Russo v Russo - [2010] VSC 98

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6900 of 2009

IN THE MATTER OF the Will and Estate of Norman Russo late of 18 Bangalay Avenue, Frankston 3199 in the State of Victoria

and

IN THE MATTER OF an Application under s 34 of the Administration and Probate Act 1958

BETWEEN:

ROSEMARY JOSEPHINE RUSSO & Ors

Plaintiffs

JOHN JOSEPH RUSSO

NANCY JEAN RUSSO

First Defendant

Second Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2010
DATE OF JUDGMENT:	30 March 2010
CASE MAY BE CITED AS:	Russo v Russo
MEDIUM NEUTRAL CITATION:	[2010] VSC 98

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PRACTICE AND PROCEDURE – Appeal from orders of an Associate Judge – Confidentiality of filed documents – Application of “open justice” principle – r 28.05 of the Supreme Court (General Civil Procedure) Rules 2005 – Scott v Scott [1913] AC 417 – Smith v Harris [1996] 2 VR 335.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr J. Glover	Eggleston Whelan
For the First Defendant	Mr P. Clarke	Harwood Andrews Lawyers
For the Second Defendant	Mr S. McNab	Aitken Partners

HIS HONOUR:

Background to proceedings

The background to and the nature of this matter is set out in detail in the judgment of Hargrave J delivered in this proceeding in the context of determining whether the daughters of the deceased, Nancy Elizabeth Russo, Rosemary Josephine Russo and Patricia Jean Rosenbrock-Coles, had sufficient interest to apply for the removal of their brother as executor of the estate of their deceased father under s 34(1)(c) of the Administration and Probate Act 1958. Hargrave J found that the daughters did have a sufficient interest for the reasons set out in his Honour’s judgment.[1]
[1][2009] VSC 491 (30 October 2009).

Appeals

This matter now comes before the Court today as a result of two Notices of Appeal against orders made by Mahony AsJ, made on 21 January 2010.

The first appeal is an appeal (by Notice dated 29 January 2010) by the plaintiffs on two bases:

“1. On the appellants’ application, Associate-Justice Mahony should have set aside his order made on 1 July 2009 that the Court file relating to this proceeding be marked ‘confidential’ by the Prothonotary and not be available for inspection by or on behalf of any person not a party because that order was not made with the plaintiffs’ real consent.
2. Alternatively, on the appellants’ application, pursuant to rule 46.08(b) of the Rules of Court Associate-Justice Mahony should have set aside his order made on 1 July 2009 because the order was not made on notice to the appellants and the appellants have suffered prejudice by reason that their counsel was not appropriately instructed on 1 July 2009.”

The order made by Mahony AsJ on 1 July 2009 to which the present appeals ultimately relate was an order in the following terms:

“[1] By consent, the Court file relating to this proceeding be marked and kept…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russo v Russo

Details

AGLC: Russo v Russo [2010] VSC 98
Case: [2010] VSC 98
Decision Date: 30 March 2010

CaseChat Overview and Summary

In Russo v Russo, the respondent, Mrs Russo, appealed against orders made by an Associate Judge of the Supreme Court of Queensland. The appeal was in relation to orders that the respondent’s filed documents were to be treated as confidential and could not be inspected by the appellant, Mr Russo, or his legal representatives. The appeal raised questions about the application of the principle of open justice and the appropriate circumstances in which confidentiality may be applied to documents filed with the court.

The court had to determine whether the orders made by the Associate Judge were in accordance with the principle of open justice and whether the application of confidentiality was appropriate in this case. The court examined the relevant authorities, including Scott v Scott and Smith v Harris, to ascertain the appropriate circumstances in which confidentiality may be applied to documents filed with the court. The court also considered the operation of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2005.

The court held that the principle of open justice was engaged and that the orders made by the Associate Judge were not in accordance with that principle. The court found that the orders made by the Associate Judge were not in accordance with the relevant authorities and that the application of confidentiality was not appropriate in this case. The court further held that the orders made by the Associate Judge were outside of the power of an Associate Judge to make such orders.

The court set aside the orders made by the Associate Judge and ordered that the respondent’s filed documents were to be treated as public documents and could be inspected by the appellant or his legal representatives. The court also ordered that the respondent pay the appellant’s costs of the appeal.

Orders