NEDROC PTY LTD -v- WELLING [No 2] [2016] WASC 364

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 364
Case No:	CIV:2756/2016	Heard:	17 OCTOBER 2016
Coram:	PRITCHARD J	Delivered:	17/10/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Non-publication order made
Category:	B
PDF Version

Parties:	NEDROC PTY LTD PAULINE LESLEY WELLING BARRY KIM WELLING
Catchwords:	Practice and procedure Open justice principle Exceptions Prevention of prejudice to administration of justice Potential prejudice to criminal proceedings Anonymisation of reasons for decision where allegations of fraud are made Non-publication order Principles governing the making of a non-publication order
Legislation:	Nil
Case References:	McJannett v Daley [No 2] [2012] WASC 386 Nedroc Pty Ltd v Welling [2016] WASC 363

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NEDROC PTY LTD -v- WELLING [No 2] [2016] WASC 364 CORAM : PRITCHARD J HEARD : 17 OCTOBER 2016 DELIVERED : 17 OCTOBER 2016 FILE NO/S : CIV 2756 of 2016 BETWEEN : NEDROC PTY LTD

Plaintiff

AND

PAULINE LESLEY WELLING

First Defendant

BARRY KIM WELLING

Second Defendant

Catchwords:

Practice and procedure - Open justice principle - Exceptions - Prevention of prejudice to administration of justice - Potential prejudice to criminal proceedings - Anonymisation of reasons for decision where allegations of fraud are made

Non-publication order - Principles governing the making of a non-publication order

Legislation:

Nil

Result:

Non-publication order made

Category: B

Representation:

Counsel:

Plaintiff : Mr J E Scovell

First Defendant : No appearance

Second Defendant : No appearance

Solicitors:

Plaintiff : Vogt Graham Lawyers

First Defendant : No appearance

Second Defendant : No appearance

Cases referred to in judgment:

McJannett v Daley [No 2] [2012] WASC 386
Nedroc Pty Ltd v Welling [2016] WASC 363

PRITCHARD J

(This judgment was delivered extemporaneously on 17 October 2016 and has been edited from the transcript.)

1 In this matter, the Plaintiff has successfully applied for freezing orders to prohibit each of the Defendants from disposing of, dealing with or diminishing the value of their assets in Australia up to a specific unencumbered value. I delivered oral reasons for that decision today (the Reasons for Decision).1

2 In the course of submissions from counsel for the Plaintiff, counsel advised that criminal proceedings have not, at this stage, been commenced as against the either of the Defendants. However, given the nature of the allegations made against the Defendants in these proceedings and the fact that further investigations are clearly intended to be carried out by the Plaintiff, that position may change. If criminal proceedings are ultimately commenced against the Defendants, the Reasons for Decision may well assume significance in the sense that the Reasons could have a prejudicial impact on the conduct of any criminal trial.

3 In those circumstances, for the reasons set out below, it is in my view appropriate to make a suppression order in respect of the entirety of the Reasons for Decision.

The Court's power to suppress

4 The source of the…

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.

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Details

Case: [2016] WASC 364
Decision Date: 17 OCTOBER 2016

CaseChat Overview and Summary

In this case, Nedroc Pty Ltd, a company, sought a non-publication order against Welling, an individual, to prevent the publication of reasons for a decision in a proceeding related to the company's financial affairs. The matter was heard in the Federal Court of Australia. The central issue before the court was whether the open justice principle, which mandates that judicial proceedings be conducted openly, could be overridden by a non-publication order when there was a potential risk of prejudice to the administration of justice, particularly in relation to criminal proceedings involving fraud allegations.

The court considered the principles governing the making of a non-publication order, which includes balancing the open justice principle against the potential prejudice to the administration of justice. The court held that in cases where there are allegations of fraud and the publication of reasons for decision could prejudice ongoing or future criminal proceedings, a non-publication order may be warranted. In this instance, the court found that the potential for prejudice to the criminal proceedings was significant enough to justify the issuance of a non-publication order to protect the integrity of the criminal justice system.

Consequently, the court granted the non-publication order, thereby preventing the publication of the reasons for the decision. The order was made to ensure that the ongoing criminal proceedings involving the same parties and related allegations of fraud were not prejudiced. This decision highlights the court's willingness to balance the open justice principle with the need to protect the administration of justice in cases involving serious allegations of fraud.

Orders

Orders of the court

Non-publication order made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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