Lester v Ananguku Arts and Culture Aboriginal Corporation
[2016] SASC 23
•17 February 2016
Supreme Court of South Australia
(Civil)
LESTER & ORS v ANANGUKU ARTS AND CULTURE ABORIGINAL CORPORATION
[2016] SASC 23
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
17 February 2016
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - JUDGMENTS AND ORDERS
PROCEDURE - JUDGMENTS AND ORDERS - EFFECT OF JUDGMENTS - IN GENERAL
The applicants (the plaintiffs) filed an interlocutory application that the court confirm orders made by it previously.
Those previous orders were made pursuant to the power of the court to control access to proceedings and supporting documents filed in the court.
The applicants sought that either those orders applied to the Ngintaka book published by Wakefield Press, which was in the possession or control of the defendant, or in the alternative, that the court extend the orders made by it previously to apply to the Ngintaka book.
The application arises out of proceedings in which the the plaintiffs seek orders prohibiting the publication of material and information about Ngintaka Tjukurpa.
The applicants contend that the order extends to information about the Ngintaka Tjukurpa in the Ngintaka book and that the order binds Wakefield Press.
Held per Kourakis CJ, dismissing the application:
1. Unless there are exceptional circumstances, orders of the court bind only the parties to the proceedings.
LESTER & ORS v ANANGUKU ARTS AND CULTURE ABORIGINAL CORPORATION
[2016] SASC 23Civil (ex tempore)
KOURAKIS CJ: This interlocutory application arises out of proceedings in which the plaintiffs/applicants seek orders prohibiting the publication of material and information about Ngintaka Tjukurpa.
An interlocutory application was made in 2014 to stop an exhibition at the South Australian Museum. That application was based around the Ngintaka Tjukurpa. No other interlocutory application for orders restricting the dissemination of the Ngintaka book have been made.
The plaintiffs/applicants have brought this interlocutory application asking that this Court “confirm” that orders made by it on 21 August 2015 and 7 December 2015 apply to the “Ngintaka” book published by Wakefield Press which are in the possession or control of the defendant or, in the alternative, seeking an extension of those orders so that they apply to the Ngintaka book.
The statement of claim has been amended from time to time. On the filing of the third statement of claim I made the following orders by consent in chambers on 7 December 2015:
1.Until further order, the statements comprising the particulars of paragraph 52 and 54 of the Third Statement of Claim filed on 25 November 2015 and currently placed in a separate envelope marked ‘Restricted Materials’ (‘the Restricted Materials’) shall not be shown to or viewed by any person apart from a Judge of this Court, a male Associate and any person permitted by Order 2 hereof.
2.That the Restricted Materials are to be provided to the defendant’s solicitor, Mr Graham Harbord, for use in these legal proceedings only. When Mr Harbord uses the Restricted Materials for that purpose he shall only reveal them to male persons instructed to assist him or persons retained as counsel in this matter, including Mr Richard Bradshaw and Mr Andrew Collett, and no more than ten initiated male Anangu persons for the purposes of taking instructions. Mr Harbord is to keep records of such persons’ names and addresses, and provide them to the plaintiffs’ solicitors, if so ordered by the Court. Mr Harbord, Mr Bradshaw, Mr Collett and the said initiated male Anangu persons shall not disclose the Restricted Materials to any other person until further order.
3.No copy of the Restricted Materials shall be made or supplied by Mr Harbord to any person other than Mr Bradshaw and Mr Collett. The Restricted Materials and each such copy will be kept in safe and secure locations by Mr Harbord, Mr Bradshaw and Mr Collett respectively.
On this application the plaintiffs/applicants contend that the orders extend to information about the Ngintaka Tjukurpa appearing in the Ngintaka book and that the order binds Wakefield Press Pty Ltd (Wakefield Press).
The Ngintaka book was published pursuant to contractual arrangements between the defendant and Wakefield Press. As part of those arrangements, copyright in the material in the book remained with the authors and Wakefield Press became the distributors of the book. One thousand five hundred copies were printed. The defendant purchased 500 copies, 390 of which have been disseminated. Wakefield Press has the right to distribute the remainder.
This application was brought after the plaintiffs/applicants learnt that copies of the book were being sold at the South Australian Museum. There is no evidence that the books being sold at the Museum were supplied by the defendant; indeed there is no evidence at all about the provenance of those books.
There is no evidence that the defendant retains any contractual right over Wakefield Press to control the manner in which, or the persons to whom, it sells or distributes the books.
The terms of the orders made on 7 December 2015 show that they were made pursuant to the power of the Court to control access to proceedings and supporting documents filed in the Court.
The term ‘Restricted Materials’ is defined to mean the information pleaded in paras [52] and [54] of the third statement of claim which were placed in a separate envelope and marked ‘Restricted Materials’.
Plainly the restricted materials placed in the envelope which Order 1 provides:
…shall not be shown to or viewed by any person apart from a Judge of this Court, a male Associate and any person permitted by reason of Order 2 hereof.
do not include the Ngintaka book. The term can only sensibly be a reference to that part of the pleadings filed in the Court and placed in an envelope.
The same construction must be given to the phrase ‘Restricted Material’ in Order 2 albeit with some necessary extension to the copy of the Restricted Materials appearing in the statement of claim necessarily served on the defendant and therefore accessible to their solicitors.
Order 2 restricts the use made by the defendant’s solicitors of the Restricted Material appearing on the statement of claim served on the defendant. It limits the use of the Restricted Material to purposes connected with the proceedings. Again however, the order does not apply to the Ngintaka book.
Nor does it apply to any third person.
Indeed it is a fundamental principle of the exercise of judicial power that save for very exceptional circumstances, and this is not one of them, the orders of a court bind only the parties to the action in which the orders are made.
For the above reasons I dismiss the application.
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