Bathurst CJ at [1]; McColl JA at [92]; McClellan CJ at CL at [93]
Decision:
(1) Leave to appeal be granted.
(2) Direct the applicants to file the Notice of Appeal in the form of the draft in the White Book within 7 days.
(3) Orders of Fullerton J made on 1 March 2012 be varied as follows:
(i) By the substitution of 29 March 2013 for 3 August 2012 in pars [2] and [6] of her Honour's orders.
(ii) By the addition of the following order:
"Grant the parties and the intervenor, Fairfax Media Publications Pty Ltd, liberty to apply to a judge of the Common Law Division to vary the expiry date contained in Orders 2 and 6 of her Honour's orders."
(4) Appeal otherwise dismissed.
(5) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act2010 prohibiting the publication or other disclosure of this judgment and the schedules thereto for a period of 28 days from the date hereof.
(6) Direct the applicants within 10 days indicate which part of the judgment and the schedules thereto should continue to be subject to a suppression order following the expiration of the 28 days referred to in Order (5) above.
(7) Direct the respondent and Fairfax Media Publications Pty Limited indicate within a further period of 7 days the extent to which they contend those portions of this judgment which the applicants seek to have suppressed beyond the period referred to in Order (5) should not be so suppressed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
PROCEDURE - interlocutory issues - suppression orders - order sought suppressing information concerning pendency and subject matter of proceedings - whether order "necessary to protect the safety of any person" - Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8
[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.
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AGLC
D1 v P1 [2012] NSWCA 314
Case
[2012] NSWCA 314
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal from interlocutory orders made by Fullerton J concerning suppression and non-publication orders sought by the applicants under the *Court Suppression and Non-publication Orders Act 2010* (NSW). The applicants sought to suppress information regarding the pendency and subject matter of proceedings, arguing such orders were necessary to protect the safety of a person. The appeal was heard by Bathurst CJ, McColl JA, and McClellan CJ at CL.
The primary legal issues before the Court of Appeal were the nature of an appeal from orders made under section 14 of the *Court Suppression and Non-publication Orders Act 2010* (NSW), specifically whether it was a de novo appeal, and the proper interpretation of the word "necessary" in section 8 of the Act in the context of an application for suppression orders. The Court also considered the operation of sections 7 and 8 of the Act.
The Court determined that an appeal under section 14 of the Act was not a de novo appeal, but rather an appeal on the merits of the decision made by the primary judge. Regarding the interpretation of "necessary," the Court held that it required a high degree of certainty that the harm would occur if the order was not made, and that the order must be proportionate to the risk. The Court varied the primary judge's orders, extending the suppression period and granting liberty to apply to vary the expiry dates, while otherwise dismissing the appeal. The Court also made orders for the future suppression of parts of its judgment and directed the parties to indicate which parts should continue to be suppressed.
Orders
Orders of the court
(1) Leave to appeal be granted.
(2) Direct the applicants to file the Notice of Appeal in the form of the draft in the White Book within 7 days.
(3) Orders of Fullerton J made on 1 March 2012 be varied as follows:
(i) By the substitution of 29 March 2013 for 3 August 2012 in pars [2] and [6] of her Honour's orders.
(ii) By the addition of the following order:
"Grant the parties and the intervenor, Fairfax Media Publications Pty Ltd, liberty to apply to a judge of the Common Law Division to vary the expiry date contained in Orders 2 and 6 of her Honour's orders."
(4) Appeal otherwise dismissed.
(5) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication or other disclosure of this judgment and the schedules thereto for a period of 28 days from the date hereof.
(6) Direct the applicants within 10 days indicate which part of the judgment and the schedules thereto should continue to be subject to a suppression order following the expiration of the 28 days referred to in Order (5) above.
(7) Direct the respondent and Fairfax Media Publications Pty Limited indicate within a further period of 7 days the extent to which they contend those portions of this judgment which the applicants seek to have suppressed beyond the period referred to in Order (5) should not be so suppressed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]