Porch v State of Victoria

[2023] VSC 61

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S ECI 2021 00199

KARYN PORCH	Plaintiff
-v-
STATE OF VICTORIA	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2023
DATE OF JUDGMENT:	16 February 2023
CASE MAY BE CITED AS:	Porch v State of Victoria
NEUTRAL CITATION:	[2023] VSC 61

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PRACTICE AND PROCEDURE – Inspection of court file – Non-party seeking access to pleadings – Presumption in favour of inspection – Application unopposed by both parties – No circumstances justifying refusal of leave to inspect – Supreme Court (General Civil Procedure Rules) 2015 (Vic) r 28.05; Children, Youth and Families Act 2005 (Vic) s 534; Family Violence Protection Act 2008 (Vic) s 166(2)(b); Family Law Act 1975 (Cth) s 121; Judicial Proceedings Reports Act 1958 (Vic) s 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms T Jaya
For the Defendant
For the Applicant	Mr H Hassan

HIS HONOUR:

1. The Age Company Ltd applied for permission to inspect and copy the pleadings in these proceedings pursuant to r 28.05 of the Supreme Court (General Civil Procedure Rules) 2015 (Vic). The Prothonotary declined the Age’s request made on 1 April 2022 to inspect the file in the proceedings. The Age is not a party to the proceeding.

1. The Prothonotary initially refused this request on the basis that provision of the file would be a breach of its obligations under s 534 of the Children, Youth and Families Act 2005 (Vic). The plaintiff’s solicitors informed the Prothonotary of her consent to the Age inspecting the file on 11 April 2022. To the Age’s renewed requests, the Prothonotary maintained this refusal on the basis that provision of the file would be a breach of its obligations under s 166(2)(b) of the Family Violence Protection Act 2008 (Vic) and s 121 of the Family Law Act 1975 (Cth). The Prothonotary offered to obtain ‘judicial advice’ about the proposed restriction while reaffirming the decision to refuse inspection.

1. Judicial Registrar Baker directed the matter be heard as an interlocutory application by way of summons for an order made under rule 28.05(5).

1. On 16 February 2023, I ordered that The Age, by its authorised representatives, be permitted to inspect and copy the pleadings in these proceedings and stated that I would publish my reasons for doing so. These are those reasons.

1. It is important to note at the outset that the plaintiff, Karyn Porch, does not object to disclosure of the pleadings to the Age and supports such disclosure being made. Her solicitor appeared on the summons to consent to the order that I made. The defendant, whose solicitor was present on a watching brief, but did not formally appear, by correspondence stated that it ‘will support his Honour’s ruling on the matter’. The defendant drew the court’s attention to the naming of another person in the pleadings who may be a witness to and/or a victim of family violence. That person, Julie Bond, was also represented on this application by the plaintiff’s solicitor and she also consented to the order that I made. Neither Ms Porch, nor Ms Bond, has sought or desires a pseudonym order. They wish to be identified.

1. Rule 28.05 states:[1]

   [1]Rule 28.05 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) (Rules) was recently amended, with effect from 1 October 2021.

Inspection of documents

(1)Subject to this Rule, when the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any documents filed in the proceeding.

(2)A person not a party may not inspect or obtain a copy of the following documents without leave of the Court—

(a)       affidavits;

(b)       exhibits of affidavits;

(c)       witness statements

(d)expert reports, including those filed pursuant to Order 33 or Order 44 of these Rules; and

(e)       written submissions, outlines of argument and chronologies.

(3)       Paragraph (2) does not apply to a document that has been—

(a)       read or relied upon in open court; or

(b)       relied upon in an application determined without a hearing.

(4)No person may inspect or retain a copy of a document which the court has ordered remain confidential.

(5)A person not a party may not, without leave of the court, inspect, or obtain a copy of a document which in the opinion of the Prothonotary … ought to remain confidential to the parties.

1. By r 28.05(1), the Age, a non-party, has the prima facie right to inspect and copy pleadings in a proceeding without leave of the Court. The restrictions on that right under sub-rule (2) do not apply. Sub-rule (4) does not apply as the court has not ordered that the pleadings remain confidential and there are no applications today that the pleadings be suppressed or kept confidential to the parties in this matter.

1. The rule does not govern what the Age might publish in any report on the proceedings following an inspection of the pleadings. This application does not deal with that form of publication of the allegations made in the pleadings and is solely concerned with the right of the Age, as a non-party, to inspect and copy the pleadings.

1. Section 534 of the Children, Youth and Families Act 2005 (Vic), which was the initial basis for the Prothonotary’s refusal of the search request, prohibits the publication of a report of a proceeding in the court that would identify a child or a witness to a proceeding arising under the that Act.

1. Section 166(2)(b) of the Family Violence Protection Act 2008 (Vic) prohibits the publication of a report of a proceeding or an order under the Act that contains any particulars likely to lead to the identification of any person involved in the proceeding or the subject of a National Domestic Violence Order.

1. Section 121 of the Family Law Act 1975 (Cth) prohibits the publication of any account that identifies a party, associate or witness to a proceeding under the Family Law Act 1975 (Cth).

1. This proceeding is not a proceeding under any of these Acts. The proceeding is a common law claim for negligence against the State of Victoria brought under Part 4, Division 8 of the Victoria Police Act 2013 (Vic) in respect of the conduct of police officers. A material allegation, central to the plaintiff’s claims, concerned the conduct of a police officer, Danny Shaddock. Shaddock was married to the plaintiff and they had three children. Shaddock was also in a relationship with Ms Bond which, in part, overlapped with his marriage to the plaintiff.

1. The plaintiff alleged that following certain particularised conduct, the plaintiff made allegations of criminal conduct and domestic violence against Shaddock to police at Morwell Police Station and, on 26 March 2013, an intervention order (DVO) against Shaddock, with the plaintiff as the affected family member, was granted by consent without admission. The plaintiff alleges breach of the DVO by Shaddock, that it expired without application for renewal and that a proposed application by police to renew the DVO was withdrawn in favour of a mediation. The plaintiff alleged her allegations were also investigated by Professional Standards Command and found to be not substantiated. She later made a complaint to the Independent Broad Based Anti-Corruption Commission.

1. The plaintiff applied again in June 2018 for an intervention order, which was granted, initially on an interim basis and then until April 2022.

1. The plaintiff also alleged that a special investigation by Victoria Police into allegations of predatory behaviour and serious sexual harassment within Victoria Police, called Taskforce Salus, investigated multiple complaints against Shaddock.

1. The plaintiff alleged that Shaddock’s conduct, as particularised by her in her statement of claim, if proved, constituted family violence within the meaning of the Family Violence Protection Act 2008 (Vic) and the family violence policies constituted by the Codes of Practice and Policy Rules contained in the Victoria Police Manual.

1. In the circumstances pleaded, the plaintiff alleged that police officers owe a duty of care to a person making complaints of family violence against a serving member of Victoria Police. The police nominated in the statement of claim owed a duty of care to the plaintiff that was breached causing the plaintiff to suffer injury, loss and damage.

1. It is necessary to look more closely at the provisions of the Family Violence Protection Act,  as the pleadings make reference to proceedings and orders made under that Act. Section 166(2) cannot reasonably be construed by the concept of ‘publish or cause to be published’ as applying to the exercise of the prima facie right to inspect a court file.

1. As the Age submitted, there are two reasons why permitting inspection of the court file in this proceeding does not infringe the Family Violence Protection Act. First, the proceeding is not a proceeding under the Act. Secondly, the inspection and copying of a pleading is neither a ‘publication’ nor a ‘report of the proceeding’ or a ‘report about the order’ for the purposes of the Act. The Act defines ‘publish’ by s 4 in these terms:

publish means disseminate or provide access to the public or a section of the public by any means, including by—

(a) publication in a book, newspaper, magazine, or other written publication; or

(b)       broadcast by radio or television; or

(c)       public exhibition; or

(d)      broadcast or electronic communication—

and publication must be construed accordingly;

1. The notion of providing access to a person (the non-party searcher) cannot be conflated with the concept of providing access to the public or a section of the public. What the non-party searcher of the court file does with information gained from the inspection is not governed by the rule. Parliament did not intend to define ‘publish’ in a manner that restricted access defined information from a court file to any person because the text and context of the Act, particularly the notion of providing ‘access to the public’ cannot apply to dissemination of information to individuals as occurs when a court file is searched. The notion of access to the public is different from the notion of access to an individual. Subsequent dissemination of information gained from a court file to the public (which may be publishing) is not a matter governed by the rule or raised for consideration in this application.

1. Parliament having chosen to use ordinary words of broad import means they should not be given an unduly narrow or technical meaning as would result if the words ‘the public or section of the public’ were read as ‘a person’.[2]

   [2]See Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 305, 320-1; Mills v Meeking (1990) 169 CLR 214, 233; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 398.

1. I would add that plainly the text and context of the Act excludes a construction that incorporates a pleading in a proceeding in this court as a report of a proceeding or a report about an order made under the Act. The fundamental role of pleadings to define the issues in a civil dispute to be adjudicated by the court,[3] is inconsistent with the concept of a report. The fact that a material fact concerning a proceeding under any of these acts is alleged in a pleading for the necessary purpose of identifying the issues in a civil dispute does not make the pleading an account or a report of a proceeding in the sense identified by these various Acts.[4]

   [3]Banque Commerciale S.A., In Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 286.

   [4]For this reason s 169B of the Act need not be considered. However, were the pleading to be considered to be a report relating to a DVO and inspection of the file to be publication, the plaintiff and Ms Bond are ‘adult victims’ who have consented to such publication.

1. Accordingly I find there is no basis under any of the Acts relied upon by the Prothonotary to prevent the Age from inspecting the pleadings.

1. For completeness, I note the provisions of the Judicial Proceedings Reports Act 1958 (Vic). Section 4 of that Act prohibits the publishing of particulars of any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed. The pleadings do not contain such particulars. It is unnecessary to look to the permission given by Ms Porch and Ms Bond to the pleadings being inspected by the Age, which is implicit in their consent to the order the court has made, or to consider the dubious notion that inspection of a court file under the rule could constitute a publication under that Act other than for a purpose connected with a judicial proceeding.

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