Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 2) [2010] FCA 187

Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 2) [2010] FCA 187

The Court refused to vary the in camera order because the hearing had not yet commenced, the examination was not required to be before a Judge or in a courtroom, questions and answers in the examination were not evidence unless and until tendered at the hearing, and Order 24 r 5 evidenced an intention as to the persons who may and inferentially may not be present. If any discretion existed, it would be exercised against Fairfax Media because reporting an examination before the witness had first set out his account had real potential to be fundamentally unfair and unbalanced.

Jurisdiction
Australia
Judgment Date
03 March 2010
Procedural Posture
Practice and Procedure Application Concerning Examination of Witness and Whether Examination Should Proceed in Camera / Oral Application by Fairfax Media Publications Pty Ltd to Set Aside an Order That the Examination of Mr James Selim Proceed Only in the Presence of the Parties and Their Legal Representatives
Outcome
Application rejected; Fairfax Media Publications Pty Ltd ordered to pay the costs of its application.
Legal Topics
['examination of Witness' 'in Camera Hearing' 'open Justice' 'public Interest' 'media Access to Court Proceedings' 'federal Court Procedure']
['practice and Procedure'] ['examination of Witness' 'in Camera Hearing' 'open Justice' 'public Interest' 'media Access to Court Proceedings' 'federal Court Procedure']

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Procedural Posture

Practice and Procedure Application Concerning Examination of Witness and Whether Examination Should Proceed in Camera / Oral Application by Fairfax Media Publications Pty Ltd to Set Aside an Order That the Examination of Mr James Selim Proceed Only in the Presence of the Parties and Their Legal Representatives

Legal Issues

  1. 1 ['Whether the order that the examination of Mr James Selim proceed only in the presence of the parties and their legal representatives should be varied or set aside.' 'Whether Order 24 r 5(1) of the Federal Court Rules exhaustively or inferentially identifies those who may be present at an examination before an examiner.' 'Whether open justice and public interest required Fairfax Media Publications Pty Ltd to be permitted to attend and report the examination before any part of it became evidence at the hearing.' 'If a discretion existed under Order 24 r 5, whether it should be exercised to permit media attendance.']

Ratio Decidendi

The Court refused to vary the in camera order because the hearing had not yet commenced, the examination was not required to be before a Judge or in a courtroom, questions and answers in the examination were not evidence unless and until tendered at the hearing, and Order 24 r 5 evidenced an intention as to the persons who may and inferentially may not be present. If any discretion existed, it would be exercised against Fairfax Media because reporting an examination before the witness had first set out his account had real potential to be fundamentally unfair and unbalanced.

Court Disposition

Application rejected; Fairfax Media Publications Pty Ltd ordered to pay the costs of its application.

Orders

  • ['The application made by Fairfax Media Publications Pty Ltd is rejected.' 'Fairfax Media Publications Pty Ltd is to pay the costs of its application.']