Lavin v Toppi (No 2) [2016] FCA 818

FEDERAL COURT OF AUSTRALIA

Lavin v Toppi (No 2) [2016] FCA 818 File number: NSD 692 of 2016

Judge: GLEESON J

Date of judgment: 13 July 2016

Catchwords: PRACTICE AND PROCEDURE – application for non-publication order – whether the order is necessary to prevent prejudice to the proper administration of justice –application refused

Legislation: Federal Court of Australia Act 1976 (Cth)

Cases cited: D1 v P1 (No 2) [2012] NSWCA 440 Hogan v The Australian Crime Commission [2009] FCAFC 71; (2009) 177 FCR 205

Date of hearing: 13 July 2016

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Category: Catchwords

Number of paragraphs: 16

Counsel for the Applicant: Mr GD McDonald

Solicitor for the Applicant: Gavin Parsons & Associates

Counsel for the Respondents: Mr M Pesman SC with Mr C Alexander

Solicitor for the Respondents: Beazley Boorman Lawyers

ORDERS NSD 692 of 2016

BETWEEN: DOLORES LAVIN Applicant

AND: PAOLA TOPPI First Respondent

NEIL CUNNINGHAM Second Respondent

JUDGE: GLEESON J DATE OF ORDER: 13 JULY 2016

THE COURT ORDERS THAT:

1. The application for a non-publication order is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GLEESON J: 1 Mr McDonald, on behalf of the applicant, has proposed short minutes of order by consent which include a non-publication order in respect of most of [29] of the reasons for judgment of Manousaridis J in Paola Toppi & Anor v Dolores Lavin [2016] FCCA 830. 2 The Court's power to make a non-publication order is contained in s 37AF of the Federal Court of Australia Act 1976 (Cth) ("the Act"). Section 37AF of the Act is as follows: (1) The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or (b) information that relates to a proceeding before the Court and is: (i) information that comprises evidence or information about evidence; or (ii) information obtained by the process of discovery; or (iii) information produced under a subpoena; or (iv) information lodged with or filed in the Court. (2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1). 3 It is not clear that this provision includes the power to make a non-publication order in respect of a judgment of the Federal Circuit Court of Australia ("FCCA"). Rather, the power relevantly extends to orders in respect of information that relates to a proceeding before the Court and satisfies one of the criteria in s 37(1)(b)(i) through to (iv). I will proceed on the assumption that this Court can make an order under s 37AF in respect of the information that is contained in the relevant portions of [29] of the FCCA judgment, and that the applicant seeks an order to this effect. 4 By s 37AG(2), a suppression order or a non-publication order must specify the ground or grounds on which the order is made. In this case, it is suggested that the order is necessary to prevent prejudice to the proper administration of justice. 5 There is no evidence before the Court from Ms Lavin about the impact on her if the order is not made. 6 The relevant information consists of a history given to Dr Adams, psychiatrist, for the purposes of obtaining an expert report from him. At the beginning of his report, Dr Adams states that he informed Ms Lavin that any information she provided would not be confidential and that Dr Adams formed the opinion that Ms Lavin understood this and she consented to continue with the interview and the preparation of a psychiatric report. 7 The submission is that the information is "extremely personal and private". But, on the basis of Dr Adams' statement, the information was not provided to him in the expectation that it would be treated as confidential. To the contrary, it was provided after Dr Adams had said that it would not be confidential. It was provided for the purpose of being deployed in litigation, namely, in support of an application for discharge of an examination summons. 8 To date, the information has not been published because Ms Lavin secured interim orders preventing this, and the application for discharge of the examination summons was heard in closed court. So far as I was informed, the FCCA judge did not give reasons for closing the court, but it appears from the transcript that the order was made having regard to the facts that there were no members of the public in the court room, the respondents were not in court and it was practical, or was perceived to be practical, in order to enable the matter to proceed. 9 In Mr McDonald's written submissions, he submitted that the courts have been more inclined to make suppression orders in circumstances where the hearing was in closed court and there have been confidentiality orders by reason of which the relevant information has not been read openly, citing Hogan v The Australian Crime Commission [2009] FCAFC 71; (2009) 177 FCR 205 at [4] per Moore J. Paragraph 4 of Moore J's reasons states: The genesis of the s 50 order which provided the protection at the time of the tender was a judgment of Allsop J of 21 November 2005: C v Australian Crime Commission [2005] FCA 1736. It is apparent from his Honour's reasons for judgment that he was dealing with two notices of motion seeking orders under the section. One was a motion of the present applicant, the other a motion from the respondents. It is also apparent that the orders were made in the application of the respondents for the reasons advanced by the respondents, namely that the disclosure of information would prejudice its investigations: see [20] and [21]. Also, it is clear that his Honour would not have made orders under the section on the application of the present applicant on the grounds that the revelation of information concerning the applicant might damage his reputation. It was not suggested in these proceedings that any subsequent consideration was given to the foundation of the later orders made under s 50 on the application of both the applicant and the respondents. It would appear both sought such orders on the footing that the rationale for them had been established in November 2005 by Allsop J. That continued to be so at the time the s 50 order was made on 19 May 2008. 10 I do not accept that the Full Court decision in Hogan supports a proposition that the Court would be inclined to make a suppression or a non-publication order in the circumstances of this case. 11 In Hogan, the documents in question were tendered with the protection afforded by a non-publication order and only lost that protection because the order was later revoked. Those circumstances are not precisely on all fours with the case here. In particular, although the closed court order was made, no final non-publication order had been made in respect of the relevant documents. Ultimately, of course, the Full Court concluded, and the High Court in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 concluded, that the relevant documents were not entitled to the benefit of a non-publication order, because they had been deployed by Mr Hogan. To that extent, that case is similar to this case. 12 In my view, the FCCA judge's decisions to hear the matter in closed court and to make an interim non-publication order without more, are insufficient to support a conclusion that a non-publication order is necessary to prevent prejudice to the proper administration of justice in this case. 13 In his submissions, Mr McDonald contended that it would promote the proper administration of justice if a reader of the FCCA judgment "formed the view that the Court is prepared, under the right circumstances, to maintain confidentiality in respect of such personal and private material, and therefore such readers, if ever a party to litigation, were [sic – would be] more prepared to give evidence or to be more fulsome, frank and honest in their disclosures to an expert". 14 I do not accept that proposition but, even if I did accept that proposition, it is far from clear that the "right circumstances" include the circumstances in this case. I am not satisfied that publication of the information contained in [29] of the FCCA judgment will prejudice the proper administration of justice in any way. To the contrary, the proposed order is sought so that information which is recorded in the judgment will be redacted from those reasons. In my view, that is a matter which would tend to prejudice the proper administration of justice because it would mean that the full suite of reasons of the judge are not published. 15 In my view, the mere fact that a redaction would not be so substantial as to render the reasons of judgment meaningless does not mean that a redaction would not be prejudicial to the proper administration of justice because it necessarily means that the public is not privy to the entirety of the reasons of the judge: cf. D1 v P1 (No 2) [2012] NSWCA 440 at [6] and [7]. 16 Accordingly, the application is refused. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.