Victorian Lawyers RPA Ltd v "X"
[2001] VSC 432
•26 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
PRACTICE COURT
No. 8037 of 2001
| VICTORIAN LAWYERS RPA LTD | Plaintiff |
| v. | |
| 'X' | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2001 | |
DATE OF JUDGMENT: | 26 October 2001 | |
CASE MAY BE CITED AS: | VICTORIAN LAWYERS RPA LTD. v. 'X' | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 432 | |
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Legal Practitioners – Practice and procedure – Application for admission to practice as a barrister and solicitor of the Supreme Court – Suppression order including an order that the hearing be held in camera – Application by the Herald & Weekly Times Ltd to vacate or vary – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Macaw QC with Mr G. Randall | Joseph Barravecchio |
| For the Defendant | Mr D. Curtain QC With Ms S. Hinchley | Blake Dawson Waldron |
| For the Herald & Weekly Times Ltd | Mr W. Houghton QC With Mr D. Bennett | Corrs Chambers Westgarth |
HIS HONOUR:
On Monday this week, 22 October, I ordered, amongst other things, that, subject to further order, the whole of the proceeding with which I am presently concerned be heard in closed court and that the publication of a report of the proceeding or any part of it or of any information derived from the proceeding be prohibited.
I made other orders preventing disclosure of certain material other than to certain persons.
The proceeding was then listed for hearing this morning. I should add that the orders made on Monday were made subject to further order.
This morning the Herald & Weekly Times Ltd sought leave to appear to argue that the orders which I pronounced last Monday should be set aside or varied.
There is no question but that the Herald & Weekly Times had standing to make that application and I granted leave and heard counsel for that media group in support of submissions to the effect that there should be no restriction upon the reporting of this proceeding or in relation to those who might attend.
The power to make orders of the kind pronounced on Monday is to be found in the Supreme Court Act. By s.18 of that Act, the court may, in the circumstances mentioned in s.19, (a) order that the whole or any part of a proceeding be heard in closed court; or (b), order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding; or (c) make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding. It is clear by the terms of the section itself that it applies to both civil and criminal proceedings.
S.19 specifies the circumstances in which an order may be made under s.18. The court may make such an order if, in the opinion of the court, it is necessary to do so in order not to, amongst other things, prejudice the administration of justice or endanger the physical safety of any person.
There can be no doubt of the principle relied upon, properly, by Mr Houghton for the Herald & Weekly Times; that ordinarily proceedings in court are to be in public. That means in public in the fullest sense. There should ordinarily be no restriction upon the reporting of proceedings, providing that any report is fair and accurate. There should be no restriction on the naming of the parties to any particular litigation and there should be no restriction on reporting accurately and fairly the proceedings themselves. Nor, of course, should the court be closed to those who seek admission to it.
These principles must be the starting point in considering any application to take any step which might inhibit the right of the public to have access to, and to gain knowledge about, the court and its proceedings.
The overriding principle remains. Justice must be best served by whatever position is taken by a judge faced with an application to restrict access to the court or reports of proceedings of the court. Thus, there are recognised exceptions to the right to freely report details of proceedings: where blackmail is alleged, or where publication of the identity of an informant or details of the information might place the informant in physical danger, or inhibit the flow of necessary information and intelligence to law enforcement agencies. Those are but two examples of circumstances where the normal rule relating to publicity will be modified.
In this case, it was argued by the Herald & Weekly Times that there was no reason why the general principle of open justice should not fully apply here. It was pointed out by Mr Houghton, again quite properly, that mere embarrassment to a witness or a party resulting from the publication of material put before the court is no reason to suppress such publication or to restrict access to it otherwise. I accept Mr Houghton's submissions in that regard.
Mr Houghton further submitted that this application concerns the right to admission to practice as a barrister and solicitor of this court. It is in the public interest that proper persons be admitted to practice and persons who are not fit and proper should be excluded.
I accept therefore Mr Houghton's further submission that the public have a particular interest in applications of this kind. That is not to say that such interest is unique to these applications; but it is, I think, proper to say that there is a public interest in the determination of the issues which come before a court in circumstances such as the present, which, to an extent at least, extends beyond the general public interest in open justice.
Mr Houghton further submitted that some details of relevance are already known to persons of relevance in relation to this proceeding. In particular, the person who was the alleged perpetrator of very serious assaults on the defendant, if the allegations be true, already knows the name of the defendant, and may already have access to other relevant information.
To an extent therefore, publication of these proceedings would not extend the information already available to the alleged perpetrator.
Mr Houghton further referred to the desirability of ensuring that potential informants or witnesses be identified and come forward to provide relevant information in relation to applications such as this.
I accept for this purpose, and in this context, the general proposition that the truth will be more readily revealed by publicity and by having information put before a tribunal sitting in public than would be the case were the information put forward in circumstances of secrecy. As a general proposition that is true. There are individual circumstances arising in particular cases where no doubt the opposite would be true and information is more likely to be accessible and accurate if it is given outside the glare of publicity.
Mr Houghton also referred to the desirability that speculation, properly called mere speculation, not be fed by lack of access to the truth given proclaimed in the glare of publicity. He again referred, although in a different aspect of his submissions, to the fact that a degree of prior publication and, therefore, prior knowledge, has already come into the public domain, with the publication of certain information about the defendant to workmates of the defendant.
I have taken these, and I hope, all the submissions put by Mr Houghton into account in coming to my conclusions. I have also taken into account the submissions put to the contrary by Mr Curtain for the defendant and Mr Macaw for the plaintiff. I have, in particular, taken into account the issue of the physical safety of the defendant. There is evidence before me that, should general publicity be given to this proceeding, the person who allegedly inflicted the assaults, to which I have already referred, on the defendant, may take action which would result in physical harm to the defendant; at the very least, it was submitted the defendant is placed in a position of physical danger if the proceedings are given general publicity.
It was also put that the defendant is already a victim, given that one accepts the truth of the allegations about the initial assaults. Indeed, it may be accepted that, if the defendant was the victim of the assaults alleged, then re-visiting those events during the course of these or any other proceedings will be very traumatic for her. That trauma will be infinitely enlarged should the proceedings be given publicity, and the harm already done to the defendant would be likewise exacerbated.
It seems to me that this is a consideration which, under s.19, I can properly take into account. I have already referred to the particular portion of that section that refers to physical safety. It seems to me that that expression encompasses the health, mental or otherwise, of a person whose health might be materially and adversely affected were publicity to be given to these proceedings.
In this context, I should perhaps add that nothing more horrific could happen to anybody than the violation of oneself which, if these allegations are correct, the defendant has experienced. It is impossible for anybody not subjected to that kind of assault to understand the full import of it. But, nobody with the imagination could fail but to appreciate that trauma of this kind could scarcely have a more adverse effect, psychologically and otherwise, on the person who is the victim of it.
Another submission put on behalf of the defendant and the Law Institute concerned the interest of the alleged perpetrator. I took this matter up with counsel when I returned after the lunch break and I was assisted by the submissions put then. I remain, I confess, somewhat uncertain about the weight to which the interests of the alleged perpetrator should be given in these circumstances, but those interests, I think, on any view, remain a factor to be taken into account when deciding where the justice of the case should lie.
There can be no doubt that publicity would adversely impact upon the alleged perpetrator and, if the allegations made against that person are untrue, that impact would be markedly unjust.
Apart from the alleged perpetrator, it was put to me that a number of other persons with their own interests should be taken into account. Apart from those of the defendant and her family, there are those of another alleged victim of the same perpetrator, whose identity might, as I understand the material presently before the court, well come into the public domain during the course of these proceedings if steps are not taken to prevent that occurrence.
And, finally, there are those who are the victims of the admittedly false allegations made by the defendant which resulted in her being dealt with by a Magistrates' Court in, I think, October last year.
Given that the allegations made against those persons were admittedly false, they, from their individual standpoints, would doubtless not take it to be just that their identity and the circumstances in which the allegations were made, indeed the allegations themselves, should be once again brought into the public arena.
These then were the submissions put in support of the proposition that there should be some restrictions on the right to publicise the proceedings which are about to commence.
The path to a proper conclusion in the circumstances which presently confront me is by no means easy. There are delicate questions to be weighed on both sides. There are very real legitimate interests which will be affected either way. Given those difficulties, I must nevertheless make a decision.
It seems to me that I ought not allow full publicity to be given to these proceedings. I think that the issues of the safety of the defendant and, to a lesser extent, the interests of the alleged perpetrator, indicate that justice will best be served if I order that there not be published or cause to be published by any means any matter that might directly or indirectly enable identification of the defendant or of the person whom I will for the present purposes call the alleged perpetrator.
It seems to me that, otherwise, I ought to allow publication of a fair and accurate report of these proceedings and I ought to allow the usual rights of access to this court. As I understand the submissions for the defendant and the plaintiff, they did not seek to continue the order which closed this court to the public. Subject to the assistance of counsel on a particular wording of the order, I had in mind something like this. That until further order of the court, no corporation, body or person shall publish or cause to be published or broadcast, by means of radio, television or otherwise, any matter that might directly or indirectly enable identification of the defendant or of the person whom the defendant alleges assaulted her while she was a teenager.
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