Skerritt v The Legal Practice Board of Western Australia
[2004] WASCA 28 (S)
•3 MARCH 2004
SKERRITT -v- THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2004] WASCA 28 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 28 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:67/2003 | 14 OCTOBER 2003 | |
| Coram: | MALCOLM CJ STEYTLER J WHEELER J | 3/03/04 | |
| 5/04/04 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Suppression order discharged No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | ANDREW PAUL SKERRITT THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA |
Catchwords: | Suppression order Depression Public interest in publicity of court proceedings Turns on own facts Costs Decisions of quasi judicial tribunals Whether provisions of Suitors Fund Act 1964 apply Amicus curiae Turns on own facts |
Legislation: | Nil |
Case References: | Basapa v Burton (1991) ASC 56-149 Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd & Anor [2002] WASCA 231 (S) Re McWilliam & Ors; Ex parte Juras, unreported; FCt SCt of WA; Library 960637; 7 November 1997 Russell v Russell (1976) 134 CLR 495 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SKERRITT -v- THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2004] WASCA 28 (S) CORAM : MALCOLM CJ
- STEYTLER J
WHEELER J
DECISION : 5 APRIL 2004 FILE NO/S : FUL 67 of 2003 BETWEEN : ANDREW PAUL SKERRITT
- Appellant
AND
THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Suppression order - Depression - Public interest in publicity of court proceedings - Turns on own facts
Costs - Decisions of quasi judicial tribunals - Whether provisions of Suitors Fund Act 1964 apply - Amicus curiae - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Suppression order discharged
No order as to costs
Category: B
Representation:
Counsel:
Appellant : Mr M J McCusker QC, Mr S G Scott & Dr J J Edelman
Respondent : No appearance
Amicus Curiae : Mr J A Chaney SC & Ms J E Eckert
Solicitors:
Appellant : Stables Scott
Respondent : No appearance
Amicus Curiae : State Solicitor's Office
Case(s) referred to in judgment(s):
Basapa v Burton (1991) ASC 56-149
Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd & Anor [2002] WASCA 231 (S)
Re McWilliam & Ors; Ex parte Juras, unreported; FCt SCt of WA; Library 960637; 7 November 1997
Russell v Russell (1976) 134 CLR 495
Case(s) also cited:
Nil
(Page 3)
1 JUDGMENT OF THE COURT: When delivering judgment allowing this appeal on 3 March 2004, the Court granted liberty to the appellant and to the respondent to make submissions with respect to the continuation of a suppression order, and as to costs. Having considered those written submissions, the Court is of the view that the suppression order should be discharged and that no order as to costs should be made. Our reasons are as follows.
The suppression order
2 During the course of argument, the Court ordered that publication of material relating to the depressive illness suffered by the appellant and his suicide attempt while in the Australian Army should be suppressed. The reason for the application being made was the sensitivity of that information. As we have noted in our reasons in allowing this appeal, there is no rational basis upon which any views adverse to the appellant could be formed by reason of his suffering from an illness which is common in the Australian community, or by reason of his having, many years ago, suffered from that illness to an extent which caused him to make a suicide attempt. However, it is undeniable that there is a stigma which does attach, quite wrongly, to those who have the misfortune to have been in the appellant's position. Given the sensitivity of the information, and given that the application was to suppress the information only until delivery of judgment, the Court granted that application.
3 Different considerations apply in relation to that information, now that judgment has been delivered in the appeal. It can be seen from a reading of the Court's reasons that the view which the Board erroneously took in relation to that information is critical to this Court's finding that the Board erred in considering that the appellant was not fit to be admitted. The question of what matters may be taken into account in considering a person's fitness to be admitted as a legal practitioner is an important question in the public interest in the administration of the law generally. The application of those principles relevant to fitness for admission, in relation to a condition relatively common in the community, is a matter of public importance.
4 More generally, it has often been observed that it is of the essence of State Courts that the place where the Court sits is open to the public, and that publicity is the authentic hallmark of the judicial process (see Russell v Russell (1976) 134 CLR 495 per Barwick CJ 505, Gibbs J 520, Stephen J 532). The combination of the public interest in publicity of all legal
(Page 4)
- proceedings, the importance of the issues involved in the decision in the present case, and the fact that the material previously the subject of the suppression order is critical to the Court's decision, compels the conclusion that the suppression should not be continued. It is regrettable that the appellant's privacy will be affected. Unfortunately, it is a necessary concomitant of the public interest in publicity of court proceedings, that sensitive information about individuals may be published during the course of those proceedings.
Costs
5 So far as costs are concerned, the issue about which the Court principally sought submissions was whether the provisions of the Suitors Fund Act 1964 enabled any certificate to be granted in an appeal of this nature. It is plain from the submissions we have received that it does not.
6 The general principle in cases involving a quasi judicial Tribunal with public functions, which does not participate in an application to review its decision, is that the Court will generally exercise its discretion not to award costs against such a body unless it has been found to have acted improperly (Re McWilliam & Ors; Ex parte Juras, unreported; FCt SCt of WA; Library 960637; 7 November 1997, Basapa v Burton (1991) ASC 56-149, Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd & Anor [2002] WASCA 231 (S) at [18]). The only consideration which the appellant advances against the principles to which we have referred is that the "… interests of the respondent were advanced by senior counsel acting as amicus curiae". That submission is based upon the incorrect proposition that counsel for the Hon Attorney-General was advancing the "interests" of the respondent. However, the respondent, as a body created by statute with certain functions in the public interest, had no "interests" to advance, as it quite properly recognised in abiding the decision of the Court. The interest of the Hon Attorney-General is only to provide a proper contradictor where one would otherwise be unavailable. The appearance of counsel for the Attorney-General as amicus curiae does not justify the award of costs against the respondent.
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