) of that Act. Construing both sections together, Parliament could not have intended to give the Judges of this Court a super-legislative power to detract from, or abrogate, s 131 of the Supreme Court Act.  That approach to construction is well-understood in respect of the regulation making power of Executive Government.  It is all the more unlikely that such a power would be conferred on the judicial arm of government, which is not accountable, through Parliament, to the people of the State.

2. Accordingly, r 32.2(2) of the UCR must be read down to conform with s 131 of the Supreme Court Act; at least in two fundamental respects. It cannot remove a document which falls within the meaning of a process of the Court from the scope of s 131(1)(aa) of the Supreme Court Act. Secondly, it cannot apply to a filed document of any kind which was subsequently received in open court. Material may be received in open court, even on an interlocutory application. In that context and consistently with s 46A of the Supreme Court Act which extends the open justice principles to applications heard in Chambers, ‘received’ must be understood as including deployed.[98]

   [98]   R v Keogh [2013] SASCFC 74, [21] (Nicholson J).

3. Procedures adapted to serve the interests of the administration of justice can be developed for those cases in which commercially confidential documents or other publicly sensitive materials which warrant a restriction on access are not disclosed in a process, within the meaning of that term in s 131(1)(aa). For example, the parties may very broadly outline the controversy in a filed process, like a pleading, but tender in closed court affidavit material particularising the claims and defences. In respect of evidentiary material, the parties will need to consider in advance of a hearing whether they will ask the public to be excluded from certain parts of the hearing. Even with good planning, a slip may occur. How that may be fairly remedied may need to be considered in the future. In this case, however, it is plain enough that the failure to seek the orders arose more from unfounded assumptions than a slip of any kind.

   Section 84A of the Legal Practitioners Act

4. Mr Belperio relied heavily on the orders made in the Tribunal which were, at least, intended to prevent his identity becoming known.  This Court must exercise the powers it has according to law and, as to it, seems just.  However, for the reasons which follow, it is doubtful that those orders were properly made by the Tribunal.

5. Section 84A of the LPA provides:

   84A—Proceedings to be generally in public

   (1)Subject to subsection (2), an inquiry under this Part must be held in public.

   (2)The Tribunal may order that an inquiry or part of an inquiry be conducted in private if satisfied that it is necessary to do so in the interests of justice or in order to protect the privacy of clients of the legal practitioner or former legal practitioner whose conduct is the subject of the inquiry.

   (3)If proceedings of the inquiry are held in private, the Tribunal must prepare a summary of the proceedings containing such information as may be disclosed consistently with the interests of justice and the need to protect the privacy of clients.

   (4)A copy of any such summary must be made available on request at the Tribunal’s public office for inspection by any interested member of the public.

6. The following history of the legal profession disciplinary regime is taken from a submission provided by the Law Society at the Court’s request.

7. The Law Society Act 1915 (SA) (“the Law Society Act”) incorporated the Law Society and by s 19(1) established “a committee of the Council of the Society” (to be called the “Statutory Committee of the Law Society”) “for the purposes of hearing charges of illegal or unprofessional conduct upon the part of the practitioners”. The Committee comprised five members appointed by the Governor on the nomination of the Chief Justice. By s 21 of the Law Society Act, any aggrieved person could make a charge, in writing, to the Council of the Law Society which then referred to the Statutory Committee.   By s 22, the Council was empowered to appoint a practitioner to investigate the charge and prosecute it before the Committee.  The Committee was empowered to summons the practitioner and witnesses.[99]  By s 31 of the Law Society Act, if the Committee made a finding of guilt of illegal or unprofessional conduct, it was required to transmit a report to the Supreme Court.  The Statutory Committee was not empowered to impose any sanctions, even for the most minor transgressions.  It was the lack of any such power which Bray CJ “regretted”.[100]

   [99]   Law Society Act 1915 (SA) s 23.

   [100] See [71] above.

8. The Law Society Act did not make any provision for the hearings of the Statutory Committee to be in private or public.  The records searched by the Law Society do not contain any indication as to whether the hearings were in public or private.  There are no records to suggest that the hearings were advertised or otherwise notified to the public. 

9. The private nature of the proceeding was such that no member of the public was likely to know when or where an inquiry was to be heard.  Moreover, the inquiry was likely to be held in the private premises of the Society or a law firm to which the public would have had no right of access. 

10. Not surprisingly, the Law Society accepted that the hearings under the Law Society Act were probably in private.

11. In 1916, rules were made to govern the practice of the Statutory Committee by three Judges of the Supreme Court.  Those rules required the Committee to report first to the Council which was in turn required to forward the report to a Master of the Supreme Court if finding of guilt had been made.  There was a change to the rules in 1973, whereby, if the Committee found illegal or unprofessional conduct, it was required to transmit the report directly to the Supreme Court and send a copy to the Council.  In any other case, the report was transmitted to the Council and a copy was sent to the ‘office of the Master of the Supreme Court’.  The report was placed in a sealed envelope marked with the name of the practitioner and bearing the words ‘Statutory Report’.  That copy could not be perused by any person other than with the consent of the practitioner or by order of the Court.  The 1973 rules did not make any provision as to whether the Statutory Committee hearings were to be heard in private or public, nor did they make any reference to the publication of its detail.

12. The Legal Practitioners Act 1936 (SA) (“the 1936 Legal Practitioners Act”) continued the Statutory Committee regime with practically identical provisions.  It remained silent on whether the hearings of the Statutory Committee were to be held in private or public. 

13. The Legal Practitioners Act 1981 dismantled the Statutory Committee regime. By s 68(1), the Legal Practitioners Act 1981 established the Legal Practitioners Complaints Committee. By s 68(2) of the Legal Practitioners Act 1981, the Committee comprised four nominees of the Law Society and three nominees of the Attorney‑General, two of the latter were required to be laypersons. The Committee was not expressed to be a committee of the Council of the Law Society as the Statutory Committee had been. The Secretary of the Committee was appointed by the Attorney-General. Section 70(6) of the Legal Practitioners Act 1981 prohibited the Committee from meeting on the premises of the Law Society and, by later amendment in 1991, permitted the Committee to meet on those premises with the prior approval of the Attorney‑General.  The provisions also suggest that before the enactment of the Legal Practitioners Act 1981 hearings of the Statutory Committee were held on the premises of the Law Society. 

14. Nonetheless, the Committee shared its staff with the Law Society.   

15. The Legal Practitioners Act 1981, therefore, took significant steps towards more accountability and transparency in the disciplining of legal practitioners and in reducing the control of the Law Society and the disciplinary regime. 

16. Section 78 of the Legal Practitioners Act 1981 established the Tribunal, comprising of 12 members appointed by the Governor. Section 84A provided as a default rule that inquiries would be held in public.

17. Searches by the Law Society reveal that following the enactment of the Legal Practitioners Act 1981, the published decisions of this Court touching upon disciplinary proceedings or entitlement to practise have generally not anonymised the names of practitioners.  Those decisions include decisions to strike a practitioner from the Roll of Practitioners, applications for suspension of practising certificates, appeals from decisions of the Tribunal, applications for judicial review, and costs disputes.

18. The Legal Practitioners (Miscellaneous) Amendment Act 1996 (SA) changed the name of the Committee to the Legal Practitioners Conduct Board. The role of Secretary was changed to that of Director, who was made the chief administrative officer. The Director was appointed by the Board with the approval of the Attorney‑General. It was by that Act that s 84A(2) was amended to include the maintenance of confidentiality of clients as a reason for conducting an inquiry in private. Section 89 was not amended by that Act, but in 1998 was amended to permit the Board to institute disciplinary proceedings in the Supreme Court which hitherto could only be instituted by the Attorney-General or the Law Society.

19. The Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) abolished the Board and created the office of the Legal Profession Conduct Commissioner. It conferred on the Commissioner expanded powers to discipline practitioners without taking proceedings in the Tribunal.

20. The Legal Practitioners (Miscellaneous) Amendment Act 2013 also established the Register of Disciplinary Action.  Section 89C obliged the Commissioner to maintain the ‘Register of Disciplinary Action’ and to make it available for inspection on the internet.  Disciplinary action taken in relation to professional misconduct must be included in the Register.  A discretion was conferred on the Commissioner to include disciplinary action taken in relation to unsatisfactory professional conduct or the removal of a practitioner’s name from the Roll of Practitioners.  Disciplinary action included a finding of unsatisfactory professional conduct or professional misconduct and sanctions from a reprimand to removal from the Roll of Practitioners and suspension. 

21. It is clear that the purpose of the Register was to have a permanent and online record of practitioners against whom a serious finding had been made to allow the public an informed choice in engaging a legal practitioner. No implication can be taken from the statutory limiting of the Register to adjudications of misconduct and the sanctions imposed that the Parliament intended that inquiries should be held in private or that the name of the practitioner should not be publicised by other means other than the Register, unless and until there had been an adverse finding. Any such implication is precluded by the plain words of s 84A.

22. In the context of that history, it is clear that the purpose of s 84A was to remove disciplinary proceedings brought against practitioners from behind closed doors and subject them to public scrutiny. It is significant in that respect that the establishment of a Conduct Board, which replaced the Conduct Committee of the Law Society included laypersons in its membership. Those changes in the disciplinary regime for legal practitioners demonstrate that the increasing public expectations as to the standards which legal practitioners should observe, and the transparency of the process which holds them to account.

23. Section 84A(1) of the LPA is a strong application of the open court principle to the Tribunal. The exception to the general rule in subsection (2) requires satisfaction that it is in necessary to do so in the interests of justice or to protect legal professional privilege.

24. The power conferred by s 84A of the LPA to hold an inquiry, or part of it, in private is not concerned with the laying of the charge or with the filing of any other documents or the correspondence the Tribunal may have received about an inquiry. It is the inquiry which may be conducted in private. Nor does the power, by implication, extend to the making of a non-publication order. In particular, it does not prohibit the publication of information concerning the complaint which might have been obtained from sources other than by being present in the hearing room in which the Tribunal undertook the inquiry. The power is limited to conducting the inquiry in private. The Tribunal is empowered to lock the doors to the public and, by implication, not to give any notice of when and where it is sitting, but no more.

25. The Tribunal does not have a power to punish for contempt. Rather, s 84(3) of the LPA provides that it is an offence to fail to attend in accordance with a summons, or produce documents in accordance with a summons, to misbehave or insult the Tribunal, or to refuse to be sworn. Section 84(3)(e) also constitutes the offence of neglecting or failing without reasonable excuse to comply with any other reasonable requirement of the Tribunal. It may be that a person who refuses to leave a hearing room after an order is made pursuant to s 84A(2) would commit that offence. Similarly, if a person were to force himself or herself into the hearing room after the doors had been locked, that conduct would probably constitute the offence.

26. It can be accepted, and is the very premise on which the decision in Scott v Scott proceeds,[101] that it is a contempt if persons present in a closed proceeding disseminate information obtained by reason of the permission granted to them to remain.

    [101] [1913] AC 417.

27. It may also be accepted that the Tribunal on proper grounds could, before allowing a person to observe the inquiry, or part of it, extract an undertaking from them which, if breached, might constitute a failure to comply with a reasonable requirement. 

28. However, if a person, who was not present when the inquiry was held in private, published an account of the case against the practitioner obtained from other sources, it is difficult to see how that person has failed to comply with an order that the inquiry be conducted in private. 

29. Of course, a person who published an account might nonetheless, subject to a proper defence, be liable for an action in defamation or for breaching confidence.  However, any such liability is not founded on any order which the Tribunal can make.

30. For present purposes, it is of greater importance that the power in s 84A(2) of the LPA is limited to hearing the inquiry, or part of it, in private. For the following reasons, the order does not extend to the receiving of the complaint.

31. A complaint is laid in accordance with the Legal Practitioners Disciplinary Tribunal Rules (“the Rules of the Tribunal”).  Those rules provide that there shall be a secretary of the Tribunal who is responsible for the custody of all papers and records of the Tribunal and must not divulge information that comes to his or her knowledge by virtue of that office except in the course of and for the purpose of carrying out the duties of the office.  The duties are not set out in any detail and perhaps are no more than being responsible for the custody of the papers and records.  The information may be disclosed if authorised by the rules or by the Tribunal.

32. Rule 4 provides that a charge laid under s 82 shall be in a particular form and shall be served upon the secretary, the practitioner to whom the charge relates, and, except where the complainant is the Society, upon the Society.  Rule 9 of the Rules of the Tribunal empowers the Tribunal to make orders as to discovery and the provision of particulars and the hearing procedure.

33. Rule 11 provides:

    11.In the hearing and determination of any proceedings, subject to any provision of the Act relating to the conduct and the manner of receiving evidence, the Tribunal shall observe such of the rules of evidence including such of the Supreme Court Rules and other statutory or regulatory provisions relating to evidence as apply from time to time to the hearing of civil proceedings in the Supreme Court of South Australia save that in any particular proceedings, if it is satisfied that such a course will:

    (a)     avoid undesirable prolixity; or

    (b)     effect a substantial saving in costs; or

    (c)     allow evidence to be adduced which should, in the interests of justice be received and which would otherwise be inadmissible or unavailable to it,

    the Tribunal may inform its mind in such manner as it thinks fit. 

    It is to be observed that that rule applies only to the hearing and determination of any proceedings.  It does not apply to documents in the custody of the secretary. 

34. The Rules of the Tribunal do not apply the Supreme Court Rules as to the filing of documents and the basis on which they should be applied generally.  In particular, it is not in terms which would pick up r 32.2 of the UCR.  Only those Supreme Court Rules ‘relating to evidence’ are picked up. 

35. The laying of a charge is not an inquiry.  On the contrary, it is the process which invokes the Tribunal’s jurisdiction.  Section 82(1) merely provides that a charge may be laid alleging unsatisfactory professional conduct or professional misconduct. 

36. Section 82(4) provides:

    (4)Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates.

37. It must first be noted that contextually the charge which has been laid goes first to the Secretary of the Tribunal who, of course, is not authorised to conduct any inquiry.  When notified by the Secretary, the Tribunal is constituted, in accordance with s 80, which provides for a coram of either three members of the Tribunal or a single member depending on the matter.  The sitting member or members are chosen by the Presiding member of the Tribunal. 

38. It follows that until a Tribunal is constituted, there cannot be an inquiry. Section 84A(2) can therefore have no application to the document by which the charge is laid. Moreover, in accordance with s 82(5), the Tribunal may take the step of summarily dismissing a charge that is frivolous or vexatious without conducting an inquiry. The summary dismissal order can be made by a single Tribunal member irrespective of the seriousness of the charge. It precedes the inquiry. The proceedings from which the appeal were brought were arguably proceedings of that kind and s 84A(2) of the LPA, on that premise, can have no application to them.

39. The effect is that the closure of the Tribunal cannot prohibit in any way the publication of any information about the charge. Schedule 4, which sets out the investigatory powers of the Commissioner, provides that the Commissioner or an investigator or any person employed or engaged on work related to the affairs of the Commissioner must not divulge information that comes to his or her knowledge by virtue of that office except in the course of carrying out the duties of that office or position or with the consent of the person to whom the information relates. By s 72, the functions of the Commissioner include the laying of a charge.

40. I am not persuaded that the laying of a charge discloses information.  The charge only sets out the ultimate findings of fact on which it is alleged the practitioner engaged in professional misconduct or unsatisfactory professional conduct.  Those facts might be the product of a complex evidential matrix about which the charge does not reveal anything.  That, of course, does not mean that the Commissioner cannot be liable in defamation or in breach of confidence, but the Commissioner may plead the defence of truth if no more than the fact of the laying of the charge is communicated.

1. More importantly, the locus of the Tribunal’s power in respect of disclosure of its records, including its decisions, is the power necessarily implicit in the Rules of the Tribunal to direct its Secretary to release them.  That power must be exercised consistently with the open justice principle as it has been explained in [24] to [55] above.

2. In this particular case, even if there were power, there is no apparent basis for the orders made by the Tribunal.  It was inquiring into a jurisdictional matter on which no evidence was to be led.  The complainant’s name was anonymised.  No undue hardship to any potential witness and, in particular, the practitioner’s wife has been identified.  When pressed in this Court to identify a basis, counsel for Mr Belperio relied on the potential damage to the practitioner’s professional and personal reputation if there were publication of the charges before an adjudication of guilt.  However, for the reasons already given that does no more than identify a personal interest.  The law does not protect the personal and professional reputations of persons charged with criminal offences.  Indeed, the open justice principle will generally militate in favour of disclosure. 

   Conclusion

3. For the reasons stated above, it follows that Mr Belperio’s application for a suppression order, as well as each of the various alternative orders sought by him redacting materials filed in the matter and purporting to restrict the public’s right of access thereto, must be dismissed. The following orders made to preserve Mr Belperio’s anonymity until his applications and the application of Mrs Belperio were determined must be revoked:

   1.The order of 22 April 2024, anonymising the respondent in the cause list published by the Court for any listing of this proceeding as “a Practitioner”, is revoked.

   2.The interim orders of 20 June 2024 on the appeal and judicial review files, made under r 32.2 of the UCR and restricting all documents filed on the Court file on a party access basis, including access by judicial officers, are revoked.

   3.The interim suppression order of 6 September 2024, prohibiting the publication of any report of the proceedings that refers to the possibility that the respondent’s wife may be a witness in the disciplinary proceedings or to her health, is revoked.

   4.The interim suppression order of 27 September 2024, prohibiting any publication:

   (a) which identifies the respondent by name or which might tend to identify him as being the person the subject of the charge before the Legal Practitioners Disciplinary Tribunal or a party in this proceeding;

   (b) of any content of paragraphs 9, 10 and 14 of the respondent’s affidavit made on 30 August 2024;

   (c) of the submissions made by Senior Counsel for the respondent at the hearing on 6 September 2024 regarding the respondent’s wife;

   (d)of any content of the affidavit of Matthew Selley made on 9 September 2024 and its exhibits (“Selley Affidavit”);

   (e) of any content of the affidavit of what has been referred to in submissions as the Other Affidavit made on 9 September 2024 and its exhibits (“Other Affidavit”);

   (f) of the submissions made by Senior Counsel for the respondent regarding the Selley Affidavit and the Other Affidavit, is revoked.

4. I would receive into open court appropriately redacted affidavits of Mr Belperio, Mrs Belperio, and Mr Selley and the report of Mr Broomhall which do not reveal details of:

   ·sensitive personal information;

   ·the adverse impacts, or potential impacts, on, or the symptoms of, Mr Belperio’s mental health, other than general references to his anxiety and depression; and

   ·the circumstances of their children.

   I would hear the parties on the precise redactions.

5. I would also make a suppression order over those parts of the transcript of the hearing before this Court on Friday 13 September 2024 to prohibit publication of information of that kind.

6. I would hear the parties on the precise redactions and on any supplementary orders.

7. I would hear the parties as to the costs of the hearings. 

8. BLEBY JA and STEIN AJA:   We agree that Mr Belperio’s application for a suppression order, as well as the various alternative orders in the form sought by him, must be dismissed.  We also agree with the orders proposed by the Chief Justice.

9. We broadly agree with the reasons given by the Chief Justice supporting his conclusion that Mr Belperio’s application for a suppression order, as well the various alternative orders in the form sought by him, must be dismissed.  We give that indication with the following qualifications.

10. On the topic of the alleged professional misconduct, we do not think it is necessary to traverse the allegations.  This appeal arose out of the Tribunal’s summary dismissal of charges and concerned whether the charges were competent.  Senior counsel for Mr Belperio made a submission that the allegations did not go directly to Mr Belperio’s professional capacity and ‘on one view’ did not involve professional conduct such as to amount to professional misconduct.  That submission was made in response to a question about how preventing the public knowing the substance of the allegations would serve the interests of justice. 

11. In our view, it is sufficient to recognise that contemporary understandings of unsatisfactory professional conduct and professional misconduct, which understandings we share, recognise that abuses of imbalanced power relationships within the profession can extend to social interactions.  The conduct of practitioners in social settings is capable of constituting unsatisfactory professional conduct or professional misconduct.

12. While we are apprised of the allegations against Mr Belperio, we do not think that it is necessary on this application to give an account of them.  This Court is not concerned with the character of proved allegations.  It is sufficient to recognise that whatever view is taken of the allegations against Mr Belperio, the withholding of them from public scrutiny to avoid ‘the potential prejudgment of the practitioner’, as counsel phrased it, serves a personal interest, not a public interest in the administration of justice.  That is so notwithstanding that the allegations are likely to be embarrassing and detrimental to Mr Belperio’s personal and professional reputation.

13. How the Tribunal, supervised by this Court, approaches allegations about the behaviour of one practitioner towards a more junior practitioner, in any circumstance alleged, should be open to scrutiny.  Subject to the exceptional considerations the Chief Justice addresses, transparency in how the Tribunal addresses such allegations against members of a relatively small and privileged profession is extremely important in promoting public confidence in the profession.

14. With respect to the evidence of Mr Broomhall, we have viewed the circumstances in which Mr Broomhall was first contacted in the light of Mr Belperio’s need to obtain an expert report at very short notice over the weekend to support the application for suppression orders.  

15. A number of aspects of Mr Broomhall’s opinion were shown in cross‑examination to lack sufficient evidential foundation or explanation.  The frailties in the evidence are such that we cannot be satisfied the evidence before this Court is sufficient to justify the conclusion that Mr Belperio met the criteria for a Major Depressive Disorder: Single Episode, Severe.

16. We agree with the Chief Justice, for the reasons given by his Honour, that the potential for harm to the professional and personal reputation of a person charged with professional misconduct, caused by publicity of the charge, will not generally prejudice the administration of justice in disciplinary proceedings or on a review of those proceedings. We also agree that in a particular case it may do so. In circumstances where s 69A(2) of the Evidence Act does not incorporate the prevention of undue hardship to a party to justify a suppression order, it would be necessary for the matters referred to by Mr Broomhall to cause this Court to be satisfied that a suppression order should be made to prevent prejudice to the proper administration of justice.  That is a consequence of the legislature’s prioritisation of open justice.

17. Mr Broomhall ultimately made a recommendation as to what should happen if Mr Belperio’s name were to be made public.  The recommendation is of an expert witness engaged at short notice, based on limited inputs, not a recommendation from a treating practitioner.  Accepting it on its face as a good faith recommendation in the exercise of Mr Broomhall’s professional judgment, it does not go so far as to indicate any persuasive basis for concluding that Mr Belperio would not be able to defend the charge in due course.  Indeed, in the course of cross-examination, Mr Broomhall was asked about the extent to which he could prognosticate about the fitness of Mr Belperio to give evidence in the future.  Mr Broomhall was asked if he would need to know, for example, what supports had been put in place and Mr Belperio’s response to those supports, should his name become public.  He agreed that he would want to assess those matters and see evidence of a number of matters, including Mr Belperio’s current mental state.  He agreed that at present, he would ‘be guessing a little too much’.

18. For these reasons, we consider that Mr Broomhall’s evidence does not support the proposition that it is necessary to suppress Mr Belperio’s name to ensure that the defence of the charge is not prejudiced.  It is insufficient to meet the statutory requirement for satisfaction that a suppression order should be made to prevent prejudice to the proper administration of justice.

19. It is not necessary for us to traverse the evidence of Mrs Belperio.  We agree that the prospect of her giving evidence is speculative.  In expressing that agreement we do not, however, place any weight on the failure to have obtained a statement from her until recently. We would not speculate on the relative importance that Mr Belperio may have found necessary to have accorded to the competing considerations of his defence to the charge and maintaining his home life.

20. We do not consider the evidence of Mrs Belperio establishes undue hardship to her as a potential witness or a risk of prejudice to Mr Belperio’s conduct of his defence to the charge so as to satisfy us a suppression order should be made to prevent prejudice to the proper administration of justice.  That is especially given the relatively remote and speculative prospect of her giving evidence.

21. On the scope of s 131(1)(aa) of the Supreme Court Act, we agree with the reasons of the Chief Justice that ‘process’ extends to pleadings and interlocutory steps. We also agree that s 131(2) is concerned with evidentiary material. In our view, no affidavit filed in proceedings comes within the concept of ‘any process relating to proceedings…’ within the meaning of that phrase in s 131(1)(aa).

22. We accept that it has long been the case that a controversy may be defined by affidavits rather than by pleadings.  That exigency is presently provided for by UCR 82.1, which provides for proceedings instituted by way of originating application and supporting affidavit.  The supporting affidavit will, on many occasions, go some way to setting the parameters of the controversy, notwithstanding that it must comprise evidence admissible at trial.  It is required to set out the facts on which the applicant relies to seek the order sought.[102]

    [102] Uniform Civil Rules 2020 (SA) r 82.2.

23. Similarly, the process of responding to an originating application and affidavit contemplates both a response and an affidavit that must set out the facts on which the Respondent or interested party relies in relation to the orders sought.[103] Notwithstanding that affidavits filed within the contemplation of these rules can have an important function in defining the issues in dispute, it seems to us that the scheme of s 131 is intractable in treating such affidavits as ‘material’ within the meaning of s 131(2) and not a ‘process’ within the meaning of s 131(1).

    [103] Uniform Civil Rules 2020 (SA) r 83.2.

24. Pursuant to UCR 256.4, an action for judicial review is commenced by filing an originating application, a statement of facts, issues and contentions, and a supporting affidavit.  A respondent or interested party who opposes the application must file a response to the statement of facts, issues and contentions, together with a responding affidavit.[104] The statement and the response must not include evidence. It is these documents that define the issues in dispute. It follows that they are properly regarded as part of the process within the meaning of s 131(1).

    [104] Uniform Civil Rules 2020 (SA) r 256.6

25. It also follows that while we accept that the Rules required the affidavit to be filed in support of the application for judicial review, that is, in support of the process that comprised the originating application and the statement of facts, issues and contentions, we do not think that the affidavit itself can be regarded as part of the ‘process’ within the meaning of s 131(1)(aa).

26. On an appeal, the Registrar has the power, and if directed, the duty, to request the Court or Tribunal at first instance to transmit to the Court the documents relevant to the appeal.[105]  The step required by UCR 214.3 is facilitative of the appeal.  However, we do not think that the transmission of the materials from the first instance court to this Court as the appellate court warrants the conclusion that this material forms part of the ‘process’ of this Court on appeal.

    [105] Uniform Civil Rules 2020 (SA) r 214.3.

27. Rather, the accessibility of evidentiary material tendered at trial will in the first instance be governed by the regime applicable to the trial court, for example, s 54 of the District Court Act 1991 (SA) or s 51 of the Magistrates Court Act 1991 (SA). Processes in the lower court and evidentiary material tendered in that court will be accessible according to what are, essentially, mirror provisions of s 131 of the Supreme Court Act.  Where the proceedings occurred in a specialist tribunal, such as the Tribunal in this case, the accessibility of materials will be governed by the regime applicable to that tribunal and, otherwise, the absence of any prohibition on access.

28. Having said that, to the extent that the question of accessibility of records of this Court on an appeal is concerned, there is a slightly anomalous disconnection between the terms of s 131(1)(b), which permits inspection of ‘any documentary material admitted into evidence in any proceedings’ and s 131(2)(a), which prohibits, without the permission of the Court, inspection or copying of ‘material that was not taken or received in open court’. A question that arises is the status of documentary material transmitted to the Supreme Court under UCR 214.3 and received by the Court on appeal and documentary material forming the content of the appeal book under UCR 218.4. This material is not admitted into evidence before the Court of Appeal, but it is received by that Court.

29. First, for the reasons we have discussed with respect to the material transmitted under UCR 214.3, we do not think that the core appeal book is a ‘process’ of the Court within the meaning of s 131(1)(aa). The core appeal book is, in essence, a book of materials that is filed, in the ordinary course, 28 days after the preparation commencement date.[106]  The content of the core appeal book is dictated by UCR 218.4.

    [106] Uniform Civil Rules 2020 (SA) r 218.3.

30. The core appeal book is not tendered on the appeal but, in our view, once the hearing of the appeal is commenced, it is received. It therefore does not come within the negative stipulation in s 131(2) (‘material that was not taken or received in open court’) but neither was it admitted into evidence. However, it seems to us that once a core appeal book is received in open court, there is no general prohibition on its contents being made accessible to the public. We take the view that s 131(2)(a) is to be read together with s 131(1)(b), to the effect that absent an order that material of this kind be received in closed court or suppressed, once the Court of Appeal receives it, it is accessible by the public as material received in open court. There is no apparent prohibition on it being accessible once so received.

31. The core appeal book will, on occasion, contain material that is sensitive or confidential.  Those matters can be addressed by any application for that material to be received in closed court.  The fate of any such application will likely mirror what transpired in the court below.  A suppression order made in the court below will, of course, be ongoing unless subsequently varied or revoked.

32. In this case, the document setting out the charge was received in open court on the appeal hearing.  For the reasons given above, we would hold that there is no prohibition against it being accessible by the public.

33. We agree with the orders proposed by the Chief Justice.

    Note

    Some of the orders made by the Court have been stayed.  The precise form of the orders can be obtained from the Registry.