rooke ACJ

6.31: Timing of application and service
6.32: Notice to media
6.34: Application to seal or unseal court files
10.33: Court considerations in making costs award

Case Summary

The Applicant in this matter sought to set aside a Consent Order which temporarily sealed materials filed with respect to an Application to set aside service ex juris. The Applicant was not a party to the Consent Order but was involved in a related Action. The Applicant argued that both it and the media were entitled to advanced notice of an Application for a Restricted Court Access Order pursuant to Rules 6.31 and 6.32.

The Court noted that, while the terms of the Consent Order required both the Applicant and the media be provided copies of the Consent Order, the Applicant was not prima facie entitled to notice of the Application under the Rules. Moreover, while the media was entitled to notice, no response had been observed from any media organization.

The Applicant’s lack of entitlement to notice aside, the Court considered non-compliance as a ground for setting aside the Consent Order. Rooke A.C.J. noted that the Applicant had provided no authority establishing that failure to comply with Rules 6.31 and 6.32 rendered a Restricted Court Access Order a nullity. Rather, such a contravention or non-compliance with the Rules was presumably a matter to be considered in making a Costs award, as contemplated in Rule 10.33(2)(f).

In any event, Rooke A.C.J. was not convinced that there had been a contravention or non-compliance in granting a Restricted Court Access Order by way of Consent Order. In addition to inherent jurisdiction, Rule 6.34(3) gives the Court the discretion in determining who an Application must be served upon, and “any other matter that the circumstances require”. Accordingly, it was suggested the Court could implicitly exercise its discretion to waive notice upon granting a Consent Order, and Rooke A.C.J. expressly exercised that discretion in this case.

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