Toppi v Lavin (No.2)

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.