Australian Broadcasting Corporation v The Magistrates' Court of Victoria (No 2)
[2025] VSC 625
•3 October 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: | On the papers |
DATE OF JUDGMENT: | 3 October 2025 |
CASE MAY BE CITED AS: | Australian Broadcasting Corporation v The Magistrates’ Court of Victoria (No 2) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 625 |
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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— Parties given opportunities to make submissions 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 — Application by plaintiffs to ‘re-enliven’ previously abandoned ground — Defendant submitted that it was unfair to allow plaintiffs to recast case — Defendant submitted that Court should not quash order on its own motion — Alternatively, defendant sought opportunity to apply for fresh proceeding suppression order in current proceeding — Abandoned ground only indirectly raised relevant jurisdictional error and application for leave was not clearly explained — Court declined application by plaintiffs to ‘re-enliven’ abandoned ground — Court decided to exercise inherent supervisory jurisdiction on its own motion and to quash suppression order — Stay granted to allow defendant to apply for fresh suppression order.
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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 |
HIS HONOUR:
Following a hearing on 23 July 2025, I delivered an interim judgment in this proceeding on 19 August 2025: Australian Broadcasting Corporation v The Magistrates’ Court of Victoria [2025] VSC 500 (interim reasons).
I will not repeat everything I wrote on that occasion. For present purposes, I adopt the same defined terms, including the expression ‘varied suppression order’ to describe the order of the Magistrates’ Court on 25 November 2024 that is under review in this proceeding. This proceeding was commenced as, and remains, purely an application for orders in the nature of judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules, together with ancillary declaratory relief. It does not include, and never has included, any application of the kind contemplated by s 15(1A) of the OC Act to a court hearing an appeal from a proceeding in which a suppression order has been made. Until the receipt of the plaintiffs’ further submissions on 27 August 2025, they did not invoke the Court’s inherent supervisory jurisdiction.
In the interim reasons, I concluded at [98]–[100] as follows:
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.
This was not a ground relied upon by the plaintiffs. I decided to allow all the parties an opportunity to be heard on the question of whether the varied suppression order should be quashed as being — on its face — beyond the power conferred by s 17 of the OC Act and various related questions.[1] This included the question of whether the Court could quash the varied suppression order on its own motion in the event the plaintiffs did not further amend their amended originating motion to include the relevant ground. I also said that I would also hear the parties as to what should follow, in the event I decided to quash the order.
[1]See, in particular, interim reasons, [102]–[104] and [107].
The plaintiffs took advantage of the opportunity to be heard on the issues raised in the interim judgment by filing and serving a further affidavit and a set of submissions.[2]
[2]Affidavit of Corey David Jankie affirmed 27 August 2025 and exhibit bundle CDJ-3, and Further submissions of the plaintiffs dated 27 August 2025.
The new affidavit exhibited notes of the committal hearing, although not complete and not in the form of transcript. Although incomplete, the notes raised the possibility that there might not have been any evidence given at the committal hearing relating to the ‘specified matter’ referred to in the varied suppression order, contrary to the impression I had formed (as noted in the interim reasons at [20]–[22]).
The plaintiffs submitted: (a) that the order is ‘ultra vires s 17’ of the OC Act and ‘should be quashed on that basis’; (b) that the Court may do so in its inherent, supervisory jurisdiction; (c) (alternatively to the second point) that (if leave be necessary) the plaintiffs should have leave to ‘re-enliven’ hitherto-abandoned ground 1 of their originating motion, which they said addressed the relevant error; and (d) that it is a matter for Mr Lynn whether to bring an application by summons in this proceeding seeking a fresh suppression order.
I made an order on 27 August 2025 setting a deadline for the defendants to respond, noting in the recitals as follows:
The Court wishes to provide an opportunity to each of the three defendants to respond and to make any application any of them might wish to make.
In the absence of a request from any one of the parties to the proceeding, the Court proposes to finalise its decision and make appropriate orders on the papers. However, it is open to any party (pursuant to liberty to apply under order 3 below) to seek a hearing and to propose a timetable of any steps they say would be required before a further hearing. …
I indicated an expected deadline for the exercise of liberty to apply for a hearing, and that deadline came and went without any such request.
My substantive order on 27 August 2025 was as follows:
By 4:00pm on 12 September 2025 each of the first, second and third defendants is to:
(a) file and serve responding submissions (limited to ten pages) if it/he wishes to respond to the submissions and applications made in the further submissions of the plaintiffs filed 27 August 2025;
(b) file and serve a summons if it/he wishes to seek a stay of any order quashing the varied suppression order made by the Magistrates’ Court dated 25 November 2024 and/or if he wishes to seek an alternative order under the Open Courts Act 2013 in relation to the matter; and
(c) file and serve any affidavit material on which it/he relies in support of any such submissions or summons.
I received a request on behalf of Mr Lynn for further time, which was granted.
The court received no word from the other defendants, who include the prosecution.
Brief responding submissions were filed on behalf of Mr Lynn on 17 September 2025, as follows:
1. It is recognised on behalf of Mr Lynn that at the hearing of this matter, the Plaintiffs’ counsel was queried as to whether the Varied Suppression Order goes beyond the scope of section 17 of the Open Courts Act 2013.
T7 Lines 22-24
2. However, it can be seen that the Plaintiffs’ counsel expressly disavowed reliance on any ground of review alleging jurisdictional error of such a kind.
T7 Lines 25-27
3. Not only did the Plaintiffs’ counsel expressly disavow reliance on such a ground of review – the Plaintiff’s counsel gave reasons why such a ground of appeal would not be relied upon.
T50 Line 21 – T51 Line 21
4. It should be accepted that a considered position had been taken on behalf of the Plaintiffs not to rely on such a ground of review.
5. Moreover Ground 1 of the Originating Motion was expressly abandoned prior to the hearing of this matter on 23 July 2025 (in written submissions – 27 June 2025).
6. In light of those forensic decisions made on behalf of the Plaintiffs, it is submitted that it is too late for the Plaintiffs to recast their case.
7. Allowing the Plaintiffs to recast their case would be patently unfair to Mr Lynn.
8. Mr Lynn met the case that was put by the Plaintiffs in this review hearing.
9. He should not have to contend with a different case after the review hearing has been concluded.
10. Allowing the Plaintiffs to recast their case or revive a ground of appeal that has been expressly abandoned, would contravene the fundamental principle that parties to litigation are generally bound by the way they have conducted their case at the hearing of the matter.
11. It is clear that the Court has concerns about the validity of the Varied Suppression Order.
12. However, it is also clear that the Court had those concerns at the hearing of this matter.
13. If the Plaintiffs maintained a considered position in the face of those concerns from the Court – that should be the end of the matter as far as this judicial review is concerned.
14. For the same reasons the Court should not intervene of its own motion to find jurisdictional error in the absence of any live ground of review alleging that jurisdictional error.
15. Should the court nevertheless proceed to find such jurisdictional error and quash the Varied Suppression Order, Mr Lynn would apply for a Suppression Order as part of this proceeding.
Mr Lynn did not file a summons seeking a fresh suppression order, or an affidavit. Paragraph 15 in essence seeks to reserve his right to do so.
The criticisms made in Mr Lynn’s submissions about the inconsistency in the plaintiffs’ arguments at different stages of the proceeding are well founded. I have placed significant weight on Mr Lynn’s key submission that the plaintiffs should be held to the position they adopted at the hearing. I have turned my mind to whether an estoppel might arise in the circumstances, or whether it might be an abuse of process — or in some other way inappropriate — for the plaintiffs to recast their case.
In addition to what was said in Mr Lynn’s further submissions, it could also credibly be said that in their most recent submissions the plaintiffs have gone about seeking to have the varied suppression order quashed on the ground that it is ‘ultra vires s 17’ of the OC Act in an indirect manner. I say that for the following reasons:
(a) The plaintiffs’ primary position is that the Court should quash the order on the relevant ground as an exercise of the Court’s inherent supervisory jurisdiction, but the plaintiffs have made no application to amend their current originating process (the amended originating motion filed 24 July 2025) to include any claim invoking the Court’s inherent jurisdiction. It appears to me that the plaintiffs are leaving it to the Court to consider whether to quash the order as an exercise of this jurisdiction of its own motion.[3]
[3]This impression is reinforced by the phrase ‘on its own motion’ in [C.1] of the further submissions of the plaintiffs dated 27 August 2025.
(b) It is only in the alternative to the Court deciding (of its own motion) to exercise its inherent supervisory jurisdiction that the plaintiffs seek to ‘re-enliven’ their abandoned ground 1. The text of that ground was set out in the amended originating motion, but was expressly abandoned. Ground 1 was as follows:
1. The Decision is affected by jurisdictional error in that the learned Magistrate purported to make a proceeding suppression order pursuant to s 17 of the Act when in fact:
(a) the Varied Suppression Order is a broad suppression order within the meaning of s 26 of the Act; and
(b) at the time of the Review Application, the learned Magistrate did not have the power to make a broad suppression order pursuant to ss 26 and 15(3)(b) of the Act.
(c) The above ground did not directly assert that the decision to make the varied suppression order was affected by jurisdictional error by being beyond the power conferred by s 17 of the OC Act. However, the introductory words ‘the learned Magistrate purported to make a proceeding suppression order pursuant to s 17 of the Act when in fact:…’, combined with the statement in subparagraph (a) that the varied suppression order was ‘a broad suppression order’ within s 26, perhaps amounted to same thing, albeit indirectly. That is because an order under s 26 need not be limited to prohibiting the disclosure of a report of the proceeding or information derived from the proceeding, whereas an order under s 17 must be. If that point is taken into account, and it be assumed that this was the basis for old ground 1 characterising the varied suppression order as an order within s 26, then ground 1 is capable of being seen as an assertion that the varied suppression order is ultra vires s 17. But this leaves a lot to be implied and is not very clear.
(d) The application for leave (‘if leave be necessary’) to ‘re-enliven’ ground 1 is perhaps an application for leave to further amend the plaintiffs’ amended originating motion by re-instating that ground.[4] Further or alternatively, perhaps, it is an application to be relieved from the consequences (whatever they may be) of having previously elected to abandon it. Not only is the form of the leave being sought unclear, but the governing principles are not laid out, and no applicable case law is identified.
[4]For some unexplained reason, the text of ground 1 remained in the amended originating motion filed by the plaintiffs on 24 July 2025 even though the plaintiffs had already stated, in their written submissions filed 27 June 2025 (at [D.1]), that they did not press it.
The plaintiffs advance four points in support of their application for leave to ‘re‑enliven’ ground 1: first, the defendants should not be ‘taken by surprise’ because the ground was included in the originating motion as filed in January 2025; second, although the ground was not pursued at the hearing in August 2025, the relevant issues were raised and there was an opportunity to make submissions; third, the issue did not affect the evidence and would not have resulted in the case being conducted differently; and fourth, the order affects the world at large.
If the plaintiffs had clearly and directly sought to add to their amended originating motion a ground that the varied suppression order was invalid by reason of being ultra vires/beyond the power conferred by s 17 of the OC Act, I might have been inclined to grant such leave because of the importance of clarifying the status of the varied suppression order. However, the application to ‘re-enliven’ ground 1 as originally framed, the fact that ground 1 as originally framed only indirectly raised the ground that the varied suppression order was invalid in the relevant sense, the lack of clarity in what precisely the plaintiffs mean by applying for leave to ‘re-enliven’ the old ground (‘if leave be necessary’), and their failure to address the principles and any case law applicable to such an application — all leave me unpersuaded that I should grant the plaintiffs any relevant leave. Their application is refused.
This leaves the Court in a difficult position.
I adhere to my views, set out in the interim reasons, that it is unsatisfactory that the varied suppression order should continue to operate — affected as it is by obvious jurisdictional error.
As mentioned above, I have also given significant weight to the submissions, made on Mr Lynn’s behalf, to the effect that the quashing of the varied suppression order on a ground he had no prior opportunity to prepare for was unfair to him, and that the plaintiffs should not be allowed to recast their case.
In the end I have not given leave to the plaintiffs to recast their case. However, the point remains that Mr Lynn could not have expected, before the hearing, that the case would be determined on the ground that I raised at the hearing, and that the varied suppression order might be quashed for the reasons explained in my interim reasons.
To some extent, any unfairness to Mr Lynn has already been addressed by my giving him the opportunity to make submissions on the questions raised in the interim reasons and in response to the further submissions of the plaintiff. The submissions made on behalf of Mr Lynn did not attempt to engage on the merits of whether the varied suppression order was ultra vires s 17 or whether the Court could quash it of its own motion, but were in essence confined to complaining about unfairness occasioned to him by the issues in the proceeding being enlarged at and after the hearing. Decisions about the scope of the submissions were a matter for him and his counsel. The key point is that he had a fair opportunity to make substantive submissions contesting the merits of the argument that the varied suppression order was ultra vires, although he did not avail himself of that opportunity.
In the end, I have decided to give more weight to the factors identified in my interim reasons for judgment that favour quashing the varied suppression order than to the considerations Mr Lynn relied upon. In particular, in my view it is unsatisfactory to leave the varied suppression order in operation in circumstances where: its interpretation is uncertain; it is an order in compulsory terms, directed to the world at large; and contraventions of such orders can attract criminal consequences.[5]
[5]OC Act s 23.
There is no doubt that I have power to quash the varied suppression order in the exercise of the Court’s inherent supervisory jurisdiction.[6] In contrast to inter partes litigation relating to private causes of action, the courts have greater latitude to deal with questions arising about the lawfulness of actions under statute in ways that may depart from the cases framed by the parties.[7] Ideally, this might lead to one or other party adopting the point as part of their case, relieving the Court of having to make an order on its own motion.[8] In a case of obvious error such as this one, and where no party seems willing to move the Court for relief on the basis of the relevant error (or at least, not to do so clearly), then I take the view that the Court may exercise that jurisdiction of its own motion.
[6]Chairperson of the Royal Commission into the Management of Police Informants v Director of Public Prosecutions Victoria and Ors (2020) 61 VR 490; [2020] VSCA 184, [52] (Beach, McLeish and Weinberg JJA)
[7]Eg. Tucci v VCAT [2010] VSC 425, [16] (Cavanough J); Klein v Minister for Education (2007) 232 ALR 306, 315 [38] (Kirby J).
[8]Eg. Overend v Chief Commissioner of Police [2014] VSC 424, [7] (Cavanough J).
I have therefore decided, on the Court’s own motion, to quash the varied suppression order in the exercise the Supreme Court’s inherent supervisory jurisdiction over the Magistrates’ Court.
That said, I note paragraph 15 of Mr Lynn’s further submissions, and I accept that the process that has occurred might be said to impose some unfairness on Mr Lynn if he were not to be given a further opportunity to bring a fresh application for a suppression order, appropriately framed, before the current one ceases to operate.
It was essentially for this reason that I made orders, on 27 August 2025, facilitating the making of such an application within this proceeding. Mr Lynn did not make such an application by the deadline I set in those orders, but I consider this to have been reasonable in circumstances where the Court had not at that time (yet) decided to quash the varied suppression order.
Now that I have done so, it is appropriate for Mr Lynn to have a further opportunity — and indeed for the prosecution to have a further opportunity — to seek a fresh suppression order, properly supported by evidence and authority, should they wish to do so.
I will therefore stay my order, to allow him (and the prosecution, if so advised) to make any such application. I propose to stay my order for a longer period than is customary, to amply ensure fairness to Mr Lynn. I consider this to be justified in the somewhat unusual circumstances of the case.
I will order that the varied suppression order be quashed and stay that order for a reasonable period. My preliminary view is that a stay of 60 days is appropriate.
There will be liberty to Mr Lynn (or the prosecution) to apply by summons for a fresh suppression order in this proceeding provided that any application is made well before the expiration of the stay, with the intention that any such application should ideally be heard and determined before the stay expires. I am inclined to reserve liberty to apply in this manner for 30 days.
Alternatively, it may be open to Mr Lynn or the prosecution to make an application for a suppression order in the proceeding currently on foot in the Court of Appeal, if they see fit. That is a matter for them.
I intend to order that, if no such summons is issued in this proceeding within the period of liberty to apply, the proceeding will then stand dismissed. None of the grounds in the amended originating motion have been successful, and so it should be dismissed. I will hear the parties on the question of costs.
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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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