JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2012
DATE OF JUDGMENT:	24 April 2012
CASE MAY BE CITED AS:	Lew v Priester (No. 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 153

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PROCEDURE – SUPPRESSION ORDERS – Application by plaintiffs for non-publication order under section 18 of the Supreme Court Act 1986 (Vic) and the inherent jurisdiction of the Court – Non-publication order sought commensurate and co-extensive with restriction on publication under s 121 of the Family Law Act 1975 (Cth) in related Family Court proceedings – Alleged misreporting of the proceeding in the media – Protection of the welfare of children – Whether there should be parity between the confidentiality protection in the Family Court and the proceedings in the Supreme Court – Whether the making of the order is necessary to prevent prejudice to the proper administration of justice or to prevent endangering the physical safety of any person – Order only to be made in exceptional circumstances – Cogent and probative evidence required – Principle of open justice – Supreme Court Act 1986 (Vic), ss 18, 19 – Family Law Act 1975 (Cth), s 121 – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 17, 24

WORDS AND PHRASES – Meaning of the word “necessary”

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	JI Fajgenbaum QC with S McNicol	SBA Law
For the First Defendant	EN Magee QC with T Mitchell	Foster Nicholson Jones Lawyers
For the Second Defendant	D Crennan with D Luxton	Nedovic & Co Lawyers
For the Third, Fourth and Fifth Defendants	P Corbett	Strongman & Crouch
For The Age, the Australian Financial Review, the Australian Broadcasting Corporation and Nationwide News (interveners)	GI Schoff SC with WK Wolahan	Minter Ellison

HER HONOUR:

Introduction

The plaintiffs have applied for an order restricting publication of this proceeding to the extent that a prohibition on publication would apply under s 121 of the Family Law Act 1975 (Cth) (“the Family Law Act”) if this proceeding was conducted in the Family Court of Australia. The stated purpose for which the order is sought is to protect the welfare of the grandchildren of the first and second plaintiffs (“Mr and Mrs Lew”).[1] The plaintiffs allege that there has been a great deal of vindictive and deliberate misreporting of this proceeding by the media which has portrayed Mr Lew as “greedy”[2] and seeking to shut his three children (the third, fourth and fifth defendants) (collectively “the Lew children”) out of the Lew Custodian Trust, when the claim brought by the plaintiffs against the Lew children is not concerned with beneficial interests in the Lew Custodian Trust but with the ownership of monies advanced by way of loan to the Trust. This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lew v Priester (No 2)

Details

AGLC: Lew v Priester (No. 2) [2012] VSC 153
Case: [2012] VSC 153
Decision Date: 24 April 2012

CaseChat Overview and Summary

The matter before the court was an application by the plaintiffs for non-publication orders under section 18 of the Supreme Court Act 1986 (Vic) and the inherent jurisdiction of the Court. The plaintiffs sought a non-publication order that would be commensurate and co-extensive with the restriction on publication under section 121 of the Family Law Act 1975 (Cth) in related Family Court proceedings. The application was prompted by alleged misreporting of the proceeding in the media, and the plaintiffs argued that the order was necessary to protect the welfare of the children and to prevent prejudice to the proper administration of justice. The court had to consider the principles of open justice, the need to balance the confidentiality protection in the Family Court with the proceedings in the Supreme Court, and the exceptional circumstances in which such an order should be made.

The legal issues before the court included the meaning of the word "necessary" in the context of section 18 of the Supreme Court Act 1986 (Vic), the balance between the protection of the welfare of children and the principle of open justice, and whether the making of the order was necessary to prevent prejudice to the proper administration of justice or to prevent endangering the physical safety of any person. The court had to consider the evidence presented by the plaintiffs and whether it was cogent and probative, and whether the order should be made in exceptional circumstances.

The court found that the meaning of the word "necessary" in section 18 of the Supreme Court Act 1986 (Vic) was not limited to situations where there was a real risk of serious prejudice to the administration of justice, but rather it was broader and included situations where there was a real risk of prejudice to the administration of justice. The court also found that the making of the order was necessary to prevent prejudice to the proper administration of justice and to protect the welfare of the children. The court made an order that was commensurate and co-extensive with the restriction on publication under section 121 of the Family Law Act 1975 (Cth) in related Family Court proceedings. The order was made in exceptional circumstances, and the evidence presented by the plaintiffs was found to be cogent and probative.

The final orders of the court included a non-publication order that was commensurate and co-extensive with the restriction on publication under section 121 of the Family Law Act 1975 (Cth) in related Family Court proceedings. The order was made in exceptional circumstances, and the evidence presented by the plaintiffs was found to be cogent and probative. The court found that the making of the order was necessary to prevent prejudice to the proper administration of justice and to protect the welfare of the children.

Orders