Proctor : April 2018
27 PROCTOR | April 2018 Notes 1 For instance, the Court Suppression and Non-Publication Orders Act 2010 (NSW); Open Courts Act 2013 (Vic.); Part 8, Evidence Act 1929 (SA). In May 2010, the Standing Committee of Attorneys-General endorsed model legislation harmonising suppression and non-publication orders, and Ministers agreed to consider implementing these provisions in their respective jurisdictions. This legislative scheme has not been enacted in Queensland. 2 In Ex parte the Queensland Law Society Incorporated  1 Qd R 166 at 170, McPherson J (as his Honour then was) stated that the only inherent power that a court possesses is “power to regulate its own proceedings for the purpose of administering justice”. 3 Section 126 of the District Court of Queensland Act 1967 and s14A of the Magistrates Courts Act 1921 are in the same terms. 4 ‘Electronic Publication of Court Proceedings Report – April 2016’, Supreme Court of Queensland, at paragraph 22. 5 JvL&AServicesPtyLtd(No.2)2QdR10 at 45 per Fitzgerald P and Lee J. 6 Scott v Scott  AC 417 at 435 per Viscount Haldane LC. 7 Scott v Scott  AC 417 at 437–438 per Viscount Haldane LC; followed in John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 471 per Mahoney JA, with whom Glass JA agreed. 8 Harman v Secretary of State for the Home Department  AC 280 at 308. 9 Scott v Scott  AC 417 at 437–438; John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 472. 10 Harman v Secretary of State for the Home Department  AC 280 at 308. 11 Hearne v Street (2008) 235 CLR 125 at 154–155 and 157 per Hayne, Heydon and Crennan JJ, with whom Gleeson CJ agreed on this point (at 131). The “implied undertaking” is more accurately described as a substantive legal obligation arising from the circumstances in which the material was generated and received. 12 See also Seeker Aircraft America Inc v Seabird Aviation Australia Pty Ltd & Anor  QSC 121 at . 13 Integrated Medical Technology Pty Ltd & Anor v Gilbert & Ors  QSC 124 at . 14 The basis for such orders was also considered in Magellan Petroleum Australia Pty Ltd v Sagasco Amadeus Pty Ltd  2 Qd R 37 and Digi International Inc v Stallion Technologies Pty Ltd (2001) 53 IPR 529, and more recently in Integrated Medical Technology Pty Ltd & Anor v Gilbert & Ors  QSC 124 at –. 15 Requests to search and copy court documents may be made via the court website: qld.gov.au/ law/court/court-services/access-court-records- files-and-services/apply-to-search-and-copy- court-documents. 16 Caltabiano v Electoral Commission of Queensland & Anor (No.3)  QSC 186 at 4–5, 7. Kylie Downes QC is a Brisbane barrister and member of the Proctor Editorial Committee. Philippa Ahern is a Brisbane barrister. Closing the court/restricting access to the transcript If the content of the affidavit material is such that the court decides that it should be sealed as referred to above, then it may also be necessary to seek an order that the court be closed (for the minimum time required) and that access to the transcript be restricted to the parties’ legal advisers (again, only to the extent necessary). If it is necessary to cross-examine on or make oral submissions about the commercially sensitive or confidential affidavit material, an order sealing the affidavit material will not prevent the publication of the confidential information if cross-examination and oral submissions take place in open court and are recorded in a transcript to which access is not restricted. However, you should only seek an order for the closure of the court, and restricted access to the transcript for the period that the confidential information will be addressed, and not otherwise. Restricted disclosure between parties Disclosure is a significant intrusion into a litigant’s privacy and confidentiality.10 Some protection is given by what is commonly described as the ‘implied undertaking’, which binds the recipient not to use that disclosure for any purpose other than that for which it was given, unless it is received into evidence. 11 In Tri-Star Petroleum Company & Ors v Australia Pacific LNG Pty Ltd & Ors  QSC 136 at , Bond J stated that a court may impose a more onerous obligation than the implied obligation “... if it is persuaded by the party asserting the need for that course that the case involves exceptional circumstances such that the implied obligation provides insufficient protection. If it is so persuaded, the court will then consider whether the course proposed by that party will strike the fair balance between its confidentiality concerns and the needs of the other litigant to have access to the documents concerned.” 12 Queensland courts have power to relieve a party to a proceeding of the duty of disclosure to any specified extent under r224 of the Uniform Civil Procedure Rules 1999 (UCPR). They may also order that delivery, production or inspection of a document or class of documents for disclosure not be provided, or be deferred: r223(3). These rules confer power on the court to make orders, such as those made in Ex parte Fielder Gillespie Ltd  2 Qd R 339, which accommodate parties’ confidentiality concerns by making orders for restricted disclosure. 13 In Ex parte Fielder Gillespie Ltd  2 Qd R 339 the applicant sought production of disclosed documents, which was resisted on the basis of their confidentiality. McPherson J (as his Honour then was) noted at 341 that “confidentiality is not itself a valid basis for resisting inspection”. Nevertheless, in order to maintain confidentiality in what was alleged to be a secret process, his Honour made orders limiting the persons entitled to inspect the documents on behalf of the applicant; permitting the applicant only to take one copy of the documents, which was required to be kept securely; and prohibiting the applicant from communicating the contents to anyone other than the applicant’s solicitors and counsel, or using them for other purpose than the purpose of the proceeding.14 Restricting access to the court file Both parties to proceedings, and non-parties such as media organisations, may obtain copies of documents from court files pursuant to rr980 and 981 of the UCPR.15 However, this is subject to any court order restricting access to the file or document (r981(3)). In Ex parte the Queensland Law Society Incorporated  1 Qd R 166 at 168, McPherson J said that any power that the court has to order that a file or document not be open to inspection “would be exercisable only where necessary for the purpose of protecting the administration of justice in a particular case”. In Caltabiano v Electoral Commission of Queensland & Anor (No.3)  QSC 186, Atkinson J fashioned orders restricting access to the court file so that they went no further than required, in order to give effect to the principle of open justice. 16 Back to basics In the February edition of Proctor Kylie Downes QC and Philippa Ahern considered the basis on which the Federal Court will make orders restricting the dissemination of confidential or commercially sensitive material. This month they consider how such orders are made in Queensland proceedings.