Moran v Atrum Coal Nl - [2015] WASC 209

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MORAN -v- ATRUM COAL NL [2015] WASC 209

CORAM: MITCHELL J

HEARD: 9 JUNE 2015

DELIVERED : 9 JUNE 2015

PUBLISHED : 15 JUNE 2015

FILE NO/S: CIV 1866 of 2015

BETWEEN: RUSSELL MORAN
First Plaintiff
GINO D'ANNA
Second Plaintiff
AND
ATRUM COAL NL
Defendant

Catchwords:

Practice and procedure - Suppression orders - Confidential information - Where parties to be bound by orders not present in court

Legislation:

Nil

Result:

Injunction granted

Category: B

Representation:

Counsel:

First Plaintiff                :     Ms C L Donald
Second Plaintiff            :     Ms C L Donald
Defendant:     Mr D J Pratt

Solicitors:

First Plaintiff                :     Bennett + Co
Second Plaintiff            :     Bennett + Co
Defendant:     Maddocks

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

Collard v The State of Western Australia [No 3] [2013] WASC 70
Grassby v The Queen (1989) 168 CLR 1
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)

Yesterday, the plaintiffs commenced proceedings by writ of summons against the defendant seeking to restrain the disclosure of confidential information supplied by them to the defendant.
In very general terms, the plaintiffs seek to restrain the defendant from disclosing personal information which they provided to the defendant in circumstances which they say attracted an obligation of confidence.
I was satisfied that there was a serious question to be tried as to that matter and that the balance of convenience favoured the grant of an injunction until 2.15 pm today. Accordingly, I granted the orders sought by the plaintiffs at an urgent ex parte hearing conducted last night.
At the hearing this afternoon, which counsel for the defendant attended, the injunction was extended by consent until this Friday, 12 June 2015. During the course of evidence and submissions before me on both 8 and 9 June 2015, and in the course of my reasons for decision, reference was necessarily made to the content of the confidential information.
Further, the terms of the injunction which I granted on 8 June 2015 refer to the information in a manner which compromises its confidentiality.
The plaintiff now seeks to restrict access to the court file and to suppress publication of the proceedings in order to protect the confidentiality of the information which is the subject matter of these proceedings.
The jurisdiction which the plaintiffs seek to invoke is that which derives from the position of this court as a superior court with responsibility for the administration of justice. In the exercise of that inherent jurisdiction, the court has the power to prohibit the publication of proceedings if it is really necessary to secure the proper administration of justice in proceedings before it.[1]
[1] Grassby v The Queen (1989) 168 CLR 1, 16 ‑ 17; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 477.
In Hogan v Hinch,[2] French CJ said:
An essential characteristic of courts is that they sit in public. That principle 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. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open‑court principle serves to maintain that standard. However, it is not absolute.
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could 'cause an entire destruction of the whole matter in dispute'. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. (footnotes omitted)
[2] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] ‑ [21]. See also the judgment of the plurality at [88] - [90].
This is a case of the kind contemplated by French CJ. In this case, the preservation of the subject matter of the litigation requires a departure from the general rule that any person may publish a fair account of the proceedings in this court. The references to the nature of the confidential information are so intertwined in the submissions, evidence and reasons that, in my view, it is not practicable to allow limited disclosure of that material without imperilling the confidentiality which these proceedings are brought to protect.
A question does arise as to the persons on whom the order is binding. The issue was noted by Pritchard J in Collard v The State of Western Australia [No 3].[3] Her Honour said:
The orders that I made included an order that they be served on two media outlets, one of which has obtained a copy of the pleadings and both of which have obtained a copy of a witness statement tendered as the evidence in chief of another witness. There are, or may be, some references to the subject information in this material. The court's inherent jurisdiction extends to making orders designed to suppress the further dissemination of information that may already, to some degree, have entered the public domain without there having been an earlier order prohibiting the publication of the information.
Representatives of the media outlets concerned were not in court at the time the orders were made. Although doubts have been expressed in some of the authorities as to whether a non-publication order may bind the general public, the court's inherent jurisdiction to restrict the publication of proceedings conducted in open court supports an order which may be made to, and binds, the parties, witnesses, counsel, solicitors, media representatives or other persons present in court when the order is made or to whom the order is specifically directed. It was for that reason that I directed that the orders be served on the media outlets concerned so that they would be made aware of the existence of the orders. (footnotes omitted)
[3] Collard v The State of Western Australia [No 3] [2013] WASC 70 [18] ‑ [19].
The only people in court yesterday evening were myself, court staff and counsel for the plaintiff. Today, counsel and solicitor for the defendant also attended. In addition, I am informed by counsel for the plaintiff that Ms Millie Richmond‑Scott, a solicitor employed by Minter Ellison, was present in court during the course of the hearing earlier this afternoon.
I am advised by counsel for the plaintiff that an undertaking was sought from Ms Richmond‑Scott not to further disclose the information which she had heard in the course of the proceedings conducted in open court this afternoon, but that undertaking was not forthcoming.
In those circumstances it is, in my view, appropriate to make the following orders to protect the subject matter of the litigation, which will be binding on persons who were present in court today:[4]
[4] Further, conduct outside the courtroom which deliberately frustrates the effect of this order may constitute a contempt of court: John Fairfax, 477.
1.Until further order, there be no inspection of the writ or other material on the court file by any person other than the parties to these proceedings or their representatives without the leave of the court.
2.Until further order, there be no publication of the evidence given or submissions made in these proceedings on 8 and 9 June 2015, or the orders made or reasons given on 8 June 2015 by me, to persons other than the parties to these proceedings or their representatives without the leave of the court.
3.A copy of this order be served by email or other means on the directors of the defendant and Ms Millie Richmond‑Scott as soon as practicable.
4.There be liberty to apply to discharge or vary these orders on short notice.