State of Victoria & Anor v Nine Network
[2007] VSC 514
•11 December 2007
DelRoyal
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5991 of 2007
| STATE OF VICTORIA AND ANOR | Plaintiffs |
| v | |
| NINE NETWORK | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 DECEMBER 2007 | |
DATE OF RULING: | 11 DECEMBER 2007 | |
CASE MAY BE CITED AS: | STATE OF VICTORIA v NINE NETWORK | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 514 | |
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RULING as to form of order – whether Judgment should be restricted – costs.
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APPEARANCES: | Counsel | Solicitors |
| For the First Plaintiff | J Ruskin QC with D Masel | Victorian Government Solicitors’ Office |
| For the Second Plaintiff | D Beach SC with D Siemensma | Victorian Government Solicitors’ Office |
| For the Defendant | P Collinson SC with D Klempfner | Holding Redlich Lawyers |
HIS HONOUR:
Following the handing down of my reasons in this matter four consequential issues have arisen:
(a)the precise extent of redaction of certain documents required by those reasons;
(b) the appropriate form of order;
(c)whether the publication of aspects of my reasons for judgment should be restricted;
(d)costs.
Redaction
The documents in issue are relatively complex and extensive. On 6 December 2007 counsel for the first plaintiff sought the redaction of the names of officers of Corrections Victoria, remaining in various parts of the redacted documents prepared by the defendant in response to my reasons. They also sought certain other redactions.
The names sought to be redacted are those of persons described both in the documents themselves (e.g. court book 542) and in evidence as members of senior management. It was not my intention to suppress from the reports, memoranda and record of interview in issue, the names of these members of senior management.
When the matter was first agitated before me on 6 December and before reserving the question with respect to the majority of the references in issue, I indicated that the references to Operations Manager Stillman in the first document in issue, should be redacted. I was in error in so doing and I would not redact his name from the remaining documents.
I withdraw my previous ruling both because it was in error and because it would be futile given the publication I would permit with respect to the other documents.
I further ruled on 6 December and confirm that it was the intent of my reasons that there should be no redaction of:
·“SMU” at 431
·“Industrial officer, CPSU” at 514
·The report passages the subject of specific submission at 539, 554, 555 and 556
·The passage complained of at 548.
Conversely, the fax cover sheet at 445 should be redacted. It was not intended that it should be treated otherwise than in accordance with the document attached to it.
The consequence of these rulings is that the redacted documents attached to the defendant’s draft minutes of order reflect my reasons save for this fax cover sheet.
The Appropriate Form of Order
The order will recite the undertakings offered by the defendant:
Subject to the express terms of this judgment allowing for the defendant’s disclosure, dissemination, publication or use of redacted parts of selected confidential documents (as defined in paragraph 8 of the affidavit of Paul Delphine sworn on 3 May 2007), the defendant by its counsel undertakes not to disclose, disseminate, publish or use the confidential documents (as defined in paragraph 8 of the affidavit of Paul Delphine sworn on 3 May 2007) or information contained therein or copies of the confidential documents or use any notes made of the confidential documents or copies thereof for any purpose other than reporting the proceeding or the events giving rise to the proceeding.
I will make declarations as to confidentiality in the terms sought by the first plaintiff. I have specifically held that the relevant documents are confidential and the question whether such confidentiality has been lost was live in the proceeding.
I will not grant a further stay of publication. Such stay has been sought on the basis of a policy with respect to the giving of notice by the first plaintiff to persons affected by breaches of privacy. I accept Mr Klempfner’s submission that the fundamental breach of privacy occurred in this case, when the documents were mislaid and supplied to third parties. Furthermore, Victoria has had adequate time since the delivery of my reasons to appraise affected individuals of the substance of my ruling if it so desired. The hearing of the matter has informed it in respect of the matters stipulated in [5] of the relevant policy. The public interest requires that the publication of the relevant documents in their redacted form be restrained no longer.
I will grant injunctions with respect to the publication or use of those documents I have held the public interest requires be kept confidential. Such injunctions will be in the terms submitted by the defendant save with respect to item 20. It was my indication that the question of publication of item 20, be decided in the first instance by the Coroner conducting the inquest into the death of Wesley Jennings and in accordance with s 58 of the Coroners Act 1985. Accordingly upon completion of the inquest publication of the redacted document will be permitted unless publication of such document or parts thereof is the subject of a restraining order made by the Coroner pursuant to s 58(1) of the Coroners Act 1985. Insofar as it is possible, there may in future be a need to consider the further consequences of the order with respect to the documents forming part of the Coroner’s brief, relating to the death of Wesley Jennings; the orders proposed are accompanied by liberty to apply in general terms to both parties.
I will order that by 4.00 p.m. on 18 December 2007 the defendant deliver up to a person to be agreed between the parties or failing agreement to be nominated by the Court, all copies of the documents and all notes of information derived from the documents, save and except for:
(a)the redacted versions of items 16, 17, 18 and 20, redacted in accordance with the Court’s order; and
(b)any notes of information derived from items 15, 16, 17, 18 and 20 made by the defendant’s legal advisers and representatives for the purposes of this proceeding and retained by such advisers and representatives.
I accept the submissions of counsel for the plaintiffs that there is an ongoing risk of the adventitious disclosure of the confidential documents if copies are retained by the defendant or its legal advisers. I also accept there is ample precedent for such an order for delivery up of documents.[1]
[1]Eg. British American Tobacco Australia Services Ltd v Blanch (No. 2) [2004] NSWSC 133.
As against this, I accept Mr Klempfner’s submission that it is unreasonable to require the defendant’s legal advisers to disaggregate notes made for the purposes of this proceeding and notes relating to matters contained in progressively redacted documents, in respect of which I have allowed publication, and notes in respect of documents and parts of documents which I have not.
I will also order that by 4.00 p.m. on 18 December 2007 the defendant deliver up to the second plaintiff all copies of document 21 and any notes derived from such document. This document is of particular sensitivity and the second plaintiff has been entirely successful with respect to it. It concerns subject matter separate from that which the other documents relate to.
I will order that the contents of the Court file remain confidential, pursuant to Rule 28.05 of the Rules of the Supreme Court.
Restriction of Reasons for Judgment
I will not require the reasons of this Court delivered on 29 November 2007 to be restricted. The specific matters in respect of which the first plaintiff makes application, do not require restriction in the public interest, for the substantive reasons I have given as to publication of the relevant information in those reasons. There is a fundamental difference between the detail of the original documents I have suppressed and the statements I have made in the reasons as to the character of their contents, and as to the nature of matters bearing on the public interest with respect to them.
Costs
The discretion I must exercise is a general discretion and must be exercised by reference to the facts, circumstances and justice of the particular case. I have not been referred to any case which I find to be directly analogous to the present one. Moreover, as Bray CJ said in Cretazzo v Lombardi:[2]
Time and again attempts have been made to fetter that general discretion by the imposition of judge-made rules. Time and again those fetters have been released by appellate courts. I think the guiding principle still stands as it left the House of Lords in the famous case of Campbell & Co v Pollak [1927] AC 732, that the general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation.
[2](1975) 13 SASR 4 at 11.
In my view the first plaintiff and the defendant should each bear their own costs as against each other.
Each has had substantial success with respect to the significant issue in the case. It is in my view simply not practically possible to weigh up the relevant degrees of this success satisfactorily. A crude reference to a number of documents or number of pages, and number of redactions, would not be appropriate and the relative significance of particular documents is not susceptible of any easy judgment.
It should also be kept in mind that the proceeding was ultimately concerned with discrete documents, discrete passages in documents, and on occasions particular references to individuals within those passages. It was not concerned with alternative claims arising out of a common transaction, or claims that could be characterised as core and subsidiary claims. The partial success of both the first plaintiff and the defendant was thus a true and complete success with respect to discrete issues.
Further, although neither the first plaintiff nor the defendant can be regarded as disinterested parties, in the sense that both have collateral interests in the outcome of the cases they have pursued, nevertheless each of them has succeeded in maintaining significant arguments as to the public interest. This is a further reason for not penalising either by way of an order for costs with respect to the matters in issue between them.
I do not accept that the manner of conduct of the proceeding by either party, alters the above fundamentals governing the justice of the competing claims for costs.
It is contended by Victoria that it was under a fundamental obligation to defend the confidentiality of its documents, having regard particularly to its obligations with respect to questions of privacy. As against this, it is contended by the defendant that it was Victoria which caused the documents to be disclosed, the defendant has at all times acted reasonably, and that Victoria did not make reasonable concessions during the conduct of the litigation. None of these propositions in my view could be said to outweigh the considerations I have identified as flowing from the outcome to the proceeding.
Insofar as the second plaintiff is concerned, however, I have reached the view that its position is different. It was totally successful. In my view its interest in the confidentiality of item 21 was manifestly greater than that of Victoria, and it was entitled to appear to defend that confidentiality. The public interest in that document was in large part the interest of the public of Western Australia. Further, the second plaintiff’s position with respect to issues of the equities arising on the pleadings, although not ultimately bearing on the outcome of the case, differed from that of Victoria. This is not a case in which the defendant will be required to pay the costs of two plaintiffs, but it should in my view pay the cost of the plaintiff against which it failed.
The defendant takes specific issue with respect to the costs relating to a subpoena directed by the second plaintiff to its solicitors. The subpoena bore on documents relating to two potential witnesses from whom the defendant obtained affidavits which were filed in the proceeding. The two individuals were those who obtained the mislaid documents and provided the same to the defendant.
Their evidence was potentially relevant to the proposition raised by the defence, but not pursued at trial, that the documents in issue in this proceeding, were not imparted to the defendant in circumstances giving rise to an obligation of confidence.
In the event the two individuals were not called as witnesses and the subpoena was not called on by the second plaintiff. In my view, however, the issue of the subpoena was not unreasonable, in the circumstances of the case confronting the second plaintiff. The costs of and associated with the subpoena should not be dealt with other than in accordance with the balance of costs as between these two parties.
It may be that if called upon, the subpoena may have been the subject of successful challenge at least in substantial part on the grounds of legal privilege, but such a course may in turn have led to its own forensic, evidentiary and cost consequences.
I mention for the sake of completeness that unsuccessful application was made before Master Evans to set the subpoena aside prior to trial. The Master recorded at the time under other matters that the costs were reserved because the Master was concerned that the subpoena may have sought documents in relation to an issue which was falsely joined.
The Master’s observations do not change my views as to the merits of the matter. The subpoena was issued for the purpose of facilitating a challenge to evidence, which the defendant foreshadowed but in the event did not call. The second plaintiff should have its costs of and associated with it.
For the above reasons I will order the defendant to pay the second plaintiff’s costs of the proceeding, but make no further or other orders as to costs.
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