Toppi v Lavin (No.2)
[2016] FCCA 1109
•11 May 2016
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 be published until 5.00 pm on 29 April 2016 except to specified persons.
On Ms Lavin’s application, the matter came before me for directions on 28 April 2016. On that day I made orders by consent extending to 13 May 2016 the time by which the non-publication order would be discharged, and the period for which my Reasons for Judgment not be published. Also on 28 April 2016, counsel for Ms Lavin indicated Ms Lavin wished to apply for an order that the non-publication order be extended permanently. Counsel submitted that, at the hearing of 24 February 2016, I did not fully hear Ms Lavin’s application that the non-publication order be extended permanently. Accordingly, I set down for hearing on 4 May 2016 Ms Lavin’s claim that I discharged the non-publication order without having heard full argument. I also indicated that I would hear argument on whether the non-publication order should be extended permanently in any event.
I heard submissions on 4 May 2016. Counsel for Ms Toppi and Mr Cunningham indicated he did not oppose counsel for Ms Lavin making submissions in support of an order to extend the non-publication order permanently. It will not, therefore, be necessary for me to consider whether, at the hearing of 24 February 2016, counsel for Ms Lavin was not given an opportunity to make all the submissions he wished to make in relation to the permanent extension of the non-publication order.
Grounds on which Ms Lavin relies
Ms Lavin relies on two grounds for submitting that the non-publication order be extended permanently.
Deterrence of proceeding with Discharge Application
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.
Counsel for Ms Lavin submitted that although there was no direct evidence that Ms Lavin would not have proceeded with the Discharge Application unless the Medical Evidence was kept confidential, I should infer Ms Lavin would not have so proceeded. Counsel relied on the steps Ms Lavin has taken to keep that Medical Evidence confidential. I do not accept that submission. It may readily be accepted that Ms Lavin has a great desire to maintain the confidentiality of the Medical Evidence. That, however, does not necessarily mean that Ms Lavin valued her desire to keep the Medical Evidence confidential more than she valued her chances of succeeding on the Discharge Application. Ms Lavin’s not withdrawing the Discharge Application in circumstances where Ms Lavin must have known there was a risk I might not permanently extend the non-publication order indicates that Ms Lavin valued her desire to maintain confidentiality of the Medical Evidence less than she valued her chances of succeeding on the Discharge Application. Further, as I have already noted, Ms Ross deposed to conversations with Ms Lavin which appeared to form part of conversations about the reasons why Ms Lavin desired the Medical Evidence to be and remain confidential. Had Ms Lavin in truth intended not to proceed with the Discharge Application if the Medical Evidence did not remain confidential, it is reasonable to expect that she would have said so in some conversation with her solicitor, and would have instructed Ms Ross accordingly.
I do not accept, therefore, that Ms Lavin would not have commenced or continued with the Discharge Application unless the Medical Evidence was kept confidential.
Hardship
The second ground on which Ms Lavin relies is that not extending the non-publication order would cause her hardship.[6] The relevant hardship is said to relate to Ms Lavin’s medical condition. As I understand it, counsel for Ms Lavin submits I should approach the question of whether Ms Lavin has a medical condition without reference to the findings I made in my Reasons for Judgment. The basis of that submission appears to be that the application for the permanent extension of the non-publication order is interlocutory. The consequence of that fact, counsel submits, is that I need not form a view about Ms Lavin’s mental state or, if I need form such view, I “need only form a very preliminary view as to the existence of the medical condition”.[7]
[6] Relying on PVYW v Comcare Australia [2011] FCA 535 at [15] (Nicholas J)
[7] Submissions for Applicant on Interim Application (Dolores Lavin), [25]
There are two matters to note about these submissions. First, it is unclear what hardship Ms Lavin claims she will suffer if the non-publication order is not extended. Counsel refers to Ms Lavin’s medical condition; but no submission is made about any connection between Ms Lavin’s medical condition, and my not making an order extending the non-publication order. In particular, there is no medical or other evidence that suggests that my discharging the non-publication order will result in Ms Lavin suffering some psychiatric injury. It was open to Ms Lavin to have applied for the extension of the non-publication order if Ms Lavin claimed she would suffer psychiatric injury if the non-publication order were discharged. She has made no such application.
Second, there has been a fully contested hearing about whether Ms Lavin suffers from the psychiatric conditions from which Dr Jonathan Adams was of the opinion Ms Lavin suffers. I determined that question adversely to Ms Lavin by finding that evidence on which Dr Adams relied, namely, Ms Lavin’s reports of her medical history and her mental states, lacked credibility. In those circumstances, it would be perverse for me to consider whether Ms Lavin suffers from a psychiatric condition on the basis of the same evidence, but by applying a lower standard of proof.
Counsel also submitted that, “to the relevant threshold on this application, there is no basis for the court to find that the Applicant [Ms Lavin] is not suffering from major depressive disorder, being a finding contrary to the expert evidence provided by Dr Adams”.[8] Here, counsel relied on a number of matters. First, counsel relies on passages from the reasons of judgment of Hayne J in Tame v New South Wales.[9] Counsel emphasised passages where Hayne J noted that objectively verifiable proof of a psychiatric illness is not, or at least is not always, possible, and psychiatric diagnosis relies on a patient’s reporting of subjective matters. The intended relevance of this, however, is not clear. The reason I gave no weight to Dr Adams’ opinion was not because he per se relied on what Ms Lavin reported to him; it was because I was not satisfied that credit could be given to what Ms Lavin reported to Dr Adams. The passage from Tame on which counsel relies cannot be read as Hayne J holding that it is appropriate for a psychiatrist to give an opinion on a patient’s mental health based on incorrect matters reported by the patient.
[8] Submissions for Applicant on Interim Application (Dolores Lavin), [30]
[9] [2002] HCA 35; (2002) 211 CLR 317 at [289]; [294]
Second, counsel relied on a matter that had escaped my attention. In my Reasons for Judgment, I referred to the cross-claim Ms Lavin and Dolores Lavin Management Pty Ltd (DLM) filed in the Enforcement Proceedings[10] in which it was alleged that Ms Lavin was “on prescription medicine being the drug “Zoloft” and was under the care of a psychologist”.[11] Counsel for Ms Lavin, however, pointed to what he submitted were corrections to the type written words “zoloft” and “psychologist” contained in the defences Ms Lavin and DLM filed. In each of the defences, these two words were crossed out by hand, and replaced by the hand written words “zanex” and “doctor”.[12] Counsel submitted:[13]
The Applicant had seen a doctor prior to 2010 and been prescribed Xanax to assist with sleep. The Applicant submits that she did not see a psychologist or psychiatrist prior to 2010 and was not prescribed the drug Zoloft. The Applicant submits that she meant to have corrected this pleading in all legal documents filed with the Court in July 2010 and acknowledges this oversight. Corrections were made to pleadings within the Applicant’s Defence and the Defence of Dolores Lavin Management Pty Ltd in Supreme Court proceedings 150034 of 2010 . . .
[10] See Toppi & Anor v Lavin [2016] FCCA 830 at [6]-[9]
[11] Exhibit A, page 21
[12] Exhibit A, pages 6; 13
[13] Submissions for Applicant on Interim Application (Dolores Lavin), [35]
This cannot be accepted as evidence, and I disregard it. But the submission does invite two observations. First, although the changes were made in the defence Ms Lavin and DLM filed in the Enforcement Proceedings, the words “zoloft” and “psychologist” appearing in paragraph 11 of the cross-claim filed by Ms Lavin and DLM (which Ms Lavin verified on 21 July 2010) were not altered.[14] Further, another part of the cross-claim contained the printed words “zanex” and “doctor” instead of “zoloft” and “psychologist”.[15] That Ms Lavin verified allegations that at the very least are potentially conflicting only serves to increase doubt about Ms Lavin’s credibility. So too does the fact that Ms Lavin, through her counsel, apparently acknowledges more than five years after the defence and cross-claim were filed in the Enforcement Proceedings that those documents contain errors inserted through oversight, yet there is no evidence Ms Lavin corrected the errors; nor is there any evidence to explain how those errors came about and why the errors had not been corrected.
[14] Exhibit A, page 21, [11]
[15] Exhibit A, page 20, [1(e)]
Second, even if it is accepted that Ms Lavin intended to use in the pleadings she and DLM filed in the Enforcement Proceedings the words “zanex” and “doctor”, instead of “zoloft” and “psychologist”, Dr Adams accepted in cross-examination that “zanex” was the trade name for alprazolam, and that it was prescribed principally for panic disorder, anxiety disorders, and generalised anxiety disorder, among other things.[16] Further, Ms Lavin and DLM alleged in the defences and in the cross-claim they filed that Ms Lavin and DLM were not reasonably able to protect their interests because of Ms Lavin’s “age and/or state of mental or physical capacity”.[17] It is clear, therefore, that in the Enforcement Proceedings Ms Lavin and DLM relied, at least in part, as a ground for seeking an order to set aside the guarantees she and DLM signed in October 2008, what they alleged was Ms Lavin’s impaired mental health. If that ground were true, it would be inconsistent with what Ms Lavin reported to Dr Adams, namely, that her mental health began to deteriorate in 2010.
[16] 24.02.16, T33.20
[17] Exhibit A, pages 6; 13
For these reasons, I am not satisfied that discharging the non-publication order will create any relevant hardship to Ms Lavin such as would require me to extend indefinitely the non-publication order.
Other matters
Before the hearing of 4 May 2016, I enquired through my associate whether, if Ms Lavin were to succeed in obtaining an order extending the non-publication order, that would necessitate the redaction or alteration of my Reasons for Judgment. If so, I requested that counsel for Ms Lavin have available to hand up in Court the redactions to my Reasons for Judgment Ms Lavin proposes I should make.
At the hearing, counsel for Ms Lavin handed up a copy of my Reasons for Judgment containing suggested redactions. The only redactions were to the names of the parties and other persons or entities, the property at 14/22 Wylde Street, Potts Point, and the names of Dr Adams and Dr Barbara Rysenbry. Even if I were to have concluded that the non-publication order should be extended, I would not have been minded to redact the judgment in the manner suggested by counsel. It is likely that anyone who was aware of the disputes between Ms Toppi and Mr Cunningham on the one hand and Ms Lavin on the other would easily recognise from the redacted Reasons for Judgment that it concerns Ms Lavin.
Also at the hearing, I explored whether it was possible to amend my Reasons for Judgment to remove references to the psychiatric conditions from which Ms Lavin claimed she suffered, even if I were to conclude that I should not make an order extending the non-publication order. I invited counsel for Ms Lavin to provide me with authorities that consider the extent to which a judge may revise a judgment that he or she has already delivered. After the hearing, I was provided with two cases.
The first is Todorovic v Moussa, a decision of the Court of Appeal of the Supreme Court of New South Wales.[18] In that case, the trial judge gave an ex tempore judgment, but the written reasons for judgment contained an addition that was not contained in the ex tempore judgment. Beazley JA, with whose reasons Powell JA and Sperling J agreed, held that reasons for judgment may be revised after the delivery of oral reasons provided the substance of what has been delivered is not altered.[19] Her Honour quoted[20] with approval the following passage from Bar-Mordecai v Rotman & Ors:[21]
It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.
[18] [2001] NSWCA 419; (2001) 53 NSWLR 463
[19] [2001] NSWCA 419; (2001) 53 NSWLR 463 at [41]-[47]
[20] [2001] NSWCA 419; (2001) 53 NSWLR 463 at [47]
[21] [2000] NSWCA 123 at [193]
Beazley JA also held that the same rule applies to the case of a reserved judgment.[22]
[22] [2001] NSWCA 419; (2001) 53 NSWLR 463 at [48]
The Full Federal Court in Esposito v Commonwealth of Australia considered the extent to which a judge may revise a written judgment after it has been published. The Court said:[23]
It is not in doubt that a superior court may revise its reasons for judgment although the power to do so does not come, as the Commonwealth submitted, from the slip rule (which is about orders and not reasons). The power is instead most likely implied in the Federal Court Rules 2011 (Cth): Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 at 469 [50] per Beazley JA; Bell v Veigel [2008] NSWCA 36 at [221] per Mason P (Giles and Tobias JJA agreeing); Tre Cavalli Pty Ltd v Berry Rural Co Operative Society Ltd [2013] NSWCA 235 at [54] per Gleeson JA (McColl and Leeming JJA agreeing).
The same authorities establish that the power does not extend to altering the substance of reasons which have already been given. The extent of the formal changes which may be made is difficult to predict in practice because of the unstable nature of the distinction between form and substance. Further, there may well be differences in approach between reasons delivered orally and those delivered in writing (although we express no concluded view on that matter).
In this case, we do not think that the primary judge revised the substance of his reasons for judgment in any way. Even if he had, the outcome would not be, as the appellants suggested, that the second version of the judgment was inefficacious but only that the revised elements in it which went beyond acceptable revision would simply be ignored in this Court: Todorovic [2001] NSWCA 419;(2001) 53 NSWLR 463 at 469 [53].
[23] Esposito v Commonwealth of Australia [2015] FCAFC 160; (2015) 235 FCR 1 at [138]-[140] (Allsop CJ, Flick and Perram JJ)
I have no doubt that a judge may alter written reasons for judgment that have already been published to remove expressions that may cause unnecessary embarrassment or distress to any person, provided the alterations do not involve any change to the substance of the reasons for judgment. I would be inclined, therefore, to remove from my Reasons for Judgment references to the Medical Evidence if such changes would not alter the substance of my Reasons for Judgment. In my opinion, however, it would be impossible to amend my Reasons for Judgment by removing reference to the Medical Evidence. The central question with which my Reasons for Judgment deals is whether Ms Lavin suffers from the psychiatric conditions from which she claims she suffers. To attempt to change my Reasons for Judgment by removing all references to the Medical Evidence would not only amount to a change in substance; it would render the amended judgment into something radically different from my Reasons for Judgment. I do not propose, therefore, to amend my Reasons for Judgment by removing all references to the Medical Evidence.
Conclusion and disposition
Ms Lavin has not persuaded me there are grounds for extending the non-publication order permanently; nor has she persuaded me that any part of my Reasons for Judgment should be suppressed or amended. I propose, therefore, to dismiss Ms Lavin’s application to extend permanently the non-publication order. Consistently with the orders I made on 15 and 28 April 2016, I also propose to order that up and until 5.00 pm on 13 May 2016 these reasons for judgment not be disclosed to any person other than to Ms Lavin, the legal representatives of Ms Lavin, the legal representatives of Ms Toppi and Mr Cunningham, the trustee in bankruptcy and his legal representatives, and to my associates.
I also propose to order that Ms Lavin pay Ms Toppi’s and Mr Cunningham’s costs, subject to reserving liberty to the parties to apply within 14 days for a different costs order.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 12 May 2016
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