McLachlan v Australian Stock Exchange Ltd (No 2) No. Scgrg-98-573 Judgment No. S7005

McLACHLAN V AUSTRALIAN STOCK EXCHANGE LTD AND FRANCESE (No. 2)

[1998] SASC 7005

Civil

LANDER J Before January 1998 the plaintiff was the managing director of Thompson Brindal Limited which was a member of the Australian Stock Exchange Ltd, the first defendant.
On 14 November 1997, the national manager of the defendant directed the second defendant, an Exchange Inspector, to determine whether the plaintiff had complied with the provisions of the Articles of Association and of the Rules made under those Articles of Association of the first defendant, or had conducted himself in a manner which would amount to prohibited conduct within the meaning of the Articles and the Rules.
Pursuant to his instructions, the second defendant interviewed a number of officers and employees of Thompson Brindal Limited including the plaintiff.
In due course the second defendant provided the plaintiff with a copy of a draft report in relation to the matters into which he had inquired. On 12 January 1998, he produced a final report. On that same day the second defendant sent to the plaintiff the final report, notice of charges dated 12 January 1998, and a copy of a letter to the Chairman of the National Adjudicatory Tribunal which sought to have that body convened to hear and determine the charges of the same date [AB 294].
The plaintiff brought proceedings against the defendants seeking a declaration that a report prepared by the defendant in relation to the plaintiff is void. In the alternative an order was sought that the inspection report be quashed and that they be delivered up for destruction.
The plaintiff also sought orders that certain transcript of interviews conducted by the second defendant of the plaintiff, and of any other person in so far as the interview touched upon the conduct of the plaintiff, be destroyed. The plaintiff sought an order that a notice of charges dated 12 January 1998 issued by the first defendant by the plaintiff be quashed and an order that the National Adjudicatory Tribunal of the first defendant be prohibited from hearing those notices of charges.
It was in the nature of an application for judicial review.
The matter came before the Chief Justice for directions on 3 July 1998 and on that day his Honour made an order pursuant to s69a of the Evidence Act in the following terms:
“1..... That pursuant to s69a of the Evidence Act, an interim suppression order be made, suppressing from publication the Affidavit of Martin Michael Kinsby (sic), sworn 5 June 1998 and all exhibits to that affidavit and the affidavit of Malcolm Boyd McLachlan sworn 27 April 1998 and all exhibits to that Affidavit.
2That the application for a continuing suppression order be adjourned until 9.00 am on Monday 6 July 1998.”
On 6 July 1998, the matter was further adjourned to 24 July 1998 when the hearing of the action itself concluded and the Chief Justice reserved his decision.
When he reserved his decision he made the following orders:
“1..... That, pursuant to s69a of the Evidence Act, the following documents and parts of documents be suppressed from publication until judgment in this matter:
(i).... the exhibits 6, 7, 8, 9, 10 and 11 to the affidavit of Mr M McLachlan filed 28 April 1998 in paras 22, 25.5, 25.6, 25.7 and 26.2 of that affidavit;
(ii) the exhibits 2, 13 and 14 of the affidavit of Mr M Kinsky filed 9 June 1998 and paras 16, 33, 34, 35 and 41 of that affidavit.
2...... That Mr Malcolm McLachlan’s name be suppressed from publication as the person the subject of charges referred to in paras 5 and 6 of the summons dated 28 April and His Honour prohibits the publication of Mr McLachlan’s name referred to elsewhere in the affidavits as the person the subject of the charges.”
On 4 September 1998 the learned Chief Justice delivered judgment dismissing all of the claims made by the plaintiff and ordering that the plaintiff pay the defendants their costs of action. He made the further order;
“1..... That pursuant to s69a of the Evidence Act, the following material be suppressed from publication for 14 days:
(i).... exhibits 6, 7 and 8 to the affidavit of Mr M McLachlan filed 28 April 1998
(ii) exhibit 13 to the affidavit of Mr M Kinsky filed 9 June 1998.
2...... That the plaintiff’s solicitors notify in writing, if practicable by fax on 4 September 1998, the editors of “The Advertiser” and “The Financial Review” of the making of this order, and of the fact that either of them may apply to terminate or vary the order under s69a of the Evidence Act.
3That the parties are at liberty to apply.”
On 15 September 1998 an application was made by the plaintiff, supported by an affidavit sworn by his solicitor on 15 September 1998, to Judge Kelly, a Master of this Court seeking further orders under s69a of the Evidence Act. That application was made pending an appeal by the plaintiff to the Full Court from the decision of the Chief Justice.
The plaintiff identified, in his solicitor’s affidavit, four exhibits which the plaintiff said should be suppressed. Those exhibits contain allegations of breaches by the plaintiffs of the Articles of Association of the first defendant and allegations that the plaintiff has engaged in prohibited conduct as defined in the Articles.
It was asserted in the affidavit that the allegations contained in the exhibits are not findings but remain only allegations which are subject to determination by the National Adjudicatory Tribunal of the first defendant. That hearing has not taken place.
His solicitor claimed, in the affidavit, that if the matters contained in the exhibits became public the reputation of the plaintiff would be seriously damaged and that damage could not be reversed should the appeal by the plaintiff be successful.
It was also submitted that the exhibits referred to contain adverse allegations against Thompson Brindal Ltd, the company of which the plaintiff was managing director. It was also suggested that the exhibits contained adverse allegations of various other directors of Thompson Brindal Ltd.
It was further submitted that should the matters in the exhibits become public, prior to the hearing by the National Adjudicatory Tribunal, the reputation of Thompson Brindal Ltd and other directors of Thompson Brindal Ltd would be seriously damaged.
It was put that the plaintiff has been a sharebroker since 1960 and a member of the ASX and its predecessor since 1964. The Court was told that he has held the position of chairman and vice chairman of the board of the predecessor of the first defendant. It was submitted that he is a member of the board of a number of institutions including the Queen Elizabeth Hospital Research Foundation Investment Sub Committee, the South Australian Primary Industry Research and Development Board, the University of Adelaide Faculty of Agricultural and Natural Resources Science Advisory Board and other private companies and business interests. It was also put that he was also a trustee of the Adelaide Workman’s Homes Trust.
The affidavit claimed that the proper administration of justice required the exhibits referred to be suppressed until the determination of the appeal by Mr McLachlan.
On 17 September 1998 the learned Master made the following orders:
“2..... Pursuant to s69a of the Evidence Act 1929 the exhibits marked MBM6, MBM7 and MBM8 to the affidavit of Malcolm Boyd McLachlan sworn on 28 April 1998 and filed herein and exhibit MMK13 to the affidavit of Martin Michael Kinsky sworn on 9 June 1998 and filed herein be suppressed from publication until final determination of the appeal by the plaintiff against the decision of the Honourable Chief Justice dated 4 September 1998 herein.
3The plaintiff’s solicitors to notify in writing the editors of each of the Australian Financial Review and the Advertiser of the fact of the orders herein and that an application may be made under s69a to vary or set aside the within order.”
The matter came before the Full Court (Olsson, Lander and Bleby JJ) on 13 October 1998 and the Court reserved its decision. On 11 November 1998 the Full Court delivered its judgment, dismissing the plaintiff’s appeal. It ordered that the plaintiff pay the defendant’s costs of that appeal.
On that occasion the Full Court was advised that further proceedings had been commenced by the plaintiff against the first defendant in Action No. 1507 of 1998 and the same material the subject of the order made by Judge Kelly had been exhibited in affidavits filed in support of the plaintiff’s second action.
The Full Court was asked to extend the suppression order made by Judge Kelly until the determination of the issues in Action No. 1507 of 1998.
The Full Court ordered:
“3..... That the existing suppression order be continued until the hearing of the determination of the action in Action No. 1507 of 1998.
4Liberty to apply to Justice Lander for a discharge of that order prior to hearing and determination of the said action.”
Action No. 1507 of 1998 in which the plaintiff in these proceedings is also plaintiff and the first defendant in these proceedings is also defendant came on for hearing before me on 26 November 1998.
Oral argument concluded on that day but at the request of the plaintiff I allowed the plaintiff time to submit further written submissions in support of the plaintiff’s claim. I also allowed the defendant a right of reply in writing to those written submissions of the plaintiff.
The plaintiff and defendant, in accordance with my directions, provided me with those written submissions.
On the same day that I publish these reasons I have given judgment dismissing the plaintiff’s claim in those proceedings which, subject to the plaintiff’s right to appeal from my decision, has finally determined all the matters between the plaintiff and the first defendant in relation to the notice of charges dated 12 January 1998 and the right of the first defendant and the National Adjudicatory Tribunal to hear and determine those charges.
Immediately after I heard the oral argument in the trial in Action No. 1507 of 1998 I heard applications in Action No. 573 of 1998 by various parties in relation to the previous suppression order made by Judge Kelly. For convenience sake the applications made in Action No. 1507 of 1998 were heard at the same time as the applications for suppression orders in Action No. 573 of 1998.
I granted all parties leave either to intervene or be heard and it would be as well to set out the parties and by whom they were represented on the argument in relation to the existing orders for suppression and the claim for further suppression orders.
The plaintiff was represented by Mr Wilkinson and Mr Dal Cin.
The defendant, Australian Stock Exchange Ltd, was represented by Mr Wells QC and Mr Mark Rice. They also represented Mr Francese in Action No. 573 of 1998. The defendants did not oppose and indeed supported the making of suppression orders in relation to the documents mentioned in paragraph 1 of Judge Kelly’s order.
I gave leave for Thompson Brindal Ltd to intervene in the action for the purpose of making an application for suppression from publication of the exhibits marked MBM6 and MBM7 to the affidavit of Malcolm Boyd McLachlan sworn on 27 April 1998 and filed in Action No. 573 of 1998. That company was represented by Mr Whitington QC. Further, I allowed Mr Lane to appear on behalf of two current directors of Thompson Brindal Ltd and one former director, who retired as a director on 30 June 1994. The two existing directors are currently employed by another sharebroker. I understood it to be that the third director has retired from stockbroking. Mr Lane’s clients sought the suppression of both the draft report and the final report prepared by Mr Francese. In the alternative, if I was not disposed to make that order then his clients sought orders that any references in those two documents relating to his clients, be suppressed.
Mr Short appeared for Advertiser Newspapers Ltd, the publisher of “The Advertiser”, and John Fairfax Publications Pty Ltd, the publisher of “Business Review Weekly”.
His clients sought the discharge of the order made by Judge Kelly and the order continuing that order made by the Full Court and opposed any further orders for a suppression under s69a.
The matter proceeded late into the afternoon and time did not permit a decision to be made immediately. I indicated, at that stage, I would reserve my decision. It appeared to me convenient to give my decision in respect of the suppression applications at the same time as I gave my decision in relation to the trial which I heard on the same day.
In those circumstances I can approach the suppression applications with a degree of certainty, at least at first instance, knowing that both actions brought by the plaintiff against the first defendant and in Action No. 573 of 1998 and Action No. 1507 of 1998 have been dismissed.
It seems to me that having regard to the circumstances as they have unfolded, it would be appropriate for me to approach this matter and determine whether it would be appropriate in the circumstances as they are now known to make any order for suppression. If I am of the opinion that no order ought to be made, of course, it would follow that I would discharge the orders previously made. If, on the other hand, I believe orders for suppression ought to be made then it would still be appropriate to discharge the previous orders but to make fresh orders having regard to the further application by the company and the directors and the circumstances as they presently exist.
The documents which are the subject of the order made by Judge Kelly and which the plaintiff, the Company and its directors desire to continue to have suppressed are identified in Judge Kelly’s order.
MBM6 is the draft report prepared by Mr Francese. MBM7 is the final report and MBM8 is the notice of charges addressed to Mr McLachlan dated 12 January 1998.
MMK13 exhibited to Mr Kinsky’s affidavit is the letter to Mr McLachlan dated 12 January 1998 which includes a summary of findings and sets out a management conclusion which is included in s8 of the final inspection report.
Mr Whitington, in his submissions on behalf of Thompson Brindal Ltd, relied upon an affidavit sworn by Ms Adair, a partner in the firm of Piper Alderman, solicitors, for Thompson Brindal Ltd. In that affidavit, Ms Adair deposed to the circumstances in which the draft report and final report were published to her client.
On 12 September 1997, Thompson Brindal Ltd received a letter from the second defendant enclosing the draft report. In that letter Mr Francese directed the director’s attention to the draft report in so far as it refers to various documents including transcripts of interviews conducted by ASX, transcripts of examinations conducted by the ASX, written statements of individual RetireInvest clients, documents obtained from a Mr Ken Laming and documents obtained from Options Clearing House Pty and others. He indicated that the ASX intended that all of that material ought to be made available to the directors of Thompson Brindal Ltd, who were members of ASX, to assist them in consideration of the draft report.
However, he sought, from the directors, an undertaking that they would not disclose those documents or any part of the documents or any information which those documents contained to any person apart from their legal advisers and present or former directors of Thompson Brindal Ltd except in so far as the directors may be obliged to otherwise disclose the same by law.
Apparently the directors gave those undertakings and they were provided with the documents referred to in the report.
On 12 January 1998, ASX delivered to Thompson Brindal Ltd the final report and at the same time advised Thompson Brindal Ltd:
“Please note that ASX considers that the undertaking which you previously provided in relation to confidentiality of the draft report extends to the contents of the final Report.”
Ms Adair deposed that since that time the ASX has been vigilant to protect the confidentiality of those two reports and indeed has been keen to ensure that the company and its directors did not breach the undertakings given by those directors.
I am prepared to conclude, as Ms Adair’s affidavit shows, that the defendants were eager to ensure that both the draft report and the final report should be limited in publication to those persons who had a direct interest in the findings contained in the report, namely the plaintiff, the directors of Thompson Brindal Ltd and the company. It was never intended by the defendants that either reports were to have a greater circulation than that. The reports were prepared for the purpose of being kept confidential to the parties and, in due course, for the assistance of the National Adjudicatory Tribunal.
All four documents contain information critical of the plaintiff. Moreover, they contain information which is critical of Thompson Brindal Ltd and those who were directors of Thompson Brindal Ltd at the relevant time.
Therefore, it is right to say, as the plaintiff, Thompson Brindal Ltd and the three directors of Thompson Brindal Ltd have said, that the publications of the two reports will have the consequence that their reputations will be adversely affected. Indeed, I am prepared to agree with the submission made by Mr Dal Cin, on behalf of the plaintiff, that their reputations will be seriously damaged.
Mr Francese’s reports are concerned with the conduct of Thompson Brindal Ltd and its directors, including the plaintiff, in relation to option trading by a Mr Mennie and a Mr Hamish McLachlan, the plaintiff’s son, and RetireInvest Pty Ltd and its clients. The final report, which is not in any way materially different from the draft report, is principally directed to the supervision by the company and its directors of Mr Mennie but it also deals with the participation by the company in efforts to conceal from the RetireInvest clients unauthorised share and option trading and losses incurred from share and option trading.
There is no doubt, as I have said, that the report is critical of the company and its directors and its employees.
If I was to accede to the request made by the plaintiff, the company and the directors to suppress from publication the matters contained in the final inspection report then it would seem to me that I would also suppress from publication, the draft report, the summary of the report contained in the exhibit to Mr Kinsky’s affidavit and the charges relating to the report.
The question, therefore, is whether it would be appropriate to suppress from publication the matters contained in the final report. The suppression of the other exhibits will follow from the answer given to that question.
Mr McLachlan has sold all of his shares in the defendant. He has retired from his employment with Todd Broking Partners Pty Ltd and he has retired from the industry. Whilst he presently remains an affiliate of the ASX he wishes to surrender that status as soon as possible. There is no suggestion that the publication of this information would have any adverse financial consequences for Mr McLachlan.
The applicant, Thompson Brindal Ltd no longer trades. There is no suggestion that it would suffer any adverse financial consequences.
However, it was submitted on behalf of Thompson Brindal Ltd that Thompson Brindal Ltd is not a party to the proceedings brought by the plaintiff against the defendants and, in those circumstances, it should not be prejudiced by the publication of the documents.
One of Mr Lane’s clients, as I understand it, has retired from the industry. Two others are still employed within the industry. Two of his clients have been subject to disciplinary proceedings by the defendant. One of the directors of Thompson Brindal Ltd is not a member of the defendant and was never the subject of any internal investigation by the defendant. It is claimed he would also suffer prejudice if these documents were released.

Whilst it might be supposed that those clients still engaged in the industry could be likely to suffer some financial consequences, no evidence was led in that respect and I am not prepared to infer any direct financial consequence as a result of the publication of this information.
I was reminded by Mr Short, on behalf of the print media, that the inveterate rule is that justice should be administered in open court; Scott v Scott (1913) AC 417.
The purpose of requiring justice to be administered in public is to ensure that the courts are under constant scrutiny. It is in the public interest that public confidence in the administration of justice is maintained and that confidence can only be maintained if the public is aware of the manner in which the courts administer justice. As well, of course, because justice must be administered in public the public scrutiny militates against any arbitrary or idiosyncratic behaviour on the part of the courts or the members of the court. That is in the public interest; Attorney General v Leveller Magazine Ltd & Ors (1979) AC 440 per Lord Diplock at 450.
The proposition which Mr Short advanced cannot be denied. The inveterate rule, as Earl Loreburn said in that case, is that proceedings ought to be heard in public. However, the House of Lords in that very case recognised that there are circumstances where it would be appropriate for proceedings to be heard in private. Those proceedings were identified in their Lordship’s speeches to include proceedings where the subject matter of the action would be destroyed by a hearing in open court, proceedings relating to children and proceedings relating to persons under mental disabilities.
I think the rule can be stated, at least in this State, that ordinarily proceedings before a Court ought to be heard in public provided that the public hearing of those proceedings would not prejudice the proper administration of justice.
I think that principle is recognised in s69a of the Evidence Act. Section 69a(1) provides:
“(1)   Where a court is satisfied that a suppression order should be made -
(a)     to prevent prejudice to the proper administration of justice; or
(b)     to prevent undue hardship -
(i)     to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings,
the court may, subject to this section, make such an order.”
Suppression order is defined within the Act to mean:
“ ‘suppression order’ means an order -
(a)     forbidding the publication of specified evidence or of any account or report of specified evidence; or
(b)     forbidding the publication of the name of -
(i)     a party or witness; or
(ii)    a person alluded to in the course of proceedings before the court,
and of any other material tending to identify any such person.”
The intent of s69a(1)(a) is to ensure that the hearing of court proceedings in public does not itself prejudice the proper administration of justice. The three types of cases to which I have referred and which were mentioned in Scott v Scott (supra) are the type of cases, if heard in open court, which might prejudice the administration of justice. For example, if a party was obliged to have that party’s proceedings heard in public in circumstances where the very hearing will destroy the subject matter of litigation then that would be prejudicial to the proper administration of justice.
Section 69a(1) also seeks to prevent undue hardship to the class of persons mentioned in s69a(1)(b). Particularly, s69a(1)(b) does not refer to accused persons but only victims of crime. It does not refer to parties generally but only witnesses or potential witnesses, who are not parties to those proceedings. I think it may be understood that s69a(1)(b) is not concerned to protect accused persons in the criminal jurisdictions or parties in the civil jurisdiction. Section 69a(1)(b) is in its terms to protect persons who are the victims of criminal conduct or persons who are called upon to give evidence in either criminal or civil proceedings but who are themselves not parties.
In Re F (1989) 51 SASR 141 at 147 King CJ said:
“The legislature by limiting the classes of persons to whom the undue hardship ground applies, has made it clear that undue hardship to persons outside those classes is not to be a ground for suppression. General considerations as to the content of the concept “the administration of justice” must give way to the legislative intention as disclosed by the structure of the section and the legislative history. It need hardly be added, I suppose, that although hardship to the accused is no longer of itself a ground for a suppression order, considerations which are relevant to some other aspect prejudice to the proper administration of justice are not to be disregarded simply because they disclose hardship to the accused.”
It seems to me that a person who is a party to civil proceedings or is a person who is not a witness or a potential witness in civil proceedings, must establish, if a suppression order is to be made, that if the order was not made there would be prejudice to the proper administration of justice.
There is no suggestion, in this case, that the applicants or any of them are witnesses or potential witnesses in civil proceedings.
In those circumstances, the applicants, in this case, are limited, in supporting the orders already made and in propounding future suppression orders to establishing, absent a suppression order, there would be prejudice to the proper administration of justice.
Mr Whitington QC argued that there was not only jurisdiction under this Act but the Court has an inherent jurisdiction to make orders for suppression. I think there is support for the proposition advanced by Mr Whitington that the Court has an inherent jurisdiction to sit in camera. That would follow from the power that a court has to regulate its own proceedings. A court has an obligation in regulating its own proceedings to ensure that justice is done. In Attorney General v Leveller Magazine Ltd (supra) Viscount Dilhorn said at 457:
“Proceedings in the courts of this country are normally conducted in public. The courts have, however, inherent jurisdiction to sit in camera if that is necessary for the due administration of justice; see Scott v Scott [1913] AC 417; Rex v Governor of Lewes Prison, Ex Parte Doyle [1917] 2 KB 254, per Lord Reading CJ at 271; Attorney General v Times Newspapers Ltd [1974] AC 273 per Lord Reid at 294.”
Mr Keith Mason QC (as he then was) in an article entitled “The Inherent Jurisdiction Of The Court” 57 ALJ 449 at 452 wrote:
“In camera hearings
The Court’s ‘inherent power to control the conduct of proceedings before it’ extends to empowering it to order that all or part of a case be heard in camera or to prohibit the publication of part of its proceedings. Similarly, the courts have asserted the power of private inspection of documents which are subject to a claim of Crown privilege. The rationale of this aspect of the inherent jurisdiction lies in the fact that: ‘justice can be denied as much by effectively closing the doors of the courts to litigants as it can by an unjust or wrong decision. The results of an undue discounting of legitimate claims to confidentiality are likely to be both the deterrence of the subject from having recourse to courts of justice for the vindication of legal rights or the enforcement of criminal law and the discouragement of willing co-operation on the part of witnesses whose evidence is necessary to enable the ascertainment of truth.’ ”
There is therefore support for Mr Whitington’s proposition that the inherent jurisdiction of the Court would permit orders to be made for the business of the Court to be conducted in camera and perhaps orders in the nature of suppression orders. However, I did not hear argument as to whether or not the inherent jurisdiction of this Court has survived the enactment of Part 8 of the Evidence Act. That part deals comprehensively with the publication of evidence, the making of suppression orders and the power of the Court to clear the Court whilst it is sitting.
I have already mentioned the relevant provisions of s69a but there are further powers given to the Court in s69 of the Evidence Act where the Court may order that specified persons, or all persons except specified persons, absent themselves from the place in which the Court is being held during any part of the proceedings before the Court. The power to make such an order in s69 is limited to circumstances where the Court considers it desirable in the interest of the administration of justice or in order to prevent hardship or embarrassment to any person.
In South Australia, at least, Parliament has enacted detailed legislation in relation to the publication of evidence. There are specific provisions relating to child victims of sexual offences (s69(1a) Evidence Act) and extensive provisions relating generally to sexual offences (s71a Evidence Act). There are other legislative enactments which might impact upon the inherent jurisdiction of the Court; s131 Supreme Court Act.
In the end I do not think it matters much whether there is an inherent jurisdiction to sit in camera and to prohibit the publication of its proceedings and whether the jurisdiction has survived the enactments to which I have referred. The inherent jurisdiction of the Court to sit in camera and to prohibit the publication of its proceedings would only be activated in the circumstances indicated by Viscount Dilhorn in Attorney General v Leveller Magazines Ltd (supra).
Assuming there to be an inherent jurisdiction in the Court, in my opinion, no order would be made for the suppression of evidence in these proceedings unless such order should be made in order to prevent prejudice to the proper administration of justice. If there is an inherent jurisdiction, which I need not decide, then, in my opinion, it would be limited to making orders in the circumstances mentioned in s69a(1)(a).
It was said that if the final report was allowed to be published it would mean that the plaintiff, who has come to Court to establish rights and has needed to provide information to the courts in the form of the final report has therefore made public information which would never have been published but for the application to establish those rights. It was submitted that such a result would discourage litigants from using the courts. In respect of the company and the directors, it was said that because some other party, namely the plaintiff, had sought to establish his rights, information concerning them, which would never otherwise have become public, will become public. That it was said was a detriment and unfair.
If I can deal with the position of the company and the directors first. It seems to me the argument which is put forward on behalf of the company and the directors is no more than that which is put forward on behalf of all persons who are touched by litigation. The fact of the matter is that litigation between two private parties or between the Crown and a private party always brings into the public arena information which would otherwise be private. It is the very consequence of having Courts determine litigation in public.
There is nothing about the position of the company and its directors from which it can be said that, if this information was allowed to come into the public arena, there would be a prejudice to the administration of justice. It cannot be denied, as I have already said, that they will suffer harm by the publication of this information but that is the consequence of having civil proceedings heard in public.
The plaintiff, in my opinion, is also in no different position to any other litigant. A number of litigants who come to this Court for the purpose of establishing and pursuing rights lay open, for public examination, matters which would otherwise be private. That also is a consequence of proceedings being heard in public. It is not possible for a litigant, except in very unusual circumstances, to claim that his or her litigation should be heard in private because the matters which are being litigated would otherwise be private. In most cases that is the case.
I accept the proposition advanced by Mr Mason QC that too rigorous an application of the principle in Scott v Scott that courts should determine matters in public could lead to an injustice by deterring people from otherwise submitting their disputes to the courts. There must, however, be some particular reason established, apart from the embarrassment of making public a private dispute, before it can be said that not to make an order for suppression would be prejudicial to the administration of justice.
Moreover, the courts have to be careful not to put themselves in a position where it might be perceived that persons who occupy important public positions are entitled to litigate outside the public eye. It is even more important, it seems to me, that the courts conduct themselves publicly when the persons who have sought the courts assistance are themselves persons of some standing within the community. Particularly so when the matter which they have elected to bring before the courts is a matter of public importance.
It is only in the circumstance provided for in s69a where there is likely to be prejudice to the proper administration of justice or undue hardship to a very limited class of persons that a court should suppress evidence which has come before it.
Even in the limited circumstances where there might be prejudice to the proper administration of justice or undue hardship to that limited class of persons, whether a suppression order should be made requires a consideration of the further matters in s69a(2):
Section 69a(2) provides:
“(2).. Where the question of making a suppression order (other than an interim suppression order) is under consideration by a court -
(a)the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information, must be recognized as considerations of substantial weight;
......... and
(b)the court may only make the order if satisfied that the prejudice to the proper administration of justice, or the undue hardship, that would occur if the order were not made should be accorded greater weight than the considerations referred to above.”
The legislation requires the Court to have regard to two considerations which the legislation deems to be of substantial weight, viz the public interest in the publication of information relating to court proceedings and the consequential right of the news media to publish such information. The Court may only make a suppression order in those proceedings if satisfied that the prejudice of the proper administration of justice, or the undue hardship, that would occur if the order were not made, should be accorded greater weight than the considerations referred to above.
It is not enough, therefore, that a party simply makes out that there will be prejudice to the proper administration of justice or that undue hardship will be caused to that limited class of persons to which that party belongs. It must be established, before a suppression order can be made, that the prejudice to the proper administration of justice or the undue hardship requires a greater weighting than the considerations that there is a public interest in the publication of information relating to court proceedings and the consequential right of the news media to publish such information.
In these proceedings the defendant did not oppose the order for suppression. Notwithstanding that the plaintiff and the defendant agreed that it would be appropriate to make orders under s69a, in my opinion, no orders should be made.
I am not satisfied that there are any circumstances wherein it can be said that the making of this order will prejudice the proper administration of justice. The failure to make the order will, as I recognise, mean significant embarrassment to the plaintiff, to the company and its directors but that is not the test. The test is whether in the circumstances, at least of these parties, there will be prejudice to the proper administration of justice and if there is that that should be accorded greater weight than the public interest in publication of information and the consequential right of the media to publish such information.
The orders made by the Chief Justice did not provide for their expiry. The parties have rather assumed that the orders have expired and that the only operating order is that of Judge Kelly. Out of an abundance of caution I shall discharge the orders made by the Chief Justice.
For these reasons I discharge the orders made by the Chief Justice on 3 July 1998, 24 July 1998 and 4 September 1998 and by Judge Kelly on 17 September 1998 and I refuse the applications made orally on 26 November 1998 for further suppression orders.

[1998] SASC 7005

18 December 1998