Reliance Capital Pty Ltd v Caratti [No 8]
[2024] WASC 56
•5 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RELIANCE CAPITAL PTY LTD -v- CARATTI [No 8] [2024] WASC 56
CORAM: LUNDBERG J
HEARD: 12 FEBRUARY 2024
DELIVERED : 5 MARCH 2024
FILE NO/S: CIV 2283 of 2021
BETWEEN: WALTHAMSTOW PTY LTD
Plaintiff
AND
ALLEN BRUCE CARATTI
First Defendant
TINA MICHELLE BAZZO
Second Defendant
FILE NO/S: CIV 3136 of 2019
BETWEEN: WALTHAMSTOW PTY LTD
Plaintiff
AND
ALLEN BRUCE CARATTI
First Defendant
TINA MICHELLE BAZZO
Second Defendant
Catchwords:
Practice and procedure - Defendants' application to restrict persons permitted to be present in court - Application directed to preclude attendance at court by the representatives of the first defendant's brother and to preclude representatives of the press or media - Principles of open justice discussed - Inadequate evidentiary basis - Application refused - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 67B r 5
Result:
Application dismissed
Category: B
Representation:
CIV 2283 of 2021
Counsel:
| Plaintiff | : | R J S French & A J Tharby |
| First Defendant | : | Dr J T Schoombee & A P Rumsley |
| Second Defendant | : | Dr J T Schoombee & A P Rumsley |
Solicitors:
| Plaintiff | : | Bennett |
| First Defendant | : | Alan Rumsley |
| Second Defendant | : | Alan Rumsley |
CIV 3136 of 2019
Counsel:
| Plaintiff | : | R J S French & A J Tharby |
| First Defendant | : | Dr J T Schoombee & A P Rumsley |
| Second Defendant | : | Dr J T Schoombee & A P Rumsley |
Solicitors:
| Plaintiff | : | Bennett |
| First Defendant | : | Alan Rumsley |
| Second Defendant | : | Alan Rumsley |
Case(s) referred to in decision(s):
David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288
Russell v Russell (1976) 134 CLR 495
TK v Australian Red Cross Society (1989) 1 WAR 335
Walthamstow Pty Ltd v Caratti [No 2] [2023] WASC 363
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22] [2023] WASC 285
XY v WA Country Health Service [No 2] [2016] WASC 245
Table of Contents
A. Introduction
B. Directions made in November 2023
C. Evidence on the Application
Benjamin Caratti's affidavit
Alan Rumsley's previous affidavits
D. Relevant principles
E. Disposition
Preliminary matters
Determination
F. Conclusion
A. Introduction
These reasons concern the defendants' application made on the 10th day of the trial, for orders to restrict the persons who would be permitted to be present in court whilst the defendants (Mr Allen Caratti and Ms Tina Bazzo) were giving their evidence to the Court (the Application).
The Application was initiated by a minute of proposed orders which had been filed on Sunday, 11 February 2024 and was supported by the affidavit of Benjamin Mick Caratti sworn on 12 February 2024 (the Benjamin Caratti Affidavit). Mr Benjamin Caratti is a solicitor in the employ of the law firm which represents the defendants. As at 12 February 2024, it was likely that the defendants would be called to testify on either 13 or 14 February 2024 (although as matters transpired, that did not in fact occur).
So, with minimal notice to the Court and to the plaintiff, the defendants moved for orders to preclude the lawyers and other persons engaged by Mr John Caratti (the brother of Mr Allen Caratti) from attending in Court while the defendants gave their evidence,[1] and similarly to preclude any member of the press or media from being present in the Court at that time.[2] To a similar end, orders were sought to require that the defendants be given notice of any applications by non-parties for access to the transcript of the defendants' evidence.[3]
[1] Defendants' minute of orders, [1.1].
[2] Defendants' minute of orders, [1.2].
[3] Defendants' minute of orders, [2].
The defendants' minute sought the following specific orders:
1. During the evidence of Ms Tina Bazzo and Mr Allen Caratti the following classes of persons are to be excluded from attendance:
1.1 Any person employed by Lemonis/Tantiprasut Lawyers or employed or engaged by Mr John Caratti to attend Court; and
1.2 Any member of the press and media.
2. Any application for access to any transcript of the evidence of Ms Bazzo and Mr Caratti, other than by the parties, be subject to notice to the solicitor to the Defendants with an opportunity on his part to comment on that, before release of the transcript.
During the course of the hearing, the defendants confirmed they did not press the Application insofar as Mr Allen Caratti's testimony was concerned.[4] It was therefore only necessary to rule on the balance of the Application, concerning Ms Bazzo.
[4] ts 1542 and ts 1549.
For the reasons now set out below, at the conclusion of argument on the issue, I dismissed the Application to restrict certain persons being present in Court during the course of Ms Bazzo's evidence.[5]
[5] ts 1552 – 1553.
B. Directions made in November 2023
From a timing perspective, the Application was a somewhat surprising one in the sense that, during a hearing on 23 November 2023, the Court had previously dealt with the manner in which Ms Bazzo would give her evidence at trial. The defendants had sought directions at that point in time, which had not been opposed by the plaintiff, and which led to the Court making the following directions:[6]
Subject to any further order, pursuant to Order 4A rule 2(1) of the Rules, the second defendant will give evidence at trial in accordance with the following regime:
(a) giving evidence for no more than two hours each day;
(b) be permitted a break of 15 minutes after each hour; and
(c) be permitted one day's break between sitting days (which break may include a weekend).
[6] Orders made on 23 November 2023, [6].
The directions made by the Court in November 2023 were made having regard to the material adduced through the affidavits of Mr Alan Rumsley sworn on 24 October 2023 and 23 November 2023 concerning the health and well-being of Ms Bazzo. Both affidavits were made the subject of directions to restrict access to the material, pursuant to O 67B r 5 RSC. I will refer to these affidavits as the October Rumsley Affidavit and the November Rumsley Affidavit.
Absent good reason, the Application pursued by the defendants on 12 February 2024 ought to have been raised by the defendants well before the trial commenced, or earlier in the trial to allow a proper opportunity for formal notice to be given to interested parties. The defendants' explanation was that an issue had arisen during the trial which had precipitated the Application and, specifically, instructions were obtained only on the evening of Saturday, 10 February 2024 to seek these orders.[7] Notwithstanding that indication, it is apparent from the affidavit material below that the defendants' concerns had arisen from as early as the first day of the trial.
[7] ts 1531.
C. Evidence on the Application
Benjamin Caratti's affidavit
In his affidavit, Mr Benjamin Caratti deposed that various non-parties had attended in court at the trial of these proceedings (which commenced on 29 January 2024). Those persons consisted of an accountant said to have been engaged by Mr John Caratti to investigate Mr Allen Caratti and Ms Bazzo, and various solicitors or clerks employed (or formerly employed) by the solicitors for Mr John Caratti (namely, the law firm Lemonis Tantiprasut).[8] Mr Benjamin Caratti deposed that he had observed those persons taking notes during the course of the trial.[9]
[8] Benjamin Caratti Affidavit, [4] and [6].
[9] Benjamin Caratti Affidavit, [4] and [6].
Mr Benjamin Caratti attached to his affidavit a copy of an affidavit sworn by Mr John Caratti on 19 December 2019 in Supreme Court action CIV 1923 of 2016 (which had been consolidated with CIV 2111 of 2016).[10] I was informed by counsel that the affidavit of Mr John Caratti had been read in those other proceedings such that no issue of contempt or breach of the implied undertaking arose.[11] The other proceedings were between the Rural Bank (a division of the Bendigo and Adelaide Bank Limited) and various companies controlled by Mr John Caratti including Mammoth Investments Pty Ltd and Moondancer Holdings Pty Ltd. Mr Allen Caratti was also a party to that proceeding, together with companies controlled by Ms Bazzo.
[10] Benjamin Caratti Affidavit, Attachment BMC-1.
[11] ts 1529.
In substance, in his earlier affidavit, Mr John Caratti had deposed that he had engaged the law firm Lemonis Tantiprasut and had engaged a particular accountant, being the accountant observed by Mr Benjamin Caratti to have been attending the present trial, to investigate the business activities of Mr Allen Caratti and to provide information to Mr John Caratti's lawyers.[12] Mr John Caratti deposed that he had said to the accountant:[13]
You must track Allen's activities. Find out what companies he's formed. Find out what land he's bought. Find out who's mortgaged it and what bank. Find out how much he paid.
[12] Affidavit of Mr John Caratti, [4] and [5].
[13] Affidavit of Mr John Caratti, [6].
Mr Benjamin Caratti further deposed, in his affidavit sworn 12 February 2024, that he had observed Mr Steve Masel (the director of the plaintiff) speaking to a clerk engaged by Lemonis Tantiprasut during the lunch break on the first day of trial. Mr Benjamin Caratti deposed that he heard Mr Masel ask:
Are you John's lawyer? He said he was sending someone down.[14]
[14] Benjamin Caratti Affidavit, [6(a)].
Finally, Mr Benjamin Caratti deposed that he observed Mr Neale Prior (a journalist from The West Australian newspaper) attend at Court during the course of the trial, for a brief period on 8 February 2024.[15]
[15] Benjamin Caratti Affidavit, [6(c)].
I pause at this point to observe that the animus between Mr Allen Caratti and his brother Mr John Caratti was raised during an earlier hearing before me, held on 19 September 2023. That hearing concerned the defendants' application to restrain certain lawyers acting for the plaintiff in the present actions: Walthamstow Pty Ltd v Caratti [No 2].[16] In those reasons, I summarised the various pieces of litigation (past and present) involving Mr Allen Caratti and Mr John Caratti, and commented as follows:[17]
[6]The defendants complain that the Law Practice formerly acted for Ms Bazzo in a matter which is said to be related to the issues in these actions, and that the Law Practice has acted as legal advisors for various corporations controlled by Allen Caratti and Ms Bazzo. Less directly, the defendants complain that the Law Practice has acted for John Caratti in various court proceedings. He is the brother of Allen Caratti. This is said to give rise to real concerns given the antagonistic nature of the relationship between the brothers, and the fact there is acrimonious litigation on foot between them in this court (in respect of which the Law Practice is not acting)…
…
[76]The Law Practice acted for John Caratti's interests in litigation against Allen Caratti and one of Ms Bazzo's companies, in the Supreme Court of Western Australia (the Rural Bank Proceedings).[18] The plaintiff in the litigation in question was the Rural Bank, which brought claims against companies controlled by John Caratti, Allen Caratti and one of Ms Bazzo's companies. The Law Practice acted on the record for Mammoth Investments Pty Ltd (as distinct from Mammoth Nominees Pty Ltd), Navarac Pty Ltd in its capacity as a trustee, and Moondancer Holdings Pty Ltd in its capacity as a trustee, all of which are entities controlled by John Caratti. These proceedings have now been concluded.
[77]During the course of the above proceedings, it is apparent that allegations of a serious nature as between John Caratti and Allen Caratti were made, and third party proceedings were instituted.
Alan Rumsley's previous affidavits
[16] Walthamstow Pty Ltd v Caratti [No 2] [2023] WASC 363.
[17] Walthamstow Pty Ltd v Caratti [No 2] [6], [76] and [77] (for the avoidance of doubt, the Law Practice referred to in these earlier reasons is not Lemonis Tantiprasut).
[18] Supreme Court of Western Australia CIV 1923 of 2016. See the decision of Kenneth Martin J in Rural Bank Ltd v Mammoth Investments Pty Ltd in this action.
In further support of the Application, counsel for the defendants placed reliance on the earlier affidavits sworn by Mr Rumsley, the solicitor on the record for the defendants (being the October Rumsley Affidavit and the November Rumsley Affidavit). The earlier affidavits attached opinions received by Mr Rumsley from a medical practitioner who had treated Ms Bazzo.[19]
[19] Consisting of (1) an undated letter from the medical practitioner which is attached to Attachment APR1 to the October Rumsley Affidavit; (2) a letter from the medical practitioner dated 29 September 2023 which is Attachment APR 2 to the October Rumsley Affidavit; and (3) a letter from the medical practitioner dated 10 November 2023 which is Attachment APR 4 to the November Rumsley Affidavit.
As I was prepared to make orders to restrict access to these affidavits, in order to preserve the utility of those orders, I will refrain from reciting the contents of the medical opinions in any detail.
The following brief and general observations about the medical evidence can, however, be made:
(a)First, the medical evidence was provided to the Court in order to explain delays which had occurred in the process of Ms Bazzo preparing her witness statement, as well as in support of the regime which was sought to regulate the manner in which Ms Bazzo would give her evidence. This led to the directions being made on 23 November 2023 which I have extracted above in these reasons.
(b)Second, the medical evidence does not address the impact upon Ms Bazzo of giving evidence because of the presence of certain persons in court at the time she testifies, or on the reporting of her evidence. The only, limited exception I can discern in this respect concerns the possible presence of representatives of the Australian Taxation Office, which is mentioned in the material in passing. The medical evidence is silent as to the impact of Mr John Caratti or his agents, or any members of the media, attending at Court whilst Ms Bazzo testifies.
D. Relevant principles
The starting point in considering any application to restrict the presence of persons in Court is to recognise the fundamental importance of the principle of open justice. It must be accepted as a matter of the common law that justice ought not be administered behind closed doors, and court proceedings must be exposed in their entirety to the cathartic glare of publicity.[20]
[20] David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294, 300 (Street CJ).
Accordingly, the natural and ordinary process which follows when proceedings are commenced in this Court is that the course of those proceedings is a matter of public record, and interlocutory and final hearings are conducted in open court.
In TK v Australian Red Cross Society,[21] Malcolm CJ recognised there can be exceptions from the principle of open justice.[22] However, his Honour observed that the circumstances in which the Court would depart from the fundamental principle of the public administration of justice would need to be very exceptional. His Honour further observed that:[23]
The onus on a party seeking public anonymity as a plaintiff or any other limitation on publicity with respect to proceedings must necessarily be heavy.
[21] TK v Australian Red Cross Society (1989) 1 WAR 335, 336 (Malcolm CJ).
[22] TK v Australian Red Cross Society (336 - 337).
[23] TK v Australian Red Cross Society (337).
The application before Malcolm CJ in TK v Australian Red Cross Society did not seek orders that the proceedings be held in camera, only that the identities of the applicants should not be publicly disclosed.
In Re Hogan; Ex parte West Australian Newspapers Ltd,[24] the Court of Appeal reviewed the principles of open justice. The subject matter under review in that case was the making of an order by a Magistrate to prohibit the publication of a videotape which had been adduced in evidence in criminal proceedings against two women charged with assaulting children in their care at a childcare centre. The videotape contained images of children lying in cots or on mattresses and showed the manner in which some of the children's legs were tied. Orders had also been made to prohibit the publication of the names of the child complainants without the written permission of the children's parents.
[24] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288.
McLure P described the ordinary rule as going no further than the conduct of court proceedings be in public.[25] Her Honour recognised that the rule was subject to a number of exceptions 'which permit a departure from the general rule in a variety of ways such as by excluding the public from the proceedings or limiting the republication of information or evidence referred to or adduced in the proceedings'.[26]
[25] Re Hogan; Ex parte West Australian Newspapers Ltd [31].
[26] Re Hogan; Ex parte West Australian Newspapers Ltd [31].
The rationale for the rule, as her Honour explained by reference to earlier authorities, was that exposure of court proceedings to public scrutiny is essential for the maintenance of confidence in the integrity and independence of the courts.[27] Owen JA expressly associated himself with McLure P's explanation of the underlying rationale.[28] Miller JA agreed with the reasons of both McLure P and Owen JA, with all members of the court dismissing the appeal in that case.
[27] Re Hogan; Ex parte West Australian Newspapers Ltd [33], citing Gibbs J in Russell v Russell (1976) 134 CLR 495, 520 and Samuels JA in Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47, 61.
[28] Re Hogan; Ex parte West Australian Newspapers Ltd [49].
The importance of the rationale, according to both McLure P and Owen JA, is that the public interest generally prevails over the 'adverse personal consequences to litigants and those associated with them that can arise from the public nature of court processes and proceedings'.[29] Her Honour the President provided examples in this regard, recognising however that the physical and emotional health effects on individuals can, in limited circumstances, justify a departure from the general rule:[30]
For example, following widespread publicity given to the charges and trial in this case, there was a dramatic fall in enrolments at the childcare centre at which the alleged assaults occurred and at another centre run by the same owners, forcing the closure of the former and the sale of the latter. The childcare centre staff were verbally abused and damage was done to the premises. The physical and emotional health of one of the owners was detrimentally affected. There can be no doubt that the paramountcy of the public interest in the public conduct of court proceedings can result in very significant collateral damage to litigants, victims and those associated with them. However, such considerations are relevant and can in limited circumstances justify a departure from the ordinary rule relating to court proceedings. The exceptions to the ordinary rule are based on the balancing of competing public interests. It is not without significance that one uncontroversial and frequently applied exception to the ordinary rule relating to the core activity of court proceedings is the protection of confidential commercial information.
[29] Re Hogan; Ex parte West Australian Newspapers Ltd [33].
[30] Re Hogan; Ex parte West Australian Newspapers Ltd [33].
Counsel for the defendants drew my attention to the decision of the NSW Court of Appeal in Raybos Australia Pty Ltd v Jones. That decision was cited with approval by both McLure P and Owen JA in Re Hogan; Ex parte West Australian Newspapers Ltd. Owen JA referred to the observations of Kirby P in Raybos Australia Pty Ltd v Jones as follows:[31]
It is worth repeating what was said in Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47 in this regard. The case concerned an attempt to prohibit publication of the name of a solicitor-defendant in contempt of court proceedings. Kirby P, at 50-52, traced the history of the open administration of justice. His Honour cited dicta and writings of venerable antiquity stressing both private and public aspects of the principle. In relation to the former, publicity encourages attention by those involved in a case to the seriousness of the judicial process and thus promotes veracity of testimony. Matters of public interest or benefit include an educative effect leading to a greater respect for the law, increased appreciation of the methods of government and a confidence in judicial remedies. It also encourages judges to be faithful in the performance of their duties.
[31] Re Hogan; Ex parte West Australian Newspapers Ltd [49].
In relying on Raybos Australia Pty Ltd v Jones, counsel for the defendants placed emphasis on one of the examples cited by Kirby P as justifying a derogation from the ordinary rule. The example given is cases where the court is charged with the responsibility for the mentally ill.[32] That exception has no application in the present circumstances. It concerns circumstances in which the court is exercising its jurisdiction over such persons.[33]
[32] Raybos Australia Pty Ltd v Jones (54) and ts 1533 and ts 1544 – 1545.
[33] As explained by French CJ in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [21], to which reference is made below.
In XY v WA Country Health Service [No 2],[34] Pritchard J explained the proper approach to a decision whether to depart from the fundamental principle of open justice. Her Honour posited a two stage approach which first requires an identification of any competing interests which may warrant a departure from that principle, and then an undertaking of a balancing exercise which weighs those competing interests with the principle of open justice.
[34] XY v WA Country Health Service [No 2] [2016] WASC 245.
The exceptions to the principle were also recently explored by Smith J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22].[35] Her Honour made reference to the observations of French CJ in Hogan v Hinch, in which his Honour the then Chief Justice explained the basis of the court's power to restrict the publication of proceedings conducted in open court and when that power might be exercised. His Honour first addressed the general principle:[36]
[20]An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
[35] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 22] [2023] WASC 285.
[36] Hogan v Hinch [20] (footnotes omitted).
His Honour went on to address the exceptions to the general principle, by reference to the dictates of the proper administration of justice:[37]
[21]It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could 'cause an entire destruction of the whole matter in dispute'. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the 'keen public interest in getting blackmailers convicted and sentenced' and the difficulties that may be encountered in getting complainants to come forward 'unless they are given this kind of protection.' So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where 'exceptional and compelling considerations going to national security' require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was 'parental and administrative, and the disposal of controverted questions ... an incident only in the jurisdiction'. Proceedings not 'in the ordinary course of litigation', such as applications for leave to appeal, can also be determined without a public hearing.
[22]It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
...
[26]In my opinion the better view is that there is inherent jurisdiction or implied power in limited circumstances to restrict the publication of proceedings conducted in open court. The exercise of the power must be justified by reference to the necessity of such orders in the interests of the administration of justice ...
[37] Hogan v Hinch [21] – [26] (footnotes omitted).
I had regard to the foregoing principles in disposing of the defendants' Application.
E. Disposition
Before addressing the substance of the Application, I should deal with two preliminary points.
Preliminary matters
First, following a brief interchange with counsel for the defendants during the early stages of the hearing on 12 February 2024, in which I pointed out the deficiency in the evidentiary materials to support the Application insofar as Mr Allen Caratti was concerned, the Application in that respect was not pressed any further.[38] It was therefore not necessary for the Court to rule on the Application concerning Mr Allen Caratti's evidence.
[38] ts 1540 – 1542 (and footnote 4 above).
Second, there was a degree of communication during the course of the hearing (and prior to the hearing) between the interested parties and the defendants' solicitors. The Court was informed of the position of the interested parties and certain indications were made directly to the Court by the interested parties based on whether or not the Court might be minded to make the orders sought by the defendants.
There was an indication, for example, that one of the senior lawyers at Lemonis Tantiprasut would be prepared to leave the court room during the evidence of Ms Bazzo.[39] Mr Prior also graciously indicated he would refrain from attending court during the course of Ms Bazzo's evidence.[40] These indications appeared to be conditional, however, on the Court being satisfied that the orders sought by the defendants should be made.
[39] ts 1551.
[40] ts 1551.
To clarify the position of the Court, I gave the following indication to all those present in the court room before indicating that I would refuse the Application and provide reasons in support thereof:[41]
LUNDBERG J: Nothing that I've said should be taken as an encouragement or discouragement of any party present in court today to be here or not be here during the evidence of Ms Bazzo or, for that matter, Mr Caratti. What we've been engaged in is an argument concerning whether there is a justification for the court's powers to be exercised to make an order that would preclude a person coming into court. If people wish to absent themselves from the court consensually, that is a matter for them. Not for me. So it seems … what I'm being asked to do is to exclude any member of the press or media, generally, from being present during the evidence of Ms Bazzo.
RUMSLEY, MR: I think that's correct, your Honour.
[41] ts 1552.
In my view, whether or not certain persons indicated they would consensually refrain from attending the proceedings of this Court was irrelevant to the determination of the defendants' Application concerning Ms Bazzo's evidence. It is a matter for members of the public whether they wish to attend the Court at any point in time to observe its proceedings. Unless orders are made to restrict access, the proceedings of this Court are open to the public.
The question posed by the Application, as confined during argument, was whether there was a proper basis to exclude two classes of persons from the court room during Ms Bazzo's testimony, being any person employed by Lemonis/Tantiprasut Lawyers or employed or engaged by Mr John Caratti, and any member of the press and media. The latter class of persons being far broader than the former.
Determination
The defendants' Application to exclude these two classes of persons carried a heavy onus. It was for the defendants to justify a departure from the general principle that proceedings at trial in this Court are open to the public.
As articulated by counsel for the defendants, the concern of Ms Bazzo was that she would be required to give her evidence, and be the subject of cross-examination, whilst under the glare of the representatives of Mr John Caratti and the media and, by reason of her present disposition, Ms Bazzo would also be concerned as to what she was likely to read in the press the day after her evidence was given.
Put in this way, the defendants' concern would not be ameliorated by having Ms Bazzo give her evidence in some manner in which she was shielded from the attendees in court.[42] Their presence in court, and the reporting of Ms Bazzo's testimony, would still remain matters of acute concern to Ms Bazzo.
[42] A suggestion which I raised during the course of the hearing: ts 1544.
The orders sought would thus require that the proceedings of the court be closed in a partial sense when Ms Bazzo testified, namely that the two classes of persons not be permitted to attend court. The exclusion of any members of the press or media from the court room during Ms Bazzo's testimony would in effect preclude any reporting of that evidence by media outlets during the course of the trial. The balance of the proceedings might still be reported, though.
Further, restricting access during a witnesses testimony does not mean the proceedings are conducted in secret. The final reasons for decision of the Court, published following the trial, provide an additional avenue by which the events of the trial are exposed to public scrutiny. I did not apprehend the defendants to be seeking any order that the Court's final reasons be made subject to some restriction. Accordingly, it is relevant to note that, even if the orders sought on this Application were made, the evidence of Ms Bazzo and any findings in that regard would be recorded in a public document in due course (although not contemporaneously to the trial).
It is also relevant that the restriction sought as to access to the transcript of Ms Bazzo's evidence was not absolute. The orders sought would only require notice to be given to the defendants of any request to access the transcript.
All of that said, in reality and in substance, an order that precludes any member of the press or media from attending court is tantamount to an order closing the court to the public, in my view. In a practical sense, the ability of the press or media to report on the proceedings of this Court is the usual manner in which members of the public may receive information about those proceedings as they progress. There thus remains a heavy burden on an applicant seeking to exclude such a broad class of persons from observing a portion of the trial.
I recognise that the process of giving evidence in court proceedings is a stressful one, whether they be civil or criminal proceedings. It can impact on particular witnesses in different ways, of course. The experience of each witness who gives evidence to a court is likely to differ. There is no typical witness.
Witnesses who testify in a civil proceedings but are not parties to the proceeding, or have no direct or indirect financial connection to the outcome of the proceeding, may find the process less stressful than those witnesses who have some 'skin in the game'. That said, even witnesses removed from the fray, who come to the Court to provide their evidence in a professional capacity or as observers of factual matters, may feel the strain of the process. That may be a result of past experiences with the legal system. There may be cultural reasons for the impact on the witness. The witness may have a nervous disposition. The evidence of witnesses who are vulnerable or have a disability may also be unfairly impacted by the trial process.
Witnesses who are likely to come under attacks concerning their credibility and reliability may find the experience generates a high degree of stress - before, during and after their time in the witness box.
Proceedings which are live-streamed or that are regularly the subject of press reporting may generate an additional layer of stress for the participants to the proceeding and for those who find themselves in the witness box.
The foregoing observations are a byproduct of the natural and ordinary process of civil litigation in this country, and of the application of the principles of open justice.
An aspect of particular and, in my view, legitimate concern which may arise where the presence of persons in court is said to have a significant material impact on a witness, is whether the Court's ability to assess the credibility and reliability of the witness will be negatively impacted in those circumstances. I understand the import of McLure P's observations, referred to at [26] above, to be that the physical and emotional toll on participants in the litigation process is a relevant factor which may be considered in departing from the ordinary rule. Where the toll unfairly and materially impacts the true ability of the witness to present their evidence to the court, some restrictions on the ordinary rule may be warranted. But it demands something more than the adverse personal consequences that arise from the public nature of court proceedings, or the typical stresses of testifying.
On the criminal side of the Court, there are mechanisms and procedures available to deal with such matters. For example, see s 106N of the Evidence Act 1906 (WA). In civil proceedings, procedural fairness considerations may militate in favour of a regime being ordered which addresses this material impact, and is designed to lessen it. This step may be justified, subject to a proper evidentiary foundation being established, in the interests of the administration of justice.[43]
[43] Hogan v Hinch [26] (French CJ).
Before imposing orders to restrict access to the court, or closing the court entirely, principle demands that the Court give fulsome consideration to some less restrictive option to ensure that there is not too ready a departure from the open justice principle.
In the present matter, a regime has already been imposed to reduce the impacts of the process of Ms Bazzo testifying at trial. The question which arises on this Application is whether the circumstances, and the evidentiary material adduced, justifies further orders being made to control access to the court by the identified classes of persons. In my view, the evidentiary material before the court on the Application was insufficient to justify such a step. As I have already noted, nothing in that material provided a basis, much less a cogent basis of the type which is required on an application of this nature, to support the orders sought, including as to limiting access to the transcript of the evidence of Ms Bazzo. The medical evidence simply did not advert to the impact on Ms Bazzo of these persons being present in the court room during her testimony.
Further, while I recognise the usual impacts of the process of giving evidence on witnesses, there is no basis for the Court to simply infer that the presence in the court room of these persons, or the reporting of proceedings, would be such as to affect Ms Bazzo in a significant way outside the ordinary impacts of the trial process on witnesses. That is so even when regard is had to the limited medical evidence which was adduced by the defendants from which some inferences might be drawn.
The conclusion I therefore reached at the conclusion of argument on 12 February 2024 was that the absence of any proper evidentiary foundation for the orders sought in relation to Ms Bazzo was fatal to the Application in that respect, such that the balancing process inevitably fell in favour of the maintenance of the ordinary rule as explained by McLure P in Re Hogan; Ex parte West Australian Newspapers Ltd and French CJ in Hogan v Hinch.
To put it another way, on my assessment, it was not necessary to make the orders sought by the defendants in the interests of the administration of justice.
F. Conclusion
For the foregoing reasons, I dismissed the balance of the Application which had been pressed by the defendants at the hearing on 12 February 2024 and declined to impose any restrictions on the classes of persons who could attend during the testimony of Ms Bazzo.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TL
Associate to the Honourable Justice Lundberg
5 MARCH 2024
7
1