Robinson v Goodman
[2013] FCA 894
FEDERAL COURT OF AUSTRALIA
Robinson v Goodman [2013] FCA 894
Citation: Robinson v Goodman [2013] FCA 894 Parties: SALLYANNE ROBINSON v PHILIP HARRY GOODMAN and RIVERS (AUSTRALIA) PTY LTD File number: VID 61 of 2011 Judge: MORTIMER J Date of judgment: 28 August 2013 Catchwords: PRACTICE AND PROCEDURE — application by respondent for order to prohibit sketch artist from sketching respondent’s image in Court — consideration of powers under s 23 of the Federal Court of Australia Act 1976 (Cth) and implied powers — whether powers to make suppression or non-publication orders under Pt VAA relevant — application refused. Legislation: Federal Court of Australia Act 1976 (Cth) ss 17(1), 23, Pt VAA Div 2
Federal Court Rules 2011 (Cth) r 6.11Cases cited: Attorney-General v Observer Ltd [1990] 1 AC 109
DJL v Central Authority (2000) 201 CLR 226
DPP v Rintoull [2010] VSC 30
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Russell v Russell (1976) 134 CLR 495Date of hearing: 28 August 2013 Date of last submissions: 28 August 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Ms F O'Brien SC with Ms K Gladman Counsel for the Respondents: Mr H Borenstein SC with Mr N Harrington Solicitor for the Applicant: Max Legal Solicitor for the Respondents: Norton Rose Fulbright
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 61 of 2011
BETWEEN: SALLYANNE ROBINSON
ApplicantAND: PHILIP HARRY GOODMAN
First RespondentRIVERS (AUSTRALIA) PTY LTD
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
28 AUGUST 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The respondents’ application for orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), to prohibit the sketching of Mr Goodman in the courtroom in this proceeding, is refused.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 61 of 2011
BETWEEN: SALLYANNE ROBINSON
ApplicantAND: PHILIP HARRY GOODMAN
First RespondentRIVERS (AUSTRALIA) PTY LTD
Second Respondent
JUDGE:
MORTIMER J
DATE:
28 AUGUST 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)
On the afternoon of Tuesday 27 August, during the first week of the hearing of this matter, a member of the media disclosed to the Court that she wished to sit in the courtroom and sketch Mr Goodman. I sought the parties’ views on this. Senior Counsel for the applicant, Ms O’Brien SC, informed me her client had no objections. Senior Counsel for the respondents, Mr Borenstein SC, informed me his clients, and principally Mr Goodman, did object. Mr Borenstein indicated his clients wished to be heard on whether such sketching should be permitted. Accordingly, I made an interim order prohibiting the undertaking of sketching in the courtroom during the proceeding until full argument could be heard before me on the following morning at 10.15am. I invited the member of the media to attend to participate in that argument either by herself or through a legal representative.
When the matter was called on the following morning, Mr Cashen appeared on behalf of the Herald and Weekly Times Pty Ltd. Mr Borenstein formally applied for an order prohibiting persons in the courtroom from undertaking sketches of Mr Goodman, who is the first respondent in this proceeding. Mr Cashen and Ms O’Brien made submissions opposing the making of any such orders.
I heard argument on the morning of 28 August 2013, adjourned for a short period of time and then gave my decision, with ex tempore reasons. I indicated I would publish those reasons once I had the opportunity to read the transcript and make any necessary, non-substantive, revisions. These are my revised reasons.
I am not persuaded there is sufficient justification for an order under s 23 of the Federal Court of Australia Act 1976 (Cth), or an order in reliance on the implied powers of the Court, prohibiting a member of the media or any other person from sitting in the Court and making hand sketches of Mr Goodman, the first respondent to these proceedings.
Mr Borenstein accepts that there is a freedom for any member of the public, including any member of the media, to sit in court and take notes and sketch images of persons in court.
That concession was properly made. I will take in here a passage from the decision of Sir John Donaldson MR in the Spycatcher case: Attorney-General v Observer Ltd [1990] 1 AC 109 at 183. Sir John said, amongst other things:
I yield to no one in my belief that the existence of a free press, in which term I include other media of mass communication, is an essential element in maintaining parliamentary democracy and the British way of life as we know it. But it is important to remember why the press occupies this crucial position. It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalists. It is because the media are the eyes and ears of the general public. They act on behalf of the general public.
I refer to that extract principally because of what it says about the media being both the eyes and the ears of the public in the transmission of information, which includes the reporting of court proceedings. At the level of general principle about open justice, I also rely on the remarks of Gibbs J, as he then was, in Russell v Russell (1976) 134 CLR 495 at 520. His Honour said this:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view”. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure”.
That being the starting point, Mr Borenstein’s application relied on an exercise of power by the Court under s 23 of the Federal Court of Australia Act 1976 (Cth), in conjunction with the implied powers referred to by the High Court in the case of DJL v Central Authority (2000) 201 CLR 226 at 241:
A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.
I accept that those powers are available in the present case to prohibit all persons in Court from making any sketch of Mr Goodman. During argument, the submissions did not descend to the particulars of any terms of order that might be made. The order was sought in relation to the sketching of Mr Goodman by a person engaged by the Herald and Weekly Times to do so. However, in my opinion the prohibition in the order would have had to extend to all persons in Court and not just a representative of the Herald and Weekly Times, so that it could not be easily circumvented, and thus the purpose of making the order frustrated. It would have had to be in terms of “No person present in Court is permitted to make a sketch or drawing of Mr Goodman while that person remains in Court”, or something to that effect.
It is fundamental, in my opinion, to any consideration of the exercise of these powers to bear in mind the terms of s 17(1) of the Federal Court of Australia Act1976 (Cth), which provides:
Except where, as authorized by this section or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.
Section 17(1) is a statutory recognition of the principles of open justice.
As far as other considerations or indications within the legislative scheme governing the conduct of proceedings in this Court are concerned, I was referred principally to two matters. The first is the presence and operation of r 6.11 of the Federal Court Rules 2011 (Cth). Mr Borenstein’s submission about that was not that it in terms applied, but that the policy considerations underlying it were relevant to the exercise of my powers. Although it refers to the recording of images, I do not consider on proper construction of r 6.11 that it extends in any way to the drawing of people by hand in court. The purpose and operation of the rule restricting recordings has, in my opinion, a broader source and a broader set of considerations applicable to it. They have more to do with any potential inconsistencies with the transcription of court proceedings, the subsequent use to which recordings might be put, or their tendency to distort fair reporting of court proceedings. Accordingly, I do not consider that any assistance can be gained from the presence of r 6.11.
The second consideration, to which all parties referred, was the effect of Div 2 of Pt VAA of the Federal Court of Australia Act, which deals with suppression and non-publication orders. There was a debate between the parties before me over the application of this division to the matters with which I was concerned.
Section 37AB, which is within Div 2 of Pt VAA, provides:
This Part does not limit or otherwise affect any powers that the Court has apart from this Part to regulate its proceedings or to deal with a contempt of the Court.
I accept Mr Borenstein’s submission about the effect of this provision. It would be erroneous to see Div 2 of Pt VAA as a limit on the powers under s 23 or as a limit on the Court’s implied powers. That being said, however, it does not mean that the provisions in Div 2, particularly the factors in s 37AG, are irrelevant to the exercise of powers under s 23 or the implied powers. That is because, as Ms O’Brien submitted, the practical and intended effect of the orders sought is the suppression of Mr Goodman’s image, at least in the present circumstances of which I was informed. It appears to be common ground between the parties that there is currently no image of Mr Goodman publicly available to the media in the context of these proceedings, and I will return to that issue.
Mr Borenstein’s submission was essentially that Mr Goodman’s reputation was called into question by the allegations in these proceedings. He also submitted that Mr Goodman has expressed grave concerns over the creation and dissemination of his likeness by a sketch artist, and that the nature of the allegations in this proceeding are prejudicial to him and had already had an impact on his reputation and public profile. He also submitted that Mr Goodman was seriously distressed and concerned about the dissemination of his image in the media, and that it affected his decisions whether or not to attend court.
There was no evidence adduced by any party or non-party before me on this application.
As those submissions were developed in oral argument before me, the concerns were, as I understood them, limited to Mr Goodman’s concerns about damage to his reputation, and the distress and embarrassment that was caused to him. There were no submissions made to me, nor evidence adduced before me, of, for example, any safety concerns or the like, and I contrast that with the circumstances prevailing in the case of DPP v Rintoull [2010] VSC 30.
Mr Borenstein also submitted that this was an unusual circumstance because of the limited nature of the restriction that was sought; it was a restriction only on Mr Goodman’s image, not on his name. Mr Borenstein also submitted it was such a limited restriction that it did not really interfere with the public’s access to information about what was going on in this Court. He submitted there was no comparison with the restrictions on general reporting of the proceedings. I accept those submissions to some extent. I accept that the application is in some ways a limited one. But it must in its terms be applied broadly to all members of the public present in court, to impede the freedom of all of them in court to draw or sketch if they wish to, and in that sense it may be wider than some suppression orders that are made.
I accept that Mr Goodman genuinely finds considerable embarrassment in the fact, content and conduct of these proceedings. I accept that they are distressing for him. I accept the allegations are capable of affecting his reputation. I accept also that all those statements are true of Ms Robinson, including because of the allegations made about her in the respondents’ defence and the matters which have already been put to her in cross-examination. In a proceeding with subject matter such as this, those consequences are, in my opinion, inevitable. The full and proper administration of justice can be a very distressing and unpleasant experience. I do not diminish that; I simply recognise it. But it is not, as Kirby P pointed out in the John Fairfax case (John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142–143), enough to justify restrictions on the freedom to observe and report what occurs in court:
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: see, eg, David Syme & Co Ltd v General Motors-Holden's Ltd (at 307); Raybos Australia Pty Ltd v Jones (at 58); R v Chief Registrar of Friendly Societies; Ex parte New Cross BuildingSociety [1984] QB 227 at 235; R v Bromfield, Malcolm CJ (at 22); Rockett v Smith, per Derrington J (at 7). A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.
His Honour referred in that quotation to powerful litigants, and that reference was picked up in the submissions before me. I do not suggest that Mr Goodman is a powerful litigant in the sense that Kirby P was using that phrase. However, it is clear he has so far been resourceful enough to avoid his image being recorded outside the precincts of the Court. In the circumstances of this case, without evidence of embarrassment and distress beyond that which I consider can be reasonably expected in a hard-fought sexual harassment case, I am not satisfied that the Court’s powers should be exercised so as to preserve the status quo Mr Goodman has, by his own resources and efforts, managed to achieve.
In my view, in the current circumstances, the full operation of the open justice principle should be given effect to. A drawing, less accurate and therefore perhaps more likely to damage or insult Mr Goodman, may be done outside the precincts of this Court. In my view, it is capable of promoting the administration of justice for there to be accurate recording of the images of parties to a proceeding, just as it is capable of promoting the administration of justice for there to be contemporaneous note taking by persons in Court.
If the freedom to take a contemporaneous sketch was to be abused in any way by the images that were produced, that may be a reason for me to reconsider the order. If the media attention by reason of sketching becomes oppressive in this Court, that may also be a reason for me to reconsider the order. In my opinion, the situation is very different from a circumstance where a sketch is sought to be made of a witness while that witness is giving evidence, and it is apparent to the Court that the making of the sketch has the capacity to affect the witness’ ability to give the best evidence that the witness can give. Those are not the circumstances facing me. And again, if once Mr Goodman is in the witness box giving evidence, an application is made to me about the temporary prohibition of sketching him while he is giving his evidence, I will seriously consider that application.
For those reasons, the current application is refused.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 28 August 2013
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