New South Wales Supreme Court CITATION : AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290 HEARING DATE(S) : 26 October 2009 JURISDICTION : Equity Division Expedition List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 26 October 2009 DECISION : Proceedings to be conducted in closed court CATCHWORDS : PRACTICE & PROCEDURE – judgments & orders – suppression orders – application to restrain publication of imputations on basis of breach of confidence and injurious falsehood – where conduct of proceedings in open court would frustrate purpose of proceedings LEGISLATION CITED : (NSW) Civil Procedure Act, 2005 s 71 CATEGORY : Procedural and other rulings Arnotts Ltd v Trade Practice Commission (1990) 24 FCR 313 Chappell v TCN Channel 9 Pty Limited (1988) 14 NSWLR 153 CASES CITED : David Syme & Co Ltd v General Motors Holden [1984] 2 NSWLR 294 Scott v Scott [1913] AC 417 W v M [2009] NSWSC 1084 AMI Australia Holdings Pty Ltd (first plaintiff) Advanced Medical Institute Pty Ltd (second plaintiff) PARTIES : Fairfax Media Publications Pty Ltd (first defendant) Rita Almohty (second defendant) Kelly Burke (third defendant) Kate McClymont (fourth defendant) FILE NUMBER(S) : SC 3219/09 COUNSEL : Mr M Green w Dr E M Peden (plaintiffs) Mr D R Sibtain w Mr M A Polden (first, third & fourth defendants) Bruce Stewart Dimarco (plaintiffs) SOLICITORS : Johnson Winter & Slattery (first, third and fourth defendants) TressCox Lawyers (second defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Monday 26 October 2009 3219/09 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd & Ors JUDGMENT (ex tempore – on application to conduct proceedings in a closed court) 1 HIS HONOUR: (NSW) Civil Procedure Act 2005, s 71, provides that subject to any Act, the business of a Court in relation to any proceedings may be conducted in the absence of the public in any of a number of specified circumstances, including: (b) if the presence of the public would defeat the ends of justice; and (f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit. 2 Primarily, s 71 reflects the common law rule that courts ought to conduct their hearings in public. That common law principle has, however, always been subject to a number of exceptions, which I sought to explain and summarise in W v M [2009] NSWSC 1084, in the following terms: Accordingly, at Common Law, the open justice principle is subject to an exception where publication would defeat the ends of justice. 3 One well established circumstance is where the litigation is "as to a secret process": see Scott v Scott [1913] AC 417; David Syme & Co Ltd v General Motors Holden [1984] 2 NSWLR 294; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313. Sometimes, an order has been made for hearing at least of part of the proceedings in closed Court in the context of an application for an injunction restraining the publication of a defamation: Chappell v TCN Channel 9 Pty Limited (1988) 14 NSWLR 153, 156; W v M [23]. 4 In the present case, injunctive relief is sought to prohibit the publication of imputations which are said, in part, to be derived from breaches of confidence, and, in part, to be false. It is not possible, at this stage of the proceedings, to predict whether that case will ultimately be made out in whole or in part or not at all. If, however, it were ultimately made out, but the proceedings were in the meantime conducted in open Court without any restriction on publication, then the purpose of the proceedings would have been defeated before the allegations in them were tested, as the imputations would be made known to those in Court and those in Court would be at liberty to circulate them. 5 In that sense, the case is closely analogous to the situation which I considered in W v M – although that was perhaps a stronger case, because orders had already been made prohibiting the defendants from publishing the matter in question, and a prima facie case of defamation and of contempt had been established on an interlocutory basis. However, the present case is not that far removed, because although there has not been a contested interlocutory hearing, the imputations have been suppressed, to this point, by agreed interlocutory orders and arrangements. The purpose of those regimes would be frustrated and defeated if these proceedings were now conducted in a manner in which the imputations were aired in open Court. 6 I have considered whether, short of conducting proceedings in closed Court, some other mechanism – such as a non-publication order could be put in place – which might permit the Court to remain open while at the same time preventing or prohibiting publication of the imputations. But it seems to me that, given that if the Court were open it would be open to all, and the Court would not be in a position to be able to identify and control who might enter and who might have notice of any non-publication order, that would not be a satisfactory solution. It also seems to me that requiring counsel, witnesses and the Court to use veiled speech during the hearing would not be in the interests of justice. In effect, such a course would still seek to conceal from the public what was at the heart of the proceedings, while going through the pretence of conducting them in open Court, while at the same time imposing additional difficulties on the conduct of the proceedings. 7 As grave a step as it is – and it is one that I embark upon with considerable hesitation – it seems to me that the fundamental point is that the relief sought in the proceedings would be rendered futile if the proceedings were not conducted in a closed Court. To decline to accede to the plaintiff's application, that the proceedings be conducted in a closed Court, would effectively be to say to the plaintiff, and to all plaintiffs in a like position, regardless of their merits, that they are wasting their time in seeking injunctive relief in this context, because the matter will be conducted in public in any event. That, I think, illustrates that this is a case in which publication would defeat the ends of justice, so as to attract the exception both at common law and under s 71. 8 My decision to conduct the proceedings, at least at this stage, in a closed court is not a final one, in the sense that it can be kept under review during the course of the proceedings and if it becomes apparent that such a course is no longer appropriate, the position can be reviewed, at the end of or even during the proceedings, and the question of access to documents and transcripts, if necessary in a redacted form, can also be considered. 9 Pursuant to Civil Procedure Act, s 71 (b) and (f), I order that the proceedings be conducted in the absence of the public. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.