Reliance Capital Pty Ltd v Caratti [No 9] - [2024] WASC 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RELIANCE CAPITAL PTY LTD -v- CARATTI [No 9] [2024] WASC 65
CORAM:   LUNDBERG J
HEARD:   6 MARCH 2024
DELIVERED          :   11 MARCH 2024
FILE NO/S:   CIV 2283 of 2021
BETWEEN:   RELIANCE CAPITAL PTY LTD
Plaintiff
AND
ALLEN BRUCE CARATTI
First Defendant
TINA MICHELLE BAZZO
Second Defendant

FILE NO/S: CIV 3136 of 2019
BETWEEN: RELIANCE CAPITAL PTY LTD
Plaintiff
AND
ALLEN BRUCE CARATTI
First Defendant
TINA MICHELLE BAZZO
Second Defendant

Catchwords:

Practice and procedure - Further application by defendants to restrict persons present in court during testimony of second defendant - Asserted impact on mental health and well-being of second defendant - Ability of court to properly assess reliability and credibility of witness - Application narrowed following prior refusal by the court of the defendants' first application - Application does not require departure from, or intrusion into, the ordinary rule that proceedings be conducted in public - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 4A r 2(1), O 4A r 5(2), and O 67B r 5

Result:

Orders made to facilitate proceedings being transmitted by video link to second court room during second defendant's testimony

Category: B

Representation:

CIV 2283 of 2021

Counsel:

Plaintiff	:	A J Tharby
First Defendant	:	A P Rumsley
Second Defendant	:	A P Rumsley
Non-party	:	Dr E M Heenan SC

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Alan Rumsley
Second Defendant	:	Alan Rumsley
Non-party	:	Lemonis Tantiprasut Lawyers

CIV 3136 of 2019

Counsel:

Plaintiff	:	A J Tharby
First Defendant	:	A P Rumsley
Second Defendant	:	A P Rumsley
Non-party	:	Dr E M Heenan SC

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Alan Rumsley
Second Defendant	:	Alan Rumsley
Non-party	:	Lemonis Tantiprasut Lawyers

Case(s) referred to in decision(s):

Caratti v The Queen [2000] WASCA 279
Civmec Construction & Engineering Pty Ltd v Mann [No 2] [2023] WASC 99
Harvard Nominees Pty Ltd v Caratti [2022] WASC 441
Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140
Netglory Pty Ltd v Caratti [2013] WASC 364
Ogbonna v Qantas Airways Ltd [No 4] [2023] WASC 21
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288
Reliance Capital Pty Ltd v Caratti [No 8] [2024] WASC 56
Scott v Scott [1913] AC 417
West Australian Newspaper Ltd v The State of Western Australia [2010] WASCA 10

LUNDBERG J:

These reasons relate to the defendants' application by minute of proposed orders filed 1 March 2024 seeking orders to preclude certain persons being present in court during the testimony of the second defendant (the Application). The second defendant commenced her testimony on 14 February 2024, and will resume giving evidence on 15 March 2024.
The Court has, on two prior occasions, heard applications brought by the defendants seeking orders to control the manner in which the defendants would testify at trial or as to who could be present in the court room during their evidence. Those earlier applications are discussed in Reliance Capital Pty Ltd v Caratti [No 8].[1] These reasons should be read together with those earlier reasons.
[1] Reliance Capital Pty Ltd v Caratti [No 8] [2024] WASC 56.
The present Application was opposed by the plaintiff and by one of the parties sought to be affected by the orders, being Mr John Caratti. The application was heard on 6 March 2024, with directions having been made on 1 March 2024 to facilitate the hearing and the provision of notice to the affected persons.
The orders sought by the defendants are as follows:
1. During the evidence of Ms Tina Bazzo the following persons are not to be present in the Court room:
1.1 John Caratti;
1.2 Any person employed or engaged by Lemonis/ Tantiprasut Lawyers;
1.3 Any person employed or engaged by John Caratti; and
1.4 Neale Prior of The West Australian.
There are three categories of persons who would be affected by the orders: (1) Mr John Caratti (who is the estranged brother of Mr Allen Caratti), (2) persons employed or engaged by Mr John Caratti or by his lawyers (which includes Mr John Caratti's lawyers),[2] and (3) Mr Prior (who is a well-known journalist).
[2] The lawyers for Mr John Caratti are Lemonis Tantiprasut Lawyers.
The defendants relied upon an outline of submissions dated 5 March 2024 and, in terms of affidavit evidence, primarily relied on the affidavit of its solicitor sworn on 24 February 2024 (Rumsley Affidavit), which attached a medical opinion from a Consultant Psychiatrist dated 23 February 2024 (Medical Opinion). The Consultant Psychiatrist is a Fellow of the Royal Australian College of General Practitioners and a Fellow of the Royal Australian and New Zealand College of Psychiatrists. I have ordered that the Rumsley Affidavit be restricted pursuant to O 67B r 5 RSC, which has meant that the affected persons do not have a copy of the affidavit.[3] Within the Medical Opinion, the author addresses the impact upon Ms Bazzo of her giving evidence in the presence of Mr John Caratti, his lawyers, and also Mr Prior.
[3] ts 1858.
The Rumsley Affidavit attached a copy of an article published in the Herd on the Terrace column which appeared in The West Australian newspaper on 17 February 2024, authored by Mr Prior. That article commented on the proceedings before this Court on 7 February 2024. The article was relatively benign and was far from a full-throated attack on the second defendant, in my view. On its own, the article ought not excite concern or distress from those referred to therein.
The defendants also referred to two additional affidavits, being:
(a)the affidavit of Benjamin Caratti sworn on 12 February 2024 in support of the application which was heard on 12 February 2024 (and which is referred to in my earlier reasons); and
(b)the affidavit of Allen Bruce Caratti sworn 8 September 2023 in support of the defendants' application to preclude certain lawyers acting for the plaintiff, which refers to numerous pieces of litigation, past and present, between he and his brother and their associated companies.
No direct evidence in support of the Application was adduced from the second defendant herself.
Senior Counsel appeared for Mr John Caratti at the hearing on 6 March 2024 and was granted leave to appear and make submissions in opposition to the Application. The plaintiff also made brief submissions in opposition to the Application. I reserved my decision at the conclusion of argument and indicated I would deliver my reasons on 11 March 2024 without the need for an appearance, to minimise the further costs of the parties.
As noted above, the Court has previously dealt with similar applications brought by the defendants. The first application was dealt with by orders dated 23 November 2023. Orders were made at that time to impose a regime in relation to Ms Bazzo's evidence, specifically as to the breaks which would be allowed during her evidence.
The second application was dismissed on 12 February 2024, for the reasons explained in the decision published on 5 March 2024. The defendants had sought broad orders on 12 February 2024 to restrict the persons who could be present in court (including any members of the press and media). The application initially concerned both defendants, but was confined to the second defendant during the course of argument.
As counsel for the plaintiff submitted, this is now the defendants' third bite at the cherry. As alluded to in my earlier reasons, it is unfortunate, from a case management and efficiency perspective, that the matter has troubled the Court on more than one occasion. While I am concerned about the additional costs incurred through this process, and the burden on the limited resources of the Court, it is not appropriate to dismiss the Application on this basis. However, I will order that the defendants require leave before filing any further applications of a similar nature, and will hear from the parties as to the costs orders to be made in relation to the present application.
On analysis, and as explained by counsel for the defendants at the hearing, the present Application does not, in my view, seek to displace the fundamental principle of open justice. That is, the Application does not require that the Court be satisfied that this case falls within an exception to the ordinary rule that the conduct of court proceedings be in public.[4] Thus, evidence of the nature adduced to support the anonymity orders made in the case to which Senior Counsel for Mr John Caratti referred, West Australian Newspaper Ltd v The State of Western Australia,[5] is not required in my view.
[4] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288. See generally [19] to [31] of my reasons in Reliance Capital Pty Ltd v Caratti [No 8].
[5] West Australian Newspaper Ltd v The State of Western Australia [2010] WASCA 10.
The focus of the fresh Application is on limiting the persons who will be present in the trial court room during the second defendant's testimony, but the defendants do not seek any limit on the reporting of that evidence or on the ability of the excluded persons to view the proceedings from a different location.[6] The medical evidence is confined in its terms to the significant negative impact on the second defendant's well-being and her ability to give her evidence in a true manner, arising from the presence of certain persons in the court room while she testifies.
[6] ts 1849.
Seen in this way, the Application does not require that the defendants manoeuvre around the open justice principle. The matter is fundamentally a question of balancing the case management considerations, being cognisant not only of the potential prejudice and risks concerning the Court's ability to assess the credibility and reliability of the second defendant,[7] but also the potential prejudice which the proposed arrangement might have on the plaintiff's ability to conduct its case as well. The interests of all parties requires close consideration.
[7] Reliance Capital Pty Ltd v Caratti [No 8] [52].
As to the potential impact on the second defendant, and whether the Court's ability to assess the credibility and reliability of her evidence will be negatively impacted, I am satisfied the Medical Opinion, while brief, provides a foundation to conclude that the toll on the second defendant of testifying in the presence of Mr John Caratti or his representatives is beyond that arising from the typical stresses of testifying in public proceedings in Court. This is not a case of mere embarrassment, distress, loss of privacy, or shame on the part of the second defendant. It goes well beyond that. In reaching that view, I intend no slight on Mr John Caratti or his representatives. Mr John Caratti has not attended the trial of this matter thus far, and there is no indication he intends to. His representatives have attended the trial, and there has been no evidence of disruption to the proceedings whatsoever. They have conducted themselves in an entirely professional manner.
But these observations would miss the point. The focus is on the impact on the second defendant. It requires an assessment as to whether the environment in which she testifies has a subjective affect on her mental health and well-being. Examined through the prism of the second defendant's experiences in contested litigation involving Mr John Caratti and his brother, Mr Allen Caratti, over the course of the last two decades, in which Ms Bazzo has had a direct involvement, I am satisfied the collective impact on Ms Bazzo of those events is significant. The substance of the Medical Opinion bears this out.
It is appropriate to recognise that the prior judicial pronouncements as to the animosity generated by the previous litigation has focused on the relationship between the Caratti brothers, John and Allen, and not Ms Bazzo. I refer, by way of example only, to the decisions of this Court in Netglory Pty Ltd v Caratti[8] and in Harvard Nominees Pty Ltd v Caratti,[9] as well as the decision of the Full Federal Court in Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq).[10] There has been litigation on foot between or involving the brothers, as well as Ms Bazzo, for around 20 years.[11] However, my attention was not drawn to any specific evidence of animosity or acrimony as between Ms Bazzo and Mr John Caratti.
[8] Netglory Pty Ltd v Caratti [2013] WASC 364.
[9] Harvard Nominees Pty Ltd v Caratti [2022] WASC 441.
[10] Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140.
[11] ts 1870 – 1871.
Nonetheless, it is reasonably open to infer that the hostile relationship between Ms Bazzo's long term de facto partner and his brother has had an impact on Ms Bazzo herself, especially given the length of time over which the litigation has run. It is not to be thought that the mere presence of past litigation between family members or business partners would provide a foundation for such a conclusion. The present case is markedly different. I have the Medical Opinion from a Consultant Psychiatrist as to the affects on the second defendant, and I have material before me demonstrating a lengthy course of litigation between these persons, on multiple fronts, involving several trips to intermediate appellate courts along the way. The past litigation has also seen the two brothers being co-defendants in criminal proceedings.[12] That cannot be described as ordinary litigation.
[12] Caratti v The Queen [2000] WASCA 279 [1] – [12].
What then of the position of Mr Neale Prior, the journalist from The West Australian newspaper? The evidentiary foundation in this regard is rather weak. The Rumsley Affidavit refers to one news article penned by Mr Prior. As I have noted, it is benign and I can detect nothing in that article that would cause an ordinary person to be concerned, although as counsel for the plaintiff noted, there is a sarcastic tone about the piece. The article is largely directed at the role played by Mr Benjamin Caratti as a member of the legal team for the defendants, who are described in the article as his 'embattled property developer parents'.
Again, although the direct evidence is sparse, the proper focus is on the subjective impact on the second defendant. In that regard, the Medical Opinion outlines the physical and mental impacts on the second defendant when recounting her past experiences of reading stories written by Mr Prior. Unfortunately, none of those prior articles were adduced in evidence. I am therefore driven to place a high degree of reliance on the assessment of the medical practitioner who has authored the Medical Opinion. I also recognise, as a matter of ordinary experience, that events can impact the mental health of people in different ways, to vastly different degrees. So too, the process of giving evidence in court proceedings can impact witnesses in different ways. There are no typical witnesses, and there are no typical mental health consequences arising from life circumstances or events.
On my assessment, the evidentiary material adduced by the defendants, particularly the Medical Opinion of the second defendant's treating psychiatrist, is sufficient to justify a case management direction being made to modify the usual arrangements for conducting a trial in this Court. In saying this, I accept that the considerations which have been pointed to by the plaintiff and the interested party, in seeking to dissuade the Court from acceding to the Application, are rational and proper. Mr John Caratti has not attended the trial and there is no evidence he intends to in the future. His lawyers and representatives have attended the trial and acted quite properly. As counsel for Mr John Caratti observed, there has been no 'tumult or disruption' in the court room, to adopt the language of Earl Loreburn in Scott v Scott,[13] a decision of the House of Lords. Further, Mr Bazzo commenced her testimony on 14 February 2024 without incident, or any visible reaction on her part. Finally, the only media article identified on the evidence is benign in nature.
[13] Scott v Scott [1913] AC 417, 445.
Against this, I note the fresh Application has been significantly narrowed in scope relative to the earlier application heard on 12 February 2024. The defendants do not seek to exclude all members of the press and media, do not seek to curtail the reporting of the trial in any respect, confine the relief they seek to Ms Bazzo's evidence only, and accept that a pragmatic solution such as organising a second court room would resolve their concerns. There is thus no intrusion into the open justice principle.
In my view, and importantly, the relevant consideration on this Application which I consider to be of paramount significance is whether, absent any case management direction being made, there is a real risk the second defendant's mental health and well-being could be compromised through the presence of certain persons in the court room and, if that risk materialises, whether the Court's ability to assess the credibility and reliability of the second defendant's evidence will be negatively impacted.
In the event there was such an impact, that would be prejudicial to the defendants' defence in both actions and the pleaded counterclaim. This litigation has been hotly contested thus far. Ms Bazzo is a material witness in both actions. There are likely to be attacks on her credibility during the course of her evidence, and I anticipate submissions will be advanced by the plaintiff in closing in this regard. The plaintiff's claims against the defendants are valued, I understand, in the order of millions of dollars. In those circumstances, it is important that the Court ensure the manner in which the second defendant testifies does not operate to unfairly impact her true ability to present her evidence to this Court. I thus accept there is a real risk of harm to the second defendant, and of prejudice to the defendants generally, unless a case management direction is made, and these considerations outweigh the matters emphasised by the plaintiff's counsel and by Senior Counsel for Mr John Caratti.
In the interests of the administration of justice, I therefore propose to exercise the case management powers afforded to the Court in O 4A r 5(2) RSC, when read with O 4A r 2(1) RSC, in the manner explained below. That is a facultative provision which should be given a broad interpretation.[14]
[14] Civmec Construction & Engineering Pty Ltd v Mann [No 2] [2023] WASC 99 [45] – [46]; and Ogbonna v Qantas Airways Ltd [No 4] [2023] WASC 21 [85].
The Court will make arrangements for a second court room to be available while Ms Bazzo testifies, which I will refer to as the Additional Court Room. The Additional Court Room will be employed to allow any member of the public or media to attend and watch proceedings by video link. To minimise disruptions to the trial process, and the cross-examination of Ms Bazzo,[15] which may arise if the Court and the Court's staff are required to vet who is present in the primary court room (which I will refer to as the Trial Court Room), I will order that the Trial Court Room be closed to the public, with appropriate signage in place to ensure all members of the public are directed to the Additional Court Room, from where they can observe the proceedings.
[15] A consideration identified by counsel for the plaintiff: ts 1863.
To ensure there is no disruption to the ability of the plaintiff's counsel to conduct his cross-examination, and no question of my ability to assess Ms Bazzo, it is appropriate that Ms Bazzo gives her evidence in the same court room in which the parties and I am located, namely the Trial Court Room.

For the foregoing reasons, I am of the view that the following orders should now be made:
1.The leave of the Court is required before the defendants file or serve any further application for orders or directions as to the manner in which either defendant will give their evidence in these actions or as to who may be present in the court room whilst they give their testimony, or any application directly connected to such matters.
2.Pursuant to O 4A r 5(2) of the Rules of the Supreme Court 1971 (WA), and until further order, during the course of the second defendant's testimony at the resumed trial of the actions commencing on 15 March 2024, the Court shall make the following administrative arrangements:
(a)Only the parties, the legal representatives of the parties, and the staff of the Court shall be permitted to be present in the trial court room while the second defendant is testifying (Trial Court Room).
(b)An additional court room will be allocated for the trial of these actions while the testimony of the second defendant is being given, which room shall be open to the members of the public and in which the proceedings of the Trial Court Room will be displayed by video link (Additional Court Room).
(c)The second defendant will give the entirety of her evidence from the Trial Court Room.
3.The defendants' application dated 1 March 2024 is otherwise dismissed.
4.The costs of the defendants' application dated 1 March 2024, and the costs of the hearings on 1 March 2024 and 6 March 2024, are hereby reserved.

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
11 MARCH 2024