Russo v Russo
[2010] VSC 98
•30 March 2010
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| 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 |
| v | |
| 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 ‘Confidential’ by the Prothonotary and, subject to further order, not be available for inspection by or on behalf of any person not a party.”
On 21 January 2010, Mahony AsJ dismissed the plaintiffs’ summons to vary the 1 July 2009 order for the reasons set out in the “Other Matters” section of the 21 January 2010 order in its authenticated form, as follows:
“OTHER MATTERS: 1. Counsel for the Plaintiffs submitted that they are empowered by Rule 46.08 to apply for in effect to set aside the order made by consent on 1 July 2009. Since all parties were present on 1 July 2009, (including the Second Defendant an order for whose joinder had been made that day), Rule 46.08 has no application: cf. Rule 46.02. The jurisdiction of the Court to make the order was afforded by the inherent jurisdiction of the Court to control access to documents filed in the Court; and the consequences of the exercise of that jurisdiction appear by Rule 28.05(2)(a). At the time of the order, the only affidavits on the merits had been filed by the Plaintiffs. The First Defendant has since filed a very lengthy affidavit on the merits. The Court considers there is no reason to vary or set aside the Order made on 1 July 2009 while the Court file contains the affidavits on the merits that have been filed.
2.The Court does not consider that the Order on its proper construction, has the ambit apprehended by the Plaintiffs as described in the affidavit of Nancy Elizabeth Russo made on 17 August 2009. Further, any order inhibiting the use by parties of copies of documents on the Court file would be an injunction for which the Court constituted by an Associate Judge has no jurisdiction.”
The second appeal (by notice dated 2 February 2010) is by the first defendant against the dismissal by Mahony AsJ, by order made on 21 January 2010, of the first defendant’s summons dated 18 January 2010. The principal relief sought in that summons is as follows:
“Pursuant to Rules 27.07 and/or Rule 1.14 of the Supreme Court (General Civil Procedure) Rules 2005, alternatively pursuant to its inherent jurisdiction:
1.1the affidavits of Rosemary Josephine Russo sworn on 28 May 2009, Patricia Rosenbrock-Coles sworn on 9 June 2009 and Nancy Elizabeth Russo sworn on 3 June 2009 be taken off the Court file; alternatively
1.2such parts of the affidavits of Rosemary Josephine Russo sworn on 28 May 2009, Patricia Rosenbrock-Coles sworn on 9 June 2009 and Nancy Elizabeth Russo sworn on 3 June 2009 as are identified in Schedule 2 hereto be struck out,
by reason of inadmissibility and/or scandalous matters therein;”
The position of the defendants with respect to the second appeal is that they would not seek to pursue that appeal in the event that the first appeal, by the plaintiffs, was not successful and, in effect, the orders of Mahony AsJ made on 1 July 2010 are maintained. It was stressed, however, that this was a position in the context of the present appeals only. The defendants reserved their position to seek the striking out of affidavit material on the basis of inadmissibility and/or scandalous matters as set out in its 18 January 2010 summons at a later stage in the proceedings; prior to trial, or by the trial judge as part of or as a preliminary to the trial.
For the reasons which follow, I am of the opinion that the plaintiff’s appeal, the first appeal, should be dismissed. As indicated in the course of the hearing of the first appeal, the matters raised in the first defendant’s 18 January 2010 summons require consideration of the substance of the matters in this proceeding as a whole and are likely to be handled most efficiently by the trial judge seized of these matters.
Confidentiality issues
There is no doubt that, as submitted by the plaintiff, and on the basis of the various authorities cited by the plaintiff, the overriding principle applicable to the conduct of proceedings in this Court is that other than in rare, exceptional, cases, proceedings should be conducted in public. Justice being seen to be done openly and transparently is an essential aspect of the maintenance of the rule of law. Thus, Brooking J, in Re a Former ‘Officer of the Australian Security Intelligence Organisation’, said that “the courts shall conduct their proceedings in public”.[2] His Honour noted that there may be exceptional cases where the whole or part of a hearing may take place in private, such as a “run on a bank”, prejudicing a fair trial or national security considerations.[3]
[2][1987] VR 875 at 876.
[3]See [1987] VR 875 at 877.
The plaintiff relied upon a number of other authorities in which the “principle of open justice” was applied in a variety of circumstances which, in the present context, reinforced the statement of general principle by Brooking J in the case to which reference has been made.[4] Particular reference was made to the speech of Lord Chancellor Haldane in Scott v Scott where His Lordship said:[5]
“While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.”
[4]These further authorities included Scott v Scott [1913] AC 417; XYZ1 v Victoria [2001] VSC 233; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 and Anon 2 v XYZ [2008] VSC 466.
[5][1913] AC 417 at 437-8.
At this point it is noted that no application has been made by either of the defendants under s 18 of the Supreme Court Act 1986 for these proceedings to be closed to the public to any extent. The first and second defendants assured the Court during the course of the hearing of the first appeal that they did not intend to make any such application.
I accept the defendants’ submissions that the principle of “open justice” is not applicable in relation to the material the subject of the orders of Mahony AsJ, which are the subject of the first appeal. It was clarified during the course of the appeal hearing that the only documents in issue which are the subject of the confidentiality order are the plaintiffs’ affidavits. It follows that the contents of these affidavits are well known to the plaintiffs. The plaintiffs relied upon the judgment of Hargrave J to which reference has been made[6] in support of a submission that the affidavits had already been “deployed” and were therefore part of the Court record and not to be regarded as confidential. The extent to which Hargrave J referred to those affidavits is as set out in paragraph four of his Honour’s judgment in the context of setting out the background to the parties and the proceedings. His Honour said:[7]
“The daughters contend that their father was a very wealthy man, with direct or indirect ownership of substantial real estate or the proceeds of sale of real estate. In affidavits sworn by the daughters, they make serious allegations against their brother, including that he exercised undue influence over the father, with the result that the father’s assets were transferred to him.”
With reference to these affidavits, the defendants submitted that the principle of “open justice” does not apply until they are actually deployed or used in a Court hearing in the sense of being relied upon as evidence and, in that process, being tested by cross-examination to the extent that the defendants might wish to do so. I accept that this did not occur in the proceedings before Hargrave J and that his Honour’s reference to these affidavits is merely by way of descriptive background and that this did not represent their “deployment” or “use” in a Court hearing in the relevant sense.
[6]See above, paragraph 1.
[7][2009] VSC 491, paragraph 4.
In this context, the defendants made reference to various authorities with respect to the use or treatment of documents filed in a Court which had not been subject to the rigorous testing process of a trial. The thread running through these cases is that although the “open justice” principle requires, with the rare exceptions to which reference has been made in general terms, openness and transparency, the principle also requires the fair treatment of parties in a public forum where, of necessity, qualified privilege attaches to allegations, oral and written, made by parties and witnesses upon whom they rely. Untested allegations, if made public, may in certain circumstances be highly prejudicial to other parties and witnesses so that it is necessary for the Court to exercise some control over the dissemination of such untested and potentially prejudicial material. This is not to say that it follows that the material will not, during the trial process, be disclosed in open Court and rigorously tested. However, in those circumstances the public has access to the different versions of events as put by other witnesses or parties and all the evidence, allegations and responses are put in context. I turn now to some judicial statements in this vein which appear in some of the authorities relied upon by the defendants.
In Smith v Harris,[8] Byrne J considered s 4 of the Wrongs Act and common law qualified privilege and drew a distinction between court hearings and documents filed in court (but which had not been the subject of a trial), and said:
[8][1996] 2 VR 335.
‘… It means that that person’s right to a good reputation is subordinated to some other right. This other right is not the right to litigate, for it has been beyond argument for centuries that defamatory statements made in the furtherance of litigation are absolutely protected … The dominant right is that which says that the court’s proceedings must be open to public, so that the public has confidence in their integrity. A document prepared for, filed and even served is not in that sense part of a court’s proceedings, at least until it is deployed as part of the judicial process. A like distinction between documents filed and served and documents deployed in court is observed with respect to discovered documents … This distinction may be applicable, too, to affidavits which are filed in court and which may be never be read or tendered. It may be that the parties have compromised the proceeding before their use in court, perhaps in order that their private dealings contained in the pleadings or other documents be not made public. What good purpose would then be served for them or for the public if some reporter were permitted to broadcast these matters for the gratification of the curious public? Public interest is not to be equated with public curiosity’.[9]
[emphasis added]
and
‘… [T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.’[10]
[9]Ibid, 341.
[10]Ibid, 350.
The decision of Byrne J in Smith v Harris[11] was cited with approval by Kaye J in Anon 2 v XYZ.[12] This case concerned an order prohibiting publication of any report identifying the defendant and an application by the Herald and Weekly Times to have that order set aside. Kaye J said:[13]
“Thus, there is a strong body of authority for concluding that the principle of open justice does not apply with the same force and vigour, where a proceeding has not been the subject of a genuine hearing in court, as it does to court hearings involving the exercise of judicial functions and determination. That authority is based on the justification and basis of the open justice precept, namely, the fundamental principle that the judicial process be open to public scrutiny and comment. That justification has diminished relevance to process filed in court, in respect of which the judicial function has not yet been engaged.”
[11][1996] 2 VR 335.
[12][2008] VSC 466.
[13][2008] VSC 466 at paragraph 28.
The decision of Byrne J in Smith v Harris[14] was also followed by Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court[15] in which the Chief Justice observed:
“The principle of open justice is not engaged at the time of the filing of the proceedings. It is only when relevant material is used in court that it becomes relevant”.
[14][1996] 2 VR 335.
[15](2005) 62 NSWLR 512; see also R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; ex parte Davies Brothers Ltd (1998) 8 Tas R 283, per Slicer J of the Supreme Court of Tasmania which is cited in both Anon 2 v XYZ and John FairfaxPublications Pty Ltd v Ryde Local Court.
Consequently, it follows, in my opinion, that Mahony AsJ had jurisdiction under Rule 28.05(2)(a) to make the orders his Honour made with respect to confidentiality, in addition to any powers flowing from the Court’s inherent jurisdiction with respect to the control and management of its files and records.
Finally, the plaintiff submitted that it required access to the documents the subject of the confidentiality order of Mahony AsJ for the purpose of preparing proper responses as part of its case. This position was rejected by Mahony AsJ on 21 January 2010. The first defendant also argued against this position, as set out in paragraphs 9.1 to 9.9 of its submissions dated 24 March 2010.
It should also be noted that the plaintiffs’ position in this respect should be viewed against the fact that the 1 July 2009 order by Mahony AsJ was made by consent of all parties who were all represented by counsel. It is now submitted by the plaintiffs that the consent order was, in effect, sprung on the plaintiffs without notice at the 1 July 2009 hearing (see, in this respect, the affidavit of Rosemary Josephine Russo and Nancy Elizabeth Russo dated 29 January 2010). The plaintiffs’ counsel made the same and some additional submissions in this vein at the hearing of the appeal. I am, however, unable to accept the assertions contained in the 29 January affidavit, or the additional submissions. Experienced counsel were involved and it was always open to counsel to refuse to consent or to seek time to obtain further instructions. In any event, as I indicated during the course of the hearing of the first appeal, I heard the matter in terms of the substance of the matters raised by the plaintiff and did not treat the appeal as an appeal from a consent order of an Associate Judge, which required the plaintiff to seek leave to appeal either from the Associate Judge or from a Judge of the Court pursuant to Rule 77.06(2). As I indicated, I heard the plaintiffs as to the substance of their appeal in the absence of any submission by the defendants that leave was required under Rule 77.06(2). Further, the first appeal was from an order by Mahony AsJ made on 21 January 2010 which, though, in effect, confirmed the 1 July 2009 consent order, was not, itself, an order by consent.
The plaintiffs submitted that the confidentiality order appealed from will impede the preparation of their case. In support of this position, the plaintiffs relied upon the evidence provided by an affidavit of Nancy Rosso dated 17 August 2009 and the joint affidavit of Rosemary and Nancy Russo dated 29 January 2010.
In the course of discussions arising out of my questions during the course of the hearing of the first appeal, it became clear that the plaintiffs are fully aware of the issues the subject of the present proceedings in relation to which they may see the need to obtain further lay or expert evidence in support of their case. Indeed, this is not surprising, as the present proceedings were commenced by originating motion and the issues the subject of, hence the ambit of, the proceedings are, in effect, defined by the content of their own affidavit evidence. The plaintiffs were unable to explain why it was not possible for them to prepare their case and to gather further evidence as a result of their own statements or questions with respect to perceived relevant issues addressed to other individuals whose support as lay or expert witnesses might be sought without the aid of production or access to their affidavits filed in Court.
It was put on behalf of the plaintiffs that they were entitled to have access to their affidavits as filed in Court for the purpose of putting that file material to potential witnesses. Their position was that, in spite of other alternatives being open to them with respect to the gathering of evidence and the preparation of their case, this is the course they had chosen to adopt and they were not obliged to utilise any other means of preparing their case. In my view, it follows, on this basis, that any prejudice the plaintiffs might suffer in the preparation of their case would be the result of their own decision to insist upon production of the confidential material, their own affidavits filed in Court, to other potential witnesses for the purpose of marshalling further evidence.
The position was made even more stark following statements by counsel on behalf of the defendants that the defendants would have no objection to the plaintiffs producing their own copies (rather than Court filed copies) of their affidavit material to other potential witnesses for the purpose of preparing their case, though they said that there may be consequences for the plaintiffs in so doing. The plaintiffs’ position remained that they were entitled to put the confidential documents to potential witnesses, that is their affidavits as filed.
This exchange exposed the nub of the plaintiffs’ position, which is that it seeks the qualified privilege of a court process to allow it to produce their own affidavit material to a significant number of individuals and others, whether part of the Russo family or otherwise, for the purpose of gathering evidence and, as it was said, opinions. Of course, opinion evidence is not generally admissible, other than expert opinion evidence, and some point was made of this in the defendants’ submissions. Nevertheless, it is not necessary to pursue that aspect of the matter further now.
In my opinion, the clear motivation of the plaintiffs in this appeal is to seek to be able to take advantage of the qualified privilege attaching to their own affidavit material as a result of the affidavits having been filed in these proceedings and in the face of an application by the defendants to strike out parts of those affidavits as being inadmissible and/or scandalous. This is precisely the type of situation which the Court ought properly to prevent, applying the reasoning and considerations referred to by Byrne J in Smith v Harris[16] and the other decisions applying the same approach.[17]
[16][1996] 2 VR 335.
[17]See above, paragraphs 15 and 16.
Further, in my opinion, it follows that none of the other matters relied upon by the plaintiffs in support of their submission that the confidentiality order should not be maintained can be made out. These matters were raised in Nancy Elizabeth Russo’s affidavit dated 17 August 2009 and in submissions. The plaintiffs submit that if the filed documents were not confidential they would be better able to:
a) seek funding for the litigation from other family members;
b) make further enquiries regarding their father’s death;
c) assist ASIC with their inquiries regarding the first defendant;
d) assist other government authorities;
e) comprehensively brief their legal advisers if they pursue other matters involving the first defendant; or
f) comprehensively brief forensic accountants to trace alleged disbursement of funds
Even if the nub of the plaintiffs’ submissions had not been exposed, I accept the submissions by the defendants[18] that none of these other bases of prejudice advanced by the plaintiffs can be sustained by them. It is not necessary to repeat the defendants’ submissions, which helpfully respond, point by point, to the claimed heads of prejudice with respect to the preparation of the plaintiffs’ case. It is sufficient that I indicate that I accept the submissions as indicating that there is no substance in the plaintiffs’ submissions in this respect as the information they require to address all the claimed heads of prejudice is already readily available to them. Consequently, I reject the plaintiffs’ submissions that the confidentiality order will impede the preparation of its case or otherwise cause it prejudice in this or any other context.
[18]See First Defendant’s Outline dated 24 March 2010 (which was adopted by the Second Defendant) at paragraphs 9.1 to 9.9.
Conclusion
For these reasons I will dismiss the plaintiffs’ appeal, the first appeal. Consequently, it is not, as previously indicated, necessary to deal with the second appeal, though it is noted that the defendants do not resile from the substantive matters of concern, which are the basis of that appeal. I will hear the parties in relation to the form of orders that I should make, including in relation to the question and bases of costs.