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 from publishing Mr MacPherson’s draft Report, or any modified version of the Report.
The plaintiffs were granted permission to proceed with the action by a Master of this Court on 10 September 2010. The Master must have been satisfied that there is a reasonable basis upon which the plaintiffs might establish a right to an order for judicial review.[1] I emphasise however that this Court has not yet determined the plaintiffs’ claims.
[1] Supreme Court Civil Rules 2006 r 200(1) and (4).
On 13 September 2010, another Burnside Councillor, Mr Zacharakis issued a separate set of proceedings seeking relief which is substantially, if not completely, identical with that sought by the five plaintiffs in the present action.
On Friday, 22 October 2010, I was asked to hear as a matter of urgency an oral application by the plaintiffs for a suppression order in the following terms:
Pursuant to s 69A(1) of the Evidence Act 1929 (SA), the publication of any part of the provisional draft report prepared by the first defendant, addressed to the Honourable Gail Gago MLC, Minister for State/Local Government Relations, a copy of which is Exhibit JH14 to the affidavit of Joanne Howard sworn on 9 September 2010 (“the Report”), or any account or report of the Report be suppressed.
The application was made at short notice because the plaintiffs had received information indicating that News Limited may publish aspects of the Report, or an account of its contents, in The Australian on the following day. The making of the order was supported by counsel for Mr Zacharakis and by Mr MacPherson. The Minister’s stance was neutral.
Although the journalist at The Australian, Mr Michael Owen, had been informed of the hearing before me on 22 October 2010, the notice which he had been given was of necessity quite short. Neither he, or any other representative from The Australian attended at the hearing on that day. Mr Fewster from the Advertiser newspaper entered the courtroom part way through the hearing and did make some submissions. However, his ability to do so was limited both on account of the short notice which he had of the hearing, and because he had not heard the submissions made by the plaintiffs and the other parties.
I was satisfied on the basis of the submissions which I heard on Friday, 22 October 2010 that it was appropriate to make a suppression order in the terms then sought by the plaintiffs.
I was concerned, however, that all parties, including the media, who may be affected by the making of the suppression order should be given the opportunity to be heard. Accordingly, I directed that the suppression order should operate only until 5.00 pm on Tuesday, 26 October 2010. I fixed 11.00 am on the same day as the time at which an application for an order with a more extended duration would be heard. I contemplated that this would allow the media to obtain legal representation for the hearing if they wished.
On 25 October 2010, the five plaintiffs in Action NO SCCIV-10-1238 and Mr Zacharakis in his action filed separate, but identical, applications for a further suppression order.
At the hearing on 26 October 2010, I informed those present that I regarded the written application filed by the plaintiffs on 25 October 2010 as a fresh application for suppression. This meant that it was the plaintiffs who had to establish that the order was appropriate, and that the media, or anyone else who opposed the making of the order, did not have to establish that the continuation of the existing order was inappropriate.
At the hearing on 26 October, Mr Selley represented the five plaintiffs in Action No SCCIV-10-1238; Mr Walsh QC represented Mr Zacharakis in Action No SCCIV-10-1260; and Mr Hinton QC, the Solicitor-General, represented the Minister. The Solicitor-General informed the Court that, because of the potential for a diversion between the interests of Mr MacPherson, on the one hand, and the Minister, on the other, in relation to the application for suppression, the Crown Solicitor no longer represented Mr MacPherson, and that by reason of the short notice which Mr MacPherson had had of that fact, he had not yet had the opportunity of retaining independent legal representation.
As Mr MacPherson did not attend to inform the Court of his intentions in the circumstance of the late withdrawal of his representation, I adjourned the matter for a short time so that enquiries could be made. Subsequently I was informed that Mr MacPherson supported the application for the suppression order, and that he did not wish to retain counsel to address the Court. The Minister again took a neutral attitude to the application.
The application by Mr Zacharakis in Action No SCCIV-10-1260 for a suppression order in terms identical to that sought by the five plaintiffs in Action No SCCIV-10-1238 was, in my opinion, unnecessary. I was informed that a copy of the draft Report had not been annexed to any affidavit filed in Action No SCCIV‑10‑1260. If the five plaintiffs obtained the suppression order which they sought, no further order would be necessary in relation to Mr Zacharakis’ action. On the other hand, if the five plaintiffs were unsuccessful with their application for suppression, it was scarcely possible that Mr Zacharakis would nevertheless be successful on his identical application.
Section 69A(1) and (2) of the Evidence Act 1929 (SA) provide as follows:
(1)     Where a court is satisfied that a suppression order should be made—
(a)     to prevent prejudice to the proper administration of justice; or
(b)     to prevent undue hardship—
(i)    to an alleged victim of crime; or
(ii)     to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)    to a child,
the court may, subject to this section, make such an order.
(2)If a court is considering whether to make a suppression order (other than an interim suppression order), the court—
(a)     must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and
(b)     may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case.
The principles relating to the making of the suppression order under s 69A were discussed by the Full Court in B, RD v Channel Seven Adelaide Pty Ltd [2] Doyle CJ emphasised the underlying principle that the administration of justice should take place in courts which are open to the public, and that public reporting of those proceedings, and public comment on them, is permissible.[3] Nevertheless, in some cases some form of suppression is appropriate. In this respect Doyle CJ said:
Statutory provisions for the making of suppression orders qualify this common law principle. Courts are often criticised for making suppression orders. If the order is wrongly made, the criticism is justified. But it needs to be understood that when courts make suppression orders, they do so because Parliament has, by statute, conferred the power to do so. When the statutory criteria for the making of an order exist, and subject to any discretionary or like considerations, the Court should make the order. To decline to do so would be erroneous, because Parliament has enacted that when appropriate circumstances exist, the order is to be made.[4]
In relation to s 69A(2) Doyle CJ said:
The effect of s 69A(2) is to require a court, when considering whether to make a suppression order, to recognise Parliament’s declaration that “the public interest in open justice” is a primary objective in the administration of justice. It is for that reason that Parliament goes on to declare in s 69A(2)(b) that an order may only be made in the stated circumstances. But the publication of material that will prejudice a fair trial will, for the purposes of s 69A(2)(b), amount to a prejudice to the proper administration of justice. Accordingly, if the publication of the material sought to be suppressed constitutes a sufficiently serious threat of prejudice to the conduct of a fair trial, the basis for the making of an order in respect of that material exists.[5]
[2] [2008] SASC 282; (2008) 103 SASR 478.
[3] Ibid at [15], 482.
[4] Ibid at [17], 483.
[5] Ibid at [25], 484.
In my separate reasons in B, RD v Channel Seven, I paraphrased the circumstances in which a court may exercise the power vested by s 69A(1) to suppress the publication of evidence on the grounds of prejudice to proper administration of justice by saying that the order may be made only when the court:
(i)having considered, as a fundamental matter affecting the exercise of the discretion, the importance of justice being administered openly and the “consequential” right of the media to publish information relating to court proceedings;
(ii)is satisfied that the publication of specified evidence would,
(a)     by reason of special circumstances existing in the particular case,
(b)     involve a threat of prejudice to the proper administration of justice,
(c)     which is sufficiently serious to justify the making of the order.[6]
[6] Ibid at [65], 491-2.
In the present case a number of matters in combination indicate, despite the fundamental importance of justice being administered publicly, that a suppression order of the kind sought by the plaintiffs is appropriate.
First, as the plaintiffs submitted, the fact that Mr MacPherson has thought it appropriate, in the discharge of an obligation to provide procedural fairness, to provide them with copies of the draft Report and an adequate opportunity to comment on its contents, carries with it the implication that those contents do have the potential to affect adversely the reputations of the plaintiffs and possibly of others. In other words, it is reasonable to proceed on the basis that the publication of the Report has the potential to cause detriment to the plaintiffs. Of course this consideration is not sufficient by itself to warrant a suppression order, but in the circumstances of this case, it is a necessary condition.
Secondly, the draft Report is, at this stage, a confidential document. The affidavit evidence indicates that Mr MacPherson has provided a copy of the draft Report to members of the Burnside Council only for the purposes of discharging his obligations with respect to procedural fairness, and that he did so only after first obtaining from each person to whom a copy was provided, an undertaking to keep the draft Report confidential. If the undertakings have been honoured, the draft Report has had only a very limited circulation to date, and a circulation for a limited purpose only.
Mr Fewster informed the Court on 22 October 2010 that Advertiser Newspapers have a copy of Mr MacPherson’s draft Report. However, solicitors for Advertiser Newspapers have since informed the Court that Mr Fewster’s understanding in that respect is mistaken. There is some evidence suggesting that The Australian newspaper may have a copy of the draft Report or, at least, of portions of it. Nevertheless, I consider it appropriate to proceed on the basis that the draft Report is a confidential document and that attempts have been made by Mr MacPherson to protect that confidentiality.
Thirdly, I note that action has already been taken in this Court to protect the confidentiality of the draft Report. By order of a Master, the draft Report has been sealed up and no person may have access to it without the permission of a Judge or Master of the Court.
Fourthly, it was necessary for the plaintiffs, in order to obtain permission to serve the judicial review proceedings, to satisfy the Court that there was a reasonable basis upon which they may be able to obtain an order for judicial review. Without exhibiting a copy of the draft Report to an affidavit in support of the application for permission to serve, it would have been very difficult for the plaintiffs to establish such a basis. Thus the very invoking of this Court’s jurisdiction involved the plaintiffs putting before the Court, and therefore potentially into the public domain, the evidential material which is the subject of the suppression application.
Fifthly, a fundamental part of the relief sought by the plaintiffs is an order restraining permanently the publication of the draft Report by each of Mr MacPherson and the Minister. If the plaintiffs succeed in the action, they may obtain such an order. However, the effect of such an injunction would be rendered nugatory if there was in the meantime publication of the draft Report’s contents. If there is publication of the draft Report before the Court can determine the merits of the plaintiffs’ claims, the Court’s ability to grant the relief to which the plaintiffs may ultimately be entitled would be lost, or at least compromised. This would be a significant compromise of the proper administration of justice. This point was made succinctly by King CJ (with whom Olsson and Mullighan JJ agreed) in Bakewell v MacPherson[7] in analogous proceedings as follows:
Before turning to the grounds upon which relief sought, it is necessary to refer to the confidential nature of the evidentiary material in the actions. The purpose of these actions is to protect the business and personal reputations of the plaintiffs against what they claim to be unjust criticisms. If those criticisms became public knowledge before the plaintiffs had had proper opportunity to answer them, the purpose of the actions would be defeated. For that reason an order was made by the Court prohibiting publication of the evidentiary material on which the actions are based.
Similarly, in Re: JN Taylor Holdings Ltd (in liq)[8] Debelle J said:
For the reasons already given, the expression “in the interests of the administration of justice” means at least that the Court may take steps to prevent public disclosure of confidential information where that disclosure would destroy the subject matter of the dispute”.[9]
(Emphasis added)
[7] (Unreported, Supreme Court of South Australia, 25 September 1992).
[8] [2007] SASC 193.
[9] Ibid at [13].
More recently, the High Court in Hogan v Australian Crime Commission[10] referred with apparent approval to the statement of Bowen CJ in Australian Broadcasting Commission v Parish[11] that it is in the interests of justice that the processes for determination of proceedings in which confidential information is the subject matter of the dispute do not, by themselves, destroy or seriously depreciate the value of that subject matter.[12]
[10] [2010] HCA 21; (2010) 240 CLR 651.
[11] (1980) 43 FLR 129 at 133.
[12] Ibid.
The considerations which I have just mentioned point strongly in favour of the grant of the suppression order.
Although a number of representatives of the media did attend the hearing on 26 October, no media organisation sought to be represented at the hearing. I inquired of those representatives of the media who were present whether any wished to be heard in relation to the application. Only Mr Fewster from Advertiser Newspapers sought to be heard. Mr Fewster did not make any submission at all opposing the making of the suppression order: his submission went to the form of the order proposed by the plaintiffs, ie, should it operate until the date of determination of the plaintiffs judicial review proceedings or until “further order”?
This meant that in the end, the making of the suppression order was supported by all parties before the Court (other than the Minister) and was not opposed by any other person or entity.
In my opinion, the circumstance that the publication of material previously kept confidential would have the effect of destroying the confidentiality which the plaintiffs, by these proceedings, seek to preserve constitutes the kind of special circumstance in which the making of a suppression order under s 69A is appropriate.
These are my reasons for the order made on 26 October 2010.