Nedroc Pty Ltd v Welling [No 2]
[2016] WASC 364
•17 OCTOBER 2016
NEDROC PTY LTD -v- WELLING [No 2] [2016] WASC 364
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 364 | |
| Case No: | CIV:2756/2016 | 17 OCTOBER 2016 | |
| Coram: | PRITCHARD J | 17/10/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Non-publication order made | ||
| 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
- 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 Court's power to make a suppression order lies in its inherent jurisdiction.
5 In addition, the Court's Consolidated Practice Directions are also of present relevance insofar as they deal with situations where allegations of fraud are made against persons in proceedings. Paragraph 5 of Practice Direction 8.2.1 provides that:
Where reasons for decision to which this Practice Direction relates -
(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 be 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.
6 The power to suppress or to restrict the publication of part of a judgment is to be exercised with great caution because it involves a departure from the principle of open justice. In McJannett v Daley [No 2], Le Miere J discussed the principle of open justice and observed that:2
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.
The suppression order to be made in this case
8 In the present case, I am of the view that it is appropriate to make a suppression order in respect of the entirety of the Reasons for Decision. The basis for doing so is that, in my view, it would be just for the Reasons to be suppressed in light of the potential for criminal proceedings to be commenced as against the Defendants and due to the potential prejudice to any such criminal proceedings that the publication of the Reasons for Decision might cause.
9 The cause of action pursued by the Plaintiff as against the Defendants includes allegations of dishonest conduct over a considerable period of time. The Reasons for Decision include observations as to the nature of the evidence before the Court and what was established in respect of the Defendants' conduct for the purposes of the application for the freezing orders.
10 If any criminal proceedings are commenced, the potential prejudice which might flow from publication of the Reasons for Decision would arise from the fact that persons involved in any criminal proceedings (such as jurors) might have access to the Reasons or might become aware of the Reasons prior to the commencement of the criminal proceedings.
11 In addition, the allegations that I have referred to involve serious allegations of dishonesty, which are, as yet, untested and would, if published, have the potential to adversely affect the reputation of the Defendants. Although I place far less weight on this consideration, it is nevertheless a consideration that I take into account.
12 The order which I will make for suppression of the Reasons for Decision, however, will be limited in time. For the time being, I will suppress the Reasons until I hear from the Defendants at the return hearing of the freezing order application, at which point I will revisit the question whether there should be an extension of the suppression order for any further period thereafter.
13 I will discuss with counsel the precise terms of the suppression order.
1Nedroc Pty Ltd v Welling [2016] WASC 363.
2McJannett v Daley [No 2] [2012] WASC 386 [3] - [4] (Le Miere J).
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