Herald & Weekly Times Ltd v County Court of Victoria

[2000] VSC 280

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5660 of 2000

THE HERALD AND WEEKLY TIMES LTD.	Plaintiff
v.
THE COUNTY COURT OF VICTORIA AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 JUNE 2000
DATE OF JUDGMENT:	9 JUNE 2000
CASE MAY BE CITED AS:	THE HERALD AND WEEKLY TIMES LTD. v. THE COUNTY COURT OF VICTORIA & ORS.
MEDIUM NEUTRAL CITATION:	[2000] VSC 280

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CATCHWORDS:      Practice and Procedure – Judicial review of suppression order made by Judge of the County Court – Jurisdiction of Supreme Court to entertain application – County Court Act 1958, ss.80 and 80AA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. W.T. Houghton Q.C. and Mr. J. Gorton	Corrs Chambers Westgarth
For the Defendants	Mr. D. Salek Q.C. and Mr. A.J. Maryniak

HIS HONOUR:

1. This is an application by the Herald & Weekly Times Ltd for orders in the nature of certiorari quashing two orders made by His Honour Judge Morrow in the County Court of Melbourne on 5 June 2000.  The orders in question read:

"Pursuant to s.80 of the County Court Act 1958, it is ordered that as from 11.45 a.m. on 5 June 2000 the above-mentioned proceedings, that is Frank Norman Hudson v. Crown Limited, number 9800630, be held in closed court and the further publication of these proceedings, or any information derived from them is prohibited.

It is further ordered that the evidence of Wayne Giles given in these proceedings on Tuesday 30 May, 2000, and anything that was said or done in these proceedings on Wednesday, 31 May 2000, or any information derived from the evidence of the said Wayne Giles, or from the proceedings that took place on Wednesday, 31 May 2000, be prohibited from publication."

1. The proceeding before the County Court is one in which the plaintiff Hudson is suing Crown Limited seeking to recover damages for injuries he received when he was assaulted by a drunken and/or unruly patron whilst at the Crown Casino on 2 November 1997.

1. One aspect of Hudson's case is a claim he makes against Crown that it failed to employ competent and well trained security personnel and in all the circumstances failed to protect him whilst he was at the Casino.

1. As Judge Morrow pointed out in his reasons for making the two orders in question, Crown's security arrangements go to the heart of Hudson's case against it and it is necessary therefore for Crown to show that its security arrangements were adequate and reasonable.

1. When it became necessary for Crown to call evidence in relation to its security arrangements its counsel sought orders from His Honour restraining publication of the evidence.

1. The application was made pursuant to the provisions of ss.80 and 80AA of the County Court Act 1958. Sec.80 reads:

"Power to close proceedings to the public:-

1.The Court may, in the circumstances mentioned in section 80AA

(a)Order that the whole or any part of a proceeding be heard in closed court; or

(b)Order that only persons or classes of persons specified by it may be present during the whole or any part of any proceeding; or

(c)Make an order prohibiting the publication of a report of the whole or any part of a proceeding or any information derived from a proceeding."

The sub-sections of s.80AA relevant for present purposes read:

"Circumstances in which an Order may be made under s.80 –

The Court may make an Order under s.80 if in its opinion it is necessary to do so in order not to –

(b)prejudice the administration of justice, or

(c)endanger the physical safety of any person."

1. In support of its application Crown called its General Manager of Community Affairs, who is named Horman, to give evidence.  Horman was previously a Deputy Commissioner of Police in this State and the Commissioner of Police in Tasmania.

1. The following is the account of the evidence given by Horman as set out in His Honour's reasons for judgment:

"Crown argues that if this evidence is given in open Court, its security and that of its staff and patrons will be compromised.  I have heard evidence to that effect from Mr Horman, the General Manager of Community Affairs at Crown and a former Deputy Commissioner of Police.  He has stated that at any one time there are large amounts of cash and large numbers of people on the premises and that it would be to the advantage of criminals if they were to know the numbers and location of security staff and cameras and the response times to alarms activated by the staff or set in motion by the TV surveillance crew.  He has also stated that the casino is to be the venue of a world economic conference later this year.  Similar conferences in Seattle and Washington held in recent times have been the subject of serious disruption and Mr Horman says he has reason to believe, by studying the Internet, that this may be tried here."

1. During the course of the hearing before me I was informed by counsel for Crown that Horman had given more extensive evidence concerning the matter than that passage would indicate;  further, that the solicitor who appeared for the Herald & Weekly Times at the time Horman gave the evidence did not seek to cross-examine him.

1. In stating his reasons for making the order he did, His Honour was at pains to point out that the power contained in ss.80 and 80AA of the Act was one to be exercised lightly and in fact only sparingly.

1. However, His Honour concluded that Crown had made out a case under s.80AA, and in particular, it would seem to me from my reading of his reasons, under sub-s.(c), and made the orders.

1. At page 6 of his reasons His Honour said:

"However, it seems to me that the defendant, Crown, has made out such a case here. The security arrangements of an enterprise such as Crown and also banks and armoured car companies, for example, have a legitimate interest in protecting those arrangements from the public lest greater harm be caused if they are revealed. The fact that companies of this type do not always apply for such orders is, to my mind, beside the point. The defendant here has, and its application must be judged on its own merits. Mr Houghton has submitted that rather than close the Court for the rest of the proceedings I could make orders under s.80 in relation to what might be referred to as 'sensitive matters'. Mr Salek agrees, but Mr Houghton and Mr Salek cannot yet agree on what is in fact sensitive. In my view this is unworkable."

1. At the outset of his submissions in opposition to the plaintiff's application, counsel for Crown contended that I had no jurisdiction to entertain the application.  The argument was based on the proposition that, as the County Court Act provided a right of appeal from an order of the court to the Court of Appeal in both the case of final orders and interlocutory orders, a person is deprived of any other form of remedy by way of appeal or review than that given by the statute. See Josephson v. Walker (1914) 18 C.LO.R.691 at p.695.

1. The section of the County Court Act relied upon by counsel for Crown is s.74, the relevant sub-sections of which read:

"74.

(1)Any party to a civil proceeding who is dissatisfied with any judgment or order of the court may appeal from the same to the Court of Appeal, notwithstanding that the civil proceeding may have been brought in the County Court by consent as provided by this Act.

...

(2D)An appeal does not lie to the Court of Appeal from a judgment or order of the court in an interlocutory application, being a judgment or order made on or after the commencement of section 32 of the Constitution (Court of Appeal) Act 1994, except with the leave of the Court of Appeal."

1. The difficulty with the submission, to my mind, is that the plaintiff is not a party to the civil proceeding in the County Court.  It was given leave to be heard in relation to the suppression application because His Honour Judge Morrow obviously considered that it had the necessary "locus standi".

1. As I observed in The Herald & Weekly Times Ltd v. Braun and Others (unreported, 13 January 1994):

"There are numerous decisions of members of this Court and superior courts throughout Australia recognizing the standing of the media to challenge suppression orders.  See for example John Fairfax v. The Police Tribunal of New South Wales (1986) 5 N.S.W.L.R.465; Friedrich v. The Herald & Weekly Times Ltd (1990) V.R.995; Re Bronfield, Stipendiary Magistrate; Ex Parte Western Australian Newspapers (1991) 6 W.A.R.153, and John Fairfax v. Local Court of New South Wales (1992) 26 N.S.W.L.R.131."

1. In my opinion not only did the plaintiff have the locus standi to advance submissions to His Honour in relation to the suppression application, it also is entitled to avail itself of the provisions of Order 56 of the Rules of this court and seek a review of His Honour's order; and such a review is not denied it by the provisions of s.74 of the County Court Act.

1. The grounds upon which the plaintiff seeks relief are set out in its originating motion filed in the court.  They read:

"A.His Honour Judge Morrow misdirected himself at law, alternatively misconstrued, section 80AA of the County Court Act by failing to consider whether the court closing order, the first suppression order, and the second suppression order were necessary to prevent prejudice to the administration of justice or to prevent danger to the physical safety of any person.

B.His Honour Judge Morrow misdirected himself at law, alternatively misconstrued, section 80AA of the County Court Act by holding that a finding that Crown Ltd had made out a case that it had a legitimate interest in protecting its security arrangements justified the court closing order, the first suppression order and the second suppression order.

C.His Honour Judge Morrow misdirected himself at law, alternatively misconstrued, section 80AA of the County Court Act, by making the court closing order, the first suppression order and the second suppression order without forming the view that it was necessary to make the orders based on one of the criteria set out in section 80AA.

D.His Honour Judge Morrow erred in law on the face of the record by taking into account an irrelevant consideration, namely that Crown Ltd had made out a case that it had a legitimate interest in protecting its security arrangements, in the making of the court closing order, the first suppression order, and the second suppression order.

E.His Honour Judge Morrow erred in law on the face of the record by taking into account an irrelevant consideration, namely the convenience of Mr Hudson, in the making of the court closing order, the first suppression order, and the second suppression order."

1. I am not satisfied that any of the grounds are made out.

1. It is clear that His Honour determined that the suppression orders were necessary to prevent damage to the physical safety of the staff at the Casino and the patrons who attend at the Casino. 

1. To my mind it would be an advantage to criminals to know the security arrangements Crown has in place at the Casino, in particular the locations of the control room and the monitoring room, the number of security personnel on duty at the Casino and their location, the location of security cameras and threat alarms and the semaphoring actions of members of the security staff when they apprehend the threat of violence or other criminal activity.

1. Crown obviously has a legitimate interest in protecting its security arrangements not only because doing so would help in protecting its revenue but also because the disclosure of such arrangements would endanger the physical safety of its staff and patrons.  That much is clear from the words in the passage I have quoted from His Honour's judgment, namely:  "have a legitimate interest in protecting those arrangements from the public lest greater harm be caused if they are revealed".

1. I should add in conclusion that had I been satisfied that His Honour had made some error, nevertheless I would have declined to exercise my discretion to quash the orders His Honour made. 

1. In my opinion it is not in the public interest that Crown's security arrangements be publicised - to do so could well render many of the steps it has taken to protect its revenue, its staff and its patrons nugatory.

1. The originating motion will be dismissed.

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