Coryell Holdings Pty Ltd ATF The Walters Family trust & Ors v Braden Kenneth Walters & Anor. [2015] NSWSC 1453

Supreme Court New South Wales

Medium Neutral Citation: Coryell Holdings Pty Ltd ATF The Walters Family trust & Ors v Braden Kenneth Walters & Anor. [2015] NSWSC 1453 Hearing dates: 30 September 2015 Date of orders: 30 September 2015 Decision date: 01 October 2015 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Consent orders made Catchwords: PRACTICE AND PROCEDURE – Confidentiality or anonymisation order – Whether appropriate to make at outset of proceedings before material is tendered or otherwise deployed Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Category: Procedural and other rulings Parties: Coryell Holdings Pty Ltd ABN 59 003 088 597 ATF The Walters Family Trust (First Plaintiff) Robert Bruce Walters (Second Plaintiff) True Property Management Pty Limited ABN 70 112 291 157 (Third Plaintiff) True Property Pty Limited ACN 158 874 867 ATF The True Property Unit Trust (Fourth Plaintiff) Braden Kenneth Walters (First Defendant) Nolte Investments Pty Ltd ATF The Braden Walters Family Trust (Second Defendant) Representation: Counsel: V.M. Heath (Plaintiffs) M. Pesman SC (Defendants)

Solicitors: Jemmeson & Fisher (Plaintiffs) File Number(s): 2015/284876 Publication restriction: No

judgment 1. This matter came before me yesterday in the Duty List. 2. The parties agreed consent short minutes, which I indicated should be sent electronically to my chambers. An electronic version of what the parties proposed was provided to my Associate later in the afternoon. One of the proposed orders did not seem to me to be appropriate to make. Having relisted the matter and heard Ms V.M. Heath of Counsel for the plaintiffs, I indicated to the parties that I would make the consent orders but without the order which had caused me to relist the matter. These reasons explain why the Court declined to make that order. 3. Putting the matter very broadly, these proceedings concern, at least in part, a rent roll. In support of their application for interlocutory relief the plaintiffs filed an affidavit which includes a confidential exhibit and annexure setting out the clients' names and addresses on that rent roll. There is also what is described as a "confidential schedule" attached to the statement of claim. 4. The plaintiffs' motion for interlocutory relief included this prayer: 4. An order that the names and addresses of the persons referred to in the confidential schedule to the statement of claim and the confidential exhibits to the affidavit of the second plaintiff dated 28 September 2015 not be published. 1. The parties proposed this order be made by consent: Order 4 of the plaintiffs' notice of motion dated 29 September 2015, in the intent that any record of or the reasons for judgment published on the CaseLaw website or otherwise not disclose the clients' names and addresses referred to in the Confidential Exhibit and Annexure to the affidavit of the second plaintiff made 28 September 2015. 1. When I relisted the matter, I raised with Ms Heath what precise order the parties wanted the Court to make about non-publication. She candidly explained that her clients were concerned not so much about confidentiality of the information inter partes (given that the relevant names and addresses were known to the parties) but rather to the extent that any such information might be included in any judgment or orders of the Court. 2. I declined to make either form of the orders sought because it was neither necessary nor appropriate at this stage of the proceedings. 3. The proceedings have just been commenced. Insofar as the Court's file includes the statement of claim and the affidavit, the proceedings have not been heard and the affidavit has not been read. Access to that material is restricted to the parties, except with the leave of the Court (Supreme Court Practice Note SC Gen 2). Once material is deployed in Court then, to the extent it is confidential, it can be protected under the Court's inherent jurisdiction, pursuant to legislation such as the Court Suppression and Non-publication Orders Act 2010 (NSW) and, insofar as judgments and orders are concerned, under the Court's Identity Theft Prevention and Anonymisation Policy (which is available on the Court's website). It is therefore unnecessary for any order to be made now. 4. It would also be inappropriate to make such an order now because in the ordinary course the time for making any such order is when material is sought to be tendered or otherwise used in proceedings. At that point the appropriate source of power can be identified. Furthermore, to the extent the Court is satisfied that any order should be made, it can be crafted to ensure the minimum intrusion into the fundamental principle of open justice having regard to how the material is proposed to be used. 5. The Court therefore made the consent orders sought by the parties, but without an order in either form set out in paragraphs [4] and [5] above.