Perpetual Trustee Company Ltd v Burniston [No 2]
[2012] WASC 383 (S)
•15 OCTOBER 2012
PERPETUAL TRUSTEE COMPANY LTD -v- BURNISTON [No 2] [2012] WASC 383 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 383 (S) | |
| Case No: | CIV:2900/2009 | 15 OCTOBER 2012 | |
| Coram: | EDELMAN J | 15/10/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Interim suppression order made | ||
| B | |||
| PDF Version |
| Parties: | PERPETUAL TRUSTEE COMPANY LTD MICHAEL BURNISTON ANN BURNISTON PERPETUAL TRUSTEE COMPANY LTD |
Catchwords: | Practice and procedure Suppression of parties to proceeding and reasons for decision Suppression order made on interim basis to give affected parties the opportunity to make submissions concerning the manner in which the suppression should be lifted |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MICHAEL BURNISTON
ANN BURNISTON
Defendants
(BY ORIGINAL ACTION)
MICHAEL BURNISTON
ANN BURNISTON
Plaintiffs
AND
PERPETUAL TRUSTEE COMPANY LTD
Defendant
(BY COUNTERCLAIM)
(Page 2)
Catchwords:
Practice and procedure - Suppression of parties to proceeding and reasons for decision - Suppression order made on interim basis to give affected parties the opportunity to make submissions concerning the manner in which the suppression should be lifted
Legislation:
Nil
Result:
Interim suppression order made
Category: B
Representation:
Original Action
Counsel:
Plaintiff : Ms C H Thompson
Defendants : Mr C M Slater
Solicitors:
Plaintiff : Gadens Lawyers
Defendants : Legal Aid (WA)
Counterclaim
Counsel:
Plaintiffs : Mr C M Slater
Defendant : Ms C H Thompson
Solicitors:
Plaintiffs : Legal Aid (WA)
Defendant : Gadens Lawyers
Case(s) referred to in judgment(s):
Nil
(Page 4)
- [The suppression order was removed in its entirety from the primary reasons for decision referred to below on 23 April 2013.]
1 EDELMAN J: The reasons for decision which I will shortly deliver to the parties concern litigation between a lender and borrowers. My reasons for decision are substantial, comprising 117 pages. Substantial parts of my reasons involve legal issues, although the legal issues and the facts are inextricable. I explain in my reasons for decision that the issues raised, which I consider in detail, include whether the lender's demand for payment was defective; whether statutory preconditions for payment were met; issues of unconscionable conduct (in various different forms) and misleading or deceptive conduct; issues concerning rectification of the loan agreement; whether terms should be implied into the loan agreement; whether a duty of care arises; contributory negligence; mistake and misrepresentation; issues of agency and vicarious liability including an extended legislative concept of agency; and remedies.
2 I have not heard from any of the parties, nor from any interested person, concerning whether the names of the parties or my reasons should be suppressed. At the commencement of the trial, counsel for the lender said that if I considered that suppression orders were appropriate, or if such orders were sought by the borrowers, then the lender would have no submissions to make on that matter. Taking into account the considerations in Practice Direction 8.2, pars 1 - 6, I have decided that the reasons should be suppressed until further order.
3 Suppression decisions usually require an exercise of discretion which is heavily dependent upon the particular facts. They should not be lightly taken. The suppression of a judicial decision, in whole or in part, has the necessary effect of rendering the process of justice less open and less transparent. Whenever possible without rendering the order nugatory, reasons for suppression should be given.
4 A fundamental principle of the public system of litigation is open and transparent justice. It is a principle of fundamental concern, but it is not absolute. It must be weighed against other competing interests that might support suppression. The reason for suppression in this case is because my reasons for decision consider matters which may be the subject of pending criminal proceedings against a person or persons who were not a party or parties to the case before me, nor called as a witness or witnesses. Publishing these reasons could potentially indirectly affect those proceedings.
(Page 5)
5 On the other hand, a significant reason in support of the publication of my reasons for decision in this matter is that there may be other actions in this court or other courts involving similar issues which could be affected by my decision on the legal issues involved.
6 I have considered various alternatives to suppression. One possibility is whether it is possible to suppress part of my reasons only. I do not consider that this is possible. Many of the parts of my reasons are interrelated. The suppression of some parts of the reasons, but not other parts, would render much of the reasons incomprehensible.
7 Another possibility is that the reasons be published with the names of all the persons involved anonymised in my judgment and the names of the parties to the action suppressed (and anonymised). At the moment it seems to me that this would be sufficient to overcome any potential prejudice to an affected party. I will direct that these reasons be provided to the potentially affected person or persons and I will give that person or persons the opportunity to make any submission to me concerning the lifting of the suppression, subject to anonymising the names of the persons involved and suppressing the names of the parties to the proceeding.
8 I will also hear, at short notice, any application which any interested person wishes to make to lift the suppression order. In the absence of such an application by Monday 19 November 2012, the suppression order will be lifted subject to orders suppressing the names of the parties to the proceeding and subject to publication of an anonymised version of my reasons. The suppression order will be lifted entirely, and the full judgment published, as soon as the possibility of prejudice to any criminal proceedings has passed.
9 In the interim, the orders I make are for the suppression of the names of the parties in this proceeding until further order, and the suppression of these reasons for decision until further order.
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