Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia

REASONS FOR JUDGMENT 1 The Court is presently engaged in the conduct of an examination of Mr James Selim. 2 That examination has been ordered pursuant to s 46 of the Federal Court of Australia Act 1976 (Cth). The Order pursuant to that section has been made in each of the proceedings now before the Court. A transcript of the examination, together with a video recording, is being prepared. 3 At the outset of the examination, Senior Counsel for the Applicant in matter number NSD 1991 of 2008 (namely, Pharm-a-Care Laboratories Pty Ltd ("Pharma-a-Care")) made an oral application that the examination proceed only in the presence of the parties and their legal representatives. The Applicants in the other proceedings, with the exception of Vita Health Laboratories (Australia) Pty Ltd, supported the application made by Pharm-a-Care. The Respondents neither opposed nor supported the course pursued by the Applicants. 4 In support of the order sought, reliance was placed upon the terms of Order 24 r 5(1) of the Federal Court Rules and the decision of Her Honour Justice Bell J in Eubanks (for the United States of America) v Cannar [2003] NSWSC 1267 ("Cannar"). Reliance was also placed upon the fact that the answers given during the course of the examination were not as yet evidence in the proceedings in which the examination has been ordered: cf. Eringa No 1 Native Title Claim v The State of South Australia [2007] FCA 182 at [7] per Mansfield J. 5 Order 24 r 5 provides as follows: Conduct of examination (1) The examiner shall permit each party and any legal practitioner representing the party to attend the examination. (2) Subject to this Order, the proceeding before the examiner shall be in accordance with the procedure of the Court. (3) A person examined before an examiner may, unless the Court otherwise orders, be cross‑examined and re‑examined. (4) The examination, cross‑examination and re‑examination of a person before an examiner shall, unless the Court otherwise orders, be conducted in like manner as at a trial. (5) The examiner may put any question to a person examined before him as to: (a) the meaning of any answer made by that person; or (b) any matter arising in the course of the examination. (6) The examiner may adjourn the examination from time to time or from place to place. The rule being construed by Her Honour, being Part 27 r 5 of the Supreme Court Rules 1970 (NSW)was in similar terms to the rule of this Court. 6 In Cannar an examination of a witness was conducted at the request of the United States of America. The application before Her Honour was inter alia an application to vary an order previously made so that the examination could proceed in camera. The making of such an order was opposed by the Respondent. Reference was made to the public interest and the practice of conducting proceedings of superior courtsin public. The importance of the public interest is well-recognised: Scott v Scott [1913] AC 417. 7 In making the order sought, Her Honour relevantly concluded as follows: [20] The respondent submitted that the reasons favouring the conduct of an examination being held in public were strengthened in the case of an examination conducted by a Judge of this court. I am not persuaded that this is the case. Part 27 r 5(1) refers to "the examiner". The reference is to an examiner being a Judge of this court or being a person appointed who is not a Judge of this court. When the SCR seek to distinguish between examinations conducted before a judge and those conducted before a person not being a judge, they are explicit: Pt 27 r 7(2). [22] I am not persuaded that the provisions of Pt 27 r 5(1A) and (3) support the construction for which the respondent contends. In this respect I note the commentary and the cases therein cited in Richie's Supreme Court Procedure at [27.5.1]. It does not seem to me that the principles of open justice that the respondent calls in aid have application to an examination pursuant to an order made under s 33 of the Act. The evidence of the applicant is to be taken and the record of it transmitted to the United States District Court for the District of Columbia. It may be that the record of the examination will be tendered in the US proceedings. In the event that it is tendered at the trial and admitted it will become public as evidence in those proceedings. [23] The proceedings before this court are those by which the plaintiff claims the examination order. The public has an interest in these proceedings and in knowing how it is that this court deals with a request for judicial assistance from a foreign court. I am not persuaded that the public of New South Wales has an interest in the examination of the applicant in respect of proceedings in the US District Court prior to the answers that he gives to questions that may be asked of him becoming evidence in those proceedings. …. I consider that the appropriate course is to vary the orders made by James J so as to provide for the hearing of the examination to be held in camera. 8 In the present proceedings, there was considered to be no relevant distinction between the rules of this Court and those of the Supreme Court that were then in force that would preclude the order sought by Senior Counsel for Pharm-a-Care from being made. The reasoning of Her Honour, it was respectfully considered, was equally applicable to the Rules of this Court. The Order made this morning, however, was expressly made "until further order". 9 Upon the Order being made, the examination of Mr Selim proceeded only in the presence of the parties and their legal representatives in each of the proceedings. It is intended to continue the examination on Friday 5 March 2010 at 11.00 am. 10 An oral application is now made on behalf of Fairfax Media Publications Pty Ltd ("Fairfax Media") to set aside the order made this morning. The bases upon which that application is made are as follows: (i) that no inference should be drawn that the specification of persons in Order 24 r 5(1) is an exhaustive identification of those persons who may be present during an examination; (ii) Order 24 r 5(2) mandates that examinations "shall be in accordance with the procedure of the Court", including the procedure recognising the importance of the public interest; (iii) the decision in Cannar is distinguishable by reason of the public interest in the reporting of an examination that is incidental to a hearing presently before this Court, as opposed to an examination conducted for the purposes of an overseas Court; and (iv) Order 24 r 5 leaves unto the Court a residual discretion as to those persons who may be present during an examination. 11 Notwithstanding the care with which the application was presented, it is considered that there should be no variation of the Order as already made. 12 The public, it may be assumed, may have a significant interest in the questions and answers being put during the course of the current examination. But the public interest, it is considered, must await satisfaction at the hearing. In the absence of an application being made to the contrary, that hearing will be conducted in public. The simple fact is that that hearing has not yet commenced, the current examination need not be before a Judge of this Court, and need not be conducted in a courtroom. As has long been recognised, the "place where an examiner sits is not a public Court": Re Western of Canada Oil, Lands and Works Company (1877) 6 Ch D 109 at 110. Until such part of the examination as is sought to be tendered in evidence (if any) at the hearing, the questions and answers given during the course of the examination today are simply not evidence in any proceeding. Order 24 r 5, it is considered, evidences an intention as to the persons who may be present and, inferentially, those who may not be present. 13 If Order 24 r 5 permits the exercise of a discretion, that discretion would have been exercised adversely to Fairfax Media. The reporting of a hearing conducted before a court in public is undertaken in the context of the giving of evidence in chief and cross-examination. A balanced account of such a hearing is then possible. Reporting of an examination where the person being examined has not been given an opportunity to first set forth his account of the facts would be a far different exercise. It has the real potential to be fundamentally unfair to the person being examined and the even greater potential to present an account which is far from balanced. 14 The oral application made by Fairfax Media is thus rejected with Fairfax Media to pay the costs of its application. ORDERS 15 The Orders of the Court are: 1. The application made by Fairfax Media Publications Pty Ltd is rejected. 2. Fairfax Media Publications Pty Ltd is to pay the costs of its application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

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