Australian Broadcasting Corporation v The Magistrates' Court of Victoria
[2025] VSC 500
•19 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2025 00412
| AUSTRALIAN BROADCASTING CORPORATION (and others according to the attached Schedule) | Plaintiffs |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA (and others according to the attached Schedule) | Defendants |
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JUDGE: | Gray J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 July 2025 |
DATE OF JUDGMENT: | 19 August 2025 |
CASE MAY BE CITED AS: | Australian Broadcasting Corporation v The Magistrates’ Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2025] VSC 500 |
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ADMINISTRATIVE LAW — Judicial review — Magistrates’ Court decision not to set aside and instead to vary a proceeding suppression order — Plaintiffs claiming certiorari to quash suppression order — Suppression order made in circumstances where a retrial had not yet been ordered — On its face scope of order was broader than scope of empowering provision — Whether proceeding could be determined on basis that order be read down — Parties to be heard on whether suppression order should be quashed as being broader than scope of empowering provision — Open Courts Act 2013 ss 13, 15, 17, 18, 26.
PRACTICE AND PROCEDURE — Suppression order — Open Courts Act 2013 ss 13, 15, 17, 18, 26.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr S Mukerjea with Mr C O’Beirne | Thomson Geer |
| For the Third Defendant | Mr DA Dann KC with Mr M McGrath | Chris McLennan & Co |
TABLE OF CONTENTS
Context................................................................................................................................................. 2
The Magistrates’ Court’s Reasons................................................................................................... 5
This proceeding.................................................................................................................................. 9
A threshold issue concerning the scope and interpretation of the order.............................. 12
Analysis.............................................................................................................................................. 13
Alleged errors regarding precedential case law (grounds 2, 3, and 4)............................... 13
Roberts................................................................................................................................. 13
Tuteru.................................................................................................................................. 21
Chaarani and Farquharson.............................................................................................. 22
Relevant considerations (ground 5)......................................................................................... 24
Irrelevant considerations (grounds 6, 7, and 8)...................................................................... 24
Real and substantial risk of prejudice (ground 9).................................................................. 27
Varied suppression order not authorised by s 17 of the OC Act?.......................................... 27
Conclusion......................................................................................................................................... 29
HIS HONOUR:
In this judicial review proceeding three news media organisations seek to quash a suppression order of the Magistrates’ Court of Victoria purportedly made under s 17 of the Open Courts Act 2013 (OC Act), following a review under s 15 of the OC Act.
Following a hearing concerning eight grounds of review set out in the plaintiffs’ amended originating motion, I am not currently satisfied that I should grant an order in the nature of certiorari on the basis of any of them.
However, as identified by counsel for the plaintiffs at the hearing, the suppression order is, on its face, broader than the empowering provisions would allow. This seems to be an obvious jurisdictional error.
Although this ground of jurisdictional error was not included in the amended originating motion, I will allow all the parties an opportunity to be heard on it. One possibility is that the plaintiffs may seek to further amend their originating motion to add it as a ground of review. Even if they do not, I may need to consider whether it would be permissible and appropriate to quash the order in the exercise of the Court’s inherent supervisory jurisdiction in relation to inferior courts and tribunals in Victoria. I will also hear the parties as to what should follow, in the event I quash the order.
Context
On 25 November 2021, Victoria Police charged Gregory Lynn, the third defendant, with two counts of murder.
In January 2023, a committal hearing was conducted in the Magistrates’ Court. On 25 January 2023, his Honour Magistrate Sonnet (his Honour) made a suppression order in the proceeding (the original suppression order) in the following terms:
Publication of
ORDER APPLIES TO PROHIBIT THE PUBLICATION OF ANY INFORMATION RELATING TO ANY CRIMINAL HISTORY OF THE ACCUSED, INCLUDING ANY CONTACT WITH POLICE IN RESPECT OF ANY MATTER UNRELATED TO THE CHARGES THE SUBJECT OF THE CURRENT PROCEEDING.
is prohibited.
The original suppression order stated that the applicable grounds were to ‘prevent a real and substantial risk of prejudice to the proper administration of justice’. It applied throughout the states and major territories of Australia. The original suppression order was to expire ‘at the conclusion of any trial in this matter including relevant appeal period’.
On 25 June 2024, Mr Lynn was convicted on one count of murder. On 18 November 2024, Mr Lynn lodged an appeal against his conviction and sentence.
On or around 18 November 2024, the Herald and Weekly Times, the third plaintiff, filed an application in the Magistrates’ Court to review the original suppression order (the review application).
On 25 November 2024, after hearing the review application, his Honour gave a brief ruling refusing to revoke the suppression order, and his Honour made an order under s 15(3) varying the original suppression order as follows:
Publication of
PUBLICATION
ORDER APPLIES TO PROHIBIT THE PUBLICATION OF ANY INFORMATION RELATING TO ANY CRIMINAL HISTORY OF THE ACCUSED, INCLUDING ANY CONTACT WITH POLICE IN RESPECT OF ANY MATTER UNRELATED TO THE CHARGES THE SUBJECT OF THE CURRENT PROCEEDING (WHICH FOR AVOIDANCE OF DOUBT EXTENDS TO INFORMATION RELATING TO [a specified matter]).
EXPIRY
AT THE CONCLUSION OF ANY TRIAL IN THIS MATTER INCLUDING RELEVANT APPEAL PERIOD (WHICH FOR AVOIDANCE OF DOUBT EXTENDS TO THE DATE OF THE COURT OF APPEAL JUDGEMENT IN RESPECT OF THE LODGED APPEAL AGAINST CONVICTION).
is prohibited.
(the varied suppression order)
The varied suppression order again stated that the applicable grounds were to ‘prevent a real and substantial risk of prejudice to the proper administration of justice’. Again, it applied throughout Australia.
Both the original suppression order and varied suppression order stated that they were made pursuant to s 17 of the OC Act. Section 17 provides:
17 Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.
Section 18(1)(a) of the OC Act relevantly provides that a court may make a proceeding suppression order if satisfied that ‘the order is 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’.
A court may make a proceeding suppression order on its own motion: s 19(1)(a), or on the application of a party to the proceeding concerned or any other person considered by the court to have a sufficient interest in the making of the order: s 19(1)(b).
Section 15 of the OC Act provides for review of a suppression order. It relevantly provides:
(1) The court or tribunal that made a suppression order may review the order—
(a) on the court’s or tribunal’s own motion; or
(b) on the application of—
…
(v) a news media organisation;
(vi) any other person who, in the opinion of the court or tribunal, has a sufficient interest in the question of whether the order should be confirmed, varied or revoked.
…
(3) On a review under subsection (1) or (1A), the court or tribunal—
(a) may confirm, vary or revoke the suppression order; and
(b) in addition, may make any other order that the court or tribunal may make under this Act including, in the case of a review under subsection (1A), any order that the court or tribunal which made the suppression order could have made.
Sub-section (1A) of s 15 of the OC Act may be of indirect relevance. It confers similar powers of review on a court hearing an appeal from a proceeding in which a suppression order has been made which has continued to operate pursuant to s 12(3A).
On 6 December 2024, Magistrate Sonnet published to the parties (but not the public) his reasons for refusing to revoke the suppression order and making the varied suppression order (Reasons).
The Magistrates’ Court’s Reasons
His Honour’s Reasons at [18]–[22] addressed the nature of Mr Lynn’s appeal to the Court of Appeal and his counsel’s submissions about the potential prejudice to him if there were to be a retrial.
At [23]–[25], his Honour outlined the news media organisations’ submissions, including the argument (now reflected in ground 2 of the amended originating motion in this proceeding) that the Magistrates’ Court ‘was bound to revoke the original order in light of the Victorian Court of Appeal decision in Roberts v The Queen (No.2)’.[1]
[1]Roberts v The Queen (No 2) [2020] VSCA 188 (Roberts).
The Reasons then addressed at [26]–[30] various features of the criminal proceeding and purpose of the original suppression order, which included (at [30]) the prevention of publication of information relating to a certain matter, which his Honour identified (the specified matter).
I pause at this point to note that it was uncontroversial during the hearing before me that, during the committal hearing, evidence was received by the Magistrates’ Court relating to the specified matter. That evidence was not adduced in this judicial review proceeding before me.
His Honour concluded this passage of the Reasons, at [30], by saying this about the specified matter:
In short, the order was designed to prevent any speculation in media reporting that Lynn was somehow criminally responsible for [the specified matter] – the reporting of such information is self-evidently highly prejudicial to any defence of accident in respect of the criminal charges relating to the deaths of Mr Hill and Mrs Clay in the current proceeding.
His Honour’s Reasons then turned, at [31]–[34], to the question of whether necessity still attached to the original suppression order — identifying the relevant question as whether the order was ‘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)’. His Honour sought assistance on the meaning of ‘administration of justice’ in this regard from Spigelman CJ’s remarks in the New South Wales Court of Appeal decision of John Fairfax Publications Pty Ltd v District Court (NSW),[2] concluding that the right of an accused person to a fair trial falls within the rubric of the administration of justice (Reasons at [33]).
[2](2004) 61 NSWLR 344, [17]-[23].
His Honour’s Reasons then turned to a detailed discussion of two of the four authorities referred to in grounds 2-4 of the amended originating motion: Roberts (Reasons at [34]–[46]) and Tuteru[3] (Reasons at [47]–[54]).
[3]DPP v Tuteru (Application for suppression order) [2023] VSC 241 (Tuteru).
After considering Roberts in some detail, at Reasons [42] and [43] his Honour quoted Roberts at [46] and said of that paragraph:
42. The Court declined to make a ‘take-down order’ concluding [in Roberts at [46]] as follows:
In our view, the cases that deal with pre-trial publicity are inapplicable in the context of a person who has been convicted and has appealed the conviction but the appeal has not been determined. Given that the applicant does not say that the article prejudices his appeal, and because there is no pending criminal trial or undetermined charge, it is not necessary to make the order at this point to protect the administration of justice.
43. However, in saying so, the Court is not to be treated as ruling that a criminal court does not have the power to make such an order in a case where there is a possibility of a retrial (as is the case here). If that was the case, the further discussion by the Court on the ‘merits’ of the application would be otiose. For example, the Court went on to state that it was not persuaded ‘that it is necessary to make the order’ sought by reference to a number of matters. [Roberts [47], [51]-[61]] Finally, the Court expressed its conclusion in a manner that plainly admits of a power to make such an order in such cases if required to do so [in Roberts at [62]]:
We are not persuaded that a takedown order is necessary in circumstances where no new trial has been ordered. We are not persuaded that the matters complained of are of a kind that would require this Court to act.
His Honour said that Roberts was:[4]
…distinguishable from the facts underlying this application. In short, the original order is designed to prevent the reporting on inadmissible material of a highly prejudicial nature. Furthermore, the order does not impinge upon the ability of media organisations to report on the conviction for murder and any arguments on the appeal.
[4]Reasons [46].
His Honour also considered Tuteru in some detail. Relevantly for present purposes, his Honour regarded Tuteru as significant because he considered that the analysis of Forbes J in Tuteru was predicated on the Court having power to grant a suppression order in circumstances where an accused faced the mere possibility of a future criminal trial.[5]
[5]Reasons [47].
His Honour said (at [56]) that ‘… any application for a suppression order or application for revocation of such order quintessentially depends on its own particular facts and circumstances. In other words, earlier decisions provide a very helpful guide to statements of legal principle but do not dictate a particular outcome.’ At Reasons [58], his Honour said:
I am also mindful that Lynn has been convicted of murder. As such, there is only a possibility of a future trial if his appeal against conviction succeeds. In my view, it is not profitable to analyse the grounds of appeal, save to say I accept that the grounds drafted are not hopeless in nature and raise live issues for determination by an appellate court.
His Honour referred to the specified matter and said any reporting of it ‘has the real potential of impacting on the right of Lynn to have his defence of accident properly considered by a jury in any murder trial’ (at [61]). He said:[6]
After careful consideration, I am amply satisfied that the original suppression must remain in place to protect the streams of justice. This is an exceptional case and satisfies the legal test of necessity as explicated in the authorities.
[6]Reasons [63].
His Honour went on at Reasons [64]–[66] to explain why he considered it an exceptional case, referring amongst other things to the widespread media coverage of the case, to the strong emotional responses it provokes, and to the specified matter and its prejudicial effect on any future retrial on the count of murder of Mrs Clay.
His Honour also set out a passage from Chaarani[7] (Reasons [67]) that in turn included an extract from the Court of Appeal’s judgment in Farquharson[8] agreeing with the trial judge’s view in Farquharson that that case might not have been susceptible to effective judicial direction to the jury, thus supporting the conclusion that a suppression order was necessary to prevent publication while the trial was under way. His Honour did not say what specific use he was making of the passage from Chaarani, or the passage from Farquharson embedded in it. His Honour introduced this passage by merely saying that he had again reviewed the general principles set out in Chaarani.
[7]Chaarani v DPP (Cth) & Ors [2018] VSCA 299 (Chaarani).
[8]Nationwide News Pty Ltd v Farquharson & Anor [2010] VSCA 131; 28 VR 473 (Farquharson).
His Honour then set out his conclusions at Reasons [68]–[76], which included the following:
Counsel for Lynn opposes revocation of the original order on the basis that publication of prejudicial information severely prejudices the accused’s right to any fair new trial (if granted by the Court of Appeal. It is further submitted that judicial direction at any future trial will not relieve against the prejudice in circumstances where such highly prejudicial information is plainly inadmissible. In short, I agree with this submission.
…
… this is an ‘exceptional’ case as the suppressed material (if published in the public domain) has the tendency to substantially impair Lynn’s defence of accident to charge of murder. In my view, the above features set this case apart from other decisions which have favoured publication of information post-conviction in order to give effect to the ‘open justice’ principle.
… In this case, the inadmissibility of the suppressed material is simply unarguable at law. Accordingly, the suppression order is necessary in order to in order to prevent a real and substantial risk of prejudice to the proper administration of justice. I am also satisfied that the preservation of the original suppression order is necessary as the identified prejudice cannot be prevented by ‘other reasonably available means’, such as judicial direction. In other words, this is a case very similar to that of Farquharson, in that it would ‘strain the limits of judicial direction on sympathy’ to direct a jury to ignore any public commentary touching on Lynn’s previous history, including his criminal history, propensity for violence or the [specified matter].
Finally, I have already adverted to the imperative of a timely retrial in this matter (if required). In my view, the suppression of the material covered by the order prevents the possibility of a permanent or temporary stay of any future trial based on widespread publication of highly prejudicial information.
This proceeding
On 23 January 2025, the plaintiffs commenced this proceeding by filing an originating motion for judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, with respect to Magistrate Sonnet’s decision dismissing the review application and making the varied suppression order.
The plaintiffs sought relief including:
(a) a declaration that his Honour’s decision was affected by jurisdictional error and/or error of law on the face of the record and was thereby invalid and contrary to law (claim for relief, [3]);
(b) an order in the nature of certiorari quashing the varied suppression order and, to the extent necessary, the original suppression order (claim for relief, [4]);
(c) further or alternatively, a declaration that neither the varied suppression order nor the original suppression order are 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 (claim for relief, [5]).
The first and second defendants have not had an active role in the proceeding to date and did not appear at the hearing.
The plaintiffs’ claim was opposed by the third defendant, Mr Lynn.
At the hearing, ground 5 of the originating motion was amended in a minor respect and ground 1 was not pressed. Grounds 2 to 9 of the amended originating motion were to the following effect:
(a) that his Honour misconstrued and misapplied (or, in the case of Roberts, failed to apply) the following four authorities (grounds 2, 3, and 4):
(i) Roberts v The Queen (No 2) [2020] VSCA 188 (Roberts);
(ii) DPP v Tuteru (Application for suppression order) [2023] VSC 241 (Tuteru); and
(iii) Nationwide News Pty Ltd v Farquharson & Anor [2010] VSCA 131; 28 VR 473 (Farquharson); and
(iv) Chaarani v DPP (Cth) & Ors [2018] VSCA 299 (Chaarani).
(b) that his Honour failed to take into account, as a relevant consideration, ‘the widespread and continued reporting of Mr Lynn’s finding of guilt, conviction, sentencing and penalty of imprisonment for the murder of Ms Clay’ (ground 5); and
(c) that his Honour took into account the following three matters, which were said to be irrelevant considerations (grounds 6, 7, and 8):
(i) that there had previously been media publicity concerning Mr Lynn that could be described as ‘sensationalist’ and ‘explosive’, and that future reporting about Mr Lynn would be ‘sensational’, ‘highly prejudicial’ and ‘highly unlikely to be forgotten by any potential juror’, which was said to be speculative;
(ii) ‘the desire to safeguard any future re-trial of Mr Lynn from the possibility of an application for a permanent or temporary stay due to prejudicial pre-trial publicity’; and
(iii) ‘the perceived imperative not to delay any future re-trial of Mr Lynn when in fact any such re-trial remained entirely hypothetical’.
Ground 9 was a catch-all ground. In their written submissions, the plaintiffs said that they relied on what was set out in respect of grounds 3 to 8 in support of ground 9. On my reading of ground 9, it might have been more accurate to say that they also relied on ground 2 in that respect. Ground 9 was as follows:
9. The Decision is affected by jurisdictional error, alternatively an error of law on the face of the record, in that the learned Magistrate erroneously concluded that the Suppression Order and/or the Varied Suppression Order were 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.
Particulars
a. The circumstances of the case did not meet the high legal threshold of ‘necessity’ because:
i. any re-trial of Mr Lynn remains entirely hypothetical;
ii. the Magistrate found that any re-trial would not, in any event, occur before 2026, meaning that any prejudice caused by the reporting of matters the subject of the Suppression Order and the Varied Suppression Order will have dissipated;
iii. the prejudicial effect, if any, of reporting of any of the matters the subject of the Suppression Order and the Varied Suppression Order would pale in comparison to the risk of prejudice caused by the reporting of Mr Lynn’s finding of guilt, conviction, sentencing for the murder of Ms Clay – all of which matters have received widespread publicity, may continue to be reported free of restriction, would be inadmissible at any future re-trial of Mr Lynn, but would be known to prospective jurors;
iv.any residual risk of prejudice that existed at the date of any re-trial in 2026 (at the earliest) could be addressed by appropriate directions to jurors, who could be expected to follow such directions; and
v. the present case is no more ‘remarkable’, ‘exceptional’ or capable of evoking ‘strong emotional responses’ than other high profile criminal proceedings in this state, including Roberts and Tuteru.
A threshold issue concerning the scope and interpretation of the order
At the commencement of the hearing, counsel for the plaintiffs referred to s 17 of the OC Act and then said that his Honour had considered that the varied suppression order would have a ‘much wider scope’ and would go beyond information simply derived from the proceeding itself. I asked counsel whether there was a ground to that effect in the originating motion. Counsel said he did not pursue a ground along those lines.[9]
[9]T7.
Later in the hearing, counsel for the plaintiffs submitted that it might be open to argue that, properly construed, the order does not go beyond s 17 because it should be read as only restricting publication of the matters referred to in the order insofar as those matters were traversed in the course of the committal proceeding in the Magistrates’ Court.[10] Still later in the hearing, Mr Lynn’s senior counsel informed me that the original suppression order arose by reason of certain matters at the committal hearing.[11] I infer that this was a reference to the evidence given at the committal concerning the specified matter, which was not adduced in this proceeding before me.
[10]T51.
[11]T88.
These exchanges suggest, in effect, that those parties’ position may be that the varied suppression order should be read down, or interpreted as being subject to an implied limitation, conforming to the limits imposed by s 17. They seemed to suggest that the varied suppression order might even be read down to the extent that it only applies to the evidence received at the committal concerning the specified matter.
As a matter of principle, I doubt whether that can be done with respect to a court order, and especially one that is directed to the world at large such as the varied suppression order. Further, the OC Act makes it clear that it must be ‘readily apparent from the terms of the order what information is subject to the order’: s 13(1)(c). Further still, pt 4 of the OC Act, entitled ‘Broad suppression orders’ empowers the Magistrates’ Court in certain circumstances to make a form of suppression order that is not limited in the manner referred to in s 17, but it seems that the Magistrates’ Court’s power in this regard can only extend to the prohibition of publication of material ‘relevant to a proceeding that is pending in the Court’.[12] This power was probably not available to his Honour after the conclusion of the committal.
[12]OC Act, s 26(1).
Purporting to make an order that exceeds relevant statutory authority is a form of jurisdictional error on the part of an inferior court.[13] In my view it is unsatisfactory to leave this question of the interpretation, scope and validity of the varied suppression order unresolved, and to determine the proceeding on the basis of the grounds pleaded in the amended originating motion without confronting that question directly. I return to what I propose to do about this at the conclusion of these reasons.
[13]Craig v South Australia (1995) 184 CLR 163, 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ): ‘An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.’
Analysis
Alleged errors regarding precedential case law (grounds 2, 3, and 4)
I will address each of the relevant four authorities referred to in grounds 2–4 in turn. The most cogent and arguable ground was ground 2, relating to Roberts.
Roberts
Roberts concerned an application for a takedown order regarding an article published in The Age. This was an application in the inherent jurisdiction of the Court, not under the OC Act, but the same principles apply:[14]
In the context of criminal trials, the Court has the powers to make such orders as are necessary to secure a fair trial and to prevent an abuse of its own process. It includes making suppression or non-publication orders so as to prevent a contempt of court.[15]
Although this Court is not dealing with a statutory power, authority supports the proposition that an order of the kind sought can only be made where it is necessary.[16] The order must be necessary to achieve the purpose of protecting the administration of justice. It will be satisfied where there is a real or substantial risk of prejudice to an accused person’s right to a fair trial that can only be ameliorated or avoided by the making of the order.[17] The requirement for it to be necessary is deliberately a high hurdle.
[14]Roberts [34]–[35].
[15]Chairperson of the Royal Commission into the Management of Police Informants v DPP [2020] VSCA 184, [52]–[60] (Beach, McLeish and Weinberg JJA).
[16]News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 258–9 [35], dealing with suppression orders, and 267–8 [73], dealing with internet orders; [2010] VSCA 5 (Warren CJ and Byrne AJA); R v Perish [2011] NSWSC 1102.
[17]The Herald and Weekly Times Pty Ltd v [A] [2005] VSCA 189; [25], [30]–[32] (Maxwell P and Nettle JA); Friedrich v Herald and Weekly Times Ltd [1990] VR 995, 1005 (Kaye, Fullagar and Ormiston JJ); Re applications by Chief Commissioner of Police (Vic) for leave to appeal (2004) 9 VR 275 [2004] VSCA 3; Scott v Scott [1913] AC 417, 437–8 (Lord Haldane); John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476–7 (McHugh JA).
The application was at a time when the Court of Appeal had granted the appellant leave to appeal against his murder conviction and the decision on the appeal was reserved.[18] Niall JA (as the Chief Justice then was) and Taylor AJA said in this regard:[19]
Beyond acknowledging that the appeal may be dismissed and the conviction may stand or it may be allowed with the consequence that either an order of acquittal or an order for a new trial is made, it is not profitable to speculate as to its outcome. All that can be said is that the grounds were sufficient to attract a grant of leave to appeal and a further trial is possible.
[18]Roberts [1]–[2].
[19]Roberts [2].
Their Honours characterised the article the subject of the application as follows:[20]
… the article was informed by, and involves a discussion of, the arguments presented in this Court on the appeal. Much of the content, including contentious pieces of evidence, were canvassed in the argument on the appeal. It follows that the proposed order, if made, would likely impede the reporting of the arguments on the appeal and any decision. Secondly, the murders of the two police officers is notorious and a matter of great public interest, as are the arguments that have been aired in the appeal, which concern allegations of police malpractice or misconduct. An order would significantly impact the freedom to discuss and report on these matters.
[20]Roberts [39].
Their Honours noted that the applicant’s argument focussed on the impact on a potential juror in the event his appeal were to be allowed and a new trial ordered. Their Honours noted that the applicant called in aid ‘the line of authority concerned with the making of orders to prevent a threatened interference with a trial’, and that ‘[t]hose cases are premised on there being a trial and relate to the period between the laying of a criminal charge and its determination by a jury’.[21]
[21]Roberts [42].
It is a ‘very different exercise’ if ‘the question of whether there is to be a trial is itself uncertain’.[22] Where a conviction has been recorded:[23]
… it is artificial to talk of the applicant having a right to a fair trial in the future. He has no right to a trial unless and until there is an order allowing his appeal His conviction is not provisional. To treat the possibility that there might be a new trial as simply another variable in a calculation on the likelihood of future risk is to misapprehend the present status of the applicant.
[22]Roberts [43].
[23]Roberts [44].
Further, applying the approach taken in cases concerning pre-trial publicity to a convicted person would introduce significant problems in the reporting of convictions and arguments on conviction appeals.[24] Taking into account the possibility of a future trial would be liable to significantly stifle reporting of convictions and appeals.[25]
[24]Roberts [45].
[25]Ibid.
Their Honours concluded that the cases that deal with pre-trial publicity were ‘inapplicable’ and that the takedown order sought in Roberts was not necessary ‘at that point’ to protect the administration of justice. Their Honours said in this regard:[26]
In our view, the cases that deal with pre-trial publicity are inapplicable in the context of a person who has been convicted and has appealed the conviction but the appeal has not been determined. Given that the applicant does not say that the article prejudices his appeal, and because there is no pending criminal trial or undetermined charge, it is not necessary to make the order at this point to protect the administration of justice.
[26]Roberts [46].
Niall JA and Tayor AJA also went on to consider ‘[i]n any event’ a number of other aspects of the factual circumstances including the content of the article itself, the volume of other information that had been published about the case, uncertainty as to when any further trial would be held (if the conviction were quashed on appeal), the difficulty of assessing the prejudicial impact on a potential juror of reading the article, and the efficacy of a trial judge’s directions to the jury to disregard any such extraneous material.[27]
[27]Roberts [47]–[61].
The plaintiffs submitted that the ratio of Roberts was the passage at [42]–[46] of Roberts, that his Honour failed to apply it, and that his Honour instead relied on the obiter in that case (at [47]–[61] of Roberts). The plaintiffs submitted that, had his Honour applied the ratio in Roberts, he ought to have set aside the original suppression order and not made the varied suppression order. The plaintiffs accepted that his Honour had power to make a suppression order, and they also accepted that it might be possible — in some circumstances not present here — that a suppression order could be necessary to prevent a real risk of prejudice to the administration of justice even where a future trial was only a possibility.[28]
[28]T24.
Nevertheless, the plaintiffs submitted that his Honour misinterpreted Roberts in two main ways. The plaintiffs submitted that Niall JA and Taylor AJA concluded that where there was a conviction pending appeal, with no retrial yet ordered, then no order would be necessary. They submitted that this conclusion ‘bound’ his Honour to reach the same conclusion in Mr Lynn’s case. The plaintiffs submitted that the relevant facts in Roberts are indistinguishable from the facts of the present case, as both cases have no pending trial, both suppression orders were designed to prevent the reporting of highly prejudicial and inadmissible material, and that his Honour’s description of Mr Lynn’s case as ‘exceptional’ was not a basis upon which Roberts could be distinguished. The plaintiffs submitted that the fact that Mr Lynn’s case attracted significant publicity was not a matter that entitled his Honour to conclude that the case was in any way exceptional.
Mr Lynn submitted that his Honour was correct in interpreting Roberts as not laying down a general rule or principle that there was no power to impose a suppression order where there was only a possibility of a future trial. Mr Lynn submitted that the conclusion in Roberts was not such that there could never be a case where a suppression order was necessary despite there being only a possibility of a future trial. So much was accepted by the plaintiffs.[29] Mr Lynn also submitted that the present case is an extreme or exceptional case where a suppression order was necessary, pointing to the fact that the jury did not get to hear a large portion of Mr Lynn’s record of interview with police, as it was ruled inadmissible.
[29]T24.
The error alleged in ground 2 may be couched as an alleged misunderstanding of, or incorrect distinguishing of, reasoning of the Court of Appeal that was binding on the Magistrates’ Court in its interpretation and application of the test of what is ‘necessary’ to prevent a risk to the administration of justice in a case such as the present. That is, a case where there is a claim of prejudice to the right to a fair trial but the relevant trial will only occur if a conviction is set aside.
It is debatable whether Roberts was truly distinguishable from the present case, and whether the Court of Appeal’s statement that the usual pre-trial publicity cases are inapplicable where the possibility of a retrial depends on a successful appeal from conviction was given enough weight by his Honour.
However, in my view, any such error on the part of an inferior court is not jurisdictional error.
Even if his Honour were to have misunderstood the ratio of Roberts and thus asked himself the wrong question, that would not amount to jurisdictional error.
The scope of jurisdictional error alleged on the part of an inferior court is not the same as regards an administrative decision maker, but must take into account the fact that the inferior court is constituted by legally qualified judicial officers and has been entrusted with the function of interpreting and applying the law within a judicial hierarchy. It is incorrect to assume that an inferior court commits jurisdictional error whenever it addresses the wrong issue or asks itself the wrong question.[30] As the High Court said in Craig v South Australia, errors of that kind might be relevant on an appeal (if one is available), but do not constitute jurisdictional error:[31]
Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however. ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
[30]Craig v South Australia (1995) 184 CLR 163, 176-179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[31]Ibid 180.
Relevantly here, certiorari of his Honour’s order may be available not only for jurisdictional error but also error of law on the face of the record. In Victoria, it is clear that an inferior court’s reasons for decision form part of the record for this purpose.[32] An error of the kind alleged in ground 2 may, perhaps, amount to error of law on the face of the record. A finding of error of law on the face of the record falling short of jurisdictional error would not support a declaration that the varied suppression order was invalid,[33] but may lead to the Court granting certiorari.
[32]Administrative Law Act 1978, s 10.
[33]Cf amended originating motion, claim for relief, [3].
I accept the plaintiffs’ submission that [41]–[46] of Roberts was ratio. The passage at [47]–[61] of Roberts is obiter. However, it is debatable whether Roberts [41]–[46] lays down a prescriptive rule for all future cases where there is only a mere possibility of a retrial. I respectfully incline to the view that it does not. No doubt the Court of Appeal’s reasoning at [41]–[46] is important guidance that must be taken into account in the exercise of the courts’ evaluative function in cases where the possibility of a trial or retrial is subject to the outcome of an undetermined appeal. It must be correctly understood by any inferior court considering whether the circumstances before it necessitate a suppression order on an application of the test in s 18(1)(a) of the OC Act. A failure to form a correct understanding of this guidance would be an error of law.
However, on my reading of Roberts, the Court of Appeal did not intend that a suppression order would never be available where the possibility of a trial or retrial is dependent on the outcome of an undetermined appeal. In my view, it is unlikely that their Honours intended to fetter the exercise of the courts’ evaluative function under s 18(1)(a) in that manner in all such cases.
In short, I do not consider that Roberts ‘bound’ his Honour in the exercise of his evaluative function in the manner the plaintiffs propounded. Provided his Honour did not misunderstand the reasoning and guidance in Roberts, no error of law is to be imputed to him simply by reason of him reaching a different conclusion on the facts before him.
Did his Honour misunderstand the ratio in Roberts? I am not positively persuaded that his Honour materially misunderstood any aspect of Roberts, including the passage of Roberts at [41]–[46]. As already noted, his Honour indicated his understanding that, in light of Roberts, the pre-trial publicity cases were inapplicable.[34] His Honour appreciated that (depending on the outcome of Mr Lynn’s appeal from conviction in the Court of Appeal) there was only a possibility of a retrial. His Honour said — correctly in my view — that Roberts at [46] was not to be understood as a ‘ruling that a criminal court does not have the power to make such an order in a case where there is a possibility of a retrial (as is the case here)’. Indeed, that proposition turned out to be uncontroversial during the hearing before me. His Honour might have been incorrect in what he then went on to say - in purported support of that proposition - in the balance of Reasons [43] (extracted above). There he appears to have treated at least parts of the passage of Roberts at [47] and following as ratio rather than obiter. But any such error was patently immaterial to the outcome. The point of real significance was that his Honour’s statement about the courts retaining power to grant suppression orders in such cases was correct.
[34]Reasons [42].
As already noted, at Reasons [46], his Honour distinguished Roberts. The plaintiffs submitted that this conclusion involved an error of law. However, part of the basis on which his Honour distinguished Roberts involved consideration of the specified matter, about which the Magistrates’ Court had evidently received evidence at the committal. I was not provided with that evidence. Even so, (as noted in paragraph 40 and 41 above) I was invited to assume that the varied suppression order was made because of it, and to conclude that the order should be read down, perhaps to the extent of limiting its scope of valid operation to this evidence. For the reasons noted in paragraph 42 and 43 above, this is not a particularly satisfactory basis on which to attempt to reach a conclusion on ground 2.
I accept that there are some similarities between this case and Roberts. However, I am not satisfied that it was not legally open to his Honour to distinguish this case from Roberts on either of the two bases relied upon by his Honour: first that the original suppression order was designed to prevent reporting on inadmissible material of a highly prejudicial nature (that is, presumably, the evidence at the committal concerning the specified matter), and secondly that the order would not affect the ability of news media organisations to report on Mr Lynn’s conviction for murder and the arguments on the appeal. I am not satisfied that his Honour erred in law in distinguishing Roberts on these bases, or in his resulting characterisation of the present case as an exception to the principles expounded in Roberts.
It is important to bear in mind that this proceeding is a judicial review proceeding and not an appeal, or a review under s 15(1A) of the OC Act or a review in the inherent jurisdiction.[35] Whether this Court might have reached a different evaluative conclusion as to whether the suppression order was necessary to prevent a real risk to the administration of justice on the facts before his Honour is beside the point. The plaintiffs must demonstrate that his Honour erred in law on the record, or jurisdictionally.
[35]See Chairperson of the Royal Commission into the Management of Police Informants v DPP [2020] VSCA 184, [57] (Beach, McLeish and Weinberg JJA).
In my view, his Honour’s evaluative function under s 18(1)(a) of the OC Act included assessing whether the case was exceptional so as to justify a different outcome from Roberts. As this proceeding is a judicial review proceeding, I do not perform that evaluation myself; that evaluation was a matter for his Honour (provided he did not err jurisdictionally or in law on the record).
For the reasons I have explained, I am not satisfied that his Honour misunderstood the applicable principles or otherwise committed legal error, still less jurisdictional error. In reaching that conclusion, I note that the evidence of the specified matter adduced at the committal — which was said to have been the principal target of the suppression orders — was not placed before me. In those circumstances, it would be a difficult thing for me to reach a conclusion that his Honour’s evaluation that this case was exceptional, so as to justify a different outcome from the outcome in Roberts, was outside the scope of conclusions legally open to him.[36]
[36]Even if the evidence from the committal hearing relating to the specified matter had been adduced before me, it seems doubtful that the plaintiffs could have relied on that evidence for the purpose of attempting to establish error of law on the face of the record, because it is doubtful that such evidence could be regarded as part of the ‘record’.
Further and in any event, even if I were to have been persuaded that ground 2 disclosed error of law on the face of the record, I am mindful that certiorari is a discretionary remedy. In circumstances where there is an untested ground of obvious jurisdictional error on the face of the varied suppression order that might render all other grounds academic, I would in any event currently be disinclined to grant certiorari. Another way of putting this point is that, due to the current uncertainty about how the varied suppression order is to be interpreted and applied, and about its validity on another basis, I would be disinclined to grant certiorari on ground 2.
Tuteru
Mr Tuteru applied for a broad suppression order delaying the airing of a television segment which outlined allegations concerning a church with which the applicant was said to be associated.[37] This application was brought at a time during which Mr Tuteru faced a charge that had been permanently stayed, but the stay had been appealed by the DPP and the appeal was yet to be heard. The applicant would not have faced a criminal trial unless the appeal succeeded.[38] Justice Forbes heard the application in Practice Court and dismissed it, later giving reasons.
[37]Tuteru [1].
[38]Tuteru [6].
The plaintiffs submitted that his Honour erroneously construed Tuteru and implicitly distinguished it without disclosing a discernible path of reasoning for doing so. The plaintiffs submitted that his Honour erroneously described Tuteru as involving an application of Roberts and therefore erroneously used Tuteru as support for the fact that despite Roberts, the Court still had power to make a suppression order despite there only being a mere possibility of trial. Mr Lynn submitted that this submission was seemingly built on an assumption that Forbes J in Tuteru was not aware of the relevant parts of the decision in Roberts. He submitted that his Honour was entitled to accept that, having been taken to Roberts and having regard to the relevant parts of that decision, Forbes J in Tuteru proceeded on the basis that there was still power to make a suppression order even though future trial was only a possibility. In the end, as his Honour noted, Forbes J was not satisfied that a suppression order was necessary on the facts and did not grant one.
The plaintiffs submitted that his Honour was wrong to have regard to the statement at [11] of Tuteru that ‘there was no issue as to the Court’s power to make the order if it was appropriate to do so’, as it was no more than a reflection of the agreed position of the parties. The plaintiffs also submitted that his Honour erred in implicitly distinguishing Tuteru by not following its outcome and by failing to explain how his Honour reached that conclusion.
The plaintiffs have established no legal error in his Honour’s consideration of Tuteru. There was no error in regarding Tuteru as an example of the Supreme Court’s trial division entertaining the possibility that a suppression order might be made even in circumstances where the prospect of a trial was not a certainty but only a possibility. His Honour did not, in my view, need to consider the outcome in Tuteru or explain any basis for distinguishing Tuteru on its facts.
Chaarani and Farquharson
In Chaarani, Maxwell P, Beach and Hargrave JJA upheld a decision of a trial judge refusing an application for a suppression order. In that case, the applicants were found guilty at the conclusion of a criminal trial which had been widely reported. They were charged with other offences, and their trial on those charges was about to start. The applicants sought a suppression order over reportage of the earlier verdicts.[39]
[39]Chaarani [2]-[4].
The plaintiffs before me submitted that, as the circumstances in Chaarani were insufficient to justify a suppression order, then it was difficult to conceive how the varied suppression order could be justified in this case.
Mr Lynn submitted that his Honour was not required to engage in any fact-based comparison with respect to Chaarani. I agree with Mr Lynn’s submission. As noted above, his Honour was aware of the statements of principle made by the Court of Appeal in Chaarani. Again, if this matter had been an appeal and I was re-evaluating the risk of prejudice to the administration of justice in all the circumstances, it might have been relevant to consider the similarities and differences between Chaarani and this case in more detail, but no jurisdictional or other legal error arises from any omission to do so on the part of his Honour.
As noted above, in the passage extracted from Chaarani in his Honour’s Reasons, there is also an embedded quotation from Farquharson. In Farquharson, the outcome was that a suppression order was made. The plaintiffs submitted that his Honour should have distinguished Farquharson from the present case and by failing to do so fell into error.
Mr Lynn submitted that his Honour was not required to engage in any fact-based comparison with respect to Farquharson, and that his reference to Farquharson was simply to liken Mr Lynn’s case to the situation in Farquharson.
It is true that his Honour referred to a phrase that appeared in Farquharson and adopted that for the purposes of his evaluation of the risk to the administration of justice in the case before him. But that does not bespeak jurisdictional error or any other form of legal error. Again, the guidance his Honour derived from this aspect of Farquharson fell within the scope of lawful exercise of his evaluative function.
Relevant considerations (ground 5)
The plaintiffs submitted that his Honour committed jurisdictional error by failing to take into account the fact that the reporting of the matters the subject of the original suppression order and varied suppression order could not materially cause a real and substantial risk of prejudice to Mr Lynn’s right to a fair trial given the widespread and continued reporting of Mr Lynn’s murder of Mrs Clay.
The plaintiffs submitted that while his Honour considered it difficult to conceive of anything more prejudicial than to report the specified matter, he failed to consider the significantly greater prejudicial impact of reporting that Mr Lynn was criminally responsible for murdering Mrs Clay, despite this not being suppressed by the varied suppression order.
Mr Lynn submitted that this submission does not come to terms with the impact of the reporting of Mr Lynn’s alleged criminal history. In my view, the plaintiffs’ submission does not grapple with the point made by his Honour that the specified matter was extraneous to the murder for which Mr Lynn was convicted. In any event, this argument can only, at most, relate to the merits of the exercise of his Honour’s evaluative function. No jurisdictional error or legal error is demonstrated by this ground.
Irrelevant considerations (grounds 6, 7, and 8)
The plaintiffs submitted that his Honour committed jurisdictional error, or other legal error, by taking into account three irrelevant considerations, namely:
(a) that there had previously been media publicity concerning Mr Lynn that could be described as ‘sensationalist’ and ‘explosive’ and that future reporting about Mr Lynn would be ‘sensational’, ‘highly prejudicial’ and ‘highly unlikely to be forgotten by any potential juror’ (ground 6);
(b) the desire to safeguard any future re-trial of Mr Lynn from the possibility of an application for a permanent or temporary stay due to prejudicial pre-trial publicity (ground 7); and
(c) the perceived imperative not to delay any future re-trial of Mr Lynn when in fact any such re-trial remained entirely hypothetical (ground 8).
As to ground 6, the plaintiffs submitted that the varied suppression order was ‘impermissibly prophylactic and punitive’, and ‘speculative’. The plaintiffs submitted that his Honour did not consider the possibility that future reporting about Mr Lynn’s criminal history might take a form that does not prejudice a future retrial. Mr Lynn submitted that his Honour was entitled to and should have looked at the impact of previous publicity to inform his assessment of the impact of further publicity, and that this could not amount to impermissible speculation involving jurisdictional error.
As with the preceding grounds, in my view ground 6 was again simply raising a criticism about the manner in which his Honour exercised his evaluative function under s 18(1)(a), and these matters do not rise to the level of jurisdictional or other legal error.
I will address grounds 7 and 8 together, as they both raise an interesting question concerning the scope of matters that can be regarded as presenting a risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
As to ground 7, the plaintiffs submitted that the possibility of a future stay was so speculative as to be incapable of constituting or contributing towards a finding that there was a real and substantial risk of prejudice. Mr Lynn submitted that the issue of a stay, having been raised in the application for revocation, would have been one of the matters considered by his Honour in the exercise of his discretion, and that this consideration could not be an error.
As to ground 8, the plaintiffs submitted that the risk of further delay caused by prejudicial publicity was an unquantifiable, speculative and irrelevant consideration. The plaintiffs submitted that the trial judge could avoid making a suppression order and instead postpone a criminal trial so as to allow the prejudicial effects of publicity to dissipate. Mr Lynn submitted that his Honour was correct in proceeding on the basis that his analysis could not be devoid of at least some consideration of the issue of potential delay.
His Honour clearly considered that the potential for a permanent stay, or a temporary stay delaying any retrial that may become necessary after an appeal, was a matter that could reasonably be regarded as prejudicial to the proper administration of justice within the scope of s 18(1)(a) of the OC Act. Clearly, a matter that could give rise to a permanent stay is properly regarded as a matter of that kind. The issue of whether temporary stays can fall in that category is less clear. The plaintiffs submitted that a temporary stay or adjournment of a criminal trial ordered for the purpose of allowing prejudicial publicity to dissipate must be regarded as a means of preventing a risk of prejudice to the proper administration of justice by ‘other reasonably available means’ as that phrase appears in s 18(1)(a). In other words, the plaintiffs submitted that the availability of a stay or adjournment as a means of addressing prejudicial publicity precluded the making of a suppression order. It followed, so the argument went, that his Honour erred in law in reasoning that the varied suppression order was justified as a means of preventing a stay or other form of delay in the holding of any future retrial that may become necessary.
The plaintiffs did not take me to any authority establishing their contention that a temporary stay or other delay in the holding of a trial could not itself be regarded as a form of prejudice to the proper administration of justice.[40] In the absence of any authority for that proposition, I am not satisfied that the plaintiffs’ contentions should be upheld. In my view, from first principles, material delay in the holding of a trial is reasonably capable of being seen as prejudicial to the proper administration of justice. The need for a temporary stay or adjournment should not be regarded as a reasonably available alternative to a suppression order where, in the absence of a suppression order, there would be a real risk of material delay of a trial.
[40]I do not regard News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 272 [92] (Warren CJ and Byrne AJA) or R v Bembrika & Ors (Ruling No 13) [2007] VSC 543 [12] (Bongiorno J) as doing so.
For this reason, I am not satisfied that his Honour committed a jurisdictional or other legal error in the manner claimed in grounds 7 and 8.
Real and substantial risk of prejudice (ground 9)
The arguments outlined in particulars (i), (iii) and (v) have been addressed in the course of my earlier reasons and I will not repeat them. As I have already explained, they do not rise to the level of jurisdictional or other legal error or are otherwise not established.
As to the contentions that his Honour found that any retrial would not occur until 2026 and that (a) any adverse publicity would have dissipated by then (particular (ii)), and (b) any prejudicial adverse publicity could be addressed by directions to the jury (particular (iv)), those too are simply factual matters that might have been relevant to his Honour’s evaluative function and are incapable of rising to jurisdictional or other legal error.
I am not satisfied that the plaintiffs have established any of their pleaded grounds for impugning his Honour’s conclusion that the varied suppression order was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice. There might be some merit in ground 2, but in light of the uncertainty surrounding the interpretation, scope and validity of the varied suppression order, I am not positively satisfied of this, and in any event I would not exercise any discretion to grant certiorari pending the resolution of those uncertainties.
Varied suppression order not authorised by s 17 of the OC Act?
I will now address the resolution of those uncertainties more directly.
The varied suppression order purports to prohibit any publication of information fitting a particular description (including the specified matter), regardless of the source of the information or whether the publication in question is a report of the criminal proceeding against Mr Lynn.
When the varied suppression order is compared with the terms of s 17 of the OC Act, it can be seen that the varied suppression order contains no limitation of the kind referred to in either s 17(a) (‘a report of the whole or part of the proceeding’) or (b) (‘information derived from the proceeding’).
My preliminary view is that the varied suppression order is therefore, on its face, broader than s 17 allows, and liable to be quashed on that ground of obvious jurisdictional error.
However, the plaintiffs did not specify any such ground in their amended originating motion.
It would be unfair to Mr Lynn, and possibly also unfair to the first and second defendants too, if I were to act on my preliminary view and quash the varied suppression order on that ground without giving all the parties an opportunity to be heard on the issue.
Further, as this issue was not explored in any submissions, there may be countervailing considerations unknown to the Court. It might also perhaps be argued that, unless the plaintiffs seek and obtain leave to further amend their originating motion to include this ground, the Court may not (on its own motion) quash the varied suppression order on this ground.[41]
[41]In this regard, the Court has an inherent supervisory jurisdiction relating to inferior courts and tribunals: see eg, Herron v McGregor (1986) 6 NSWLR 246, 251 (Street CJ, Priestley and McHugh JJA). Arguably, this jurisdiction may allow the Court to quash the varied suppression order on this ground on its own motion.
I will give all the parties the opportunity to file written submissions on such issues, directed to the question of whether the varied suppression order should be quashed as being beyond the power conferred by s 17 of the OC Act, and whether that question should be raised pursuant to an application by the plaintiffs to further amend their originating motion, or on the Court’s own motion. Those submissions should also address what (if anything) should follow if I quash the varied suppression order.
In case it may be relevant to the parties’ submissions as to steps that might follow if I quash the varied suppression order, there is a further point arising from the hearing that should be mentioned. At the hearing, the plaintiffs submitted that if they are successful, and depending on which grounds are upheld, the Court has all the material that was before his Honour, and can therefore decide to ‘re-exercise the discretion’ and make an appropriate suppression order.[42] As this proceeding is a judicial review proceeding, I doubt that this is strictly correct. If I were to quash the varied suppression order, and if I considered that some other suppression order might be appropriate, a fresh process under the OC Act would probably be required. In case it is suggested that I might make an own-motion suppression order under the OC Act, I note again that the evidence of the specified matter received at the committal was not adduced in evidence before me. It would therefore be problematic to contemplate an own-motion order over that material.
[42]T9-10.
The absence of that material also makes it problematic to contemplate granting the substantive declaratory relief sought by the plaintiffs in their amended originating motion at [5].
Conclusion
I will invite further written submissions from the parties as to whether the varied suppression order should be quashed as being — on its face — beyond the power conferred by s 17 of the OC Act.
Ground 2 is the most cogent and arguable ground. However, pending resolution of the issues relating to whether the varied suppression order is invalid on its face and how it should be interpreted, I am not satisfied that ground 2 could be upheld or that it should in any event attract a grant of certiorari. I am not satisfied that any of the other pleaded grounds have been established.
Schedule of Parties
| AUSTRALIAN BROADCASTING CORPORATION | First Plaintiff |
| NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407) | Second Plaintiff |
| THE HERALD AND WEEKLY TIMES PTY LTD (ACN 004 113 937) | Third Plaintiff |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA | First Defendant |
| DETECTIVE A/SGT BRETT FLORENCE | Second Defendant |
| GREGORY STUART LYNN | Third Defendant |
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