Emanate Legal Services Pty Ltd v Hood & Anor [2021] QCA 94 (2021) 7 QR 575

SUPREME COURT OF QUEENSLAND CITATION: Emanate Legal Services Pty Ltd v Hood & Anor [2021] QCA 94 PARTIES: EMANATE LEGAL SERVICES PTY LTD ACN 169 229 752 (appellant) v ANTHONY GORDON MICHAEL HOOD JUNE HEATHER HOOD (respondents) FILE NO/S: Appeal No 10855 of 2019 SC No 393 of 2018 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Rockhampton – Unreported, 10 September 2019 (Crow J) DELIVERED ON: 7 May 2021 DELIVERED AT: Brisbane HEARING DATE: 9 September 2020 JUDGES: Fraser and McMurdo JJA and Brown J ORDERS: 1. Appeal dismissed. 2. No order as to costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – where reasons for judgment were published containing background material – where the original reasons were revised to remove the background material – where the reasons were revised and the original reasons were removed from the Supreme Court Library Queensland website – where the revised reasons without the background material were not published on the Supreme Court Library Queensland website – where the original reasons were published by an online publication – where the appellant applied for an order that a warning be issued to the public generally or the online publication of risk of contempt – where the primary Judge declined to issue the warning sought – where the appellant contends the primary Judge erred in exercising his Honour’s discretion to not issue the warning – whether the warning would have constituted an interference with open justice – whether the warning had to be given contemporaneously with the ruling restricting publication – -- 1 of 19 -- 2 whether the primary Judge erred in taking into account as a relevant consideration the fact that the information contained in the articles could have been sourced from affidavit material on the Court file when the material had not been read or tendered– whether the refusal to make the warning was unreasonable and unjust – whether there would be a substantial injustice in not upholding the appeal Supreme Court of Queensland Act 1991 (Qld), s 8 Uniform Civil Procedure Rules 1999 (Qld), r 981 AL Powell Holdings Pty Ltd & Anor v Dick & Anor [2012] QCA 254, cited Attorney-General v Leveller Magazine Ltd [1979] AC 440, considered Caltabiano v Electoral Commission of Queensland (No 3) [2009] QSC 186, cited Ex parte Queensland Law Society Incorporated [1984] 1 Qd R 166, cited Green & Ors v Pearson [2014] QCA 110, cited Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10; [1993] QCA 12, cited John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, cited Liao v New South Wales [2014] NSWCA 71, cited R v His Honour Judge Noud ex parte McNamara [1991] 2 Qd R 86, cited R v M [2002] 1 Qd R 520; [2001] QCA 131, cited Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419, cited R v O’Dempsey (No 3) [2017] QSC 338, cited Russell v Russell (1976) 134 CLR 495; [1976] HCA 23, cited Russo v Russo [2010] VSC 98, cited Smith v Harris [1996] 2 VR 335; [1996] VicRp 70, cited Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2019] QSC 29, cited COUNSEL: G A Thompson QC, with W LeMass, for the appellant S J Deaves for the respondents SOLICITORS: Emanate Legal for the appellant Rees R & Sydney Jones for the respondents [1] FRASER JA: I agree with the reasons for judgment of Brown J and the orders proposed by her Honour. I also agree with McMurdo JA’s additional observations. [2] McMURDO JA: I agree with the reasons of Brown J for dismissing this appeal. To her Honour’s extensive analysis, I wish to add just a few things. -- 2 of 19 -- 3 [3] In a civil action, a judge is permitted to alter the reasons for judgment after the delivery of the judgment, provided that the change is not one of substance.1 There are many legitimate reasons why a judge might alter the reasons for judgment. The circumstances in this case permitted, indeed obliged, this judge to do so. Mistakenly, his Honour had referred to the content of an affidavit which was not in evidence before him, and which contained material which could be very damaging to the professional reputation of the appellant and those lawyers who work for it. [4] However once the reasons were revised in this case, it was necessary that they be published. There was no reason for them not to be published, and considerations of transparency made it appropriate that they be accessible to the public. In this case, it would be appropriate for the revised reasons to carry a notation that they had been revised, as is the standard practice in some other jurisdictions.2 [5] The next point concerns the utility of the warning which the appellant would have the Court publish. The risk of a further publication of the original reasons, by the “Magpie’s Nest”, seems unlikely. Undoubtedly, the person or persons involved with that publication are by now sufficiently on notice of the risk of a contempt of court, if they represented the original reasons as a judgment. Those reasons having been appropriately amended, the republication of the original reasons would be an act which affected the due administration of justice.3 In the present circumstances, the proposed warning would have little apparent utility. [6] The other point is to note that in the course of argument, counsel conceded that any warning should not include the final paragraph of that which was sought by the appeal, and which is set out by Brown J. The concession was rightly made: what was sought in the last paragraph was more in the nature of an order, rather than a warning. [7] BROWN J: The present case raises an issue of whether and, if so, when it is appropriate for a court to issue a warning informing the public that certain conduct may undermine the administration of justice. The learned primary Judge in the present case determined that such a notice should not be issued. The appellant, Emanate Legal Services Pty Ltd (Emanate), contends that his Honour was in error and such a notice should be issued. Matters for Determination [8] The present appeal principally raises three matters which require determination: (a) First, whether the primary Judge erred in determining that the power to issue such a warning must be made contemporaneously with the relevant non- publication order. (b) Secondly, whether the primary Judge erred in considering that the material omitted from the original reasons as part of the revision of the reasons was able to be sourced from an affidavit on the Court file and in taking that into account as a relevant consideration. 1 Todorovic v Moussa (2001) 53 NSWLR 463, 467 [41], 468 [43], 469 [48] per Beazley JA (Powell JA and Sperling J agreeing); AL Powell Holdings Pty Ltd & Anor v Dick & Anor [2012] QCA 254 [47] per Holmes and White JJA and North J. 2 In the Federal Court and the Supreme Court of New South Wales. 3 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477 per McHugh JA (Glass JA agreeing). -- 3 of 19 -- 4 (c) Thirdly, whether the primary Judge erred in determining that, in any event, the publication did not interfere with the due administration of justice and the warning was an intrusion into the principle of open justice. [9] While further grounds were raised, they were not actively pursued at the hearing and are unnecessary to decide in order to determine the present appeal. Mr and Mrs Hood (the Hoods) took no active role in either the hearing at first instance nor upon appeal. Factual Background [10] The factual circumstances giving rise to the present case are unusual. [11] Emanate and the Hoods had a legal dispute in relation to legal costs which was the subject of proceedings commenced in the Rockhampton Supreme Court. An interlocutory dispute arose in relation to the delivery of a Reply. Orders were made and reasons were published on 25 July 2018 (the Original Reasons). Part of the Original Reasons were subsequently published by the publication, the Magpie’s Nest. [12] The Original Reasons included some matters4 by way of background, derived from an affidavit, or by inferences drawn from that affidavit. That affidavit was not in evidence before the Court and was referred to by the primary Judge as a result of a misunderstanding.5 The paragraphs in question were contentious and contained serious and potentially damaging allegations against Emanate. [13] After the Original Reasons had been published, Emanate subsequently made an application to the Court for the Original Reasons to be revised to remove the paragraphs referred to above. The revision of the Original Reasons was unopposed by the Hoods. The solicitors acting on behalf of the Hoods confirmed to the Court that their clients were not in fact raising the serious allegations contained in paragraphs [10] and [11] of the Original Reasons. It is readily apparent that allegations in the nature of those set out in paragraphs [10] and [11] of the Original Reasons had the potential to seriously damage Emanate’s reputation. For that reason, it is not appropriate to repeat them. [14] Counsel for Emanate submitted that given that the affidavit was not in evidence, the inferences drawn were incorrect and were not alleged by the Hoods as part of their case, and that the paragraphs in question were not material to the Court’s determination, the Court could in accordance with established principle, remove the paragraphs in question given their damaging effect. [15] The primary Judge determined that it was appropriate to revise his Honour’s Original Reasons to remove paragraphs [4]-[8] and [10]-[11] (the Omitted Paragraphs). The primary Judge considered that the revisions related to contentious background matters and did not form a step in the reasoning process for the orders which had been made. The primary Judge’s decision to revise the reasons was in accordance with well- established authority.6 [16] Following his Honour’s decision, the Original Reasons were removed from the Supreme Court Library Queensland (SCLQ) website. Unfortunately, the revised 4 Paragraphs [4]-[8] and [10]-[11] of the Original Reasons. 5 That affidavit was also the subject of objection. 6 Applying the well-established principles which were discussed in Todorovic v Moussa (2001) 53 NSWLR 463, reiterated in AL Powell Holdings Pty Ltd v Dick [2012] QCA 254. -- 4 of 19 -- 5 version of the reasons (Revised Reasons) were not published on the Court website given the Original Reasons had been, although they were searchable on the Court file. Prior to their revision, the Original Reasons appear to have been accessed by the Magpie’s Nest, an online publication based in Townsville, which is where Emanate is also located. [17] The Magpie’s Nest published extracts from the Original Reasons, which included the Omitted Paragraphs of the Original Reasons before his Honour’s Original Reasons were revised.7 Reference was made to the Original Reasons on the Magpie’s Nest website after the reasons were revised.8 It is not suggested that was done with knowledge the reasons had been revised. [18] The proceedings between Emanate and the Hoods were resolved and were discontinued on 16 August 2018. [19] On 29 March 2019, a non-party sought to access and copy documents from the Court file which included the Original Reasons and associated documents related to the application to revise the judgment. As a result of the question of access being referred to his Honour by the Registrar, the primary Judge made orders restricting access to Court documents 31, 32, 33 and 35 to the parties only (the Restricted Documents), pursuant to r 981(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).9 In the primary Judge’s reasons for making the restricted access order, the primary Judge noted that it was by oversight that the Original Reasons were uploaded on the SCLQ website and published which was contrary to his intention to only publish the Original Reasons to the parties on the basis that the reasons contained sensitive material.10 Having reiterated that the reasons were revised in accordance with well-established principles, the primary Judge found that there was no public interest in making the restricted documents available to anyone outside the parties to search and copy, given that the Original Reasons had in fact been revised and were available on the Court file.11 The Application to publish a warning [20] On 19 July 2019, the appellant applied to the primary Judge for an order that a warning be issued, as set out below, to the public generally or specifically to Mr Weatherup, a journalist with the Magpie’s Nest. This was based principally on the fact that the articles with the Omitted Paragraphs remained available on the Magpie’s Nest website and came up when certain searches were made relating to Emanate or its principals. The orders were not opposed by the Hoods. The matter was heard on 6 September 2019. [21] The terms of the warning sought were that: “Hood & Hood v Emanate Legal Services Pty Ltd proceedings RS393/18, Supreme Court of Queensland, Rockhampton Registry Warning as to publication of confidential sections of the Court file 7 See for example Appeal Record Book (volume 2), page 189. 8 Appeal Record Book (volume 2), page 189. 9 Appeal Record Book (volume 1), page 24; Confidentiality Reasons for Judgment at [4]. This is inconsistent with what his Honour later stated in relation to the present application under appeal but nothing turns on that for the purposes of this appeal. 10 Appeal Record Book (volume 1), page 23; Confidentiality Reasons for Judgment at [1]. 11 Court Document 35. -- 5 of 19 -- 6 On 25 July 2018, the Court delivered judgment and reasons for judgment on an interlocutory application in this proceeding. The interlocutory application was dismissed. The Court’s reasons were provided to the parties by email. At that time, the reasons were also uploaded on the publicly searchable Supreme Court of Queensland Library website (https://www.sclqld.org.au/caselaw). That was done in error. The Court had not intended for the reasons to be uploaded or published. On 27 July 2018, the Respondent applied for the reasons to be removed from the Supreme Court of Queensland Library website. On 27 July 2018 the Applicants indicated to the Court that the application for revision of reasons was not opposed. At a hearing on 31 July 2019 the Court acceded to the Respondent’s application for the reasons to be revised. A revised set of reasons was placed on the Court file. Certain paragraphs of the original reasons were omitted. On 29 March 2019, in response to a request by a third party to access the Court file in the proceeding, the Court ordered that certain documents not be publicly accessible, including the Court’s original reasons, the application for revision of reasons, and an affidavit in support of the application. The Court delivered reasons for declining to grant access, in which the Court explained that the proceedings had been settled and there was no public interest in the revised reasons being publicly available. The result that the actions and rulings as set out above were intended to achieve is that the original reasons be accessible only to the parties to the proceedings. It has been brought to the Court’s attention that a person or persons who are not parties to the proceedings may have obtained a copy of the original reasons, and have published those reasons, or the parts of them that were later removed. It is unlikely that those persons are aware of the procedural course or rulings set out above, or the result that the Court’s orders were intended to achieve. In the circumstances, the Court provides the following warning: If any person who received a copy of the Court’s original reasons dated 25 July 2018 in proceedings RS393/18 from the Supreme Court of Queensland Library website (https://www.sclqld.org.au/caselaw), or received a copy made of those original reasons: (a) publishes a copy of the original reasons; (b) publishes an extract from paragraphs 4 to 8 or 10 to 11 of the original reasons; or (c) publishes the substance and effect of paragraphs 4 to 8, or 10 to 11 of the original reasons; -- 6 of 19 -- 7 that conduct would frustrate or undermine: • the Court’s course of conduct in having the original reasons removed from the Supreme Court of Queensland Library website on 27 July 2018; • the Court’s decision to revise the original reasons by removing paragraphs 4 to 8 and 10 to 11 from those reasons; and • the Court’s orders made on 29 March 2019, restricting access to parts of the Court file in this matter, being documents 31, 32, 33 and 35, and which include the original reasons. Any person who is in possession of the original reasons or parts of those reasons is now warned that if they were to engage in, or continue to engage in, the conduct set out in paragraphs (a) to (c) above, doing so would expose them to the risk of proceedings for contempt of the Supreme Court of Queensland. Any person who considers that they ought to be free to engage in the conduct described in paragraphs (a), (b) and (c) herein, notwithstanding the warning now given, has liberty to apply in proceeding RS393/18, on three days written notice to the Respondent to those proceedings, for leave to be heard on why they should be permitted to engage in the conduct described in paragraphs (a), (b) and (c) herein notwithstanding the matters explained in this warning.” [22] The appellant seeks an order from this Court that a notice be issued in similar terms. The decision to refuse the application for the warning [23] The primary Judge declined to issue the warning sought by Emanate, providing his reasons ex tempore on 10 September 2019. [24] The primary judge carefully considered the cases placed before his Honour. His Honour acknowledged the principle of open justice, which underlies the administration of justice. In concluding that he would not exercise his discretion in favour of issuing the warning, his Honour: (a) considered that, consistent with the principles of open justice, nothing should be done to discourage press or public scrutiny, and that only cases where it is absolutely necessary to facilitate the due administration of justice justify a departure from proceedings being public and available to the press. His Honour recognised, quite correctly, that an order can be made only when it is in the public interest or the interests of justice; (b) considered that there was no suggestion in the seminal authority of Attorney- General v Leveller Magazine Ltd,12 (Leveller Magazine) that a warning of the nature sought could be made after the orders restricting access or ordering material be confidential; (c) stated by reference to McPherson J in Ex parte Queensland Law Society Incorporated,13 that it is not a contempt of court to publish a report of such 12 [1979] AC 440. 13 [1984] 1 Qd R 166. -- 7 of 19 -- 8 proceedings provided that the report is fair and accurate and further, that even though a publication may be harmful to a person’s reputation, that generally doesn’t justify an order limiting publication; (d) stated that the portions of the Magpie’s Nest reports, the subject of complaint, were accepted as being an accurate report of the Original Reasons with respect to the Omitted Paragraphs from the revised judgement. The primary Judge also stated that if the reports “are based upon affidavit material which is publicly available and remains publicly available” then in his Honour’s view it could not amount to contempt of court to publish reports based on that affidavit material; (e) took the view that there was no interference with the administration of justice by the Magpie’s Nest publication because at the time, the Omitted Paragraphs were in fact published in the Original Reasons prior to the revision and secondly, the evidential basis for the Omitted Paragraphs remain publicly available on the Court file; and (f) considered that public interest and the interests of justice require that proceedings be conducted in open court and a warning to the public generally or the proprietor of the Magpie’s Nest in the form provided was neither necessary nor proper in the interest of the due administration of justice. Appellant’s contentions [25] The appellant contends that the primary Judge erred in five respects in the exercise of his Honour’s discretion: (a) first, a warning would not have constituted an interference with open justice given that access to the Original Reasons had been restricted to the parties and there was utility in giving such a warning when conduct, which was undermining and frustrating the orders of the Court, had occurred and was continuing to occur; (b) secondly, that the primary Judge erred in suggesting that on the basis of Leveller Magazine, the warning had to be given contemporaneously with the ruling restricting publication when there was no principled reason why that had to be the case; (c) thirdly, that the primary Judge erred in taking into account as a relevant consideration the fact that the information contained in the articles could have been sourced from affidavit material on the Court file when that affidavit had not been read or tendered; (d) fourthly, that the primary Judge erred in relying on the fact that the reasons were delivered in open Court when in fact they had not been; and (e) fifthly, that the primary Judge’s refusal to make the warning was unreasonable and unjust. [26] The appellants submit that there would be substantial injustice in not upholding the appeal given the serious allegations that continue to be accessible on the Magpie’s Nest website, against Emanate and one of its principals, Barry Taylor, based on the Original Reasons. [27] In oral submissions the appellants focussed their arguments on the matters mentioned in (a), (b) and (c) above, although they did not abandon the remainder of their arguments. -- 8 of 19 -- 9 Legal Principles [28] As the primary Judge recognised, the application for the issuing of a warning in the terms above was an unusual application. There was no case put before the primary Judge or this Court where such a warning had been ordered. [29] There are a number of relatively uncontroversial principles relevant to the present case. [30] First, the administration of justice in Australia, as in England, requires that justice be carried out in public. The principle of open justice encompasses two aspects: first that the proceedings are held in open court to which the press and public are admitted and that generally all evidence communicated to the Court is in public; and secondly that nothing be done to discourage the publication to the wider public fair and accurate reporting of proceedings, which have taken place in court.14 [31] The principle of open justice has been encapsulated in s 8(1) of the Supreme Court of Queensland Act 1991 (Qld). [32] Secondly, given that the principle of open justice is to serve the “ends of justice,” it may be necessary to depart from it where, for instance, circumstances are such that the application of the general rule would frustrate or render impractical the administration of justice, or damage some other public interest for which there is a statutory protection derogating from the rule.15 At common law such a departure is based on the Court’s inherent power to control the conduct of proceedings for the purpose of administering justice. That power is to be exercised to the extent, and no more than to the extent, which the Court reasonably thinks is necessary in order to serve the ends of justice.16 Section 8(2) of the Supreme Court of Queensland Act 1991 (Qld) provides a statutory basis for limiting the extent to which the business of the Court is open to the public, if required in the public interest or interests of justice.17 [33] Thirdly, the balance of authority favours the view that while the Court can make orders binding on parties, witnesses and other persons in a courtroom, the Court has no general authority to make orders binding on people outside the courtroom.18 It has been recognised in Australia that the Court has a limited power to prohibit publication of proceedings conducted in open court.19 [34] Conduct outside the courtroom deliberately frustrating the effect of an order made to enable the Court to act effectively within its jurisdiction can, however, constitute 14 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450 per Lord Diplock; J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10. 15 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450, per Lord Diplock. 16 Attorney-General v Leveller Magazine Ltd [1979] AC 440; Ex parte Queensland Law Society [1984] 1 Qd R 166 at 170. 17 R v M [2002] 1 Qd R 520 at [8]. 18 R v His Honour Judge Noud ex parte McNamara [1991] 2 Qd R 86 at 98; Hogan v Hinch (2011) 243 CLR 506 at 533; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 477 (McHugh JA (as his Honour then was)). 19 Ex parte Queensland Law Society [1984] 1 Qd R 166 at 170 referred to by French CJ in Hogan v Hinch (2011) 243 CLR 506 at 533, cf Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ who did not consider it was necessary to decide: at 553; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 479 (McHugh JA (as his Honour then was); R v O’Dempsey (No 3) [2017] QSC 338 at [16] – [18]. -- 9 of 19 -- 10 contempt of court even if the party concerned was not bound by the Court order.20 To constitute contempt there must be a deliberate act by a party which interferes with the administration of justice. [35] As was said by McHugh JA in John Fairfax & Sons v Police Tribunal of New South Wales (John Fairfax):21 “An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative — not judicial-power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself. I think that the above statement of the applicable principles is in accordance with the way in which this branch of the law has developed.” [36] If a non-party is not privy to the order of the Court, there are obvious difficulties in ensuring the decisions of the Court are not undermined by that party outside of the courtroom by engaging in conduct that may frustrate court decisions, given the requirement that there must be a deliberate act by the offending party. [37] The fact an order could not be made to the broader public not to publish court proceedings was also recognised in R v Judge Noud; Ex parte MacNamara,22 (Noud’s case) but may serve as a warning. McPherson J stated that:23 “An order purporting to bind people generally not to publish can at most operate, upon those who become aware of it, as a warning that publication may, apart from the order, involve an interference with the due administration of justice and so amount to a contempt of court: Attorney-General v Leveller Magazine Ltd… Its function is similar to that of a proclamation comparable to the proclamation as to witnesses commonly made when a trial begins, which draws attention to the consequences of other witnesses remaining in court during the giving of evidence. As such, it ought not to be cast in the form of an order at all.” (citations omitted) [38] In recognition of the fact that court orders cannot be made to the public at large, or even generally to non-parties, and that conduct undermining the administration of justice may occur without the party concerned being aware of the court order, the notion of issuing a public warning, or issuing a warning to parties engaging in such conduct, emerged in the authorities. The intent is that such a warning would outline the effect of rulings or orders made by the Court and identify conduct which may undermine the effect of those orders and rulings and expose a party to the potential risk of contempt proceedings. This is a potential mechanism to make non-parties aware of the orders of the Court and the potential effect of their conduct, and protect the administration of justice. 20 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 477. 21 (1986) 5 NSWLR 465 at 477. 22 [1991] 2 Qd R 86. 23 [1991] 2 Qd R 86 at 98. -- 10 of 19 -- 11 [39] The notion of the Court issuing a warning that conduct may interfere with the administration of justice and expose the offending party to possible contempt was first raised by the House of Lords in Leveller Magazine. In that case, a Magistrate had ordered, in the interests of national safety, that a witness not be referred to by name and directed that his name be written down and shown only to the Court while he gave evidence. However, no order was made in relation to the publication of the evidence. Details had been given in evidence, without objection, which included the details of the witness’ army unit. The identity of the witness could be gleaned from the details given by him in evidence. Subsequently the witness’ name was published in three publications. Contempt proceedings were instituted by the Attorney-General against those responsible for the various publications. [40] The House of Lords upheld an appeal against the finding of contempt. While for differing reasons, the majority of the House of Lords accepted that the Magistrate had the power to take steps to conceal the witness’ identity in the interests of the due administration of justice, however found that the intended effect of the ruling was abandoned by evidence that was led without protest which contained identifying material. It was held therefore, that there was no interference with the administration of justice in the publication of the witness’ name. The proceedings for contempt were therefore dismissed. [41] In Leveller Magazine, there was a threshold issue involved as to whether the Magistrates had the power to issue an order to prevent a witness’ identity being revealed and then published. One of the issues, the subject of consideration by the Law Lords, was whether those responsible for the publication could have known that the Court intended the person’s identity to remain confidential. Lord Diplock noted that a ruling by the Court as to the conduct of proceedings may have a binding effect as such on those within the courtroom, such that a breach ipso facto is not a contempt unless it is committed there. Lord Diplock, however commented that:24 “Nevertheless where (1) the reason for a ruling which involves departing in some measure from the general principle of open justice within the courtroom is that the departure is necessary in the interests of the due administration of justice and (2) it would be apparent to anyone who was aware of the ruling that the result which the ruling is designed to achieve would be frustrated by a particular kind of act done outside the courtroom, the doing of such an act with knowledge of the ruling and of its purpose may constitute a contempt of court, not because it is a breach of the ruling, but because it interferes with the due administration of justice.” (emphasis added) [42] Lord Diplock emphasised if publication of material was intended to be restricted, the Magistrates needed to provide clarity stating that:25 “…What was incumbent upon them was to make it clear to anyone present at, or reading an accurate report of, the proceedings what in the interests of the due administration of justice was the result that was intended by them to be achieved by the limited derogation from the principle of open justice within the courtroom which they had authorised, and what kind of information derived from what happened 24 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 452. 25 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 452. -- 11 of 19 -- 12 in the courtroom would if it were published frustrate that result.” (emphasis added) [43] Lord Diplock considered that in cases where, in the interests of the due administration of justice, the courts have departed in some measure from the general principle of open justice, no one ought to be exposed to penal sanctions for criminal contempt of court for failing to draw an inference, or recognise an implication, as to what is permissible to publish about those proceedings, unless the interference or implication is so obvious or so familiar that it may be said to speak for itself.26 In that case, Lord Diplock did not consider that it would have been evident to those present in the Court, or those reading a report of the proceeding, that disclosure of identity would interfere with the due administration of justice so as to amount to contempt. His Honour commented that:27 “Difficulties such as those that have arisen in the instant case could be avoided in the future if the court, whenever in the interests of due administration of justice it made a ruling which involves some departure from the ordinary mode of conduct of proceedings in open court, were to explain the result that the ruling was designed to achieve and what kind of information about the proceedings would, if published, tend to frustrate that result and would, accordingly, expose the publisher to risk of proceedings for contempt of court.” (emphasis added) [44] Similarly, Viscount Dilhorne in Leveller Magazine considered that:28 “While I do not think that it was strictly necessary for the magistrates to give such a warning in this case, I think it very desirable that in future cases where a court takes the course that the magistrates took in this case, a warning that publication of the witness’s identity might lead to proceedings for contempt should be given. Such a warning will make it clear that it is not just a request not to publish that is being made, a request usually made when the identity of a person is inadvertently disclosed and one that is usually complied with.” (emphasis added) [45] Lord Edmund-Davies recognised the difficult position that may be faced by the press stating that:29 “It may be objected that, in an area where the boundaries of the law should be defined with precision, such a situation confronts those engaged in the public dissemination of information with perils which cannot always be foreseen or reasonably safeguarded against. To retort that this has always been so affords no comfort, but intelligent anticipation of what would be fair and what would be unfair can go a long way to ease the burden of the disseminators. They would themselves be in all probability the first to resist court “directions” as to what they may or may not publish, and I have already expressed my disbelief in their general validity. But the press and others could, as I believe, be helped were a court when sitting in public to draw express 26 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 453. 27 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 453. 28 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 456. 29 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 465. -- 12 of 19 -- 13 attention to any procedural decisions it had come to and implemented during the hearing, to explain that they were aimed at ensuring the due and fair administration of justice and to indicate that any who by publishing material or otherwise acting in a manner calculated to prejudice that aim would run the risk of contempt proceedings being instituted against them.” (emphasis added) [46] As Lord Edmund-Davies commented, ignoring the warning by disobedience would not necessarily establish a case of contempt, but the knowledge that a warning had been given should at least provide a guide to possible consequences.30 His Honour however also pointed out that the lack of a warning against publication would not necessarily preclude an action for contempt.31 [47] Lord Scarman, noted that a person who with knowledge of a court order and who frustrates its purpose relevant to that case by publishing the evidence or information leading to its exposure, may be exposed to contempt, but his Honour did not discuss the provision of a warning as to the effect of the Court’s ruling. [48] Thus, three of the Law Lords suggested that a warning issued by the Court setting out the effect of a ruling in order to protect the due administration of justice where an order has been made departing from the rules of open justice to limit the disclosure of proceedings in some way acts to put those who may be publishing the content of proceedings on notice of the order made. [49] Warnings of the nature discussed in Leveller Magazine, if given, serve to put a wider sector of the community on notice of a court’s order to both protect the Court’s processes and warn someone not otherwise bound by the Court order that certain conduct may undermine the administration of justice and potentially be in contempt of court. For such a warning to be issued, the Court will therefore also need to be satisfied that it is necessary in the interests of justice. [50] Consistent with the Court’s inherent power to protect the administration of justice there is power for the Court to order that such a warning be issued in the nature of what was discussed in Leveller Magazine. Given that such a warning will potentially inhibit the publication of proceedings and the better view is that given that the Court cannot make an order restricting publication upon the world at large, it will only be in clear cases where the due administration of justice is threatened by conduct that would undermine a court’s orders, that such a warning will be issued by a court in the interests of justice. Consideration [51] As the decision of the primary Judge to decline to issue a warning is a discretionary one, it must be shown that the primary Judge erred in accordance with the principles of House v The King.32 In the context of an interlocutory discretionary decision, Barret J neatly summarised the approach of an appeal court in Liao v New South Wales:33 30 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 465. 31 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 466, Lord Russell at p. 469 also commented that a warning was not necessary to establish contempt, but could be useful. 32 (1936) 55 CLR 499 at 505. 33 [2014] NSWCA 71 at [155], referred to by Jackson J in Green & Ors v Pearson [2014] QCA 110 at [4]. -- 13 of 19 -- 14 “The discretionary nature of the decisions means that appellate intervention is warranted only on grounds identified in House v R including that the decision is affected by extraneous or irrelevant matters or the judge mistakes the facts, acts on a wrong principle or does not take into account a material consideration or the decision is unreasonable or plainly unjust. The fact that matters of practice and procedure only are involved means that the appellate court should exercise the ‘added restraint’ that that circumstance attracts (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc) and ‘be extremely reluctant to interfere’ (In the Will of FB Gilbert (dec)).” (citations omitted) [52] As set out above, there were essentially three errors identified by the appellant, which were focussed on at the hearing. [53] The appellant contends that the primary Judge was in error insofar as his Honour felt constrained by authority which his Honour construed as providing that such a warning, as was sought by the appellant, could not be issued after the time of the order the subject of the warning. The appellant relies on his Honour’s statement that “there is no suggestion in Lord Edmund-Davies reasons, nor of any other of the House of Lords’ reasons of the ability or desirability of a post-judgment warning.”34 [54] The primary Judge carefully considered the judgments in Leveller Magazine, and the observation the primary Judge made was strictly speaking true, however the converse is not true, namely that a post-judgment warning could not be issued. None of the Law Lords in Leveller Magazine, however, considered the question of whether there could be a post-judgement warning. While the issuing of the warning was discussed in the context of the relevant order or ruling being made by the Court, none of the Law Lords suggested that such a warning could only be issued contemporaneously with the order the subject of the warning.35 [55] Nor is there any basis for such a legal constraint in principle. While the proximity of the issuing of the warning to the making of the order may be a relevant consideration in terms of any utility in issuing such a warning, there may be circumstances which arise where the issuing of a warning at a later time may be appropriate. The purpose for which such a warning may be ordered is to protect the Court’s processes. It may still be appropriate to issue a warning when a publication which undermines the Court’s order or ruling occurs sometime after when the order or ruling was made. Insofar as the primary judge acted on the basis he was constrained by authority to not issue a warning after making restrictive orders previously, his Honour was in error. [56] Secondly, the appellant contends that the primary Judge erred in determining that there was no possibility of any contempt in the future if there was publication of the Omitted paragraphs because the evidential basis for the Omitted Paragraphs from the Original Reasons was contained in the affidavit of the respondents, which was publicly available on the Court file. The appellant further contends that his Honour erred in taking that this matter into account at all contending that it was an irrelevant consideration. [57] It is true, as the primary Judge stated, that a fair and accurate report of the Original Reasons prior to any revision and orders restricting public access to the Original 34 Appeal Record Book (volume 1), page 34. 35 Cf Appeal Record Book (volume 1), pages 34 to 35. -- 14 of 19 -- 15 Reasons would not result in the publication undermining the Court’s decisions and the administration of justice. [58] It is not necessarily true after the Original Reasons were revised on the basis that they still represented part of the reasons of the Court. The effect of revising the reasons to remove paragraphs which were no more than background information and were included in error was that the Omitted Paragraphs were no longer part of the reasoning of the Court. The orders restricting access to the Original Reasons reflects the intent of the Court that they were only available to the parties to the action and not available for broader application. [59] The affidavit was not in evidence and was the subject of objection by the appellant. Further the primary Judge was in error in considering that the Omitted paragraphs could be the subject of a publication derived from the Affidavit. The Omitted paragraphs not only referred directly to the affidavit but contained serious allegations inferred by the primary Judge in paragraphs [10] – [11] of the Original Reasons were not evident on the face of the affidavit, and which the respondents confirmed prior to the reasons being revised that they did not intend to make. Nor were the allegations contained in the statement of claim. [60] An affidavit is not a part of court proceedings until it is deployed as part of the judicial process.36 While it is true that the affidavit remained searchable on the file,37 it had not been read in open court and was not in evidence. It contained contentious material which was the subject of objection. It therefore does not necessarily attract any qualified privilege that attaches to allegations, oral and written made by parties and witnesses in an open forum,38 nor would a report based on the affidavit necessarily be characterised as a fair and accurate report. His Honour’s conclusion was therefore based on incorrect assumptions. [61] In any event, even if one accepts that material in the affidavit may have been used as a basis for publishing in substance the same allegations, that is quite different to a person publishing the omitted parts of the reasons which were subsequently made the subject of a restricted access order. It is the administration of justice that is sought to be protected arising from the Court’s orders. The existence of an affidavit on the court file was therefore irrelevant to the matter that had to be considered by the primary Judge. The purpose of issuing a warning was to ensure that the Court order and rulings were not undermined by the omitted paragraphs from the Original Reasons not being revealed to the public running counter to the effect of the orders made. The primary Judge therefore had regard to an irrelevant consideration. The decision was therefore tainted with error within the meaning of House v The King.39 [62] The appellant also contends that the primary Judge erred in determining that a warning to the public generally, or to the editor of the Magpie’s Nest specifically, 36 Smith v Harris [1996] 2 VR 335 at 341. 37 See r 981 of the UCPR. 38 Russo v Russo [2010] VSC 98 at [13]-[16] referring in particular to the decision of Byrne J in Smith v Harris [1996] 2 VR 335 where his Honour held that the common law qualified privilege attaching to reports of proceedings in court is confined to proceedings conducted in open court and does not protect the publication of documents which may or may not be and in any event used in the Court process. The fact an affidavit may be open for public inspection under r 981 UCPR may raise a question of qualified privilege: Smith v Harris at 350-1 where that point was left undecided. Rule 981 has been described in this Court reflective of the principles of open justice: Caltabiano v Electoral Commission of Queensland (No 3) [2009] QSC 186 at 3. 39 (1936) 55 CLR 499. -- 15 of 19 -- 16 was neither necessary nor proper in the interests of justice and due administration of justice. In particular, the appellant contends that is inconsistent with the primary Judge’s earlier determination that there was no public interest in making the Original Reasons and associated documents available to search and copy, which had led to the primary Judge making the order restricting public access. [63] His Honour was undoubtedly correct in his recognition that at common law, and by statute, that a paramount object of the courts, which is doing justice according to law, is that hearings take place in public and that departure from the principle of open justice only occurs in exceptional circumstances. However his Honour conflated the position in relation to the principles of open justice which are rarely derogated from, and the actual position in this case where his Honour had already determined that access to the Original Reasons and associated documents should be restricted to the parties. Orders had therefore already been made by his Honour departing from the principles of open justice.40 Those orders were in accordance with well established exceptions to the principles of open justice where the public interest or the interests of justice require limits to be placed upon the extent to which the business of court is open to the public.41 The question was not therefore whether an order should be made departing from the principles of open justice but whether a notice was required to be issued in order to protect the administration of justice. [64] The restrictive order as to access was made under r 981 UCPR. While r 981 of the UCPR and s 8 of the Supreme Court of Queensland Act 1991 (Qld) arise in different contexts, both reflect principles of open justice to varying extents.42 Rule 981 is directed to a court file being publicly searchable, whereas s 8 is directed to the conduct of the business of the court in public. There are certainly parallels to be drawn between the two provisions, although there is a clear distinction between what takes place in an open court as opposed to what is filed by a party which may never become evidence or the subject of proceedings in open court and be subject to the scrutiny of the court process.43 In the present case given the Original Reasons had at least been publicly accessible on the SCLQ website, the restricted access order under r 981 of the UCPR did derogate from the usual position of open justice. In restricting access to the Original Reasons on the Court file to only the parties to the proceedings under r 981(3) of the UCPR, the primary Judge was conscious that the Original Reasons prior to their revision contained sensitive material and were without an evidential basis. In revising the Original Reasons and removing them from the SCLQ website, the primary Judge was conscious of not allowing material that was not read in open Court, which contained suggestions of serious allegations against the appellant, to be publicly available. Similarly, the primary Judge’s determination not to make the Original Reasons publicly accessible on the Court file, was to ensure that the Original Reasons containing the omitted paragraphs were not to be publicly available. [65] While the primary Judge was properly concerned not to interfere with open justice and the publication of proceedings, the primary Judge erred insofar as his Honour 40 Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2019] QSC 29 at [1], in particularly referring to Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520. 41 As to s 8(2): Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2019] QSC 29 at [13]. 42 Caltabiano v Electoral Commission of Queensland (No 3) [2009] QSC 186 at 3, which suggests r 981 reflects principles of open justice. 43 As was recognised by Croft J in Russo v Russo [2010] VSC 98 untested allegations if made public may in certain circumstances be highly prejudicial to other parties and witnesses so that it is necessary for the Court to exercise some control over the dissemination of such untested and potentially prejudicial material. -- 16 of 19 -- 17 failed to recognise the fact that once access to the Original Reasons had been restricted, the Court had already made rulings which, to a limited extent, derogated from the principles of open justice, where his Honour considered it was in the interests of justice. His Honour therefore failed to consider the correct question in determining not to issue the warning and was in error in the exercise of his Honour’s discretion. [66] The warning itself would not therefore have constituted an interference with open justice in the present circumstances, given restrictive access orders had been made in relation to the Original Reasons. The warning would only have served to warn of the effect of the Court’s orders and that the Original Reasons no longer represented the reasons of the Court. Issuing such a notice would have been to ensure the Court’s orders were not undermined by publication of the Omitted Paragraphs. While a warning may have dissuaded a non-party from publishing those paragraphs, the warning itself would not have limited the publication of any proceedings in open court. [67] Although his Honour correctly noted that reputational damage is not generally a basis upon which to make an order for non-publication or a warning, his Honour failed to consider the fact that the Omitted Paragraphs had properly been removed because they were included in error without a proper evidential basis and were contentious background matters which did not form a step in the reasoning.44 [68] Unlike the situation considered in Ex parte; The Queensland Law Society,45 being whether to restrict inspection and publication of a notice of appeal, the Original Reasons were no longer available and were based on material not read in open court and already the subject of restricted access orders. [69] While the primary Judge erred in considering whether the public interest or interest of justice required such a warning to be issued to preserve the rulings of the Court and the administration of justice, it was a difficult and complex question in the circumstances of this case, where events had been drawn out over a considerable period of time. Should the appeal be allowed? [70] The relief sought by the appellant is that the order of 10 September 2019 be set aside and the Court provide supplemental reasons and a warning in the form as set out in Annexure A to the notice of appeal. Notwithstanding that the primary Judge made the errors identified above in the exercise of his Honour’s discretion, I also conclude that in the circumstances of this case, it is neither necessary nor appropriate to issue such a warning in the interests of justice. [71] In the present case the primary Judge had determined that it was in the interests of justice to revise the reasons and remove the Original Reasons from the SCLQ website and restrict access to them. Those decisions were appropriate in the circumstances. The subsequent publication of the Omitted Paragraphs after those orders were made and the reasons revised could potentially interfere or undermine the due administration of justice,46 in misrepresenting the reasons of the Court in circumstances where the primary Judge had determined that it was not in the public 44 As referred to in his Honour’s decision of 29 March 2019. 45 [1984] 1 Qd R 166. 46 It is unnecessary for the Court to determine this, and this decision should not be construed as expressing an opinion in that regard. -- 17 of 19 -- 18 interests of justice that those Omitted Paragraphs in the Original Reasons be made publicly available. Such conduct could undermine the administration of justice. [72] The potential interference with the due administration of justice is the primary consideration in relation to the issuing of such warnings, given that it is intended to protect the administration of justice in putting non-parties on notice of the Court orders and identifying conduct that may constitute contempt, to avoid the Court’s orders and processes being undermined or frustrated. This is consistent with the fact that contempt proceedings do not seek to further the interests of individuals, or indeed the individual court or judge seeking to administer it, but rather the interest of justice.47 In my view the warning should only be issued where the Court considers there is a real risk that conduct may be engaged in, which may undermine the administration of justice. Like orders limiting the publication of proceedings, such warnings will be uncommon. [73] There are some circumstances in the present case which favour the issuing of a warning. The content of the Omitted Paragraphs was a matter which his Honour determined should not be made public and did not represent part of the reasoning of the Court. The reasons were properly revised by his Honour and access to the Original Reasons was restricted in accordance with established principle. [74] The primary consideration where orders restricting open justice have already been made is whether the due administration of justice may be interfered with as a result of conduct which may undermine the effect of the orders made by the Court. Should a party aware of such a warning engage in such conduct after the issuing of such a warning, the due administration of justice may be protected by contempt proceedings if appropriate. To justify such a warning there must be a likelihood that such conduct might occur. In the present case I am not satisfied that there is such a likelihood to warrant the issuing of a notice. [75] Considerable time has however now passed since the Original Reasons were revised and the restrictive orders were made. The publication of the Omitted Paragraphs by the Magpie’s Nest first occurred prior to the Original Reasons being revised and any restrictive orders being made. No criticism can be made of the Magpie’s Nest of such a publication at the time, nor could its conduct at that time risk contempt. While subsequent publication of the Omitted Paragraphs by the Magpie’s Nest did occur after the reasons were revised, that was in circumstances where the Revised Reasons had not been placed on the SCLQ website to be readily accessed. While the original publication of the Magpie’s Nest which includes the Omitted Paragraphs continues to be searchable by “Google search” there is no evidence that it has been republished since the restrictive orders were made, although it was indirectly referred to in a subsequent article. [76] Given the Revised Reasons were not published on the SCLQ website in place of the Original Reasons, a third party may not necessarily know of the Revised Reasons or the subsequent steps taken by the Court to ensure the Original Reasons were not publicly available. Indeed, in the present case, exchanges on the Magpie’s Nest website after the Original Reasons were removed, suggest they were not aware of the real reasons for the removal with speculation after they that were removed that it had been done for some surreptitious reason. 47 Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 449, per Lord Diplock. -- 18 of 19 -- 19 [77] The publication of the Original Reasons has been limited. The evidence only shows publication of the Omitted Paragraphs by one outlet, the Magpie’s Nest. There is no evidence the subsequent publication occurred with knowledge of the Court orders or the Revised Reasons to flout the orders of the Court. It is not likely that they will be published by any other parties since the time when the Original Reasons were published on the internet was very limited, and the Original Reasons cannot be accessed by anyone outside the parties to the original action. Indeed, one would assume after this decision the Magpie Nest will not seek to refer to the Omitted Paragraphs again. [78] In the circumstances, the issuing of a warning in the present case has little utility and does not serve the interest of justice, given the delay that has taken place. There is no evidence suggesting any likelihood of further publication, which one would infer will now be even more unlikely in light of these reasons. There is no evidence that the publication of the Omitted Paragraphs from the Original Reasons had continued after the access to the Original Reasons was restricted. While the continued presence of the Omitted Paragraphs on the internet is justifiably a source of concern on behalf of the appellant, the warning is not issued to assist particular individuals, but rather, it is used to advance the administration of justice. [79] The appellant still has other avenues open to it to bring the Court’s decision to the attention of the Magpie’s Nest. The appellant could write to the Magpie’s Nest informing it of the fact that the Revised Reasons were issued and the Omitted Paragraphs have been omitted. The appellant could apply to the primary Judge to have the Revised Reasons published on the SCLQ website. [80] In any event, the appellant will now have the benefit of these reasons which, if it wishes, can be provided to the relevant parties at the Magpie’s Nest, to inform them that the Original Reasons were revised to omit the paragraphs in question and of the orders restricting public access to the Original Reasons. Conduct which runs counter to the orders after having knowledge of what has occurred could be regarded quite differently from the position at present. [81] The interests of justice do not, in the present case, warrant the Court issuing a warning in the terms sought by the appellant. Conclusion [82] The appeal should be dismissed. Given the respondent did not take any active part in opposing the appeal no orders as to costs should be made. -- 19 of 19 --