Emanate Legal Services Pty Ltd v Hood & Anor

An issue of some importance arose in this recent matter: 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 appellant, a law firm, had been embroiled in a legal dispute in relation to legal costs. The primary judge’s original reasons, published in mid 2018, inadvertently included paragraphs which were both contentious and potentially damaging to the appellant’s reputation. Subsequently the original reasons were revised and the offending paragraphs removed. However, an online news publication had already published an article referring to extracts of the offending paragraphs. The appellant sought an order warning the public against the publication of the original, unrevised reasons for judgment. The Court held that, particularly given the delay that had taken place, there was no utility and it was not in the interests of justice to issue a warning.

Fraser and McMurdo JJA and Brown J

7 May 2021

Two aspects of the initial decision to refuse the application for the warning were found to be wanting by the Appeal Court: (1) the primary judge’s determination that a warning, as was sought by the appellant, could not be issued after the time of the order the subject of the warning; and (2) the identification of the relevant test.

In relation to first issue, the Court clarified that it is not the case that warnings may only be issued contemporaneously: [54]:

“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.” [55].

As to the relevant test, the primary judge had determined that the warning offended against the general principle of open justice. [24]. In the Court’s view that was erroneous, and the primary judge had in fact “conflated the position in relation to the principles of open justice … 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”. [63]. As such, he had already made orders which deviated from the principles of open justice: see Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2019] QSC 29, [1], in particular referring to Gibbs J in Russell v Russell (1976) 134 CLR 495, 520. The Court stressed that the correct test in determining not to issue the warning was not whether an order should be made departing from the principles of open justice but whether a notice was required to be issued with a view to protecting the due administration of justice. [63].

In the lead judgment, Brown J helpfully clarified that the primary purpose of a warning is to promote the due administration of justice by making non-parties aware of the court orders and identifying conduct that may constitute contempt. These measures avoid the Court’s orders and processes being undermined or thwarted. The issuance of warnings should be limited to cases in which the Court considers that a risk exists that conduct may be engaged in which might frustrate the administration of justice. Warnings will be uncommon, much like orders limiting the publication of proceedings. [72].

Recourse to contempt proceedings to protect the due administration of justice is available where a party, made aware of a warning, persists in engaging in certain conduct regardless. To warrant the issuance of a warning there must be a likelihood that such conduct is possible. In the present case, the Court was unable to be satisfied that there was such a likelihood to warrant the issuing of a notice. [74]. In declining to order that a warning be issued, the Court particularly noted: the time which had elapsed since the original reasons had been varied and the restrictive orders made; the lack of any evidence of republication of the omitted paragraphs since that time ([75]); and the limited publication of the original reasons. [77]. Having regard to those matters in the Court’s view issuing a warning would be of scant benefit and would not serve the interest of justice. Whilst acknowledging the justifiable concern resulting from the fact that the omitted paragraphs remain on the Internet, the court noted that the purpose of a warning is not to assist particular individuals but instead to advance the administration of justice. [78].

In dispensing of the matter, the Court suggested that it might be prudent for the appellant to write to the online publication responsible for publishing extracts of the original reasons advising them of the revision of the Original Reasons to omit the paragraphs in question and of the orders restricting public access to that content, pithily noting that: “Conduct which runs counter to the orders after having knowledge of what has occurred could be regarded quite differently from the position at present”. [80].

A Jarro