Sims v Mackowiak Mackowiak v Mackowiak [2011] NSWSC 1496

Supreme Court New South Wales

Medium Neutral Citation: Sims v Mackowiak Mackowiak v Mackowiak [2011] NSWSC 1496 Hearing dates: 14/11/ 2011 Decision date: 29 November 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: Various deletions made to previous judgment and final order amended. Catchwords: Procedure. Protecting privacy to prevent identity theft. Need to have regard to the principal of open justice and the duty to give reasons and make factual findings. Category: Consequential orders Parties: Gemma Diane Sims (Plaintiff) Anna Mackowiak (Plaintiff) Roman Mackowiak (Defendant) Representation: Counsel: Mr J Kearney (Plaintiff Gemma Diane Sims) Plaintiff Anna Mackowiak in person Defendant in person Solicitors: Langes Lawyers (Plaintiff Gemma Diane Sims) Plaintiff Anna Mackowiak not represented Defendant not represented File Number(s): 2010/308995 2011/190749

JUDGMENT 1HIS HONOUR: There is an application for some deletions to be made to the published judgment which I gave in this matter on 8 November 2011. The parts of the judgment which Mr Roman Mackowiak wishes to have removed are set out in a transcript of an appearance before me on 14 November 2011. 2For the purpose of dealing with the matter I think I should at least refer to some of the principles which are applicable on the question of the court publishing its judgments and, hopefully, these will explain some of the matters to Mr Mackowiak. One of the important principles the court has to observe is the principle of open justice. The High Court recently discussed that principle in Hogan v Hinch (2011) 275 ALR 408. The Chief Justice said at paragraphs 20-22 the following: [20] An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute. [21] It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could "cause an entire destruction of the whole matter in dispute". Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the "keen public interest in getting blackmailers convicted and sentenced" and the difficulties that may be encountered in getting complainants to come forward "unless they are given this kind of protection". So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where "exceptional and compelling considerations going to national security" require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the state and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was "parental and administrative, and the disposal of controverted questions ... an incident only in the jurisdiction". Proceedings not "in the ordinary course of litigation", such as applications for leave to appeal, can also be determined without a public hearing. [22] It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings. 3There are a number of bases of this open justice rule. They include the following: 1. Exposure of the judicial system to public and professional scrutiny and criticism. 2. Avoidance of abuses by the courts. 3. Differentiation with administrative decision-making. 4. Maintenance of public confidence in the integrity and independence of the courts. 4In addition there is a long standing principle that a trial judge should give sufficient reasons so that if any party is dissatisfied with his judgment sufficient factual findings are available so that any appeal court can deal with an appeal on the trial judge's decision. 5Some of these principles are referred to in Russell v Russell (1976) 134 CLR 495 where Gibbs J said: " It is the ordinary rule of the Supreme Court ... that their proceedings shall be conducted "publicly and in open view" (Scott v. Scott). 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 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" (McPherson v. McPherson)." 6Importantly, the fact that various facts come to light contrary to a party's wishes is not enough to justify a departure from the open justice principle. In John Fairfax v The Local Court of New South Wales (1991) 26 NSWLR 131 at 142 Kirby P although dissenting said relevantly the following: "It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: see, eg, David Syme & Co Ltd v General Motors-Holden's Ltd (at 307); Raybos Australia Pty Ltd v Jones (at 58); R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 235; R v Bromfield , Malcolm CJ (at 22); Rockett v Smith , per Derrington J (at 7). A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported." 7This court has an anonymisation policy the purpose of which is to protect litigants in respect of personal information. This is to prevent identity theft in relation to litigants and witnesses involved in court proceedings. That is a matter which I have in preparing this judgment taken into account and it will be noted that throughout the judgment in respect of addresses of properties I have not included any street number. 8I will now deal with various aspects of the matter bearing in mind the request by the defendant. The first matter is at page 3 in paragraph 2 and the request there is that the street name to the property at Culburra Beach be removed. I have already removed the street number. Given that the request has been made and that this is a property of the deceased's brother, I will remove from the judgment at that paragraph the street name. 9In paragraph 4 there is a reference to a street name of a property at Glebe. That is a fairly lengthy street and none of the parties reside there and as the street provides a useful purpose of describing the location of the property in Glebe, I will not remove that reference. 10The next matter is page 4 at paragraph 8. There I talk about the superannuation and its quantification. There is a request to remove the amount of that quantification. That cannot be removed. It is an essential part of the judgment and is a necessary factual finding to preserve the rights on appeal. 11In paragraph 11 at the bottom of page 4 there are properties at East Kurrajong and Carramar. As they are connected with the litigant I will remove the street names of both properties. The next matter is a reference on page 5 paragraph 15 which describes the early history and migration of the family to Australia. That is a relevant part of the historical background and I refuse to remove that reference. 12The next part is at page 6 paragraphs 22, 23 and 24. That deals with an unfortunate situation that occurred in this case. The defendant has a view that this is not an accurate factual finding but that is a matter for any appeal. The findings set out are the minimum necessary to put the appropriate background to this matter. In reducing it to this amount I was very conscious of the hurt that might occur to the family but, however, these remaining matters in paragraphs 20 2, 23 and 24 are my factual findings and have to remain. 13The next one is Page 12 paragraph 43. That sets out income-tax return figures for the first defendant and his wife. That was a necessary part of my reasoning and must remain to preserve any appeal rights. 14The next one is at page 19 at paragraph 80. That does contain the street name for the Carramar property and I will delete the street name from that but, otherwise, the paragraph should remain. 15There is an application to clarify and amend the orders which I made on 8 November and in particular order 2 where I ordered the plaintiff, Gemma Diane Sims, must indemnify the estate in respect of any liability under the mortgage over the Glebe property. For the sake of clarity, it is sought to include the words, "from the date of this order onwards and from that date is to have the benefit of any income received by way of rental from the Glebe property". I have explained this to the defendant and he says that he would like the indemnity to be over the whole period and for the past. When I was considering the matter those past transactions were ones which I took into account in formulating the order. 16Accordingly, particularly having regard to the date to which the order speaks, see McLeod v Johns (1981) 1 NSWLR 347, I think it is appropriate to make that amendment and I so order.