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…

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.

Continue reading P v D1 [No 2]

Details

AGLC: P v D1 [No 2] [2009] NSWSC 1493
Case: [2009] NSWSC 1493
Decision Date: 17 December 2009

CaseChat Overview and Summary

The case of P v D1 [No 2] involved a dispute between the applicant, P, and the first defendant, D1. The applicant sought access to the court file under the Supreme Court Rules, and the application was resisted by D1 on the grounds of public interest immunity. The case was heard in the Supreme Court of New South Wales, presided over by Justice Bell.

The primary legal issue before the court was whether the public interest in maintaining the confidentiality of the proponent of the claim for public interest immunity outweighed the applicant's right to access the court file. The court needed to balance the principles of open justice and the protection of sensitive information. The applicant argued that the identity of the proponent was not inherently confidential and that the public interest in open justice should prevail. In contrast, D1 contended that disclosure of the proponent's name could potentially harm national security and diplomatic relations.

Justice Bell determined that the public interest in preserving the confidentiality of the proponent's identity was paramount. The court recognised the importance of maintaining the integrity of sensitive information, especially in cases involving national security and international diplomacy. The judge concluded that disclosure of the proponent's name at that stage of the proceedings could prejudice the outcome and the broader interests of the state. Therefore, the court made orders preventing the disclosure of the name until the final judgment, ensuring that the public interest immunity was adequately protected.

Orders