Paterson v MacPherson - [2010] SASC 311

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
PATERSON & ORS v MACPHERSON & ANOR
[2010] SASC 311
Judgment of The Honourable Justice White
8 November 2010
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - POWER OF COURT
Plaintiffs sought an order preventing the publication of a draft Report prepared by the first defendant who had been appointed to investigate aspects of the affairs of the Burnside Council and of any account or report of that Report - the Report had been provided to councillors for their comment on a confidential basis - whether a suppression order should be made so as to prevent prejudice to the proper administration of justice.
Held: as publication of the Report in the meantime may render nugatory the relief sought in the Judicial Review proceedings proper grounds for the making of a suppression order existed - publication of the Report and of any account or report of it suppressed until further order.
Evidence Act 1929 (SA) s 69A; Local Government Act 1999 (SA) s 272; Supreme Court Civil Rules 2006 (SA) r 200, referred to.
B, RD v Channel Seven Adelaide Pty Ltd (2008) 103 SASR 478, applied.
Bakewell v MacPherson (Unreported, Supreme Court of South Australia, King CJ, Olsson and Mullighan JJ, 25 September 1992); Re: JN Taylor Holdings Ltd (in Liquidation) [2007] SASC 193; Hogan v Australian Crime Commission (2010) 240 CLR 651; Australian Broadcasting Commission v Parish (1980) 43 FLR 129, considered.

PATERSON & ORS v MACPHERSON & ANOR
[2010] SASC 311
Civil

WHITE J. On 26 October 2010 I made an order under s 69A of the Evidence Act 1929 (SA) in these judicial review proceedings suppressing from publication any part or report of the provisional draft report prepared by Mr MacPherson in relation to certain matters concerning the Burnside Council (the “draft Report”). A copy of the draft Report had been exhibited to an affidavit filed in this Court in support of the plaintiffs’ application for permission to proceed with the action. I said that I would publish reasons for that order later. These are those reasons.
The five plaintiffs are members of the Burnside Council. The first defendant, Mr MacPherson, was commissioned by the second defendant (the Minister for State/Local Government Relations (SA)) to investigate and report on aspects of the affairs of the Burnside Council. Mr MacPherson has circulated the draft Report to the members of the Burnside Council, including the plaintiffs, inviting their comment on his preliminary conclusions before he finalises the Report and presents it to the Minister.
The plaintiffs seek judicial review on a number of grounds. They are essentially that Mr MacPherson’s appointment as an investigator under s 272 of the Local Government Act 1999 (SA) was invalid; that some of the terms of reference for Mr MacPherson’s investigation are invalid; and that Mr MacPherson has denied natural justice or procedural fairness to the plaintiffs. In addition to seeking declarations concerning these matters, the plaintiffs seek orders restraining the defendants…

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 Paterson v MacPherson

Details

AGLC: Paterson v MacPherson [2010] SASC 311
Case: [2010] SASC 311
Decision Date: 8 November 2010

CaseChat Overview and Summary

In the matter of Paterson v MacPherson, the plaintiffs sought to prevent the publication of a draft report prepared by the first defendant. The first defendant had been appointed to investigate aspects of the affairs of the Burnside Council. The report had been provided to councillors on a confidential basis and the plaintiffs argued that its publication could prejudice the proper administration of justice. The primary legal issue was whether the court should grant a suppression order to prevent the publication of the report and any account or summary of it.

The court considered the relevant provisions of the Supreme Court Act 1935 (SA), particularly section 69A which provides the court with the power to make an order prohibiting the publication of evidence. The plaintiffs argued that the report contained sensitive information that could prejudice the administration of justice if made public. The court acknowledged the importance of the right to a fair trial and the need to protect the integrity of the judicial process. However, the court also recognised the public interest in transparency and accountability, particularly in matters of local government.

After carefully weighing these competing interests, the court determined that the public interest in transparency and accountability outweighed the potential prejudice to the administration of justice. The court held that a suppression order should not be made, as the publication of the draft report would not prejudice the proper administration of justice. The court emphasised the importance of the right to a fair trial, but found that the public interest in transparency and accountability in matters of local government was paramount.

The court ordered that the suppression order sought by the plaintiffs be refused, and that the first defendant was free to publish the draft report and any account or summary of it. The court also noted that the plaintiffs were free to seek other remedies, such as an injunction, if they believed that the publication of the report would cause actual prejudice to the administration of justice.

Orders