Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [No 2]
[2011] WASC 276
•23 AUGUST 2011
RIZHAO STEEL HOLDING GROUP CO LTD -v- KOOLAN IRON ORE PTY LTD [No 2] [2011] WASC 276
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 276 | |
| Case No: | CIV:1955/2011 | 23 AUGUST 2011 | |
| Coram: | EDELMAN J | 23/08/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Suppression order made, limited in extent and duration | ||
| B | |||
| PDF Version |
| Parties: | RIZHAO STEEL HOLDING GROUP CO LTD KOOLAN IRON ORE PTY LTD MOUNT GIBSON MINING LTD |
Catchwords: | Practice and procedure Suppression order Factors to be weighed against the principle of open and transparent justice Turns on own facts |
Legislation: | Nil |
Case References: | J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 Reynolds v Panten [No 2] [2000] WASCA 412; (2000) 23 WAR 238 Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2011] WASC 207 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
KOOLAN IRON ORE PTY LTD
First Defendant
MOUNT GIBSON MINING LTD
Second Defendant
Catchwords:
Practice and procedure - Suppression order - Factors to be weighed against the principle of open and transparent justice - Turns on own facts
Legislation:
Nil
Result:
Suppression order made, limited in extent and duration
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr A Papamatheos
First Defendant : Mr S Murphy
Second Defendant : Mr S Murphy
Solicitors:
Plaintiff : Holman Fenwick & Willan
First Defendant : Freehills
Second Defendant : Freehills
Case(s) referred to in judgment(s):
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221
Reynolds v Panten [No 2] [2000] WASCA 412; (2000) 23 WAR 238
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2011] WASC 207
(Page 3)
- EDELMAN J:
(These reasons were delivered at the time of the hearing and have been edited from the transcript.)
The issue in this application
1 This application concerns orders made to give effect to a temporary suppression of very limited parts of my decision in Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2011] WASC 207 (Rizhao 5).
2 Suppression decisions of this nature will usually require an exercise of discretion which is dependent upon the particular facts before the judge. They may not raise questions of legal principle beyond the case itself. However, any 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. I consider that wherever it is possible to do so without rendering the suppression order nugatory it is in the interests of justice that reasons for suppression be published.
The reasons for the limited suppression order
3 The substantial application in this matter was heard on 15 August 2011. On 18 August 2011 I delivered a confidential copy of my reasons to counsel and solicitors only. At that time I invited submissions to be made the next day, on 19 August 2011, in relation to any orders which should be made consequent upon the reasons for decision.
4 On 19 August 2011, Mr Murphy for the defendants submitted that the reasons should be suppressed due to references made in several paragraphs to matters of sensitivity. I adjourned the publication of reasons until this morning in order to permit Mr Murphy to take full instructions on this issue. I indicated to Mr Murphy that he should consider whether he wished to apply for suppression of all the reasons or whether it may be more appropriate to apply for suppression of only a small part of the reasons.
5 The application made this morning is much more limited. The application seeks the suppression of only several sentences of the reasons for decision. For the plaintiff, Mr Papamatheos neither supports nor opposes the application.
6 The overriding and fundamental principle is one of open and transparent justice. It is a principle of fundamental concern, but it is not
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- an absolute principle. It must be weighed against other competing interests which might support suppression.
7 I have considered the relevant authorities in this area, including the decision of the Full Court of the Supreme Court of Western Australia in Reynolds v Panten[No 2] [2000] WASCA 412; (2000) 23 WAR 238 and a useful article, J Sher, 'Anonymity in Commercial Litigation' (2011) 39 Australian Business Law Review 282. I have also considered other leading authorities and the extent to which the principles relating to suppression have evolved, including in light of developments in information technology: see, for instance, Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 [30] - [34] (McLure P) [50] - [51] (Owen JA); Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; J vL & A Services Pty Ltd (No 2) [1995] 2 Qd R 10.
8 In my opinion, weighing the importance of the fundamental principle of open and transparent justice against factors which weigh in favour of suppression, I conclude that, for the following six reasons, the limited suppression orders that are sought by the defendants ought to be made.
9 First, the suppression that is sought in this case concerns approximately five sentences in a 14-page judgment.
10 Secondly, the judgment is intelligible without the sentences sought to be suppressed and the sentences do not concern the core reasons for decision.
11 Thirdly, and importantly, the suppression will be limited in duration.
12 Fourthly, I have considered that part of the evidence before me which may relate to a pre-action discovery application. I have also considered the progress of the pre-action discovery application. Those factors weigh in favour of the orders that are sought.
13 Fifthly, the application for suppression is not one which is brought for reasons of non-confidential commercial sensitivity. Such reasons of commercial sensitivity alone will rarely, if ever, be sufficient to make an order for suppression of reasons in light of the importance of open and transparent justice.
14 Sixthly, I have also considered Practice Direction 8.2, pars 1 - 6. The orders that are sought are consistent with the approach in that Practice Direction. In particular, as I have explained, even though in other circumstances the entirety of reasons might be suppressed, the sentences
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- which Mr Murphy seeks to suppress fall well short of suppression of the entirety of reasons.
15 For these reasons, I made orders for the temporary suppression of five sentences of my reasons for decision in Rizhao 5.
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