Proctor : April 2018
26 PROCTOR | April 2018 Protection of confidentiality in the state courts Orders to restrict access Unlike other Australian states and the Federal Court of Australia, Queensland does not have a comprehensive legislative scheme dealing with suppression and non-publication orders.1 Such orders are therefore generally sought via the inherent power of the court, which is exercised for the purpose of administering justice. 2 A legislative basis for such applications may be found in s8 of the Supreme Court of Queensland Act 1991, and cognate legislation for the District and Magistrates Courts.3 While the legislation provides that the business of the court is to be conducted in open court (s8(1) (b)), subject to any Act the court may, if the public interest or the interests of justice require, by order limit the extent to which the business of the court is open to the public (s8(2)). The balance of open justice and confidentiality The principle of open justice has been described as “one of the most fundamental aspects of the justice system in Australia”. 4 Accordingly, information may not be “withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other ‘collateral disadvantage’,”5 nor merely for the sake of public decency or morality.6 However the principle of open justice is itself subject to the paramount duty of the court to secure that justice is done.7 The principles of open justice must not be taken further than is required to secure the interests of justice, and that may require confidential or commercially sensitive material to be protected.8 If justice cannot be done at all if it has to be done in public, such as when the subject- matter of the litigation would be destroyed (as in the case of trade secrets), the principle of open justice must yield, but this turns “not on convenience, but necessity”. 9 The relevant principles were identified in J v L & A Services Pty Ltd (No.2)  2 Qd R 10 at 44 as follows: “1. Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly. 2. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court’s decision of practical utility... 3. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected... 4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible. 5. Different degrees of restraint are permissible for different purposes. [Exclusion] of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example [proceedings] for the legitimate protection of confidential information...” Suppression and/or non-publication orders are frequently made in commercial proceedings in Queensland courts, and often they are not the subject of dispute between the parties to the proceeding. Such orders are commonly made in the following types of proceedings: a. Proceedings seeking to restrain the misuse of confidential information. The utility of the relief sought would be destroyed if the information was released into the public domain. b. Applications by a voluntary administrator to extend the period to convene a second meeting of creditors. Often, an extension is required because negotiations are ongoing with potential purchaser/s of the company’s business, which negotiations are confidential. c. Applications by liquidators or trustees for approval of their remuneration. Such applications must be accompanied by detailed affidavit material explaining the work undertaken. Often it is necessary for the applicant to refer to work that is ongoing, such as an ongoing sales process. That process will often be confidential. When drafting the order, it is important to consider its scope and any appropriate limits that should be imposed (for instance, such as a time limit). Any intrusion into the principle of open justice should go no further than is necessary to protect the confidential or commercially sensitive material. Restricting access to affidavit A common form of order is that an affidavit of a named deponent be placed into an envelope and marked ‘Not to be opened except pursuant to an order of the Court’ (or similar wording to that effect). If you propose to seek such an order, you should bring to court an envelope which is large enough to hold the affidavit (or several envelopes if necessary) bearing a label with the words referred to in the proposed order. If an affidavit of a deponent is only confidential in part, or particular exhibits only are confidential, you should consider having the deponent swear or affirm two affidavits, one which is the open one and the other which contains or exhibits the proposed sealed material. By doing this, the order protecting the confidential material will go no further than is necessary. If the written outlines of counsel refer to the confidential affidavit evidence, then it may be necessary for the outlines to also be placed into an envelope and marked ‘Not to be opened except pursuant to an order of the Court’.