Visy Board Pty Ltd v Delianov
[2012] VSC 40
•7 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 503 of 2012
| VISY BOARD PTY LTD (ACN 005 787 913) | Plaintiff |
| v | |
| LORETTA DELIANOV | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2012 | |
DATE OF RULING: | 7 February 2012 | |
CASE MAY BE CITED AS: | Visy Board Pty Ltd v Delianov | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 40 | |
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PRACTICE AND PROCEDURE – Judgments and orders – Application for suppression order under s 18 of the Supreme Court Act 1986 – Allegation of misappropriation of funds where no charges have been laid – Ordinary rule that court proceedings be conducted publicly – No danger to right to a fair trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Herskope | Kalus Kenny |
| For the Defendant | Mr I. Crisp | Zolis Lawyers and Consultants |
HIS HONOUR:
At the commencement of the hearing of the return of orders under Order 37A of the Supreme Court (General Civil Procedure) Rules2005 freezing the assets of Loretta Delianov the defendant, Mr Crisp, who appeared on her behalf, made an oral application for suppression orders under s 18 of the Supreme Court Act1986.
He sought that an order pursuant to s 18(1)(a) that the whole of this proceeding be heard in closed court and an order, pursuant to s 18(1)(c), prohibiting the publication of a report of the whole of the proceeding or of any information derived from it.
Mr Crisp identified the relevant circumstances as required by reference to s 19(b), that the orders should be made as it was necessary to do so in order not to prejudice the administration of justice.
Counsel for the plaintiff, Visy Board Pty Ltd, Mr Herskope, neither opposed nor consented to the orders. Representatives of the media, who were in court, made submissions opposing the making of such suppression orders. Ms Wood, a journalist employed by Fairfax Media Ltd, made submissions on behalf of both 'The Age' and the 'Financial Review', and Mr Ross, a journalist, adopted those submissions on behalf of the 'Herald Sun'.
For the purpose of understanding this ruling, it is necessary to state a couple of germane factual matters:
(a)Mrs Delianov was employed by Visy Board Pty Ltd from 2003 in the payroll services department;
(b)Visy allege that in the course of her employment, Mrs Delianov appropriated a large sum of money now estimated to be in the region of $3.3 million;
(c)In the course of its investigations of Mrs Delianov's conduct, Visy alleges that she has made written admissions, at least to some extent, in relation to the alleged misappropriation;
(d)At the present time there is solely a civil dispute between Visy and Mrs Delianov. The police have not yet been involved;
(e)Last Friday I made ex parte orders pursuant to Order 37A freezing Mrs Delianov's interest in three properties and her bank account subject to certain exemptions as provided in the orders;
(f)I also made ancillary orders for the provision by Mrs Delianov of an affidavit setting out her assets and their location; and
(g)I propose to extend the freezing orders until Friday and, as the ancillary orders have not yet been complied with, to make further ancillary orders.
Returning now to the application under s 18 of the Supreme Court Act, it is helpful, I think, to recite the principles which I suspect are well‑known.
Since the decision in the United Kingdom in Scott v Scott,[1] the principle that proceedings will be conducted publicly in open view unless exceptional circumstances are demonstrated has been applied on numerous occasions. In this country it is only necessary to set out what was said by Gibbs J in Russell v Russell:[2]
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in an open view”. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and the independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure”. To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy of confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable as a matter, or part of it, to be held in closed court. (citations omitted)
[1][1913] AC 417.
[2](1976) 134 CLR 495, 520.
As Gibbs J outlined, the general rule is subject to exceptions, whether created through the exercise of a court’s inherent powers or by statute. This application is not made pursuant to the inherent jurisdiction of the Court; rather it is made under one of the statutory exceptions created by ss 18 and 19 of the Supreme Court Act. The specific exception invoked is the power of the court to make an order under s 18 if, in its opinion, it is necessary to do so in order not to prejudice the administration of justice.[3]
[3]See John Fairfax v Local Court of New South Wales (1991) 26 NSWLR 131, 141 and Attorney-General v Leveller Magazine [1979] 1 All ER 745.
The balancing of the two considerations to which I have adverted was identified by the Court of Appeal recently in Digital News Media v Mokbel,[4] in which the Chief Justice and Byrne J said as follows:[5]
Superior courts have long assorted the power to prevent the publication of proceedings or part of proceedings before them where justice requires that this be done. Such an order brings into play two very important policy matters: The requirement that justice be administered in public; and the requirement that justice be administered. In a context such as the present, the latter principle includes a requirement that an accused person is entitled to a trial conducted in accordance with law by an impartial tribunal. The former principle, which has been described as the cornerstone of our judicial system, means that the work of the courts is to be performed under public scrutiny, this being a powerful safeguard against the risk of their abusing their power or departing from the strictest standards of impartiality. In the modern environment, the media, as the eyes and ears of the general public, play an important part in this. By the fair and accurate reporting of court proceedings they ensure that the public, who may not be able to attend a hearing, are kept informed of the functioning of the court process. The importance of this principle is such that the making of an order restraining, restricting, or postponing the reporting of a court proceeding or any part of a court proceeding is exceptional, and, in general, will be made only where it is necessary to preserve the integrity of the court process, to ensure the process can function properly, or to protect privacy or confidentiality of very limited kinds. These include confidentiality with respect to trade secrets or confidential information, where the trial publicity might defeat the purpose of the litigation, and confidentiality with respect to police informers, where it might jeopardise this source of police intelligence.
[4][2010] VSCA 51.
[5]Ibid [35].
Turning now to the arguments that were put on behalf of Mrs Delianov to support the making of the orders sought.
First, it was submitted that in some way the publicity of this application may inhibit the investigation of this allegations and, more importantly, Mrs Delianov's rights to respond to these allegations. In essence, this was a submission that Mrs Delianov's right to a fair trial would be affected if Visy's allegations are made public and in particular an allegation that she has made admissions as to certain misappropriations from Visy.
In the context of this case, the principle that was being invoked by counsel was aptly summarised by Deane J in Hinch v Attorney‑General:[6]
The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.
[6](1987) 164 CLR 15, 58.
In my view this argument is not persuasive. There is no imminent trial. The police have yet to become involved; no charges have yet been considered or laid. There is no question, as far as I can determine, of publicity affecting Mrs Delianov’s rights to defend herself against these allegations. It is to be noted that she is now represented by solicitors and counsel who no doubt will advise her appropriately as to the exercise of these rights. The fact that it is alleged that she has made admissions as to misconduct does not, at least at this stage, involve any real danger to her obtaining a fair trial, if it ever comes to that.
Second, it was submitted that others who may be associated with Mrs Delianov may be wrongly identified as in some way having participated in the alleged misappropriations and thereby be the subject of speculation in the media. There is, I think, a ready answer to this. Those persons have their own civil remedies and if such allegations are made which affect their reputation, they can take, if they so wish, their own action in relation to those allegations.
Third, it was submitted that there would be real embarrassment and humiliation to both Mrs Delianov and her family and those involved in business dealings with her. This, I am afraid, is no answer. As was said nearly a hundred years ago by the Privy Council in Scott v Scott[7] by Lord Atkinson:
The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect.
[7]Ibid 463.
That statement has been given effect on many occasions in the past both in this state and in other jurisdictions in this country.
Finally, it was submitted that negotiations with the plaintiff, Visy, as to a resolution of the civil dispute may be inhibited by the failure to make such an order. With respect to counsel, I am unable to see how this consideration could involve any question of a fair trial or any alleged interference with the administration of justice.
For these reasons I dismiss the application for orders under s 18. The press, in my opinion, are at liberty to report these proceedings as they see fit.
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