Rowley v Dell'Osa[2024] QDC 30

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 15 November 2016 the now Chief Judge, Devereaux SC DCJ, granted a freezing order over certain property of the first defendant/applicant. As the judgment was reserved, written reasons were prepared and published.^[1]  The freezing order was made in civil proceedings where it was asserted that monies were owed.  Those broader proceedings were also ordered by his Honour to be stayed pending the determination of “associated criminal proceedings”.  The reasons remain available on websites maintained by the Supreme Court Library of Queensland, AustlII and BarNet Jade.
2. [2]
   Subsequently, the civil proceedings were settled, and the applicant was not convicted of any criminal offence; one charge was the subject of a nolle prosequi and the other charge was the subject of a jury verdict of acquittal.
3. [3]
   The applicant now seeks orders supressing the published reasons, or alternatively an order anonymising them so that the parties are not discernible.  She asserts that the continuing publication of the reasons is causing her harm.
4. [4]
   The applicant has deposed that her sister told her that she (the sister) had Google searched the applicant’s name and discovered the reasons.  Shortly afterwards, the applicant has deposed, all of her family, apart from her mother for whom she cares, ceased all contact with her.  Given the timing between being told of the sister’s discovery and the cessation of contact, the applicant believes that the discovery of the reasons resulted in that outcome.  She also deposes that her family decided that, on the basis of the reasons, she was a criminal even though she has been acquitted.  She gives no detail to support that stated belief.
5. [5]
   Secondly, she deposes that a good friend of 11 years told her that she (the friend) had found the reasons.  The friend also ceased contact with the applicant since that time.  It is argued that the coincidence of the two events means they must be linked.
6. [6]
   The applicant also opines that the availability of the reasons after a name search means she is denied employment opportunities, especially given that the verdict of acquittal and a copy of the civil matter’s Final Orders are not also readily available online.  She does not provide any evidence to support that opinion.  It must be regarded as speculative.
7. [7]
   The applicant has written to the Principal Registrar of this Court and, effectively, has been informed that in the absence of a suppression order or an anonymisation order, the judgment will remain publicly available unless otherwise ordered by the presiding judge.

Submissions

8. [8]
   The applicant points to the exception to s 126 at s 126(2) of the District Court of Queensland Act 1967 to submit the Court has the power to make the orders sought.
9. [9]
   Section 126 provides:

126  Business of court

3. (1)
   The business of the court—

3. (a)
   is taken to be conducted in court wherever it is conducted; and

3. (b)
   is to be conducted in open court.

3. (2)
   However, subject to any Act, the court may, if the public interest or the interests of justice require, by order limit the extent to which the business of the court is open to the public.

10. [10]
    The applicant contends that it is in the public interest and in the interests of justice to suppress, or alternatively to anonymise, the reasons because she has experienced and continues to experience unwarranted prejudice by its continued availability.
11. [11]
    The applicant accepts that the reasons were regularly, and properly, made at the time but says that they were made over seven years ago, that they do not state anything by way of noteworthy legal principle, and that the law applied can in any event be traced to other published sources.  In those circumstances it is submitted that the public interest and the interests of justice include:

    1. that a person should not have their reputation unduly injured by court proceedings; and
    2. that a person is entitled to the presumption of innocence.

Consideration

12. [12]
    The requirement that the Court conduct its business in open court is strongly adhered to, in the absence of legislative intervention.  There is no such legislative intervention here.  All observations hereinafter are premised on there being no legislative intervention requiring, or even favouring, suppression or anonymisation.
13. [13]
    The necessity for proceedings to be conducted in an open, transparent manner is an intrinsic attribute of a “court”.  Hence it has been held that anonymisation of a party’s name will not be permitted unless “the interests of justice so clearly favour anonymisation as to outweigh the public interest in open justice”.^[2]
14. [14]
    As observed by Applegarth J in R v O'Dempsey (No. 3),^[3] the anonymisation of a witness’ identifying particulars^[4] is a minimal incursion on the principle of open justice.  Two matters relevantly flow from that observation, with which I respectfully agree.  First, a greater need must be demonstrated to justify an order completely supressing the judgment, rather than  anonymising it.  Second, that lesser threshold for anonymisation does not mean that such an order will be easily obtained.  The interests of justice must “so clearly favour anonymisation”,^[5] not merely be preferable or convenient. 
15. [15]
    There are recognised categories of circumstances where orders of this nature might more readily be made than others.  Two common examples are where interests of national security are involved and where publication of the identity and details of a police informant will be counterproductive to the interests of justice, including because of a recognised serious threat to the life or wellbeing of the witness. The present application does not fall within a recognised category in which orders of this nature might more readily be recognised as necessary.  That is not to say the present application cannot succeed, but it is a relevant feature.  More telling is the fact that it has often been observed that orders of this nature cannot be made simply to save a witness or a party from “collateral disadvantage” attributable to publication, such as embarrassment or distress.^[6]  It seems to me that describes the applicant’s position.
16. [16]
    I note that anonymisation was granted in MBR v Parker^[7] which had the result that medical records were not publicly linked to the appellant. That outcome would seem to favour the present applicant, however I also note that the Court does not seem to have been taken to the decision in J v L. & A. Services Pty Ltd, which would strongly tell against that outcome. In those circumstances, I consider that MBR v Parker was decided per incuriam in so far as the outcome of the anonymisation application is concerned. It however does not affect the validity of the test applied, which is consistent with other authorities.
17. [17]
    The applicant is seeking the orders many years after the reasons were published.  Her Counsel frankly accepts that he cannot find any prior instance of such an order being granted many years after the time of the delivery of the judgment or reasons, or at a time not broadly contemporaneous with delivery.  Given the conclusion I have reached, and the reasons for it, I am prepared to accept, without deciding, that s 126 of the District Court of Queensland Act grants a power to make the order sought at a notable period of time after the original reasons were delivered.
18. [18]
    By asserting that the orders are necessary to preserve the entitlement to the presumption of innocence, the applicant necessarily asserts that, in both demonstrated instances of people accessing the reasons, she has been judged to be guilty of the criminal charges, even though she only directly makes that assertion in relation to the discovery by her sister.
19. [19]
    The concepts of “public interest” and “interests of justice” are notoriously nebulous, and I have not located any helpful decisions in the context of s 126 to illuminate their meaning for the purposes of that provision.  However, whatever they more precisely mean, they cannot contemplate taking the exceptional action of suppression or anonymisation to ensure that those members of the public who happen across the reasons do not misunderstand what is apparent on the face of them; there was no conclusion of criminal guilt or of civil liability contained within them. It cannot be in the public interest nor in the interests of justice to suppress or hide the business of the Court on the chance that others may not understand what has occurred. One of the rationales for the principle of open justice is to provide education as to the business of the Court. That cannot be achieved if the reasons for judgments are hidden on the mere chance that someone will not properly appreciate their meaning.
20. [20]
    In any event, it is not clear on the material before me that anybody has acted on the impression that the applicant was in fact guilty of the criminal offence, or liable on a civil basis.  While accepting that there appears to be a temporal connection between the respective locating of the reasons and the corresponding cessation of contact, as reported by the applicant, the mere fact of the proceedings themselves, as accurately recorded in the reasons, may in fact have been the reason for breaking off contact.  The applicant has assumed that wrongful impressions have been gained from locating the reasons. That is one inference open, but not the only one and, in my view, it is the less compelling of the competing inferences.
21. [21]
    Further, the two instances of people locating the reasons have already occurred. (The assertion of loss of employment opportunities is not sustainable on the material before me, and is speculative.)  There is no sustainable assertion in the material before me that a specific name search will ever occur in the future.  Whatever damage has already occurred as a consequence of the name searches undertaken is a past fact and will not be ameliorated by the orders sought.  Accordingly, there is no utility in granting the orders sought, a matter relevant to the exercise of my discretion. 
22. [22]
    The applicant also relied on two other authorities in support of her application.  The decision in Attorney-General for the State of Queensland v WMS (No. 2)^[8] is in truth a different case and does not assist the applicant.  Anonymisation was there ordered in proceedings brought under the Dangerous Prisoner (Sexual Offenders) Act 2003 to in effect achieve the dual objectives of maintaining the anonymity of the child witness of the offences (where anonymity was otherwise guaranteed by legislation) and also to protect the integrity of an upcoming criminal trial interstate.
23. [23]
    The other case was Dovedeen Pty Ltd v GK.^[9] There, the majority of the Court granted an anonymisation order.  Without it, GK, a respondent to the appeal, would have been identified as a sex worker.  An order anonymising her identity had been made in each of the proceedings below.  It was contended that to identify her now would cause distress and embarrassment to both her and her young children.  The majority, although recognising that the grounds for the application were “not overpowering”, concluded that it was not appropriate to “now” identify her.^[10] That is, it was a conclusion reached in light of the fact that anonymity had been granted at all stages of the earlier proceedings.  That factor is not present here, and Counsel candidly accepted that an application for anonymisation could have been made at the time the freezing order was granted in order to protect the integrity of the criminal proceedings, but was not.
24. [24]
    In all the circumstances, the applicant has not established that this is an appropriate instance for the exercise of either of the exceptional orders sought.
25. [25]
    Finally, the applicant made reference to this Court also having an inherent power to grant the orders sought.  This submission seemed to leverage off some cases emanating from the Supreme Court as to the existence of such a power. The Supreme Court, as a superior court of unlimited jurisdiction, has inherent powers.  This Court is a creature of statute and its powers are limited to those granted by Parliament, and any “arising by implication upon the principle that a grant of power comes with it everything necessary for its exercise”.^[11]  While implied powers might often serve a similar function to inherent powers, that will not always be the case.  Here, the applicant calls in aid the inherent power (but, in reality, the implied power) as an independent basis for the granting of the orders.  Given an express provision, namely s 126, already grants the power and no other powers are required to give effect to that power if it were to be exercised, there is no implied power to have resort to.

Costs

26. [26]
    The applicant, appropriately, has not sought costs regardless of the outcome of the application.

Orders

27. [27]
    My orders are as follows:

1. Application refused.
2. No order as to costs.