IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMERCIAL COURT
S ECI 2021 00158

KHMER BUDDHIST TEMPLE ASSOCIATION INC (ABN 63 990 104 294)
(and others according to the Schedule attached)	Plaintiffs	
		
v		
		
THE VENERABLE HOUT CHHET
(and others according to the Schedule attached)	Defendants	

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JUDGE:	GARDE J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 September 2021	
DATE OF JUDGMENT:	7 September 2021	
CASE MAY BE CITED AS:	Khmer Buddhist Temple Association Inc v Chhet (No 3)	
MEDIUM NEUTRAL CITATION:	[2021] VSC 560	

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PROCEEDING SUPPRESSION ORDER – Necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means – Necessary to protect the safety of any person – Urgent application – Delay – Open justice – Reputation – Open Courts Act 2013 (Vic) ss 4, 10, 17, 18.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiffs	Mr A Naidu	Logans Barristers & Solicitors	
			
For the Defendants	Mr P J Hayes QC with 
Mr J R Sutton	SDR Law	
			
For Nine Entertainment Co Holdings Ltd		Mr Z Croft of Thomson Geer	

HIS HONOUR:
Introduction
1	The Venerable Hout Chhet, the first defendant, together with the other defendants, applied by summons for a proceeding suppression order under ss 17 and 18 of the Open Courts Act 2013 (Vic) (‘Act’) in relation to the matters in paragraphs 91 and 92 of my judgment of 14 July 2021 (‘judgment’).  By oral application, the defendants sought to extend the order to expressly include any report of those matters in the ‘A Current Affair’ television program to be shown on Channel 9 on 6 September 2021 (‘program’).  The relevant paragraphs of the judgment relate to transactions in the first defendant’s CBA Smart Access account as deposed to by Maxwell Zor, the fourth plaintiff, in paragraphs 113 and 114 of his affidavit filed 8 June 2021.  The judgment was published in the usual way on AustLII, and has been in the public domain ever since.
Background
2	There has been extensive commentary concerning this proceeding in all types of media before and since the judgment was published.  The affidavit of Robert Sdraulig filed 6 September 2021 outlines some of the public comment that has occurred. References to a transaction at the adult store ‘Sexyland’ have been published in numerous media, including the Herald Sun, the ‘Today’ show on Channel 9, and 3AW. That transaction was one of the transactions mentioned in paragraphs 91 and 92 of the judgment.
3	More than a month after the judgment was published, the defendants filed the affidavit of Sary Chhet, deposed on 17 August 2021.  Mr Sary Chhet deposed that he was the first defendant’s brother, and that he had used his brother’s debit card to effect the Sexyland transaction and some other transactions. The first defendant also deposed in an affidavit of the same date that, to the best of his knowledge, information and belief, the purchase at Sexyland was his brother’s purchase and that he has never visited Sexyland.

Notice
4	The defendants did not give the three business days’ notice required under s 10 of the Act, and sought that I hear the application under s 10(3) as a matter of urgency.  
Reasons
5	Under s 4 of the Act, the principle of open justice and the free communication and disclosure of information has primacy.  A Court may only make a suppression order if it is satisfied that the specific circumstances of the case make it necessary to override or displace this principle.
6	To obtain such an order, the defendants must first establish one of the grounds in s 18(1) of the Act. The grounds relied on are those in ss 18(1)(a) and 18(1)(c).
7	Under s 18(1)(a), it must be shown that a suppression order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by any other reasonably available means. The word ‘necessary’ sets a high standard. The ground is about the proper administration of justice – it is not about personal embarrassment, ridicule or grievance.
8	The current proceeding is a civil proceeding triable by a judge and not by a jury.  I do not see any material risk to the proper administration of justice likely to be caused by the broadcast of the program.  I do not see any risk to the future conduct of the trial before a judge – there is no evidence that explains why I should. I am not satisfied that there are any specific circumstances that show that it is necessary to override or displace the principle of open justice and the free communication and disclosure of information.
9	I am not satisfied under s 18(1)(c) of the Act that the order sought is necessary to protect the safety of any person. The dispute is already widely known in the public arena. There is no evidence that establishes that the broadcast of the program, or part of the program, should be suppressed to protect the first defendant’s safety.  The program cannot be held responsible for social media discussion of the already widely known dispute. Police assistance is available should it be required.
10	Likewise, I am not persuaded that a suppression order directed at two paragraphs of the judgment and the program is necessary to protect the first defendant’s mental health. Unfortunately, Court proceedings are stressful to parties to litigation. The mental health of parties can and does suffer. I have no medical or psychological evidence before me that the impact on the first defendant’s health of the broadcast of the program would be significant, again noting that the dispute is already widely known in the public arena.  It is said that the first defendant is being treated under a mental health plan, but I have no evidence from a medical practitioner about this.
Delay
11	This application is made very late.  The horse has well and truly bolted.  The judgment was published around seven weeks ago.  No application under the Act was made at the time of its publication.  The substance of the relevant paragraphs of the judgment has been widely published in the media.  
The first defendant’s reputation
12	The first defendant is concerned that he will be defamed by the program. Channel 9 and the program producer are on notice as to his position. 
13	If he is defamed, he has a right to seek damages for defamation, just like any other member of the public. The application before me is for a suppression order, and not for an injunction restraining alleged defamation. It is not my role to censor or edit what the media propose to publish under the guise of a suppression order. 
Conclusion
14	The defendants’ summons for a suppression order must be dismissed. Neither of the grounds relied on are established, even on an interim basis.  No good reason has been shown as to why the principle of open justice should be displaced.  The application has been brought very late, and long after the judgment was widely published in the media. The ancillary relief sought in the application necessarily fails with the application for principal relief.

SCHEDULE OF PARTIES
KHMER BUDDHIST TEMPLE ASSOCIATION INC (ABN 63 990 104 294)	First Plaintiff	
		
VISAL MOM 	Second Plaintiff	
		
SEREI PUT	Third Plaintiff	
		
MAXWELL ZOR	Fourth Plaintiff	
		
- and - 		
		
HOUT CHHET	First Defendant	
		
SOTHY SAMRETH	Second Defendant	
		
KEAT A TE	Third Defendant	
		
SONN TOP KIM	Fourth Defendant	
		
DARARATH UCH	Fifth Defendant