P v D1 [No 2]

[2009] NSWSC 1493

CITATION:	P v D1 & Ors [No 2] [2009] NSWSC 1493
HEARING DATE(S):	9/10/09, 23/10/09, 28/10/09, 29/10/09,04/11/09, 06/11/09, 26/11/09, 11/12/09
JUDGMENT DATE :	17 December 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
DECISION:	See paragraph 18 of judgment.
CATCHWORDS:	PROCEDURE - Supreme Court procedure - New South Wales - claim for access to court file - claim resisted on public interest immunity grounds - consideration of appropriate orders to secure the position up to the time of judgment - orders made preventing disclosure until final judgment of the name of the proponent of the claim for public interest immunity
CATEGORY:	Consequential orders
PARTIES:	P- Plaintiff D1- First Defendant D2- Second Defendant D3- Commonwealth Bank of Australia D4- Fourth Defendant
FILE NUMBER(S):	SC 05/1290
COUNSEL:	Plaintiff-Mr T Kerr First & Second Defendant- Mr D Hayes Third Defendant- No appearance Fourth Defendant- No appearance Applicant- Mr M Polden Respondent- Ms M England
SOLICITORS:	Plaintiff- Henry Davis York First & Second Defendant- Hayes Partners Third Defendant- No appearance Fourth Defendant- No appearance Applicant- Johnson Winter & Slattery Respondent- Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

THURSDAY 17 DECEMBER 2009

1290/05 P v D1; D2; COMMONWEALTH BANK OF AUSTRALIA LIMITED & D4 [NO 2]

JUDGMENT

1 HIS HONOUR: John Fairfax Media Publications Pty Ltd (“Fairfax”) is the moving party for access to the court file in this matter. Full argument supported by extensive written submissions has now taken place on Fairfax’s application. At the conclusion of argument on 26 November 2009 I reserved judgment. I indicated to the parties that I would give that judgment in the new year.

2 Before I reserved judgement I was asked to consider whether the existing interlocutory orders should continue pending my giving judgment or whether other appropriate interlocutory orders should be put in place.

3 When the proceedings adjourned on 26 November 2009 it appeared the parties had reached a consensus upon an appropriate interim regime pending judgment on Fairfax’s interlocutory application. The precise form of orders to be made to define the interim regime pending judgment required careful drafting. The parties wished to discuss draft formal orders. I invited the parties to provide to the Court some agreed short minutes of order which would define the degree of disclosure of the names of the parties in the subject matter of the proceedings that would be permitted pending my giving judgment on Fairfax's application.

4 Early the following week the parties provided the Court with a draft set of agreed short minutes of order. I will call these draft short minutes of order "the first draft". The parties invited me by consent to make orders in the form of the first draft in chambers. The first draft provided as follows:-

“Short Minutes of Order 3 December 2009

On 3 December 2009, the Court orders that:

1. Orders 2, 3 and 4 of the orders of the Court on 6 November 2009 (as varied by Order 6 of the Court on 26 November 2009) shall be vacated.

2. Subject to Orders 3 and 4 and pending further order, there shall be no disclosure of the names of the parties to the proceedings (with the exception of the name of the third defendant, the Commonwealth Bank of Australia and John Fairfax Media Publications Pty Limited and the Commissioner of Police) or of the subject matter of the proceedings for principal relief, or any information derived therefrom, save for the proper conduct of the proceedings.

3. Order 2 shall not prohibit:

(a) any disclosure of the names of the parties to the proceedings that refers to the plaintiff by the pseudonym ‘P’, the first defendant by the pseudonym ‘D1’, the second defendant by the pseudonym ‘D2’ and the fourth defendant by the pseudonym ‘D4’;
(b) any report of the interlocutory proceedings on 23 October, 28 October, 29 October, 4 November, 6 November or 26 November 2009 that refers to the plaintiff by pseudonym ‘P”, the first defendant by pseudonym ‘D1’, the second defendant by the pseudonym ‘D2’ and the fourth defendant by the pseudonym ‘D4’; or
(c) the disclosure of the fact that [the proponent] was associated with a party to these proceedings.
(d) Order 2 shall not prohibit disclosure of the true names of the parties to the proceedings or of the subject matter of the proceedings for principal relief (or any information derived therefrom) by the parties and their legal representatives, in communications between the parties, between the parties and their legal representatives, and between legal representatives for the parties, where those communications are related to the substantive or the interlocutory proceedings.”

5 I declined to make orders in chambers in terms of the first draft without further hearing from the parties. The matter was re-listed on 11 December 2009 for me to explain the difficulties that I had with the first draft. On that occasion I raised with the parties that upon reading the first draft I perceived at least a potential inconsistency between proposed order 3(d) and one aspect of the public interest immunity argument being propounded. The potential inconsistency arose from material in the confidential affidavit of David William Hudson sworn on 16 November 2009. Because of the existing confidentiality orders my capacity to explain the nature of the inconsistency in open court was somewhat constrained.

6 In the course of the hearing on 11 December 2009 the proponent of the public interest immunity argument propounded a further set of orders that were said to remove or alleviate the potential inconsistency that I had raised. I will call these further orders the “second draft”. The second draft altered order 3(d) and renumbered it as order 4. The second draft was in the following terms.

“Short Minutes of Order 3 December 2009

On 3 December 2009, the Court orders that:

1. Orders 2, 3 and 4 of the orders of the Court on 6 November 2009 (as varied by Order 6 of the Court on 26 November 2009) shall be vacated.

2. Subject to Orders 3 and 4 and pending further order, there shall be no disclosure of the names of the parties to the proceedings, including the Commissioner of Police, but excepting the name of the third defendant, the Commonwealth Bank of Australia and John Fairfax Media Publications Pty Limited or of the subject matter of the proceedings for principal relief, or any information derived therefrom, save for the proper conduct of the proceedings.

3. Order 2 shall not prohibit:


(a) any disclosure of the names of the parties to the proceedings that refers to the plaintiff by the pseudonym ‘P’, the first defendant by the pseudonym ‘D1’, the second defendant by the pseudonym ‘D2’ and the fourth defendant by the pseudonym ‘D4’;

(b) any report of the interlocutory proceedings on 23 October, 28 October, 29 October, 4 November, 6 November, 26 November 2009 or 11 December 2009 that refers to the plaintiff by pseudonym ‘P”, the first defendant by pseudonym ‘D1’, the second defendant by the pseudonym ‘D2’ and the fourth defendant by the pseudonym ‘D4’; or

(c) the disclosure of the fact that [the proponent] was associated with a party to these proceedings.

4. Order 2 shall not prohibit disclosure of:


(a) the true names of the parties to the proceedings for principal relief; and John Fairfax Media Publications Pty Ltd; or

(b) the subject matter of the proceedings for principal relief (or any information derived therefrom); by the parties and their legal representatives in communications between the parties, the parties and their legal representatives and the legal representatives for the parties, where those communications are related to the substantive or the interlocutory proceedings.”

7 Fairfax resists the making of orders in terms of the second draft. Fairfax claims that the orders now requested are significantly more restrictive than the first draft and more restrictive than the orders that have existed up to date in these proceedings. Mr Hayes on behalf of the first and second defendants consents to the orders set out in the second draft. Mr Kerr who appears on behalf the plaintiff is seeking leave to withdraw from the proceedings, has no instructions about whether or not the plaintiff consents to the making of orders in terms of second draft. I have asked him to remain involved until the issue of these interim orders is resolved. None of the other parties are represented on this application.

8 One of the matters which emerged from the submissions was that despite the form of order 2 of the second draft that the parties were agreed that a more acceptable form of the order on all sides was that “pending further order” should be deleted and replaced by “until the giving of judgment on Fairfax’s interlocutory application.”

9 In the limited time available on 11 December 2009 the parties put their submissions for and against the making orders in terms of the second draft. I said that I would consider the second draft in light of the submissions that had been made and would circulate a set of draft orders on Monday, 14 December 2009. My consideration of the issue was more troublesome than I expected. As a result I have decided to give this short judgment in relation to the proposed orders.

10 In short the issue before me now is whether orders in terms of the first draft or the second draft should be made or whether some other hybrid of the two is appropriate to secure the position up to the time that I give judgment on Fairfax's application.

11 The principal difference between the first draft and the second draft is a simple one. The proponent of the public interest immunity claim (“the proponent”) has made a simple and effective change to the first draft that achieves an identifiable purpose. The alteration to the second draft has the effect of preventing the identity of the proponent who contests Fairfax’s application, and who is not a party to the proceedings for principal relief, from being disclosed in any communications “between the parties, the parties and their legal representatives and the legal representatives for the parties”. As I have indicated above, this prohibition on disclosure would only operate until I give judgment on Fairfax’s application.

12 The reason for this proposed change to the first draft is undoubtedly the result of the Court’s intervention. Despite the fact that this is the way that it arose, I do not think that an order that is this restrictive can reasonably now be made. I have reached this view for several reasons.

13 First, Mr Hayes for the first and second defendants and Mr Polden for Fairfax say that the name of the proponent has already been disclosed to their clients. Mr Kerr is without sufficiently full instructions to indicate whether or not such a communication has occurred. However the proponent’s intervention was sufficiently long ago that it can be inferred that competent legal practitioners for the plaintiff would be likely to have communicated the identity of the proponent to their client some time ago.

14 There seems little point now in attempting to order the non-disclosure between legal representatives and client of the identity of the proponent. Disclosure of this particular information has already occurred. It seems artificial for the Court to prohibit the communication now of what has already been disclosed, as between legal representative and client.

15 Second, it seems artificial now to prevent the legal representatives communicating with one another now using the name of the proponent. Ever since the proponent has been involved in these proceedings on Fairfax’s application the legal representatives of the parties (to the principal proceedings and the Fairfax application) have been sending and receiving emails naming the proponent as a party to the Fairfax applications. It seems quite artificial to now prevent the legal representatives of the parties from continuing to communicate with one another in this way about what they all already know.

16 Third, order 4 of the second draft is really a working through in more detail of the liberty which has been provided, since the first orders were made involving the proponent, that the parties may disclose “as is necessary for the proper conduct of the proceedings”. These words, which appear in the first draft, ensure that the parties and their legal representatives do not communicate the name of the proponent to third parties not already involved in these proceedings but may nevertheless communicate that name to one another. This provision will still protect the public interest even if orders are in terms of order 3(d) of the first draft. None of the parties to the proceedings is able to publish the name of the proponent beyond these proceedings.

17 The position may possibly but not necessarily have been different if the proponent had attempted to seek such restrictive publication orders at the outset. I may not have allowed them to be made then.

18 What is to be done? I do not presently see there is any intermediate course available other than to make the orders in the first draft but changing order 2 so the orders expire when I give judgment. These were the orders originally proposed by consent. I will not make these orders until 2.00pm tomorrow, Friday 18 December 2009 in case any party wishes to oppose that course. Liberty to apply is granted for this purpose.

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