FEDERAL COURT OF AUSTRALIA
NSD 691 of 2016
Application for leave to appeal: Toppi & Anor v Lavin (No. 2)  FCCA 1109
NSD 692 of 2016
Date of judgment:
PRACTICE AND PROCEDURE – Leave to appeal from a judgment dismissing application for non-publication orders – fact finding and weight to be given to evidence – principle of open justice – judgment not attended by sufficient doubt to warrant its reconsideration – application refused
Federal Court of Australia Act 1976 (Cth)
Cooper v Winter  NSWCA 261
Décor Corporation Pty Ltd v Dart Industries Inc  FCA 655; (1991) 33 FCR 397
Dye v Commonwealth Securities Limited (No 2)  FCAFC 118
Geste v Pereira  SASC 3018; (1991) 161 LSJS 260
Hogan v Australian Crime Commission  FCAFC 71
House v The King  HCA 40; (1936) 55 CLR 499
JMP v The Queen  NTSC 83
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564;  FCA 1572
Johnston v Cameron  FCAFC 251; (2002) 124 FCR 160
Love v Roads Corporation  VSCA 129
Makita (Australia) Pty Ltd v Sprowles  NSWCA 305; (2001) 52 NSWLR 705
R v Hakim (1989) 41 A Crim R 372Ramsay v Watson  HCA 65; (1961) 108 CLR 642
Ramsay v Watson  HCA 65; (1961) 108 CLR 642
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238;  FCAFC 156
Sekigawa v Minister for Immigration  FCA 127; (2016) 237 FCR 276
Sharman License Holdings Ltd v Universal Music Australia Pty Ltd  FCA 802
Sheahan (Trustee) v Scott, In the matter of Livingstone  FCA 1440
WAAD v Minister for Immigration & Multicultural Affairs  FCAFC 399
Watson v A-G (NSW) (1987) 8 NSWLR 685 at 703; (1987) 28 A Crim R 332
New South Wales
National Practice Area:
Commercial and Corporations
General and Personal Insolvency
Number of paragraphs:
Solicitor for the Applicant:
Gavin Parsons & Associates
Counsel for the Respondent:
Mr M Pesman SC with Mr C Alexander
Solicitor for the Respondent:
Beazley Boorman Lawyers
DATE OF ORDER:
THE COURT ORDERS THAT:
2. In proceeding NSD 691 of 2016 orders 2 and 3 made by Katzmann J on 13 May 2016 and order 1 made by Markovic J on 17 May 2016, as varied by me on 24 June 2016 be discharged.
3. In proceeding NSD 692 of 2016, orders 2 and 3 made by Katzmann J on 13 May 2016 and order 1 made by Markovic J on 17 May 2016, as varied by me on 23 June 2016 be discharged.
4. The funds held in the controlled monies account pursuant to the orders made by Markovic J on 17 May 2016 be released to the respondents forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 These proceedings arise out of two judgments of Judge Manousaridis of the Federal Circuit Court of Australia (“FCCA”) in which he refused to grant relief sought by the applicant (“Ms Lavin”).
2 The judgments were given in the context of Ms Lavin’s bankruptcy following lengthy litigation between her and the respondents. Ms Lavin was made a bankrupt on 19 February 2015, after she presented a debtor’s petition. The respondents are creditors of Ms Lavin, who applied for and obtained a summons for examination issued to Ms Lavin (“examination summons”). By the examination summons, Ms Lavin is required to be examined on oath under s 81 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) in relation to her examinable affairs as a bankrupt.
3 By interim application dated 23 November 2015 (“interim application”), Ms Lavin applied to the FCCA for several orders including an order that the examination summons be discharged. The application to discharge the examination summons was made, relevantly, on the basis of the applicant’s claimed mental ill health.
4 The interim application sought the following non-publication order:
1) Under Federal Circuit Court Rules 2001 Rule 10.01(s) that any Affidavit of medical evidence in support of the Interim Application by Dolores Lavin to discharge the Summons for Examination addressed to her is filed subject to the following Orders:
a) The Affidavit of medical evidence is to be retained in the Court file in a sealed envelope and marked “not to be opened except by Order of a Judge of the Court”;
b) The Affidavit may be viewed only by the Court, the legal representatives for the Applicants and the Trustee in Bankruptcy;
c) The legal representatives for the Applicants and the Trustee in Bankruptcy must not disclose any part of the Affidavit to the Applicants or to any other person.
d) The Affidavit need not be served on the Official Receiver as required under Rule 6.12(2)(b) of the Federal Circuit Court (Bankruptcy) Rules.
5 In the first judgment, delivered on 15 April 2016, his Honour dismissed Ms Lavin’s application for discharge of the examination summons: Paola Toppi & Anor v Dolores Lavin  FCCA 830.
6 Ms Lavin applied to this Court for an extension of time for leave to appeal, and leave to appeal from the first judgment (“first application”).
7 In the second judgment, delivered on 11 May 2016, his Honour dismissed Ms Lavin’s application for non-publication orders: Toppi & Anor v Lavin (No. 2)  FCCA 1109.
8 Ms Lavin applied to this Court for leave to appeal from the second judgment (“second application”).
9 By s 24(1) of the Federal Court of Australia Act 1976 (Cth), this Court has jurisdiction to hear and determine appeals from judgments of the FCCA exercising original jurisdiction under a law of the Commonwealth, subject to certain exceptions that are not presently relevant. The jurisdiction is subject to s 24(1A) which provides that an appeal shall not be brought from a judgment referred to in s 24(1) that is an interlocutory judgment unless the Court or a judge gives leave to appeal.
10 On Ms Lavin’s behalf, it was accepted that each of the judgments is an interlocutory judgment: cf Sheahan (Trustee) v Scott, In the matter of Livingstone  FCA 1440 (refusal to discharge examination summons on ground of oppression); Hogan v Australian Crime Commission  FCAFC 71; (2009) 177 FCR 205, Johnston v Cameron  FCAFC 251; (2002) 124 FCR 160 (non-publication orders).
11 At the conclusion of the hearing, I refused the first application and reserved my decision on the second application.
12 These are my reasons for the decisions on both applications.
Principles governing applications for an extension of time for leave to appeal and for leave to appeal
Extension of time for leave to appeal
13 The relevant considerations in deciding whether to grant an extension of time for leave to appeal are: first, the reasons for the delay and secondly, whether the application for leave to appeal has such prospects of success as not to render the extending of time an exercise in futility: Sharman License Holdings Ltd v Universal Music Australia Pty Ltd  FCA 802. See also WAAD v Minister for Immigration & Multicultural Affairs  FCAFC 399 at .
Leave to appeal
(a) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and
(b) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc  FCA 655; (1991) 33 FCR 397 at 398–400at ; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd  FCA 1572; (2000) 104 FCR 564 at – per French J (as he then was) (Beaumont and Finkelstein JJ agreeing); Samsung Electronics Co Ltd v Apple Inc  FCAFC 156; (2011) 217 FCR 238 at –.
15 These considerations are cumulative, so that leave to appeal will not be granted unless both limbs are made out: Sekigawa v Minister for Immigration  FCA 127 at ; (2016) 237 FCR 276.
Leave to appeal from discretionary judgments
16 Each of the judgments concerned an application to the FCCA to exercise a discretionary power. In those circumstances, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the relevant powers should be exercised, the primary judge:
(a) acted upon a wrong principle;
(b) allowed extraneous or irrelevant matters to guide or affect him;
(c) mistook the facts;
(d) did not take into account some material consideration; or
(e) reached a result that is plainly unreasonable or unjust: House v The King  HCA 40; (1936) 55 CLR 499 at 504-505.
Fact finding and the weight to be given to evidence
17 It is not the case that a court is always required to accept as “paramount” an expert opinion, even if that opinion is based upon the observations of the expert, as Mr McDonald, counsel for the applicant, suggested. In Ramsay v Watson  HCA 65; (1961) 108 CLR 642 at 645, the High Court said:
That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves “Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?”
18 At 649, the High Court continued:
… if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts.
19 In Geste v Pereira  SASC 3018; (1991) 161 LSJS 260 (“Geste”), after reviewing the authorities, Cox J concluded:
… there is no general rule that a trial judge (or a jury if there is one) is bound in law to decide a case in conformity with the expert evidence, even where the evidence is uncontradicted.
Whether in a particular case the judge will be justified in preferring his own opinion to that of the only expert witness in the case is likely to depend on the nature of the evidence. If the expert is giving evidence on a subject quite outside common experience and about which only a person with special training could have any knowledge whether an analysed specimen contains blood, for instance, or how a nuclear reactor works, or whether someone is suffering from a particular disease – it is not easy to see how such evidence, apparently plausible, could simply be ignored. If the judge should ignore it, or give it insufficient weight, his decision might well be set aside on appeal as perverse. Often, however, an expert’s opinion is based not merely upon his special knowledge but also upon the application of that knowledge to a given set of observed or assumed facts. It may be that at that later stage the judge will be in as good a position as the expert to form a sound judgment or opinion on the matter. An important question, of course, will be whether the expert’s observations or assumptions were correct.
20 In Cooper v Winter  NSWCA 261 at , Ward JA said:
The primary judge was not bound to accept expert evidence, whether challenged or not (Davie v Lord Provost Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40; as adopted by this Court in Makita (Australia) Pty Ltd v Sprowles  NSWCA 305; (2001) 52 NSWLR 705 per Heydon JA, as his Honour then was, at  and Easter v Griffith (Supreme Court of New South Wales, Santow J, 17 June 1993, unreported) at p 41).
21 In that case, the relevant expert evidence concerned what a solicitor should do when acting for more than one party to a transaction. The evidence had no relevance because the court did not accept that the solicitor was acting for the relevant parties.
22 In Makita (Australia) Pty Ltd v Sprowles  NSWCA 305; (2001) 52 NSWLR 705 at , Heydon JA set out at length passages from the decision in Davie v Lord Provost Magistrates and Councillors of the City of Edinburgh (1953) SC 34, including the following from the judgment of Lord President Cooper (at 39-40):
Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court ... . Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.
23 In this case, Ms Lavin relied upon the expert opinion of a psychiatrist, Dr Adams, to make out her case that the examination summons should be discharged on medical grounds. She did not give her own evidence to verify the history that she provided to Dr Adams. Accordingly, as in Geste, an important question for the FCCA judge was whether the observations and assumptions made by Dr Adams were correct.
The first judgment (refusal to discharge examination summons)
FCCA judge’s reasons
24 At  of the first judgment, the FCCA judge records the submission put on behalf of Ms Lavin that “if Ms Lavin’s mental condition is such that it would offend common humanity to compel her to undergo an examination while she suffers from that condition, or her mental condition is such that, if she were compelled to undergo an examination she would be unable to do justice to herself, or it would be unacceptably oppressive and unfair for her, or her mental condition would deteriorate, then the Court has the power to make an order discharging the order that authorised the issuing against Ms Lavin of the summons for examination”.
25 The FCCA judge accepted that the FCCA had an implied power to discharge an order made under s 81 of the Bankruptcy Act authorising the issue of an examination summons to a particular person where it would be oppressive or unfair to require that person to be examined, by analogy with the discretionary power to stay criminal proceedings: cf JMP v The Queen  NTSC 83 (“JMP”) at  – . The respondent creditors did not dispute that proposition.
26 The power is “an exceptional one, to be used sparingly”: R v Hakim (1989) 41 A Crim R 372 at 376 as per Kirby P (as his Honour then was); Watson v A-G (NSW) (1987) 8 NSWLR 685 at 703; (1987) 28 A Crim R 332 (as per Priestley JA).
27 The FCCA judge identified his task as involving a weighing process. By analogy with the position in criminal proceedings, that process involved considering the legitimate public interest in the investigation of the examinable affairs of a bankrupt and the need to maintain public confidence in the administration of justice.
28 Having accepted that the relevant power existed, the FCCA judge then considered whether Ms Lavin suffered from a mental condition of the kind that would justify discharging the examination summons.
29 Dr Adams’ report is summarised at  to  of the first judgment. Mr McDonald did not suggest that the FCCA judge had misunderstood Dr Adams’ opinion, or any particular aspect of the report.
30 At , the FCCA judge concluded that he did not accept the opinion of Dr Adams that Ms Lavin suffered from three mental conditions. Nor did he accept that, if she did suffer from those conditions, being examined would lead to the deterioration of those conditions. Accordingly, he declined to discharge the examination summons.
31 In summary, at  to  of the first judgment, the FCCA judge did not accept Dr Adams’ opinion because his Honour was not satisfied that Ms Lavin had provided Dr Adams with a truthful account of her present and past mental state in the absence of evidence from Ms Lavin to explain significant inconsistencies between Ms Lavin’s account to Dr Adams and other available material, and a material omission in her account to Dr Adams. The particular matters, which were identified during the cross-examination of Dr Adams, were:
(1) Ms Lavin had told Dr Adams that her mental health began to deteriorate in 2010, but she had filed a cross-claim in which she claimed that a bank guarantee she signed in 2008 was procured by the bank in circumstances which were unconscionable, including that at the time of signing the guarantee she “was not reasonably able to protect her interests because of her age and/or state of mental or physical capacity”, and that she was “on prescription medication being the drug “Zoloft” and was under the case of a psychologist” (at ). His Honour noted that Ms Lavin had sworn an affidavit verifying the cross-claim (at );
(2) Ms Lavin had told Dr Adams that Ms Toppi declared the Luxe business insolvent, when the decision of Brereton J in Basecove Pty Ltd v Dolores Lavin Management Pty Ltd  NSWSC 1315 demonstrated this to be incorrect (at  and );
(3) Ms Lavin had not told Dr Adams that she and a related company had commenced proceedings against Ms Toppi in 2011 before Ms Toppi commenced proceedings against Ms Lavin, but informed Dr Adams that between 2008 and 2010 she felt she had significant involvement in legal proceedings and felt “harassed” (at ). The FCCA judge found (at ) that Ms Lavin’s history to Dr Adams implied that she was being harassed because the respondents had initiated litigation against her.
32 Since the evidence did not satisfy the FCCA judge that Ms Lavin was suffering from the claimed mental conditions, there was no basis for the FCCA judge to discharge the examination summons.
Alleged errors in the first judgment
33 The applicant relied on a draft notice of appeal which set out 31 alleged appellable errors in the first judgment. At the hearing, grounds 1 to 3 and 31 were not maintained. The other grounds of appeal concerned the manner in which the primary judge had dealt with the medical evidence and his failure to accord any weight to the opinion of Dr Adams.
34 Orally, Mr McDonald submitted that, in the totality of the circumstances, the FCCA judge was obliged to attribute weight to Dr Adams’ opinion.
35 In particular, Mr McDonald relied upon the FCCA judge’s observation at  that:
There is force in the submission counsel for [the respondents] made that the inaccuracies in the matters Ms Lavin reports to Dr Adams necessarily means that Dr Adams cannot be taken to continue to hold the opinions he expressed in his report. I am not, however, prepared to find that, because of the inaccuracies I have identified, Dr Adams is to be treated as no longer holding the opinions he expressed in his report.
36 Mr McDonald submitted that, in the light of this finding, the FCCA judge was not entitled to disregard the opinions of Dr Adams. In making this submission, Mr McDonald emphasised that Dr Adams’ opinion was based, to a significant extent, upon his observations of Ms Lavin.
37 Mr McDonald challenged the FCCA judge’s statement, at , that the conclusion that Ms Lavin provided inaccurate information to Dr Adams “is relevant to the credibility of all of the matters on which Dr Adams relied for his opinions”.
38 Mr McDonald submitted that the FCCA judge ought to have taken into account that Dr Adams recorded, as part of his history, that Ms Lavin was “frustrated with not being able to recall accurate legal information”. He described this as an “adverse admission” by Ms Lavin.
39 Finally, Mr McDonald challenged the finding (at  of the first judgment) that “nothing Ms Lavin told Dr Adams about her present and past mental state should be accepted as true” as being so all-encompassing that it was not available to the FCCA judge to reach that finding.
40 At  of the first judgment, the FCCA judge noted that Ms Lavin relied exclusively on the evidence of Dr Adams. This was a matter of fundamental importance in his Honour’s assessment of Dr Adams’ evidence because it meant that the court did not have evidence from Ms Lavin herself confirming the history she had provided to Dr Adams. The FCCA judge noted in a footnote to  of the first judgment that, in the absence of an objection to the admissibility of Dr Adams’ report, the question of whether the evidence given by Dr Adams was admissible to prove the truth of the matters Ms Lavin communicated to him did not arise. However, that did not mean that the FCCA judge was obliged to accept Dr Adams’ hearsay evidence of Ms Lavin’s account, particularly when it was challenged by the respondents through the cross-examination of Dr Adams.
41 In those circumstances, it was open to the FCCA judge to conclude, as he did, that Dr Adams’ opinion had no value because it was not supported by evidence from Ms Lavin verifying the history she had given him and explaining the contradictions between that history and the matters identified in cross-examination. Put another way, the FCCA judge was not obliged to accept any aspect of Ms Lavin’s account to Dr Adams in circumstances where she did not verify that account to the court and in circumstances where her account was inconsistent with her own affidavits in earlier proceedings.
42 At  of the first judgment, the FCCA judge said:
Although Dr Adams said he would need to revise his opinions, he was not asked whether he was in a position to so revise his opinions in the witness box having regard to the inaccuracies that counsel identified to Dr Adams. My impression is that, had Dr Adams been asked, he would have answered by saying that the inaccuracies would not lead him to abandon all of the opinions he expressed in his report. My impression is based on the evidence he gave in answer to my questions which I have set out above. The matter that appears to have weighed most heavily on Dr Adams’ assessment of Ms Lavin was her behaviour when he interviewed her.
43 The relevant passage of Dr Adams’ cross-examination is as follows:
And I will repeat – I mean, it must be reasonably obvious to you now that a very large part of what you were told turns out to be wrong, and that must necessarily involve you revising your opinions?---Yes. If I could come back to what I was saying ---
Certainly?--- ---in terms of the assessment itself, as I was saying, we didn’t concentrate on the exact detail of the legal proceedings, and that was absolutely, as you said, given to me in the chronology of legal proceedings. Put simply, however, would it make me review my opinion: yes, it most certainly would.
44 The FCCA judge’s impression, as stated in , is not a factual finding. In truth, it is a matter of speculation albeit in favour of Ms Lavin.
45 The doctor’s evidence that the matters raised in cross-examination would require him to revisit or review his opinion was another matter which left it open to the FCCA judge to conclude that he should not give the doctor’s opinion any weight.
46 At  of the first judgment, the FCCA judge found that Dr Adams’ opinion was based upon a combination of information provided by Ms Lavin and the doctor’s observations of her. Mr McDonald did not make any oral submissions contesting this finding. Dr Adams’ report stated that his opinion was “[b]ased upon my assessment and review of the collateral information provided”. Although the draft notice of appeal contains a ground which challenges a purported finding at  “that Dr Adams’ opinion relied upon the reports from Ms Lavin to a greater extent than his observations during consultations”, there was no such finding and there was only a single consultation.
47 Mr McDonald did not point to any evidence that Dr Adams reached any particular opinion solely upon the basis of his observations of Ms Lavin. Nor did he point to any legal basis for his submission that the FCCA judge was not entitled to disregard the opinions of Dr Adams. His Honour’s observation at  may be expressed too widely if, for example, it could be shown that Dr Adams relied upon some matter which was verifiable from a source other than Ms Lavin. However, Dr Adams’ observations of Ms Lavin were not “paramount” as Mr McDonald submitted. Rather, the fact that Ms Lavin gave information to Dr Adams which was inconsistent with other available information raised a legitimate question about the credibility of her presentation to Dr Adams.
48 The finding that “nothing Ms Lavin told Dr Adams about her present and past mental state should be accepted as true” is a finding of fact which was open to the FCCA judge in the absence of any evidence from Ms Lavin (or any evidence to suggest that she was incapable of giving evidence in support of her application for discharge of the examination summons) and in the light of the significant challenges to her credibility made in the cross-examination of Dr Adams. The FCCA judge did not find that Ms Lavin had told Dr Adams any falsehood: he simply found that her account to Dr Adams should not be accepted in any respect, in the light of the evidence that emerged in cross-examination and in the absence of any explanation from her of the substantial inconsistencies between that evidence and her account.
49 For the reasons set out above, there is no basis for thinking that his Honour’s decision is attended by any doubt and it would be an exercise in futility to grant an extension of time for leave to appeal against the first judgment.
50 As the application for grant of leave to appeal has failed to establish the first limb required for such leave to be granted, and as the relevant considerations are cumulative, it is not necessary for me to consider the second limb (relating to substantial injustice). However, I note that Mr McDonald did not identify any substantial injustice that Ms Lavin claimed would result if leave were refused, supposing the decision to be wrong.
51 Accordingly, I refused to grant an extension of time for leave to appeal from the first judgment.
The second judgment (confidentiality)
52 Efforts by Ms Lavin’s legal representatives to preserve the confidentiality of her evidence in support of the interim application have generated multiple orders.
53 On 23 November 2015 (that is, the date of the interim application), Registrar Ng made the following order:
18. By consent, pursuant to the Federal Circuit Court Rules 2001 Rule 10.01(s) that any Affidavit of medical evidence in support of the Interim Application by Dolores Lavin to discharge the Summons for Examination addressed to her is filed subject to the following Orders:
(a) The Affidavit of medical evidence is to be retained in the Court file in a sealed envelope and marked, “not to be opened except by Order of a Judge or Registrar of the Court;
(b) The Affidavit may be viewed only by the Court, the legal representatives for the Applicant and the Trustee in Bankruptcy;
(c) The legal representatives for the Applicants and the Trustee in Bankruptcy must not disclose any part of the Affidavit to the Applicants or any other person.
(d) The Affidavit need not be served on the Official Receiver as required under Rule 6.12(2)(b) of the Federal Circuit Court (Bankruptcy) Rules 2006.
54 On 26 November 2015, Registrar Ng made the following order
4. The transcript of the examination proceedings in relation to any medical evidence in support of any interim application filed on behalf of Dolores Lavin to discharge her summons is confidential, and only accessible by the lawyers for the Trustee and Applicant Creditors and the lawyers for the Bankrupt Dolores Lavin.
55 There was no evidence before this Court that there is any transcript that falls within the scope of the 26 November 2015 order.
56 On 2 December 2015, the FCCA judge made the following orders:
1. By 10 February 2016, the bankrupt file and serve all expert evidence on which she intends to rely in support of her application to discharge the summons issued against her.
2. Any evidence filed pursuant to order 1 is subject to order 18 of the orders made by Registrar Ng on 23 November 2015.
57 The interim application was heard by the FCCA judge on 24 February 2016. That day, his Honour made the following orders:
1. Pursuant to s.13(7) of the Federal Circuit Court of Australia Act 1999 (Cth), all persons other than the legal representatives for the parties, the visiting Judges and the Trustee’s representatives presently in Court be excluded from the Court until further order.
2. Until further order the evidence tendered on the application, submissions made to the Court, any evidence given in Court and any matters disclosed in Court based on the medical evidence not be published to any person not present in Court.
58 On 15 April 2016, which was the day on which the first judgment was delivered, the FCCA judge made the following orders:
2. The non-publication order made on 24 February 2016 be discharged at 5.00 pm on 29 April 2016.
3. Until 5.00 pm on 29 April 2016 these reasons for judgment must not be disclosed to any person other than:
(a) Ms Delores [sic] Lavin; and
(b) the legal representatives of Ms Delores [sic] Lavin; and
(c) the legal representatives of Ms Paola Toppi and Mr Neil Cunningham; and
(d) the trustee in bankruptcy, Mr Aaron Lucan and his legal representatives; and
(e) the associates of Judge Manousaridis.
59 On 28 April 2016, the FCCA judge made the following orders:
1. There be listed for hearing before Judge Manousaridis at 2.15 pm on 4 May 2016 the application by Ms Lavin for the determination of whether the application for confidentiality made at the hearing of 24 February 2016 was fully heard and if not, whether the Court should vary the orders for confidentiality including making an order that confidentiality be maintained on a permanent basis.
2. By 5.00 pm on 2 May 2016, the applicant provide to my associate and to the respondents written outline of submissions which identify the order or orders the respondents seek at the hearing referred to in order 1 and the grounds on which such orders are sought.
3. Orders 2 and 3 of the orders made on 15 April 2016 are varied by the substitution in both orders of the date 29 April 2016 with the date 13 May 2016.
60 On 4 May 2016, the FCCA judge conducted a hearing in accordance with order 1 made on 28 April 2016. On that day, his Honour made an order that order 2 made on 24 February 2016 applied to the 4 May 2016 hearing.
61 On 6 May 2016, the FCCA judge made the following orders:
1. Order 2 of the orders made on 24 February 2016 is amended by adding the words “other than in connection with the filing of any appeal in the Federal Court against the orders of His Honour Judge Manousaridis made on 15 April 2016”.
2. Order 3 of the orders made on 15 April 2016 is amended by adding the words “other than in connection with the filing of any appeal in the Federal Court against the orders of His Honour Judge Manousaridis made on 15 April 2016”.
62 On 11 May 2016, the FCCA judge delivered the second judgment. In accordance with that judgment, his Honour made the following orders:
1. The application to extend permanently the interim non-publication order made on 24 February 2016, as extended on 15 April 2016 and further extended on 4 May 2016, is dismissed.
2. The interim non-publication order made on 24 February 2016, as extended on 15 April 2016 and further extended on 4 May 2016, be discharged at 5.00 pm on 13 May 2016.
3. Until 5.00 pm on 13 May 2016 these reasons for judgment must not be disclosed to any person other than:
(a) Ms Delores [sic] Lavin; and
(b) the legal representatives of Ms Delores [sic] Lavin; and
(c) the legal representatives of Ms Paola Toppi and Mr Neil Cunningham; and
(d) the trustee in bankruptcy, Mr Aaron Lucan and his legal representatives; and
(e) the associates of Judge Manousaridis.
FCCA judge’s reasons
63 At  of the second judgment, the FCCA judge recorded that Mr McDonald sought an order that the non-publication order made on 24 February 2016 (that is, order 2 made on that date) (“non-publication order”) be extended permanently.
64 His Honour also recorded a submission made by Mr McDonald to the effect that on 24 February 2016, the FCCA judge did not fully hear Ms Lavin’s application that the non-publication order be extended permanently. At , his Honour recorded that he set the 4 May 2016 hearing for the purpose of argument about whether the non-publication order was discharged (on 15 April 2016) without full argument, and for argument on whether the order should be extended permanently in any event. It was not necessary for his Honour to consider the former issue because the respondents did not oppose Mr McDonald making submissions on the latter issue.
65 At  of the second judgment, the FCCA judge recorded that Ms Lavin relied on two grounds for submitting that the non-publication order should be extended permanently. These were that
(1) had Ms Lavin known that her medical evidence were not to remain confidential, she would not have made or continued with the application for discharge of the examination summons; and
(2) not extending the non-publication order would cause Ms Lavin hardship.
66 As to the first ground, the FCCA judge noted that Ms Lavin had not given evidence to support it. At  to , his Honour concluded that the hearsay evidence given by Ms Lavin’s solicitor of her conversations with Ms Lavin did not support the first ground.
67 At , the FCCA judge noted that the non-publication order made on 24 February 2016 was explicitly expressed as an interim order by the words “until further order”. In those circumstances, his Honour reasoned (at ) that Ms Lavin had made her application for discharge of the summons examination in the knowledge that she was not protected by a permanent non-publication order. That conduct was inconsistent with the first ground because she had, in fact, continued the application in the absence of certainty that her medical evidence would remain confidential.
68 At , his Honour rejected a submission that he should infer that Ms Lavin would not have proceeded with the discharge application unless the medical evidence was kept confidential. In particular, he said:
Ms Lavin’s not withdrawing the Discharge Application in circumstances where Ms Lavin must have known there was a risk I might not permanently extend the non-publication order indicates that Ms Lavin valued her desire to maintain confidentiality of the Medical Evidence less than she valued her chances of succeeding on the Discharge Application.
69 As to the second ground (hardship), the relevant hardship was said to relate to Ms Lavin’s medical condition. At , his Honour found that it was unclear what hardship Ms Lavin claimed she would suffer if the non-publication order was not extended. Secondly, at , the FCCA judge observed that he had determined adversely to Ms Lavin the question whether she suffered from the medical conditions identified by Dr Adams after a contested hearing. His Honour concluded that it would be perverse to find that the evidence supported the existence of some condition on the question of non-publication.
Statutory framework and relevant principles
70 There is no general right to a non-publication order from the FCCA or this Court in respect of medical evidence, including psychiatric evidence. Nor is there any general practice by which psychiatric evidence is protected by non-publication orders.
71 The relevant provisions of the Federal Circuit Court of Australia Act 1999 (Cth) are as follows:
88E Safeguarding public interest in open justice
In deciding whether to make a suppression order or non‑publication order, the Federal Circuit Court of Australia must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
88F Power to make orders
(1) The Federal Circuit Court of Australia may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Federal Circuit Court of Australia or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Federal Circuit Court of Australia; or
(b) information that relates to a proceeding before the Federal Circuit Court of Australia and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Federal Circuit Court of Australia.
(2) The Federal Circuit Court of Australia may make such orders as it thinks appropriate to give effect to an order under subsection (1).
88G Grounds for making an order
(1) The Federal Circuit Court of Australia may make a suppression order or non‑publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2) A suppression order or non‑publication order must specify the ground or grounds on which the order is made.
88J Interim orders
(1) If an application is made to the Federal Circuit Court of Australia for a suppression order or non‑publication order, the Federal Circuit Court of Australia may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Federal Circuit Court of Australia, until the application is determined.
(2) If an order is made as an interim order, the Federal Circuit Court of Australia must determine the application as a matter of urgency.
88K Duration of orders
(1) A suppression order or non‑publication order operates for the period decided by the Federal Circuit Court of Australia and specified in the order.
(2) In deciding the period for which an order is to operate, the Federal Circuit Court of Australia is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.
(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.
72 The principle of open justice, referred to in s 88E, was explained by the Full Court in Dye v Commonwealth Securities Limited (No 2)  FCAFC 118; (2010) AILR 101-302 at – as follows:
121 The principle of open justice operates on the premise that all the material placed in evidence before a court and on which, in open court, it is asked to act is open to public scrutiny. That is because publicity itself has the purposes of both informing the public of how judicial power is exercised and ensuring that the courts are accountable for the use of that power entrusted to them. Administrative power can be, and frequently is, exercised in secret. Judicial power almost never is and, when it is, the departure from the ordinary mode of trial must be demonstrated to be necessary in the interests of justice.
122 [A]s Viscount Haldane LC said in Scott [v Scott  AC 417] at 438:
“The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors.”
123 In Hogan [v Australian Crime Commission (2010) 267 ALR 12] at 19 , French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics. (A statement by Fullerton J to like effect, with respect to the powers of the Supreme Court of New South Wales, was approved by Hodgson JA (Hislop and Latham JJ concurring) in Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635;  NSWCCA 307 at ).
Proposed grounds of appeal
73 The five grounds of appeal in the draft notice of appeal are as follows:
1. The primary Judge erred, at  and , in failing to apply the correct test which was whether or not the Appellant would have been deterred from making or continuing with her FCC substantive application (filed 23 November 2015 in the Federal Circuit Court Proceedings SYG 2223/2015) had she known that her medical evidence would not have been kept confidential, rather than whether or not she would have in fact made or continued with the application.
2. The primary Judge erred, at , in not drawing the inference that, as a matter of fact, the Appellant would have been deterred from making or continuing the FCC substantive application had she known that the interim order made by consent by Registrar Ng on 23 November 2015 at , would not be made permanent and that His Honour would not make the non-publication orders sought under s 88F of the Federal Circuit Court Act 1999 (Cth).
3. The primary Judge erred, at , in finding that it was not necessary to consider whether Counsel for the Appellant was given an opportunity to make all his submissions in respect of the application for non-publication orders before any judgment, having regard to the finding that the Appellant would have sought to obtain a judgment in respect of the application for non-publication orders before proceeding with the FCC substantive application, at , when it was the position of the Appellant that her Counsel was not given the opportunity to make all submissions and conclude her application for confidentiality/non-publication orders.
4. The primary judge erred, at , in finding that the Appellant would have sought to obtain a judgment in respect of the application for non-publication orders before proceeding with the FCC substantive application, when it was the position of the Appellant that her Counsel was not given the opportunity to make all submissions and conclude her application for confidentiality/non-publication orders and his Honour did not hear argument on and therefore consider that position, as a result of the Respondent not opposing the making of further submissions on 4 May 2016, at .
5. The primary Judge erred, at , in finding that the Appellant was content to run the risk that the FCC substantive application would be decided against her with no permanent confidentiality orders in place given that the Appellant did not seek to have her application for permanent non-publication orders heard first on 24 February 2016, having regard to the position of the Appellant that her application for permanent non-publication orders was not fully heard on 24 February 2016.
74 As to proposed ground 1, there is nothing in his Honour’s reasons to indicate that he applied an incorrect test in considering Ms Lavin’s situation. The difficulty that his Honour identified was that there was no evidence about the impact on Ms Lavin if the non-publication order was not made permanent. Mr McDonald did not submit that the FCCA judge had overlooked any evidence. The hearsay evidence did no more than state that the information was private, that Ms Lavin could not have anyone knowing her private medical information and that Ms Lavin predicted Ms Toppi would re-publish the information if she were to obtain access to it.
75 As to ground 2, this is a question of fact. In any event, there was no evidence from which such an inference could be drawn.
76 The meaning of ground 3 is not clear. To the extent that it contends that Ms Lavin was denied procedural fairness, there was no such error because Mr McDonald was given an opportunity to make submissions in support of a permanent extension of the non-publication order at the hearing on 4 May 2016.
77 At the hearing of the application for leave to appeal, Mr McDonald focussed on grounds 4 and 5 in the draft notice of appeal. He contended that Ms Lavin had proceeded with the hearing on 24 February 2016 on the basis (which he conceded may have involved a misunderstanding) that, if the application for discharge of the examination summons was heard before the application for a permanent non-publication order was determined, Ms Lavin would be able to preserve the confidentiality of her medical evidence by withdrawing her application to discharge the examination summons. In support of this contention, Mr McDonald referred to the following passage from the transcript of the 24 February 2016 hearing:
MR McDONALD: Yes. Your Honour, these proceedings have continued on the basis of the orders that are already in place, that is ---
HIS HONOUR: Well, what ---
MR McDONALD: --- the orders of confidential respective material.
HIS HONOUR: But, so what’s the relevance of that? If it was not proper for it to be made in the first place, why is it proper for it to be continued to be made?
MR McDONALD: Because people have acted on, and my client has acted on, the basis that that would be the regime for these proceedings.
HIS HONOUR: Well, in what way has she acted on it?
MR McDONALD: She has acted on it by producing the evidence that has been relied on these proceedings. So ---
HIS HONOUR: She can withdraw it, Mr McDonald, can’t she?
MR McDONALD: If that’s what your Honour rules, then that would be what she would have to ---
HIS HONOUR: Well, I’m not sure what I’m going to rule.
MR McDONALD: I know. But if, ultimately – so you’re right. If that’s what you should rule, then she may have to decide to abandon these proceedings, which comes back to the balancing act, the balancing between her interests and those of bystanders to appear in open court. My client has put on evidence of her – I will call it delicate mental state or of the doctor’s opinion of her delicate mental estate – mental state, and the fact that that mental state has arisen as a result of these proceedings and those deals with the bankruptcy and these particular creditors, it’s not an unrelated factor. It is, in fact, the heart of the matter.
78 Mr McDonald argued that Ms Lavin had an opportunity to withdraw her application, and thereby to protect the confidentiality of her medical information notwithstanding on the basis of the exchange between the FCCA judge and counsel in the transcript above and the proposition that the material would ordinarily retain some confidentiality until it was read in open court. I do not accept that those matters, either separately or together, provide a foundation for the existence of a right to withdraw an application after it has been heard. At most, they might provide a basis for an application for leave to withdraw the application. Mr McDonald did not point to any provision of the FCCA rules by which a party is entitled to withdraw an application, particularly after the application has been heard.
79 Further, I do not accept that the FCCA judge said or implied that Ms Lavin would be able to withdraw her application to discharge the examination summons in the circumstances that Mr McDonald described. As I read the transcript, his Honour referred to the possibility of withdrawing the medical evidence, by which I understand him to refer to the fact that Ms Lavin could choose not to tender the medical evidence on the application.
80 Nor did Mr McDonald suggest that Ms Lavin has either purported to withdraw or sought to withdraw her application for discharge of the examination summons at any time.
81 I also do not accept Mr McDonald’s submission that “it was very clear that if his Honour ruled adversely…[Ms Lavin] would have to withdraw the case.” The submission was put by reference to the transcript set out above. But Mr McDonald said only that Ms Lavin “may have to decide to abandon these proceedings”.
82 Once this argument is rejected, grounds 4 and 5 concern factual findings which were open to the FCCA judge on the available evidence.
83 For these reasons, I am not satisfied that the second judgment is attended by sufficient doubt to warrant its being reconsidered by this Court.
84 I therefore refuse to grant leave to appeal from the second judgment.
85 It follows that orders 2 and 3 made by Katzmann J on 13 May 2016 and order 1 made by Markovic J on 17 May 2016, as varied by me on 23 and 24 June 2016 should be discharged.