Breeton Pty Ltd v Carpregin Pty Ltd & Anor [2004] QSC 192

State Reporting Bureau jfooT} osc Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION HOLMES J No BS1750 of 2004 BREETON PTY LTD ACN 069 855 661 and CARPREGIN PTY LTD ACN 050 412 863 FIZRAY PTY LTD CAN 051 769 521 BRISBANE ..DATE 03/06/2004 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 10 June, 2004 Applicant First Respondent Second Respondent WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 3 -- HER HONOUR: On 19th of March I granted leave, pursuant to 1 section 237 of the Corporations Act, for the applicant Breeton Pty Ltd as a shareholder of the first respondent, Capregin Pty Ltd to proceed on the latter's behalf on and from the 26th of March in an action against Seamark Pty Ltd. 10 At the end of the hearing Breeton Pty Ltd sought suppression of three affidavits, two by Mr Chong its director and the third by its solicitor, Mr Tucker. 20 By leave, Breeton Pty Ltd put in submissions after the hearing in which it was argued that each of these affidavits contains material which might operate to the disadvantage of Capregin in litigation it was currently involved in, giving the other party an opportunity to exploit certain matters internal to 30 Capregin's affairs. It was said, also, that one of Mr Chong's affidavits exhibited without prejudice correspondence. 03062004 T04/NLT20 M/T 1/2004 (Holmes J) The second respondent Fizray Pty Ltd, which is the other shareholder in Capregin, also put in submissions. Its solicitors pointed out that neither they nor the applicant's solicitors acted for Capregin; that it was questionable whether the shareholders in Capregin had standing to make the application; and they expressed doubt that the material demonstrated that the issues relating to the company's affairs could affect the litigation. 40 50 The power to make an order restricting access to affidavits on a Supreme Court file clearly exists: see rule 981(3) of the 2 JUDGMENT 60 -- 2 of 3 -- Uniform Civil Procedure Rules. However, consistently with the principle of open justice it ought to be exercised sparingly: "Information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm or other collateral disadvantage.": J v. L & A Services Pty Ltd No 2 [1995] 2 Queensland Reports page 10 at page 45. The ultimate question, of course, is what is required for the administration of justice. I am not satisfied here that the possibility that the material contained in the affidavits might come to the knowledge and use of the other party in litigation not connected with the present application - a possibility that seems to me not to advance much beyond the speculative - is of such weight as to overcome the public interest in open proceedings. The solicitors' letters which are said to be subject to without prejudice privilege passed between the solicitors for Mr Chong and Breeton Pty Ltd and the solicitors acting for the second respondent Fizray Pty Ltd. They were put into evidence by Breeton Pty Ltd, and no objection to that course was taken by the solicitors for Fizray Pty Ltd. In those circumstances I do not think there is any live concern as to privilege. I do not propose to make the order sought for restricting inspection of the affidavits. 03062004 T04/NLT20 M/T 1/2004 (Holmes J) 1 10 20 30 40 50 3 JUDGMENT SO -- 3 of 3 --