Rowley & Ors v Dell’Osa & Anor

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DISTRICT COURT OF QUEENSLAND

CITATION:

Rowley & Ors v Dell’Osa & Anor [2024] QDC 30

PARTIES:

MURRAY LESLIE ROWLEY

(first plaintiff/respondent)

and

PAMELA MARY ROWLEY
(second plaintiff/respondent)

and

PAM GLEN PTY LTD
ACN 009 900 387
(third plaintiff/respondent)

v

ANGELA RITA DELL’OSA
(first defendant/applicant)

and

PRS QLD PTY LTD
ACN 102 416 286
(second defendant)

FILE NO:

2514 of 2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

28 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2024

JUDGE:

Byrne KC DCJ

ORDER:

1.   Application refused.

2.   No order as to costs.

CATCHWORDS:

APPLICATION - SUPPRESSION ORDER –ANONYMISATION ORDER – where a freezing order was made in the applicant’s civil proceedings and reasons were published - where the civil proceedings were stayed pending the determination of associated criminal proceedings – where the applicant was subsequently not convicted of any criminal offence – where the applicant contends that family and friends believe she is a criminal based on the published reasons - where the applicant seeks orders suppressing, or alternatively anonymising the published reasons – where the business of the court is to be conducted in open court - whether it is in the public interest and in the interests of justice to suppress, or alternatively anonymise the published reasons

LEGISLATION:

District Court of Queensland Act1967 (Qld) s 126

CASES:

Rowley & Orsv Dell’osa & Anor [2016] QDC 319.

Attorney-Generalfor the State of Queensland v WMS (No. 2) [2021] QSC 236.
Dovedeen Pty Ltd v GK [2013] QCA 116.
Grassby v The Queen (1989) 168 CLR 1.
J v L. & A. Services Pty Ltd (No. 2) [1995] 2 Qd R 10.
MBR v Parker [2012] QCA 271.
Rowley & Orsv Dell’osa & Anor [2016] QDC 319.
R v O’Dempsey (No. 3) [2017] QSC 338.

Scott v Scott [1913] AC 417.

COUNSEL:

Mr S. Formby for the applicant.

No appearance for any respondent.

SOLICITORS:

Robinson Locke Litigation Lawyers for the applicant.

No appearance for any respondent.

Introduction

  1. On 15 November 2016 the now Chief Judge, Devereaux SC DCJ, granted a freezing order over certain property of the first defendant/applicant. As the judgment was reserved, written reasons were prepared and published.[1]  The freezing order was made in civil proceedings where it was asserted that monies were owed.  Those broader proceedings were also ordered by his Honour to be stayed pending the determination of “associated criminal proceedings”.  The reasons remain available on websites maintained by the Supreme Court Library of Queensland, and .

    [1]Rowley & Orsv Dell’osa & Anor [2016] QDC 319 (“the reasons”).

  2. Subsequently, the civil proceedings were settled, and the applicant was not convicted of any criminal offence; one charge was the subject of a nolle prosequi and the other charge was the subject of a jury verdict of acquittal.

  3. The applicant now seeks orders supressing the published reasons, or alternatively an order anonymising them so that the parties are not discernible.  She…

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Details
Case
[2024] QDC 30
Decision Date

CaseChat Overview and Summary

Rowley & Ors v Dell’Osa & Anor is a case where the applicants sought suppression or anonymisation orders for reasons previously published in relation to a freezing order. The applicants argued that the publication led to reputational damage despite not being convicted of any criminal offence in the associated proceedings. The legal issues before the court were whether it was in the public interest and in the interests of justice to suppress or anonymise the published reasons. The court held that the principle of open justice is fundamental and that suppression or anonymisation orders are not to be made lightly. The court found that the applicants’ position did not meet the threshold for such orders as it related to collateral disadvantage rather than a clear and compelling interest of justice.

The reasoning of the court emphasised the importance of open justice and the strong adherence to conducting court business in open court. The court noted that suppression or anonymisation orders are only appropriate in exceptional circumstances, such as where national security or the safety of a witness is at stake. In this case, the applicants' concerns were about reputational damage and distress, which the court deemed insufficient to warrant such orders. The court further highlighted that the reasons published were not particularly significant or novel, and their relevance had diminished over time. The applicants’ arguments did not align with the recognised categories that typically justify suppression or anonymisation orders.

The outcome of the case was that the application was refused, and no order was made as to costs. The court concluded that the public interest and the interests of justice did not favour suppression or anonymisation of the published reasons.

Orders

Orders of the court

1. Application refused.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant accepts that the reasons were regularly, and properly, made at the time but says that they were made over seven years ago, that they do not state anything by way of noteworthy legal principle, and that the law applied can in any event be traced to other published sources. In those circumstances it is submitted that the public interest and the interests of justice include:(a)that a person should not have their reputation unduly injured by court proceedings; and(b)that a person is entitled to the presumption of innocence.Consideration The requirement that the Court conduct its business in open court is strongly adhered to, in the absence of legislative intervention. There is no such legislative intervention here. All observations hereinafter are premised on there being no legislative intervention requiring, or even favouring, suppression or anonymisation. The necessity for proceedings to be conducted in an open, transparent manner is an intrinsic attribute of a “court”. Hence it has been held that anonymisation of a party’s name will not be permitted unless “the interests of justice so clearly favour anonymisation as to outweigh the public interest in open justice”.[2][2]MBR v Parker [2012] QCA 271, [5]. As observed by Applegarth J in R v O’Dempsey (No. 3),[3] the anonymisation of a witness’ identifying particulars[4] is a minimal incursion on the principle of open justice. Two matters relevantly flow from that observation, with which I respectfully agree. First, a greater need must be demonstrated to justify an order completely supressing the judgment, rather than anonymising it. Second, that lesser threshold for anonymisation does not mean that such an order will be easily obtained. The interests of justice must “so clearly favour anonymisation”,[5] not merely be preferable or convenient. [3][2017] QSC 338, [10].[4]Referred to by his Honour as a pseudonym order.[5]MBR v Parker, ibid. There are recognised categories of circumstances where orders of this nature might more readily be made than others. Two common examples are where interests of national security are involved and where publication of the identity and details of a police informant will be counterproductive to the interests of justice, including because of a recognised serious threat to the life or wellbeing of the witness. The present application does not fall within a recognised category in which orders of this nature might more readily be recognised as necessary. That is not to say the present application cannot succeed, but it is a relevant feature. More telling is the fact that it has often been observed that orders of this nature cannot be made simply to save a witness or a party from “collateral disadvantage” attributable to publication, such as embarrassment or distress.[6] It seems to me that describes the applicant’s position.[6]See for example Scott v Scott [1913] AC 417, 438-439; J v L. & A. Services Pty Ltd (No. 2) [1995] 2 Qd R 10, 45.