Plaintiff v First Defendant

Supreme Court of Victoria|2017-08-24|Before: J FORREST J

PRACTICE AND PROCEDURE - Approval of compromise of a person under a disability - Obtaining copies of documents filed in a proceeding - Presumption in favour of inspection of all documents on a court file - Rule 28.05(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Open Courts Act 2013 (Vic) - Civil Procedure Act 2010 (Vic) - Confidentiality of some documents kept on court file - Whether genuine public interest in material - Redaction of parts of the order approving the compromise - Confidentiality of materials used in support of the application for approval of compromise - Continuation of pseudonym order.

For the Commonwealth and the Minister for Immigration and Border Protection

1 On 26 April 2017, I approved the compromise of the claim of AS against the defendants, the Minister for Immigration and Border Protection (the Minister) and the Commonwealth of Australia (the Commonwealth). The nature of the claim is set out in a number of earlier rulings.

2 The issue that has now arisen is whether the full terms of that order (contained on the Court file) approving the settlement, should be available for inspection by the public (including, of course, media organisations).

3 In addition, AS and the defendants have requested that a number of documents on the Court file, as well as the precise details of the settlement, be kept confidential. This would result in significant parts of the file being sealed and unable to be inspected by members of the public or the media, absent an application to the Court.

4 Although the parties were in furious agreement as to the sealing of parts of the file, and I suspect regarded this course as a formality, I have taken a different view.

5 In my opinion, the Court (or, as will be seen, the Prothonotary) must be affirmatively satisfied that it is in the interests of justice to preclude or redact parts of a court file. The principle of open justice does not stop upon leaving the court. Rather, it extends to the filing of documents used by the parties in litigation conducted in an open court. There are, however, limits to that principle which were relied upon by the parties in this application - particularly in a case involving a person under a disability, such as AS.

6 Ultimately, I am persuaded that it is in the interests of justice to make the orders sought by the parties and my reasons now follow.

7 AS is now nine years of age and is a person under a disability (by reason of her age) within the meaning of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules). Her claim against the defendants was brought by her litigation guardian, Sister Marie Theresa Arthur.

8 On 15 August 2014, John Dixon J ordered that the plaintiff - who was then six years old - be referred to by the pseudonym 'AS'.

9 On 28 March 2017, I ordered that any non-party seeking to inspect the court file must make an application to the court setting out the purpose of such inspection, and that the parties to the proceeding then be given an opportunity to be heard on any such application, before leave to inspect the court file is granted.

10 On 26 April 2017, in addition to approving the compromise of the proceeding, I further ordered that the transcript of the hearing of the application to approve the compromise and any medical reports filed in relation to A.S. remain confidential. The question of sealing parts of the court file was adjourned.

11 On 16 June 2017, I heard argument as to whether a number of the documents filed with the Court should be kept confidential.

12 Rule 15.08 of the Rules deals with the approval of compromise of persons under a disability:

(1) Where in a proceeding a claim is made by or on behalf of or against a person under disability, no compromise, payment of money or acceptance of an offer of compromise under Order 26, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court.

(2) Application for approval shall be by summons filed not later than 30 days after the compromise, payment or acceptance.

(2.1) A copy of an affidavit in support of the application shall not be served.

(3) The Court may dispense with the requirement of a summons where application for approval is made at the trial of the proceeding.

(4) On the application, evidence shall be given of the date of the compromise, payment or acceptance and the date of birth of the person under disability, and the dates shall be stated in any order approving the compromise, payment or acceptance.

(5) Where the acceptance of an offer of compromise is approved, the person under disability shall be taken to have made or accepted the offer at the time of approval.

(6) Where an order is made approving a compromise by which money is to be paid to a person under disability, the forms of order in Forms 15A and 15B shall, where appropriate, be used.

13 Rule 28.05(2) deals with the inspection of documents on the court file:

(1) When the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding.

(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 leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary ought to remain confidential to the parties.

14 At a hearing on 16 June 2017, oral submissions were made by counsel on behalf of AS, the defendants and the third party, IHMS. The defendants also filed written submissions in relation to the application for confidentiality, with a proposed form of order.

Orders 1 and 2 of the Orders of the Honourable Justice J Dixon of 15 August 2014 are to remain in force until further order.
Subject to any further or other Order of the Court, pursuant to Rule 28.05 of the Rules:

any medical reports filed in the proceeding relating to the Plaintiff or her family members; 2. any outlines of evidence or expert reports filed by the Parties;

any exhibits or schedules to affidavits filed in the proceeding;[1]

the following affidavits not read in the proceeding: 1. Affidavit of Tim Conboy, affirmed 10 February 2017; 2. Affidavit of Jillian Flinders, sworn 17 February 2017; 3. Affidavit of Nicole Lees, affirmed 14 March 2017; 4. Affidavit of Nicole Lees, affirmed 15 March 2017; and 5. Confidential affidavits of proposed witnesses sworn by Greg King, dated 1 February 2016, 30 March 2016 and 30 June 2016 [sought by IHMS and not opposed by the Defendants] 2. the Plaintiff's draft court book index of 8 March 2017 and further draft court book index of 13 April 2017; 3. the written consent of the litigation guardian attached to the certificate concerning the appointment of the Plaintiff's litigation guardian dated 26 August 2014; 4. the transcript of the in camera hearing of the application to approve the compromise on 26 April 2017; and 5. the unredacted Form of Order made 26 April 2017, a redacted copy of which is attached to this Order; 6. the outlines filed by the Plaintiff in relation to the adequacy of the settlement sum;[2] 7. the Defendant's court book index;[3]

shall remain confidential other than to the Plaintiff (including the Litigation Guardian) and their legal representatives and the Senior Master's staff for the purpose of any application in relation to the management of the funds in Court.

A redacted copy of the General Form of Order made on 26 April 2017 as attached to this Order can be placed on the public court file.
The Parties to this proceeding be notified of any application to vary paragraph 2 above so as to permit inspection of those parts of the file to which paragraph 2 would otherwise apply and be given an opportunity to be heard before the order is varied or leave to inspect given.
Subject to paragraph 4 above, the Orders of the Honourable Justice J Forrest on 28 March 2017 are otherwise set aside.

16 The appropriate starting point is to note that, as far as I am aware, there is no standard practice in this State in relation to file confidentiality in the case of an approval of compromise of a claim of a person under a disability. Sometimes orders may be made by a Judge or an Associate Justice ordering that the whole or part of the file remain confidential - on other occasions there is no such order. In most cases it makes no difference as there is no public or media interest in the settlement of such claims, and it is accepted that the officers of the Funds in Court division of the Supreme Court (supervised by the Senior Master) require access to the file so as to determine applications made during the course of the litigant's incapacity (which may be limited in the case of a child or indefinite in some cases of intellectual disability). So, the vast majority of files are usually handled without any consideration of issues of confidentiality.

17 Confidentiality of the documents on court file may arise in two ways. There may be an order of the Court precluding access to the documents on the file or, alternatively, the Prothonotary have formed an opinion that the documents on the file should remain confidential. The Prothonotary's decision (which is of an administrative character is made under r 28.05(2)(b)) will be trumped if a Court determines to give leave for documents on the file to be inspected.

18 Given this proceeding has received a degree of media attention, and orders are sought by the parties pursuant to r 28.05(2)(a), a decision by the Court is required as to what documents, if any, should remain confidential. This decision cannot be made (as might have been thought by the parties) by simply advising the Court that the settlement is confidential. The rule clearly contemplates the exercise of a discretion (whether by a judicial officer or by the administrative decision of the Prothonotary), on a principled basis and not just acceding to the wishes of a party. It is to those principles that I now turn.

19 The primary consideration is that a member of the public or a representative of the media possesses an entitlement to inspect the court file of any civil proceeding and obtain a copy of any document held on the file. This was explained by Gillard J in XYZ 1 v Victoria,[4] in which his Honour said:

The general rule is that the applicant has the right to inspect the file and obtain a copy of any document filed on it, upon payment of the fee. The right is curtailed or removed if, the Prothonotary forms an opinion that a document or documents should remain confidential to the parties or the Court rules that a document remain confidential. The Court may override the Prothonotary's decision, and grant leave to a person to inspect the file and take a copy of a document.[5]

20 That decision is consistent with what has been said by the High Court in Russell v Russell,[6] in which Gibbs J said as follows of the open court principle:

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.[7]

21 In this State, there is now statutory endorsement of the principle in the form of both the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and the Open Courts Act 2013 (Vic) (the OCA).

22 The Charter, by s 6(2)(b), requires the Court to have regard to human rights which include the right to a fair and public hearing: (s 24); and additionally, to the right to freedom of expression which includes the freedom to seek and receive information: (s 15(2)). Under the OCA, there is a presumption in favour of disclosure of information and hearings in open court: (ss 4, 28) and the grounds on which the court may make orders for a closed hearing or suppression order are limited: (ss 18, 30). Whilst both these statutory provisions are directed primarily to the question of a hearing in public, their underlying sentiment is consistent with, and reinforces, what was said by Gillard J in XYZ 1.

23 It follows, convincingly, that one starts in such an application with the proposition that documents on a court file in a civil proceeding in this Court must, absent good reason, be available for inspection by the public. There are, however, certain limits on the broad rule - some of which are procedural and others substantive.

24 The first is (which I have already mentioned) that it is not appropriate, without proper consideration, to declare 'a file' confidential. The rule and the statements of principle require a court, or the Prothonotary, to consider the documents individually. This may, of course, lead to all or, more likely, some of the documents being treated as confidential.

25 The second is that it is accepted practice that documents which have been filed with the Court (and usually this means medical reports, affidavits, expert opinions, witness statements etc, filed pursuant to specific orders or Rules of the Court) remain confidential unless they have been deployed in open court.[8] Such documents are to be contrasted to pleadings and orders of the Court which, absent an order of the Court, or the exercise of the discretion of the Prothonotary are available for inspection.

26 The rationale behind this distinction is clear - and consistent with the terms of the OCA: documents in civil litigation involving a controversy between citizens, or the citizens and the state, remain private. However, once such documents are deployed in open court then, consistent with the open court principle_,_ they enter the public domain and are able to be inspected by the public. This is so those who have observed or are interested in the proceeding are properly-informed and understand the ambit of the controversy.

27 This proposition is underpinned by what was said by the High Court in Hogan v Australian Crime Commission.[9] In that case, the primary judge had distinguished the situation between inspecting material contained on the court's file but not tendered and admitted into evidence, and inspecting material which had been admitted into evidence, when determining whether to grant leave for inspection of an affidavit on the Federal Court file (under O 46 r 6(3)). The High Court said of the primary judge:

Emmett J distinguished the situation respecting material on the file of the Court but not tendered and admitted into evidence, and said that the interests of open justice were not engaged there and that leave under O 46, r 6(3) should not be granted in such a case. His Honour was correct in that conclusion.

However, if the file material has been admitted into evidence the interests of open justice are engaged. Where, as here, the party in question adduces no evidence of apprehended particular or specific harm or damage, particularly by disclosure of the Accounting Advices as Emmett J noted, leave properly will be granted under O 46 r 6(3).[10]

28 As I will explain later, a number of the documents filed by the parties in this case were not deployed in open court and, accordingly, orders can be made without further consideration so as to protect those documents from inspection.

29 Third, and consistent with the first two propositions, where a document does not fall within the category to which I have just referred, then the Court (or the Prothonotary) must make a decision as to whether the interests of justice require certain or all documents on file to be kept confidential - usually within a sealed part of the court file. This proposition therefore applies to court documents, such as pleadings and court orders, as well as any other material (e.g. affidavits, exhibits to affidavits) which have been deployed in the course of the hearing in open court. In this proceeding, there are a number of documents which fall within this category and which are sought to either be redacted, or excluded from inspection.

30 Fourth, in making a determination as to whether to restrict access to documents on a court file in a civil proceeding, the Court will have regard to a number of considerations, several of which were identified by Murphy J recently in Gray v State of Victoria[11] and which I set out here - bearing in mind that the ultimate question is what the interests of justice demand:

(a) The starting point is disclosure of the court file so that the public can understand what has happened in a court hearing and are not just confined to what was said by the participants in open court.

(b) The parties are involved in civil litigation which has, at its heart, the resolution of the dispute. As the Civil Procedure Act 2010 (Vic) ('the CPA') makes clear, one of the factors (and an important one) in relation to dispute resolution is that of out of court settlements. Central to such settlements is the capacity of the parties to reach a mutual understanding without court intervention. Part of that understanding may extend to the parties wanting to keep the terms of the settlement confidential.[12] The public interest in the settlement of proceedings prior to trial was recognised by Mortimer J in Oldham v Capgemini Australia Pty Ltd (No.2)[13] and Rares J in Reynolds v J P Morgan Administrative Services Australia Ltd (No.2).[14] In this state, a court is obliged to take into account the principles of the CPA.

(c) There is a public interest in keeping and permitting persons who enter into a settlement to maintain a freely entered bargain.[15]

(d) Where a party enters into an agreement that requires confidentiality as a term of the agreement, then there is a public interest in the preservation of that confidentiality, consistent with the mediation process. In Cannon v Griffiths (No 2), Beech-Jones J said:

In my view it is quite clear from reading the materials that a critical aspect of the successful resolution of the proceedings was the agreement of the parties to keep the terms of settlement confidential as far as possible. It is not necessary or appropriate to speculate as to why that is so. In my view the public interest in respecting that settlement would tend to be undermined by removing an assumption on which the settlement was arrived at, namely the confidentiality of its terms. Against that I do not consider that the public interest in open justice is much affected by making the proposed orders. The nature of the dispute that arose as well as the fact of and reasons for its resolution will still be publicly available. Accordingly, the criteria in s 8(1)(e) has been satisfied in respect of the proposed orders.[16]

31 Finally, a case involving a person under a disability is in a special category in terms of inspection of documents. The Court maintains, in its parens patriae jurisdiction, a protective role in relation to the interests of such persons until he or she is able to manage his or her own affairs - if that is possible.

Application of these principles to the orders sought

32 These documents are identified in proposed Orders 2(a), (b), (d), (e) and (j)[17] and will be kept confidential. They include witness statements, affidavits, court book indexes and reports (expert and medical) served under O 44 and O 33 of the Rules. I also include within this class the documents filed by IMHS and referred to in proposed Order 2(d)(v).

Documents utilised in the application for the approval of the compromise

33 These documents are identified in proposed Orders 2(g), (h) and (i).

34 I mention these documents so that there is no doubt about their categorisation and in the hope that it might be of some assistance to others faced with the task of identifying documents which remain confidential where a compromise is involved. Although at times there may not be an order, such documents have traditionally remained confidential - primarily because there may be material contained within the documents (which often include an advice of counsel submitted for the approval) that may be deleterious to the prosecution of the claim of the person under a disability if the approval is not given by the Court. That is good reason enough. But of equal significance is the fact that there is no genuine public interest in this material. As counsel for the defendants ably explained, the approval of the compromise is (usually but not always) the end point of the proceeding. Whilst there may have been a public interest in the litigation itself (which can be gleaned from those parts of the court file open for inspection and at the trial of the proceeding - if that eventuates), there is none in the actual approval process. That is a matter between the Court and the person under the disability. The public know that the parties have reached an agreement because the fact of the approval application is public knowledge disclosed in open court. But is there any real public interest (other than that which is puerile or sensational) as to the basis for the approval and the making of the orders approving - or rejecting - the compromise, including the quantum of the settlement? I think not.

35 In other words, the function of the Court at this point in time is simply to safeguard the interests of the plaintiff as a person under a disability - it has nothing to do with a proceeding in open court which can be properly reported upon.

36 This proposition is made good by taking the analogy of a case which is settled as between persons with legal capacity on confidential terms. Their bargain will never be known, and the basis of it will never see the light of day - unless one or the other chooses to breach the terms of the agreement or there is a mutual agreement to abandon it. It would, as senior counsel for the defendants pointed out, be extraordinary that a person whose interests are protected by the Court was required to disclose confidential matters, whereas legally capable private citizens were not.

37 It follows, I think, that the materials utilised on any approval of compromise of a claim under O 15 of the Rules should remain confidential provided they have not been deployed in open court. So court documents (such as pleadings, orders, affidavits, exhibits and expert reports) used in the course of interlocutory applications and, if applicable, at trial would remain available for inspection as they were deployed in open court. On the other hand, the transcript of the hearing of the approval of the compromise and any medical reports, advices of counsel or documents (not deployed in the manner I have described) and referred to solely in the course of the approval hearing will fall within this class.

The court order approving the compromise - the quantum of the settlement

38 I accept, for the reasons I have just outlined, that there is no genuine public interest in the quantum of the settlement. Additionally, I was told by counsel for AS that a condition of the compromise that the quantum of the settlement remain confidential, was consistent with the wishes of AS and her family.[18] That of itself is not determinative but it is a relevant consideration.

39 It is necessary, however, to have a court order on the file to ensure that the public record notes the conclusion of the proceeding and that the settlement was approved by the Court. The sensible way to achieve this is the approach suggested by counsel for the defendants: that a version of the order be placed on the open court file, with the amount of the settlement redacted. The unredacted form of order is to be placed in the confidential section of the file and not to be opened, nor its contents revealed to any person, except by order of the Court.

Material on the court file which might enable identification of AS, her family and other asylum seekers

40 Dixon J made orders that the plaintiff's identity be kept confidential and should only be referred to by the pseudonym 'AS'.[19] An affidavit filed by the solicitors for AS shows that there is still a concern on the part of AS's family that her identity be protected.[20] Whilst this fear on its own would be insufficient, when combined with the earlier material upon which Dixon J made his order and the circumstances surrounding this case, I am satisfied that the pseudonym order should be continued and, most importantly, it is in the best interests of AS that it does so.

41 That means, as the defendants have suggested, that a number of documents and exhibits (utilised in open court and particularised in Annexure A with an explanation as to the basis for the proposed redactions) will need redaction. These documents and exhibits (including spreadsheets) also contain information pertaining to the identity of AS, her family and other asylum seekers. There is no public interest in permitting those references to remain on the court file and in the main, these matters have no relevance to this proceeding. Redaction can be easily undertaken and this process is the correction of a slip and will be the subject of proposed order 2(c) confined to the contents of Annexure A.

42 The written consent of the litigation guardian - described in proposed order 2(f) also falls within this class of document and should be kept confidential. Similarly, in the order approving the compromise, the date of birth of AS is identified. This should be redacted on the open file version.

43 For the reasons that I have set out, I am persuaded that, subject to the amendments I have mentioned, the orders sought in paragraph [15] (with one minor exception) should be made. I also grant liberty to apply.

[1] The parts of the affidavits and the exhibits over which confidentiality is sought are identified in Annexure A to this ruling.

[2] T36 of the hearing dated 16 June 2017.

[3] Letter of Louise Rafferty, dated 18 July 2017.

[4] [2001] VSC 233 (16 July 2001) (XYZ 1).

[8] See Civil Procedure Act s 27 and Harman v Secretary of State for the Home Department [1983] 1 AC 280 ('Harman v Home Office').

[9] [2010] HCA 21; (2010) 240 CLR 651, 666 - 667 [40]-[41].

[10] Ibid, 667 (citations omitted); See also Apotex Pty Ltd v Pfizer Ireland Pharmaceuticals (2014) 109 IPR 422; [2014] FCA 1150 (13 October 2014) [14].

[11] [2017] FCA 353 (4 April 2017).

[12] See for example Biasin v Hume City Council [2009] FCA 723 (30 June 2009) [9]-[10]; Hickey v The Public Advocate (Victoria) [2012] FCA 1203 (24 October 2012); McKenna-Reid v Rigo [2011] FCA 883 (5 August 2011).

[13] (2016) FCA 1101 (8 September 2016) [24].

[15] Baltic Shipping Co v Dillon (1991) 22 NSWLR 1, 9.

[16] [2015] NSWSC 1329 (11 September 2015) [17].

[18] Affidavit of Nicole Lees affirmed 15 June 2017.

[20] Affidavit of Nicole Lees affirmed 15 June 2017.

Court (General Civil Procedure) Rules 2015

Human Rights and Responsibilities Act 2006

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