In Havenleigh Global Services Ltd and FM Custodians Ltd v Henderson, relating to the bankruptcy of David Henderson, the Official Assignee had issued a notice under section 171 of the Insolvency Act to Xero for the provision of company records.  Associate Judge Osborne prohibited publication of a ruling about the lawfulness of the notice pending the public examination of Mr Henderson and judgment.  The Official Assignee applied for directions allowing publication because the prohibition prevented Xero from commenting on media articles about how it responded to the notice.  Mr Henderson opposed the application.

Associate Judge Osborne held that:

  • When making a non-publication order, the Court must weigh the interests of the parties (here, a fair examination process) against the public interest in open justice and freedom of expression. An order for suppression in a civil proceeding requires exceptional circumstances
  • There were no exceptional circumstances justifying a continuation of the suppression order because:
    • the public examination process was over (although no judgment had been given).  Publishing the details of the ruling after the public examination of Mr Henderson would not affect the examination process and therefore not prejudice Mr Henderson's interests as to that process
    • the order was having a gagging effect on Xero and the Official Assignee, who were not able to refer to the ruling to correct statements made by the media
    • Mr Henderson's right to a fair trial in a separate criminal proceeding would not be affected because the ruling was irrelevant to the issues in that proceeding.

See Court decision here.