SPM v LWA[2013] QSC 138

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  On Friday, the 19th of April 2013, late in the afternoon I made an order in this matter, the effect of which was to restrain certain activity relating to an attempt to change the power of attorney of the respondent.  The effect of the orders was to effectively impose a status quo arrangement so that the applicant would, in effect, remain the holder of the respondent's power of attorney until the underlying issues in respect of the application could be heard.

Since then, inquiries have been made of the Court whether on that occasion a non-publication order was made.  No such order was made, however, this afternoon the applicant has made an application for a non-publication order.  Some aspects of its application have fallen away.  What has been properly and pragmatically pursued this afternoon is an order that will not prevent the publication of the substance of the proceedings but rather will prevent the publication of information of a kind that would lead to the identification of the respondent.

In Raybos Australia Pty Ltd & Anor v Jones [1985] 2 NSWLR 47 at 55, Kirby P said:

"Many cases report the scrutiny by Courts of statutory provisions designed to derogate from the open administration of justice.  Running through these decisions is a common theme.  It is that, by our tradition, the open administration of justice is the rule.  Statutory derogation from openness is the exception.  In defence of the rules such statutes will usually be strictly and narrowly construed."

In the present proceeding my attention was drawn to certain provisions of the Guardianship and Administration Act 2000, however, none of those apply to this Court or this proceeding.  In exercising my powers on Friday I said that the power to make the orders sought arose under the Powers of Attorney Act 1998 and, in the alternative and in any event, arose under the Court's parens patriae jurisdiction, a jurisdiction preserved by the Powers of Attorney Act and, for that matter, other Acts.

The Powers of Attorney Act makes reference to confidentiality as a principle in one of its schedules, but nothing in it appears to confer a statutory exception to the general principle of openness in relation to Court proceedings and their publication.  This leaves the applicant to identify a basis upon which I ought make the orders sought in the exercise of my common law powers under the parens patriae jurisdiction.

In Scott v Scott [1913] AC 417 at 441 the Earl of Halsbury said: 

"There are three different exceptions commonly so-called, though in my judgment two of them are no exceptions at all.  The first is wardship and the relationship between guardian and ward, and the second is the care and treatment of lunatics.  My Lords, neither of these for a reason that hardly requires to be stated, forms part of the public administration of justice at all."

That reference to "exceptions" to the application of the general rule of publicity was further developed by Lord Shaw at pages 482 to 483:

"The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are first in suits affecting wards; secondly in lunacy proceedings; and thirdly in those cases where secrecy as for instance the secrecy of a process of manufacture or discovery or invention - trade secrets - is of the essence of the cause.  The first two of these cases, my Lords, depends upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the Judges as representing His Majesty as parens patriae.  The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognised that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs."

The applicant draws to my attention John Fairfax Group Pty Ltd v Local Court of New South Wales, (1991) 26 NSWLR to develop a broader proposition beyond the rationale referred to in Scott v Scott as justifying a non-publication order in the exercise of the parens patriae jurisdiction.  That broader test speaks of prohibition orders in respect of publicity potentially being made where it is "necessary to secure the proper administration of justice". 

I am disinclined to act under that principle, which is premised more so upon the public interest and its interest in preserving the proper administration of justice which might, on occasion, warrant non-publication orders.  An interest of that kind does not arise here. 

The order is more so sought for the protection of the individual's dignity and privacy, and it is premised on the very nature of the jurisdiction being exercised.  As Lord Shaw observed, the parens patriae jurisdiction involves something of an exception to the general principle favouring publication because it is concerned with truly private affairs.  The reference to the breadth of that principle as applying to lunatics in Scott v Scott I am persuaded in modern parlance embraces a reference to those with a want of mental capacity - see, for example, Fenwick, Re; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530. 

In this case the strong public interest in knowledge of proceedings which occur in respect of powers of attorney is self-evident.  It is an interest likely to increase with the increasing practice of the use of powers of attorney with our aging population.  However, the dignity and privacy of those who seek protection in respect of their private affairs through the holder of their power of attorney is a significant consideration against the public's interest in knowledge of the players in the proceedings. 

The proper balance between these competing considerations can be struck by a non-publication order going only to protection of the identification of the individual rather than preventing the public's knowledge of the general nature and circumstances of the proceeding. 

In all of the circumstances therefore I propose to grant the application in a way limited only to an order which will prevent the identification of the respondent but not the circumstances or nature of the proceeding. 

Orders ensued.

(The terms of the orders are the subject of a non-publication order.)