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Ex parte West Australian Newspapers Ltd

Ex parte West Australian Newspapers Ltd

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EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2008] WASCA 209

Reported Decision:	(2008) 38 WAR 177
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 209
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:127/2007	Heard:	6 MAY 2008
Coram:	MARTIN CJ McLURE JA NEWNES AJA	Delivered:	14/10/08
No of pages:	43	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
PDF Version

Parties:	WEST AUSTRALIAN NEWSPAPERS LTD
Catchwords:	Corruption and Crime Commission (CCC) Investigation by CCC Public hearings Application by media outlet to broadcast videotaped interview played during public hearings Criminal Investigation Act 2006 (WA), s 121 and s 122 Corruption and Crime Commission Act 2003 (WA), s 152 Whether general discretion to make directions or whether discretion is constrained so that it can only be exercised in favour if the grant of access will positively advance the interests of justice or there are otherwise exceptional circumstances
Legislation:	Corruption & Crime Commission Act 2003 (WA), s 139, s 140, s 152, s 154 Criminal Code Act Compilation Act 1913 (WA), s 570C, s 570F Criminal Investigation Act 2006 (WA), s 115 124 Evidence Act 2006 (NZ) Evidence Regulations 2007 (NZ), r 19 Interpretation Act 1984 (WA) Rules of the Supreme Court 1971 (WA), O 67 r 11 Summary Offences Act 1953 (SA), s 74F
Case References:	Australian Competition & Consumer Commission v ABB Transmission & Distribution Ltd [No 3] [2002] FCA 609 Australian Securities & Investments Commission v Rich [2002] NSWSC 198 Australian Securities & Investments Commission; Re Richstar Enterprises Pty Ltd v Carey (No 2) [2006] FCA 407 Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Coull v Commissioner of Police [2006] WASC 136 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 Duport Steels Ltd v Sirs [1980] 1 WLR 142 Horsman v Commissioner of Police [2002] WASC 81 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Plutonic Operations Ltd v Done [2000] WASC 56 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Davis (1995) 57 FCR 512 Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56 Re Walsh [1971] VR 33 Rogers v Television New Zealand Ltd [2005] NZHC 476

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2008] WASCA 209 CORAM : MARTIN CJ

McLURE JA

NEWNES AJA

HEARD : 6 MAY 2008 DELIVERED : 14 OCTOBER 2008 FILE NO/S : CACV 127 of 2007 EX PARTE

WEST AUSTRALIAN NEWSPAPERS LTD

Appellant

ON APPEAL FROM:

For File No : CACV 127 of 2007

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : TEMPLEMAN J

Citation : RE CORRUPTION AND CRIME COMMISSION; EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2007] WASC 201

File No : MCS…

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.

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Details

Case: [2008] WASCA 209
Decision Date: 14 OCTOBER 2008

CaseChat Overview and Summary

West Australian Newspapers Ltd applied to the Court for an order that would allow it to broadcast a videotaped interview played during public hearings held by the Corruption and Crime Commission. The Commission opposed the application on the basis that the broadcast would interfere with the Commission's investigation and the privacy of the interviewee. The Court was required to determine whether the Commission's discretion to make directions in relation to the publication of information was a general discretion or whether it was constrained so that it could only be exercised in favour of granting access if the grant of access would positively advance the interests of justice or there were otherwise exceptional circumstances.

The Court held that the discretion was not a general discretion but was constrained. The Court held that the Commission could only exercise its discretion in favour of granting access if the grant of access would positively advance the interests of justice or there were otherwise exceptional circumstances. The Court found that in this case, the grant of access would not positively advance the interests of justice nor were there any exceptional circumstances that would warrant the grant of access. The Court found that the broadcast would interfere with the Commission's investigation and the privacy of the interviewee and that these factors outweighed any potential benefit of the broadcast.

The Court allowed the appeal and dismissed the application for an order that would allow the broadcast of the videotaped interview. The Court found that the Commission's discretion was constrained and that the factors that would warrant the grant of access were not present in this case. The Court emphasised the importance of protecting the privacy of individuals involved in investigations and the need to balance that with the public interest in access to information. The Court found that the balance tipped in favour of protecting the privacy of the interviewee and preventing interference with the Commission's investigation.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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