LEGAL PROFESSION CONDUCT COMMISSIONER v ENZO GEORGE BELPERIO [2024] SASCA 133

On Appeal from LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL (MS M PYKE KC, MR F CAMATTA AND MS A BURGESS AM) LPDT-22-04 Appellant: LEGAL PROFESSION CONDUCT COMMISSIONER Counsel: MS EF NELSON KC WITH MS P EWENS - Solicitor: LEGAL PROFESSION CONDUCT COMMISSIONER Respondent: ENZO GEORGE BELPERIO Counsel: MR RJ WHITINGTON KC WITH MS H DOYLE - Solicitor: ILES SELLEY LAWYERS Interested Party: THE LAW SOCIETY OF SOUTH AUSTRALIA Counsel: MR J MARSH - Solicitor: THE LAW SOCIETY OF SOUTH AUSTRALIA Intervening Party: ATTORNEY-GENERAL OF SOUTH AUSTRALIA Counsel: MR M WAIT SC WITH MS I NIKOLOUDAKIS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 22/08/2024, 06/09/2024, 09/09/2024, 13/09/2024, 19/09/2024 File No/s: CIV-24-003582 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LEGAL PROFESSION CONDUCT COMMISSIONER v BELPERIO (No 2) [2024] SASCA 133 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice Stein) 22 November 2024 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - OTHER MATTERS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - FILING DOCUMENTS AND ACCESS THERETO PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - OTHER MATTERS PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - CONTROL OF COURT PROCEDURE PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - OTHER MATTERS - DEFINITIONS - OTHER WORDS OR PHRASES -- 1 of 86 -- PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA These were multitudinous applications brought by the Respondent for: a suppression order; an order preserving and continuing the anonym of ‘A Practitioner’; an order restricting materials filed in the matter on a party-access basis; and an order variously redacting and withholding certain materials filed in the matter from members of the public. Following publication of the Court’s reasons for upholding an appeal from an order of the Legal Practitioners Disciplinary Tribunal, summarily dismissing a charge of professional misconduct against the Respondent by reason of a purported lack of jurisdiction (Legal Profession Conduct Commissioner v A Practitioner [2024] SASCA 102), the Respondent variously applied for: an order suppressing publication of his identity as the practitioner so charged; orders preserving and continuing the Respondent’s anonym in the Court’s cause list and restricting materials filed in the matter on a party-access basis; and an order that certain materials filed be redacted so as to de-identify the Respondent and withheld from members of the public, who might otherwise apply for access thereto under s 131 of the Supreme Court Act 1935 (SA). Similar orders were sought in respect of materials filed in a simultaneously instituted application for judicial review. Those applications were opposed. The bases from which the Respondent pressed his application for a suppression order consisted, primarily, of the anticipated damage to his personal and professional reputation, as well as to his mental health, should he be publicly identified as ‘A Practitioner’. The Respondent also contended that, in circumstances where his wife might be called to give evidence before the Tribunal hearing of the substantive allegations against him, the publication of his identity would cause her, and the couple’s children, undue hardship, within the meaning of s 69A(1)(b) of the Evidence Act 1929 (SA). The Respondent relied on substantively the same grounds in pressing his ancillary applications for restrictions and redactions of materials filed in the instant and judicial review proceedings. The Respondent further contended, to this end, that such restrictive or redactive orders ought to be made with respect to materials filed, and recordings of submissions made, in closed court. For his part, the Appellant contended, generally, that: the suppression order sought by the Respondent was impermissibly designed to protect the Respondent’s personal interest in his reputation, rather than to prevent prejudice to the proper administration of justice; the suppression order was, in any event, unsupported by reliable and credible evidence as to the impact publicity would occasion on the Respondent’s mental health and ability to defend the charge before the Tribunal; there was a lack of demonstrable undue hardship that would be suffered by the Respondent’s wife if the allegations levied against her husband were to be made public; and the ancillary orders sought to restrict and redact certain materials were inconsistent with the right of access conferred by s 131 of the Supreme Court Act 1935 (SA). The appellant further contended that the Court ought accordingly to vacate certain interim suppression orders, an anonymisation order, and orders restricting access to materials filed in the matter. Those contentions were broadly echoed by the Interested Party and the Intervenor. Held, by Kourakis CJ, Bleby JA and Stein AJA agreeing, dismissing the Respondent’s applications: 1. The preservation of a person’s personal or professional reputation is a consideration exogenous to the determination of whether it is appropriate to grant a suppression order pursuant to s 69A of the Evidence Act 1929 (SA) or necessary otherwise to close the Court to the public. Consideration of the nature, characteristics, and incidents of the principle of open justice. Further held, by Kourakis CJ, Bleby JA and Stein AJA agreeing: 2. The primary reason for the application of s 69(1) of the Evidence Act 1929 (SA) is to facilitate the administration of justice by ensuring that a witness is not burdened by giving an account of embarrassing or humiliating events in a courtroom full of strangers. The power conferred by that subsection should not be used for a collateral purpose which undermines access to, and publication of court hearings, when to do so would neither prejudice the administration of justice nor cause undue hardship to a victim, witness or child. -- 2 of 86 -- 3. For the purposes of s 69A(1)(b) of the Evidence Act 1929 (SA), undue hardship requires an evaluative judgment that the hardship that will be endured by a person is greater than that suffered in the generality of cases. That judgment requires close attention to the nature of the witness’ testimony and any peculiar circumstances of the witness affecting that hardship. 4. It was not established on the evidence adduced by the Respondent that there was an appreciable risk that the Respondent’s mental ability to defend himself would be comprised, nor that the Respondent’s wife and children would suffer any hardship over and above that which is a necessary and common incident of the open justice principle, were he publicly to be identified as ‘A Practitioner’. In relation to the Respondent’s wife, as distressing as it might be facing her professional colleagues and acquaintances, hardship of that kind is an inherent consequence of the charging of a person with allegations of criminal or professional misconduct that must be tried by a court or tribunal in due course. 5. In making a judgment on whether there is good reason to depart from the open justice principle, the extent to which the relevant information is in the public domain is a pertinent consideration. To this end, the effect of the publication, and tabling, of the Respondent’s name in the Tribunal’s annual report to Parliament was that the Respondent had already been publicly identified as the barrister the subject of the disciplinary proceedings. 6. The failure of an application for a suppression order leaves little latitude for the making of other orders shielding the proceedings from public scrutiny in order to deny members of the public, and the news media, access to the information in the records of the Court which they would then be free to disseminate publicly. 7. For the purposes of s 131(1)(aa) of the Supreme Court Act 1935 (SA), the term ‘process’ encompasses the writ originating an action; summons, or other instrument of complaint, even before issue is joined; pleadings; interlocutory applications filed by the parties; interlocutory orders made; and processes issued by the Court. 8. The Respondent’s application to uplift and redact the charge the subject of the disciplinary proceedings, notwithstanding that it had been relied upon in open court on the hearing of the substantive appeal, was fundamentally at odds with the plain text and context of, and statutory purpose underpinning, s 131(1) of the Supreme Court Act 1935 (SA). 9. Rule 32.2 of the Uniform Civil Rules 2020 (SA) must be read down to conform with s 131 of the Supreme Court Act 1935 (SA) in two respects. First, an order restricting materials filed in proceedings on a party-access basis only cannot remove a document which falls within the meaning of a ‘process’ of the Court from the scope of s 131(1)(aa) of the Act. Secondly, such an order cannot apply to a filed document of any kind which is subsequently received in open court, even on an interlocutory application. Consideration of the procedures by which commercially confidential documents or other publicly sensitive materials might be treated. Further held, by Kourakis CJ, Bleby JA and Stein AJA agreeing: 10. The power conferred by s 84A of the Legal Practitioners Act 1981 (SA) to hold an inquiry, or part of it, in private is not concerned with the laying of the charge or with the filing of any other documents or the correspondence the Tribunal may receive about an inquiry. It is the inquiry which may be conducted in private. Nor does the power, by implication, extend to the making of a non-publication order. In particular, it does not prohibit the publication of information concerning the complaint which might have been obtained from sources other than by being present in the hearing room in which the Tribunal undertook the inquiry. Further held, by Bleby JA and Stein AJA: 11. For the purposes of s 131(1)(aa) of the Supreme Court Act 1935 (SA), the term ‘process’ does not encompass affidavits filed in proceedings, even where such affidavits define the controversy in place of pleadings. Notwithstanding that affidavits filed within the contemplation of certain civil procedure rules may go some way to setting the parameters of -- 3 of 86 -- a controversy, any such affidavits are to be characterised as ‘material’ within the meaning of s 131(2) and not a ‘process’ within the meaning of s 131(1)(aa). Consideration of the accessibility of evidentiary material tendered at trial or at hearing and status of documentary material transmitted to the Supreme Court under r 214.3 of the Uniform Civil Rules 2020 (SA). Further held, by Kourakis CJ: 12. Any document filed in Court which defines or delimits the controversy, or amends the scope of the controversy, as well as interlocutory applications, are processes related to proceedings within the meaning of s 131(1)(aa) of the Supreme Court Act 1935 (SA). District Court Act 1991 (SA) s 54; Evidence Act 1929 (SA) ss 68, 69, 69A, 70(1), 71A; Evidence Act Amendment Act 1979 (SA) s 12; Evidence Act Amendment Act (No 3) 1984 (SA) s 4; Evidence Act Amendment Act 1989 (SA); Family Law Act 1975 (Cth) s 121; Inheritance (Family Provision) Act 1972 (SA); Law Society Act 1915 (SA) ss 19(1), 21, 22, 23, 31; Legal Practitioners Act 1936 (SA); Legal Practitioners Act 1981 (SA) ss 68(2), 69(b), 70(6), 72, 78, 82, 84(3), 84A, 89C, 90A; Legal Practitioners Disciplinary Tribunal Rules rr 4, 9, 11; Legal Practitioners (Miscellaneous) Amendment Act 1996 (SA); Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA); Legislation Interpretation Act 2021 (SA) s 19(1); Magistrates Court Act 1991 (SA) s 51; Matrimonial Causes Act 1857, 20 & 21 Vict, c 85, ss 22, 57; Open Courts Act 2013 (Vic) ss 17, 18; Statutes Amendment (Attorney-General’s Portfolio) Act 1996 (SA); Statutes Amendment (Evidence and Procedure) Act 2008 (SA) s 28; Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA) s 14; Statutes Amendment (Courts) Act 1993 (SA); Statutes Amendment (Courts) Act 1995 (SA) s 23; Statutes Repeal and Amendment (Courts) Act 1991 (SA) s 9(h); Supreme Court Act 1935 (SA) ss 45, 46A, 72, 131; Uniform Civil Rules 2020 (SA) rr 12.1(2), 15.3, 32.2, 74.2, 74.10, 214.3, 217.5, 256.4, referred to. A County Council v W (Disclosure) [1991] 1 FLR 574; A-G v Leveller Magazine Ltd [1979] AC 440; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; Carr v Western Australia (2007) 232 CLR 138; Chamberlain v Law Society of Australian Capital Territory (1993) 43 FCR 148; Channel Nine SA Pty Ltd v Police (2014) 119 SASR 447; Dickason v Dickason (1913) 17 CLR 50; DPP (Vic) v Smith [2023] VSCA 293; E v SE [2007] SASC 198; East Rockingham RRF Project Co Pty Ltd v Acciona Construction Australia Pty Ltd [2024] FCA 759; Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475; General Television Corp Pty Ltd v DPP (Vic) (2008) 19 VR 68; Hogan v Hinch (2011) 243 CLR 506; HT v The Queen (2019) 269 CLR 403; J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Legal Services Commission v JXL [2023] QSC 283; McPherson v McPherson [1936] AC 177; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; Newcrest Mining Ltd v Santos WA Northwest Pty Ltd (No 2) [2022] WASC 410; Packer v Police (2007) 247 LSJS 410; R v Kwok (2005) 64 NSWLR 335; Reynolds v Panten (1999) 23 WAR 215; Roylance v General Medical Council (No 2) [2000] 1 AC 311; Russell v Russell (1976) 134 CLR 495; Samuels (a Pseudonym) v The King [2024] SASCA 50; Scott v Scott [1913] AC 417; WEQ (a Pseudonym) v Medical Board of Australia (2021) 69 VR 1; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 22) [2023] WASC 285; Zhang v Age Co Pty Ltd [2023] ACTCA 10, applied. Re a Practitioner of the Supreme Court [1970] SASR 199, distinguished. Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122; Ex parte Pratt; Re P V M’Culloch (1889) 6 WN (NSW) 31; G v The Queen (1984) 35 SASR 349; Jackson v Johnson (2010) 269 LSJS 296; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; Legal Profession Conduct Commissioner v A Practitioner (No 2) (2017) 128 SASR 444; R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Bro Ltd (1998) 8 Tas R 283; R v Keogh [2013] SASCFC 74; Re (Attorney) (1860) 2 LT Rep (NS) 432; Re a Gentleman, One (1897) 13 WN (NSW) 229; Re Charles Wood Readett (1888) 5 WN (NSW) 20; Re Legal Practitioners Ordinance 1970; Ex parte Law Society (ACT); Re Giles (1985) 61 ACTR 1; Scott v Scott [1912] P 4; Scott v Scott [1912] P 241, discussed. Chambers v James Cook University (No 2) (1995) 61 IR 145; Craig v Medical Board of South Australia (2001) 79 SASR 545; ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782; Hospital v T [2015] QSC 185; House v The King (1936) 55 CLR 499; Kearney v Amirbeaggi [2022] NSWSC 805; Marin v Chiropractic Board of Australia [2020] SASCFC 74; Nest & Nest (No 2) [2014] FamCA 269; Porter v Australian Broadcasting Corporation [2021] FCA 863; R v Hermes; Ex parte -- 4 of 86 -- V [1963] SASR 81; Roberts v Prendergast [2014] 1 Qd R 357; Rush v Nationwide News Pty Ltd (2018) 359 ALR 473; Zollo v Commissioner of Consumer Affairs [2020] SASCFC 118, considered. -- 5 of 86 -- -- 6 of 86 -- LEGAL PROFESSION CONDUCT COMMISSIONER v BELPERIO (No 2) [2024] SASCA 133 Court of Appeal – Civil: Kourakis CJ, Bleby JA and Stein AJA 1 KOURAKIS CJ: On 22 August 2024, this Court delivered its judgment allowing an appeal brought by the Legal Profession Conduct Commissioner (“the Commissioner”) against a decision of the Legal Practitioners Disciplinary Tribunal (“the Tribunal”), summarily dismissing a charge of professional misconduct which alleged that Mr Belperio, a barrister, had engaged in professional misconduct (“the charges”) in relation to a junior female solicitor (“F”) on the ground that it did not have jurisdiction to inquire into it.1 2 This judgment deals with applications by Mr Belperio and his wife for orders: • which would deny members of the public, including representatives of the news media, access to Court records, which reveal his identity as the practitioner the subject of the charges and which disclose the particulars of the alleged misconduct; and • which suppress publication of his identity as the legal practitioner charged with that misconduct. 3 The Law Society of South Australia was joined as an interested party in the appeal and the Attorney-General of South Australia intervened. Counsel for the Law Society and the Solicitor-General also made submissions on those applications. 4 For the reasons which follow, I would not make any of the orders in the form sought. I would not disturb the orders which have been made pursuant to r 32.2 of the Uniform Civil Rules 2020 (SA) (“the UCR”), but I would receive in open court the affidavits of Mr Belperio, Mrs Belperio, and the report of Mr Broomhall, which are to be redacted in accordance with these reasons. I would give liberty to apply for orders suppressing the Christian names of the couple’s children and the schools they attend. 5 The Tribunal previously made an order that the hearing of the application by Mr Belperio that the charge be summarily dismissed as an abuse of process be conducted in private pursuant to s 84A(2) of the Legal Practitioners Act 1981 (SA) (“the LPA”). The Tribunal also made a “party-access” order in respect of the documents filed in connection with that hearing, purportedly pursuant to r 32.2 of the UCR. Mr Belperio urged this Court to preserve the confidentiality regime established by those orders, pending reconsideration by the Tribunal when the inquiry is resumed. However, as we shall see, it is doubtful that the power to 1 See Legal Profession Conduct Commissioner v A Practitioner [2024] SASCA 102. -- 7 of 86 -- [2024] SASCA 133 Kourakis CJ 2 conduct an inquiry in private pursuant to s 84A(2) of the LPA extends to the hearing of a summary dismissal application. In any event, there was no material before the Tribunal that warranted the making of that order. Furthermore, r 32.2 of the UCR has not been made or adopted as a rule of the Tribunal. Importantly, there was, again, no material before the Tribunal that warranted making an order of that kind, even if it were empowered to restrict access to documents lodged with it. In any event, this Court must exercise the powers it has with respect to access to its courtrooms and records, and its statutory powers to make suppression orders on its own assessment of the merits of the case. 6 On 12 April 2024, the Commissioner also challenged the decision of the Tribunal by bringing an application for judicial review, which was stayed pending the hearing of the appeal and then dismissed when the appeal was allowed. 7 During the course of these proceedings, this Court made orders preserving the confidentiality of Mr Belperio’s name until it had the opportunity, in the light of the result of the appeal, to consider the question of the confidentiality regime sought by Mr Belperio on its merits. 8 On 22 April 2024, an order was made that Mr Belperio’s name not be included in any cause list, and that he should instead be referred to anonymously as “a Practitioner”. On 20 June 2024, after written submissions thereabout had been filed, an interim party-access order was made with respect to documents filed in connection with the appeal and the application for judicial review. On 30 August 2024, that interim order was continued until close of business on that day, and the parties were directed to file submissions on any further orders governing the anonymisation of Mr Belperio’s name. 9 Mr Belperio subsequently filed an affidavit sworn by him on 30 August 2024 in support of the foreshadowed applications. That affidavit primarily dealt with Mr Belperio’s knowledge of the extent to which his identity had already been disclosed into the public domain. It also described in paras [9], [10], and [14] symptoms and conduct indicative of depression and anxiety. 10 On Friday, 6 September 2024, the Court received Mr Belperio’s affidavit in closed court on an interim basis. The Court heard submissions on Mr Belperio’s application, as it then stood, to: • close the courtrooms in which the hearings were heard retrospectively; • redact documents in a way which would deny members of the public information which they might otherwise have enjoyed a statutory right to access as records of the Court; and • receive in closed court, or make a party-access order only in respect of, paras [9], [10], and [14] of Mr Belperio’s affidavit. -- 8 of 86 -- [2024] SASCA 133 Kourakis CJ 3 11 At the recommencement of the hearing after the luncheon adjournment, Mr Belperio’s counsel informed the Court that he had received recent instructions that, ‘in all propriety’, required him to make an application for a suppression order on the grounds of undue hardship to Mr Belperio’s wife, who might be a witness in the inquiry before the Tribunal. An interim suppression order was made, and the matter was listed to resume on the morning of Monday, 9 September 2024. At the resumed hearing, counsel for Mr Belperio made an oral application for a suppression order and provided an affidavit of Mr Belperio’s solicitor, Mr Selley, annexed to which was a report of a psychologist, Mr Broomhall. He also provided an affidavit of Mrs Leesah Belperio, Mr Belperio’s wife, sworn on 9 September 2024. At that hearing, Mr Campbell appeared for Advertiser Newspapers Pty Ltd. 12 The Court declined to receive the affidavits on that occasion in order to preserve the right of the parties and any interested persons to make submissions on the basis on which they might be received. Orders and directions were given to ensure that the parties, the interested party, the intervenor, and counsel for the Advertiser were served with the material necessary to afford them procedural fairness. 13 When the hearing resumed on Friday, 13 September 2024, the affidavits were received in closed court, so as to preserve the operation of the interim suppression order and order anonymising Mr Belperio’s name. 14 The orders finally sought by Mr Belperio in order to keep his identity hidden from the public may be summarised as follows: 1. Suppression orders pursuant to s 69A of the Evidence Act 1929 (SA) (“the Evidence Act”) with respect to the practitioner and his wife; 2. In the event that there is no suppression order covering the field, orders that certain materials filed or to be filed by Mr Belperio be treated as having been filed on a party-access basis only; 3. In the alternative to 2, orders that the Court files be endorsed to the effect that they do not constitute a “process” within the meaning of s 131(1)(aa) of the Supreme Court Act 1935 (SA) (“the Supreme Court Act”); 4. In the further alternative to 2, orders that access not be provided in any event to the Court files pursuant to s 131(2) of the Supreme Court Act; 5. In the event that a request is made pursuant to s 131(1)(a) for access to a transcript of the hearing on 31 May 2024, if the transcript is the subject of a material suppression order, access only be provided subject to the terms of the suppression order; 6. If there is no suppression order in respect of the transcript, access only be provided on terms that do not allow inspection or copying which would identify the practitioner; -- 9 of 86 -- [2024] SASCA 133 Kourakis CJ 4 7. In the event that a request is made pursuant to s 131(1)(f) of the Supreme Court Act for access to Court orders on the two Court files, if the orders are the subject of a material suppression order, access only be provided subject to the terms of the suppression order; 8. If there is no suppression order in respect of the Court files, access only be provided on terms that do not allow inspection or copying which would identify the practitioner. 15 As shall be seen, the application for the first order will largely be determinative of the applications for the other orders to stifle publication at its source. Only in rare cases will a court resort to its implied, inherent, or rules-based powers to depart from the open justice principle if a suppression order is not justified by s 69A of the Evidence Act for at least three reasons. First, if there is no warrant to make a statutory suppression order binding on all persons not to disseminate information publicly about a judicial proceeding, it is difficult to envisage circumstances in which there will nonetheless be good reason to keep a small number of members of the public out of a courtroom altogether, or to deny them access to court records to which they have a statutory entitlement. Secondly, the common law principle of open justice must develop coherently with the extension of, and the weight given to, that principle by the legislature. Thirdly, it will generally be an abuse of the process to invoke a court’s inherent, implied, or rules-based powers to exclude persons from a courtroom, or to deny them access to court records, for the purposes of obstructing, at its source, publication of information about court proceedings which could not be suppressed by a proper exercise of the power conferred by s 69A of the Evidence Act. Within the interstices of those three reasons for restraint in the exercise of those general law powers there may, occasionally, be reason to depart from the open justice principle even when, if access were allowed, public dissemination could not properly be suppressed pursuant to s 69A of the Evidence Act. As we shall see, this application is not one of those occasions. 16 Mr Belperio is a party to these proceedings and his name can only be suppressed pursuant to s 69A(1)(a) of the Evidence Act if the Court is satisfied that it should so order to prevent prejudice to the administration of justice. For the reasons given below, harm to Mr Belperio’s professional and personal reputation before the charge is determined will not prejudice the administration of justice. Nor has it been shown that there is a real prospect that Mr Belperio’s distress will compromise his capacity to defend the charge. Similarly, the evidence does not show that Mr Belperio’s wife will suffer undue hardship for the purposes of s 69A(1)(b)(ii) of the Evidence Act, nor the couple’s children for the purposes of s 69A(1)(b)(iii) of the Evidence Act. I would, therefore, refuse the applications for a suppression order. 17 Orders 2 to 8 are calculated to affect the application of s 131 of the Supreme Court Act in two ways. First, orders are sought denying the public the access it enjoys as of right pursuant to s 131(1) by making an order pursuant to r 32.2(2) of -- 10 of 86 -- [2024] SASCA 133 Kourakis CJ 5 the UCR that documents be treated as filed on a party-access basis only or ordering the redaction of Mr Belperio’s name. 18 Secondly, orders, including an order pursuant to r 32.2(2) of the UCR, are sought which would prospectively deny any future application to access the records of the Court pursuant to s 131(2) of the Supreme Court Act. Decisions on applications made pursuant to s 131(2) of the Supreme Court Act are, by force of s 131(4) thereof, administrative, not judicial, in nature and are made from time to time by the judicial officer or delegated officer who considers them. Mr Belperio accepts that this Court is not presently sitting on an application for access pursuant to that section. This Court cannot proleptically determine an application which is yet to be made. Order 4, therefore, should not be made. However, it is necessary for this Court to consider the proper construction of s 131 of the Supreme Court Act in order to determine Mr Belperio’s other applications. That exegesis will hopefully inform future decisions under that section in respect of this, and other, matters. 19 The second order if made, could not displace, or in some way override the mandate contained in, s 131 of the Supreme Court Act.2 This Court retains the ability, on its own initiative and whenever it considers it appropriate in the interests of justice, to depart from or to make an order inconsistent with, or in lieu of, a rule found in the UCR;3 there exists no such ability with respect to the statutory mandate contained in s 131 of the Supreme Court Act. Insofar as the material is a process of the Court or has been received in open court, s 131(1) confers an unconditional right of access to it. Insofar as it is material which requires the permission of the Court to access it, the grant of permission pursuant to s 131(2) of the Supreme Court Act would be an order to the contrary, for the purposes of r 32.2(2) of the UCR. The only utility of an order pursuant to r 32.2(2) of the UCR in respect of the latter is that it precludes access unless and until an application for access has been approved pursuant to that rule. It is appropriate that such an order be made in respect of certain sensitive personal information, and the details of the symptoms of Mr Belperio’s mental health (personal and sensitive information). 20 An endorsement of the kind contemplated by order 3, that the “files” are not a process, fundamentally misunderstands the constitutional relationship between the inherent powers of this Court over its records and the statutory regulation of those records. The Court cannot, in the exercise of its implied or inherent powers, declare that a document is not a process, if, on a proper construction of s 131(1)(aa) of the Supreme Court Act, it is a process. Order 3 should not be made. 21 Orders 5 and 7 are otiose because, if a suppression order were made, the transcript, insofar as it identifies Mr Belperio, could not be accessed as of right, because it would fall within s 131(2) of the Supreme Court Act. Moreover, any person who is permitted to inspect a document is bound by the direct operation of 2 Cf Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265, 268 [14] (Basten JA). 3 See, eg, UCR 12.1(2)(a)-(b). -- 11 of 86 -- [2024] SASCA 133 Kourakis CJ 6 the suppression order, and liable to prosecution under s 70(1) of the Evidence Act for disobedience to the order. It follows that a condition to that effect is mere surplusage. Orders 5 and 7 should not be made. 22 Orders 6 and 8 are premised on an unidentified power in this Court to abrogate s 131(1) of the Supreme Court Act, even if the transcript and/or documents to which access is sought are either processes relating to the proceedings, or material which was received in open court. This Court has no power to do so. Nor can this Court apply s 131(2) of the Supreme Court Act on a retrospectively constructed fiction that the transcript or records were not received in open court. 23 The orders receiving the affidavits of Mr Belperio, Mrs Belperio, and Mr Selley in closed court (the first of which was done so on an interim basis) were made to prevent the pre-emptive dissemination of some very personal information in, or annexed to, those affidavits before the applications were properly heard and determined. So, too, were the orders closing the court while Mr Broomhall gave evidence, and while the parties made submissions thereon. The exercise of the statutory power to make a suppression order in a proper case serves the administration of justice. That aspect of the administration of justice would be prejudiced if persons were deterred from making an application by the prospect that very personal family, social, and/or health circumstances on which the application is founded would be disclosed. Accordingly, evidence of personal and sensitive information which extends beyond general references to Mr Belperio’s depression and anxiety should not be disclosed. However, the same cannot be said of general material in the affidavits not falling within that description. A mechanism to achieve protection of the personal and sensitive material contained in those affidavits would be to leave the orders already made pursuant to r 32.2 of the UCR in place, but to exercise this Court’s inherent jurisdiction to receive in open court appropriately redacted affidavits of Mr Belperio, Mrs Belperio, and Mr Selley and to make a suppression order in respect of those parts of the evidence and submissions heard by the Court on Friday, 13 September 2024, which disclose personal and sensitive information. I would hear the parties as to the precise redactions and any required supplementary orders. But, speaking generally, the Court will order that appropriately redacted iterations of those affidavits be provided in open Court. Open justice and closed courts 24 Ordinarily, the adjudication of controversies occurs ‘publicly and in open view’,4 publicity being ‘one of the normal attributes of a Court’.5 Together the 4 Scott v Scott [1913] AC 417, 441 (the Earl of Halsbury); McPherson v McPherson [1936] AC 177, 199-200 (Lord Blanesburgh for the Board); Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 71 [67] (French CJ); Legal Services Commissioner v JXL [2023] QSC 283, [136] (Crowley J). 5 Dickason v Dickason (1913) 17 CLR 50, 51 (Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ agreeing). -- 12 of 86 -- [2024] SASCA 133 Kourakis CJ 7 adversarial procedures and the open justice principle of common law courts distinguish them from the courts following the civil law tradition. 25 The administration of justice in public, however, is not an end pursued by the common law absolutely. The ultimate object is fidelity to the judicial oath. It has been observed that open justice ‘is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny’.6 To this end, at common law and pursuant to s 69(1) of the Evidence Act, the Court may, respectively, order that proceedings be dealt with in closed court,7 or order that the Court be cleared for the ‘whole or any part of the proceedings’. 26 As regards the latter, the Court’s power to order that a certain person or persons absent themselves from the courtroom is predicated on the Court considering that course to be ‘desirable in the interests of the administration of justice, or in order to prevent hardship or embarrassment to any person’.8 Embarrassment or anxiety may also so compromise a witness’ capacity to give his or her testimonial account of the relevant events that it prejudices the administration of justice. 27 As regards the former, absent statutory mandate to the contrary,9 the Court will not hasten to depart from the ‘fundamental rule of the common law … that the administration of justice must take place in open court’.10 In general terms, the Court will order that a hearing be closed to members of the public where to do so is necessary for the proper administration of justice.11 The decision of the House of Lords in Scott v Scott12 exemplifies the strong position taken by the common law against the adjudication of proceedings in closed court. That case concerned proceedings instituted by the appellant, seeking an annulment of her marriage to the respondent on the ground of the respondent’s impotence. Those proceedings were instituted in the Court for Divorce and Matrimonial Causes, which, by virtue 6 Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ). See also HT v The Queen (2019) 269 CLR 403, 423-4 [44]-[46] (Kiefel CJ, Bell and Keane JJ); Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 22) [2023] WASC 285, [47] (Smith J); DPP (Vic) v Smith [2023] VSCA 293, [22] (Priest JA, Emerton P agreeing); East Rockingham RRF Project Co Pty Ltd v Acciona Construction Australia Pty Ltd [2024] FCA 759, [75] (Feutrill J). 7 See, eg, General Television Corp Pty Ltd v DPP (Vic) (2008) 19 VR 68, 75 [21] (Warren CJ, Vincent and Kellam JJA); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 72 [69] (French CJ). 8 The Court may, however, in respect of such a person or persons, on application, make an order rendering any transcript of proceedings available thereto. See Evidence Act 1929 (SA) s 69(2). 9 See, eg, R v Kwok (2005) 64 NSWLR 335, 344-5 [33] (Howie J). 10 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476 (McHugh JA, Glass JA agreeing). Cf ELA18 v Minister for Home Affairs (No 2) [2020] FCA 782, [17] (Abraham J). 11 See, eg, Scott v Scott [1913] AC 417, 437 (Viscount Haldane LC); John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476-7 (McHugh JA, Glass JA agreeing); Hogan v Hinch (2011) 243 CLR 506, 532-3 [21] (French CJ). Cf Rush v Nationwide News Pty Ltd (2018) 359 ALR 473, 513 [186]-[188] (Wigney J); Porter v Australian Broadcasting Corporation [2021] FCA 863, [51] (Jagot J). 12 [1913] AC 417. -- 13 of 86 -- [2024] SASCA 133 Kourakis CJ 8 s 22 of the Matrimonial Causes Act 1857,13 had subsumed the jurisdiction with respect to matrimonial causes previously exercised by the Ecclesiastical Courts. In accordance with the practice of the Ecclesiastical Courts in dealing with such matters, a Registrar of the Court directed that the appellant’s annulment proceedings be heard in camera. 28 After the parties’ union had been annulled by a decree absolute, the appellant circulated shorthand notes of the proceedings to, inter alios, the respondent’s father and sister. Thereafter, the respondent sought to charge the appellant in the Probate, Divorce and Admiralty Division of the High Court of Justice with contempt of court, insofar as the appellant had disseminated evidence and materials gathered and disclosed in camera to non-parties to the proceedings. At first instance, Bargrave Deane J found the appellant guilty of what appears to have been criminal contempt, and ordered her to pay the costs of the respondent’s application. In so holding, Bargrave Deane J stated that:14 It is manifest that the reason for trying such unhappy cases as this in camera is the protection of both parties, inasmuch as the details of evidence are of a very delicate and private character. The medical evidence and the evidence of the petitioner in particular is of such a nature that it ought to be kept absolutely private and not disclosed to any one. The object, and the result, of the inquiry into the most intimate relations of the parties is to shew which of the two parties has caused the state of things which eventuates in the decree of nullity. … One of the main objects of trying these unhappy cases in camera is that the evidence should be kept secret: the result may be made known, but none of the details may be published. It is gross contempt of Court for people to go spreading about the country particulars of that which is done in camera. It is gross contempt of Court to report anything heard in camera. It is the same even in regard to reporting summonses heard in chambers, or in Court as in chambers, which is, in effect, the same thing, unless by special leave of the judge. Justice Bargrave Deane’s findings were upheld by a majority of the Court of Appeal, which, owing to the peculiarity of the case, sat as a Full Court.15 29 Before the House of Lords, the primary question before the Law Lords was whether or not the Registrar’s direction that the annulment proceedings be heard in camera was properly within power, so as to support the conclusion that the appellant had acted in contempt of the Divorce Court. It was held that that direction was beyond power. Opining generally on the right of members of the public to attend upon, and observe proceedings before, Courts of Justice, the Earl of Halsbury, stated that:16 13 20 & 21 Vict, c 85. 14 Scott v Scott [1912] P 4, 6-7 (Bargrave Deane J). 15 See Scott v Scott [1912] P 241. 16 Scott v Scott [1913] AC 417, 440-1 (the Earl of Halsbury). -- 14 of 86 -- [2024] SASCA 133 Kourakis CJ 9 I am of opinion that every Court of justice is open to every subject of the King. … I believe this has been the rule, at all events, for some centuries … it has been the unquestioned rule since 1857, unquestioned by anything that I can recognize as an authority. Mr Lords, if this were merely an antiquarian investigation I might point to the treatise of Mr Emlyn in 1730, as a preface to the second edition of the State Trials, in six volumes folio. “In other countries,” Mr Emlyn says (at p iv), “the Courts of justice are held in secret; with us publicly and in open view.” He is there speaking of criminal trials, but he certainly has no good word to say of the Ecclesiastical Courts of his time, and if he could have added that they claimed a right to sit in secret he certainly would not have omitted to do so. From the woolsack, Viscount Haldane LC gave the leading judgment. The Lord Chancellor, in holding that the erstwhile practice of the Ecclesiastical Courts in determining such proceedings in camera was not to be adopted by the Divorce Court, as a Court of Justice, stated that:17 My Lords, it was not unnatural that the judges of the Divorce Court should have felt embarrassed by the want of the power which the old Ecclesiastical Courts possessed to hear in camera any case which for reasons of decency they thought ought to be so heard … But while the learned judge held, somewhat hesitatingly I think, that the Divorce Court had in a suit for judicial separation inherited the power of the Ecclesiastical Courts to hear in camera, he went on to say that even in suits for dissolution this could be ordered if it was reasonably clear that justice could not be done unless the hearing was so conducted. … In cases in other Courts, where all that is at stake is the individual rights of the parties, which they are free to waive, a judge can exclude the public if he demits his capacity as a judge and sits as an arbitrator. The right to invoke the assistance of a Court of Appeal may be thereby affected, but the parties are at liberty to do what they please with their private rights. In proceedings, however, which, like those in the Matrimonial Court, affect status, the public has a general interest which the parties cannot exclude, and I am unable to see how their consent can justify the taking of an exceptional course … In order to make my meaning distinct, I will put the proposition in another form. While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred.18 But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. … The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. 30 It can be observed that both speeches pointedly distinguished between the courts of England and ‘other countries’. I draw attention also to the careful and 17 Scott v Scott [1913] AC 417, 435-8 (Viscount Haldane LC, the Earl of Loreburn and Lord Atkinson agreeing). 18 Namely, the general position that cases involving the exercise of the Court’s parens patriae jurisdiction be heard in closed court. -- 15 of 86 -- [2024] SASCA 133 Kourakis CJ 10 precise identification in the speech of Viscount Haldane LC of the two competing interests of justice which may fall to be weighed against the open justice principle. In both examples, if the open justice principle were not modified, justice could not be done in litigation of that kind. Even then, the modification of open justice is not inexorable or absolute. While, as a matter of ordinary course, proceedings in the Court’s parens patriae jurisdiction, for instance, may be heard in closed court,19 the protections usually afforded by statute against publication in such matters may well be enough to protect the interests of the child the subject of the Court’s jurisdiction. In this regard, Brereton J remarked in Director-General, Department of Community Services; Re Jules that: 20 Proceedings in the Family Court of Australia — in which there is a large amount of litigation concerning the welfare, custody and guardianship of children — are not heard in closed court, although they are protected by a statutory prohibition on publication that would identify the parties. Adoption proceedings are required to be heard in closed court by the particular legislation which applies to adoptions, but traditionally special considerations of confidentiality have applied to them. I do not see why proceedings in the parens patriae jurisdiction, including for medical treatment orders, should as a general rule be heard in closed court. There may no doubt be some cases in which that course is appropriate, but ordinarily sufficient protection of the child will be achieved by a non- publication order of the type to which I have referred. 31 Speaking more specifically about proceedings of the kind instituted by the appellant, Viscount Haldane LC observed in Scott v Scott that:21 … it may well be that in proceedings in the Divorce Court, whether the proceedings be for divorce, or for declaration of nullity, or for judicial separation, a case may come before the judge in which it is evident that the choice must be between a hearing in public and a defeat of the ends of justice. Such cases do not occur every day. If the evidence to be given is of such a character that it would be impracticable to force an unwilling witness to give it in public, the case may come within the exception to the principle that in these proceedings, and not the less because they involve an adjudication on status as distinguished from mere private right, a public hearing must be insisted on in accordance with the rules which govern the general procedure in English Courts of justice. A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made. Whether this state of the law is satisfactory is a question not for a Court of justice but for the Legislature… My Lords, in my opinion the facts before Bargrave Deane J fell short of what was requisite to justify departure from the principle which requires the hearing, in all but exceptional cases of the class I have indicated, to take place in open Court. No doubt the petitioner and the respondent preferred to give their evidence in private. But the evidence actually given was of a brief and simple character, and it might without difficulty have been tendered in open Court. In my opinion there was no valid reason for hearing the case in camera and 19 See, eg, Scott v Scott [1913] AC 417, 483 (Lord Shaw of Dunfermline). 20 Director-General, Department of Community Services; Re Jules (2008) 40 Fam LR 122, 130 [25] (Brereton J). Cf Hospital v T [2015] QSC 185, [8]-[9] (Douglas J). 21 Ibid 438-9 (Viscount Haldane LC, the Earl of Loreburn and Lord Atkinson agreeing). -- 16 of 86 -- [2024] SASCA 133 Kourakis CJ 11 the order was made in reality for the benefit of the parties who concurred in asking for it, and was therefore made under a mistaken impression of law. (Underlining added) 32 The principles articulated by the House of Lords in Scott v Scott, in part, were extended by the Judicial Committee of the Privy Council in McPherson v McPherson,22 on an appeal from the Appellate Division of the Supreme Court of Alberta. In that case, the respondent instituted proceedings for divorce from the appellant, whom he alleged had engaged in an affair with a third party. The proceedings were undefended. Following the pronouncement of the decree nisi and decree absolute, the respondent remarried, following which the appellant instituted her own proceedings seeking to have the relevant decrees set aside, and an order for the restitution of her conjugal rights. Insofar as the decrees were concerned, the appellant contended that each was voided by the manner in which the trial Judge heard and determined the case, which was tried, unrobed, in the Supreme Court’s law library during the Court’s lunch adjournment. 33 Architecturally, it appears that the law library could be accessed through a corridor open to the public, following the traversal of which a person would have to walk through a double-swing door, upon which there was an inscribed plate informing any such traverser that the library was “Private”. As recorded in the headnote to the Appeals Cases report of the decision, the swing door was kept unfastened during the trial, and the inner door of the library, in which the suit was tried, was kept open throughout. Somewhat curiously, the trial Judge declared before sitting that the suit was, notwithstanding its obscured location, being heard in open court. At the time, the Supreme Court of Alberta did not publish a daily cause list and provided no written notice of cases to be argued therebefore to the public. Information could, however, be obtained from the Court’s orderlies, who were aware that the hearing was proposed to take place in the law library. Before the Board, underpinning the appellant’s contention that the impugned decrees were void ab initio was her assertion that, by sitting in a secreted and obscured location, the respondent’s divorce proceedings were not heard in open court as required by the common law. 34 Ultimately, the appeal was dismissed, though only on the ground that the impugned decree absolute was never void ab initio, but rather only voidable, and had, by the time of the appeal, become unassailable pursuant to s 57 of the Divorce and Matrimonial Causes Act 1857.23 The Judicial Committee, however, took the opportunity to emphasise that courtrooms must be open and accessible as a matter of principle, whether or not members of the public exercise their right to enter. In this regard, Lord Blanesburgh, delivering the advice of the Board, observed:24 22 [1936] AC 177. 23 20 & 21 Vict, c 85. 24 McPherson v McPherson [1936] AC 177, 197 (Lord Blanesburgh for the Board). -- 17 of 86 -- [2024] SASCA 133 Kourakis CJ 12 Had the learned judge on the occasion in question directed this divorce case to be taken in one of the empty Courts no greater degree of publicity would apparently, so far, have attended the proceedings. That observation serves to highlight that, in its earlier expositions, the open justice principle focussed on maintaining an open door to the courtroom. So much is also apparent from Lord Blanesburgh’s description of the steps which the Judge took to keep the door leading from the library to the corridor open whilst at the same time overlooking the swing door:25 The proceedings took place during the luncheon interval, probably as the most convenient hour for all concerned. They were in one respect less formal than those of an ordinary trial in open court. The learned judge was not robed. Neither was counsel. In other respects the proceedings seem to have been quite regular. Tweedie J entered the library from a door accessible only to judges. He was attended by an official shorthand writer and by the Assistant-Clerk of the Court — Mr Mason. Before taking his seat at the head of the table in the library he stated that he was sitting in open court … He directed Mr Mason to open and to keep open the door already mentioned leading from the library to the inner corridor. He evidently overlooked the swing door outside, with its appearance of being closed and its warning against public intrusion, for he gave no regard to that door. … Lord Blanesburgh continued:26 The facts of this case, for example, have little correspondence with those in Scott v Scott … Here … there was no actual exclusion of the public, although there was no actual public attendance. No such exclusion was intended nor, possibly, even desired. The learned judge would probably have been gratified by the presence of a small audience. But, even although it emerges in the last analysis that their actual exclusion resulted only from the word “private” on the outer door, the learned judge on this occasion, albeit unconsciously, was, their Lordships think, denying his Court to the public in breach of their right to be present, a right thus expressed by Lord Halsbury in Scott v Scott: “Every Court of justice is open to every subject of the King.” … But publicity is the authentic hall-mark of judicial as distinct from administrative procedure, and it can be safely hazarded that the trial of a divorce suit, a suit not entertained by the old Ecclesiastical Courts at all, is not within any exception. The actual presence of the public is never of course necessary. Where Courts are held in remote parts of the Province … there may be no members of the public available to attend. But even so, the Court must be open to any who may present themselves for admission. The remoteness of the possibility of any public attendance must never by judicial action be reduced to the certainty that there will be none.27 From that passage it may be noted that, again, the distinction is drawn between common law courts and the courts of civil law systems, and that the court door must be open to the public, howsoever remote the prospect of any member of the public being sufficiently interested to pass through it might be. 25 Ibid 198. 26 Ibid 199-200. 27 Ibid 199-200. -- 18 of 86 -- [2024] SASCA 133 Kourakis CJ 13 35 In A-G v Leveller Magazine Ltd,28 Lord Diplock succinctly articulated the question of principle in this way:29 … the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice. Generally, that test has been accepted in Australia as a correct statement of the law.30 36 The relevant principles which emerge from those authorities may be stated as follows. Subjecting judicial proceedings to public and professional scrutiny is in the interests of justice because it: informs the public as to how the judicial arm of government functions; promotes sound judicial decision-making; safeguards the integrity of judicial proceedings; and enhances public confidence in the administration of justice. Only in those exceptional cases in which public access would, in itself: compromise the fair and just resolution of the proceedings; cause substantial damage to private interests protected by the law; or frustrate a public interest connected with the administration of the law, can the door of the courtroom be closed. 37 Examples of private interests which may warrant departure from the principle of open justice are the need to maintain the confidentiality of commercial contracts and the protection of intellectual property rights.31 Turning to public interests which may warrant the closure of a court, I have mentioned the guardianship jurisdiction of this Court, a jurisdiction which does not, inexorably, demand that the Court close its doors to the public in the exercise thereof. The protective responsibility of this Court is also a proper interest in the administration of justice more generally which might be prejudiced if a court is not closed when a protected person is a party or a witness. Justice may not be able to be administered at all unless a vulnerable witness feels safe enough to testify, which may require a closed court hearing.32 Turning to another example of the public interest, the enforcement of the criminal law may be prejudiced if measures, which impinge on the open justice principle, are not taken to protect the identity of informants.33 28 [1979] AC 440. 29 Attorney-General v Leveller Magazines Ltd [1979] AC 440, 450 (Lord Diplock). 30 See, eg, Zhang v Age Co Pty Ltd [2023] ACTCA 10, [37]-[53] (McCallum CJ, Mossop and Kennett JJ), and the cases cited therein. 31 See, eg, Newcrest Mining Ltd v Santos WA Northwest Pty Ltd (No 2) [2022] WASC 410, [17]-[18] (Tottle J); Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 22) [2023] WASC 285, [49] (Smith J). 32 See, eg, Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 72 [68] (French CJ). 33 See, eg, ibid; Samuels (a Pseudonym) v The King [2024] SASCA 50, [9] (Livesey P). -- 19 of 86 -- [2024] SASCA 133 Kourakis CJ 14 38 I wish to emphasise by repetition that the abovementioned competing interests of justice are examples only and that the categories of interests that may be prejudiced are not closed. 39 Nonetheless, it follows that inherent common law or rules-based powers to order that a hearing, or part of a hearing, not be held in open court are not unfettered discretions to be exercised as the presiding judicial officer thinks desirable, having regard to a wide range of subjective considerations which might compendiously be described ‘as feelings of delicacy’, to borrow from the speech Viscount Haldane LC in [31] above. Rather, the exercise of the power must be based on an evaluative judgment that departure from the open justice principle is justified in order to preserve another object of the administration of justice. That evaluative judgment is an indispensable criterion for the power to be exercised judicially. 40 In South Australia, the open court principle has been given statutory force. 41 Section 46A of the Supreme Court Act provides: 46A—Sittings in open court or in chambers Subject to any provision of an Act or any rule to the contrary, the court’s proceedings must be open to the public. 42 Statutory headings are parts of the Act.34 The proceedings the subject of s 46A should, therefore, be construed to mean any form of hearing, whether final or interlocutory, and whether held in chambers, in court, or in court as in chambers. 43 Prior to the enactment of s 46A by the Statutes Amendment (Attorney- General’s Portfolio) Act 1996 (SA), s 45 of the Supreme Court Act provided: Place and time of sittings, and power to adjourn 45. (1) The court may sit and act at any time and at any place for the transaction of any part of the business of the court, or for the discharge of any duty under this or any other enactment. (2) The hearing or further hearing or determination of any cause or matter commenced in the court may be adjourned from time to time, and from place to place, as the court thinks fit. (3) A judge sitting in open court may adjourn for consideration in chambers any matter which in his opinion may be more conveniently disposed of in chambers; and any judge sitting in chambers may adjourn any matter to be heard in open court. 34 Legislation Interpretation Act 2021 (SA) s 19(1). -- 20 of 86 -- [2024] SASCA 133 Kourakis CJ 15 44 On the enactment of s 46A, s 45 and s 46 were substituted with the following provisions: Time and place of sittings 45. (1) The court may sit at any time (including a Sunday). (2) The court may sit at any place (either within or outside the State). (3) The court will sit at such times and places as the Chief Justice may direct. (4) Registries of the court will be maintained at such places as the Governor may determine. Adjournment from time to time and place to place 46. (1) The court may— (a) adjourn proceedings from time to time and from place to place; or (b) adjourn proceedings to a time, or a time and place, to be fixed; or (c) order the transfer of proceedings from place to place. 45 Section 45, as it was before the 1996 Statutes Amendment (Attorney- General’s Portfolio) Act, was premised on Chambers not being accessible to the public but being a more convenient forum for the disposal of interlocutory matters. 46 Section 46A reflects the changing practice of the Court at about that time, which moved the hearing of many interlocutory matters from the Chambers of its Judges and Masters, which were accessible only to practitioners through private corridors, into the courtrooms to which the public enjoyed access. That changed practice, and s 46A of the Supreme Court Act, reflect an evolutionary expansion of the open justice principle to encompass not only the final adjudication of a controversy but also the preceding steps in the proceedings. 47 The ‘rule to the contrary’ of which s 46A of the Supreme Court Act speaks, and to which the open justice principle is made subject, is not defined. In the Committee stages of the Bill, there was the following exchange between the Attorney-General, the Honourable KT Griffin, and another member of the Legislative Council, the Honourable RL Lawson QC, who were both closely familiar with the practice of the Court:35 The Hon. K.T. GRIFFIN: My recollection is that it arose from a representation from the judges as to the effect of the amendment rather than from a particular case. I will have that checked and, if there is any change from that response, I will ensure that the honourable member is informed, but it will be after the Bill passes through this Chamber. So far as the application of the amendment to any existing matter is concerned, when passed the Act will come into effect on a date to be fixed by 35 South Australia, Parliamentary Debates, Legislative Council, 9 July 1996, 1656 (KT Griffin, RD Lawson). -- 21 of 86 -- [2024] SASCA 133 Kourakis CJ 16 proclamation. My understanding is that there is nothing in the pipeline that will be adversely affected by this, but I can undertake to check that and, if it is likely to have some adverse effect, we will do all that we can to ensure that that is mitigated as far as is possible to do so. However, I do not think there will be a problem in that context. Clause passed. Clauses 9 to 34 passed. Clause 35—‘Substitution of sections 45 and 46.’ The Hon. R.D. LAWSON: I refer to proposed new section 46A to which the marginal note reads, ‘Sittings in open court or in chambers’. The clause goes on to provide that, subject to any other Act or rule, ‘the court’s proceedings must be open to the public’. Is that provision a change to the existing law because I do not understand it to be? If it is a change, why is it necessary? In relation to proposed new section 46B, this provision enables the Governor by proclamation to require that the sittings of the Supreme Court be held with a specified frequency in specified parts of the State. So far as I am aware, the Governor does not have power to require sittings of a court such as the Magistrates Court, for example, in any particular parts of the State, that being left to the discretion of the Courts Administration Authority. Is it intended to remove from the Courts Administration Authority and vest in the Governor power to require Magistrates Courts, for example, to sit with specified frequency in specified parts of the State? The Hon. K.T. GRIFFIN: So far as the heading for proposed new section 46A is concerned, it is probably correct because, if one looks at 46A, it is subject to any provision of an Act or any rule to the contrary that courts’ proceedings must be open to the public. It seems that if there is an intention to ensure that matters in chamber are not open to the public, that is covered by a rule of court. The principal Act does not specifically deal with this issue. Proposed new section 45 refers particularly to a judge sitting in open court in subsection (3) in relation to adjournments and any judge sitting in chambers may adjourn any matters to be heard in open court. Certainly, the intention of the section was to give the court the power to make its own rules which will determine what limitations should be placed upon sittings which should generally be in public but, when in chambers, may not necessarily be so. 48 It is capable of including a rule made by a judicial officer which is in the nature of an order, or, as the Attorney-General explained, a rule of court made pursuant to s 72(1) of the Supreme Court Act. However, it should not be understood to leave the matter to the unfettered discretion of individual judicial officers. The ‘rule to the contrary’ must be an evaluative decision in a particular case, or an exercise of the statutory rule-making power, that the interests of justice warrant a departure from the general rule legislated by s 46A of the Supreme Court Act. 49 Section 46A of the Supreme Court Act is reinforced by r 15.3 of the UCR, which provides: 15.3 Hearings ordinarily in court in public -- 22 of 86 -- [2024] SASCA 133 Kourakis CJ 17 (1) Hearings are ordinarily held in a place open to the public. (2) The Court may conduct a hearing in chambers if it considers it necessary or desirable to preserve the health of the participants or that it is otherwise in the interests of justice to do so. (3) The Court may, on its own motion or on application by any person, order that specified persons, or all persons except those specified, absent themselves from a hearing under section 69 of the Evidence Act 1929. 50 Rule 15.3(1) applies the open justice principle generally to all hearings. Although, as a rule of Court, the Court retains a discretion to order, inter alia, that r 15.3(1) not be applied, or be modified in its application, pursuant to r 12.1(2)(a) of the UCR, it retains no such discretion with respect to the statutory mandate contained in s 46A of the Supreme Court Act. 51 Rule 15.3(2) appears to contrast a private hearing held in Chambers with a hearing held in a court open to the public. It identifies two grounds for conducting a hearing in Chambers: it being in the interests of justice; or it being necessary or desirable to ensure the preservation of the health of a participant. Plainly enough, the preservation of the health of a participant is a much higher threshold than mere distress and anxiety of the kind which participants commonly experience. Were it otherwise, the exception would swallow the rule. Were it otherwise, it would disingenuously depart from the aphorism that “All litigation is stressful”.36 The rationale for that ground is that the administration of justice in public should not harm the health of the participants in the action. To ignore their health may frustrate the achievement of justice in that particular case, and deter others from seeking justice. 52 Rule 15.3(3) reflects the power in s 69 of the Evidence Act and does not add to it. Given the lower threshold for excluding the public enacted by s 69(1) of the Evidence Act, it is difficult to envisage the circumstances in which r 15.3(3) of the UCR would ever fall to be applied. If it were to apply, a question would arise as to whether a transcript of the kind required by s 69(2) of the Evidence Act should also be provided on an application by a party. I tend to the view that it should. At the very least, r 15.3(2) of the UCR should not be engaged on the ground that a participant’s health might be harmed, for the purpose of denying the public a transcript of the proceedings in those cases. Different considerations apply if there is a reason in the interest of justice to deny access to the evidence. 53 The common law principle of open justice rests on liberal democratic political values of transparency, integrity, and accountability in the exercise of judicial power. It follows that the common law principle may be affected by statutory provisions which manifest a legislative judgment on the scope and weight 36 Kearney v Amirbeaggi [2022] NSWSC 805, [20] (Beech-Jones CJ at CL). See also Nest & Nest (No 2) [2014] FamCA 269, [13] (Berman J). -- 23 of 86 -- [2024] SASCA 133 Kourakis CJ 18 to be given to that principle. There should be no incoherence between statutory statements of the principle and the common law. 54 As we have seen, the core of the early common law statements of the open justice principle could be expressed as an ‘open court door’ rule. Urbanisation, and the centralisation of courts, have challenged the efficacy of the open court door rule. Courthouses are now often some distance from the community out of which the controversy arose. Over time, too, the public has become accustomed to relying on news media reports of judicial proceedings. Amendments to s 69A of the Evidence Act over the last four decades have placed increasing weight on the open justice principle and have extended it from an open court door rule to include public dissemination of information about court proceedings. I deal with the reach of s 69A of the Evidence Act further below, but, for now, the point I seek to make is that attention must be given to that provision when considering the scope and application of the court’s inherent or implied common law powers to exclude members of the public from courtrooms or to deny them access to its records. 55 In particular, I would emphasise that it would generally be wrong to conduct a proceeding, or part of a proceeding, in closed court in order to deny access to a record of the Court because, if the information became known, a suppression order would not be made pursuant to s 69A of the Evidence Act. If a proper exercise of the discretion conferred by s 69A would not result in a suppression order, rarely should the proceedings be concealed from a smaller number of the public who wish to come into the courtroom to observe the hearing or who seek access to the records of the court at the registry. Preservation of reputation – an interest of justice? 56 It has been observed thus far that it is only where the conduct of a proceeding before the public gaze would itself prejudice the administration of justice, whether by virtue of the underlying subject-matter of the proceeding, or for some other recognised reason, that the common law departs from the open justice principle. 57 The prejudice to the administration of justice on which Mr Belperio relied before the Tribunal, and before this Court, was that his professional and personal reputation would be unfairly damaged if the allegations were published before, and without, the charges being proved. At the level of principle, a number of obstacles stand in the way of that contention. First, there is no obvious interest in the administration of justice connected to personal and professional reputation.37 It is not analogous to commercially confidential information or intellectual property. Nor does it raise a public interest in the administration of justice like the encouragement of informers or victims to engage in the enforcement of the 37 See, eg, J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, 12 (Fitzgerald P and Lee J); Reynolds v Panten (1999) 23 WAR 215, 230-1 [75]-[77] (Steytler J). -- 24 of 86 -- [2024] SASCA 133 Kourakis CJ 19 criminal law. To this end, as McCallum CJ, Mossop and Kennett JJ recently observed in Zhang v Age Co Pty Ltd:38 … The costs of open justice include costs to the privacy and reputation of individuals, the potential costs to the fairness of trials, the risk of sensationalisation and distortion of what occurs in court, and risks to the security of individuals and governments … Where the balance falls between the undoubted benefits of open justice and its costs is a legitimate subject for debate. Further, where the balance falls may change over time. Modern technology has reduced the technical and physical barriers to mass collection and distribution of information and this changes the consequences of the application of the open court principle, potentially increasing the costs to people’s privacy or reputation without a corresponding increase in the discipline imposed upon the judicial system. Similarly, it may be affected by the extent to which media organisations conduct themselves responsibly and the extent to which media reporting is seen to be advancing the public interest in a manner which is consistent with the values of fairness and impartiality underlying the proper administration of justice. 58 Indeed, the common law has not recognised such an interest in the case of criminal defendants generally. The short-lived statutory protection given to defendants charged with sexual offences39 was based on now exploded myths and remains only as collateral consequence of the protection of a victim’s privacy. 59 Secondly, publicity before adjudication is necessarily an ordinary incident of the open justice principle. 60 Thirdly, consistently with the open justice principle, a bare statement that a person has been charged with a criminal offence or disciplinary action, if that is the truth of the matter, is not defamatory. The law of defamation does not protect the charged person from the harm to his or her reputation caused by the reporting of that fact. However, the law of defamation protects persons charged with an offence from commentary on the allegations which seeks to pre-empt their proper adjudication, as observed by Steytler J in Reynolds v Panten:40 Acceptance of [the open justice] principle does not have the consequence that individual rights, whether to the protection of reputation or otherwise, might, at will, be exposed to unjustifiable attacks in circumstances in which publication of those attacks will ordinarily be protected by privilege (cf R v Horsham Justices (at 797)). Great harm can, as was mentioned by Kirby P in Raybos Australia Pty Ltd v Jones (at 59-60), be done to individuals by the widespread circulation of protected reports of their involvement in criminal or quasi criminal proceedings in circumstances in which this damage might be quite unjustifiable. 61 Fourthly, there is a strong, countervailing, public interest in the public knowing that persons who hold a licence to practise in a professional capacity, and are, therefore, held out as fit and proper persons to do so, are subject to charges 38 Zhang v Age Co Pty Ltd [2023] ACTCA 10, [49] (McCallum CJ, Mossop and Kennett JJ). 39 Evidence Act 1929 (SA) s 71A; R v Hermes; Ex parte V [1963] SASR 81, 84 (Napier CJ, Travers and Hogarth JJ). 40 Reynolds v Panten (1999) 23 WAR 215, 231 [78] (Steytler J). -- 25 of 86 -- [2024] SASCA 133 Kourakis CJ 20 which, if proved, may result in a finding that they are not fit and proper to do so and the suspension or revocation of their right to practise. 62 Counsel for Mr Belperio contended that, even if proved, the professional misconduct with which he is charged might not lead to a finding that he is not a fit and proper person to practise the law, because the conduct was not directly connected to legal practice. It is beyond argument that professional misconduct ‘on the part of a legal practitioner may extend to conduct in his private capacity’.41 Professional misconduct encompasses conduct ‘occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law’.42 The setting in which it is alleged Mr Belperio engaged in misconduct was a social occasion but was closely connected to Mr Belperio’s practice as a barrister and F’s employment in a firm which often briefed him. It is alleged that F attended that occasion because Mr Belperio asked a more senior solicitor in that firm to ask her to attend. That conduct, on its face, involves two imbalances of power, founded in the hierarchy of the legal profession. 63 The charge alleged that Mr Belperio further abused the imbalance of power inherent in his relative seniority and as a member of the Bar in the way he conducted himself towards the junior solicitor in a public bar, and later in his Chambers. 64 Should the charge be proved against Mr Belperio, he is likely to be found to have behaved in a way which brings his fitness to practise as a legal practitioner into question.43 The administration of the law is premised on respect for the equal human dignity of all persons. The charged conduct, if proved, is antithetical to that most fundamental of all liberal democratic values. 65 There is a public interest in relatively junior legal practitioners, and their employers and supervisors, knowing that the charges have been brought so that it may be taken into account before deciding to brief Mr Belperio. It is a matter for them to give the fact that a contested charge has been brought, but not yet determined, such weight as they see fit in discharging their duties to their clients and employees. There is also a public interest in clients knowing of the charges before accepting a solicitor’s advice to brief Mr Belperio. Suppression of the information is not only contrary to the open justice principle, and, therefore, liable to diminish public confidence in the disciplinary regime, it is also a paternalistic denial of the personal autonomy of those legal practitioners and of members of the public who may have dealings with Mr Belperio in his professional capacity. 41 Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148, 163 (Lockhart J), citing Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. 42 LPA s 69(b). 43 Roylance v General Medical Council (No 2) [2000] 1 AC 311, 332 (Lord Clyde for the Board), quoted in Reyes v Dental Board of South Australia (2002) 83 SASR 551, 559-60 [33] (Duggan J). See also A County Council v W (Disclosure) [1997] 1 FLR 574, 581 (Cazalet J); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279, 289 [56] (Spigelman CJ, Mason P and Handley JA agreeing). -- 26 of 86 -- [2024] SASCA 133 Kourakis CJ 21 66 In Legal Profession Conduct Commissioner v A Practitioner (No 2),44 Nicholson J agreed to anonymise the respondent in the judgment his Honour delivered so that publication would not adversely affect the respondent’s reputation before the charge was heard and determined. His Honour did so on the understanding that the judgments of the Court are disseminated as a matter of course to judicial officers and members of the profession and to free online legal publishers, such as AustLII and BarNet Jade. 67 Justice Nicholson made the point that his order was neither a suppression order, nor an order prohibiting in any way a member of the public from making an application to see the judgment and other parts of the file pursuant to s 131(1)(f) of the Supreme Court Act. The form and style of the judgments delivered and disseminated by a court are a matter for the judges of that court. 68 Nonetheless, in the course of the judgment, Nicholson J surveyed changes over time of the approaches to the publication of disciplinary proceedings brought against practitioners before they are determined. Much of that history is set out in Re Legal Practitioners Ordinance 1970; Ex parte Law Society (ACT); Re Giles.45 In short, the traditional rule was that the practitioner’s name would be suppressed until an adverse finding had been made. The 19th Century justification for the rule was that the charge might not be proved and that, therefore, ‘a becoming delicacy should be observed in such applications’.46 It will be recalled that in Scott v Scott47 Viscount Haldane LC firmly rejected the proposition that ‘feelings of delicacy’ alone were enough to justify departure from the open justice principle. The traditional rule was rejected in New South Wales in Re Charles Wood Readett48 and Ex parte Pratt; Re P V M’Culloch,49 but restored in Re a Gentleman, One.50 The traditional rule was formulated before the exposition of the open justice principle in Scott v Scott and is, therefore, of doubtful authority. It was also formulated at a time when the public interest in the regulation of the legal profession was little recognised. The inclusion of lay persons in the membership of disciplinary bodies in the late 20th Century marks a fundamental shift in that respect. 69 The traditional rule was applied in this State in Re a Practitioner of the Supreme Court, where Bray CJ, Mitchell and Zelling JJ observed:51 There is no doubt, we think, that it is proper to make a suppression order in matters such as this until the matter has been finally disposed of, or that it is proper in normal circumstances for the Court to make a perpetual order when the charge is dismissed. Equally the name should be released if there is an order for disbarment or suspension. The present case is in 44 (2017) 128 SASR 444. 45 (1985) 61 ACTR 1, 4-5 (Blackburn CJ, Kelly and Gallop JJ). 46 Re (Attorney) (1860) 2 LT Rep (NS) 432, 432 (Erle CJ). 47 [1913] AC 417, 438-40. 48 (1888) 5 WN (NSW) 20, 20 (Darley CJ, Windeyer and Stephen JJ). 49 (1889) 6 WN (NSW) 31, 31 (Darley CJ). 50 (1897) 13 WN (NSW) 229, 229 (Darley CJ, Stephen and Owen JJ). 51 [1970] SASR 199, 202. -- 27 of 86 -- [2024] SASCA 133 Kourakis CJ 22 the doubtful borderland between the two, where there is an adverse order but only of admonition. 70 Ultimately, the Court did not make a suppression order and revoked an order prohibiting the publication of the practitioner’s name. Section 69 of the Evidence Act then provided that a suppression order could be made ‘for the furtherance of, or otherwise in the interests of, the administration of justice’. The decision in Re a Practitioner pre-dates by nearly three decades the amendments to the Evidence Act which strengthened and extended the scope of the open justice principle. I consider the relative width of that expression in contrast to the narrower terms of s 69A of the Evidence Act further below. Moreover, it was decided well before s 131 of the Supreme Court Act in its current expansive form. The decision in Scott v Scott was not referred to. 71 The prevailing attitude of the profession and the Court at the time Re a Practitioner was decided, favoured keeping information about disciplinary matters from the public. It was considered a matter to regret that ‘the Statutory Committee of the Law Society has not the power that other professional bodies have, to deal … with minor and venial infractions of professional discipline’52 in private. There is a notable omission in the reasons of the Court in Re a Practitioner of any reference to the public interest in disclosure so that members of the public could make informed choices about the legal practitioner with whom to entrust their personal affairs, transactions, or litigation. As I have already observed, a practitioner subject to disciplinary proceedings continues to be held out by this Court, as the ultimate licensing authority, to be a fit and proper person to practise law. Without in any way diminishing the importance of the presumption of innocence, which in this respect has the effect that the practitioner is entitled to practise unless and until the charge is proved, and a sanction which removes or limits that right is imposed, a charge necessarily brings that privilege into question. It is no small matter to conceal from the public that a practitioner’s entitlement to practise has been brought into question, and the reason(s) therefor, by the laying of a charge for a disciplinary offence and the grounds on which the charge is brought. The reasonably prudent member of the public would take into account that a practitioner has a pending charge, and the nature of the charge, before entering into a relationship in which he or she must rely on the practitioner discharging his or her professional and fiduciary duties. 72 The move toward the recognition of the public’s interest in having information about whether the professional person being consulted is subject to disciplinary proceedings is reflected in the decisions of the disciplinary bodies 52 Re a Practitioner of the Supreme Court [1970] SASR 199, 201-2 (Bray CJ, Mitchell and Zelling JJ). -- 28 of 86 -- [2024] SASCA 133 Kourakis CJ 23 constituted in respect of other professions: that public interest is served by the ultimate purpose of such proceedings, being the protection of the public.53 73 In WEQ (a Pseudonym) v Medical Board of Australia,54 the Victorian Court of Appeal set aside a suppression order made in wide terms by the Victorian Civil and Administrative Tribunal (“VCAT”). WEQ was a registered medical practitioner who was a party to parenting proceedings in the Family Court of Australia. Evidence of WEQ’s conduct was referred to the Medical Board of Australia, and evidentiary material adduced in the parenting proceedings was released to the Medical Board by the Family Court. Even though s 121 of the Family Law Act 1975 (Cth) prohibited publication of certain accounts of proceedings instituted under that Act, the material was only released on condition that the Medical Board apply for confidentiality orders in any subsequent disciplinary proceedings. 74 The Medical Board commenced disciplinary proceedings against WEQ in VCAT and applied for a proceeding suppression order under s 17 of the Open Courts Act 2013 (Vic) (the OC Act). The Tribunal made the following broad orders: (a) a pseudonym order in respect of the applicant; (b) a proceeding suppression order prohibiting reporting of any part of the proceeding or information derived from the proceeding that might enable the applicant, his former wife, their children, other family members, witnesses in the Family Court proceeding or the respondent’s witnesses in the disciplinary proceeding to be identified. This order was expressed to operate until the death of all of the persons falling within those categories; and (c) a direction restricting access to the Tribunal file. 75 The order was made on the statutory ground that it was necessary for ‘any other reason in the interests of justice’ pursuant to s 18(1)(f)(ii) of the OC Act. WEQ applied for the order to be revoked. The Tribunal refused that application. 76 The Court of Appeal described the importance of, and rationale for, the open justice principle in these terms:55 The principle of open justice is a fundamental rule of the common law, and an essential part of the functioning of the Australian justice system. Its purpose is to expose proceedings to ‘public and professional scrutiny’ and inform the public how judicial (or administrative) power is exercised, and on what evidential basis. This enhances 53 Craig v Medical Board of South Australia (2001) 79 SASR 545, 553-4 [41] (Doyle CJ, Williams and Martin JJ agreeing); Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118, [46] (Stanley J, Peek and Blue JJ); Marin v Chiropractic Board of Australia [2020] SASCFC 74, [2] (Kourakis CJ, Peek and Nicholson JJ agreeing). 54 (2021) 69 VR 1. 55 (2021) 69 VR 1, 15 [59]-[60] (Kyrou and McLeish JJA). -- 29 of 86 -- [2024] SASCA 133 Kourakis CJ 24 accountability, and assists in maintaining public confidence in the integrity and independence of courts and tribunals. An aspect of the principle of open justice is that what occurs in open court (or an open tribunal) may be publicised. Persons present in an open court or tribunal may disseminate to others who were not present fair and accurate reports of the proceedings, including the names of the parties and witnesses and the evidence given. It has been said that proceedings must be ‘exposed in their entirety to the cathartic glare of publicity’, subject only to limited exceptions ‘sparingly allowed’. 77 I pause here to observe that the Court in WEQ accepted that the open justice principle both allows persons present in Court to discuss with others what they heard or saw and entails a right to wider dissemination of the information. The Court of Appeal explained the public interest in knowing about disciplinary proceedings in these terms:56 In disciplinary or criminal proceedings, this aspect of the principle of open justice assumes particular importance as there is a special public interest in the community knowing the outcome of such proceedings. The publicity of disciplinary proceedings assists in protecting the public, signals to the relevant profession what is and is not acceptable professional conduct, and serves the purposes of specific and general deterrence. (Underlining added) 78 The Court of Appeal then explained the specific purpose of the broadly stated ground ‘any other reason in the interest of justice’ ground in the context of the Tribunal’s disciplinary jurisdiction over health practitioners:57 In the present case, the Tribunal justified its order on the basis that it was necessary for ‘any other reason in the interests of justice’, a broadly framed ground available only to the Tribunal: s 18(1)(f)(ii).58 In providing the Tribunal this broad ground, Parliament’s apparent intent was to make allowance for the broad range of applications involving confidential ‘health and other personal information’ on which the Tribunal adjudicates, including in its guardianship and human rights lists. 79 The Court of Appeal held, as wide as it was, that that the ground did not extend to saving health practitioners from professional or personal embarrassment:59 At common law, the principle of open justice is not displaced simply because a suppression order would spare a party (and their family members or associates) embarrassment, shame or humiliation. The possibility of reputational damage or embarrassment to a party (and to their associates) is an incident of the principle of open justice and not usually a reason to depart from it by making a suppression order. Despite the breadth of the ‘interests of justice’ ground, there is no reason to think that it operates so as to widen the common law in this respect. Something more is required than 56 (2021) 69 VR 1, 15 [61] (Kyrou and McLeish JJA). 57 (2021) 69 VR 1, 16-17 [68] (Kyrou and McLeish JJA). 58 The provision reflects former s 101(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which the OC Act repealed. 59 (2021) 69 VR 1 at [69]-[72]. -- 30 of 86 -- [2024] SASCA 133 Kourakis CJ 25 the avoidance of embarrassment or reputational harm. (We leave to one side the specific power of the Tribunal under s 18(1)(f)(i) to make a proceeding suppression order where necessary to avoid the publication of confidential information, upon which reliance has not been placed.) In the context of disciplinary proceedings, the ‘interests of justice’ ground has been relied on by the Tribunal to suppress the identity of complainants or persons who have ‘notified’ the professional regulator of suspected misconduct, and the identity and confidential information of patients or clients of practitioners subject to disciplinary proceedings. However, recognising the enhanced public importance of the principle of open justice in disciplinary proceedings, the Tribunal has only rarely relied on this ground to suppress the identity of the person the subject of disciplinary proceedings, even when the allegations against that person are not ultimately sustained. Such orders in the case of health practitioners have been described as ‘uncommon’. On the occasions when such an order has been made, it has been because it was established that publicity would imperil the health and safety of the professional or their family. Of course, the categories of case in which a proceeding suppression order may be needed in the interests of justice are not closed. The nature of the Tribunal’s jurisdiction is such that it may often hear evidence of an acutely sensitive nature which would make publication more than ordinarily invasive of a person’s privacy. This is one of two elements invoked under the ‘interests of justice ground’ in this case. The other element is the consent orders and the operation of s 121 of the Family Law Act. (Emphasis added, footnotes omitted) 80 The reasoning of the Court of Appeal and its conclusion that the professional and personal reputation of an individual is not an interest which would usually displace the open justice principle is persuasive. With respect, I would adopt it and apply it to both the implied, inherent, or rules-based powers of this Court and to ss 69 and 69A of the Evidence Act. Indeed, I would go further and hold that, in and of itself, harm to the personal or professional reputation of a person charged with unsatisfactory professional conduct or professional misconduct does not attract the protection of any interest of justice generally, and adverse publicity of that nature will not generally prejudice the administration of justice in the disciplinary proceedings, or any review of those proceedings. I accept that, in any particular case, publicity and consequential distress might prejudice the administration of justice in the disciplinary, or another, proceeding. For example, mental health consequences flowing from the distress might compromise the individual’s capacity to defend the charges, or the publicity might prejudice the impartial determination of another disciplinary or attendant criminal charge. 81 Neither of these potentialities, however, detracts in any way from the general proposition that the preservation of a person’s personal or professional reputation is a consideration exogenous to determining whether the proper administration of justice demands that proceedings before a Court be closed to the public. Inherent in the idea of open justice is the public ventilation of the identities of parties in litigation before the Courts, an overview of the reasons for that litigation, and any result flowing therefrom. Mr Belperio’s contentions to the contrary ought to be, and are, accordingly, rejected. -- 31 of 86 -- [2024] SASCA 133 Kourakis CJ 26 Suppression orders 82 Division 2 of Pt 18 of the Evidence Act provides, by s 69A, for the making of suppression orders and, by s 69, for orders clearing a court. 83 The current provisions of that Division are better understood in the context of their legislative history. 84 As originally enacted, s 69 of the Evidence Act provided that: 69. (1) Where it appears to any Court— i. that the publication of any evidence given or used or intended to be given or used, in any proceedings before such Court, is likely to offend against public decency; or ii. that for the furtherance of, or otherwise in the interests of, the administration of justice it is desirable to prohibit the publication of the name of any party or intended party to, or witness or intended witness in, any such proceedings, the Court may, either before or during the court of the proceedings or thereafter, make an order— (a) directing that the persons specified (by name or otherwise) by such Court, or that all persons except the persons so specified, shall absent themselves from the place wherein such Court is being held while such evidence is being given; or (b) forbidding the publication of such evidence, or any specified part thereof, or of any report or account of such evidence, or any specified part thereof, either absolutely or subject to such conditions, or in such terms or form, or in such manner, or to such extent, as may be approved by such Court; or (c) forbidding the publication of the name of such party or witness. … (3) When the Court makes an order under paragraph (b) or paragraph (c) of subsection (1) hereof, forbidding the publication of any evidence or any report or account of any evidence, or the publication of any name, the Court shall report the fact to the Attorney-General, and shall embody in its report a statement of— (a) the evidence or name (as the case may be) by such order forbidden to be published; and (b) the circumstances in which the order was made. -- 32 of 86 -- [2024] SASCA 133 Kourakis CJ 27 85 Section 69 was thereafter amended by the Evidence Act Amendment Act 1979 (SA), s 12 of which substituted the following text into s 69: 69. (1) Where a court considers it desirable to exercise powers conferred by this section— (a) in the interests of the administration of justice; or (b) in order to prevent undue prejudice or undue hardship to any person, it may, by order— (c) direct that any person specified (by name or otherwise) by the court, or that all persons except those specified, absent themselves from the place in which the court is being held during the whole or any specified part of the proceedings before the court; (d) forbid the publication of specified evidence, or of any account or report of specified evidence either absolutely, or subject to conditions determined by the court; or (e) forbid the publication of the name of— (i) any party or witness; or (ii) any person alluded to in the course of proceedings before the court, and of any other material tending to identify any such person. (2) When a court makes an order under paragraph (d) or (e) of subsection (1) of this section, the court shall report the fact to the Attorney-General and shall embody in its report a statement of— (a) the evidence or name (as the case may be) forbidden to be published; and (b) the circumstances in which the order was made. (3) An order made under this section may be varied or revoked by the court by which the order was made (whether constituted of the same or a different judicial officer). (4) An appeal shall lie against a decision of a court to make, or not to make, an order under this section. 86 Notably, the Court’s power to order that the Court be cleared for the whole of proceedings, or any part thereof, was conferred alongside its power to make an -- 33 of 86 -- [2024] SASCA 133 Kourakis CJ 28 order forbidding the publication, directly or by allusion, of the names of parties and witnesses or evidence given in the course of proceedings. Both powers were exercisable when a court considered it desirable to exercise the power, as before, in the interests of justice, but now also in order to prevent prejudice or undue hardship to any person. It was not unusual for orders to be made when the section was in that form to save a relative of an accused undue hardship.60 The two powers were disaggregated upon the enactment of the Evidence Act Amendment Act (No 3) 1984 (SA), s 4 of which enacted s 69 of the Evidence Act in its current form, alongside a new section – s 69A – concerned specifically with suppression orders. 87 The new s 69A empowered a court to make a suppression order where it considered it desirable to do so in the interests of the administration of justice or to prevent undue hardship to any person. 88 By the Evidence Act Amendment Act 1989 (SA) (“the 1989 Amending Act”), significant amendments were made to s 69A because of the concern of the Executive and the public about the ‘quality of some suppression orders made by the courts and the bases upon which they have been made’.61 The enlivening condition ‘considers it desirable’ was replaced with a requirement that the Court be satisfied that a suppression order should be made. In the Second Reading Speech for the Bill, the Attorney-General, the Honourable Christopher Sumner, explained that the Bill addressed ‘the existing potential for subjectivity of a court’s decision-making process’. The purpose of the 1989 Amending Act was stated to be to impose ‘an objective, proof-based’ test and to thereby ‘ensure that the decision-making processes of the court are more readily and accurately accessible and, as a corollary, more open to public scrutiny and accountability’. 89 The Bill for the 1989 Amending Act, as first introduced, provided as that test satisfaction that it is the interests of the administration of justice to make the suppression order.62 90 The Shadow Attorney-General, the Honourable KT Griffin, moved an amendment that proposed that the only ground on which a suppression order should be made in criminal proceedings be prejudice to the proper administration of justice. In respect of other proceedings, either that ground or the prevention of undue hardship might justify a suppression order. Certain crossbenchers favoured retaining a wide discretion. 91 The final form of the 1989 Amending Act empowered courts to make a suppression order if satisfied that it should be made to prevent prejudice to the proper administration of justice or to prevent undue hardship to a victim of crime 60 Cf G v The Queen (1984) 35 SASR 349. 61 South Australia, Parliamentary Debates, Legislative Council, 15 March 1989, 2415 (Christopher Sumner, Attorney-General). 62 South Australia, Parliamentary Debates, Legislative Council, 15 March 1989, 2415 (Christopher Sumner, Attorney-General). -- 34 of 86 -- [2024] SASCA 133 Kourakis CJ 29 or a witness, or potential witness, in civil or criminal proceedings who was not a party. 92 The 1989 Amending Act was also responsive, in two respects, to observations made by King CJ in G v The Queen63 on the effect of s 69 as enacted in 1984. First, the test ‘prevent prejudice to the proper administration of justice’ addressed the observations of King CJ in G v The Queen about the width of the former test ‘in the interests of the administration of justice’. In G v The Queen, King CJ had observed that the phrase encompassed ‘many situations which are more suitably considered under the ground of undue prejudice or undue hardship’.64 93 Secondly, in G v The Queen, King CJ denied that s 69 of the Evidence Act as it was in 1984 evinced any presumption for or against publication:65 It is true … that “it is the policy of the law that justice should be conducted publicly”. It does not follow, however, that the law has any policy in favour of the dissemination of information by way of publication of an accused’s name before conviction. The most that can be said is that the law permits such publication unless it is prohibited by s 71a or by an order made on any of the grounds specified in s 69. I do not discern in the requirement in s 69(2) that the court report the fact and circumstances of an order under s 69 to the Attorney-General or in any other provision of the Act, any presumption one way or the other. The outcome of an application to prohibit publication of the name must depend upon the circumstances of the particular case and cannot be determined by reference to any supposed policy or presumption for or against publication. 94 The new subsection 69A(2) enacted by the 1989 Amending Act effectively reversed that position by providing that the public interest in the publication of information related to court proceedings, and the consequential right of the news media to publish such information, must be recognised as ‘considerations of substantial weight’. 95 In 1999, s 69A of the Evidence Act was amended once again to include undue hardship to a child as a reason to make a suppression order. At the same time, a number of amendments were made in respect of the competency of children to give evidence and the way in which their evidence should be treated. Mass media publication was extended to include the internet and like forms of publication. The Second Reading Speech explained why children were included in the undue hardship ground: There may be situations, however, where a child, although not a victim or a witness, has some connection with the proceedings such that his or her welfare may be harmed by the publication of his or her identity. As an example, the child may be related to or live with the accused or the victim. If identifying material was published, the child may be victimised at school, ostracised in social situations or may otherwise suffer hardship. This Bill permits the court to make a suppression order to protect such a child. For the exercise of this power, it is not necessary that the child fall into any particular category or establish 63 (1984) 35 SASR 349,350-1. 64 G v The Queen (1984) 35 SASR 349, 351. 65 G v The Queen (1984) 35 SASR 349, 351. -- 35 of 86 -- [2024] SASCA 133 Kourakis CJ 30 any particular connection with parties or the case. Rather, the sole criterion is the welfare of the child. The court will need to consider each case individually. 96 A further amendment strengthening the open justice principle was made in 2006. The Second Reading Speech in the Legislative Council, by the then Attorney-General, the Honourable Paul Holloway, stated that the purpose of the amendments was ‘to send a strong signal to the courts that they must give more weight to the public interest in publication’. Section 69A(2) was amended to require a court to recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice. A suppression order could only be made if there were special circumstances giving rise to a sufficiently serious threat of prejudice to the proper administration of justice or undue hardship so as to justify the making of the order. 97 I turn now to Div 2 of Pt 18 of the Evidence Act as it now stands. A court is authorised to make an order excluding persons from being present in court by s 69 of the Evidence Act. It now provides: (1) Where a court considers it desirable in the interests of the administration of justice, or in order to prevent hardship or embarrassment to any person, to exercise the powers conferred by this section, it may order specified persons, or all persons except those specified, to absent themselves from the place in which the court is being held during the whole or any part of the proceedings before the court. 98 It is to be observed that the subsection has maintained ‘desirability’ as the threshold for making an order excluding persons from the courtroom and that the enlivening conditions are set by reference to relatively low thresholds ‘[not undue] hardship and embarrassment’ to any person. The terms of the sections suggest a wide discretion to manage a hearing in a way which is conducive to eliciting the testimony of vulnerable witnesses. 99 Subsections (1a) and (1b) mandate the making of a particular form of clearing order where the alleged victim of a sexual offence is to give evidence and where child exploitation material is adduced. The focus of those provisions is no longer any sensibility about public decency, but rather the protection of children and victims. 100 Section 69 of the Evidence Act also provides for the subsequent publication of the testimony of a witness given in the absence of members of the public: (2) The court may, on the application of a person against whom an order under subsection (1) operates, make available to him a transcript of evidence, and a record of proceedings, taken before the court during the operation of the order. (3) Where a court refuses an application under subsection (2), the applicant may appeal against the refusal. 101 Subsection (2) is important. It is consistent with the primary purpose of s 69 being to put witnesses at ease to facilitate the giving of evidence, because it makes provision for the subsequent provision of a transcript of that testimony. The -- 36 of 86 -- [2024] SASCA 133 Kourakis CJ 31 provision of the transcript is in the discretion of the Court. Moreover, the transcript may be provided in a redacted form and subject to conditions limiting its publication. Alternatively, a suppression order may be made if the conditions enlivening that power are established. The option of providing transcript allows more latitude to close a court than would otherwise be the case if the excluded person(s) had no means to ascertain what evidence was given.66 102 For the above reasons, a manifest purpose of s 69(1) of the Evidence Act, and a primary reason for its application, is to facilitate the administration of justice by ensuring that a witness is not burdened by giving an account of embarrassing or humiliating events in a courtroom full of strangers. Again, it can be accepted that other proper occasions for its application may arise when it is desired to limit access to the transcript of the hearing. However, it should not be used for a collateral purpose which undermines access to, and publication of court hearings, when to do so would neither prejudice the administration of justice nor cause undue hardship to a victim, witness or child. Effectuation of the proper interpretation of s 69(1) of the Evidence Act requires this Court to prefer an interpretation that concords with the purpose of that section to one that does not.67 103 I observe here that the focus of s 69(1) of the Evidence Act on the facilitation of the giving of testimony allows space for the proper exercise of the other powers authorising the closure of a court, in respect of the receipt of documentary evidence. The documentary evidence so received would, as we shall see, only be accessible with the permission of the Court. However, as a general rule, in contrast to the threshold for the exercise of the power conferred by s 69(1) of the Evidence Act, a court should only be closed in the exercise of the Court’s inherent or rules-based powers if it is necessary to prevent prejudice to the proper administration of justice. That is, as is immediately obvious, a much higher threshold than the test imposed by s 69(1) of the Evidence Act. 104 Section 69A authorises a court, defined by s 68 of the Evidence Act to include any person who acts judicially, to make a suppression order. The terms of the order so described are found in s 68, which defines a ‘suppression order’ to mean an order: (a) forbidding the publication of specified evidence or of any account or report of specified evidence; or (b) forbidding the publication of the name of— (i) a party or witness; or (ii) a person alluded to in the course of proceedings before the court, and of any other material tending to identify any such person. 66 See Chambers v James Cook University (No 2) (1995) 61 IR 145, 148-9 (Spender J). 67 See, eg, Carr v Western Australia (2007) 232 CLR 138, 142 [5] (Gleeson CJ). -- 37 of 86 -- [2024] SASCA 133 Kourakis CJ 32 The word ‘evidence’ is, in turn, defined by the same section to include any statement made before a court. The word ‘publish’ is defined to mean: … publish by newspaper, radio or television, or on the internet, or by other similar means of communication to the public; 105 Importantly, the necessary element of ‘communication to the public’ by the mass media or similar means excludes private communications from the scope of the suppression order. Suppression orders do not burden the freedom of members of the community, as amongst themselves, to engage in private discussion of, or debate over, judicial proceedings, of which they have learnt from their very presence in a courtroom, by accessing transcripts or other records of the Court or from someone else. 106 Section 69A(1) confers the power to make a suppression order in these terms: 69A—Suppression orders (1) Where a court is satisfied that a suppression order should be made— (a) to prevent prejudice to the proper administration of justice; or (b) to prevent undue hardship— (i) to an alleged victim of crime; or (ii) to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or (iii) to a child, the court may, subject to this section, make such an order. 107 I again draw attention to the narrower expression ‘to prevent prejudice to the proper administration of justice’ which remains in (a) instead of the wider ‘desirable in the interests of the administration of justice’ ground which has been retained in s 69 of the Evidence Act and its predecessor provisions. 108 It should be observed that a suppression order will only protect an alleged victim, witness, or a child from ‘undue hardship’ and cannot be made to prevent undue hardship to a party to a proceeding. That is a significant change from the section’s predecessors. The exclusion of the parties to litigation from the protective regime of s 69A of the Evidence Act manifests a policy choice to give greater weight to the open justice principle, than to the hardship, even undue hardship, which publicity about litigation often visits upon the parties. 109 Applicants who invoke the jurisdiction of Australian courts to settle a controversy, and respondents who do not wish to submit to the orders sought, must accept that justice as between the parties will very often be administered in the public gaze. Witnesses generally have much less choice over whether they will be -- 38 of 86 -- [2024] SASCA 133 Kourakis CJ 33 called to give evidence, but they will only qualify for a suppression order if the hardship they will suffer by reason of any publicity is ‘undue’. 110 Undue hardship requires an evaluative judgment that the hardship that will be endured by a person is greater than that suffered in the generality of cases.68 That judgment requires close attention to the nature of the witness’ testimony and any peculiar circumstances of the witness affecting that hardship. 111 In G v The Queen,69 King CJ explained the concept in these terms: Some degree of hardship could be expected to be caused by publicity to almost every person, other than the known hardened criminal, who is charged with a criminal offence. The use of the adjective “undue” to qualify “hardship” in the section, indicates that something more than that ordinary degree of hardship is required. I do not think that the mere fact that a person who is well known in the community, or follows a particular calling, and is therefore likely to attract greater publicity than another, can be sufficient. There would be little point in a statutory provision which prevented the publication of names which would not be published anyway and which authorised the prohibition of names on the very ground which would be likely to attract publicity: In re a Prosecution under the Customs Act. Moreover, it seems to me that the circumstances must be very rare in which hardship in the form of distress or physical or mental harm to others could be shown to be the likely result of publication of an accused person’s name: In re a Prosecution under the Customs Act at p 456. That ground is often resorted to in support of applications under s 69. In most cases, however, it cannot be shown that the publication of the name will add very much if anything to the distress and suffering which those close to the accused will suffer from the knowledge that he has been charged and that that fact is known or will soon be known, irrespective of publication, to his friends and close acquaintances. Cases must be rare in which the added factor of media publicity would cause significantly additional distress or physical or mental harm. 112 Section 69A(2) sets a high threshold for the making of a suppression order, even for non-parties: (2) If a court is considering whether to make a suppression order (other than an interim suppression order), the court— (a) must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and (b) may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case. 113 I observe, first, in respect of para (a), that the legislature has demanded of courts not only recognition that a primary objective of the administration of justice is the open justice principle, but also that that principle encompasses the right of the media to publish information relating to court proceedings. In that regard, 68 See generally Channel Nine SA Pty Ltd v Police (2014) 119 SASR 447, 458-9 [64]-[67] (Blue J). 69 (1984) 35 SASR 319,352. -- 39 of 86 -- [2024] SASCA 133 Kourakis CJ 34 s 69(2)(a) of the Evidence Act legislatively extends the common law principle of open justice to include a right to mass publication of judicial proceedings. 114 Secondly, the consideration in para (a), and the terms of the necessary precondition articulated in para (b), confirm that an evaluative judgment is required, and that the power to make a suppression order is not an unfettered discretion. 115 An appeal against a decision granting or refusing a suppression order may be brought by persons who did not appear before the Court which made the suppression order, and the powers of the appeal court conferred by s 69B include making any order that could have been made in the first instance. Those provisions, too, suggest that the appeal is by way of a hearing de novo which also suggests that the judgment is evaluative in nature and not discretionary. I note here, however, that in Channel Nine SA Pty Ltd v Police,70 Blue J held that he was bound by the decision of the Full Court in G v The Queen71 which held, on an appeal from such a decision that the standard of appellate review articulated in House v The King72 applies.73 However, Blue J expressed the view that if the question was at large he would have found it to be a question of mixed fact and law. Moreover, as we have seen s 69A of the Evidence Act was substantially amended after the decision in G v The Queen.74 116 The procedural requirements attached to an application by s 69A(5) also manifest the weight placed by the legislature placed on the open justice principle, in its extended sense, of including widespread publication by the news media: (5) Where an application is made to a court for a suppression order— (a) any of the following persons, namely: (i) the applicant for the suppression order; (ii) a party to the proceedings in which the suppression order is sought; (iii) a representative of a newspaper or a radio or television station; (iv) any person who has, in the opinion of the court, a proper interest in the question of whether a suppression order should be made, is entitled to make submissions to the court on the application and may, with the permission of the court, call or give evidence in support of those submissions; 70 (2014) 119 SASR 447 (Blue J). 71 (1984) 35 SASR 349 at 351. 72 (1936) 55 CLR 499. 73 Channel Nine SA Pty Ltd v Police (2014) 119 SASR 447, 454-5 [39]-[41] (Blue J). 74 (1984) 35 SASR 349 at 351. -- 40 of 86 -- [2024] SASCA 133 Kourakis CJ 35 (b) the court may (but is not obliged to) delay determining the application to make possible or facilitate non-party intervention in the proceedings under paragraph (a)(iii) or (iv). 117 Moreover, s 69A establishes a regime for the reporting of the making of a suppression order: (8) If a court makes a suppression order, the court must— (a) as soon as reasonably practicable forward to the Registrar a copy of the order; and (b) except in the case of an interim suppression order—within 30 days, forward to the Attorney-General a report setting out— (i) the terms of the order; and (ii) the name of any person whose name is suppressed from publication; and (iii) a transcript or other record of any evidence suppressed from publication; and (iv) full particulars of the reasons for which the order was made. (9) If a court orders the variation or revocation of a suppression order, the court must as soon as reasonably practicable forward a copy of the order to the Registrar. (10) The Registrar— (a) will establish and maintain a register of all suppression orders; and (b) will, immediately after receiving a copy of a suppression order, or an order for the variation or revocation of a suppression order, enter the order in the register; and (c) will, when an order is entered in the register, immediately transmit by fax, email or other electronic means notice of the order to the nominated address of each authorised news media representative. 118 Section 69A(13) of the Evidence Act defines “authorised news media representative” to mean a person: (a) who is nominated by a member of the news media to be the member’s authorised representative for the purpose of receiving notices under subsection (10)(c); and (b) who has given the Registrar a notice specifying the representative’s nominated address for the receipt of notices under subsection (10)(c); and (c) who has paid the relevant fee or fees (which may consist of, or include, periodic fees) fixed by the regulations; nominated address of a nominated representative means the fax number, email address or other address for the receipt of electronic communications nominated by the representative -- 41 of 86 -- [2024] SASCA 133 Kourakis CJ 36 as the address to which notices may be sent to the representative by the Registrar under subsection (10)(c); 119 The terms and legislative history of Div 2 of Pt 18 of the Evidence Act maintain a clear intention to restrict the power of courts to make suppression orders in order to maintain and extend the principle of open justice. The evidence 120 The grounds upon which Mr and Mrs Belperio rely to maintain their anonymity are: 1. expected damage to Mr Belperio’s personal and professional reputation; 2. injury to Mr Belperio’s mental health, which will compromise his capacity to earn a livelihood; 3. Mr Belperio’s mental health will be so affected by publication of the allegations against him that he is unlikely to have the psychological and mental capacity to defend them before the Tribunal properly; 4. undue hardship to the couple’s daughter; and 5. undue hardship to his Mrs Belperio, who might be a witness in any disciplinary proceedings before the Tribunal. 121 The first two grounds must fail for the reasons given in [56] to [81] above. For reasons which are given below, the evidence does not establish that there is an appreciable risk that Mr Belperio’s mental ability to defend himself will be compromised. Nor does the evidence establish that Mrs Belperio or the couple’s children will suffer any hardship over and above that which is a necessary and common incident of the open justice principle. Even if the hardship could be characterised as undue, the evidence falls well short of establishing a sufficient prospect of any of those eventualities occurring so as to outweigh the open justice principle in these particular proceedings. Nonetheless, I would give liberty to apply to seek an order suppressing the names of the children and the school they attend if additional evidence to that end comes to light. 122 Mr Selley’s letter of instruction to Mr Broomhall dated 8 September 2024 informed Mr Broomhall that Mr Belperio had been charged by the Commissioner ‘with professional misconduct in that it is alleged that he made inappropriate advances to a younger female practitioner in June 2020’. It referred to an article published in The Advertiser, which had reported on the charge brought against Mr Belperio without naming him, but which had referred to the practitioner the subject of such charge as a ‘sex pest’. Mr Broomhall was instructed that the Court of Appeal was considering ‘whether to lift interim restrictions which effectively de-identify him as the person subject of the charges’. The letter records that the solicitor was instructed to seek a suppression order to prohibit the publication of -- 42 of 86 -- [2024] SASCA 133 Kourakis CJ 37 the practitioner’s name and details of the offending. It asked Mr Broomhall to express opinions on: 1. whether Mr Belperio was suffering from a mental condition; and 2. whether the publication of Mr Belperio’s name as the person subject of the charges was likely detrimentally to affect his mental health. 123 In his report, under the heading ‘Assessment Methodology’, Mr Broomhall disclosed that he had received telephone calls on the day before he received the letter of instruction: I received telephone calls 7 September 2024 related to Mr Belperio. From these calls it was understood that Mr Belperio’s matter had been heard in court 6 September 2024 as to whether interim orders should be lifted. These matters were due to be considered further on 9 September 2024. Observations from legal practitioners and family indicated a significant deterioration in Mr Belperio’s mental health in the past week relating to these matters and more specifically, the publication in the newspaper relating to a de-identified ‘sex-pest’ Adelaide Barrister. As will be apparent, some of the circumstances referred to in that paragraph were not in the solicitor’s request for a report. 124 Mr Broomhall was cross-examined at the hearing on Friday, 13 September 2024. By that time, counsel for the Commissioner had requested, and had received, a copy of Mr Broomhall’s notes from his interview of Mr Belperio. It appeared from that cross-examination, and is recorded in the notes which the Court subsequently received, that one of the calls Mr Broomhall received on Saturday, 7 September 2024, was from Mr Edwardson KC. Mr Edwardson KC practises from the same Chambers as Mr Belperio. It appears, from such limited evidence as there was about Mr Edwardson KC’s involvement, that he did not call Mr Broomhall on instructions, but rather as a personal favour for Mr Belperio. Nonetheless, it was Mr Edwardson KC who told Mr Broomhall that the report was sought to support an application for a suppression order. Mr Broomhall saw Mr Belperio by way of an online consultation on the same day. Only on the next morning did Mr Edwardson KC inform Mr Broomhall that a request for a report would come from Mr Belperio’s solicitor, Mr Selley. 125 Mr Broomhall testified that it was Mr Edwardson KC who informed him that there had been a hearing on 6 September 2024 and that there would be a further hearing on 9 September 2024. Importantly, it was also Mr Edwardson KC who informed Mr Broomhall of the observations, recorded in the passage from Mr Broomhall’s report extracted above, of legal practitioners and family members which indicated a ‘significant deterioration in Mr Belperio’s mental health in the past week’. No direct evidence from any of those practitioners or family members, apart from the affidavit of Mrs Belperio, was put before the Court. -- 43 of 86 -- [2024] SASCA 133 Kourakis CJ 38 126 The significance of the unusual way in which Mr Broomhall was engaged is that it is inconsistent with rr 74.2 and 74.10 of the UCR which relevantly provide: 74.2 Letter requesting expert report (1) A party who requests an expert to provide an expert report must, within 7 days of arranging for the expert to provide an expert report, send a letter to the expert— (a) setting out the assumptions the expert is requested to make for the purpose of expressing an opinion; (b) setting out any investigations the expert is requested to make for the purpose of expressing an opinion; (c) setting out the materials provided to the expert for the purpose of expressing an opinion; (d) setting out the questions on which the expert is asked to express an opinion; and (e) attaching a copy of Divisions 3 and 4 of this Part. (2) A party who requests an expert to provide an expert report must, within 7 days of sending a letter to the expert under subrule (1), serve on each party to the proceeding a copy of the letter. 74.10 Content of report An expert report prepared by an expert must – … (d) state the qualifications of the expert to prepare the report; (e) state the assumptions and material facts on which each opinion expressed in the report is based (whether by annexing a letter of instructions or otherwise); 127 The information conveyed by Mr Edwardson KC was not an instruction from Mr Belperio’s solicitor to assume that information to be correct. It was not included in the letter of instruction subsequently sent to Mr Broomhall by Mr Selley. The importance of experts acting only on those assumptions which a party’s solicitor asks them to make requires no explanation. Nor does the embarrassment which may be caused to a party or his/her solicitor, and the Court, need any explication. Moreover, the application of rules which require the disclosure of expert reports might be undermined if a request for report is made by a person who is not bound by those rules. 128 Mr Broomhall interviewed Mr Belperio on Saturday, 8 September 2024, over the Zoom online platform for 90 minutes. Mr Broomhall elicited the following information about the practitioner: -- 44 of 86 -- [2024] SASCA 133 Kourakis CJ 39 • he had a strong, positive relationship with his wife to whom he had been married for a decade; • he had not been diagnosed with a mental health condition; • he first experienced significant mental health symptoms after the complaint was made against him and he consulted a psychologist regularly between 2020 and 2023, who advised him not to tell his wife about the charge; • by concealing the charge from his wife, he found relief at home with his family; • he felt able to continue to work as a barrister and engage as a husband and father whilst defending the allegations because of the anonymity of the proceedings as they progressed through the Tribunal; • he became very anxious and suffered significant symptoms of mental illness and distress after a report was published in The Advertiser on 3 September setting out the allegation of professional misconduct by a barrister and labelling the unidentified practitioner as a ‘sex pest’; • he subsequently disclosed the charge to his wife because he was worried that he might be identified; • his distress and depressive symptoms significantly increased when his solicitor informed him on Friday, 6 September 2024, that this Court might lift the interim restrictions on the publication of his name, prompting him to seek urgent health care. 129 Mr Broomhall administered an online psychometric evaluation, known as the ‘Personality Assessment Inventory’ (“the PAI”). Completion of the inventory results in an automatically generated report with both quantitative measures derived from assigning numerical values to the responses and a qualitative commentary on those measures. The extent of individualised professional contribution to what, Mr Broomhall testified, is largely template commentary is not known: Mr Belperio’s PAI results showed elevated scores on the clinical scales of distress and clinical level of depressive symptoms generally. 130 Mr Broomhall testified that he did not recommend or implement any intervention to address Mr Belperio’s symptoms. 131 Mr Belperio’s PAI scores indicated, among other things, a loss of interest in activities, indecisiveness, difficulties relaxing, high levels of stress, and feelings of sadness. The scores were also indicative of an individual who is generally self-effacing and lacking in confidence in social interactions. There was no -- 45 of 86 -- [2024] SASCA 133 Kourakis CJ 40 evidence on how well those scores matched the perceptions of people who know Mr Belperio. 132 The PAI assessment listed as the primary DSM-5 diagnostic possibility a Major Depressive Disorder: Single Episode, Unspecified. The PAI assessment also scored an attribute described as ‘positive impression management’. The commentary on that score suggested a need for care in relying on the interpretative hypothesis in the report. 133 In his report, Mr Broomhall echoed the PAI assessment, concluding that, as at the date of his assessment, Mr Belperio met the diagnostic criteria for a Major Depressive Disorder: Single Episode, Severe. Mr Broomhall’s report appears carefully to be calculated to stop short of proffering Mr Broomhall’s professional diagnosis to that effect, perhaps because he saw Mr Belperio on only one occasion, and for the purposes of a forensic assessment in an online consultation. 134 On several occasions in his cross-examination, Mr Broomhall maintained that same distinction, proffering only the opinion that Mr Belperio’s symptoms met the diagnostic criteria for a Major Depressive Disorder as at the day of the assessment.75 135 However, Mr Broomhall also testified that Mr Belperio had suffered from those symptoms for at least two weeks prior to the assessment, and that that condition had probably fluctuated over a four-year period.76 It is unlikely that a Major Depressive Disorder could exist on the day it is clinically diagnosed if there were no prodromal symptoms. However, Mr Broomhall struggled to identify any such symptoms in the history he elicited from Mr Belperio. 136 For example, when Mr Broomhall was taken to his notes recording that Mr Belperio had been able to continue to practise as a barrister, his explanation was that people suffering from depression could compartmentalise their condition and continue to perform day-to-day activities, including work. So much may be accepted, but, plainly enough, that Mr Belperio has been able to maintain his practice as a barrister precludes a finding or indication that his supposed disorder has impacted his working life, so as not to amount to an observable symptom of a Major Depressive Disorder. Mr Broomhall reviewed his notes whilst in the witness box, searching for a record of depressive symptoms preceding his clinical assessment. In that context, Mr Broomhall drew attention to Mr Belperio’s account that he had not informed his wife of the charge. Mr Broomhall’s note in that respect reads ‘saw a P (Psychologist) who recommended he didn’t tell Leesah. Shock may not be good for relationship. Didn’t want to burden her with the stress of …’. Mr Broomhall sought to characterise this observation in response to a question from the Bench as one ‘[c]ertainly’ indicating ‘an aspect of social withdrawal’.77 It was put to Mr Broomhall that perhaps Mr Belperio was too 75 T23; T27.22. 76 T26-27. 77 T31. -- 46 of 86 -- [2024] SASCA 133 Kourakis CJ 41 embarrassed or ashamed to tell his wife. Mr Broomhall first responded that he would allow the Court to judge whether it indicated withdrawal or shame. When Mr Broomhall was pressed on why his opinion was that Mr Belperio’s failure to tell his wife was certainly an indication of withdrawal, Mr Broomhall asserted, inscrutably, that that was just his opinion. Mr Broomhall’s opinion is not supported by his own note of the reason Mr Belperio gave for not telling his wife. 137 Mr Belperio’s statement to Mr Broomhall that he could engage with work, family, and friends is also inconsistent with Mr Broomhall’s opinion that Mr Belperio had a history of withdrawing from social interactions and occasions. 138 Mr Belperio also told Mr Broomhall that Mr Belperio had a loving and happy home life with great support. Mr Belperio reported that his wife had expressed the view that the ‘past 4 years [had] been the best of [their] marriage’. Indeed, Mrs Belperio deposed in her affidavit of 9 September 2024 that, until recent days, she had always viewed the marriage as a good one. When it was put to Mr Broomhall that that was not indicative of social withdrawal, he responded that Mrs Belperio’s perception had been formed in ignorance of the charge. With respect to Mr Broomhall, it was the very point of the question that Mrs Belperio’s perception, whether in ignorance or otherwise, in itself indicated that her husband was present and engaging in their relationship. In short, Mr Broomhall’s information that both Mr and Mrs Belperio perceived their marriage positively is directly inconsistent with his opinion that Mr Belperio’s failure to disclose the charge to his wife was an indication of his withdrawal from the relationship. 139 Mr Broomhall was asked:78 Q. Right and those things, how your partner, spouse, is behaving, interacting, a level of emotional engagement, are all very important things that go to how good the marriage feels to the partner. A. Yes, your Honour, but there is a major part missing in that story around how he’s actually functioning. 140 Mr Broomhall appears to have conflated Mr Belperio’s internalised distress about being charged with his outward behaviour. 141 Mr Broomhall’s notes also record that Mr Belperio told him that he could engage with ‘work and family and that he had a good life with friends’. When it was put to Mr Broomhall that that note was inconsistent with social withdrawal, Mr Broomhall answered:79 I’m not sure that necessarily engaging with people is an indicator of how well somebody is engaging with people. He’s perhaps not being honest about what he’s going through in his life. 78 T35.34-36.1. 79 T36.16-19. -- 47 of 86 -- [2024] SASCA 133 Kourakis CJ 42 With respect, both propositions are trite, and the latter certainly true in respect of Mrs Belperio. However, once again, the point is that, on its face, the history given to Mr Broomhall does not disclose prodromal symptoms of a Major Depressive Disorder over a two-week, and possibly as long as a four-year, period before the clinical assessment. 142 Mr Broomhall did not include Mr Belperio’s positive view of his engagement with work, family, and friends in his report. When Mr Broomhall was asked why he had not done so, he answered:80 A. I don’t know, your Honour, I couldn’t answer that question. Q. You accept that it appears on its face subject to your explanations as to compartmentalisation and internal distress, on its face could also be an indication that he’s not suffering major depression. Those statements which weren’t included in your report. A. Again, it’s a complex description in a report to put forward that whilst he was able to engage with people at a social level, perhaps he was still burdened by a sense of self-consciousness or guilt and not really wanting to engage with people or the quality of that engagement. Q. It’s because of the complexity of explaining that it doesn’t appear in your report. A. I would guess so, your Honour, yes. 143 It is a surprising proposition that an expert might not include in a report information which, on its face, contradicts or qualifies his opinion because it is too complex to explain, to the Judges and skilled lawyers who will read the report, why the expert’s opinion is nonetheless reasonably held. 144 Mr Broomhall in effect, explained away evidence which did not fit his hypothesis on the basis that manifestations that Mr Belperio was functioning well were a façade which belied his internal distress. That may be so. However, the purpose of the questioning was to ascertain the evidential basis on which Mr Broomhall formed the opinion that Mr Belperio had the symptoms of a Major Depressive Disorder for two weeks, and up to four years, before his consultation. The evidence to the contrary provided by Mr Belperio’s statements cannot be tortured into their very opposite. The weak evidence of prodromal symptoms necessarily casts doubt on the opinion that Mr Belperio met the diagnostic criteria for a Major Depressive Disorder on 8 September 2024. 145 It can be accepted that the administration of justice might be prejudiced if a party loses the capacity to attend hearings and give instructions in defence of charges laid against that party. However, Mr Broomhall’s report does not prognosticate on those risks. Instead, he makes some sensible recommendations as to the reasonable steps which can be taken to safeguard against it. Accordingly, the evidence falls short of establishing that it is necessary to suppress 80 T37.1-16. -- 48 of 86 -- [2024] SASCA 133 Kourakis CJ 43 Mr Belperio’s name, or to take alternative measures such as closing the Court, and making redactions, in order to ensure his defence of the charge is not prejudiced. 146 Mr Broomhall referred to the effect of publicity of the charge on Mr Belperio’s wellbeing in the following paragraph: Mr Belperio is most concerned about potential impact of his name being made public on his wife, a current practicing [sic] solicitor, and his daughter in the school yard. He fears for their well-being, feels shame and guilt for causing distress and is concerned about the reputational damage to his wife and himself even if he should be cleared in future of any wrongdoing. Mr Belperio was adamant that he would face the legal proceedings with a sense of confidence and faith in the justice system should the interim orders remain in place. He was less confident of his ability to cope emotionally should his name be made public. 147 That paragraph does no more than record Mr Belperio’s reported concerns, which are of a kind commonly experienced by persons who face allegations of wrongdoing. Mr Broomhall does not proffer an opinion on whether the feelings reported by Mr Belperio might compromise his capacity to work or to defend the charges. 148 Mr Broomhall recommended some sensible prophylactic measures which should be put in place if the interim suppression regime was lifted. The evidence did not disclose any reason why those measures could not be put in place, nor any reason to conclude that they would be unlikely to control his symptoms effectively. 149 I turn next to consider whether Mrs Belperio’s circumstances may justify an order suppressing Mr Belperio’s name, either on the ground of undue hardship to her, or on the ground that the administration of justice might be prejudiced because her distress may interfere with her ability to testify in the Tribunal’s inquiry into the charge. 150 In her affidavit sworn on 9 September 2024, Mrs Belperio deposed that she met her husband in 2008 and that they were married in 2014. Mrs Belperio deposed that she was not told until the evening of Tuesday, 3 September 2024, that her husband was the subject of a charge of professional misconduct, alleging that he sexually harassed and acted with gross indecency toward a female practitioner on 19 June 2020. Understandably, she was upset and angry that her husband, apparently following his psychologist’s advice, had not told her of the allegations beforehand. 151 Mrs Belperio deposed that her husband appeared to be quite distressed on Friday, 6 September 2024, the day on which Mr Belperio was informed that the interim suppression order may be lifted. 152 Mrs Belperio deposed that she was only very recently informed by her husband’s solicitor that she might need to give evidence in the Tribunal when the charge proceeds to a hearing. The solicitor had explained to her that he was ‘unable to make an assessment at this point in time whether [Mrs Belperio] will -- 49 of 86 -- [2024] SASCA 133 Kourakis CJ 44 need to give evidence because he does not yet know what evidence might be led by the Commissioner, to which evidence from [Mrs Belperio] might be relevant beyond to say that my observations of Enzo when he arrived at the party I was at may be relevant’. The basis for the opinion implied in the solicitor’s advice has not been disclosed. 153 Mrs Belperio deposed that she did not have a vivid recollection of the night upon which her husband is said to have engaged in the charged conduct, but that, on that day, she had had lunch with her colleagues from work because one of their number was leaving. They moved on to the home of a colleague in the evening, where Mrs Belperio had arranged to meet her husband. She remembers that Mr Belperio came to the colleague’s home at some point, but she could not recall exactly ‘when [he] arrived or his state of sobriety’. Nonetheless, she deposed that she did not have a recollection of him being heavily intoxicated. The partying continued at the home of yet another colleague until the early hours of the morning. 154 It is not at all obvious why anything would turn on when Mr Belperio arrived at the party. It is alleged that he and the complainant were in an Uber shortly before he arrived at the house where he joined his wife. The timing of that journey should be ascertainable by recourse to electronic records evidencing, and kept by Uber regarding, the trip taken. Moreover, it is, of course, extremely doubtful that, after so many years, Mrs Belperio could be anywhere near precise enough about the time her husband arrived to preclude, or even render improbable, the case against Mr Belperio. More fundamentally, even though this matter was originally listed for hearing before the Tribunal on 24 May 2023, on Mr Belperio’s application that the proceedings be dismissed as being an abuse of process or otherwise unmaintainable, it appears from Mrs Belperio’s affidavit that she was not approached to give evidence until the week before she swore her affidavit. Of course, Mrs Belperio had not, at that time, been apprised by her husband of the nature of the allegations against him. Plainly enough, that placed some restraint on the preparation for the hearing which might otherwise have been undertaken. Nonetheless, it can be inferred that Mr Belperio did not at that time consider that his wife’s testimony was important enough to obtain her statement before her memory began to fade. 155 It is even less likely that anything will turn on the state of Mr Belperio’s sobriety. There is no reason to apprehend that the level of Mr Belperio’s intoxication is directly relevant to the allegation. It might arise in a very collateral way as to credit depending on what, if anything, F testifies as to Mr Belperio’s state of sobriety, or by way of explanation for his disinhibition if any inappropriate conduct is admitted or found proved. 156 The prospect that Mrs Belperio may be called as a witness is, therefore, at best, speculative. -- 50 of 86 -- [2024] SASCA 133 Kourakis CJ 45 157 Even though Mrs Belperio uses her maiden name in her professional life, it is generally well-known that she is married to Mr Belperio and internet searches would readily reveal their relationship. 158 Mrs Belperio deposed to the undue hardship that publication in the media would cause her in these terms: [11] After learning of the allegations on Tuesday night, I went to work on Wednesday in fear that someone might suggest that the unnamed male barrister with children was known to them to be Enzo. … I cannot bear the thought of people in the profession discussing this matter. Enzo has shown me correspondence sent by Gillian Walker to the Bar Association and Victoria Gilliland to the Law Society regarding this matter and he has also shown me post on Reddit obviously made by female members of the profession. Now produced and shown to me and marked LMB4 is a bundle of the correspondence and Reddit posts I have seen. 159 The loss of employment may amount to undue hardship.81 In the circumstances of any given case, the reasonably anticipated loss of employment might amount to hardship that is; unwarranted, excessive or too great’.82 However, Mrs Belperio deposed that she contemplated resigning because she was married to Mr Belperio, and not because she might be a witness which at that time could not have been known by others. Moreover, even though Mrs Belperio has contemplated resigning, she has not deposed to an intention to do so. Mrs Belperio has not put any evidentiary material before the Court about her workplace and the supports it has in place, or the lack of them, that would allow this Court to give that risk much weight. 160 As distressing as Mrs Belperio might find facing her professional colleagues and acquaintances should her husband be publicly named as the barrister against whom the relevant charge has been laid, hardship of that kind is an inherent consequence of the charging of a person with allegations of criminal or professional misconduct that must be tried by a court or tribunal in due course. The remarks of Doyle CJ in Packer v Police, in this respect, are apposite to the present case:83 It is appropriate to bear in mind that when charges are laid, especially a charge of a sexual offence, the family of the person charged will usually suffer some embarrassment, and some transferred odium. The fact of the charge will usually become known to people who know them well and to others with whom they associate. … even a person living in a large town or in a major city will move within various circles within which the fact of a charge is likely to become known. … The judicial task does not involve subtracting from whatever degree of hardship might be made out, that degree of hardship that is inevitable. Precision of that kind is not possible. Rather, it is a matter of considering the hardship that is established, that bearing in mind 81 G v The Queen (1984) 35 SASR 349, 352. 82 Packer v Police (2007) 247 LSJS 410, 412 [22] (Doyle CJ). 83 Packer v Police (2007) 247 LSJS 410, 412 [23], [25] (Doyle CJ). -- 51 of 86 -- [2024] SASCA 133 Kourakis CJ 46 that hardship to family members, at least in a case like this, is something that is almost inevitable to some degree. 161 Finally, Mrs Belperio expresses concern that she may not be well enough to participate in the Tribunal hearing: [14] I am genuinely concerned that if Enzo is publicly personally identified, or if the circumstances of Enzo’s alleged misconduct are publicly revealed before the inquiry takes place in the Tribunal, the effect of the public disclosure on me will be such that I will not feel able to attend Tribunal hearings to support Enzo or to give evidence in his case because of the humiliation I believe I will feel and ridicule I believe I will experience because I will be perceived to be supporting someone who is publicly labelled a “sex pest”. This is particularly so in circumstances where as I apprehend the material in LMB1, LMB3 and LMB4, I would likely be perceived by women in the profession or at least a significant number of them as a woman who is associated with and continues to support a sexual predator. 162 As I have already observed, it should be accepted that it might prejudice the administration of justice if a witness is so distressed by publicity and the consequential controversy about his or her testimony that it precludes his or her participation in the hearing. However, as genuine as Mrs Belperio’s subjective concern no doubt is, it does not provide a sound foundation on which to infer that she will, in fact, be so incapacitated. 163 The application made in respect of Mrs Belperio can only be founded on the basis that she is a potential witness in the Tribunal proceedings and will suffer undue hardship if her husband is identified. Mrs Belperio’s status as a potential witness is very tenuous. Her assertion that she may be a witness is based on information received from Mr Selley, who, as noted above, has not himself deposed to the basis or reasonableness of his view. Moreover, the hardship which Mrs Belperio fears she might suffer stems primarily from the embarrassment to her and the distress of her children, if the accusations are published widely, irrespective of whether she is called on to give evidence. There is no apparent reason why arrangements cannot be made for her to give evidence in written form and, if cross-examination is necessary, why it cannot be undertaken remotely. 164 I am not satisfied that Mrs Belperio will suffer undue hardship or that the administration of justice will be prejudiced by reason of her inability to testify in the Tribunal hearing. 165 Mrs Belperio deposed as to her concern about the effect on her daughter: [15] More than myself, I am concerned about my children, particularly [our daughter]. My concern is not confined to the immediate time but the potential for [our daughter] to find in years to come on the internet a reference to her father as being the person labelled a “sex pest”. [Our daughter] loves her out of school activities – piano, ballet, swimming and gymnastics. With the exception of gymnastics, it is Enzo who mainly takes [our daughter] to these activities because I need to look after [our son]. I am worried for [our daughter] that if Enzo is publicly identified as this male married barrister described as a “sex pest” it will affect [our daughter’s] attendance at these activities. I am also very worried that [our daughter] will no longer be able to have -- 52 of 86 -- [2024] SASCA 133 Kourakis CJ 47 friends come over and stay because their parents will know [our daughter’s] father to be labelled a “sex pest”. [16] Despite what is a significant fracture in our marriage, Enzo and I have agreed that for the time being at least we have to do everything we possibly can as parents to shield [our daughter] from what is happening. She has a very high emotional intelligence and if she detects some change in our behaviour towards each other, she will ask questions. 166 Mrs Belperio’s concerns about the effect of publication on her daughter are understandable. However, in the absence of an independent assessment of the likely effect on her daughter and information about their school community, and the support that might be available to them, those concerns do not rise to the level of undue hardship and are insufficient to warrant departure from the open justice principle. 167 To the extent that it is necessary, I would give Mrs Belperio liberty to apply at short notice if she wishes to adduce further evidence about the effects of publicity on her children. An order prohibiting publication of the Christian names of their children may be justified in the future on the grounds of the undue hardship that the couple’s children might suffer. Mr Belperio’s identity is in the public domain 168 In making a judgment on whether there is good reason to depart from the open justice principle, the extent to which the relevant information is in the public domain is undoubtedly a pertinent consideration. 169 On 29 November 2023, the annual report of the Tribunal for the financial year 2022-23 was tabled in Parliament. Section 90A of the LPA provides: 90A—Annual reports (1) The Commissioner and the Tribunal must each, on or before 31 October in each year, prepare and present to the Attorney-General and the Chief Justice a report on their proceedings for the last financial year. (2) A report must contain— (a) a statement of the nature of the matters subject to investigation or inquiry; and (b) information as to case management, and the number of uncompleted matters outstanding at the end of the financial year; and (c) such other information as the Attorney-General may require. (3) The Attorney-General must, within 12 sitting days after receiving a report from the Commissioner or the Tribunal under this section, cause copies of the report to be laid before both Houses of Parliament. 170 Section 90A(3) requires the Attorney-General to table the report received by him from the Tribunal. Attached to the report, as appendices, presented by the -- 53 of 86 -- [2024] SASCA 133 Kourakis CJ 48 Commissioner and the Tribunal are two schedules, one of which details finalised disciplinary matters, the other of which details disciplinary matters that are still in progress. With respect to the latter class of disciplinary matters, the Commissioner and Tribunal’s practice is not to identify practitioners against whom charges of unsatisfactory professional conduct or professional misconduct have been brought by name. Instead, so as to apprise the Attorney-General of the identity of those practitioners, an ‘identification key’ is interspersed in the pages of the report, the application of which permits deduction of a practitioner’s identity. 171 It is not obvious to me how the identification key, which is provided at the same time as the other parts of the report, and physically interspersed between the report’s pages, is not a part of the report received by the Attorney-General under s 90A of the LPA which must be tabled. Any subjective understanding of the Tribunal about what will or will not be tabled cannot alter the objectively construed meaning of the word ‘report’. Moreover, even if it were not, it is a matter for Parliament to accept or refuse documents for tabling beyond those documents which must, by statutory mandate, be tabled. In any event, the consideration relevant to exercising the power to make a suppression order is the fact of tabling and the consequential release of the information. 172 Mr Keane, in his affidavit, deposed that the confidential identification keys to the identity of the practitioners who are anonymised in the body of the report were attached after the body of the report, but prior to Schedules A and B which summarise the matters dealt with and in progress respectively. There is no dispute that Schedules A and B form part of the annual report to the Attorney-General. Mr Keane’s searches of the online publications of tabled documents discovered that the identification key was included in the annual report tabled in Parliament for the financial years ending 30 June 2014 and 30 June 2022. The key for the 2024 report remains available on the website of the Parliament of South Australia. 173 The effect of the publication of the key for the 2024 report of the Tribunal is that Mr Belperio is identified as the practitioner charged with professional misconduct in relation to a junior solicitor. 174 There is no basis on which to conclude that the key is likely to be removed from the website given the reasonably strong case that it forms part of the report. Parliamentary privilege immunises proceedings in Parliament from any attempt to require Parliament to uplift documents from the records of Parliament or its website. It is not obvious to me how parliamentary privilege might prevent persons who have read the tabled report, and the key, from communicating that information to others despite the contrary suggestion implicit in some correspondence emanating from the President of the South Australian Bar Association (“SABA”) that it does, which was put before us. Indeed, the dissemination of that information probably attracts qualified privilege for the purposes of the law of defamation. The online presence of the report, and the key, can therefore be expected to continue to add to the class of persons who know of Mr Belperio’s identity as the practitioner the subject of the charge. -- 54 of 86 -- [2024] SASCA 133 Kourakis CJ 49 175 It is also apparent from the President’s correspondence that members of the Executive of SABA know that Mr Belperio is the barrister charged with the misconduct. 176 In his affidavit sworn on 30 August 2024, Mr Belperio deposed about the extent to which he has been identified as a practitioner who has been charged with professional misconduct in making inappropriate advances to a younger female practitioner: [12] I am not personally aware of the fact that I have been charged in the Tribunal or the within proceedings being widely known throughout the profession. [13] I am aware that the complainant has told people about the matter, but I am not aware precisely who the complainant has told. During the investigation the Commissioner informed me in correspondence that the Commissioner had asked the complainant to particularise who she has told, and that the complainant provided this information to the Commissioner. The Commissioner declined to provide me with a copy of that information provided by the complainant. [14] I have not disclosed the fact that a complaint has been made or the nature of the allegations other than to my legal advisers and to a small number of close family and friends for essential emotional support in circumstances where I was suicidal. I verily believe that those close family and friends would not have betrayed my trust in disclosing the matter any further. I have disclosed the fact that a Charge was laid to the Legal Services Commission as that is required to be on the legal aid panel, but they assured me it would remain confidential. [15] I have not provided the Tribunal’s Report that was tabled in Parliament, apparently now relied upon by the Commissioner to establish that the matter is now on the public record, to anyone. [16] As far as I am aware, the Report is the only published publicly available record of my name connected to the charge. My solicitor has written to the Tribunal about the Report and received a response that it was tabled in error and that the Tribunal would seek to rectify it. Now shown to me and marked EGB-1 are copies of this correspondence. [17] I have read a copy of an Affidavit of Mrs Shaw KC which is intended to be filed in these proceedings. I had not seen the correspondence that Mrs Shaw KC annexes between her and the Tribunal until this week when the Tribunal provided it to my solicitor and the Conduct Commissioner and had no involvement in the matters to which Mrs Shaw KC deposes. I have not seen Ms Walker SC’s letter to the Professional Responsibility Committee and do not know the detail of what it contains. [18] Aside from the matter to which Mrs Shaw KC deposes in relation to the SABA, the only other dissemination of the Tribunal’s Report tabled in Parliament that I am aware of is as follows. Dissemination by someone to the President of WinSA [19] I am on the Committee of the Women’s Insolvency Network SA (WinSA), a position I have held for many years. In March 2024, the President of the Committee, Georgia Gray, informed me that someone had provided her with a copy of the -- 55 of 86 -- [2024] SASCA 133 Kourakis CJ 50 Tribunal’s Report tabled in Parliament. I informed Ms Gray that I did not know about anything having been tabled in Parliament, and that the matter was otherwise confidential by virtue of orders made by the Tribunal and I could not discuss it. [20] I do not know who sent the Tribunal’s Report to Ms Gray, but I now know (which I did not know then) what is detailed in Mrs Shaw KC’s Affidavit – that the Report was sent at a similar time at which the complainant’s co-counsel Ms Gillian Walker SC sent the Report to the SABA Professional Responsibility Committee. I was not aware that Ms Walker SC was the complainant’s co-counsel until on or about 7 August 2024 when I read a description of Ms Walker SC and Ms Flaherty’s work in connection with Law Society awards. A copy of these descriptions as they were published by the Law Society on 7 August 2024 are annexed to and marked EGB-2. As I understand the description in Ms Walker SC’s biography, which I assume is accurate, she is the complainant’s “co-counsel” in connection with the within proceedings (or at least in connection with the underlying charge), although it is not clear to me whether either of the complainant’s counsel propose to seek to participate in the Tribunal’s inquiry. I also note that as at March 2024, the complainant’s other co-counsel, Ms Flaherty, was a member of the WinSA Committee. [21] As at the date of swearing this Affidavit, the descriptions on the same Law Society page for Ms Walker SC and Ms Flaherty no longer contain the sentences relating to being co-counsel for the complainant or any reference to this matter. Now shown to me and marked EGB-3 are screenshots as they currently stand. It is difficult to give para [12] much weight. Mr Belperio’s perception of how widespread the information is presently is necessarily, and radically, subjective in that he cannot know what has not been communicated to him. His appreciation of how well-known his identity as “A Practitioner” is depends on the frequency with which others have raised the charge with him. Many who know that Mr Belperio is “A Practitioner” may choose not to embarrass him by raising it with him, or otherwise to associate with him for a variety of reasons. 177 Moreover, Mr Belperio acknowledges that he is aware that the complainant has informed others of the charged conduct, even though he is not clear about how many people have been told or who they are. Only a few may have been told, but perhaps many have. Of course, once it is accepted, as it must be, that a number of people do know, there is every likelihood that at least some of them have told others. And so, the word can be expected to spread in the way of the metaphoric grapevine known to the law of defamation.84 178 Mr Belperio himself deposes that he has confided to a small group of friends and family that he is the barrister who has been charged. Whatever he may hope about the loyalty and discretion of those friends and family, the reality is that gossiping, trading in information, and sometimes even the betrayal of trust, is not uncommon. 179 Finally, Mr Belperio has also deposed that, in March 2024, the President of the Women’s Insolvency Network SA informed him that she had received a copy 84 See, eg, Roberts v Prendergast [2014] 1 Qd R 357, 362-3 [32]-[33] (Gotterson JA, de Jersey CJ and Fraser JA agreeing). -- 56 of 86 -- [2024] SASCA 133 Kourakis CJ 51 of the Tribunal’s report. Mr Belperio surmises that the information may have come to the President through one of F’s legal advisors, each of whom were then members of the Network. Mr Belperio also acknowledged that a practitioner had sent the Tribunal’s report which had been tabled in Parliament to SABA’s Professional Responsibility Committee. It appears, therefore, that some practitioners have actively taken steps to inform others that Mr Belperio is the practitioner charged. It would appear, then, that these are yet additional sources from which Mr Belperio’s identity as the person charged will spread. There are good reasons, therefore, to infer that Mr Belperio’s identity is already well-known within the legal profession. 180 Indeed, Mr Belperio’s statements made to, and noted by, Mr Broomhall during his consultation, on their face, admit as much. Mr Broomhall gave evidence that his practice generally was to ‘take down verbatim fairly much what is said’. He repeated and referred to that practice several times when giving his evidence. The notes read: Court of appeal to decide whether private & confidential. Already well known. … Leaked to the media so it has become well known. … People trying to make it public are people they know and came to their wedding. … Allegations even sound ridiculous. People who know him know its not him. Not sure why people would want to hurt Leesah *tearful. He’s come to terms that he’ll have to have a trial. … Senior Barrister with people all ganging up to break me counter to a fair hearing. … She wants to quit work can’t face the profession laughing. 181 Mr Broomhall was asked whether Mr Belperio had said anything to him about whether people knew that he was the person referred to in the media report. Mr Broomhall replied to the effect that he did not believe that Mr Belperio had said anything in that regard. He continued to say that, relying on his memory, Mr Belperio might have said words to the effect that his name was known throughout the profession by reason of rumour and scuttlebutt. Later again, Mr Broomhall recalled Mr Belperio saying words to the effect ‘that somehow his name had been mentioned in certain circles in the legal profession’ as the person being the subject of the charge. -- 57 of 86 -- [2024] SASCA 133 Kourakis CJ 52 182 Mr Broomhall’s opinion as to a likely deterioration of Mr Belperio’s condition if the information were published in The Advertiser, or other media outlets, must have been premised on an assumption about how well-known Mr Belperio’s identity already was. Mr Broomhall explained: I was unable to clarify but I inferred that it was a small subsection of the legal community, not – it hadn’t been broadcasted anywhere to the legal community as a whole. I’m left to infer that it’s a smaller subsection of the legal community and that then contains the level of concern. 183 Mr Broomhall accepted that, if it were more widely known than the limited dissemination which he inferred despite the breadth of Mr Belperio’s statements, that fact would necessarily affect his opinion about the extent to which Mr Belperio’s condition would deteriorate if his identity were to be published in the media. Inspection of court records – s 131 of the Supreme Court Act 184 As regards the orders sought by Mr Belperio that, in the event that the Court is not closed and he is not granted an order suppressing his name, the Court nonetheless restrict access, in a variety of ways, to the Court files, I commence with the legislative history of s 131 of the Supreme Court Act. 185 Section 131 was first enacted by s 9(h) of the Statutes Repeal and Amendment (Courts) Act 1991 (SA). As originally enacted, s 131 provided that: Accessibility of evidence, etc. 131. (1) Subject to subsection (2), the Court must, on application by any member of the public and payment of the appropriate fee (if any) fixed by the regulations make available for inspection by the applicant— (a) a transcript of evidence taken by the Court in any proceedings; (b) any documentary material admitted into evidence in any proceedings; (c) any judgment or order given or made by the Court. (2) Evidentiary material will not be made available for inspection under this section if— (a) the evidence was not taken or received in open court; (b) the Court has suppressed it from publication; or (c) the Court has determined that it is not to be available for inspection under this section. (3) On payment of the appropriate fee fixed under the regulations, the Court must provide a copy of any material that is available for inspection under this section. -- 58 of 86 -- [2024] SASCA 133 Kourakis CJ 53 186 The original distinction, then, drawn by s 131 of the Supreme Court Act was between materials in respect of which public access was mandated, and materials in respect of which public access was prohibited. The material to which the public had access was limited and, in particular, did not include any form of process, application, or pleading. Section 131(2) prohibited access to material not taken in open court or which had been suppressed. The Court had no discretion to allow access to that material. The incongruity of prohibiting any inspection even of evidentiary material that had been suppressed from publication should be noted. Evidence may be given in open court, in which case members of the public present in Court will see or hear it, but be prohibited from publicly disseminating it. However, such persons, perhaps latecomers, who were not present in Court had no statutory right to inspect it. Paragraph (c) conferred on the Court what was a widely expressed, but nonetheless judicial, discretion to allow or deny access to evidentiary material in its records which did not fall within paras (a) and (b) of s 131 of the Supreme Court Act. 187 Section 131(1) was substantially amended just four years later by the Statutes Amendment (Courts) Act 1993 (SA). The amendment expanded the materials to which public access was mandated to include: • a transcript of submissions by counsel; • a transcript of a trial judge’s summing up or directions to the jury in a trial by jury; and • a transcript of reasons for judgment (including sentencing remarks). The other categories of materials remained unaffected. Section 131(1) of the Supreme Court Act, as it now stands, was enacted by s 23 of the Statutes Amendment (Courts) Act 1995 (SA). 188 By the same amending Act, s 131(2) of the Supreme Court Act was repealed, and in its place was inserted: (2) A member of the public may inspect or obtain a copy of the following material only with the permission of the court: (a) material that was not taken or received in open court; (b) material that the court has suppressed from publication; (c) material placed before the court during sentencing proceedings (including material furnished under section 7 of the Criminal Law (Sentencing) Act 1988); (d) documentary material filed in connection with a preliminary examination; (e) a transcript of any oral evidence taken at a preliminary examination; -- 59 of 86 -- [2024] SASCA 133 Kourakis CJ 54 (f) a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced; (g) material of a class prescribed by the regulations. 189 That same amending provision included the insertion of subsection (4) of s 131 of the Supreme Court Act, as it now appears, declaring decisions made under s 131 to be administrative and not subject to review. 190 Paragraph (fa) of sub-s (2) (intervention program reports) was thereafter inserted by s 14 of the Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA); and para (ba) of sub-s (2) (sensitive material) by s 28(1) of the Statutes Amendment (Evidence and Procedure) Act 2008 (SA).85 191 For the reasons already given, the failure of the applications for a suppression order leaves little latitude for the making of other orders shielding the proceedings from public scrutiny in order to deny members of the public, and the news media, access to the information in the records of the Court which they would then be free to disseminate publicly. The other orders sought by Mr Belperio which in effect seek to circumvent the operation of s 131 of the Supreme Court Act must be refused for the reasons which follow. 192 Section 131(1) of the Supreme Court Act currently provides: 131—Accessibility to court records (1) Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of— (aa) any process relating to proceedings and forming part of the court’s records; (a) a transcript of evidence taken by the court in any proceedings; (b) any documentary material admitted into evidence in any proceedings; (c) a transcript of submissions by counsel; (d) a transcript of the judge’s summing up or directions to the jury, in a trial by jury; (e) a transcript of reasons for judgment (including remarks made by the court on passing sentence); (f) a judgment or order given or made by the court. 193 I make the following observations. 85 Subsection (2) of which inserted the form of sub-s (3) of the Supreme Court Act which presently appears. -- 60 of 86 -- [2024] SASCA 133 Kourakis CJ 55 194 First, it is trite that the rules of court must be subservient to, and cannot amend or abrogate, s 131 of the Supreme Court Act. I elaborate on that proposition below. 195 Secondly, the word ‘process’ in para (aa) of s 131(1) is a term of art, carrying a particular legal meaning in the forensic context. It can be accepted that its primary legal meaning includes an application which invokes the jurisdiction of a court, the command which brings a person before a court, and a warrant which is issued to enforce a court’s orders. 196 In Jackson v Johnson,86 White J held that a Statement of Claim, attached to a Summons which referred to it, commencing a claim under the Inheritance (Family Provision) Act 1972 (SA), was a process related to proceedings within the meaning of that term in s 131(1)(aa). The transition to the electronic filing of documents renders meaningless any reliance on physical attachment. The originating process should now be deemed to include all material which the rules require or permit an applicant to file together with it. 197 In accordance with the then-applicable rules, the applicant in Jackson also served the Summons and Statement of Claim on potential beneficiaries together with a notice, mandated by the Rules, that they could, within 28 days, file a Statement of Claim. White J held that a Statement of Claim subsequently filed in accordance with the rule of court allowing a potential claimant, so notified, to do so was also a process. 198 With respect, White J was plainly right so to hold. Statements of Claim are an integral part of invoking the jurisdiction of a court because they define the controversy which falls for adjudication. Moreover, controversies commonly come before a court for adjudication without a writ or other originating process first being filed. 199 At the time of the enactment of s 131(1)(aa), most originating processes either identified on their face the legal controversy, giving rise to the relief claimed, or required identification of that controversy in a pleading or affidavit filed contemporaneously with it. It is difficult to see any rational reason for mandating disclosure of a bare command to appear before the Court without also mandating disclosure of the controversy behind the command. It is even more difficult to discern any rational reason for making no provision for the public to access it at all, which would be the case if a pleading is not a process, because a pleading does not fall within any of the items appearing in s 131(2) of the Supreme Court Act. 200 In considering the proper meaning of the word ‘process’, White J referred to the observations of Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court87 and of Slicer J in R v Clerk of Petty Sessions, Court of Petty Sessions 86 (2010) 269 LSJS 296. 87 (2005) 62 NSWLR 512. -- 61 of 86 -- [2024] SASCA 133 Kourakis CJ 56 Hobart; Ex parte Davies Bros Ltd88 to the effect that the principle of open justice is not engaged at the time of the filing of proceedings but ‘only when the relevant material is used in court’.89 In Ex parte Davies Bros Ltd, Slicer J explained that a complaint is no more than a statement or grievance by one party and that it does not attract the requirement of open justice unless and until it becomes an issue between the parties. Justice White stated the effect of those authorities to be that the open justice principle applies ‘only when a document has been deployed in a hearing in a court’.90 201 The principle of open justice is concerned with subjecting both the procedures adopted by courts to resolve disputes generally, and the actual resolution of a particular legal controversy, to public scrutiny. At least 90 percent of actions in this State are resolved without a hearing. The way in which the rules of a court and its case management processes operate generally, as well as in a particular case, are proper matters of public interest. Many actions also legitimately attract a more local, familial, or personal interest in the subject-matter of the controversy. For example, this very action is of substantial interest to the legal practitioners and sectors of the public for whom the disciplinary regulation of the profession is important. 202 Necessarily, therefore, the principle is attracted when a legal controversy is submitted to a court for resolution. There is no controversy unless and until there is an issue between the parties. However, once an application for relief is defended, those documents filed in the action which define the controversy, like Statements of Claim and Defences, fall within the scope of the open justice principle. At the very latest, the common law open justice principle is enlivened when a defended action comes before the Court, be that on an interlocutory application or for case management purposes. 203 Plainly enough, the express words of s 131(1)(aa) have extended the open justice principle beyond the common law position to include: the writ; Summons, or other instrument of complaint, even before issue is joined; and, on the authority of Jackson v Johnson, the associated pleadings which define the controversy. 204 The definition of the word ‘process’ in the Encyclopaedic Australian Legal Dictionary includes the following: A document issued or filed with a court or tribunal in proceedings, which requires a person to attend before the court. Formerly called a writ, process may now include a writ, statement of claim, summons, subpoena, warrant or notice of appeal. The Macquarie Dictionary’s definition of ‘process’ in its usage in the law is: 88 (1998) 8 Tas R 283. 89 Jackson v Johnson (2010) 269 LSJS 296, 301 [28] (White J), quoting John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, 526 [65] (Spigelman CJ, Mason P and Beazley JA agreeing). 90 Jackson v Johnson (2010) 269 LSJS 296, 301 [28] (White J). -- 62 of 86 -- [2024] SASCA 133 Kourakis CJ 57 3. Law a. the summons, mandate, or writ by which a defendant or thing is brought before court for litigation. b. the total of such summoning writs. c. the whole course of the proceedings in an action at law. 205 In Jackson v Johnson, White J rejected meaning (c) in the context of s 131(1) of the Supreme Court Act, because his Honour understood ‘the whole course of the proceedings’ in that definition to mean everything that transpires in the hearing and determination of an action whether or not a document was issued or filed. Respectfully, I understand that definition to refer to each procedural step taken in bringing an action to its ultimate resolution, but not the evidence, or material or submissions, on which each step, and ultimately the hearing, is decided. So understood, it is that definition which appears most apt to the compound expression in para (aa) of s 131(1) of the Supreme Court Act – ‘any process relating to proceedings’. Its meaning is also affected by the condition in that paragraph that the process form part of the records of the Court. So understood, it includes pleadings, interlocutory applications filed by the parties, interlocutory orders made, and processes issued by the Court. 206 In Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd,91 Priestley JA described the approach to the proper construction of terms which have a range of meanings, including a technical legal meaning, in this way:92 In considering the appropriate meaning of the words in their setting it is my view that if there is one ordinary and natural meaning of the words then that meaning must be given to them, but if as is the case here the words have a range of meanings, then the construction to be given to the words used must take into account the legal as well as the “ordinary” uses to which they have been put. No matter how hard a draftsman tries to keep the language of a statute clear and simple, the statute is a legal document. The Sale of Goods Act 1923 (the Act) is a legal instrument using words with legal significance in an overall context where all concerned with its passage through Parliament knew the past history of the words used in it and knew also that the meaning to be put upon the words in cases of such doubt as would lead to litigation would be decided by lawyers. Thus when this Court comes to consider the meaning of the words in s 28 of the Act it seems to me necessary to make the kind of survey made by McHugh JA in his reasons. The object of the approach is not to find the legal as opposed to the “ordinary” meaning, but to find from the range of legal and ordinary meanings, which in any event will seldom be in watertight compartments, the meanings best suited to the statutory document as a whole. President Kirby, in dissent, cautioned against the encrustation of ordinary words with common law doctrines.93 91 (1985) 3 NSWLR 475. 92 (1985) 3 NSWLR 475, 483-4. 93 (1985) 3 NSWLR 475, 479. -- 63 of 86 -- [2024] SASCA 133 Kourakis CJ 58 207 In the context of s 131(1) of the Supreme Court Act, a process needs to be distinguished from evidentiary and forensic materials of the kind described in paras (a) to (f). That approach to the construction of s 131 of the Supreme Court Act was taken by Nicholson J in R v Keogh94 to conclude that para (aa) did not include material falling within the other paragraphs of s 131(1) of the Supreme Court Act. 208 A process, or a process related to a proceeding, will generally not fall within any other paragraph of s 131(1) of the Supreme Court Act, or any paragraph of sub-s (2). Processes are administrative actions which are filed with, or issued by, the Registry of the Court on satisfaction by the Registrar that the process complies with the rules of court and will often not constitute evidentiary material. 209 There is good reason to construe para (aa) to include pleadings and interlocutory application in the proceedings, because they do not fall within the other paragraphs of sub-ss (1) or (2). It does not strain the language of para (aa) to include within it pleadings and interlocutory steps. Indeed, it would be curious, on the authority of Jackson v Johnson, to include a Statement of Claim as a process relating to a proceeding, and presumably a counterclaim, but to exclude a Defence. It would be equally curious to exclude interlocutory applications to amend the pleadings. 210 Importantly, if pleadings and interlocutory steps do not fall within any of the paragraphs of sub-ss (1) or (2), the public has no, not even discretionary, access to them pursuant to s 131 of the Supreme Court Act. True it is that the Court might, in its inherent jurisdiction, grant access, but it is unlikely that Parliament, having embarked on such an extensive widening of the access granted by s 131 of the Supreme Court Act as it was first enacted, intended to leave such a large and significant, ‘undistributed middle’ from the statutory regime it had established. It is unlikely to have left such important processes to the Executive pursuant to s 131(2)(g). 211 Applying the approach adumbrated by Priestley JA, and mindful of the warning sounded by Kirby P, I would construe ‘process’ to mean steps in the proceedings which are taken by filing documents in accordance with the rules of court and for the purpose of articulating, elucidating, or narrowing the scope of the legal controversy submitted for adjudication, as well as interlocutory applications connected to the prosecution of the application. On this view, a process will generally not include evidentiary material or submissions of the kind referred to in the remaining paragraphs of s 131(1) of the Supreme Court Act. 212 I have qualified the construction I would give the word ‘process’ by speaking in general terms because the rules require some originating applications to be supported by affidavits which include evidentiary material. Moreover, certain processes, like the bringing of the record of an inferior court before a superior court 94 [2013] SASCFC 74. -- 64 of 86 -- [2024] SASCA 133 Kourakis CJ 59 for the purposes of an appeal or judicial removal, carry with them evidentiary material received in the trial court. Even though evidentiary material of that kind could fall both within the category (aa) and, if admitted into evidence, (b) of s 131(1) of the Supreme Court Act, unless and until it was so received it could only be accessed with the permission of the Court pursuant to s 131(2) of the Supreme Court Act. The bare application on the other hand could be accessed as of right pursuant to s 131(1)(aa). So, too, any part of the supporting affidavit which states the bare grounds on which the originating application is brought. Disclosure of those grounds, and therefore the underlying controversy, is consistent with the construction of s 131(1)(aa) extending to pleadings. 213 Accordingly, even though White J left open the question of whether an Amended Statement of Claim would answer the description of a process, I would hold that any document filed in Court which defines or delimits the controversy, or amends the scope of the controversy ,as well as interlocutory applications, are processes related to the proceedings within the meaning of s 131(1)(aa) of the Supreme Court Act. 214 Justice Debelle reached the same conclusion in E v SE:95 The summons, statement of claim and other pleadings are documents which are available for inspection by any member of the public: s 131(1) of the Supreme Court Act 1935. The ability to inspect court documents reflects the fundamental principle of open justice, that is to say, the principle that courts administer justice publicly and in open court … (Citations omitted) 215 In this case, the Notice of Appeal is plainly a process, because it both invokes the jurisdiction of this Court and notifies the respondent of the grounds on which the appeal is brought and the need to appear if he opposes the orders sought. Any member of the public, therefore, has an unqualified right to access it. Mr Belperio is the named respondent to the appeal. 216 The Notice of Appeal filed by the Commissioner follows the prescribed form, but has attached to it the reasons for decision of the Tribunal (the heading to which does not anonymise Mr Belperio’s name) and sets out that he is charged with professional misconduct in respect of an anonymised complainant. The attachment appears to me to be surplusage. Even though no application has been made to strike it out, it does not form part of the process by which the appeal was instituted. 217 Nonetheless, pursuant to r 214.3 of the UCR, the Registrar requested that the Tribunal provide it as a document relevant to the appeal. The provision of first instance material for the purpose of an appeal, or the record for the purposes of judicial review, is a step required by the Rules in each of those proceedings to facilitate the hearing of the appeal or judicial review but it also contains evidentiary 95 [2007] SASC 198, [7]. -- 65 of 86 -- [2024] SASCA 133 Kourakis CJ 60 material from the records of the court or tribunal from which the appeal is brought. In most cases, the material will be accessible in that court or tribunal pursuant to provisions in their constituting legislation which are the analogue of s 131 of the Supreme Court Act. As required by r 217.5 of the UCR, the Commissioner, on 9 May 2024, filed his Core Appeal Book, which consisted of: the Charge initially filed by the Commissioner, dated 20 October 2022; Mr Belperio’s interlocutory application by which he sought to have the Tribunal peremptorily dismiss the disciplinary proceedings against him; a list of exhibits tendered before the Tribunal at the initial hearing on 24 May 2023; the Tribunal’s reasons for upholding Mr Belperio’s interlocutory application, challenging its jurisdiction; the Notice of Appeal; and certification that the Core Appeal Book complied with the requirements of the UCR. 218 For the reasons given above, even if the mere filing of the Core Appeal Book were to be regarded as a process relating to the proceeding and forming part of the court record, which I do not finally decide, the evidentiary material falls, as we shall see, within s 131(2)(a) of the Supreme Court Act and can only be accessed with the permission of the Court. 219 In any event, on the appeal and whilst in open court, the charge was treated by counsel for Mr Belperio as the evidentiary material on which the Tribunal found, and this Court should find, that the Commissioner had not reached the requisite state of mind which Mr Belperio contended was a necessary precondition to the exercise of the Commissioner’s power to lay a charge, and the Tribunal’s jurisdiction to conduct an inquiry. The public, therefore, has a right to access it pursuant to s 131(1)(b) of the Supreme Court Act. 220 On 12 April 2024, the Commissioner also filed an Application for Judicial Review of the Tribunal’s decision. That application also notified the practitioner of the need to appear before the Court if he opposed the orders sought. Attached to the application was a Statement of Facts and Contentions, required to be filed by r 256.4(1) of the UCR. The Statement identifies Mr Belperio as the practitioner the subject of the charges which were dismissed by the Tribunal. It does not include any particulars of the allegations of misconduct. That Statement is a process for the purposes of s 131(1)(aa) of the Supreme Court Act. 221 The Application for Judicial Review was supported, in accordance with r 256.4(1) of the UCR, by an affidavit of the Commissioner filed on the same day. Pursuant to r 256.4(3) of the UCR, the affidavit had exhibited to it the record of the decision and the charge as part of the record which was before the Tribunal for the purposes of its decision and which was relevant to the ground(s) of review. The rule is the contemporary analogue of the process inherent in the issue of a prerogative writ to bring the records of an inferior tribunal before a superior court of record. The Application for Judicial Review is, and the supporting affidavit was arguably, a process within the meaning of that term in s 131(1)(aa) of the Supreme Court Act. However, insofar as the affidavit contains material that was not received in open court, unless and until it is, it can only be accessed with the -- 66 of 86 -- [2024] SASCA 133 Kourakis CJ 61 permission of the Court pursuant to s 131(2)(a) of the Supreme Court Act. Mr Belperio is, therefore, identified by records of the Court which any member of the public may inspect and receive a copy of. 222 By an interlocutory application filed on 22 April 2024, Mr Belperio sought orders that he not be identified by his name in the course of the proceeding and that the documents already filed on the application, namely the application and supporting affidavits, be kept confidential and not be available for inspection. For reasons given earlier, an interlocutory application for orders of that kind is a process relating to the proceedings. 223 On 22 April 2024, an order was made that Mr Belperio’s name not appear in the Cause List for the day of any subsequent hearing, but none of the other orders sought by Mr Belperio were made. The publication of a cause list is purely administrative. If any legal power is needed for a judicial officer to give such a direction to the Court’s registry, it is inherent in all courts, which by their own procedures, or by statutory command, generally observe the open justice principle. Once it is accepted that there is power to publish a cause list, a court must have the power not to include within it notice of particular matters, leaving aside for now when, and on what considerations, a court should withhold notice of that matter. Indeed, as we have seen, the open justice principle may be breached by a failure to provide notice of the place of a hearing. 224 On 3 May 2024, Mr Belperio filed an application seeking a stay of the judicial review proceedings as an abuse of process or an order dismissing them. The filing of the application for a stay was a step in the proceeding and, therefore, a process relating to the proceedings within the meaning of that term in s 131(1)(aa) of the Supreme Court Act. On 7 May 2024, Mr Belperio filed an outline of submissions in support of the application to stay or dismiss the judicial review proceeding. There was a callover of the judicial review application before the President of the Court of Appeal on 3 May 2024. The judicial review application and the interlocutory application were adjourned to the callover on 10 May 2024. 225 By 3 May 2024, Mr Belperio had taken issue with the application for judicial review in open court and, quite apart from the access as of right to a process related to the proceeding conferred by s 131(1)(aa) of the Supreme Court Act, the interlocutory application to stay or dismiss also came within the open justice principle, and this Court’s practice and statutory mandate to conduct the hearing in open court, discussed in [24] to [55], was enlivened. 226 When the matter was called over on 3 May 2024, Mr Belperio’s counsel made an oral application for an order excluding certain persons from the court. The President declined to make the order. Mr Belperio’s counsel then addressed those persons, in effect warning them against making any disclosure to any person about the hearing. The nature of that warning was as follows: MR WHITINGTON: Well, can I just say in terrorem to those practitioners in court that we don’t think it appropriate that proceedings here today be published any further and if it -- 67 of 86 -- [2024] SASCA 133 Kourakis CJ 62 should turn out that they have been and by those practitioners then we will seek to impose consequences your Honour. It’s up to them now. If they remain so be it. And they might want to announce why they think they should be here but I do put them on notice about that. 227 It is not obvious to me in what capacity or on what basis Mr Belperio’s counsel purported to make commands of a kind which only a court can make pursuant to s 69 or s 69A of the Evidence Act, or to attempt to close the Court when the President of the Court of Appeal had declined to do so. Conduct of that kind should never be repeated. Persons who choose to attend, for whatever reason, upon curial proceedings heard in open court do not owe anyone, including those seeking to warn them “in terrorem”, any explanation for their presence. 228 At the callover on 10 May 2024, the stay application was pursued and an order staying the judicial review proceedings until after the outcome of the appeal was made. The stay application necessarily required the deployment of evidentiary material supporting the Application for Judicial Review in order to make good the submission that it was inutile to proceed with it when the grounds on which it was brought were encompassed with the appeal grounds. On deployment of that evidentiary material, it became accessible as of right pursuant to s 131(1)(b) of the Supreme Court Act. 229 On 20 June 2024, an interim order was made that the material filed in the judicial review proceedings be available on a party-access basis only. For reasons which are developed below, the operation of that order must be subject to s 131(1) of the Supreme Court Act and, therefore, could not operate in respect of any document that fell within the meaning of the phrase ‘process relating to the proceeding’, or, as we are about to see, to evidentiary material that was received in open court and not subject to a suppression order. 230 Section 131(2) of the Supreme Court Act provides: (2) A member of the public may inspect or obtain a copy of the following material only with the permission of the court: (a) material that was not taken or received in open court; (b) material that the court has suppressed from publication; (ba) sensitive material in the custody of the court;96 (c) material placed before the court during sentencing proceedings; (d) documentary material filed in connection with committal proceedings; (e) a transcript of any oral evidence taken at committal proceedings; 96 “Sensitive material” is defined by s 67H of the Evidence Act 1929 (SA). -- 68 of 86 -- [2024] SASCA 133 Kourakis CJ 63 (f) a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced; (fa) a report prepared to assist the court in determining a person’s eligibility for, or progress in, an intervention program (within the meaning of the Bail Act 1985 or the Sentencing Act 2017 or the Intervention Orders (Prevention of Abuse) Act 2009); (g) material of a class prescribed by the regulations. (Footnote added) 231 The most apt meaning of the word ‘material’ in the context of s 131(2) is information on which a decision is based or material likely to influence the determination of a case.97 It does not include a process within the meaning of s 131(1)(aa) of the Supreme Court Act. The essential connotation is that it is evidentiary material. The reasons for requiring the permission of the Court to access the material there enumerated are obvious enough. Even though it requires some departure from the literal meaning of s 131(2)(a), I would read the word ‘material’ together with s 131(1)(a) to include a transcript of testimony not taken in open court. 232 In the course of the hearing on the anonymisation of these proceedings, Mr Belperio sought an order for the redaction of his name from the Notice of Appeal or, in the alternative, an order that it be uplifted and substituted with a redacted Notice of Appeal. A process, once filed or issued is, for the purposes of s 131(1)(aa) of the Supreme Court Act, a process forever more, whether or not it be amended. Even then, the amended or substituted process will also be a process within the meaning of s 131(1)(aa) of the Supreme Court Act. 233 I acknowledge that orders are sometimes made allowing the uplifting, redaction, or replacement of documents. That is a convenient practice for the purposes of keeping a form of ‘version control’ on the documents on which the action is proceeding. 234 However, s 131(1)(aa) confers a right of access to all of the processes relating to proceedings which are kept by the Registry within the records of the Court, in accordance with the long practice of eponymously named courts of record. I acknowledge also that a court of record controls its own records, including which documents it will keep within its records. On its terms, an order allowing a document to be uplifted and replaced would appear to authorise the removal of the first of the documents from the Court’s records and, therefore, from the ambit of s 131(1)(aa), and its replacement with the second document which would then fall within s 131(1)(aa) of the Supreme Court Act. 235 Quite apart from the potential effect of s 131(1) of the Supreme Court Act, such orders should not be made without good reason. In particular, it is difficult 97 Macquarie Dictionary, “material” s.v. 4, 5, and 14. -- 69 of 86 -- [2024] SASCA 133 Kourakis CJ 64 to envisage circumstances in which a party should be ordered to uplift and redact a document that it filed against its objection. A failure to uplift might result in an order striking the document out, but the document so struck out should ordinarily remain in the records of the Court, because without it the order of dismissal would remain cryptic. 236 It may be doubted that the power of this Court now extends effectively to removing a document from the records of the Court after a right to inspect it has vested pursuant to s 131(1) of the Supreme Court Act. On the other hand, the additional condition that the document forms part of the records of the Court arguably has the consequence that the power of the Court over its records can validly affect the application of s 131(1)(aa) of the Supreme Court Act. 237 Be all that as it may, Mr Belperio’s application for an order to uplift and substitute a redacted copy must be refused on its merits. First, it would require redaction of the name of an essential party to the controversy, without whom there could be no justiciable controversy before the Court. The record of the parties to an action must be kept by the Court, although I accept that perhaps an identification key to anonymised parties could be maintained as a document over which s 131(1) of the Supreme Court Act does not grant a right of access. That exceptional course, if available, would not be adopted lightly. 238 More importantly, Mr Belperio sought that order for the purpose of obstructing the operation of s 131(1)(aa) of the Supreme Court Act and to obviate the need to make a suppression order pursuant to s 69A of the Evidence Act in aid of his personal interest in his reputation and not to prevent prejudice to the administration of justice. The purpose of s 69A of the Evidence Act is to enshrine the open justice principle legislatively, subject only to limited exceptions. In special circumstances, the interests of justice may require an order of the kind sought by Mr Belperio, if s 69A of the Evidence Act, on its terms, does not allow for an order protecting a legitimate object of the administration of justice. Mr Belperio has not identified such an object which would warrant that exceptional course. Moreover, it will generally be an abuse of process to seek an exercise of the Court’s inherent powers for the collateral purpose of outflanking s 69A of the Evidence Act because, if accessed, an order suppressing the information so obtained would not be made in a proper exercise of the power conferred by that section. 239 The charge, for the reasons I have explained, was documentary material admitted into evidence before the Tribunal and this Court. It was, therefore, also evidentiary material before this Court in conducting its appellate review, and was relied on for that purpose by the practitioner. Mr Belperio now contends that that material ought to have been received in closed court. However, he made no such application before relying on it. Section 131(2)(a) of the Supreme Court Act does not include the words ‘or which ought not to have been received in open court’. The subsection cannot transform the absolute right of access in s 131(1) to a mere privilege to seek a favourable exercise of a discretion for material that was actually -- 70 of 86 -- [2024] SASCA 133 Kourakis CJ 65 received in open court, even if retrospectively it is thought that it ought to have been received in closed court. Section 131(2) operates on the nature of the hearing as it was, in fact, at the time the material was received, and not on how the court later considers the material ought to have been received. If material is seen, in retrospect, to have been received mistakenly in open court, the obvious remedy, even though it may be imperfect, is to make a suppression order pursuant to s 69A of the Evidence Act. 240 The Court has no power to create a fiction on which s 131(2) of the Supreme Court Act would operate on the making of an application pursuant to that subsection. Even if the Court were empowered to make an order now ‘closing’ the court when, in fact, at the time, the public was free to enter and remain in the courtroom, and even if an order could now be made nunc pro tunc, because the Court has not completed hearing of this appeal, this Court must exercise the discretion as it would have been exercised at the time. On the hearing of the substantive appeal, this Court was hearing a question of general importance, concerning the power of the Commissioner, and the jurisdiction of the Tribunal. There was no material before the Court which showed that closing the court was necessary in the interests of justice, other than that, by implication, Mr Belperio’s personal and professional reputation would be damaged if he were identified as the practitioner the subject of serious allegations of sexual misconduct when those allegations are yet to be proved. For the reasons appearing in [56] to [81] above, that interest, standing alone and without more, is not an interest which serves the administration of justice, or at least will not, as a general rule, outweigh the open justice principle. 241 Put another way, the fictive approach advanced by counsel for Mr Belperio is fundamentally at odds with the plain text and context of, and the statutory purpose underpinning, s 131 of the Supreme Court Act. The mandate contained in sub-s (1) of s 131 thereof is clear: the public must be given access, on application, to the documents and materials falling within the ambit of pars (aa)-(f) of s 131(1). Rules restricting access to filed documents 242 Section 72 of the Supreme Court Act relevantly provides: 72—Rules of court (1) Rules of court may be made under this Act by any three or more judges of the Supreme Court for any of the following purposes: … (b) regulating the practice and procedure of the court (including in its appellate jurisdiction); (c) for imposing mutual obligations on parties to proceedings in the court to disclose to each other the contents of expert reports or other material of relevance to the proceedings before the proceedings are brought to trial; -- 71 of 86 -- [2024] SASCA 133 Kourakis CJ 66 … … (4) Rules of court made under this section take effect from the date of publication in the Gazette or some later date specified in the rules. 243 Rule 32.2 of the UCR provides: 32.2 Filing of documents on restricted access basis (1) In this rule— court access basis means that, unless the Court otherwise orders, access to view, download or copy a document is limited to judicial and non-judicial officers; excluded access basis means that, unless the Court otherwise orders, access to view, download or copy a document is excluded for the judicial officer assigned or expected to hear and determine the proceeding; judiciary access basis means that, unless the Court otherwise orders, access to view, download or copy a document is limited to judicial officers; lawyer access basis means that, unless the Court otherwise orders, access to view, download or copy a document is limited to court officers together with counsel or solicitors for the parties who have undertaken not, without leave of the Court, to disclose the content of the document to any person other than one entitled to access; party access basis means that, unless the Court otherwise orders, access to view, download or copy a document is limited to court officers together with the parties, counsel or solicitors for the parties who have undertaken not, without leave of the Court, to disclose the content of the document to any person other than one entitled to access. (2) The Court may order that a document to be filed be filed, or if already filed be treated as filed, on a court access basis, an excluded access basis, a judiciary access basis, a lawyer access basis, or a party access basis. (3) A formal offer (other than one expressed to be open) filed under rule 132.4 or a pre-action document filed under rule 61.7, 61.9 or 61.10 is to be treated as filed on an excluded access basis. (4) A party may, at the same time as filing a document, apply by interlocutory application for an order that the document be treated as filed on a restricted access basis, specifying the access basis sought. (5) If a party files a document under subrule (4) and makes a request for interim treatment under this subrule at the same time, it will be treated on an interim basis as filed on the specified restricted access basis until the Court hears and determines the application under subrule (4). 244 The scope of the statutory rule making power in s 72 of the Supreme Court Act is necessarily limited by s 131(1) of that Act. Construing both sections together, Parliament could not have intended to give the Judges of this Court a -- 72 of 86 -- [2024] SASCA 133 Kourakis CJ 67 super-legislative power to detract from, or abrogate, s 131 of the Supreme Court Act. That approach to construction is well-understood in respect of the regulation making power of Executive Government. It is all the more unlikely that such a power would be conferred on the judicial arm of government, which is not accountable, through Parliament, to the people of the State. 245 Accordingly, r 32.2(2) of the UCR must be read down to conform with s 131 of the Supreme Court Act; at least in two fundamental respects. It cannot remove a document which falls within the meaning of a process of the Court from the scope of s 131(1)(aa) of the Supreme Court Act. Secondly, it cannot apply to a filed document of any kind which was subsequently received in open court. Material may be received in open court, even on an interlocutory application. In that context and consistently with s 46A of the Supreme Court Act which extends the open justice principles to applications heard in Chambers, ‘received’ must be understood as including deployed.98 246 Procedures adapted to serve the interests of the administration of justice can be developed for those cases in which commercially confidential documents or other publicly sensitive materials which warrant a restriction on access are not disclosed in a process, within the meaning of that term in s 131(1)(aa). For example, the parties may very broadly outline the controversy in a filed process, like a pleading, but tender in closed court affidavit material particularising the claims and defences. In respect of evidentiary material, the parties will need to consider in advance of a hearing whether they will ask the public to be excluded from certain parts of the hearing. Even with good planning, a slip may occur. How that may be fairly remedied may need to be considered in the future. In this case, however, it is plain enough that the failure to seek the orders arose more from unfounded assumptions than a slip of any kind. Section 84A of the Legal Practitioners Act 247 Mr Belperio relied heavily on the orders made in the Tribunal which were, at least, intended to prevent his identity becoming known. This Court must exercise the powers it has according to law and, as to it, seems just. However, for the reasons which follow, it is doubtful that those orders were properly made by the Tribunal. 248 Section 84A of the LPA provides: 84A—Proceedings to be generally in public (1) Subject to subsection (2), an inquiry under this Part must be held in public. (2) The Tribunal may order that an inquiry or part of an inquiry be conducted in private if satisfied that it is necessary to do so in the interests of justice or in order to protect 98 R v Keogh [2013] SASCFC 74, [21] (Nicholson J). -- 73 of 86 -- [2024] SASCA 133 Kourakis CJ 68 the privacy of clients of the legal practitioner or former legal practitioner whose conduct is the subject of the inquiry. (3) If proceedings of the inquiry are held in private, the Tribunal must prepare a summary of the proceedings containing such information as may be disclosed consistently with the interests of justice and the need to protect the privacy of clients. (4) A copy of any such summary must be made available on request at the Tribunal’s public office for inspection by any interested member of the public. 249 The following history of the legal profession disciplinary regime is taken from a submission provided by the Law Society at the Court’s request. 250 The Law Society Act 1915 (SA) (“the Law Society Act”) incorporated the Law Society and by s 19(1) established “a committee of the Council of the Society” (to be called the “Statutory Committee of the Law Society”) “for the purposes of hearing charges of illegal or unprofessional conduct upon the part of the practitioners”. The Committee comprised five members appointed by the Governor on the nomination of the Chief Justice. By s 21 of the Law Society Act, any aggrieved person could make a charge, in writing, to the Council of the Law Society which then referred to the Statutory Committee. By s 22, the Council was empowered to appoint a practitioner to investigate the charge and prosecute it before the Committee. The Committee was empowered to summons the practitioner and witnesses.99 By s 31 of the Law Society Act, if the Committee made a finding of guilt of illegal or unprofessional conduct, it was required to transmit a report to the Supreme Court. The Statutory Committee was not empowered to impose any sanctions, even for the most minor transgressions. It was the lack of any such power which Bray CJ “regretted”.100 251 The Law Society Act did not make any provision for the hearings of the Statutory Committee to be in private or public. The records searched by the Law Society do not contain any indication as to whether the hearings were in public or private. There are no records to suggest that the hearings were advertised or otherwise notified to the public. 252 The private nature of the proceeding was such that no member of the public was likely to know when or where an inquiry was to be heard. Moreover, the inquiry was likely to be held in the private premises of the Society or a law firm to which the public would have had no right of access. 253 Not surprisingly, the Law Society accepted that the hearings under the Law Society Act were probably in private. 254 In 1916, rules were made to govern the practice of the Statutory Committee by three Judges of the Supreme Court. Those rules required the Committee to report first to the Council which was in turn required to forward the report to a 99 Law Society Act 1915 (SA) s 23. 100 See [71] above. -- 74 of 86 -- [2024] SASCA 133 Kourakis CJ 69 Master of the Supreme Court if finding of guilt had been made. There was a change to the rules in 1973, whereby, if the Committee found illegal or unprofessional conduct, it was required to transmit the report directly to the Supreme Court and send a copy to the Council. In any other case, the report was transmitted to the Council and a copy was sent to the ‘office of the Master of the Supreme Court’. The report was placed in a sealed envelope marked with the name of the practitioner and bearing the words ‘Statutory Report’. That copy could not be perused by any person other than with the consent of the practitioner or by order of the Court. The 1973 rules did not make any provision as to whether the Statutory Committee hearings were to be heard in private or public, nor did they make any reference to the publication of its detail. 255 The Legal Practitioners Act 1936 (SA) (“the 1936 Legal Practitioners Act”) continued the Statutory Committee regime with practically identical provisions. It remained silent on whether the hearings of the Statutory Committee were to be held in private or public. 256 The Legal Practitioners Act 1981 dismantled the Statutory Committee regime. By s 68(1), the Legal Practitioners Act 1981 established the Legal Practitioners Complaints Committee. By s 68(2) of the Legal Practitioners Act 1981, the Committee comprised four nominees of the Law Society and three nominees of the Attorney-General, two of the latter were required to be laypersons. The Committee was not expressed to be a committee of the Council of the Law Society as the Statutory Committee had been. The Secretary of the Committee was appointed by the Attorney-General. Section 70(6) of the Legal Practitioners Act 1981 prohibited the Committee from meeting on the premises of the Law Society and, by later amendment in 1991, permitted the Committee to meet on those premises with the prior approval of the Attorney-General. The provisions also suggest that before the enactment of the Legal Practitioners Act 1981 hearings of the Statutory Committee were held on the premises of the Law Society. 257 Nonetheless, the Committee shared its staff with the Law Society. 258 The Legal Practitioners Act 1981, therefore, took significant steps towards more accountability and transparency in the disciplining of legal practitioners and in reducing the control of the Law Society and the disciplinary regime. 259 Section 78 of the Legal Practitioners Act 1981 established the Tribunal, comprising of 12 members appointed by the Governor. Section 84A provided as a default rule that inquiries would be held in public. 260 Searches by the Law Society reveal that following the enactment of the Legal Practitioners Act 1981, the published decisions of this Court touching upon disciplinary proceedings or entitlement to practise have generally not anonymised the names of practitioners. Those decisions include decisions to strike a practitioner from the Roll of Practitioners, applications for suspension of practising -- 75 of 86 -- [2024] SASCA 133 Kourakis CJ 70 certificates, appeals from decisions of the Tribunal, applications for judicial review, and costs disputes. 261 The Legal Practitioners (Miscellaneous) Amendment Act 1996 (SA) changed the name of the Committee to the Legal Practitioners Conduct Board. The role of Secretary was changed to that of Director, who was made the chief administrative officer. The Director was appointed by the Board with the approval of the Attorney-General. It was by that Act that s 84A(2) was amended to include the maintenance of confidentiality of clients as a reason for conducting an inquiry in private. Section 89 was not amended by that Act, but in 1998 was amended to permit the Board to institute disciplinary proceedings in the Supreme Court which hitherto could only be instituted by the Attorney-General or the Law Society. 262 The Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) abolished the Board and created the office of the Legal Profession Conduct Commissioner. It conferred on the Commissioner expanded powers to discipline practitioners without taking proceedings in the Tribunal. 263 The Legal Practitioners (Miscellaneous) Amendment Act 2013 also established the Register of Disciplinary Action. Section 89C obliged the Commissioner to maintain the ‘Register of Disciplinary Action’ and to make it available for inspection on the internet. Disciplinary action taken in relation to professional misconduct must be included in the Register. A discretion was conferred on the Commissioner to include disciplinary action taken in relation to unsatisfactory professional conduct or the removal of a practitioner’s name from the Roll of Practitioners. Disciplinary action included a finding of unsatisfactory professional conduct or professional misconduct and sanctions from a reprimand to removal from the Roll of Practitioners and suspension. 264 It is clear that the purpose of the Register was to have a permanent and online record of practitioners against whom a serious finding had been made to allow the public an informed choice in engaging a legal practitioner. No implication can be taken from the statutory limiting of the Register to adjudications of misconduct and the sanctions imposed that the Parliament intended that inquiries should be held in private or that the name of the practitioner should not be publicised by other means other than the Register, unless and until there had been an adverse finding. Any such implication is precluded by the plain words of s 84A. 265 In the context of that history, it is clear that the purpose of s 84A was to remove disciplinary proceedings brought against practitioners from behind closed doors and subject them to public scrutiny. It is significant in that respect that the establishment of a Conduct Board, which replaced the Conduct Committee of the Law Society included laypersons in its membership. Those changes in the disciplinary regime for legal practitioners demonstrate that the increasing public expectations as to the standards which legal practitioners should observe, and the transparency of the process which holds them to account. -- 76 of 86 -- [2024] SASCA 133 Kourakis CJ 71 266 Section 84A(1) of the LPA is a strong application of the open court principle to the Tribunal. The exception to the general rule in subsection (2) requires satisfaction that it is in necessary to do so in the interests of justice or to protect legal professional privilege. 267 The power conferred by s 84A of the LPA to hold an inquiry, or part of it, in private is not concerned with the laying of the charge or with the filing of any other documents or the correspondence the Tribunal may have received about an inquiry. It is the inquiry which may be conducted in private. Nor does the power, by implication, extend to the making of a non-publication order. In particular, it does not prohibit the publication of information concerning the complaint which might have been obtained from sources other than by being present in the hearing room in which the Tribunal undertook the inquiry. The power is limited to conducting the inquiry in private. The Tribunal is empowered to lock the doors to the public and, by implication, not to give any notice of when and where it is sitting, but no more. 268 The Tribunal does not have a power to punish for contempt. Rather, s 84(3) of the LPA provides that it is an offence to fail to attend in accordance with a summons, or produce documents in accordance with a summons, to misbehave or insult the Tribunal, or to refuse to be sworn. Section 84(3)(e) also constitutes the offence of neglecting or failing without reasonable excuse to comply with any other reasonable requirement of the Tribunal. It may be that a person who refuses to leave a hearing room after an order is made pursuant to s 84A(2) would commit that offence. Similarly, if a person were to force himself or herself into the hearing room after the doors had been locked, that conduct would probably constitute the offence. 269 It can be accepted, and is the very premise on which the decision in Scott v Scott proceeds,101 that it is a contempt if persons present in a closed proceeding disseminate information obtained by reason of the permission granted to them to remain. 270 It may also be accepted that the Tribunal on proper grounds could, before allowing a person to observe the inquiry, or part of it, extract an undertaking from them which, if breached, might constitute a failure to comply with a reasonable requirement. 271 However, if a person, who was not present when the inquiry was held in private, published an account of the case against the practitioner obtained from other sources, it is difficult to see how that person has failed to comply with an order that the inquiry be conducted in private. 272 Of course, a person who published an account might nonetheless, subject to a proper defence, be liable for an action in defamation or for breaching confidence. 101 [1913] AC 417. -- 77 of 86 -- [2024] SASCA 133 Kourakis CJ 72 However, any such liability is not founded on any order which the Tribunal can make. 273 For present purposes, it is of greater importance that the power in s 84A(2) of the LPA is limited to hearing the inquiry, or part of it, in private. For the following reasons, the order does not extend to the receiving of the complaint. 274 A complaint is laid in accordance with the Legal Practitioners Disciplinary Tribunal Rules (“the Rules of the Tribunal”). Those rules provide that there shall be a secretary of the Tribunal who is responsible for the custody of all papers and records of the Tribunal and must not divulge information that comes to his or her knowledge by virtue of that office except in the course of and for the purpose of carrying out the duties of the office. The duties are not set out in any detail and perhaps are no more than being responsible for the custody of the papers and records. The information may be disclosed if authorised by the rules or by the Tribunal. 275 Rule 4 provides that a charge laid under s 82 shall be in a particular form and shall be served upon the secretary, the practitioner to whom the charge relates, and, except where the complainant is the Society, upon the Society. Rule 9 of the Rules of the Tribunal empowers the Tribunal to make orders as to discovery and the provision of particulars and the hearing procedure. 276 Rule 11 provides: 11. In the hearing and determination of any proceedings, subject to any provision of the Act relating to the conduct and the manner of receiving evidence, the Tribunal shall observe such of the rules of evidence including such of the Supreme Court Rules and other statutory or regulatory provisions relating to evidence as apply from time to time to the hearing of civil proceedings in the Supreme Court of South Australia save that in any particular proceedings, if it is satisfied that such a course will: (a) avoid undesirable prolixity; or (b) effect a substantial saving in costs; or (c) allow evidence to be adduced which should, in the interests of justice be received and which would otherwise be inadmissible or unavailable to it, the Tribunal may inform its mind in such manner as it thinks fit. It is to be observed that that rule applies only to the hearing and determination of any proceedings. It does not apply to documents in the custody of the secretary. 277 The Rules of the Tribunal do not apply the Supreme Court Rules as to the filing of documents and the basis on which they should be applied generally. In particular, it is not in terms which would pick up r 32.2 of the UCR. Only those Supreme Court Rules ‘relating to evidence’ are picked up. -- 78 of 86 -- [2024] SASCA 133 Kourakis CJ 73 278 The laying of a charge is not an inquiry. On the contrary, it is the process which invokes the Tribunal’s jurisdiction. Section 82(1) merely provides that a charge may be laid alleging unsatisfactory professional conduct or professional misconduct. 279 Section 82(4) provides: (4) Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates. 280 It must first be noted that contextually the charge which has been laid goes first to the Secretary of the Tribunal who, of course, is not authorised to conduct any inquiry. When notified by the Secretary, the Tribunal is constituted, in accordance with s 80, which provides for a coram of either three members of the Tribunal or a single member depending on the matter. The sitting member or members are chosen by the Presiding member of the Tribunal. 281 It follows that until a Tribunal is constituted, there cannot be an inquiry. Section 84A(2) can therefore have no application to the document by which the charge is laid. Moreover, in accordance with s 82(5), the Tribunal may take the step of summarily dismissing a charge that is frivolous or vexatious without conducting an inquiry. The summary dismissal order can be made by a single Tribunal member irrespective of the seriousness of the charge. It precedes the inquiry. The proceedings from which the appeal were brought were arguably proceedings of that kind and s 84A(2) of the LPA, on that premise, can have no application to them. 282 The effect is that the closure of the Tribunal cannot prohibit in any way the publication of any information about the charge. Schedule 4, which sets out the investigatory powers of the Commissioner, provides that the Commissioner or an investigator or any person employed or engaged on work related to the affairs of the Commissioner must not divulge information that comes to his or her knowledge by virtue of that office except in the course of carrying out the duties of that office or position or with the consent of the person to whom the information relates. By s 72, the functions of the Commissioner include the laying of a charge. 283 I am not persuaded that the laying of a charge discloses information. The charge only sets out the ultimate findings of fact on which it is alleged the practitioner engaged in professional misconduct or unsatisfactory professional conduct. Those facts might be the product of a complex evidential matrix about which the charge does not reveal anything. That, of course, does not mean that the Commissioner cannot be liable in defamation or in breach of confidence, but the Commissioner may plead the defence of truth if no more than the fact of the laying of the charge is communicated. 284 More importantly, the locus of the Tribunal’s power in respect of disclosure of its records, including its decisions, is the power necessarily implicit in the Rules -- 79 of 86 -- [2024] SASCA 133 Kourakis CJ 74 of the Tribunal to direct its Secretary to release them. That power must be exercised consistently with the open justice principle as it has been explained in [24] to [55] above. 285 In this particular case, even if there were power, there is no apparent basis for the orders made by the Tribunal. It was inquiring into a jurisdictional matter on which no evidence was to be led. The complainant’s name was anonymised. No undue hardship to any potential witness and, in particular, the practitioner’s wife has been identified. When pressed in this Court to identify a basis, counsel for Mr Belperio relied on the potential damage to the practitioner’s professional and personal reputation if there were publication of the charges before an adjudication of guilt. However, for the reasons already given that does no more than identify a personal interest. The law does not protect the personal and professional reputations of persons charged with criminal offences. Indeed, the open justice principle will generally militate in favour of disclosure. Conclusion 286 For the reasons stated above, it follows that Mr Belperio’s application for a suppression order, as well as each of the various alternative orders sought by him redacting materials filed in the matter and purporting to restrict the public’s right of access thereto, must be dismissed. The following orders made to preserve Mr Belperio’s anonymity until his applications and the application of Mrs Belperio were determined must be revoked: 1. The order of 22 April 2024, anonymising the respondent in the cause list published by the Court for any listing of this proceeding as “a Practitioner”, is revoked. 2. The interim orders of 20 June 2024 on the appeal and judicial review files, made under r 32.2 of the UCR and restricting all documents filed on the Court file on a party access basis, including access by judicial officers, are revoked. 3. The interim suppression order of 6 September 2024, prohibiting the publication of any report of the proceedings that refers to the possibility that the respondent’s wife may be a witness in the disciplinary proceedings or to her health, is revoked. 4. The interim suppression order of 27 September 2024, prohibiting any publication: (a) which identifies the respondent by name or which might tend to identify him as being the person the subject of the charge before the Legal Practitioners Disciplinary Tribunal or a party in this proceeding; (b) of any content of paragraphs 9, 10 and 14 of the respondent’s affidavit made on 30 August 2024; -- 80 of 86 -- [2024] SASCA 133 Kourakis CJ 75 (c) of the submissions made by Senior Counsel for the respondent at the hearing on 6 September 2024 regarding the respondent’s wife; (d) of any content of the affidavit of Matthew Selley made on 9 September 2024 and its exhibits (“Selley Affidavit”); (e) of any content of the affidavit of what has been referred to in submissions as the Other Affidavit made on 9 September 2024 and its exhibits (“Other Affidavit”); (f) of the submissions made by Senior Counsel for the respondent regarding the Selley Affidavit and the Other Affidavit, is revoked. 287 I would receive into open court appropriately redacted affidavits of Mr Belperio, Mrs Belperio, and Mr Selley and the report of Mr Broomhall which do not reveal details of: • sensitive personal information; • the adverse impacts, or potential impacts, on, or the symptoms of, Mr Belperio’s mental health, other than general references to his anxiety and depression; and • the circumstances of their children. I would hear the parties on the precise redactions. 288 I would also make a suppression order over those parts of the transcript of the hearing before this Court on Friday 13 September 2024 to prohibit publication of information of that kind. 289 I would hear the parties on the precise redactions and on any supplementary orders. 290 I would hear the parties as to the costs of the hearings. 291 BLEBY JA and STEIN AJA: We agree that Mr Belperio’s application for a suppression order, as well as the various alternative orders in the form sought by him, must be dismissed. We also agree with the orders proposed by the Chief Justice. 292 We broadly agree with the reasons given by the Chief Justice supporting his conclusion that Mr Belperio’s application for a suppression order, as well the various alternative orders in the form sought by him, must be dismissed. We give that indication with the following qualifications. 293 On the topic of the alleged professional misconduct, we do not think it is necessary to traverse the allegations. This appeal arose out of the Tribunal’s summary dismissal of charges and concerned whether the charges were competent. -- 81 of 86 -- [2024] SASCA 133 Bleby JA and Stein AJA 76 Senior counsel for Mr Belperio made a submission that the allegations did not go directly to Mr Belperio’s professional capacity and ‘on one view’ did not involve professional conduct such as to amount to professional misconduct. That submission was made in response to a question about how preventing the public knowing the substance of the allegations would serve the interests of justice. 294 In our view, it is sufficient to recognise that contemporary understandings of unsatisfactory professional conduct and professional misconduct, which understandings we share, recognise that abuses of imbalanced power relationships within the profession can extend to social interactions. The conduct of practitioners in social settings is capable of constituting unsatisfactory professional conduct or professional misconduct. 295 While we are apprised of the allegations against Mr Belperio, we do not think that it is necessary on this application to give an account of them. This Court is not concerned with the character of proved allegations. It is sufficient to recognise that whatever view is taken of the allegations against Mr Belperio, the withholding of them from public scrutiny to avoid ‘the potential prejudgment of the practitioner’, as counsel phrased it, serves a personal interest, not a public interest in the administration of justice. That is so notwithstanding that the allegations are likely to be embarrassing and detrimental to Mr Belperio’s personal and professional reputation. 296 How the Tribunal, supervised by this Court, approaches allegations about the behaviour of one practitioner towards a more junior practitioner, in any circumstance alleged, should be open to scrutiny. Subject to the exceptional considerations the Chief Justice addresses, transparency in how the Tribunal addresses such allegations against members of a relatively small and privileged profession is extremely important in promoting public confidence in the profession. 297 With respect to the evidence of Mr Broomhall, we have viewed the circumstances in which Mr Broomhall was first contacted in the light of Mr Belperio’s need to obtain an expert report at very short notice over the weekend to support the application for suppression orders. 298 A number of aspects of Mr Broomhall’s opinion were shown in cross-examination to lack sufficient evidential foundation or explanation. The frailties in the evidence are such that we cannot be satisfied the evidence before this Court is sufficient to justify the conclusion that Mr Belperio met the criteria for a Major Depressive Disorder: Single Episode, Severe. 299 We agree with the Chief Justice, for the reasons given by his Honour, that the potential for harm to the professional and personal reputation of a person charged with professional misconduct, caused by publicity of the charge, will not generally prejudice the administration of justice in disciplinary proceedings or on a review of those proceedings. We also agree that in a particular case it may do -- 82 of 86 -- [2024] SASCA 133 Bleby JA and Stein AJA 77 so. In circumstances where s 69A(2) of the Evidence Act does not incorporate the prevention of undue hardship to a party to justify a suppression order, it would be necessary for the matters referred to by Mr Broomhall to cause this Court to be satisfied that a suppression order should be made to prevent prejudice to the proper administration of justice. That is a consequence of the legislature’s prioritisation of open justice. 300 Mr Broomhall ultimately made a recommendation as to what should happen if Mr Belperio’s name were to be made public. The recommendation is of an expert witness engaged at short notice, based on limited inputs, not a recommendation from a treating practitioner. Accepting it on its face as a good faith recommendation in the exercise of Mr Broomhall’s professional judgment, it does not go so far as to indicate any persuasive basis for concluding that Mr Belperio would not be able to defend the charge in due course. Indeed, in the course of cross-examination, Mr Broomhall was asked about the extent to which he could prognosticate about the fitness of Mr Belperio to give evidence in the future. Mr Broomhall was asked if he would need to know, for example, what supports had been put in place and Mr Belperio’s response to those supports, should his name become public. He agreed that he would want to assess those matters and see evidence of a number of matters, including Mr Belperio’s current mental state. He agreed that at present, he would ‘be guessing a little too much’. 301 For these reasons, we consider that Mr Broomhall’s evidence does not support the proposition that it is necessary to suppress Mr Belperio’s name to ensure that the defence of the charge is not prejudiced. It is insufficient to meet the statutory requirement for satisfaction that a suppression order should be made to prevent prejudice to the proper administration of justice. 302 It is not necessary for us to traverse the evidence of Mrs Belperio. We agree that the prospect of her giving evidence is speculative. In expressing that agreement we do not, however, place any weight on the failure to have obtained a statement from her until recently. We would not speculate on the relative importance that Mr Belperio may have found necessary to have accorded to the competing considerations of his defence to the charge and maintaining his home life. 303 We do not consider the evidence of Mrs Belperio establishes undue hardship to her as a potential witness or a risk of prejudice to Mr Belperio’s conduct of his defence to the charge so as to satisfy us a suppression order should be made to prevent prejudice to the proper administration of justice. That is especially given the relatively remote and speculative prospect of her giving evidence. 304 On the scope of s 131(1)(aa) of the Supreme Court Act, we agree with the reasons of the Chief Justice that ‘process’ extends to pleadings and interlocutory steps. We also agree that s 131(2) is concerned with evidentiary material. In our view, no affidavit filed in proceedings comes within the concept of ‘any process relating to proceedings…’ within the meaning of that phrase in s 131(1)(aa). -- 83 of 86 -- [2024] SASCA 133 Bleby JA and Stein AJA 78 305 We accept that it has long been the case that a controversy may be defined by affidavits rather than by pleadings. That exigency is presently provided for by UCR 82.1, which provides for proceedings instituted by way of originating application and supporting affidavit. The supporting affidavit will, on many occasions, go some way to setting the parameters of the controversy, notwithstanding that it must comprise evidence admissible at trial. It is required to set out the facts on which the applicant relies to seek the order sought.102 306 Similarly, the process of responding to an originating application and affidavit contemplates both a response and an affidavit that must set out the facts on which the Respondent or interested party relies in relation to the orders sought.103 Notwithstanding that affidavits filed within the contemplation of these rules can have an important function in defining the issues in dispute, it seems to us that the scheme of s 131 is intractable in treating such affidavits as ‘material’ within the meaning of s 131(2) and not a ‘process’ within the meaning of s 131(1). 307 Pursuant to UCR 256.4, an action for judicial review is commenced by filing an originating application, a statement of facts, issues and contentions, and a supporting affidavit. A respondent or interested party who opposes the application must file a response to the statement of facts, issues and contentions, together with a responding affidavit.104 The statement and the response must not include evidence. It is these documents that define the issues in dispute. It follows that they are properly regarded as part of the process within the meaning of s 131(1). 308 It also follows that while we accept that the Rules required the affidavit to be filed in support of the application for judicial review, that is, in support of the process that comprised the originating application and the statement of facts, issues and contentions, we do not think that the affidavit itself can be regarded as part of the ‘process’ within the meaning of s 131(1)(aa). 309 On an appeal, the Registrar has the power, and if directed, the duty, to request the Court or Tribunal at first instance to transmit to the Court the documents relevant to the appeal.105 The step required by UCR 214.3 is facilitative of the appeal. However, we do not think that the transmission of the materials from the first instance court to this Court as the appellate court warrants the conclusion that this material forms part of the ‘process’ of this Court on appeal. 310 Rather, the accessibility of evidentiary material tendered at trial will in the first instance be governed by the regime applicable to the trial court, for example, s 54 of the District Court Act 1991 (SA) or s 51 of the Magistrates Court Act 1991 (SA). Processes in the lower court and evidentiary material tendered in that court will be accessible according to what are, essentially, mirror provisions of s 131 of the Supreme Court Act. Where the proceedings occurred in a specialist tribunal, 102 Uniform Civil Rules 2020 (SA) r 82.2. 103 Uniform Civil Rules 2020 (SA) r 83.2. 104 Uniform Civil Rules 2020 (SA) r 256.6 105 Uniform Civil Rules 2020 (SA) r 214.3. -- 84 of 86 -- [2024] SASCA 133 Bleby JA and Stein AJA 79 such as the Tribunal in this case, the accessibility of materials will be governed by the regime applicable to that tribunal and, otherwise, the absence of any prohibition on access. 311 Having said that, to the extent that the question of accessibility of records of this Court on an appeal is concerned, there is a slightly anomalous disconnection between the terms of s 131(1)(b), which permits inspection of ‘any documentary material admitted into evidence in any proceedings’ and s 131(2)(a), which prohibits, without the permission of the Court, inspection or copying of ‘material that was not taken or received in open court’. A question that arises is the status of documentary material transmitted to the Supreme Court under UCR 214.3 and received by the Court on appeal and documentary material forming the content of the appeal book under UCR 218.4. This material is not admitted into evidence before the Court of Appeal, but it is received by that Court. 312 First, for the reasons we have discussed with respect to the material transmitted under UCR 214.3, we do not think that the core appeal book is a ‘process’ of the Court within the meaning of s 131(1)(aa). The core appeal book is, in essence, a book of materials that is filed, in the ordinary course, 28 days after the preparation commencement date.106 The content of the core appeal book is dictated by UCR 218.4. 313 The core appeal book is not tendered on the appeal but, in our view, once the hearing of the appeal is commenced, it is received. It therefore does not come within the negative stipulation in s 131(2) (‘material that was not taken or received in open court’) but neither was it admitted into evidence. However, it seems to us that once a core appeal book is received in open court, there is no general prohibition on its contents being made accessible to the public. We take the view that s 131(2)(a) is to be read together with s 131(1)(b), to the effect that absent an order that material of this kind be received in closed court or suppressed, once the Court of Appeal receives it, it is accessible by the public as material received in open court. There is no apparent prohibition on it being accessible once so received. 314 The core appeal book will, on occasion, contain material that is sensitive or confidential. Those matters can be addressed by any application for that material to be received in closed court. The fate of any such application will likely mirror what transpired in the court below. A suppression order made in the court below will, of course, be ongoing unless subsequently varied or revoked. 315 In this case, the document setting out the charge was received in open court on the appeal hearing. For the reasons given above, we would hold that there is no prohibition against it being accessible by the public. 316 We agree with the orders proposed by the Chief Justice. 106 Uniform Civil Rules 2020 (SA) r 218.3. -- 85 of 86 -- [2024] SASCA 133 80 Note Some of the orders made by the Court have been stayed. The precise form of the orders can be obtained from the Registry. -- 86 of 86 --