6.3: Applications generally
6.32: Notice to media
13.18: Types of affidavit

Case Summary

The Action stemmed from a severe brain injury sustained by the minor Plaintiff. The parties had reached a settlement and intended to apply for Court approval pursuant to the Minor’s Property Act, SA 2004, c M-18.1. The minor Plaintiff’s Litigation Representative also applied for a Restricted Court Access Order to seal certain Affidavits, restrict public access to the settlement approval hearing, and to restrict access to the transcript of that hearing.

Justice Dunlop noted that Rules 6.28-6.36 apply to the procedure for a Restricted Court Access Application, and that Rule 6.32 requires notice be provided to the media via the Court’s eNotice system. Dunlop J. noted that Rules 6.3 and 13.18 also applied to this Application.

Justice Dunlop noted that the relief requested in the Application was simply for a “Restricted Court Access Order” without particulars, and that particulars were only provided by way of a proposed form of Order which was not filed. Justice Dunlop found that this was deficient and in contravention of Rule 6.3 which requires specifying the “remedy claimed or sought”. Failing to specify the particulars of the Order resulted in insufficient notice being given to the Respondents and the media. Further, Justice Dunlop noted that the grounds stated in the Application simply declared that the relief sought was in the minor Plaintiff’s best interests, but did not address the legal test for a Restricted Court Access Order.

Justice Dunlop also commented on the filed and unfiled Affidavits which were provided to the Court, and noted that one Affidavit was sworn by the Plaintiff’s counsel but could have been sworn by a party, and did not provide the evidentiary basis for a Restricted Court Access Order. The Plaintiff provided a party sworn Affidavit (the “Party Affidavit”) following Justice Dunlop’s request at the hearing of the matter, resolving the evidentiary issues with the counsel sworn Affidavit. Dunlop J. noted however, that the Party Affidavit contained much more information than is required to obtain a Restricted Court Access Order.

Dunlop J. noted that confidentiality Orders should only be granted where (a) it is necessary to prevent a serious risk to an important interest; and (b) the salutary effects of the Order outweigh the deleterious effects including the right to free expression and the public interest in open and accessible Court proceedings. Justice Dunlop also noted that any confidentiality Order should be restricted as much as reasonably possible while preserving the interest in question.

Justice Dunlop found that there were important public interests to be protected through a Restricted Court Access Order which were the confidentiality of the settlement process and the privacy interests of minors in the justice system. Justice Dunlop noted however, that the Statement of Claim and subsequent media coverage had already disclosed the minor Plaintiff’s medical information that was sought to be protected. Justice Dunlop also found that only the settlement amount and related information (such as the contingency based legal fees paid) needed to be made confidential to protect the relevant interests. Justice Dunlop noted that the Party Affidavit, which was unfiled, contained much more information than was required to support an Order to approve the settlement. Justice Dunlop noted that the Plaintiff was free to re-craft the Party Affidavit to remove the unnecessary information, and to submit one which excluded the settlement amount and related information, and a separate Affidavit which included the settlement amount, and that only the latter Affidavit would be sealed.

The Application was granted in part.

View CanLII Details