Toppi v Lavin (No.2) - [2016] FCCA 1109

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOPPI & ANOR v LAVIN (No.2)

[2016] FCCA 1109

Catchwords:
PRACTICE AND PROCEDURE – Application to extend permanently interim non-publication order – whether applicant would not have commenced the proceedings in relation to which the interim non-publication order was made unless a non-publication order would have been made on a permanent basis – whether applicant would suffer hardship if interim non-publication order not made permanent – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.88F

Cases cited:
Bar-Mordecai v Rotman & Ors [2000] NSWCA 123
Bell v Veigel [2008] NSWCA 36
Esposito v Commonwealth of Australia [2015] FCAFC 160; (2015) 235 FCR 1
National Australia Bank Limited v KRDV [2012] FCA 543; (2012) 204 FCR 436
Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463
Tre Cavalli Pty Ltd v Berry Rural Co Operative Society Ltd [2013] NSWCA 235
PVYW v Comcare Australia [2011] FCA 535

First Applicant:

PAOLA TOPPI

Second Applicant:

NEIL CUNNINGHAM

Respondent:

DOLORES LAVIN

File Number:

SYG 2223 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

4 May 2016

Delivered at:

Sydney

Delivered on:

11 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr G D McDonald

Solicitors for the Applicant:

Gavin Parsons and Associates

Counsel for the Respondent:

Mr M Pesman SC with Mr C Alexander

Solicitors for the Respondent:

Beazley Singleton Lawyers

ORDERS

The application to extend permanently the interim non-publication order made on 24 February 2016, as extended on 15 April 2016 and further extended on 4 May 2016, is dismissed.
The interim non-publication order made on 24 February 2016, as extended on 15 April 2016 and further extended on 4 May 2016, be discharged at 5.00 pm on 13 May 2016.
Until 5.00 pm on 13 May 2016 these reasons for judgment must not be disclosed to any person other than:
(a)Ms Dolores Lavin; and
(b)the legal representatives of Ms Dolores Lavin; and
(c)the legal representatives of Ms Paola Toppi and Mr Neil Cunningham; and
(d)the trustee in bankruptcy, Mr Aaron Lucan and his legal representatives; and
(e)the associates of Judge Manousaridis.
Subject to order 5, Ms Dolores Lavin pay the costs of the application referred to in order 1.
The parties have liberty to apply to vary or discharge order 4, provided such application is made by 25 May 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2223 of 2015

PAOLA TOPPI

First Applicant

NEIL CUNNINGHAM

Second Applicant

And

DOLORES LAVIN

Respondent

REASONS FOR JUDGMENT

Introduction

On 15 April 2016 I dismissed an application (Discharge Application) brought by the respondent, Ms Dolores Lavin, to discharge an order for the issue against her of a summons for examination. I also made an order that the non-publication order I made on 24 February 2016 (non-publication order) be discharged at 5.00 pm on 29 April 2016, and an order that my reasons for judgment (Reasons for Judgment) on the basis of which I dismissed Ms Lavin’s application not…

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 Toppi v Lavin (No.2)

Details

AGLC: Toppi v Lavin (No.2) [2016] FCCA 1109
Case: [2016] FCCA 1109
Decision Date: 11 May 2016

CaseChat Overview and Summary

This matter concerned an application by Ms Lavin for a non-publication order in relation to certain medical evidence, which was opposed by Ms Toppi. The dispute arose in the context of a discharge application made by Ms Lavin. The decision was made by Judge Manousaridis in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether Ms Lavin had established a sufficient reason for the making of a permanent non-publication order under section 88F of the *Federal Circuit Court of Australia Act 1999* (Cth). Specifically, the court had to determine if Ms Lavin's assertion that she would not have continued with her discharge application had the medical evidence not remained confidential constituted a valid basis for such an order.

Judge Manousaridis found two difficulties with Ms Lavin's submission. Firstly, there was no direct evidence from Ms Lavin stating she would not proceed with the discharge application if the medical evidence were not kept confidential. The evidence presented was hearsay, contained in conversations between Ms Lavin and her solicitor, and in neither conversation did Ms Lavin explicitly state this condition. Secondly, the judge noted that a non-publication order had been made only until further order, indicating that the question of permanent extension was to be determined alongside the discharge application. Even accepting the submission that Ms Lavin's counsel understood this determination to occur after judgment, it followed that Ms Lavin ran the risk of the discharge application being decided adversely and the non-publication order not being extended. If confidentiality was a prerequisite for proceeding, Ms Lavin would have acted differently, either by seeking a prior determination on the non-publication order or by withdrawing the discharge application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The first ground is that, had Ms Lavin known that the evidence in relation to her medical condition (Medical Evidence) were not to remain confidential, she would not have made or continued with the Discharge Application. Ms Lavin relied on a number of cases where it has been recognised that a person’s not continuing with proceedings if a non-publication order is not made may constitute a sufficient reason for the making of an order under s.88F of the Federal Circuit Court of Australia Act 1999 (Cth).[1][1] See National Australia Bank Limited v KRDV [2012] FCA 543; (2012) 204 FCR 436 at [92] (Cowdroy J) There are two difficulties with Ms Lavin’s submission. The first is there is no evidence from Ms Lavin, original or hearsay, in which Ms Lavin states that she would not continue with the Discharge Application if the Medical Evidence were not kept confidential. The only testimony from Ms Lavin in which she gives reasons for her wishing to maintain confidentiality of the Medical Evidence is hearsay testimony contained in two conversations to which Ms Lavin’s solicitor, Ms Rebecca Ross, deposed.[2] In neither conversation, however, does Ms Lavin say she would not proceed with the Discharge Application if the Medical Evidence were not kept confidential.[2] Affidavit of R Ross, 23.11.2015 The first conversation took place on or about 11 November 2015 during which Ms Lavin told Ms Ross words to the effect:[3][T]his information is really private, I can’t have anyone knowing my private medical information and seeing my medical reports. If Toppi sees this medical information it will get out, anonymously or not.[3] Affidavit of R Ross, 23.11.2015, [10] The second conversation occurred on or about 18 November 2015.[4] Ms Ross asked Ms Lavin why, if the Medical Evidence is disclosed to Ms Toppi and Mr Cunningham, they would disclose it to the media or to Ms Lavin’s artists. Ms Lavin said, among other things, that Ms Toppi had been harassing Ms Lavin, and sending emails to artists Ms Lavin works with. [4] Affidavit of R Ross, 23.11.2015, [12] Secondly, on 24 February 2016 I heard evidence and argument on the Discharge Application, and I reserved my judgment. I also made the non-publication order. I made that order, however, only until further order. That means I had not decided whether to extend the non-publication order permanently. I understood that I had made it clear at the hearing of 24 February 2016 that I intended to determine that question at the time I was to decide the Discharge Application. That is what I did in my Reasons for Judgment. Counsel for Ms Lavin, however, said he understood otherwise. Counsel submitted he understood that whether the non-publication order was to be extended permanently was to be determined after I was to publish my reasons for judgment on the Discharge Application. I, of course, accept what counsel said to me from the bar table about his understanding, although I do not necessarily accept that counsel’s understanding was reasonably based.[5] But even accepting that counsel reasonably understood that whether the non-publication order would be extended on a permanent basis was to be decided after I were to give my judgment on the Discharge Application, it necessarily follows that Ms Lavin ran the risk of my deciding the Discharge Application adversely to her, and also deciding not to extend indefinitely the non-publication order. If, as counsel for Ms Lavin submitted, Ms Lavin would not have continued with the Discharge Application if the Medical Evidence did not remain confidential, she would not have run that risk. She either would have sought to obtain a judgment on whether I should extend the non-publication order before Ms Lavin proceeded with the hearing of Discharge Application, or she would have withdrawn the Discharge Application before I gave my judgment on that application.[5] That does not mean I find counsel’s understanding to have been unreasonably based. There is no need for me to make a finding, one way or the other.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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