McJannett v Daley [No 2]

[2012] WASC 386 (S)

MCJANNETT -v- DALEY [No 2] [2012] WASC 386 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 386 (S)
Case No:	CIV:2118/2011	Heard:	17 OCTOBER 2012
Coram:	LE MIERE J	Delivered:	25/10/12
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	ROBERT PAUL MCJANNETT LEANNE PATRICIA DALEY
Catchwords:	Practice and procedure Application for suppression order over reasons for decision Defamation proceedings Principles of open justice
Legislation:	Nil
Case References:	Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10 Reynolds v Panten (No 1) [1999] WASCA 89; (1999) 23 WAR 215 Scott v Scott [1913] AC 417

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MCJANNETT -v- DALEY [No 2] [2012] WASC 386 (S) CORAM : LE MIERE J HEARD : 17 OCTOBER 2012 DELIVERED : 25 OCTOBER 2012 FILE NO/S : CIV 2118 of 2011 BETWEEN : ROBERT PAUL MCJANNETT

Plaintiff

AND

LEANNE PATRICIA DALEY
Defendant

Catchwords:

Practice and procedure - Application for suppression order over reasons for decision - Defamation proceedings - Principles of open justice

Legislation:

Nil

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : In person
Defendant : In person

Solicitors:

Plaintiff : In person
Defendant : In person

Case(s) referred to in judgment(s):

Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10
Reynolds v Panten (No 1) [1999] WASCA 89; (1999) 23 WAR 215
Scott v Scott [1913] AC 417


(Page 3)

1 LE MIERE J: In this action the plaintiff claims damages for defamation arising out of five publications. On 17 October 2012 I delivered reasons for dismissing the plaintiff's claim in relation to two publications, striking out the statement of claim and refusing leave to amend in accordance with a proposed amended statement of claim. On delivery of those reasons the plaintiff applied for an order suppressing those reasons for decision. The plaintiff also sought an order suppressing reasons for decision in this action which I published on 22 June 2012. Those were reasons for refusing an application to amend the statement of claim and dismissing an application for an interlocutory injunction.

2 The plaintiff applies for the suppression orders on the grounds that the reasons for decision set out statements defamatory of the plaintiff which are untrue. The defendant opposed the making of any suppression order or restriction on the publication of the reasons for decision on the ground that the public should have access to what occurs in the court.

3 An essential characteristic of courts is that they sit in public so that court proceedings are subject to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts: Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] (French CJ). However, the open court principle is not absolute. It may be limited in the exercise of the court's inherent jurisdiction: Hogan v Hinch [21] (French CJ). This may be done where it is necessary to secure the proper administration of justice.

4 The principle of open justice is that judicial proceedings must be conducted in an open court to which the public and the press have access: Scott v Scott [1913] AC 417. The exceptions to this fundamental rule are few. Another aspect of the principle of open justice is that a court is obliged to publish reasons for its decision not merely to provide reasons to the parties. Sir Frank Kitto KBE, a former justice of the High Court, in 'Why Write Judgments?' (1992) 66 Australian Law Journal 787 wrote:

It is not enough that the hearing of a case has been in public. The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practices of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to judicial high performance (790).

5 In Reynolds v Panten (No 1) [1999] WASCA 89; (1999) 23 WAR 215 Steytler J at [79] said:
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While the courts will always do what they can, within the limits of their function, to protect private rights and interests (cfJohn Fairfax Group v Local Court of NSW, supra, ibid and Kelson v Forward (1995) 60 FCR 39 at 43), it will be a rare case in which it can safely be said that a private interest, or even some competing public interest, is such as to override the public interest in knowing what has taken place in a court. As was said by Kirby P in John Fairfax Group v Local Court of NSW, supra, at 142 - 143:

'It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ...'

6 The plaintiff said in effect that the publication of the reasons for decision is likely to cause him more harm than the original publication of which he complains.

7 In J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10 Fitzgerald P and Lee J stated the following guidelines:

1. Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.

2. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility. National security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law.

3. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing

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particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.

4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.

5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:


(a) Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information: cf R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society.

(b) A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.

(c) An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed (44 - 45).

8 The publication of the reasons for judgment will not deprive the proceeding of practical utility. Prohibiting publication of the reasons is not necessary to ensure the proceeding is fair. Publication of the reasons may cause embarrassment and may be damaging to the plaintiff. However, that is not a sufficient reason for prohibiting publication of the reasons.

9 The practice of the court is to publish reasons for decision on the court's database and through that database, the internet. Practice Direction 8.2.1 applies to claims in respect of defamation. Paragraph 5 of the Practice Direction provides:

5. Where reasons for decision to which this Practice Direction relates -

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(a) have been published to the parties; or

(b) will be published to the parties,

A party or other person who has been or may reasonably expect to be identified in the reasons, may apply to the judicial officer for an order that the version of the reasons which are entered on the Court's database not identify that person, or if that is not practicable, for an order that the reasons not be entered on the Court's database.

10 The reasons delivered on 17 October 2012, [2012] WASC 386, address each of the five publications complained of. The reasons do not set out the words of which the plaintiff complains that were contained in the affidavit sworn by the defendant on 2 March 2011. That is the principal matter of which the plaintiff complained when applying for a suppression order. The reasons set out the words complained of, or some of them, in three of the publications complained of. That is necessary in order to adequately disclose the court's reasoning. The plaintiff complains that those matters are defamatory of him. However, they do not attribute to the plaintiff any criminal conduct or egregiously immoral or disgraceful conduct. It is clear from the judgment that the plaintiff denies the conduct attributed to him.

11 A decision not to enter the reasons on the court's database requires an exercise of discretion which depends upon the particular facts. A decision not to enter the reasons on the court's database should not be taken lightly. It has the effect of preventing public access to the reasons. I am not satisfied that there is sufficient reason not to enter the reasons for decision in [2012] WASC 386 on the court database.

12 The reasons for decision delivered on 22 June 2012, [2012] WASC 217, do set out the words in the affidavit sworn by the defendant on 2 March 2011 of which the plaintiff complains. Those reasons have now been available on the court database for approximately four months. The plaintiff informed the court that the reasons have been published on the database as well as on the court database. The plaintiff made no application at the time the reasons were published that they be suppressed or not entered on the court database. In these circumstances the court would only make an order that the reasons for decision be removed from the court database in extraordinary circumstances. Extraordinary circumstances have not been made out in this case. Furthermore, it is too late to try and get the genie back into the bottle.

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13 The plaintiff's application for suppression orders in relation to the reasons for decision in [2012] WASC 217 and [2012] WASC 386 are dismissed.