West Australian Newspapers Ltd v Martin - [2024] WADC 30

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WEST AUSTRALIAN NEWSPAPERS LTD -v- MARTIN [2024] WADC 30
CORAM:   CURWOOD DCJ
HEARD:   7 MAY 2024
DELIVERED          :   7 MAY 2024
PUBLISHED           :   13 MAY 2024
FILE NO/S:   CIVO 63 of 2024
BETWEEN:   WEST AUSTRALIAN NEWSPAPERS LTD
Applicant
AND
AMANDA GAY MARTIN
First Respondent
STACEY CHEREE SMILES
Second Respondent
THE STATE OF WESTERN AUSTRALIA
Third Respondent
THE TRUSTEES OF THE WESTERN AUSTRALIAN SPORTS CENTRE TRUST
Fourth Respondent
ONLY FOODS AND SAUCES PTY LTD
Fifth Respondent
XYZ
Sixth Respondent

Catchwords:

Application to vary suppression order

Legislation:

District Court Rules 2005 (WA)
Fatal Accidents Act 1959 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application allowed

Representation:

Counsel:

Applicant	:	Mr A V McCarthy
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	Mr G M Scott
Fourth Respondent	:	Mr G M Scott
Fifth Respondent	:	No appearance
Sixth Respondent	:	In person

Solicitors:

Applicant	:	Steedman Stagg
First Respondent	:	Not applicable
Second Respondent	:	Not applicable
Third Respondent	:	State Solicitor's Office
Fourth Respondent	:	State Solicitor's Office
Fifth Respondent	:	Not applicable
Sixth Respondent	:	Not applicable

Case(s) referred to in decision(s):

ZYX v JD [2019] WADC 164

CURWOOD DCJ:

[This judgment was delivered extemporaneously on 7 May 2024 and has been edited from the transcript.]

By an originating summons filed on 12 April 2024 West Australian Newspapers Ltd (the applicant), seeks orders varying a suppression order made with respect to District Court civil action 6174 of 2023 (the Original Proceedings) on 9 January 2024. The Original Proceedings were commenced by Amanda Gay Martin and Stacey Cheree Smiles as plaintiffs against the State of Western Australia (as first defendant), the Trustees of the Western Australian Sport Centre Trust (as second defendant), Only Foods and Sauces Pty Ltd (as third defendant) and XYZ[1] (as fourth defendant).
[1] A pseudonym - see orders of 9 January 2024 [6] below.
The writ filed in the Original Proceedings contained the full name (and therefore disclosed the true identity) of the fourth defendant. The writ was filed on 11 December 2023. As it emerged during argument at the hearing of this matter, the applicant obtained from the court an unredacted copy of the writ of summons in the Original Proceedings before the orders were made on 9 January 2024.
The applicant was given notice of the orders made on 9 January 2024 by the solicitors for the plaintiffs in the Original Proceedings and, quite properly and responsibly, did not publish any information concerning the proceedings pending the hearing of this application.
The plaintiffs in the Original Proceedings, by the indorsement on the writ of summons, claim damages against each of the named defendants for negligence and/or breach of duty pursuant to various sections of the Fatal Accidents Act 1959 (WA). The plaintiffs seek damages from each of the defendants for mental harm suffered by the plaintiffs from witnessing the shooting and murder of their husband and stepfather, Nick Martin.
The fact that the writ had named the true identity of XYZ led to an application by the plaintiffs in the Original Proceedings for various suppression orders. That application was made by the plaintiffs on an ex‑parte basis. Orders were made on the papers on 9 January 2024. As noted, prior to those orders being made, the applicant had obtained a copy of the unredacted writ of summons in the Original Proceedings.
The orders which were made on 9 January 2024 were as follows:
1.The fourth defendant's name be anonymised and the fourth defendant be referred to in the proceedings under a pseudonym name of 'XYZ'.
2.All court documents filed in the proceedings shall refer to the fourth defendant by the pseudonym.
3.Until further order, a non‑party to the action is prohibited from searching from, inspecting, receiving copies of or publishing any court document information in relation to the case constituted by or in relation to:
(i)The commencement of proceedings;
(ii)Any document in connection with the proceedings, or any application in the proceedings;
(iii)Any interlocutory proceedings; and
(iv)The trial of the proceedings.
4.Any reasons for decision in the proceeding shall be published using the pseudonym approved by the court for the fourth defendant and redact references in the reasons which may lead to the identification of the fourth defendant.
There were also other orders made on 9 January 2024, which are unrelated to these proceedings, about service on the defendants in the Original Proceedings.
No affidavits of service have been filed in the Original Proceedings. Counsel appearing for the third and fourth respondents confirmed that the writ had not been served on the third and fourth respondents (being the first and second defendants to the Original Proceedings). During the course of the hearing, it appeared that service of the writ had also not been effected on the other defendants in the Original Proceedings. On that basis, I have assumed that no defendant to CIV 6174 of 2023 has been served with the writ and, necessarily, the plaintiffs in those proceedings have not made a decision as to whether to pursue the claim in those proceedings. In this respect, a plaintiff may, under the Rules of the Supreme Court, serve a writ of summons without leave of the court within 12 months from the date of issue of the writ. After a period of 12 months from the date of issue, the writ becomes stale and may not be served without leave of the court.
As an aside, it is important to bear in mind that a writ simply initiates legal proceedings. It is a relatively common occurrence that litigants commence proceedings to preserve legal rights, for example, where a statutory limitation period may otherwise apply. Accordingly, it is not an abnormal position for a writ to be issued and, pending further legal and factual investigations, not be served.
In the present proceedings, the applicant seeks a variation of the orders made on 9 January 2024 so that the following words are added at the end of par 3 of the current orders:
[W]hich identifies the fourth defendant other than by the pseudonym XYZ.
During the course of the hearing of the applicant's application, counsel for the applicant did not oppose a minor amendment to the order sought such that it read:
[W]hich may identify the fourth defendant other than by the pseudonym XYZ.
In the hearing of this application I have taken into account the obvious public interest in this matter and the general principles of open justice.
The applicant in support of its application has filed an affidavit of Mr Timothy Clarke sworn 3 April 2024 and written submissions. The applicant's written submissions contend that a variation to the existing orders should be made because the order in its current form is contrary to the principles of open justice as the order, in effect, prohibits any reporting of the proceedings. The applicant in its submissions makes reference to the decision of Chief Judge Sleight in the case of ZYX v JD [2019] WADC 164 [70] - [73] which extensively discusses the legal principles of open justice.
Without setting out in full the relevant principles summarised by his Honour in ZYX v JD [2019] WADC 164, I note:
1.The principles of open justice require that:
(a)The administration of justice must take place in open court.
(b)The entitlement of the media to report on court proceedings is a corollary of the right of the public to attend proceedings.
2.An exception of the principle of open justice exists where the publications of a person's identity would put at risk a person's life.
3.A suppression order should only be made if strictly necessary.
The applicant submits that in the course of conferral with the plaintiffs' lawyers acting in the Original Proceedings, the position emerged that the orders of this court made on 9 January 2024 were premised upon earlier suppression orders made by the Honourable Justice Hall in Supreme Court proceedings involving XYZ. The applicant's position is that the effect of the orders made by this court on 9 January 2024 had the effect of suppressing the publication of the entirety of the proceedings and that such an outcome is not necessary to preserve the confidentiality of the identity of the fourth defendant and his safety.
The present application also needs to be considered in a context where the orders sought by the applicant involve the publication of details on the writ of summons in the Original Proceedings.
Ordinarily, any person is entitled to inspect and receive a copy of a writ of summons filed in the District Court (or the Supreme Court): see O 67B r 6(3) of the Rules of the Supreme Court and r 71(1A) of the District Court Rules 2005 (WA).
At the commencement of the hearing of the application, I made an order that only accredited members of the media would have access to the courtroom during the hearing. At the time of making that order there were no members of the public in attendance at the court and, to some degree, the order restricting access to the court room was premised upon an assumption that members of the media had only been able to attend proceedings involving XYZ. As counsel for the applicant pointed out in the course of argument, an order made in proceedings involving XYZ by the Honourable Justice Hall in the Supreme Court permitted members of the public could attend court room hearings.
Turning to the present application, the application, supporting affidavit and submissions have been served on the parties named in this proceeding, being all of the parties to the Original Proceedings. No party has opposed the orders being sought by the applicant.
With respect to XYZ, he was served with the application and a video link from a prison was established for the hearing. As I did not have any evidence, or access to any information, concerning security arrangements of XYZ, and not being aware of any restrictions on his movements within the prison in which he is housed, I also made an order at the commencement of the hearing of application that no person would be permitted to publish any information concerning the location of XYZ. That order was not opposed by the applicant or the third and fourth respondents.

Turning to the merits of the application, I am inclined to make the orders sought by the applicant in its application. Consistently, suppression orders which have been made concerning XYZ have prohibited the publication of information which may reveal his identity or image.
The orders which are sought by the applicant appear to me to be reasonable and do not impinge or affect the earlier suppression orders which have been made and which were attached to Mr Clarke's affidavit. The variations to the orders made on 9 January 2024 are sought on an express basis that restrictions remain in place as to disclosing, or in any way undertaking steps likely to disclose, the identity of the fourth defendant in the Original Proceedings other than by the pseudonym XYZ. I also note that the writ filed in the Original Proceedings, which contains factual information concerning the claim made by the plaintiffs, is a public document and ordinarily there is no impediment to any member of the public searching and obtaining a copy of a writ of summons.
With respect to other documents which are filed (or may be filed) in the Original Proceedings, the applicant as a non-party may or may not be entitled to access the information, depending upon the document in question, and depending upon the merits of any application being made under O 67B r 11 of the Rules of the Supreme Court or comparable provisions of the District Court Rules.
Nothing within the existing order, which I propose to amend and vary in accordance with the applicant's application, would affect the court's discretion in dealing with any application under O 67B r 11 of the Rules of the Supreme Court. Further, to the extent that there is any open hearing in the Original Proceedings, members of the public could attend such a hearing, absent any express order for the closing of the court by the judicial officer conducting the hearing. Whether there will be any hearing, or further documents filed in the Original Proceedings, may be a matter of speculation because, as I have noted, the writ in the Original Proceedings has not been served on any of the named defendants.
In all the circumstances I am prepared to make the orders sought on the originating summons, with a minor variation. Specifically, will vary order 3 to add the additional words:
[W]hich may identify the fourth defendant other than by the pseudonym XYZ.
The balance of the orders made on 9 January 2024 in the Original Proceedings remain undisturbed. Orders consistent with these reasons will be extracted. Within these proceedings, orders will be mirrored with those in the Original Proceedings as to the confidentiality and anonymisation of the name and identity of XYZ. I will also make orders that there be general liberty to apply. Further, there will be no orders as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LM
Associate to Judge Curwood
10 MAY 2024