Appellant v Respondent

2 The appellant resisted the application on the basis of an asserted legal professional privilege pursuant to s 118 of the Evidence Act 2008. The respondent submitted the documents had been prepared in furtherance of a fraud and that s 125 of the Evidence Act 2008 therefore operated to exempt them from the exclusionary rule contained in s 118.

3 On 9 December 2013 Chief Magistrate Lauritsen held there were reasonable grounds for finding that the fraud had been committed and that the documents sought by the respondent had been prepared in furtherance of same.[1] It follows that his Honour ordered the release of the documents. The substantive appeal I am now hearing goes, in substance, to the admissibility of evidence adduced by the respondent to establish those reasonable grounds.

4 Mr Hoyne, who intervenes on behalf of Nationwide News Pty Ltd ('Nationwide News'), seeks access to affidavits filed in the Magistrates' Court for the purposes of the proceedings that are now the subject of this appeal ('the relevant affidavits'). Nationwide News identifies the relevant affidavits by reference to a supplementary affidavit of Avi Furstenberg filed in these proceedings on 3 March 2014 and in which they are enumerated.

• the affidavit of Detective Sergeant Ross Mitchell sworn 6 September 2013, and;

• the Affidavit of Detective Sergeant Ross Mitchell sworn 6 September 2013;

• the affidavit of Nicholas Jukes sworn 29 October 2013;

• the Affidavit of Ian Cambridge sworn 30 October 2013;

• the affidavit of Joseph Trio sworn 31 October 2013;

• the Affidavit of Michael Smith sworn 31 October 2013;

• the Affidavit of James McDonald sworn 4 November 2013, annexing three police statements made by Ralph Edwin Blewitt; and

• the Supplementary Affidavit of Detective Sergeant Ross Mitchell sworn 6 November.

6 At the Magistrates' Court hearing on 2 December 2013, Nationwide News and one other news organisation sought access to the relevant affidavits. On 9 December 2013, the learned Chief Magistrate ruled on the substantive application that was then before him and, with it, the ancillary application for the release of the affidavits. His Honour refused the ancillary application.

7 A notice of appeal against the substantive application was filed on 16 December 2013. On 6 June 2014 the plaintiff filed a courtbook in support of this application which contains the relevant affidavits.

8 Nationwide News now seeks access to the relevant affidavits pursuant to r 28.05 of the Supreme Court General Civil Procedure Rules 2005 which provides as follows:

1. When the office of the court is open any person may, on payment of the proper fee, inspect and obtain a copy of any document filed in a proceeding;
2. 2. Notwithstanding Paragraph 1 -

(a) no person may inspect or obtain a copy of a document which the court has ordered remain confidential;

(b) a person not a party may not, without the leave of the court, inspect or obtain a copy of a document which in the opinion of the prothonotary ought remain confidential to the parties.

9 Victorian courts proceed on the basis that this rule expresses the public's right to inspect documents filed with the Court and although the right may be subject to an order to the contrary, that is the prima facie position.[2]

10 Mr Aghion for the appellant in the substantive proceedings objects to the release of the affidavits on a procedural and a substantive basis. The respondent makes no similar objection.

11 The appellant's procedural point is that the intervener's request for the documents amounts to a collateral attack on the decision of the learned Chief Magistrate on 9 December refusing the application for release of the affidavits. An appropriate forum for a challenge to this decision, the appellant submits, would be an appeal or judicial review proceedings although the form of the application or appeal would be a matter for the intervener. No such proceeding has commenced and, in any event, would probably be out of time.

12 The upshot of all this, the applicant submits, is that this Court should not now revisit the decision of the learned Chief Magistrate save but to the extent that there has been a change in circumstances justifying the renewed exercise of the discretion. The substantive point went to rebut the proposition that there had been such a change of circumstances since 9 December.

13 In my view, the procedural point is misconceived in the sense that Nationwide News' prima facie right to inspect or obtain a copy of the affidavits under r 28.05 arises not because the affidavits were filed in the Magistrates' Court, but because they have been filed in the substantive proceedings before me as part of the appellant's court book. Because relevant affidavits have been filed in this Court r 28.05, which ensures the accountability of this Court in this proceeding, will still have had work to do regardless of the outcome of this appeal.

14 The question, then, is whether I ought order the documents remain confidential pursuant to r 28.05(2)(a).[3] To succeed in an application for a confidentiality order, the party objecting to the inspection or copying of documents must demonstrate that it would be seriously compromised or adversely affected if the order were not made.[4]

15 The appellant characterises the adverse effect access to the affidavits would have on him in this way: The affidavits contain wide ranging allegations of fraud against him personally in circumstances where no formal charges have been laid. To allow this material to be inspected, copied and ultimately publicised would prejudice the fairness of a future trial, should there be one.

16 I am not satisfied that the appellant would be so adversely affected that I should make a confidentiality order for the following reasons.

17 Rule 28.05 is founded on the principle of open justice which protects the public's right to be informed of and to monitor court proceedings. That principle sets the bar high.

18 There is merit to the argument that if the media is going to report on these proceedings, and I consider it is possible that they will do so, the appellant's interests will be better served if those reports are accurate in their description of the material before the Court, rather than based in speculation.

19 At least some of this material is already in the public domain. I take judicial notice of the fact that at least one of the Blewitt statements which is exhibited to the McDonald affidavit dated 4 November 2013 is publicly available on the website for the ongoing Royal Commission into Trade Union Governance and Corruption. Mr Blewitt has given evidence before the Royal Commission which has been widely reported and which canvasses subject matter from all three of his witness statements.

20 It follows from the reasons that I have expressed that I am not satisfied that a confidentiality order ought be made. It seems to me that a significant if not dominant proportion of the prejudice that is asserted on behalf of the appellant is prejudice that is academic given the events of the past few days at the Royal Commission. I therefore decline to make the order sought, that the documents remain confidential.

[1] Evidence Act 2008, 125(2).

[2] Re a Former Officer of ASIO [1987] VicRp 70; [1987] VR 875 at 878; XYZ 1 v Victoria [2001] VSC 233; Re Proceeding No 291 of 1944 [2006] VSC 50 at [13]; Re Proceeding 1342/1958 [2010] VSC 291; In the matter of Japara Holdings Pty Ltd; Japara Holdings Pty Ltd v Rouse [2010] VSC 361 ('Jaspara Holdings'); Re Proceeding No 1364 of 1964 [2010] VSC 494; Re Proceeding No 1451 of 1952 [2011] VSC 545.

[3] In a sense it is really the appellant who brings this application, having been put on notice of Nationwide News' intention to inspect or copy the affidavits.

[4] Jaspara Holdings [2010] VSC 361.