*Sigh* … The old trap of sending an email to the wrong person … Judgment more interesting than the catchwords … A glimpse at what goes on underneath the robes … Justice Nye Perram apologises for insulting a litigant … From judges’ associate Ginger Snatch
The catchwords for EOX17 v Commonwealth of Australia said that the case was about practice and procedure – applications to withdraw discontinuance of the proceedings and suppression of the reasons for judgment.
In fact, it is a bit more interesting than that. The applicant claims to be entitled to a disability support pension from an earlier date than the pensions people allowed, plus back payments to make up for what she claims should have been paid.
Perram made orders that the applicant file various medical reports and that it would be listed for a hearing on July 19.
On July 16, EOX17 contacted the judge’s chambers and said she wanted to discontinue the proceedings. After getting the consent of the Commonwealth, leave was granted to discontinue but the judge dispensed with the need to file a notice of discontinuance because the applicant represented herself.
As he put it, “the situation is perhaps a little unusual”.
A day later EOX17 again contacted the judge’s chambers and said she was wanted to discontinue her discontinuance. She had only asked to stop the show going on because she had just come out of surgery and was overwhelmed by what was happening.
Having considered all the authorities HH decided he did not have the jurisdiction to set aside the notice of discontinuance. The file remained closed.
The applicant was keen that publication of any judgment about her case be suppressed. Perram’s inclination was to afford her an opportunity to apply for orders to stop the judgment appearing in the light of day.
EOX17 was notified by the registry that her application to withdraw her discontinuance was refused and she was given time to apply not to have the judgment published.
Unfortunately, this email was sent through my own error to the applicant.”
In the circumstances, most would regard this small outburst of exasperation as understandable. HH reproduced the email chain in his reasons for judgment.
The relevant bits are here:
HH’s judgment continues:
“As a human, I can well understand the sentiment that underpins the applicant’s suggestion that since I have insulted her the least I can do is not to publish the reasons for judgment. Were the matter governed by my desire to make amends for my error, I would readily accede to her request.
Unfortunately, other interests are at play …”
In this instance, there were no proper grounds on which a suppression order could be made. In any event her name is anonymised and the judgment contains no details of her medical condition.
All that is disclosed is that “an unidentified person has an unidentified medical condition and has recently had an unidentified operation”.
Out of the mishap came an overdue reminder about the importance of open justice in an era when suppression orders and the casting of secret judicial spells are all too prevalent. Perram said:
“The business of the court is conducted in public … The business of the court quintessentially includes the public release of its judgments. It is an important feature of the rule of law that, so far as is possible, litigation is conducted in public and that the spectre of secret trials is avoided. Justice must not only be done, it must be seen to be done. Consequently, if it is not seen, it is not done.”
Bravo. Thunderous applause.