Attorney-General for New South Wales v Nationwide News Pty Limited & Anor

The Attorney-General for New South Wales (the applicant) sought to restrain Nationwide News Pty Limited and Mr. David Armstrong (the respondents) from publishing certain information concerning the criminal record of a former prisoner, Mr. John Robert Grant. The applicant contended that the proposed publication would breach an undertaking given by Mr. Grant to the Supreme Court of New South Wales that he would not disclose certain information relating to his time in custody. The respondents argued that the publication was in the public interest and that the undertaking was not binding on them. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the respondents, as third parties who were not privy to the undertaking given by Mr. Grant, could be restrained from publishing information that Mr. Grant had undertaken not to disclose. This involved considering the nature of undertakings given to the court, the circumstances in which such undertakings could be enforced against third parties, and the public interest considerations that might weigh against such enforcement. The court also had to determine whether the undertaking given by Mr. Grant was sufficiently clear and specific to warrant injunctive relief against the respondents.

Heydon J, in his judgment, considered the principles governing the enforcement of undertakings given to a court. His Honour noted that while undertakings are generally binding on the party giving them, their enforcement against third parties is exceptional and requires a strong case. The court must be satisfied that the third party had knowledge of the undertaking and that it would be unconscionable for them to act contrary to it. In this instance, Heydon J found that the applicant had not established that the respondents had the requisite knowledge of the undertaking or that their proposed publication would be unconscionable. Furthermore, the court considered the public interest in freedom of the press and the disclosure of information concerning the criminal justice system, which weighed against the imposition of a restraint.

The application for an injunction was dismissed.