Caltabiano v Electoral Commission of Queensland & Anor (No 3) [2009] QSC 186

SUPREME COURT OF QUEENSLAND CITATION: Caltabiano v Electoral Commission of Queensland & Anor (No 3) [2009] QSC 186 PARTIES: ANDREA MICHELE CALTABIANO (applicant/respondent) v ELECTORAL COMMISSION OF QUEENSLAND (first respondent/applicant) STEVEN ANDREW KILBURN (second respondent/respondent) FILE NO/S: BS 3921 of 2009 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Court of Disputed Returns at Brisbane DELIVERED ON: 15 July 2009 DELIVERED AT: Brisbane HEARING DATE: 15 July 2009 JUDGE: Atkinson J ORDER: 1. That the time for service of the application is abridged. 2. That a person who is not a party or a representative of a party may inspect any document on this file filed prior to 16 July 2009, apart from document 43. 3. That a person who is not a party or a representative of a party may not inspect document 43 without the leave of the Court. 4. That any document filed after 15 July 2009 may be inspected by a person who is not a party or a representative of a party only with the leave of the Court. 5. That the costs of today be costs in the proceedings. CATCHWORDS: CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – THE LEGISLATURE – ELECTIONS AND RELATED MATTERS – DISPUTED ELECTIONS – DISPUTED ELECTIONS COURTS OR TRIBUNALS – PROCEDURE – where a party sought to restrict access to the court file – where orders sought were not opposed – where r 981 of the Uniform Civil Procedure Rules -- 1 of 7 -- 2 1999 (Qld) provides that the Registrar must permit a person access to a document in the court file unless the Court otherwise orders – where s 136 of the Electoral Act 1992 (Qld) obliges the Court to ensure, as far as is reasonably practicable, that the secrecy of the ballot be maintained – whether, and to what extent, the Court should order that access to the court file be restricted ASIC v Rich (2001) 51 NSWLR 643; [2001] NSWSC 496, cited John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, cited Uniform Civil Procedure Rules 1999 (Qld), r 981 Electoral Act 1992 (Qld), s 136 COUNSEL: P Dunning SC, with P Baston, for the applicant A D Scott (sol) for the first respondent L S Reidy (sol) for the second respondent SOLICITORS: RiverLegal for the applicant Crown Law for the first respondent Carne Reidy Herd for the second respondent -- 2 of 7 -- SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ATKINSON J No 3921 of 2009 ANDREA MICHELE CALTABIANO Applicant and ELECTORAL COMMISSION OF QUEENSLAND Respondent BRISBANE ..DATE 15/07/2009 ORDER -- 3 of 7 -- 1-2 ORDER 1 10 20 30 40 50 60 HER HONOUR: The orders will be: 1. That the time for service of the application is abridged. 2. That a person who is not a party or a representative of a party may inspect any document on this file filed prior to 16 July 2009, apart from document 43. 3. That a person who is not a party or a representative of a party may not inspect document 43 without the leave of the Court. 4. That any document filed after 15 July 2009 may be inspected by a person who is not a party or a representative of a party only with the leave of the Court. This application has come on before me this morning on the application of the first respondent, the Electoral Commission of Queensland. The application sought orders including that only the parties to these proceedings be permitted to inspect the Court's file in this proceeding or take copies of documents contained in that file. The orders sought were not opposed by the applicant or the second respondent. Nevertheless, I took the view that the order sought was too wide and have made more limited orders in the terms to which I have just referred. -- 4 of 7 -- 1-3 ORDER 1 10 20 30 40 50 60 The application was supported by an affidavit by Mr Scott from Crown Law and the second respondent also filed an affidavit by Mr Reidy of the solicitors acting for the second respondent. The application is governed in the first instance by rule 981 of the Uniform Civil Procedure Rules. Sub-rule 1 provides that "A person may ask the Registrar to search for, and permit the person to inspect, a document in a Court file." Sub-rule 2 says that "If the person is not a party or a representative of a party the person asking for the search or inspection must pay a prescribed fee for the search or inspection." Sub-rule 3 provides that "Subject to any Court order restricting access to the file or document or the file or document being required for the Court's use the Registrar must comply with that request unless there is not enough information for the Registrar to be able to comply with it." This rule is a very significant rule in the Uniform Civil Procedure Rules in that it gives practical effect to the important principle of openness of justice. It is critical to the operation of the courts in Queensland that the principle of open justice operates except where there is some other principle which requires that principle to be qualified or curtailed in some way. -- 5 of 7 -- 1-4 ORDER 1 10 20 30 40 50 60 In ASIC v Rich [2001] NSWSC 496 the principles were set out by Austin J in paragraphs 20 to 23. In particular I refer to the case cited by his Honour in paragraph 21, John Fairfax and Sons Ltd v The Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 to 477 where McHugh JA, as his Honour then was, said, "The fundamental rule of the common law is that the administration of justice must take place in open Court. The Court can only depart from this rule when its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule." That takes me to the Electoral Act, in particular part 8 which is the part that deals with the Court of disputed returns. Section 136 deals with the powers of the Court. Importantly for this application subsection 4 says, "The Court must ensure, as far as is reasonably practicable, that the secrecy of the ballot is maintained." It is common ground amongst the parties that in order to protect the secrecy of the ballot the attachments to the further and better particulars provided by the applicant in document 43 ought not to be able to be inspected by persons outside the parties and their representatives. I agree that that is the case. The secrecy of the ballot is a fundamental constitutional rule of our democracy and ought not be threatened in any proceedings. The Parliament has specifically recognised that in the Electoral Act and I am -- 6 of 7 -- 1-5 ORDER 1 10 20 30 40 50 60 obliged to give effect to it. That is the reason for the qualification of the rule of open justice in this case. As I have said at the beginning of these reasons I have attempted to fashion an order which goes no further than it needs to go to give effect to the rule of open justice, qualified in proceedings of this type by the need to protect the secrecy of the ballot. ... HER HONOUR: The costs of today will be costs in the proceedings. ... ----- -- 7 of 7 --