Cooper v Herald & Weekly Times Pty Ltd - [2013] VSC 589

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

SIMON COOPER	Applicant
v
HERALD & WEEKLY TIMES PROPRIETARY LIMITED THE AGE COMPANY LIMITED FAIRFAX MEDIA PROPRIETARY LIMITED	First Respondent Second Respondent Third Respondent

---

JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 January 2013
DATE OF RULING:	18 January 2013 (Revised 29 October 2013)
CASE MAY BE CITED AS:	Cooper v Herald & Weekly Times Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 589

---

CRIMINAL PROCEDURE – Application for non-publication order – Publication on websites before application made – Applicant suffering from severe mental illness – Risk of self harm – Inherent jurisdiction to make order – Whether order necessary to avoid prejudice to the administration of justice and not to endanger Applicant’s physical safety – Orders not necessary – Lack of utility of orders given earlier publication on the internet.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Tony Hargreaves & Partners
For the First Respondent	Mr J Quill (Solicitor)	Kelly Hazell Quill Lawyers
For the Third and Fourth Respondents	Mr D Poulton (Solicitor)	Minter Ellison Lawyers

HER HONOUR:

Last evening the applicant sought urgent non-publication orders in respect of his name and identity. I dismissed the application and said that I would deliver my reasons today. These are those reasons.

The applicant was charged two days ago with a number of serious offences. Mr Patrick Newton provided a medical report of 17 January 2013 and gave oral evidence about the applicant’s mental health. In summary, his evidence was that the applicant is suffering from a severe mental illness and that if his identity and the charges are publicised, there is a risk that the applicant will harm himself and this risk is likely to increase the longer and more widespread the publication is. Mr Newton also gave evidence that the applicant is receiving treatment and that some measures are in place to protect the applicant from taking action which is detrimental to his well-being.

At approximately 3:30pm yesterday, an article appeared on the Herald Sun website that identified the occupation of the applicant, his age and the suburb in which he lived and stated that he had been charged. The applicant’s name was not included in the publication. Approximately one hour later, an article appeared on The Age website which named the applicant, gave his age, the suburb in which he lived, included his photograph and stated the nature of the charges against him. Shortly after that, a similar article appeared on the Herald Sun website.

A filing hearing had been scheduled for today in the Magistrates’ Court. The applicant had intended to make application for non-publication orders on that occasion under s 126 of the Magistrates’ Court Act 1989 (Vic). However, with the publication of the website articles yesterday afternoon, the applicant attempted to have the non-publication application heard by the Magistrates’ Court late yesterday afternoon. That attempt at an early hearing was unsuccessful and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cooper v Herald & Weekly Times Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] VSC 589
Decision Date: 18 January 2013 (Revised 29 October 2013)

CaseChat Overview and Summary

The applicant, Cooper, sought a non-publication order in relation to criminal proceedings against him, citing his severe mental illness and the risk of self-harm if the proceedings were published. The respondents, Herald & Weekly Times Pty Ltd, were media companies that had published the information online before the application was made. The court had to determine whether it had the inherent jurisdiction to grant the order and if doing so would avoid prejudice to the administration of justice and not endanger the applicant’s physical safety.

The court considered whether it had the inherent jurisdiction to make an order prohibiting the publication of criminal proceedings and if such an order was necessary to avoid prejudice to the administration of justice and to protect the applicant’s physical safety. The court noted that the application was made after the information had already been published online, which diminished the utility of the orders sought. The court held that the inherent jurisdiction could be exercised in appropriate circumstances, but the circumstances of this case did not warrant the making of the orders.

The court found that the orders sought were not necessary to avoid prejudice to the administration of justice or to protect the applicant’s physical safety. The court noted that the application was made after the information had already been published online, and that the risk of self-harm was not imminent. The court held that the lack of utility of the orders, given the earlier publication on the internet, outweighed any potential benefit of the orders. The court did not make the orders sought by the applicant.

No orders were made. The court held that the application was not necessary to avoid prejudice to the administration of justice or to protect the applicant’s physical safety, and that the lack of utility of the orders, given the earlier publication on the internet, outweighed any potential benefit of the orders.

Orders