Fairfax Digital Australia and New Zealand Pty Ltd v District Court of New South Wales

[2012] NSWCA 172

Court of Appeal

New South Wales

Case Title:

Fairfax Digital Australia & New Zealand Pty Ltd v District Court of New South Wales

Medium Neutral Citation:

[2012] NSWCA 172

Hearing Date(s):

20 April 2012

Decision Date:

13 June 2012

Jurisdiction:

Before:

Bathurst CJ;  Basten JA;  Whealy JA

Decision:

(1) To the extent that the amended summons sought leave to appeal from the orders made in the District Court, dismiss the application.

(2) To the extent that the amended summons sought relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to the orders made in the District Court, dismiss the application.

(3) No order as to the costs of the parties in this Court.

[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.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - procedure - statutory right of appeal also available to applicants - whether supervisory jurisdiction of the Supreme Court was invoked - whether application should be dismissed - whether costs should be awarded 

APPEAL - jurisdiction - whether appeal from suppression order made by District Court in its criminal jurisdiction lies to the Court of Appeal or Court of Criminal Appeal - Court Suppression and Non-publication Orders Act 2010 (NSW), s 14

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), s 14
Criminal Appeal Act 1912 (NSW), s 3
District Court Act 1973 (NSW), s 176; Pt 4
Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Texts Cited:

Category:

Principal judgment

Parties:

Fairfax Digital Australia and New Zealand Pty Ltd (First Applicant)
Fairfax Media Publications Pty Ltd (Second Applicant)
News Digital Media Pty Ltd (Third Applicant)
Nationwide News Pty Ltd (Fourth Applicant)
Australian Broadcasting Corporation (Fifth Applicant)
Yahoo7 Pty Ltd (Sixth Applicant)
Seven Network (Operations) Ltd (Seventh Applicant)
Ninemsn Pty Ltd (Eighth Applicant)
District Court of NSW (First Respondent)
Fadi Ibrahim (Second Respondent)
Michael Ibrahim (Third Respondent)
Rodney Atkinson (Fourth Respondent)
Director of Public Prosecutions (Fifth Respondent)
Attorney General of NSW (Intervenor)

Representation

- Counsel:

Counsel:

Mr T D Blackburn SC/D R Sibtain (Applicants)
N/A (First and Second Respondents)
Mr P Lange (Third and Fourth Respondents)
Ms H Langley (Fifth Respondent)
M G Sexton SC SG/Ms A M Mitchelmore/ Ms J E Davidson (Intervenor)

- Solicitors:

Solicitors:

Johnson Winter & Slattery (Applicants)
Crown Solicitor (First Respondent)
Hanna Legal (Second and Third Respondents)
Alexanders Lawyers (Fourth Respondent)
S C Kavanagh, Solicitor for Public Prosecutions (Fifth Respondent)
Crown Solicitor (Intervenor)

File number(s):

CA 2012/100258

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Bennett DCJ

- Date of Decision:

28 March 2012

- Citation:

- Court File Number(s)

2009/213105;  2009/213165;  2009/217972

Publication Restriction:

JUDGMENT

1. THE COURT: The applicants are eight media companies operating in Australia, six of which operate websites. The respondents, other than the District Court, are parties in criminal proceedings presently before that Court. On 12 August 2011, the Chief Judge of the District Court (Blanch J) made a non-publication order in respect of details of a related police investigation and the prosecution of the accused for conspiracy to murder and in relation to certain earlier proceedings. On 1 September 2011 Solomon DCJ made further orders, to similar effect.

Orders under review

1. On 26 March 2012, Bennett DCJ made the following five orders:

   "1. The Orders made by his Honour Judge Solomon on 1 September 2011 are set aside.

   2. The Orders made by his Honour Justice Blanch on 12 August 2011 are set aside.

   3. Until further order, within the Commonwealth of Australia, there is to be no disclosure, dissemination, or provision of access, to the public or a section of the public, by any means, including by publication in a book, newspaper, magazine or other written publication, or broadcast by radio or television, or public exhibition, or broadcast or publication by means of the Internet of any:

   (a) Material containing any reference to any other criminal proceedings in which the accused Rodney Atkinson, Fadi Ibrahim, or Michael Ibrahim are or were parties or witnesses; or
   (b) Material containing any reference to any other alleged unlawful conduct in which the accused Rodney Atkinson, Fadi Ibrahim, or Michael Ibrahim are or were suspected to be complicit or of which they are or were suspected to have knowledge.

   4. Orders are stayed until 4.00pm on Tuesday 27/3/2012.

   5. Orders are to be sent to the Public Information Office at the Supreme Court of New South Wales for dissemination."

2. On 28 March 2012 Bennett DCJ made further orders, relevantly in the following terms:

   "1. I decline the application to set aside Order 3 of the orders made on 26/3/2012. They shall stand.

   2. I order that Order 3 made on 26 March 2012 be stayed in its application to the news media organisations the subject of the two affidavits sworn by Phillip Beattie on 27 March 2012, namely, News Digital Media Pty Ltd, Nationwide News Pty Ltd, and Fairfax Media Publications Pty Ltd., and the news media organisations associated with those companies as represented in those affidavits, until 4pm on Tuesday 3/4/2012. I will entertain an application at that time for further extension of the stay, should it be required.

   3. Transcript of the proceedings to date, my ex tempore judgment of 26/3/2012, and of these remarks to be made available to the legal representatives for the media interests. The material should not be further disseminated for any purpose.

   4. The Public Information office to bring these orders and the orders made on 26/3/2012 to the notice of internet servers Google Incorporated by facsimile ..., Google Australia Pty Ltd ... and Bing."

3. On 2 April 2012 the stay in relation to the applicants was extended by Whealy JA, upon the first four applicants undertaking to remove certain identified material from sites controlled by them. Since 27 March there has been no stay in place except in relation to the applicants.

Jurisdiction of Court of Appeal

1. The applicants sought leave to appeal from the orders made by Bennett DCJ, pursuant to s 14 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the Suppression Orders Act"). They also commenced proceedings in the supervisory jurisdiction of the Court seeking to review the orders made on 26 (and presumably 28) March 2012.

2. The criminal jurisdiction of the District Court is dealt with in Part 4 of the District Court Act 1973 (NSW). Section 176 is a privative clause, precluding relief in the nature of certiorari based on error of law on the face of the record, but it extends only to adjudications of the District Court on appeal and not to the exercise of Court's original criminal jurisdiction. It was not submitted that the supervisory jurisdiction invoked in the present case did not extend to error of law on the face of the record.

3. Because there was doubt as to whether the appeal was properly brought to this Court, rather than to the Court of Criminal Appeal, the Chief Justice constituted the Court to be a Court of Criminal Appeal, pursuant to s 3 of the Criminal Appeal Act 1912 (NSW). For reasons given in the judgment in that Court, the appeal properly lay to that Court and not to this Court. Accordingly, the application for leave to appeal to this Court should be dismissed.

4. Since the applicants had available to them a statutory right of appeal in respect of the orders under challenge, there was no occasion to invoke the supervisory jurisdiction of this Court. Accordingly, to the extent that the application sought to invoke the Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW), the application should be dismissed.

5. In the circumstances, there should be no order as to the costs of the proceedings in this Court. First, once the correct jurisdiction was identified, the applicants have been successful. Secondly, that appellate jurisdiction being criminal in nature, no costs have been awarded. Thirdly, it is unlikely that significant additional costs have been caused by the element of confusion as to the correct court in which to bring the proceedings. In these circumstances, there should be no order as to the costs of the civil proceedings in this Court.

6. The Court should make the following orders:

   (1) To the extent that the amended summons sought leave to appeal from the orders made in the District Court, dismiss the application.

   (2) To the extent that the amended summons sought relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to the orders made in the District Court, dismiss the application.

   (3) No order as to the costs of the parties in this Court.

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