XY v Board of Examiners

[2003] VSC 196

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4892 of 2003

XY	Applicant
v
BOARD OF EXAMINERS	Respondent

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2003
DATE OF JUDGMENT:	29 May 2003
CASE MAY BE CITED AS:	XY v Board of Examiners
MEDIUM NEUTRAL CITATION:	[2003] VSC 196

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Applications for closed court and for prohibition of publication pursuant to ss 18 & 19 Supreme Court Act 1986 – physical safety – appeal pursuant to s 342(1) Legal Practice Act 1996 from decision refusing application to be admitted to legal practice - applications for closure and prohibition refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr. I. Miller	William Murray

HIS HONOUR: 

1. Before the Court is a summons by the applicant Ms XY, the respondent to which is the Board of Examiners, seeking orders for proceedings to be heard in a closed court pursuant to s.18(1)(a) Supreme Court Act 1986 and for prohibition of publication of such proceedings pursuant to s.18(1)(c) of the Act. The orders under s 18(1)(a) and (c) for closure and prohibition are sought by the applicant on the ground of endangerment of her physical safety as provided by s 19(c) Supreme Court Act 1986. That section in relevant part states:

"The Court may make an order under section 18 if in its opinion it is necessary to do so in order not to –

…     (c)       endanger the physical safety of any person; …"

1. Ms XY is an academically qualified and practically trained applicant for admission to legal practice. Pursuant to its powers under s.341 Legal Practice Act 1996, the Board of Examiners considered her application for admission to practice and on 26 February 2003 refused her application. She has appealed to this Court pursuant to s.342(1) Legal Practice Act 1996 from that decision. The hearing of the appeal will occur later this year and the matter is due to go before the Listing Master on 19 September 2003 for fixing of hearing date. It is that appeal hearing as to which the closed court and prohibition orders are sought by the applicant.

1. Ms XY has appeared before the Court in person and has filed an affidavit sworn on 7 May 2003 in support of her applications.  It is unnecessary and inappropriate to refer in detail to the grounds of her affidavit but in paragraph 2 of her affidavit she sets forth three particular matters which have caused her deep distress and concern.  I have had regard to those matters and to the supporting material by way of exhibit that she has provided and which I have read in detail this morning and again over lunchtime. 

1. I have also had regard to an affidavit of the applicant of 9 March 2003, filed by her in relation to the Board of Examiners proceeding, and material in support thereof.  I have not read the reasons of the Board for its refusal of her application to be admitted as Ms XY has objection to some of the material contained in those reasons.  That ensures that I am not affected by any adverse or irrelevant material contained in those reasons before I determine the application presently before me.

1. The ground upon which Ms XY moves the Court is apprehended endangerment of her physical safety as contemplated by s.19(c) Supreme Court Act 1986. I agree with Ms XY that it is proper to construe that paragraph liberally where a matter of safety is concerned and that physical safety can and does include psychological considerations.[1]  The noun, however, is "safety" and not other matters such as (in paragraphs (e) and (f)) "undue distress or embarrassment".

   [1]See Victorian Lawyers RPA Ltd v X, Harper J., 26 October 2001 at paragraphs 20 and 21.

1. I have paid close attention to the matters of safety identified by Ms XY, particularly in paragraph 2 of her affidavit of 7 March 2003.[2] She there sets forth her concerns as to a family member (paragraph (a)), another person (paragraph (b)) and a sect (paragraph (c)). Having reviewed that material, I am not satisfied that there is any material before the Court which would enliven the safety jurisdiction to act under s.18(1) pursuant to s.19(c). In so finding, I accept entirely the sincerity of Ms XY's concerns as to her own situation. But I must judge the matter objectively and I do so. I am not satisfied objectively that there exists a danger to Ms XY's safety (broadly defined). Accordingly I cannot move under that section.

   [2]Unlike Herald & Weekly Times Pty Ltd & Anor v Jones, Nathan J., 25 March 1992, here there is evidence (on the applicant's affidavit of 7 March 2003) of matters allegedly of unsafety.  I agree with the observations of Teague J in R v Pomeroy, 20 May 2002 at paragraphs 10 and 13 as to judicially acting on experience. 

1. Further, and in any event, for well known reasons, which I need not repeat, stated by Lord Shaw in Scott v. Scott[3] and by Gibbs J (as then he was) in Russell v. Russell[4] there are profound reasons for courts being open.

   [3](1913) A.C. 417 at 477.

   [4](1976) 134 C.L.R. 495 at 520.

1. As regards the second application, for an order under s.18(1)(c) prohibiting publication, that I consider is better to be determined by the Judge hearing the proceedings, because at that stage the material to be propounded in the proceedings under s.340(2) Legal Practice Act 1996 will be identified and known. At present it is not conclusively established what that material will be. Of course the order sought as to the closure of the court under s.18(1)(a) can be reactivated by Ms XY at the hearing when it comes on if she so desires.

1. As regards publication between now and the hearing, that is to say access to the Court file, I am not satisfied that I ought to make an order prohibiting access to the Court file in any holistic sense.  The file presently is marked 'Confidential.  Not to be searched without the approval of the Prothonotary'.  Further, within it there is material contained in a number of sealed envelopes marked 'Only to be opened by a Judge or by approval from the Prothonotary'.

1. The Court’s administration is alive to the need to observe strictly those requirements, and they are strictly observed.  I do not consider that any further steps are warranted additional to the procedures of the Court which are in place presently.  However, to reassure the applicant I shall send a memorandum to the Prothonotary to ensure that the Court's processes are at all times fully complied with.  Further, I am prepared to make myself available on a continuous basis to the Prothonotary if any question arises as to access to the Court file as to which the Prothonotary may wish guidance.  I shall do so from now until the final hearing.

1. At the final hearing, as I said to Ms XY this morning, there are a number of steps short of closure of the Court or prohibition of the whole of the proceedings which can meet a number of her concerns, including use of pseudonyms, prohibition of publication of names and other matters of sensitivity.[5]  Discretion can be adopted by the Court to ensure that so far as is possible, consistent with the necessary philosophy of open courts, the concerns of Ms XY are met.  I am confident that the Judge who hears the matter would be sensitive to those concerns and would be fully aware of the proper steps which can be taken to meet her concerns.

   [5]See generally, Nixon v Random House Australia Pty Ltd & Anor (2000) 2 V.R. 523.

1. For those reasons I am not persuaded to make either of the orders sought. Accordingly I refuse the relief sought under ss.18(1)(a) and 18(1)(c) Supreme Court Act 1986. I shall put in train the administrative discretionary matters that I have stated in relation to the Prothonotary and they will remain in place until the hearing of her appeal later this year.

(Discussion ensued.)

HIS HONOUR:  Costs are reserved.