Parbery re Trio Capital Ltd

[2010] NSWSC 798

CITATION:	Parbery re Trio Capital Ltd [2010] NSWSC 798
HEARING DATE(S):	12/07/10, 13/07/10, 15/07/10
JUDGMENT DATE :	20 July 2010
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
DECISION:	1. Order that the subsisting confidentiality order in respect of the affidavit of Shawn Richard sworn on 9 July 2010 be discharged and that that affidavit be retained in the court file in accessible form. 2. Direct that each of John Fairfax Publications Pty Ltd and Nationwide News Pty Ltd may have access to the said affidavit through the court’s Public Information Officer.
CATCHWORDS:	PROCEDURE - application made upon affidavit of applicant for which confidentiality granted for the purposes of the hearing - application dismissed - applicant seeks permanent suppression order in relation to his affidavit - two media companies apply for access to the affidavit - whether necessary to continue suppression for the purpose of securing the due administration of justice - private interest and potentially damaging and embarrassing publicity insufficient - where such publicity has already occurred
LEGISLATION CITED:	Corporations Act 2001 (Cth), Part 5.9 Federal Court of Australia Act 1976, s 50
CATEGORY:	Procedural and other rulings
CASES CITED:	Attorney-General for New South Wales v Nationwide News Pty Ltd [2007] NSWCCA 307; (2007) 73 NSWLR 635 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 84 ALJR 479 John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Parbery re Trio Capital Ltd [2010] NSWSC 775 P v D1 (No 3) [2010] NSWSC 644
PARTIES:	Stephen James Parbery, Neil Singleton and Nicholas Martin in their capacity as liquidators of Trio Capital Limited, Astarra Fund Management Pty Limited, and ASI Administration Pty Limited - Plaintiffs
FILE NUMBER(S):	SC 2010/011359
COUNSEL:	Mr C R C Newlinds SC/Mr R M Foreman - Liquidators Mr S T White SC - Mr Richard Mr A T S Dawson - John Fairfax Publications Pty Ltd Ms S Moran - Nationwide News Pty Ltd
SOLICITORS:	Norton Rose Australia - Liquidators J N Legal Solicitors - Mr Richard

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

BARRETT J

TUESDAY, 20 JULY 2010
2010/011359 STEPHEN JAMES PARBERY & 2 ORS AS LIQUIDATORS OF TRIO CAPITAL LIMITED & 2 ORS

JUDGMENT

1 On 12 July 2010, I heard and dismissed an application by Shawn Richard for an order that his then forthcoming examination under Part 5.9 of the Corporations Act 2001 (Cth) be conducted in private: see Parbery re Trio Capital Ltd [2010] NSWSC 775.

2 In making his application, Mr Richard relied on an affidavit sworn by him on 9 July 2010, the content of which was admitted into evidence. That was the only evidence tendered by him. For the purposes of the hearing on 12 July 2010, an order was made to ensure that confidentiality was maintained in relation to the content of the affidavit.

3 After the application had been dismissed, two media organisations applied for access to Mr Richard’s affidavit. They are John Fairfax Publications Pty Ltd (which had, by leave, made submissions through counsel on the hearing of Mr Richard’s motion on 12 July 2010) and Nationwide News Pty Ltd (represented by Ms Sussanah Moran, a journalist). Mr Richard, for his part, pressed, through his counsel, Mr S T White SC, for an order making permanent the confidentiality created by the earlier order for the purposes of the hearing.

4 Submissions on the question of confidentiality of and access to the affidavit were then heard at various times on 12, 13 and 15 July 2010.

5 The public interest in the open administration of justice is clear and uncontroversial. Its relationship with personal interests in maintaining confidentiality has been the subject of recent observations of the High Court (French CJ, Gummow J, Hayne J, Heydon J and Kiefel J) in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 84 ALJR 479. That case concerned s 50 of the Federal Court of Australia Act 1976 which allows the Federal Court to forbid or restrict the publication of particular evidence “as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth”.

6 No similar statutory provision applies to this court but, as is made clear by case law, the court’s inherent jurisdiction and its ability and duty to administer its own proceedings in the interests of justice include a like power to forbid or restrict publication of evidence. Such a prohibition or restriction can properly be made, however, only where its imposition is necessary to secure the proper administration of justice. The test of necessity has been stated on several occasions by the Court of Appeal: see, in particular, John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 and John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131.

7 In the former, Spigelman CJ noted that the test of necessity, for the purpose of securing the due administration of justice, supports the several accepted categories of suppression order, such as those which protect the identity of a police informer or blackmail victim. Part of the rationale of suppression orders in those cases is to protect a flow of information that will promote the cause of justice.

8 In the present case, of course, Mr Richard made what can only have been a calculated and considered decision to place the content of his affidavit before the court to enhance his prospects, as he saw them, of obtaining an order that his examination take place in private rather than in public. He did not maintain that there should be no examination; merely that the publicity or potential publicity that is the natural by-product of examination in public should be eliminated by the particular order he sought.

9 Mr Richard’s examination proceeded in public. When the present application was last before the court (on 15 July 2010), the examination had been in progress for two days and had received extensive coverage in the press. Among the matters referred to in press reports about Mr Richard’s examination on activities within the Trio Group were statements by Mr Richard that he had told lies about his academic qualifications and past employment, that he was a “mere puppet” who did what he was told by Mr Littauer and Mr Flader, that his business had received “regular illegal secret commissions or kickbacks” from Mr Flader (described as his “offshore boss”) and that substantial sums of investors’ money had left Australia “by a very quick round-robin system” and “found its way into Mr Flader’s pocket”.

10 The content of Mr Richard’s affidavit with which I am here concerned and in respect of which he wishes to see a suppression order continued goes to fears he has for his safety and apprehensions that he may come to harm through the efforts of persons about whom he is examined.

11 Two conclusions are sufficient to dispose of the application. First and having regard to the press reports about what has already come out in the examination, publication of the content of the affidavit would not, in my view, entail any risk of inflaming those about whose actions Mr Richard has apprehensions which is materially greater than that which may have been generated already by the press reports. Second, I can see no necessity, from the point of view of protecting the due administration of justice, for any suppression order to be made. As Slattery J recently observed in P v D1 (No 3) [2010] NSWSC 644 at [13], the power to make suppression orders, as an aspect of the inherent jurisdiction, extends only to “orders that are necessary for the administration of justice”.

12 In arguing the case for permanent suppression, Mr White sought to draw an analogy with cases in which confidentiality is ordered by the court where a dispute about some secret process is being litigated. That form of confidentiality comes within the necessity principle because the integrity of the particular proceeding will be jeopardised if information about its confidential subject matter enters the public domain. That is not the case here.

13 Mr White also referred to the established category of non-disclosure order protecting police and like investigations. Here, there is an ASIC investigation that has received publicity. Having regard to the content of the affidavit and the notorious fact of Mr Richard’s involvement in events in which ASIC cannot but be interested, I am not persuaded that disclosure of the affidavit’s content has any capacity to prejudice the ASIC investigation. Mr White submitted that there is a need to protect a police investigation, but the only foundation for that is a hearsay statement in the affidavit that a third party has said that she has reported a matter of apprehended violence to the police. There is no basis for concluding that any police investigation is underway or that publication of the affidavit’s content will or might prejudice any police investigation.

14 Mr White drew attention to the decision of the Court of Criminal Appeal in Attorney-General for New South Wales v Nationwide News Pty Ltd [2007] NSWCCA 307; (2007) 73 NSWLR 635 where suppression orders were made in respect of affidavits and continued after the conclusion of the proceedings. The affidavits had been tendered in a murder trial and went to undercover police operations. It was held that the test of necessity, in the interests of the administration of justice, was satisfied. There is, in my opinion, no parallel with the present case.

15 The insufficiency of some private interest standing alone to support a suppression order was emphasised by Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales (above):

“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: see, eg, David Syme & Co Ltd v General Motors-Holden's Ltd [[1984] 2 NSWLR 294]; Raybos Australia Pty Ltd v Jones [[1985] 2 NSWLR 47]; R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227; R v Bromfield , Malcolm CJ (at 22); Rockett v Smith , per Derrington J (at 7). A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice."

16 In Hogan v Australianl Crime Commission (above) at [43], the High Court said:

“The placing of material in evidence, even on the faith of what for the time being would be a restriction imposed by a s 50 order, is a matter of forensic decision. The price of such a decision may be the subsequent disclosure, as is often the case in litigation, of embarrassing publicity. It is no sufficient answer to brandish the term ‘inherently confidential’, and rely upon the assumptions in favour of Mr Hogan made without an evidentiary basis.”

17 That, to my mind, is the case here. Mr Richard made a forensic decision to place the content of the affidavit of 9 July 2010 before the court as the sole basis for his contention that he should be examined in private instead of in public. He did so on the faith of an access restriction imposed for the purposes of the hearing of his application. Upon the present applications (for continuing suppression and for access), he was content to rely on the same evidence, without any form of supplementation. Viewed from Mr Richard’s perspective and in the light of publicity to this point, the consequence of disclosure of the content of the affidavit will be, at most, “embarrassing publicity” and “damaging” publicity. That is not enough to justify continuing suppression.

18 The order and direction are therefore as follows:

1. Order that the subsisting confidentiality order in respect of the affidavit of Shawn Richard sworn on 9 July 2010 be discharged and that that affidavit be retained in the court file in accessible form.

2. Direct that each of John Fairfax Publications Pty Ltd and Nationwide News Pty Ltd may have access to the said affidavit through the court’s Public Information Officer.

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